The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 10 today (and 14 NFP)

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Wednesday, August 08, 2007

Ind. Decisions - Court of Appeals issues 10 today (and 14 NFP)

For publication opinions today (10):

In Robert M. Knight v. Indiana Insurance Company and Indiana University , an 11-page opinion, Judge Bailey writes:

[ILB - This is the Ron Felling incident] Knight raises three issues, which we consolidate and restate as the following issue: whether the trial court erred by granting summary judgment to the Insurer upon Knight’s claims that the Insurer wrongfully denied homeowners policy coverage and breached its duty to investigate and defend a lawsuit arising from Knight’s workplace assault and battery of a co-worker that produced no bodily injury. * * *

It is the nature of the claim, not its merit, which establishes the insurer’s duty to defend. Trisler, 575 N.E.2d at 1023. Consequently, if it is determined that an insurer has a contractual duty to defend a suit based upon risks it has insured, the insurer will not be relieved of that obligation, regardless of the merits of the claim. Id. An insurer who concludes that a claim is “patently outside the risks covered by the policy” and elects not to defend an insured in the underlying tort action under a reservation of rights does so at his peril. State Farm Fire & Cas. Co. v. T.B. ex rel. Bruce, 762 N.E.2d 1227, 1230 (Ind. 2002). This is because the insurer will be “bound at least to the matters necessarily determined in the lawsuit.” Id. * * *

Felling brought a Section 1983 claim against Knight alleging that Knight attacked him. The Insurer conducted an interview with Knight before denying coverage and refusing to defend the Felling lawsuit. Knight reported that the incident provoking the lawsuit happened at his workplace, involved himself and a co-worker, and was prompted by the co-worker’s criticism of his professional abilities.

Knight also reported that he rose up during a verbal encounter and bumped Felling, but Felling was not hurt. Knight’s account that he “bumped” Felling might be interpreted as either a report of an accidental occurrence or a report of a rude touching amounting to battery. Regardless, it was a workplace incident that resulted in no bodily injury. A reasonable claims manager would be able to discern the lack of contractual obligation at that juncture. The Insurer did not need to rely upon the subsequently mediated settlement between Knight and Felling to determine that the event was patently outside the Policy coverage. The Insurer is entitled to judgment as a matter of law upon Knight’s claims that it breached its duties to reasonably investigate and to defend the Felling lawsuit.

In Norman R. Carlson, Jr., et al. v. Sweeny, Dabagia, Donoghue, Thorne, Janes & Pagos and John H. Sweeney, a 3-page opinion on rehearing, Judge Robb writes:

The parties filed a joint petition for rehearing, which we grant to correct an erroneous statement made in our earlier opinion. * * *

Unbeknownst to this court, the parties had entered into pre-suit agreements tolling the statute of limitations. Therefore, the Carlsons did not file their claim in violation of the statute of limitations, and the Lawyers did not waive the defense by failing to plead it. In sum, neither party’s attorneys erred regarding the statute of limitations. As the parties concede in their petition, the fact that pre-suit agreements existed has no effect on the outcome or rationale of our previous decision, and we grant the petition for rehearing for the sole reason of removing any suggestion that the parties’ attorneys acted negligently with regard to the statute of limitations.

In Jane H. Collins v. T. William McKinney , a 20-page opinion, Judge Vaidik writes:

Jane Collins (“Collins”) appeals the trial court’s grant of T. William McKinney’s (“McKinney”) motion for directed verdict as to Collins’ counterclaim for breach of a written lease. The trial court concluded that even if McKinney breached the lease, Collins cannot prevail because there is no evidence to show that the breach was material or that Collins incurred any damage. Finding that there is sufficient evidence to allow a reasonable finder of fact to conclude that McKinney did breach the contract, that the breach was material, and that Collins suffered damages as a result of the breach, we reverse and remand for a new trial. * * *

We affirm the trial court’s order that McKinney was required to obtain Collins’ consent before any assignment or sublease of the Sublease. We reverse the trial court’s grant of McKinney’s motion for directed verdict on Collins’ Counterclaim for breach of contract and remand for a new trial.

In Now Courier, Inc. v. Review Board of the Indiana Department of Workforce Development & Tommy Jones, an 11-page opinion, Judge Darden writes:

NOW Courier, Inc. (“NOW”) appeals the order of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“the Board”) that determined that Tommy C. Jones was entitled to unemployment compensation benefits. * * *

ISSUE Whether the order must be reversed because NOW was not allowed to assert Jones’ ineligibility for unemployment compensation benefits based upon a statutory exception. * * *

NOW argues that the Board’s decision is contrary to law because it was denied due process – specifically, the opportunity to litigate the issue of Jones’ exemption from eligibility for unemployment compensation benefits based upon a statutory provision. We agree. * * *

The Board also argues that because this was a benefits decision, our review is limited to whether the facts support the decision of the ALJ and Board that Jones was not discharged for just cause. However, whether NOW was denied due process is a matter of law. NOW was never allowed to present to evidence of Jones’ asserted ineligibility for benefits based upon the statutory exemption. The Board’s determination that Jones was eligible for benefits was erroneous as a matter of law because NOW was not given the opportunity to be heard at a meaningful time and in a meaningful manner on its argument of Jones’ ineligibility. Therefore, NOW was denied due process. Accordingly, we reverse and remand for the Department to provide that opportunity. Reversed and remanded.

