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Thursday, September 30, 2004

Indiana Decisons - Four from Court of Appeals Today

Carl Coffman, et al. v. PSI Energy Inc., et al. (9/30/04 IndCtApp) [Torts]
Baker, Judge

[The Coffmans] appeal the trial court’s grant of summary judgment in favor of appellees-defendants PSI Energy, Inc. (PSI), Rumpke of Indiana, LLC (Rumpke), Refuse Handling Services, Inc. (Refuse Handling), and Mountain Tarp, Inc. (Mountain Tarp), with regard to the Coffmans’ negligence and products liability claims. In this instance, Carl was injured when the tarp system he was using to cover a Rumpke trailer at Refuse Handling came into contact with a 69,000 volt power line that was owned by PSI.

In particular, the Coffmans contend that summary judgment was erroneously granted in favor of the four appellees because there were genuine issues of material fact regarding: (1) PSI’s duty and breach of care with respect to their power lines; (2) Rumpke’s failure to warn Carl of the characteristics of a dangerous chattel—the trailer—that it had provided for Carl’s use, along the company’s alleged failure to train Carl about the proper use of its equipment; (3) Refuse Handling’s alleged breach of duty of care to Carl as a business invitee; and (4) the alleged defective design of Mountain Tarp’s system, and whether that company’s warnings to Carl were inadequate. The Coffmans further maintain that the trial court erroneously determined as a matter of law that their recovery is barred under Indiana’s comparative fault scheme as to PSI, Rumpke and Refuse Handling. Concluding that summary judgment was properly entered for all of the appellees, we affirm the judgment of the trial court.

Joseph Mroz v. Robert Harrison (9/30/04 IndCtApp) [Evidence; Procedure]
Bailey, Judge
Mroz raises four issues, which we consolidate and restate as: [1] Whether the trial court abused its discretion when it refused to allow Mroz to refresh Harrison’s recollection of an alleged fall, pursuant to Indiana Evidence Rule 612; [2] Whether the trial court abused its discretion by permitting a doctor’s deposition to be read into evidence based upon “exceptional circumstances,” pursuant to Indiana Trial Rule 32(A)(3)(e), in the absence of prior notice and application; and [3] Whether the trial court abused its discretion by failing to instruct the jury on the issues of comparative fault and mitigation of damages. * * *

For the foregoing reasons, we affirm the trial court’s judgment in favor of Harrison. Affirmed.
SHARPNACK, J., and MAY, J., concur.

Floyd Johnson v. Hoosier Enterprises III, Inc. (9/30/04 IndCtApp) [Estates]
DARDEN, Judge
Floyd Johnson, individually, and in his capacity as Personal Representative of the Estate of Mabel Lucille Johnson (collectively "Johnson"), appeals from the trial court's order granting summary judgment to Hoosier Enterprises III, Inc., f/k/a Hoosier Health Systems, Inc. ("Hoosier"). We reverse. * * *

Here, Johnson presented evidence that Hoosier failed in its duty to disclose its identity to the public, thereby concealing its identity from anyone "entitled to bring" an action. See I.C. § 34-11-5-1. "The policy in our state is to freely allow amendments in order to bring all matters at issue before the trial court." Stephens, 730 N.E.2d at 1281 ("trial court properly allowed Plaintiffs leave to amend their complaints and add Stephens as a defendant, despite the running of the statute of limitations."). Thus, genuine issues of material fact prevent the granting of summary judgment to Hoosier.

The trial court's determination granting summary judgment to Hoosier is reversed and the cause is remanded for further proceedings consistent with this decision.
BAKER, J., and FRIEDLANDER, J., concur.

Lee Whitt v. Farmer's Mutual Relief Association (9/30/04 IndCtApp) [Real Estate; Procedure; Insurance]
Sharpnack, Judge
Lee Whitt appeals the trial court’s denial of his motion to set aside a default judgment granted to Farmer’s Mutual Relief Association (“Farmer’s Mutual”). Whitt raises one issue, which we restate as whether the trial court abused its discretion by denying Whitt’s motion to set aside the default judgment where Farmer’s Mutual had transferred title of the property to a third party after the judgment was entered and where the motion was filed almost one year after the judgment. We affirm. * * *

We conclude that Whitt did not file his motion to set aside the default judgment within a reasonable time. A judgment that divests a defendant of title to property is especially time sensitive. As the trial court noted, Farmer’s Mutual has transferred the property in reliance upon the judgment, and the new property owners have demolished the building. Thus, Farmer’s Mutual would be severely prejudiced if the default judgment was set aside. Moreover, as evidenced by his letters to the trial court, Whitt was aware of the complaint. Further, Whitt does not argue that he was unaware of the default judgment and has not offered a basis for his delay in moving to set aside the default judgment. See id. While we cannot say exactly what a reasonable time would have been in this case, Whitt’s delay of almost one year was unreasonable. Consequently, the trial court did not abuse its discretion by denying Whitt’s motion to set aside the default judgment.

For the foregoing reasons, we affirm the trial court’s denial of Whitt’s motion to set aside the default judgment. Affirmed.
BAILEY, J. and MAY, J. concur

Posted by Marcia Oddi on September 30, 2004 02:22 PM
Posted to Indiana Decisions