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Tuesday, May 15, 2007

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

In Cincinnati Insurance Company v. American Alternative Insurance Corporation, David F. Milligan, Sharon Milligan, Clinton County, Indiana, et al. , a 13-page opinion, Judge Barnes writes:

The issue before us is whether the “other insurance” clause in Cincinnati’s policy is irreconcilable with the “other insurance” clause in AAIC’s policy, requiring pro ration of coverage between both policies for an accident involving an insured of both companies. * * *

This result is consistent with the majority rule in similar cases, which has been described as follows:

If one policy has been issued to the owner of the vehicle causing damage, and another covers the same loss by virtue of the relationship to the accident of one who is not the vehicle owner, the latter’s insurer, at least where its coverage is of the “excess insurance” variety, is in the favorable position and need not assume any of the loss, although the vehicle owner’s policy contains a “prorata” clause.
Maryland Cas. Co. v. American Family Ins. Group of Madison, Wis., 429 P.2d 931, 940 (Kan. 1967) (quoting 76 A.L.R.2d 502, 505 (1961)). Indeed, it is precisely this majority rule that the legislature adopted as the public policy of this state when it enacted Indiana Code Section 27-8-9-7. Although as noted the facts of this case do not fall within the letter of the statute, and Milligan technically was not the “owner” of the Expedition but instead was a long-term lessor, we believe it would contravene both principles of contract interpretation and the intent of the legislature to require AAIC to provide primary, prorated coverage for this accident and ignore the clear language of its excess clause. Cincinnati’s coverage for Milligan’s accident is primary, and AAIC’s is excess only after exhaustion of Cincinnati’s policy limits.

Conclusion The trial court did not err in granting summary judgment in favor of AAIC and concluding that its coverage for Milligan’s accident strictly is excess only after exhaustion of the limits of Milligan’s personal automobile policy with Cincinnati. We affirm.

Donna M. Curtis v. Donna K. Butler - "The statute here at issue directs the Commission to determine a voter’s choice by examining the ballot. If the intent can be determined from the ballot, the vote shall be counted. If it is impossible to determine the voter’s choice, the vote may not be counted. There is no provision for the consideration of evidence that is extrinsic to the ballot to determine individual voter intent. Here, the Commission was able to determine each voter choice from the ballot presented and examined. There is no statutory authorization for a challenge to a completed ballot based upon a showing of a contrary intent. Moreover, there is no statutory provision for the withdrawal of a vote once it is cast, even if the voter subjectively intended by his or her subsequent omission to do so. As such, Curtis did not show that the Commission procedurally failed to comply with its statutory duty so as to invalidate the recount. Affirmed.

Valerie Raich Baxendale v. Samuel Raich - "Valerie Baxendale appeals the denial of her request to relocate to Minneapolis that resulted in the modification of the custody of her eleven-year-old son, A.R., to her ex-husband, Samuel Raich, III. We reverse."

Michael J. Duso v. State of Indiana - "Duso raises one issue, which we restate as whether the trial court abused its discretion by denying Duso the opportunity to make an offer of proof by questioning a witness after that witness invoked her Fifth Amendment right not to incriminate herself. We affirm."

Morrell N. Jones v. State of Indiana - "Morrell Jones appeals the denial of his motion to suppress statements he made to a polygraph examiner, his probation officer, and a police detective. We affirm."

NFP civil opinions today (3):

Michael E. Wetzel v. Wolfes Auto Auction (NFP) - "Wetzel raises two issues on appeal, which we revise and restate as: I. Whether the small claims court erred by entering judgment for Auto Auction; and II. Whether the small claims court judge showed bias when it entered judgment for Auto Auction. We affirm."

Marietta Hinkel v. Home Depot USA, Inc. (NFP) - Marietta Hinkel appeals the judgment in her personal injury claim against Home Depot USA, Inc. Affirmed.

Michelle Hartwell v. United Consulting Engineers, Inc.; United Consulting Engineers, Inc. v. Hunt Paving Co. Inc. (NFP) - Petition for rehearing, denied.

NFP criminal opinions today (4):

Percy Bronson v. State of Indiana (NFP)

Ulises Ledo v. State of Indiana (NFP)

Ricky D. Smith v. State of Indiana (NFP)

Shaun Matthews v. State of Indiana (NFP)

Posted by Marcia Oddi on May 15, 2007 01:16 PM
Posted to Ind. App.Ct. Decisions