« Ind. Gov't. - More on: "But by resigning before July 31, Smith also qualifies for lifetime, state-subsidized health insurance" | Main | Ind. Decisions - 7th Circuit decides two Indiana cases today »

Tuesday, June 05, 2007

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

For publication opinions today (5):

In The National Mutual Insurance Company, et al. v. Jason Curtis , a 13-page opinion, Judge Riley writes:

National Mutual raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred by concluding that National Mutual’s homeowner’s policy, issued to the Curtises, provided coverage against Beaulieu’s claim for injuries under the personal liability provisions because the policy did not clearly express an exclusion of liability coverage for injuries arising out of the ownership or use of a trampoline. * * *

[H]ere, the confusion does not lie in the policy’s language but rather in the structural ambiguity where the liability coverage and exclusions are inserted in the main policy, with an additional exclusion clause buried in a completely unrelated section fourteen pages later. The structural complexity of the policy as a whole is such that the disputed clause is obscured and a reasonable person would not realize its existence and application, regardless of his duty to read the policy. Accordingly, we hold as a matter of law that the placement of the trampoline exclusion is inconspicuous, amounting to an ambiguity in the policy. Therefore, we affirm the trial court’s Order. See AutoXchange.com, Inc., 816 N.E.2d at 47.

We reiterate that the result reached today does not do violence to the legitimate and understandable interests of insurers in limiting their liability coverage. However, if an insurance carrier desires to exclude coverage, this should be spelled out for the policyholder in clear and unmistakable language with conspicuous and plain positioning.

CONCLUSION Based on the foregoing, we conclude the trial court properly found that National Mutual’s homeowner’s policy, issued to the Curtises, provided coverage against Beaulieu’s claim for injuries under the personal injury provisions because the policy did not clearly express an exclusion of liability coverage for injuries arising out of the ownership or use of a trampoline.

In Mari O. Hunter v. Anne Klimowicz, a 9-page opinion (including a concurring opinion) Chief Judge Baker writes:
Appellant-defendant Mari O. Hunter, individually and as trustee of the Anne Klimowicz Irrevocable Trust (the Trust), appeals from the trial court’s order rescinding the Trust. Hunter raises a number of arguments regarding the rescission of the Trust, focusing on allegations of undue influence and capacity. Finding that Anne lacked proper capacity to create the Trust, we affirm the judgment of the trial court. * * *

We are persuaded that this testimony from Anne’s treating physician establishes that she was not of sound mind and did not have a reasonable understanding of the nature and effect of the act and the terms of the Trust at the time of its creation. Although Anne’s statements recorded at the time of the Trust could be viewed as evidence of her mental capacity, we find them to be ambiguous and note that, at a later date, she could not recall the meeting at all and was perplexed when shown the documents bearing her signature. Under these circumstances, we conclude that the trial court properly ordered that the Trust be rescinded.

DARDEN, J., concurs. ROBB, J., concurs in result with opinion [which begins:] I concur in the result reached by the majority, but write separately to emphasize an important distinction between this case and the typical estate case regarding testamentary capacity.

In Norwood Promotional Products, Inc., et al. v. Thomas B. Roller Judge Darden writes:
This case comes to us on an interlocutory appeal. Norwood Promotional Products Holdings, Inc. * * * appeal the trial court’s denial of their motion to compel arbitration of tort and securities fraud claims alleged by Thomas Roller (“Roller”) under the Indiana Securities Act. We affirm.

ISSUE Whether the trial court erroneously denied Norwood’s motion to compel arbitration of Roller’s alleged complaint for securities fraud and tort claims. * * *

Norwood correctly notes Indiana’s strong policy favoring enforcement of arbitration agreements, and the general view that arbitration agreements should be interpreted in light of that policy. Chesterfield Management, Inc. v. Cook, 655 N.E.2d 98, 102 (Ind. Ct. App. 1995). However, it is not the appellate court’s policy to extend arbitration agreements by construction or implication. Mislenkov, 743 N.E.2d at 289. “The arbitration promise is itself a contract.” Smith v. Meijer, 858 N.E.2d 693, 693 (Ind. Ct. App. 2006). Parties are bound to arbitrate those issues that by clear language they have agreed to arbitrate. Safety Nat., 829 N.E.2d at 1000 (citing Mislenkov, 743 N.E.2d at 289). Herein, the parties’ contract is unambiguous; thus, we give the words used in the contract their plain and ordinary meaning. Accordingly, we find that Norwood has not demonstrated that the parties agreed to submit securities disputes to arbitration.

In Tony Perry v. State of Indiana , a 2-1 opinion, Chief Judge Baker writes:
Appellant-defendant Tony Perry appeals his convictions for Murder, a felony, and Aggravated Battery, a class B felony. Specifically, Perry argues that (1) the trial court erroneously declared the jury to be at an impasse and (2) a scrivener’s error in the trial court’s response to a jury question resulted in “incalculable” prejudice. Concluding that the trial court erroneously declared the jury to be at an impasse and that the scrivener’s error was prejudicial, we reverse the decision of the trial court and remand this cause for a new trial. * * *

We emphasize that a trial court’s typographical error does not necessarily mandate reversal. * * *

Here, however, the evidence of Perry’s guilt was not overwhelming—as demonstrated by the jury’s extensive deliberations—and we cannot say that it would have been improper for the jury to have acquitted Perry because the jury notes make it clear that the jurors were uncertain about the evidence presented at trial. In sum, we cannot say that the trial court’s error did not influence the jury’s verdict, thereby prejudicing Perry and resulting in seventy years of imprisonment. For that reason, we reverse the trial court’s conviction and remand this cause for a new trial. * * *

FRIEDLANDER, J., concurs. CRONE, J., dissents with opinion. [which begins:] “It has been held repeatedly that a defendant is not entitled to a perfect trial, but is entitled to a fair trial, free of errors so egregious that they, in all probability, caused the conviction.” Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993). I respectfully disagree with the majority’s conclusion that the trial court’s typographical error in its response to Jury Note #4 is so egregious that it warrants the reversal of Perry’s convictions. Therefore, I dissent.

Gregory John Long v. State of Indiana - "Gregory John Long appeals his convictions, after a trial by jury, on one count of corrupt business influence, a class C felony, and two counts of theft, as class D felonies, and the sentence imposed by the trial court thereon. We affirm."

NFP civil opinions today (2):

Mark Lemerick v. Jerry Johns, et al. (NFP) - "The gravamen of Lemerick’s argument is that the trial court erred by concluding that the appellees did not have a fiduciary relationship with Landis that was based on constructive fraud. Finding that a fiduciary relationship did not exist between the appellees and Landis, we affirm the judgment of the trial court."

In Re the Matter of the Termination of the Parent-Child Relationship of K.M., N.M., B.M., M.M. & P.M.; Loretta Harris v. Tippecanoe County Office of Family & Children (NFP) - termination, affirmed.

NFP criminal opinions today (3):

State of Indiana v. Linden Cornewell (NFP)

Lesley Jackson v. State of Indiana (NFP)

Francisco Eguia v. State of Indiana (NFP)

Posted by Marcia Oddi on June 5, 2007 10:51 AM
Posted to Ind. App.Ct. Decisions