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Tuesday, October 07, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In Indiana Department of Env. Mgmt. v. Steel Dynamics Inc. , a 10-page opinion, Judge Mathias writes:

The Indiana Department of Environmental Management (“IDEM”) appeals the order of the Marion Superior Court reversing the Office of Environmental Adjudication’s ruling in favor of IDEM on its claim that an electric arc furnace dust silo owned by Steel Dynamics, Inc. (“SDI”) was a hazardous waste tank subject to hazardous waste regulations. SDI cross-appeals and claims that the trial court erred in concluding that there was a genuine issue of material fact with regard to whether there had been a release of hazardous waste at the SDI facility. We affirm in part, reverse in part, and remand. * * *

In this comment, the EPA agrees with essentially all of SDI’s current argument, i.e., that EAF dust silos are not hazardous waste tanks subject to RCRA regulation because the EAF dust does not become a hazardous waste until it leaves the silos. Assuming that this is the official position of the EPA, then there is a conflict between how IDEM and the EPA interpret the applicable regulations. SDI argues that since IDEM did not promulgate its own regulations, but simply incorporated by reference the relevant EPA regulations, then EPA’s interpretation should trump that of IDEM. This it seems was the position of the trial court.

However, a state may choose to impose more stringent regulations than those imposed by RCRA, and “‘RCRA sets a floor, not a ceiling, for state regulation of hazardous wastes.’” [ILB -citing opinions from the 3rd and 4th Circuit.] This is not altered by the fact that IDEM simply incorporated the EPA regulations by reference. This incorporation does not, in our opinion, require IDEM to blindly follow the EPA’s interpretation of these regulations. By incorporating these regulations, they became IDEM regulations, and subject to independent IDEM interpretation, just as much as if IDEM had promulgated them itself. [ILB - emphasis added]

As stated above, IDEM’s interpretation of the relevant statutes and regulations is reasonable, and we see no need to further address this issue, regardless of how EPA interprets these regulations, because the EPA simply sets the absolute minimums that must be met. The trial court erred by not accepting the reasonable interpretation of the agency charged with enforcing the statutes and regulations at issue. * * *

Conclusion. The trial court erred in reversing the conclusion of the ELJ that the EAF dust silo was a hazardous waste tank subject to the appropriate regulations. The trial court did not err in agreeing with the ELJ that SDI was not entitled to partial summary judgment. Affirmed in part, reversed in part, and remanded.

ILB note: In other words, IDEM can interpret RCRA regs more strictly than feds.

In Founders Insurance Co. v. Virginia Olivares, et al. , a 14-page opinion, Judge Darden writes:

Issue. Whether the trial court properly concluded that Founders was barred from denying coverage to Farley because he was an “excluded driver” under Vara’s auto insurance policy with Founders. * * *

Here, Founders became aware of the “excluded driver” defense in January 2003 when Olivares sent it a letter asserting that Farley was driving the Cutlass at the time of the December 16, 2002 accident. After Olivares filed her complaint in June 2004, Founders provided defense counsel to Farley and continued to control Farley’s defense up to the time of trial. At no time either before or after Founders assumed Farley’s defense did Founders reserve its right to rely on the “excluded driver” defense. Because there was no proper reservation of rights by Founders as to the “excluded driver” defense, Farley was not aware at the time he accepted defense counsel from Founders that Founders would later deny coverage if it were found that he was the driver of the Cutlass at the time of the accident. In such a situation, Farley could not make an intelligent choice between retaining his own counsel or accepting Founders’ defense counsel. See Royal Ins. Co. v. Process Design Assocs., Inc., 582 N.E.2d 1234, 1239 (Ill. App. Ct. 1991) (noting that a reservation of rights must adequately inform the insured of the rights which the insurer intends to reserve for it is only when the insured is adequately informed of the potential policy defenses that he can intelligently choose between retaining his own counsel or accepting the tender of defense counsel from insurer). Based on this, we conclude as a matter of law that Farley was prejudiced by the denial of his right to control his own defense.

Therefore, the trial court properly concluded that Founders is estopped from denying coverage to Farley because he is an “excluded driver” under Vara’s auto insurance policy with Founders. Affirmed.

Susan Hinesley-Petry v. Thomas S. Petry is a 17-page, 2-1 opinion dealing with these issues:
I. Did the trial court err in finding that the Uniform Gifts to Minors Act (“UGMA”) accounts were sufficient to cover 2007-2008 educational expenses for both children? II. Did the trial court err in limiting the parents’ educational expense obligations to the younger child to those that would be incurred at an in-state, state-supported college? III. Did the trial court err in not entering an order regarding the allocation of educational expenses for the older child for the 2007-2008 academic year? IV. Did the trial court abuse its discretion in not including as an educational expense costs incurred by a twenty-one-year-old child during college breaks?
NFP civil opinions today (1):

Mary J. Ziobron v. Madalyn Kell Squires, M.D., et al. (NFP) - "Concluding that Ziobron failed to present an expert opinion to rebut the medical review panel’s unanimous decision and that negligence cannot be inferred under these facts, we affirm the summary judgment order. Additionally, concluding that neither award of attorneys’ fees is warranted, we deny both requests for appellate attorneys’ fees."

NFP criminal opinions today (2):

State of Indiana v. Rodney Brown (NFP) - "The State of Indiana appeals the grant of Rodney Brown’s motion for discharge pursuant to Indiana Criminal Rule 4(B). The sole issue raised on appeal is whether the trial court erred in granting Brown’s motion for discharge. * * *

"Brown was incarcerated because of the federal detainer lodged against him, and he was therefore under the sole authority of the federal court. Accordingly, Criminal Rule 4(B) was no longer applicable to Brown. Thus, we conclude that the trial court erred in granting Brown’s motion for discharge. Reversed and remanded for further proceedings."

Desmond Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on October 7, 2008 12:30 PM
Posted to Ind. App.Ct. Decisions