The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

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Wednesday, December 19, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Johnny H. Tigner v. Linda Tigner, a 12-page, 2-1 opinion, Judge Robb writes for the majority:

Johnny Tigner (“Father”) appeals the trial court’s judgment ordering him to pay Linda Tigner (“Mother”) $17,434.44 toward the cost of drug and alcohol treatment for their daughter, seventeen-year-old J. Father raises three issues for our review, which we consolidate and restate as whether the trial court properly ordered Father to pay these expenses. Concluding that the trial court erroneously required Father to prove the expenses were not reasonable and necessary, we reverse and remand. * * *

Conclusion. The trial court erred in concluding that Father had the burden to prove J.’s medical and counseling expenses were neither reasonable nor necessary and erred in its calculation of the amount of Father’s obligation. The trial court’s judgment is, therefore, reversed, and we remand to the trial court for further proceedings consistent with this opinion.

BARNES, J., concurs.
KIRSCH, J., dissents with opinion. [which begins] I respectfully dissent because I believe there is an important issue in the case that the majority does not address: Namely, what is the effect of Mother’s breach of the provisions of the Decree of Dissolution regarding shared custody?

Here, the essential facts are undisputed. Mother acted unilaterally in placing the parties’ daughter at a facility that was not covered by the parties’ medical insurance. Such unilateral action was a breach of Mother’s obligations under the shared custody order of the court and the parties’ own settlement agreement. Mother has not offered any justification for taking such unilateral action. Had Mother complied with her obligations, the tremendous costs of the placement at an uninsured facility may have been avoided. Father was never afforded the opportunity to participate in the decision-making that may have avoided such placement and such costs.

I believe it is not only unfair, but also bad policy to allocate any of the expenses of the placement to Father.

In The Estate of Martha O'Neal by Personal Representative Therese Newkirk v. Bethlehem Woods Nursing & Rehabilitation Center, LLC, a 20-page opinion, Judge Robb writes:

The Estate of Martha O’Neal (the “Estate”), by its personal representative, Therese Newkirk, appeals from the trial court’s grant of summary judgment in favor of Bethlehem Woods Nursing and Rehabilitation Center, LLC (“Bethlehem”). On appeal, the Estate raises one issue, which we restate as whether the trial court properly granted summary judgment in favor of Bethlehem. We reverse and remand, concluding that although the trial court properly concluded the professional services statute of limitation applies to Bethlehem, that statute does not control over the Indiana Wrongful Death Act’s (the “WDA”) statute of limitation. * * *

Consistent with the court’s holding in Holmes, we conclude that the professional services statute of limitation is less comprehensive than the MMA and therefore does not control over the WDA’s statute of limitation. Thus, it follows that the WDA’s statute of limitation controls, the Estate’s wrongful death claim was timely filed, and the trial court erred when it concluded that the Estate’s wrongful death claim was time-barred based on the professional services statute of limitation.

Conclusion. Although the trial court properly concluded the professional services statute of limitation applies to Bethlehem, that statute does not control over the WDA’s statute of limitation. Therefore, because the Estate’s wrongful death claim was filed within two years from the date of O’Neal’s death, it is timely.

Brian Southern v. State of Indiana - "In summary, we find that there was no error in admitting Southern’s statements from a second interview, permitting the jury to view the polygraph video which depicted Southern in his jail uniform, or in the admission of evidence of subsequent acts. Finally, the trial court did not abuse its discretion in sentencing Southern to forty years imprisonment. Affirmed."

In Nicole R. Spacey v. State Farm Fire & Casualty Company , an 8-page opinion, Judge Mathias writes:

The issue before us is whether State Farm complied with the cancellation process as set forth in Indiana Code section 27-7-12-3 and the Huckstep insurance policy such that the June 27, 2002 cancellation notice was effective. The parties concede that notice of policy cancellation was received but disagree whether the notice was received more than ten days before the policy’s cancellation date. * * *

State Farm contends that the term “days” as used in the statute refers to calendar days. Spacey disagrees and argues the term “days” must mean business days. The statute provides no definition for this term nor does the insurance policy. The trial court determined that it was more likely than not that the Hucksteps received the cancellation notice more than ten days before the June 27, 2002 cancellation date but did not address the issue of whether “days” means calendar or business days. * * *

[H]olidays would not interfere with use of insurance as most major insurers offer customers various opportunities to maintain contact with their insurer as well as to purchase and maintain coverage. As can be seen in advertisements on television, radio, and the internet, insurers seek to impress upon the consumer the ease with which a person can obtain insurance. The realities of the insurance business allow consumers to purchase coverage in minutes during any day of the week. Pursuant to Indiana Code section 27-7-12-3(b), a consumer is entitled to ten days notice before cancellation of a residential policy. We conclude that ten calendar days is sufficient to give a consumer notice of cancellation and to obtain other insurance if he so chooses.

Based on the trial court’s finding that the notice was sent on June 12, 2002, we conclude that the trial court could reasonably infer, based on the evidence and testimony adduced at trial, that the notice arrived at Huckstep’s residence more than ten calendar days before the June 27, 2002 date of cancellation. Therefore, the trial court’s findings are not clearly erroneous and we affirm the trial court’s judgment in favor of State Farm. Affirmed.

[ILB - Here is a 2002 calendar.]

NFP civil opinions today (0):

NFP criminal opinions today (10):

Thomas Green, Jr. v. State of Indiana (NFP)

Timothy McKain v. State of Indiana (NFP)

Charles Phifer v. State of Indiana (NFP)

Gary Gardner v. State of Indiana (NFP)

Larry Boyce v. State of Indiana (NFP)

Jerry L. Woodson, III v. State of Indiana (NFP)

Lyndal E. Jones v. State of Indiana (NFP)

Brian Houchin v. State of Indiana (NFP)

Dion Lane v. State of Indiana (NFP)

Toby E. Vautaw v. State of Indiana (NFP)