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Friday, October 06, 2006

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In State Farm Mutual Automobile Company v. Kathie & Dean Noble, a 21-page opinion (including a 2-page partial dissent beginning on p. 19), Judge Baker writes:

Appellant-defendant State Farm Mutual Automobile Insurance Company (State Farm) appeals from: (1) the trial court’s order granting judgment on the evidence in favor of appellees-plaintiffs Kathie and Dean Noble as to the existence of underinsured motorist (UIM) coverage; (2) the jury’s damages award to the Nobles on the UIM claim; and (3) the jury’s verdict on the Nobles’ bad faith claim together with the award of damages thereon.

We find that a question of fact remains on the UIM claim such that judgment on the evidence was improper. Consequently, we reverse the judgment of the trial court, vacate the jury verdicts and damages awards on the Nobles’ breach of contract and bad faith claims, and remand with instructions to hold a trifurcated trial as explained herein. * * *

The judgment of the trial court is reversed, the jury verdicts and damages awards on the breach of contract and bad faith claims are vacated, and the cause is remanded with instructions to trifurcate the trial on the breach of contract and bad faith claims.

SULLIVAN, J., concurs.

MAY, J., concurs in part and dissents in part, with opinion. [which begins]

I agree a new trial is in order. However, the Nobles should not be precluded from retrying the issue of State Farm’s bad faith in handling their claim for underinsured benefits under the Underlying Policy.


Richard D. Meredith v. Connie S. Meredith, is a 12-page Opinion on Rehearing. Originally the Court had concluded that "Father had not timely filed his appeal, and we therefore lacked jurisdiction. Accordingly, in Meredith v. Meredith, No. 02A03-0510-CV-520 (Ind. Ct. App. July 20, 2006), we dismissed Father’s appeal in a memorandum decision. * * * Father now petitions for rehearing, asserting that his appeal was timely filed and that the trial court’s notice and order to appear regarding a hearing on his motion to correct error was inadvertently omitted from his appendix. * * * Based on the additional information provided in Father’s supplemental appendix, we now conclude that Father’s appeal was timely filed. We therefore grant Father’s petition for rehearing and his motion to file supplemental appendix, vacate our original opinion, and reverse the trial court’s denial of Father’s motion to modify child support and remand." Judge Crone continues:
Father presents two separate arguments in asserting that the trial court erred in denying his petition. First, he contends that the trial court erred in finding that he was voluntarily unemployed. Second, Father challenges the trial court’s determination of his potential income. We address each argument in turn. * * *

Of course, because Father voluntarily left his employment and is still capable of working, some potential income must be imputed to him. The trial court’s findings provide two appropriate possibilities. The trial court found that Father was earning $19.30 per hour before his retirement, which equates to a gross weekly income of $772 per week. In addition, the trial court found that Father’s weekly pension is $576.50 per week and that he was capable of earning minimum wage equal to $210 per week, for a total of $786.50 a week. Either figure would serve as a proper basis for Father’s potential income because (1) both reflect the fact that Father is voluntarily unemployed and (2) neither dictates that Father’s career decisions be based strictly on the size of his paycheck. We also note that Father may have occasional opportunities to work at ICC. Appellant’s App. at 60-61. Income from this occasional work may be appropriately considered as irregular income. As such, the trial court may require that Father pay a fixed percentage of that irregular income as child support. See Child Supp. G. 3, cmt. 2(b). Accordingly, we reverse the trial court’s denial of Father’s motion to modify child support and remand for a determination of Father’s potential income for purposes of child support in a manner not inconsistent with this opinion.

In Starks Mechanical, Inc. v. New Albany-Floyd County Consolidated School Corporation, a 12-page opinion, Judge Baker writes:
Appellant-defendant Starks Mechanical, Inc., (Starks) appeals from the trial court’s order granting summary judgment in favor of appellee-plaintiff The New Albany-Floyd County Consolidated School Corporation (School) on the School’s declaratory judgment complaint against Starks. Specifically, Starks argues that the trial court misinterpreted the parties’ contract and that there is a genuine issue of material fact rendering summary judgment inappropriate.

Additionally, the School cross-appeals from the trial court’s order denying the School’s motion to strike Starks’s designated evidence in opposition to the School’s summary judgment motion. Finding that summary judgment in favor of the School was proper even if the trial court properly denied the motion to strike, we affirm the judgment of the trial court.

NFP civil opinions today (2):

Russell Spears v. Tursha Spears (NFP) - "Russell B. Spears (“Father”), pro se, appeals the trial court’s custody order. We affirm."

Todd Richmond v. Erin Richmond n/k/a Erin Mager (NFP) - "Todd Richmond (“Husband”) appeals the trial court’s order holding him in contempt for his failure to comply with its custody, parenting time, child support, and property settlement order. We affirm."

NFP criminal opinions today (5) (link to cases):

Charles R. Achor v. State of Indiana (NFP)

Richard J. Johnson v. State of Indiana (NFP)

Timothy A. Childers v. State of Indiana (NFP)

Eric E. Fields v. State of Indiana (NFP)

Genah Michelle Simpson v. State of Indiana (NFP)

Posted by Marcia Oddi on October 6, 2006 12:46 PM
Posted to Ind. App.Ct. Decisions