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Friday, May 12, 2006

Ind. Decisions - Court of Appeals decides five today

Paternity of N.R.R.L. - dismissal of paternity action, affirmed

Kenneth R. Shannon v. Sandra J. Shannon - division of marital estate, affirmed

In Glyn Walker v. Employers Insurance of Wausau, a 14-page opinion (with a dissent by Judge Baker beginning on p. 13), Judge Najam writes:

Glyn Walker appeals from the trial court’s grant of summary judgment in favor of Employers Insurance of Wausau (“Wausau”) in this action to recover under a policy issued to Walker’s employer, KTL, Inc. (“KTL”). Walker presents a single issue for our review, namely, whether the trial court erred when it concluded that there is no genuine issue of material fact precluding summary judgment in favor of Wausau. We reverse and remand for further proceedings. * * *

Conclusion. The trial court erred when it found that Wausau’s admission did not preclude summary judgment because the policy defenses referenced in the admission are not equivalent to policy exclusions. Thus, the trial court erred when it granted summary judgment in favor of Wausau based on policy exclusions. Although the trial court’s grant of summary judgment was not based on whether the UIM provision applied, we considered that issue because we must affirm the grant of summary judgment if it can be sustained on any theory or basis available in the record. We conclude that summary judgment also cannot be affirmed by applying the UIM provision. We further conclude that whether Walker is legally entitled to recover under the UIM provision is an issue for the finder of fact and, therefore, not properly resolved on summary judgment. Thus, we reverse the trial court’s grant of summary judgment in favor of Wausau and remand for further proceedings. Reversed and remanded.

BAILEY, J., concurs.
BAKER, J., dissents with separate opinion.

I must respectfully dissent because the result reached by the majority is the ultimate example of elevating form over substance.

The fact is that Walker is suing Wausau on a contract—an insurance policy—but does not want to be bound by its terms. The policy clearly states that it does not apply to “[a]ny obligation for which the ‘insured’ or the ‘insured’s’ insurer may be held liable under any workers’ [sic] compensation . . . law or any similar law.” Appellant’s App. p. 47. There is no dispute but that Walker was operating the tractor-trailer in the course of his employment, which means that worker’s compensation applies, and this incident is excluded under the clear terms of the policy. Therefore, the insurance company would be entitled to summary judgment on this basis but for a technicality—it responded too late to the requests for admission, which were then deemed admitted.

Without the admission that none of the defenses listed in the policy apply to Walker’s claim, Walker would have no case. Walker could not possibly win this case in a trial on the merits, and I cannot condone this type of “gotcha” litigation. I would therefore find that the trial court erred in denying Wausau’s motion for leave to withdraw the admission, but affirm its grant of summary judgment on the basis that the policy prevents recovery where worker’s compensation applies.

In J.S. v. Center for Behavioral Health, a 20-page opinion, Judge Sharpnack concludes:
Although the trial court’s conclusion that J.S. is dangerous is not supported by clear and convincing evidence, we affirm the trial court’s conclusion that J.S. is gravely disabled. Further, the trial court’s forced medication order meets the guidelines set out by the Indiana Supreme Court in M.P., 510 N.E.2d at 647-648. Thus, the trial court’s order for commitment and forced medication are reasonable and supported by clear and convincing evidence. For the foregoing reasons, we affirm the trial court’s order granting commitment and forced medication.
In Charter One Mortgage Corporation v. Kyle Condra, on behalf of himself and others similarly situated, an 18-page opinion with a long list of counsel on p. 1, Judge Bailey writes:
Case Summary. Appellant-Defendant Charter One Mortgage Corporation (“Charter One”) appeals the trial court’s denial of its motion to dismiss the class action complaint filed by Appellees-Plaintiffs Kyle Condra and “others similarly situated” (collectively referred to as “Condra”). We affirm.

Issue. Charter One raises one issue that we restate as whether the Indiana Supreme Court’s original jurisdiction over the unauthorized practice of law, which derives from Article 7, Section 4 of the Indiana Constitution, is preempted by a regulation promulgated under the National Bank Act that permits national banks to charge incidental fees for legal services provided by non-lawyers in the preparation of real estate loan documents. * * *

For the foregoing reasons, we conclude that the Indiana Supreme Court’s jurisdiction and authority to define and prohibit the unauthorized practice of law by preventing banks from charging document preparation fees for legal instruments prepared by non-attorneys is not preempted by the National Bank Act or 12 C.F.R. § 7.4002.13 Accordingly, we affirm the trial court’s denial of Charter One’s motion to dismiss Condra’s complaint.

Posted by Marcia Oddi on May 12, 2006 10:46 AM
Posted to Ind. App.Ct. Decisions