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Wednesday, April 15, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In City of Bloomington Utilities Department v. Misty Walter, Micky Day, et al, a 13-page opinion, Judge Kirsch writes:

The City of Bloomington Utilities Department (“CBU”) brings this interlocutory appeal challenging the trial court's denial of its motion for summary judgment. CBU raises the following restated issue: whether the trial court erred in failing to find that CBU is immune from liability under the Indiana Tort Claims Act, Indiana Code chapter 34-13-3 (“ITCA”), for damage caused by sewage flowing from its sewer pipes into the home of one of its customers. We affirm and remand. * * *

Here, Homeowners alleged that CBU negligently maintained and controlled the sewer lines by failing to clear severe root invasion from the sewer pipes. As a proximate result of this negligence, the Homeowners' sewer line became blocked, sewage flowed into the home, and the sewage caused damage to the Homeowners' real and personal property. Appellant’s In its motion for summary judgment, CBU argued that its conduct qualified for governmental immunity as a discretionary function under Section 3 of the ITCA. In the alternative, CBU argued that it had insufficient notice and opportunity to remedy the problem in the sewer line. The trial court denied CBU's motion for summary judgment. * * *

CBU asserts that, contrary to the trial court's findings, it is entitled to immunity for the discretionary function of enacting and following its Capacity, Management, Operations and Maintenance (“CMOM”) Program—a program that set forth guidelines for CBU to inspect, clean, and repair the City's sewer system. * * *

The issue of whether an act is discretionary and therefore immune from liability is a question of law for the trial court to resolve. The essential inquiry is whether the challenged act is the type of function that the legislature intended to protect with immunity. Discretionary immunity is provided to governmental units for undertaking a policy-oriented decision-making process. * * *

We find that our decision today is best guided by our Supreme Court's reasoning in Greathouse v. Armstrong, 616 N.E.2d 364 (Ind. 1993) and this court's decision in City of Valparaiso v. Defler, 694 N.E.2d 1177 (Ind. Ct. App. 1998), trans. denied. * * *

Here, Homeowners alleged that CBU “negligently planned, designed, installed, operated, maintained, and controlled the sewer lines serving [the Homeowners] . . . .” Specifically, Homeowners alleged that CBU's failure to exercise reasonable care in the maintenance of its lines resulted in severe root blockage of its lines, which in turn caused a sewage back-up. CBU bore the burden to show that a policy decision, consciously balancing risks and benefits, took place regarding the method by which CBU cleaned and maintained its sewers on a daily basis. * * *

The planning/operational test allows us to “distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity.” Boyd, 890 N.E.2d at 800 (quoting Greathouse, 616 N.E.2d at 366-67). Not every government decision is immune. See Mullin, 639 N.E.2d at 282 (“If policy formulation included every act involving choice, judgment, or decision making, every act would fall within discretionary function exception.”). While the decisions regarding sewer cleaning required CBU and its employees to exercise professional judgment, these decisions may be evaluated under traditional tort standards of reasonableness. Defler, 694 N.E.2d at 1183. We find no designated evidence in the record here on appeal to convince us that CBU's actions involved the formulation of policy that would entitle it to immunity under Indiana Code section 34-13-3-3(7). We affirm the trial court's denial of summary judgment and remand to the trial court for further proceedings. Affirmed and remanded.

In Jim and Carol Daily v. City of Columbus Board of Zoning Appeals, a 6-page opinion, Judge Kirsch writes:
Jim and Carol Daily (“the Dailys”) appeal from the trial court’s order affirming the City of Columbus Board of Zoning Appeals’ (“the BZA”) denial of the Dailys’ temporary use application for a farmers’ market on the 2.1-acre lot (“the 2.1-acre lot”) in Columbus, Indiana that they are purchasing on contract, in their action seeking declaratory judgment. The following issue is dispositive of this appeal: whether the trial court and the BZA erred by finding that the 2.1-acre lot was illegally created in 1973. We reverse and remand for proceedings consistent with this opinion.
In Faith Sadler v. Auto-Owners Insurance Co. , a 14-page opinion, Sr. Judge Sullivan writes:
Faith Sadler (“Sadler”) appeals from the granting of summary judgment in favor of defendant Auto-Owners Insurance Co. (“Auto-Owners”) upon Sadler’s complaint for Declaratory Judgment and for damages. Sadler’s complaint asserted that Auto-Owners was obligated under property and casualty insurance policies to indemnify Sadler for costs and expenses of an environmental clean-up. The costs and expenses were occasioned by leakage from underground petroleum storage tanks. Sadler has also claimed that Auto-Owners breached its duty of good faith and fair dealing and sought compensatory and punitive damages plus attorney fees.

