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Friday, November 09, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)

For publication opinions today (4):

In State Farm Mutual Automobile Insurance Company v. Jelana Hobbs D'Angelo , a 21-page, 2-1 opinion, Judge Darden writes:

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s entry of summary judgment in favor of Jelana Hobbs D’Angelo and against State Farm. We reverse and remand.

Issues. 1. Whether coverage for all claims due to bodily injury under State Farm’s policy has been exhausted under the limits of liability. 2. Whether State Farm’s policy is in violation of Indiana Code section 27-7-5-2. * * *

[1] The Tozer court determined that under Indiana law, “the question of whether the siblings’ claims fall under the ‘each person’ limit of liability . . . is an issue of contract interpretation,” and therefore looked to the “terms of the policy to ascertain the scope of its coverage.” * * *

D’Angelo’s claim for emotional distress arises from the fact that she witnessed Joshua’s injuries. Clearly, D’Angelo’s damages resulted from Joshua’s bodily injury, and her claim therefore is subject to the $100,000 limit applicable to Joshua’s injuries, the limits of which have been exhausted. * * *

In this case, D’Angelo came upon the scene after the accident and was not in the accident. Therefore, coverage under the limits for “Each Accident” is not available for D’Angelo.

[2] State Farm’s policy does not limit D’Angelo’s underinsured-motorist coverage in a manner greater than the limits of her liability coverage. Accordingly, we find that the policy does not violate Indiana Code section 27-7-5-2.

MATHIAS, J., concurs.
KIRSCH, J., dissents with separate opinion:

As a parent, I can imagine few nightmares worse that than that which Jelana Hobbs D’Angelo lived through on May 23, 2001. Coming upon an accident scene where her fourteen year-old son Joshua lay trapped beneath an automobile, trying in vain to free him, and watching him die in front of her, she sustained emotional distress which was every bit as much of a natural and direct consequence of the accident as Joshua’s death. That distress, with its attendant shock, and mortification, was a visceral reaction far beyond grief at the loss of a child and far beyond what any of us should ever have to endure. * * *

Courts have long struggled with issues relating to the negligent infliction of emotional distress because of concerns over frivolous or false claims, a proliferation of litigation and issues of forseeability. None of such concerns is present here. Goldey’s negligence in causing the accident is undisputed as is Jelana’s emotional distress. Jelana is Joshua’s mother. She was at the accident scene immediately after the collision occurred and directly involved in trying to free Joshua from the crushing weight of the Goldey’s car. Her emotional distress is severe, verifiable and goes far beyond the grief that any parent would experience at the loss of her child and far beyond the reaction that would be sustained by an unrelated bystander.

I respectfully dissent and would affirm the trial court’s decision in all respects.

Christina Roush v. State of Indiana - "In sum, we cannot say that the trial court abused its discretion in permitting the State to amend the charging information after the omnibus date. Nor did the court err in admitting into evidence out-of-court statements from Roush’s co-conspirators. Further, the State presented sufficient evidence to support Roush’s conviction. And we cannot say either that the court abused its discretion in ordering Roush to serve the presumptive sentence for her conviction or that that sentence is inappropriate in light of the nature of Roush’s offense and her character."

Lamar D. Allen v. State of Indiana - "After a jury trial, Lamar D. Allen was convicted of Class C felony Battery, four counts of Class B felony Criminal Confinement, Class B felony Carjacking, and Class A misdemeanor Battery, and subsequently sentenced to an aggregate sentence of sixteen years of incarceration. Allen contends that the State produced insufficient evidence to sustain his convictions for carjacking and one count of criminal confinement, the trial court abused its discretion in allowing three witnesses to testify, and the trial court abused its discretion in sentencing him. We affirm."

