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Thursday, February 25, 2010

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Donald and Sandra Myers v. Andrew Yoder, et al. , a 20-page opinion (including a concurring opinion), Chief Judge Baker writes:

Appellants-plaintiffs Donald W. Myers and Sandra F. Myers (collectively, the Myerses) appeal the trial court's grant of summary judgment in favor of appellees-defendants Amy Krueger, Bixler Insurance, Inc. (Bixler), and Cincinnati Insurance Company (Cincinnati Insurance) (collectively, the appellees), regarding the Myerses' claim that the appellees were negligent in failing to advise them about their homeowner's insurance policy.Specifically, the Myerses argue that a genuine issue of material fact exists as to whether the appellees breached their respective duties to provide adequate coverage to them. * * *

In light of our discussion above, we conclude that there was no long-standing, intimate relationship between the Myerses and the appellees that would justify imposing a duty on the appellees to advise the Myerses' about the amount of homeowner's insurance that they needed for the residence. Moreover, the Myerses have failed to identify any special circumstances that might justify the imposition of such a duty. Thus, the trial court properly entered summary judgment for the appellees. The judgment of the trial court is affirmed.

BAILEY, J., concurs.
ROBB, J., concurs with opinion. [that begins, at p. 18] I concur in the majority opinion, but write separately to note that although an insurance agent does not have a duty to provide advice to the insured unless a special relationship exists between the two, see slip op. at 9 (citing Craven, 588 N.E.2d at 1296), I do not view every instance of an insured requesting “full coverage” to be a request for advice, however.

In Menard, Inc. v. Mary Comstock, et al. , a 9-page, 2-1 opinion, Judge Crone writes:
Menard, Inc. (―Menard‖), appeals the trial court’s decision to grant the motion to correct error filed by Mary Comstock, as personal representative of the estate of C.J. Comstock, and to amend the amount of damages awarded to Mary. We reverse and reinstate the jury verdict.

Issue. Did the trial court abuse its discretion by granting Comstock’s motion to correct error and amending the amount of the damages award? * * *

Based on the foregoing, we conclude that the evidence is sufficient to support the jury’s verdict as a matter of law and that the trial court erred in reversing that verdict pursuant to Trial Rule 59(J)(5). Therefore, we reverse the trial court’s order granting Mary’s motion to correct error and remand for reinstatement of the jury’s verdict awarding damages to Mary in the net amount of $8212.99. Reversed and remanded for proceedings consistent with this opinion.

VAIDIK, J. concurs.
RILEY, J., dissents with separate opinion. [that includes] I respectfully dissent from the majority’s opinion reversing the trial court’s order which granted Mary’s motion to correct error and amended the jury’s damages award. * * *

Indiana Trial Rule 59 (J) gives a trial court the discretion to amend a jury award in the case of inadequate damages. The trial court, finding that the jury had erred in its award by failing to calculate C.J.’s lost income, increased the jury award to $149,240.71. I cannot conclude that the trial court abused its discretion as Mary clearly proceeded under a wrongful death claim, presented uncontroverted evidence of C.J.’s lost income, and the jury was instructed as to the wrongful death claim—not the survival claim.

In Adoption of L.D.; A.B. and N.E. v. Jo.D. and Ja.D., a 20-page opinion, Judge Najam concludes:
In sum, Mother's contention that the Paternal Grandparents should have obtained her consent for the adoption is not properly before us, and we dismiss the appeal with respect to this issue. Further, Mother has not shown that service of process by publication in the Indianapolis Recorder was inadequate. Nor has N.E. shown that the adoption statute's failure to require that she, as a grandparent, receive notice of the adoption proceeding violates her due process rights in that a grandparent does not have a liberty interest in visitation with her grandchildren. And, finally, N.E. has not shown that she is entitled to visitation under the Grandparent Visitation Act following entry of the Decree because the adoptive parents, Paternal Grandparents, were neither stepparents nor biologically related to L.D. before the adoption. As such, we affirm the trial court's order denying the motion to set aside the Decree. Affirmed in part and dismissed in part.
NFP civil opinions today (1):

Term. of Parent-Child Rel. of M.R.; C.R. v. IDCS (NFP)

NFP criminal opinions today (7):

Michael L. Ott v. State of Indiana (NFP)

Matthew James Walker v. State of Indiana (NFP)

Carlos Ramirez v. State of Indiana (NFP)

Robert Spann, Jr. v. State of Indiana (NFP)

Dennis Lane v. State of Indiana (NFP)

Michael Ball v. State of Indiana (NFP)

LaQuintin Abbey v. State of Indiana (NFP)

Posted by Marcia Oddi on February 25, 2010 10:40 AM
Posted to Ind. App.Ct. Decisions