« Enviroment - "Calif. Diverges from U.S. with Greenhouse Gas Cuts" | Main | Not law but interesting - Trump fires Carolyn »

Thursday, August 31, 2006

Ind. Decisions - Court of Appeals issues 8 today (and 12 NFP) [Updated]

For publication opinions today (8):

In Bridgestone Americas Holding Inc., et al v. Violet Mayberry, et al, a 16-page opinion, Judge Najam writes:

Bridgestone Americas Holding Inc., Bridgestone/Firestone, Inc., Bridgestone/Firestone North American Tire, LLC, and Bridgestone/Firestone Manufacturing Operations Division (collectively “Bridgestone”) bring this interlocutory appeal to challenge the trial court’s order compelling discovery of Bridgestone’s highly proprietary skim stock formula.1 Bridgestone presents three issues for our review, which we consolidate and restate as whether the trial court abused its discretion when it ordered Bridgestone to disclose its skim stock formula. We affirm. * * *

To convince us that the trial court abused its discretion, Bridgestone must demonstrate that the trial court’s conclusion is against the logic and natural inferences that can be drawn from the facts and circumstances before the court. See Stuff, 838 N.E.2d at 1099. Bridgestone has not met this burden on appeal. Therefore, we cannot say that the trial court abused its discretion when it fashioned a narrowly tailored protective order under Rule 26(C)(7) and compelled Bridgestone to disclose its skim stock formula.

In Charity L. Payne v. State of Indiana, a 28-page opinion, Judge Riley concludes:
CONCLUSION. Based on the foregoing, we find that (1) the trial court erred by admitting into evidence Payne’s statement which was obtained in violation of her Miranda rights; (2) the trial court erred by admitting into evidence Payne’s letter to her former boyfriend; and (3) the trial court erred by admitting into evidence a testimonial statement given by an unavailable co-defendant. Reversed and remanded for a new trial.
In Kelsey Bowman b/n/f John & Karrie Bowman v. Alycea McNary, Tippecanoe School Corp., et al, a 24-page opinion, Judge Barnes writes:
Kelsey Bowman, by her parents Jon and Karrie Bowman, appeals the trial court’s grant of summary judgment in favor of the Tippecanoe School Corporation, the Tippecanoe School Corporation Board of Trustees (collectively “the School Corporation”), and Alycea McNary. We affirm. * * *

Bowman was standing in the practice tee area when McCary took her swing and struck Bowman. It is apparent from Bowman’s own testimony that she had actual knowledge of a risk involved in being in a driving range area, namely being struck with a golf club. Bowman voluntarily accepted that risk by choosing to be a member of the golf team and by stepping onto the driving range with others who had clubs in their hands. She seems to contend that she did not incur the risk of McNary acting negligently and taking a swing without first stepping away from her. However, if this were sufficient to defeat a finding of incurred risk in a negligence case, the defense could never be invoked. Additionally, Bowman did not have to know the specific risk that she might be struck by a club on this particular occasion; it is sufficient that she knew more generally the risk of being struck by a club while on a driving range. See Mauller, 552 N.E.2d at 503 n.3. We find no genuine issues of material fact and conclude the School Corporation is entitled to judgment as a matter of law on the basis that Bowman incurred the risk of injury she sustained.

The trial court properly concluded that there are no issues of material fact and that McNary and the School Corporation are entitled to judgment as a matter of law.

In R & R Real Estate v. C & N Armstrong Farms, a 12-page opinion, Judge Crone writes:
R&R Real Estate Company, LLC, and Leland Roberts (collectively, “R&R”) appeal the denial of R&R’s claim for grain bin rental damages and the denial of prejudgment interest. On cross-appeal, C&N Armstrong Farms, Ltd. (“C&N”), contends that R&R’s appeal should be dismissed pursuant to Indiana Code Section 34-56-1-2 and that C&N should have received a setoff for the cost of repairing grain bins and a grain auger on R&R’s property. We affirm.
In Arvin Cruite v. State of Indiana, a 6-page opinion, Chief Judge Kirsch writes:
Arvin Cruite appeals the trial court’s order denying permission to file a belated notice of appeal. He raises several issues, of which we find one dispositive: whether the trial court erred in denying his petition for leave to file a belated notice of appeal. We reverse. * * *

Time spent by the State Public Defender investigating a claim does not count against a defendant when determining the issue of diligence under P-C.R. 2. Kling v. State, 837 N.E.2d 502, 508 (Ind. 2005). We therefore conclude that Cruite was diligent in requesting permission to file a belated notice of appeal. The trial court abused its discretion in denying Cruite’s request for permission to file a belated appeal.