In Dan & Susan Miller v. Hague Insurance Agency , a 6-page opinion, Judge Mathias writes:

Daniel and Susan Miller (“the Millers”) appeal from the Pulaski Superior Court’s order of summary judgment in favor of Indiana Farmers Mutual Insurance Co. (“Farmers Mutual”). Concluding that the Millers failed to timely file their brief according to Indiana Appellate Rule 45(B), we dismiss this appeal. * * *

The Millers filed a notice of appeal on June 7, 2006 and a case summary on June 22, 2006. Then the Millers’ counsel, Patrick McEuen (“McEuen”), went on vacation from mid-June until July 5, 2006. While McEuen was on vacation, his staff received a letter from the Pulaski Superior Court indicating that the record and the transcript were complete. The notice of completion of clerk’s record and completion of the transcript were filed on June 23, 2006. McEuen’s office paid the invoice for the transcript on June 30, 2006, while McEuen was still on vacation. * * *

Here, appellant’s brief was filed thirty-eight days after the July 24, 2006 deadline. In the Millers’ motions filed with this court, McEuen claims that his failure to timely file the appellants’ brief was due to mistake or excusable neglect. He explains that he was never aware that the transcript had been completed in this matter because the notice had arrived while he was on vacation. McEuen states that he did not learn that the transcript had been filed until August 29, 2006, sixty-seven days after the clerk had filed her notice of completion of transcript.

“[I]t is the duty of an attorney and his client to keep apprised of the status of matters before the court.” Sanders v. Carson, 645 N.E.2d 1141, 1144 (Ind. Ct. App. 1995).

While the filing of a brief one day late has been considered a minor violation of our appellate rules, the filing of a brief thirty-eight days late is not. Dismissed.

In Ralph Drake v. Old National Trust Company, et al., a 10-page opinion, Judge Darden writes:

Ralph Drake appeals the trial court’s grant of summary judgment to Old National Trust Co. and other defendants on Drake’s action seeking an order that he held the right to purchase certain real estate (“the Property”) owned by the late Frances G. Birdsong. We affirm. * * *

We find the designated facts to establish that three months after the testator’s death, Drake was given the opportunity to purchase the Property for a specific appraised value. Pursuant to Estate of Owen, 855 N.E.2d at 612, the price for the Property was set at that time – September 3, 2001. Drake neither challenged the price set, nor had his own appraisal made, nor attempted to negotiate for a different price; in other words, he failed to take any action toward making the purchase within the following three months given him to do so. We conclude that by mid-December of 2001, Drake had been given a reasonable time to exercise the bequeathed option to purchase the Property; that he failed to exercise the option or make an effort to exercise the option; and by failing to do so, he waived the right bequeathed to him. Accordingly, the trial court did not err in granting summary judgment to the defendants.

In Daniel E. Hoagland, Karen Hoagland and Hoagland Family Limited Partnership v. Town of Clear Lake Board of Zoning Appeals I I, a 13-page opinion, Judge Sharpnack writes:

In this appeal, the Hoaglands challenge the trial court’s dismissal of their petition for writ of certiorari regarding a second ILP issued concerning the Nevins’ property. * * *

Here, the Hoaglands filed their petition for writ of certiorari on April 7, 2006. Although the Hoaglands served notice upon the property owners, the Nevins, they did not serve notice upon Tagtmeyer, who was the “applicant” on the ILP. As a result, the trial court found that the Hoaglands had failed to follow the statutory requirements. * * *

Under Ind. Code § 36-7-4-1005, the Hoaglands were required to serve notice upon “(A) each applicant or petitioner for the use, special exception, or variance; and (B) each owner of the property that is the subject of the application or petition for the use, special exception, or variance.” If we were to accept the Hoaglands’ interpretation of the statute, the Hoaglands would not have been required to give notice to the Nevins either. The Nevins are not the owners of property that is the subject of an “application . . . for the use, special exception, or variance.” Rather, the Nevins are owners of property that is the subject of an application for an ILP. As a result, under the Hoaglands’ interpretation, the Hoaglands would not have been required to serve notice of their petition on anyone except the BZA. See I.C. § 36-7-4-1005(a) (discussing service of notice to the BZA). We conclude that such a result was clearly not intended by the legislature. Rather, a more reasonable interpretation of the statute is that the Hoaglands were required to serve notice upon “each applicant” and “each owner of the property that is the subject of the application.” Although the Hoaglands provided notice to the property owners, they did not provide notice to the applicant. Their failure to comply with the statute is fatal, and the trial court did not err by dismissing the Hoaglands’ petition.

