The state of Indiana is responsible by contract for the legal defense and any judgments against a company which provided the rigging that collapsed and killed seven people during the 2011 state fair, a company attorney told the state's highest court.
Mid-America Sound Corp. attorney Robert MacGill told the justices of the Indiana Supreme Court on Wednesday that Indiana's State Fair Commission signed lease forms with the company for nine years that included an "indemnification" provision releasing Mid-America from any claims arising from the use of its equipment.
Mid-America inserted that provision in its invoice claim form after the company tried to halt a 2002 state fair concert as severe weather threatened but was rebuffed by state fair officials, who said only they had such authority, he said.
"The 2002 event changed the contract and the contract was negotiated, agreed to and executed year after year," MacGill said.
Fair officials signed the revised forms starting in 2003 and for eight subsequent years, including in 2011 after high winds in August of that year toppled stage rigging Mid-America had provided onto fans awaiting the start of a concert by country duo Sugarland. Seven people were killed and more than 100 were injured.
Indiana has paid out $11 million to victims of the collapse, including $5 million under the state's liability cap and $6 million in public funds freed up by the General Assembly.
The state contends that the State Fair Commission is a state entity that cannot be required to pay the liability faced by a private company such as Mid-America, and that doing so would violate state law.
Indiana Solicitor General Thomas Fisher told the court the indemnification provision in the invoice claim forms Mid-America submitted are "a gotcha claim" that could potentially transfer "limitless liability" to the state.
Fisher said the voucher form provision was never part of the state's contracting and negotiation processes.
"The only reason we're here is because this was on the back of an invoice," he said.
The amount of damages Mid-America faces in lawsuits filed following the 2011 stage collapse remains under court seal.
Wednesday's hearing came after Indiana appealed a March ruling by the state Court of Appeals that overturned a Marion County judge's 2014 finding that Mid-America Sound could not shift its liabilities to the state.
The appellate ruling found that Mid-America could use its indemnification arguments in trial court. If that ruling is upheld by the high court, a jury could find the state responsible for legal damages the company faces.
Chief Justice Loretta Rush said following Wednesday's hearing that the court would consider the case and decide whether to accept it on appeal. If it does, the court will issue an opinion in the matter.