In Carole Pope v. State of Indiana, a 6-page opinion, Judge Crone writes:
Carole Pope appeals from the trial court’s order revoking her home detention and its denial of her motion to set aside the results of a drug screen. We reverse.
In Property Owners Insurance v. Ted's Tavern, a 17-page opinion, Judge Crone writes:
Property-Owners Insurance Company (“Property-Owners”) appeals an order granting partial summary judgment in favor of Carole Stine, individually and as personal representative of the estate of William Roland Stine, deceased (“Stine”). We reverse and enter judgment for Property-Owners on the challenged counts. * * *

In doing so, we reiterate that insurers are entitled to limit their coverage of risks and, thus, their liability by imposing exceptions, conditions, and exclusions. See Amerisure, 818 N.E.2d at 1002. Further, we note that we are not the first jurisdiction to enforce such exclusions under similar circumstances. See Cusenbary v. United States Fidelity and Guaranty Co., 307 Mont. 238, 37 P.3d 67, 70 (2001) (finding that where evidence of improper hiring, training, and supervision was directly related to the service or sale of alcohol, former claims were excluded from coverage under policy’s liquor liability/intoxication exclusion); see also Cont’l W. Ins. Co. v. The Dam Bar, 478 N.W.2d 373, 374-76 (N.D. 1991) (finding no sustainable basis for liability separate from liability based upon serving alcoholic beverages, thus liquor liability/intoxication exclusion excluded coverage for all counts, including negligent hiring, training, and supervision, even if those counts did not contain specific allegations related to or arising from the sale or service of liquor to an intoxicated patron).

In The Blakley Corporation v. EFCO Corporation, a 16-page opinion, Judge Robb writes:
The Blakley Corporation (“Blakley”) appeals from the trial court’s denial of its motion to correct error in a breach of contract case. Blakley requested that the trial court amend its findings of fact and conclusions thereon by addition of an award to Blakley of markup damages against EFCO Corporation (“EFCO”) totaling $76,755.00. By way of cross-appeal, EFCO calls into question the trial court’s determination that it was liable for breach of contract, resulting in damages to Blakley in the amount of $307,020.00. We conclude that EFCO has failed its burden of establishing that the evidence does not support the trial court’s determination of liability. We also conclude that the trial court sufficiently addressed markup damages when it twice rejected Blakley’s claim to them. We therefore affirm.
NFP civil opinions today (5):

Bobbie L. Ruble and Marlene K. Ruble v. National City Bank of Indiana (NFP)

Vicki L. (Teter) Maxey v. Barry W. Teter (NFP)

In Redbud Estate Sales, Inc.v. State of Indiana Department of Natural Resources (NFP), a 5-page opinion, Judge Vaidik writes:

Here, the trial court’s November 8, 2004, order dismissing Redbud’s complaint against the DNR was to fewer than all of the claims or parties because ICC’s cross-appeal against the State was still pending. Indeed, the trial court’s order does not even mention ICC or its cross-claim against the State. Because this order was not a final judgment, to authorize an appeal the trial court should have “in writing expressly determine[d] that there is no just reason for delay, and in writing expressly direct[ed] entry of judgment,” see T.R. 54(B), which it did not do. We therefore dismiss this appeal.
Portia Jackson, Administratrix of the Estate of Peter C. Sholar, deceased and Rochelle Sholar v. Railroad Friction Products Corporation (NFP)

Claude Copeland v. Jim A. Borror, et al. (NFP)

NFP criminal opinions today (7) (link to cases):

Samuel Hollan v. State of Indiana (NFP)

James Durham v. State of Indiana (NFP) (see ILB entry from 9/6/06)

Brandon A. Crockett v. State of Indiana (NFP)

State of Indiana v. Jacqueline Edwards (NFP)

Jack Weir v. State of Indiana (NFP)

Ernest Smith v. State of Indiana (NFP)

Susan Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on August 31, 2006 12:01 PM
Posted to Ind. App.Ct. Decisions