In Daniel E. Hoagland, Karen Hoagland and Hoagland Family Limited Partnership v. Town of Clear Lake Board of Zoning Appeals I, a 12-page opinion, Judge Sharpnack concludes:

Even though the BZA in this case did not issue written findings of fact, the Hoaglands were aware of the BZA’s December 20, 2005, decision. As a result, under Biggs, the Hoaglands were required to file a petition for writ of certiorari and serve the required notices within thirty days of the BZA’s December 20, 2005, decision, and they failed to do so. Their failure to comply with the statute is fatal, and the trial court did not err by dismissing the Hoaglands’ petition. * * * For the foregoing reasons, we affirm the trial court’s dismissal of the Hoaglands’ petition for judicial review.

In Newnam Manufacturing, Inc. & Dalton Corporation v. Transcontinental Insurance Company , a 15-page opinion, Judge Mathias writes:

Dalton Corporation (“Dalton”) appeals from the Noble Superior Court’s order granting summary judgment in favor of Transcontinental Insurance Co. (“Transcontinental”) on the issue of whether Transcontinental was required to incur the costs to defend Dalton in a suit involving Dalton’s alleged violations of the Clean Air Act. Because there was no potential for coverage under the insurance policy, we conclude that Transcontinental had no duty to defend Dalton. Therefore, we affirm. * * *

However, Dalton maintains that the Cinergy opinion leaves open the possibility that other forms of PSD relief could be covered under a general liability policy. Therefore, Dalton contends that because there is a possibility of coverage, Transcontinental’s duty to defend was triggered. We disagree.

IDEM did not seek any other relief in its order besides the application of a permit to determine whether BACT needed to be installed. “In Indiana, it is well settled that an insurer’s duty to defend is determined by the allegations of the complaint coupled with those facts known to or ascertainable by the insurer after a reasonable investigation.” Cincinnati Ins. Co. v. Mallon, 409 N.E.2d 1100, 1106-07 (Ind. Ct. App. 1980) (citing Am. States Ins. Co. v. Aetna Life & Cas. Co., 379 N.E.2d 510 (Ind. Ct. App. 1978)). Consequently, because no other relief was sought besides the potential installation of BACT, Dalton was not liable for “damages” as defined by Transcontinental’s insurance policy.

Conclusion. For the foregoing reasons, we conclude that the facts and circumstances at issue were not an occurrence that caused bodily injury, property damage, or personal injury for which Dalton could have been liable for damages. Because there was no potential for coverage under the policy, Dalton’s lawsuit did not trigger Transcontinental’s duty to defend. Affirmed.

In Maria A. Mitchell v. Bobby A. Mitchell , an 11-page opinion, Judge Vaidik writes:

Maria Mitchell (“Maria”) appeals the trial court’s order setting aside and vacating a contempt citation and discharging a Rule to Show Cause, both of which were issued to her former husband, Bobby Mitchell (“Bobby”), for failing to perform according to the hold harmless provisions of their dissolution decree. Maria argues that the hold harmless provisions of the decree were enforceable through contempt proceedings, and therefore, the contempt citation was wrongly vacated and set aside, and the Rule to Show Cause was wrongly discharged. Because there was no money judgment here requiring one party to pay a fixed sum of money to the other, and thus, the trial court erroneously concluded that it could not use its contempt powers, we find that the trial court abused its discretion by vacating and setting aside the contempt citation and by discharging the Rule to Show Cause. We reverse and remand.

NFP civil opinions today (3):

Beverly Roberts, Estate of William L. Roberts, Jr. v. ACandS, Inc. (NFP) - "The dismissal of Roberts’s application for compensation under the ODA was not premature because Roberts’s Estate had obtained paid settlements and a judgment against liable third parties. The release of liability provision of the ODA is not unconstitutional as applied to the facts of this case."

Marion Community School Corporation v. Marion Teachers Association (NFP) - "The Marion Community School Corporation (“MCSC”) filed a motion in Grant Circuit Court to vacate arbitration award. The trial court denied the motion to vacate and the MCSC appeals arguing that the arbitrator exceeded his authority when he ordered the MCSC to pay attorney fees and to issue an apology to teacher Roger Sharp (“Sharp”). Concluding that the trial court did not err when it denied the MCSC’s motion to vacate arbitration award, we affirm."

Invol. Term. of Parent-Child Rel. of P.B., and Christina Beltran v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (11):

Wanda J. Osborne v. State of Indiana (NFP)

James Walsh v. State of Indiana (NFP)

Jeffrey C. Jones, Sr. v. State of Indiana (NFP)

Donald E. Spence v. State of Indiana (NFP)

Taiwan Manuel v. State of Indiana (NFP)

Frederick A. Young v. State of Indiana (NFP)

Alfred McGinnis v. State of Indiana (NFP)

Hashim Holly v. State of Indiana (NFP)

Mark Ruthrauff v. State of Indiana (NFP)

Benny Lucas v. State of Indiana (NFP)