« Law - "In scattered cases, state regulation of reproductive rights remains a part of the legal culture" | Main | Ind. Courts - "New Albany attorney sentenced to year in prison for sexual battery" [Updated] »

Thursday, September 25, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP); Tax Court issues one

For publication opinions today (1):

In Emma Smith v. Gary Public Transportation Corp. , a 7-page opinion, Judge Barnes writes:

Smith raises several issues. However, we address one dispostive issue, which we restate as whether the trial court properly granted GPTC’s motion to dismiss because it lacked subject matter jurisdiction. * * *

“The Indiana Worker’s Compensation Act (“the Act”) provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment.” Although the Act bars a court from hearing any common law claim brought against an employer for an on-the-job injury, it does permit an action for injury against an “other person” provided the third-party is neither the plaintiff’s employer nor a fellow employee.

Smith contends that although GPTC was her employer, she was permitted to sue GPTC because it was acting as an “other person” by self-insuring for purposes of uninsured and underinsured motorist liability. * * *

We conclude that a self-insured employer is not an “other person” for purposes of IC 22-3-2-13. In addition to limiting suits against employers and fellow employees, this statute also allows an employer or worker’s compensation insurer to attach a lien to any damages the injured employee received from the third party. “The purpose of the statute is to make the employer or its carrier whole and prevent a double recovery by the worker.” Walkup, 702 N.E.2d at 715. Requiring GPTC to pay twice—once as an employer and once as an insurer—does not advance the policy of Indiana Code Section 22-3-2-13. Further, if we were to allow Smith to recover underinsured motorist payments directly from GPTC, GPTC would be entitled to a lien on those proceeds so as to prevent a double recovery for Smith, who has already received worker’s compensation benefits. We do not interpret the statute in that way. * * *

GPTC is not an “other person” pursuant to IC 22-3-2-13. Therefore, the trial court properly granted GPTC’s motion to dismiss based on the lack of subject matter jurisdiction. However, because the trial court lacked subject matter jurisdiction it could not address the merits of the case and grant GPTC’s motion for summary judgment. We affirm in part and reverse in part.

NFP civil opinions today (2):

Eric Goetz, Eric Goetz Master Building, Inc. v. Christopher and Beth Boyer (NFP) - "The Boyers petition for rehearing * * * The Boyers point out on rehearing that our recalculation of the markup of the contract price is erroneous. * * *

"Although this recalculation makes it unnecessary for the reversal in part and remand, our interpretation of the contract and substance of the opinion does not change. We affirm the substance of our earlier decision, but due to this recalculation the reversal in part is no longer necessary. The opinion of the trial court is affirmed in all respects. We affirm."

William Pettit v. Steve Webb and AMCO Ins. Co., d/b/a Allied Property and Casualty Ins. Co. (NFP) - "Issue. Whether an action for spoliation of evidence can be maintained against an alleged tortfeasor’s liability insurance company for failing to preserve evidence that was in the possession of the alleged tortfeasor.

"Here, Webb, the named defendant to the underlying litigation, is the person who altered or destroyed the relevant evidence. Thus, it is a first party, the alleged tortfeasor, who allegedly destroyed or discarded evidence. As noted in Gribben, the remedies under Indiana law for first-party spoliation include an inference that the spoliated evidence was unfavorable to the party responsible, various sanctions under Indiana Trial Rule 37(B), criminal prosecution, and various penalties including disbarment if attorneys are involved in the destruction or concealment of evidence. Id. at 351. Because Pettit will have remedies available to him if spoliation by Webb is established, we decline the invitation to expand the language of Thompson and instead choose to follow the language and direction of our Supreme Court in Gribben."

NFP criminal opinions today (6):

Ronald M. Murphy v. State of Indiana (NFP)

Myron Larry v. State of Indiana (NFP)

Kenneth Stewart v. State of Indiana (NFP)

DaShawn Works v. State of Indiana (NFP)

Robert Spears v. State of Indiana (NFP)

Timothy Dion Hampton v. State of Indiana (NFP)

Tax Court's for publication opinions today (1):

SAC Finance, Inc. v. Indiana Dept. of State Revenue - "The issue for the Court to decide is whether SAC is entitled to the remainder of its requested sales tax refund pursuant to Indiana Code § 6-2.5-6-9. * * *

"Based on the foregoing reasons, SAC cannot write off as bad debt more than what it actually paid for the installment contracts at issue. As a result, summary judgment is GRANTED in favor of the Department and AGAINST SAC. The parties shall bear their own costs."

Posted by Marcia Oddi on September 25, 2008 02:13 PM
Posted to Ind. App.Ct. Decisions