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Monday, December 20, 2004

Indiana Decisions - 7th Circuit posts three today

Utica Mutual Insur v. Vigo Coal Co Inc (SD Ind., David F. Hamilton, Judge)

Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. This diversity suit for breach of a
suretyship contract, decided in favor of the defendants after
a bench trial, presents questions primarily relating to the
contract-law doctrine of “novation,” but more broadly to
principles of contract interpretation; all the questions are
governed by the common law of Indiana. * * *

And if despite what we have said the Indiana statute did
render the 1992 agreement unenforceable (more precisely,
not “interposable” as a defense), equally it rendered the 1991
agreement unenforceable, because the “creditor,” Utica, did
not sign it. Yet Utica sued to enforce the 1991 agreement, and
prevailed against the signers of it. For that matter, it sued to
enforce the 1992 agreement as well, and though it gained
nothing because Schulties declared bankruptcy, it could
have filed a claim in bankruptcy against him based on the
agreement (we don’t know whether it did or not). The
doctrine of “mend the hold” forbids a contract party,
particularly when it is an insurance company, to change its
position on the meaning of the contract in the middle of
litigation over it. National Hame & Chain Co. v. Robertson, 161
N.E. 851, 853 (Ind. App. 1928); Houben v. Telular Corp., 309
F.3d 1028, 1036 (7th Cir. 2002); United States v. Newell, 239
F.3d 917, 922 (7th Cir. 2001); Harbor Ins. Co. v. Continental
Bank Corp
., 922 F.2d 357, 362-64 (7th Cir. 1990). Which is
what Utica has done.

O'Neal, Brenda v. City of Chicago (ND Ill.)
Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. Plaintiff-appellant Brenda O’Neal,
a black woman, was a sergeant in the Chicago Police
Department. In May 2002, she was transferred from her
position as “administrative sergeant” in the Narcotics Unit
to the position of “beat sergeant” in one of the districts.
O’Neal brought suit against the City of Chicago and Jerry
Robinson, Chief of the Organized Crime Division, alleging
that this transfer was the result of racial and gender dis-
crimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981
and 1983. The district court granted summary judgment to
defendants on all claims. O’Neal appeals the grant of summary
judgment only as to her gender discrimination claim.
For the reasons stated herein, we affirm.
Thomas, Frank v. Law Firm Simpson (ND Ill.)
[REARGUED EN BANC JUNE 2, 2004—DECIDED DECEMBER 20, 2004*]
Before POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION,
KANNE, ROVNER, WOOD, EVANS, and WILLIAMS, Circuit
Judges.**

WILLIAMS, Circuit Judge. Frank Thomas appeals from
the district court’s dismissal of his suit which alleged that
General Motors Acceptance Corporation (“GMAC”), the law
firm Simpson & Cybak (“Simpson”), and their employees
failed to send him a debt validation notice advising him
of his rights as a debtor within five days of their initial
communication with him, as is required by the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-
1692o. Two principal questions are raised in this appeal:
whether a creditor’s letter to a debtor and whether a debt
collector’s initiation of a lawsuit in state court constitute
“initial communications” within the meaning of the FDCPA.
In dismissing Thomas’s case for failure to state a claim, the
district court determined that the creditor’s letter to the
debtor constituted an “initial communication,” while the
debt collector’s initiation of the lawsuit did not. We disagree
with both conclusions. Accordingly, we reverse the district
court’s decision to dismiss Thomas’s claim against Simpson,
and we remand for further proceedings. * * *

EVANS, Circuit Judge, joined by COFFEY, MANION, and
KANNE, Circuit Judges, dissenting. * * *

Posted by Marcia Oddi on December 20, 2004 01:07 PM
Posted to Ind. (7th Cir.) Decisions