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Tuesday, July 25, 2006

Ind. Decisions - Court of Appeals issues six today

In Estate of Diane Patrick Troxal v. S.P.T., Anthem Life Ins. Co., a 13-page opinion, Judge Riley concludes: "In light of the foregoing [which involves a review of the "the constructive trust, or Slayer’s Rule"], we find that the trial court properly decided as a matter of law that the proceeds of Diane’s life insurance policy inure to the benefit of the contingent beneficiary, Diane’s minor child, S.P.T., where the primary beneficiary has murdered the policy holder. Affirmed."

In David L. Moshenek v. State of Indiana, a 10-page opinion, Judge Darden concludes: "Based upon the allegations of Moshenek’s petition and the evidence presented to the trial court, we find that the trial court abused its discretion when it did not find that Moshenek had proved his grounds for relief by a preponderance of the evidence and denied his petition for permission to file a belated appeal. Reversed."

Donald Selby v. Northern Indiana Public Service Co., is an 11-page opinion by Judge Riley. The issue is: "Whether NIPSCO owed a non-delegable duty to Selby, an employee of an independent contractor injured while blasting dynamite on-site at a NIPSCO plant, and thus was vicariously liable for Selby’s injuries under the “intrinsically dangerous” exception to the general rule of a principal’s nonliability for a contractor’s negligence." After a very interesting discussion of the status of the law in Indiana in this area, including:

To show the vitality of the intrinsically dangerous exception, we note our supreme court’s 1995 opinion in Bagley v. Insight Communications Co., L.P., 658 N.E.2d 584, 588 (Ind. 1995), which held that “[w]here a contractor’s employer is responsible for a non-delegable duty, the contractor’s injured worker should not discriminately be deprived of access to full compensatory damages but should have recourse equal to that of an injured bystander.” Therefore, the longstanding categorization of blasting as an abnormally dangerous activity susceptible to strict liability, as well as the language in Bagley, are now at odds with the court’s declaration in Roberts that the exception does not apply without the additional claim of negligent hiring. * * *

Nevertheless, in hopes that Bagley lives on, Selby points out that our supreme court has referenced the case since its issuance of Roberts.

the opinion concludes:
Thus, despite being presented with facts that embody the classic example of an abnormally dangerous activity historically subject to strict liability, i.e. blasting with dynamite, the record here does reveal that Selby’s injuries could have been avoided had his co-worker, Ron, followed proper procedure and waited for confirmation from Selby before detonating the blast of dynamite that caused Selby’s injuries. Consequently, because Graycor’s employee did not exercise the ordinary and necessary precautions in detonating the charge of dynamite, NIPSCO cannot be held liable. However, if NIPSCO would be found to have negligently hired Graycor, then NIPSCO would be liable for Graycor’s employee’s negligent acts.
In J. Gregory Smith v. Shirley A. Smith, a 10-page opinion, Judge Vaidik writes:
J. Gregory Smith (“Greg”) appeals the dissolution court’s order dividing the marital assets he shared with Shirley A. Smith (“Shirley”). Specifically, Greg contends that the court abused its discretion in barring the introduction of certain evidence as a sanction for discovery violations without first holding a hearing. He also contends that the court abused its discretion by dividing the assets unjustly. We find the court did not abuse its discretion when it issued the sanction and that the division of property is reasonable. However, because of mistakes in the division of rental properties in the dissolution decree, we remand with instructions for the court to correct the dissolution decree.
In Allstate Insurance Co. v. Tim L. Scroghan, a 16-page opinion, CJ Kirsch writes:
This appeal involves a hotly contested battle over discovery sought in the course of a bad faith claim brought against Allstate for allegedly refusing or delaying payment on an uninsured motorist claim. Tim L. Scroghan brought the bad faith claim (along with breach of contract and punitive damages claims) after being injured in an automobile accident on October 10, 1997. At the time of the accident, Scroghan was insured by Allstate. His policy provided for coverage of property damage, medical payments, uninsured motorist, and bodily injury with a limit on liability of $50,000 per person. The trial court bifurcated Scroghan’s claims into two trials – one on the breach of contract claim and one on the bad faith and punitive damages claims. This appeal covers only the discovery pursued in the latter case.
In Board of School Commissioners of City of Indianapolis, et al v. Angela Pettigrew, a 10-page opinion, CJ Kirsch writes:
Angela Pettigrew filed suit against Ken Grubb, Susan Torzewski, and the Board of School Commissioners of the City of Indianapolis (the “Board”) alleging that Grubb and Torzewski, both employees of Indianapolis Public Schools (“IPS”), made defamatory statements against her, and that the Board negligently supervised these employees, which resulted in their alleged negligent and unreasonable conduct. The trial court granted summary judgment in favor of Grubb and Torzewski, but denied it as to the Board. The Board now appeals the trial court’s denial of its motion for summary judgment, and Pettigrew cross-appeals the trial court’s granting of Grubb’s and Torzewski’s motion for summary judgment. Because we hold that the Board, Grubb and Torzewski are immune under the doctrine of qualified immunity, we need not reach whether the statements of Grubb and Torzewski were defamatory. We affirm in part, reverse in part, and remand with instructions * * * to enter summary judgment in favor of the Board.
Here is some of the discussion of qualified immunity (cites omitted):
The Board maintains that even if the statements of Grubb and Torzewski were determined to be defamatory, it is immune to Pettigrew’s claim of defamation under the doctrine of qualified privilege.

A qualified privilege of public interest applies to communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty. The privilege exists because of “the necessity for full and unrestricted communication on matters in which the parties have a common interest or duty.” The privilege exists because of “the necessity for full and unrestricted communication on matters in which the parties have a common interest or duty.”

Intracompany communications regarding the fitness of an employee are protected by the qualified privilege, in order to accommodate the important role of free and open intracompany communications and legitimate human resource management needs. The privilege protects personnel evaluation information communicated in good faith. Absent a factual dispute, whether a statement is protected by a qualified privilege is a question of law. * * *

However, such a privilege may be overcome.

Posted by Marcia Oddi on July 25, 2006 12:57 PM
Posted to Ind. App.Ct. Decisions