Sadler and her now deceased husband operated a gasoline service station on the property from 1975 to 1999 when the storage tanks were removed. Since that time, until 2004, Sadler operated a tobacco retail shop on the property. * * *

In the case before us, we hold that Sadler is truly the owner of her claim against Auto-Owners for coverage under the insurance policy or policies issued to her. Accordingly, she is the real party in interest on the claim being appealed. Therefore, summary judgment was improperly premised upon a real party in interest assertion. In summation as to the issue of whether Sadler had a viable claim against Auto-Owners, under the facts of this case, we hold that the trial court inappropriately entered summary judgment for Auto-Owners on the election of remedies theory.

In her brief, Sadler makes claims that Auto-Owners acted in bad faith with respect to her claim. These assertions of fact are unsupported by citations to the record as required by Indiana Rules of Appellate Procedure, Rule 22. Indiana Rules of Appellate Procedure, Rule 46 A. (8) (a).

Sadler baldly states that her bad faith claims are of merit because initially Auto- Owners said that it had no policy coverage but after finally confirming coverage sent inconsistent and ambiguous communications. Sadler asserts that Auto-Owners agreed to pay 22 percent of the claim but then changed that offer to 9 percent. She then concludes her entire argument with the fact that finally in June 2005, Auto-Owners denied, in full, Sadler’s claim for remediation costs. Again, these assertions are unsupported by citation to the record.

Sadler’s Reply Brief attempts to put more flesh on the bare-bones factual assertions. * * *

[I]t has long been the rule in Indiana that insurance companies may, in good faith, dispute claims. The record before us reflects that such is the case here. Accordingly, we hold that Sadler did not demonstrate a legitimate bad faith claim and that it was not inappropriate to grant Auto-Owners’ motion for summary judgment as to this issue. * * *

The judgment for Auto- Owners upon Sadler’s claim for bad faith and for punitive damages is affirmed. The judgment for Auto-Owners upon the environmental claims is reversed and the cause is remanded for further proceedings upon those issues.

In Joseph D. Freeman v. State of Indiana , a 6-page opinion, Judge Mathias writes:
Joseph Freeman (“Freeman”) was convicted in Wayne Superior Court of Class C felony operating a motor vehicle while privileges are forfeited for life. Freeman appeals his conviction and argues that the trial court abused its discretion when it admitted the evidence seized as the result of an allegedly invalid traffic stop. Concluding that the evidence was properly admitted, we affirm. * * *

The vehicle stopped at a stoplight and at that time, Officer Shake observed that the left taillight was not operating. However, the right taillight and the light in the rear window were operating. The officer initiated a traffic stop after noting the malfunctioning taillight. * * *

Freeman asserts that because the vehicle had two functioning taillights, i.e. the rear right taillight and the light mounted in the rear window, the vehicle was in compliance with section 9-19-6-4. Thus, he argues that the stop was invalid because Officer Shake had no reason to stop the vehicle. * * *

We agree with both of the trial court's observations about Freeman's argument in this case; it is creative but does not carry the day. First, section 9-19-6-4 provides that “tail lamps, . . . must be wired so as to be lighted whenever the head lamps or auxiliary driving lamps are lighted.” The left tail lamp of Freeman's vehicle was not operating. Only the right tail lamp and “light in the rear window” were working properly. The “light in the rear window” was obviously the vehicle's brake light, which would only be lighted when Freeman stepped on the brake. Moreover, Freeman's vehicle was not in good working order as required by section 9-21-7-1. For these reasons, we conclude that Officer Shake validly stopped Freeman's vehicle because the tail lamp was not illuminated.
Accordingly, the trial court did not abuse its discretion when it admitted the evidence seized as a result of the valid traffic stop. Affirmed.

NFP civil opinions today (2):

Termination of the Parent-Child Rel. of C.R.; A.I. v. IDCS (NFP)

Virginia Chase and Theresa L. Coffee v. Bernard F. Miller, Personal Representative (NFP) - " Simply put, Coffee has not indicated what facts she would have placed in issue had she be given the opportunity to present evidence at a hearing in addition to the documents and arguments submitted with her Motion to Dismiss. Therefore, Coffee has not demonstrated that she was prejudiced by the failure to conduct an evidentiary hearing. The trial court did not err in ruling on the parties‟ respective motions without conducting an evidentiary hearing. Judgment affirmed."

NFP criminal opinions today (6):

Robert Waters v. State of Indiana (NFP)

Gregory L. Payne v. State of Indiana (NFP)

William T. Casbon v. State of Indiana (NFP)

Dennis Woods v. State of Indiana (NFP)

Donte T. Gibson v. State of Indiana (NFP)

John Pickett v. State of Indiana (NFP)

Posted by Marcia Oddi on April 15, 2009 12:21 PM
Posted to Ind. App.Ct. Decisions