In William J. Speybroeck v. State of Indiana , a 16-page opinion, Judge Najam writes:

William J. Speybroeck (“William”) appeals his convictions for Fraud on a Financial Institution, a Class C felony, and Identity Deception, as a Class D felony, following a jury trial. He presents two issues for our review, which we restate as follows: 1. Whether the State properly authenticated business documents pursuant to Indiana Evidence Rule 902(9). 2. Whether the trial court abused its discretion by admitting documents into evidence under Indiana Evidence Rule 803(6), the business records exception to the hearsay rule. 3. Whether a retrial is appropriate. We reverse and remand for a new trial. * * *

In sum, the circumstances associated with the preparation of the Affidavit and Exhibit 11 indicate a lack of trustworthiness. As such, the Affidavit fails to satisfy Rule 902(9)’s requirements for self-authentication, and the underlying documents must be excluded. In addition, the Kawasaki documents and the letters cannot satisfy Rule 803(6)’s requirements of reliability. No one at HSBC had personal knowledge of the creation of those documents, and HSBC made none of those documents in its regular course of business. Thus, we hold that the trial court abused its discretion when it admitted Exhibit 11 into evidence. But because all the evidence presented at William’s trial, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charges.

NFP civil opinions today (5):

In the Matter of the Commitment of L.R. v. Clarian Health Partners (NFP) - "The evidence presented by Clarian is sufficient to establish that L.R. is a danger to herself when she does not take medicine. Accordingly, we find that the evidence is sufficient to support the trial court’s commitment order."

Teresa Armstrong v. Jeffrey Armstrong (NFP) - "Based on the foregoing, we conclude that the trial court abused its discretion by excluding Father’s overtime income when calculating his weekly gross income for the purpose of apportioning his contributions to A.A.’s higher education expenses without explanation. The trial court did not abuse its discretion in ordering that Father pay no child support for A.A. above and beyond his responsibilities for her higher education expense. Affirmed in part, reversed in part, and remanded with instructions."

Sharon Dickerson, et al. v. Lake County, Indiana, et al. (NFP) - Here Lake County taxpayers challenged on constitutional grounds the transfer of money out of the Common School Fund: "The Taxpayers requested that the trial court order Lake County and the State to cease diminishing the funds held in the Fund; declare Indiana Code sections 35-33-8-7 and 35-33-8-8 unconstitutional; order the State “to develop accounting and auditing procedures which adequately protect the [Fund]”; and award the Taxpayers costs and fees pursuant to Indiana Code section 34-14-1-10. * * *

"Given the reasons cited above, we find that the Taxpayers lack standing to pursue their action. Accordingly, we find no error in dismissing their complaint."

Charles Russell Adams, et al. v. Chester, Inc. d/b/a Chester, Inc. Construction Services, G. William Walker Construction Company, et al. (NFP) - "With the Strongbow having failed to establish that a genuine issue of material fact exists with regard to a relationship that would give rise to an implied right of indemnity, we affirm the trial court’s grant of partial summary judgment in favor of Chester."

Susan Peach (Boothby) and Renee Boothby v. Jon Mauller and Robin Mauller (NFP) - "The trial court had discretion to disbelieve the Boothbys’ counsel’s self-serving statements regarding his absence from the dismissal hearing and alleged efforts toprosecute the claim in December 2006. And the Boothbys do not offer any explanation for their lack of action from May 2005 until January 2007. We hold that the trial court did not abuse its discretion when it denied the Boothbys’ motion to reinstate. Affirmed."

NFP criminal opinions today (9):

Adrian L. Johsnon v. State of Indiana (NFP)

Daniel Ghebrehiwet v. State of Indiana (NFP)

Robert L. Clemons v. State of Indiana (NFP)

Michael Lee Green v. State of Indiana (NFP)

Michael Mooreman v. State of Indiana (NFP)

Charles Easton v. State of Indiana (NFP)

Marlen R. Bontrager v. State of Indiana (NFP)

Trent D. Thomas v. State of Indiana (NFP)

Paul McGiffen v. State of Indiana (NFP)

Posted by Marcia Oddi on November 9, 2007 01:23 PM
Posted to Ind. App.Ct. Decisions