February 27, 2004

Indiana Decisions - Ten Court of Appeals Opinions Posted Today

Tina Messer v. Cerestar USA, et al. (2/27/04 IndCtApp) [Torts; Estates & Trusts]

Provident Bank v. Tri-County Asphalt (2/27/04 IndCtApp) [Property, Real Estate; UCC, Banking]
Baker, Judge; Brook, CJ, concurs

"This case presents an issue of priority between the lien of a mortgage on real estate with a residence thereon and a mechanic’s lien for the value of a driveway constructed on the property after the mortgage had been recorded." The opinion includes a lengthy dissent of Judge Sharpnack.

Lindsey Clark v. Brandon Taylor (2/27/04 IndCtApp) [Family Law]

Jelani Merritt v. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

Jelani Merritt (“Merritt”) was convicted of possession of marijuana, a Class A misdemeanor. * * * Merritt raises two issues, which we consolidate and restate as whether the trial court erred in admitting evidence of the marijuana because the underlying traffic stop for improper display of a license plate was unlawful. * * * In conclusion, the placement of Merritt’s license plate complied with Indiana Code Section 9-18-2-6. Thus, Officer Andrew’s traffic stop, based upon a violation of that section, was invalid, and the subsequent discovery of marijuana was improper; therefore the trial court abused its discretion in admitting the marijuana. Accordingly, we reverse Merritt’s conviction for possession of marijuana.
Chester Borsuk v. Town of St. John (2/27/04 IndCtApp - Opinion on reh.) [Civil procedure]

Marianne R. Arms v. Larrabee L. Arms
(2/27/04 IndCtApp) [Family Law]

Andrew J. Scott. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]

Willie J. Jackson v. Timothy A. Jones, et al. (2/27/04 IndCtApp) [Insurance]
Kirsch, Judge

The issue: "Jackson, who was injured by an uninsured motorist while operating a government-owned vehicle in the course of his employment, raises one issue which we restate as: whether the exclusions in the uninsured and underinsured portions of his personal automobile coverage which prohibit recovery when the vehicle is owned by another but provided for the regular use of the insured are against public policy."

Jackson does not contend that his Farmers’ policy is ambiguous or that it does not explicitly exclude uninsured or underinsured coverage under the facts here. Rather he contends that the exclusion in the uninsured and underinsured section, even though it is comparable to that found in the liability section, is void because it is against public policy to exclude public safety officers from coverage under their personal insurance policies, even while on duty, because the government entity who owns and thus insures the vehicle is not required to provide uninsured or underinsured motorist coverage. Jackson contends that because the statute, IC 27-7-5-2, does not provide for exceptions, government vehicles cannot be excluded from coverage by personal insurance policies. Because government entities are self-insured and therefore exempted by the Tort Claims Act from being required to carry uninsured motorist coverage, such exclusion would leave him and other government employees without the uninsured motorist coverage provided for by law. He argues that because the legislature did not specifically provide for the exception, such exception should not be allowed . * * *

Our supreme court has stated that “we may even agree that public policy favors a requirement that self-insurers under the financial responsibility law should be required to provide some sort of uninsured motorist protection for those who drive their [vehicles], it is not our role to sit as a judicial legislator and write such a requirement into the act.” City of Gary, 612 N.E.2d at 119. Since no legislative action has been taken on this issue, it is clearly the intent of the legislature to allow government entities to be self-insured for liability and not insured for uninsured or underinsured claims. More recently, our supreme court wrote that “public policy is a matter for the General Assembly subject only to constitutional limitations on legislative authority.” Murray v. Conseco, Inc., 795 N.E.2d 454, 457 (Ind. 2003). Jackson’s Farmers’ policy is neither ambiguous nor contrary to statute. Our legislature has not revised either statute to make the exceptions in either the governmental entity’s lack of uninsured or underinsured protection or the exceptions in Jackson’s Farmers’ policy against public policy. Affirmed.

Lawrence Thomas v. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

"Thomas raises five issues, the following one of which we find dispositive: Whether he received ineffective assistance of trial counsel when counsel failed to object to a jury instruction on felony murder, which did not delineate the elements of the underlying felony, i.e., dealing in cocaine." Reversed and remanded.

Jason Edwards v. State of Indiana (2/27/04 IndCtApp) [Criminal Law & Procedure]

Posted by Marcia Oddi at February 27, 2004 02:22 PM