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Wednesday, November 08, 2006

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Kristopher H. Hofferth v. State of Indiana (Jasper Circuit Court, Judge Daugherty), a 9-page opinion, Judge Riley concludes:

The record before us does not indicate the trial court ever tried to determine if Hofferth had the resources to hire an attorney. Rather, it is clear Hofferth had financial difficulties and could not retain and compensate counsel within the trial court’s arbitrary timeline. It may be possible that a defendant possessed of ample financial wherewithal could waive his right to hire private counsel by not promptly, or timely, acting on the right. However, in such an instance the trial court record should clearly reflect the constructive waiver and it should reflect a knowing and intelligent waiver made in open court.

At no time did Hofferth indicate he wished to represent himself. Rather, he repeatedly indicated to the trial court that he did not have the requisite skills necessary to effectuate his own defense, and that he desired to be represented by counsel. Consequently, it is clear from the record before us that the trial court blatantly ignored Hofferth’s right to counsel. There is no hint in the record that the slightest effort was made to protect one of the most precious rights an accused possesses. This court has no other alternative than to reverse the conviction and remand this cause for a new trial, a trial in which Hofferth’s right to counsel is the subject of greater concern and less disdain.

CONCLUSION. Based on the foregoing, we find Hofferth was denied his Sixth Amendment right to counsel. We reverse, vacate, and remand to the trial court.

In Safe Auto Insurance Company v. Farm Bureau Insurance Company, et al., a 9-page opinion, Judge Robb writes:
Case Summary and Issue. Safe Auto Insurance Company (“Safe Auto”) appeals from the trial court’s order denying its motion for summary judgment, and granting Farm Bureau Insurance Company’s (“Farm Bureau”) motion for summary judgment, in a dispute arising from Safe Auto’s insurance policy coverage of Heather Duran. Safe Auto raises for review the issue of whether it is obligated to cover Duran for vicarious liability under the policy’s terms, including a policy provision required under Indiana law pertaining to liability for permissive users. Indiana law obligates coverage of the owner of a vehicle for vicarious liability, and we conclude that material misrepresentations made by Duran do not hinder such coverage. We therefore affirm summary judgment in favor of Farm Bureau and against Safe Auto. * * *

Conclusion. Although Badillo is excluded from coverage under the terms of Duran’s insurance policy, Indiana Code section 27-1-13-7 requires Safe Auto to insure Duran for vicarious liability arising from the negligence of a permissive user, even those otherwise excluded. In addition, Duran’s misrepresentation at the time of her application for the policy does not affect Safe Auto’s obligation to provide coverage for vicarious liability arising from the permissive use of the insured vehicle. We therefore affirm the trial court’s grant of summary judgment in favor of Farm Bureau and denial of summary judgment in favor of Safe Auto. Affirmed.

In Robert Gibson v. State of Indiana, a 12-page opinion, Judge Barnes concludes:
Gibson received the maximum possible sentence that was permitted by state law. See Dawson, 612 N.E.2d at 585. We conclude that the maximum sentence is inappropriate here. We assign significant aggravating weight to Gibson’s failure to drive more carefully despite his numerous speeding tickets and participation in two defensive driving classes, but this is partially counterbalanced by the significant mitigating weight of Gibson’s guilty plea. A total sentence of six years is more appropriate in light of the nature of the offenses and Gibson’s character.

Conclusion. We reverse and remand with instructions that Gibson’s sentences for all three convictions be reduced to six years each, to be served concurrently.

In the Matter of the Guardianship of Helen Knepper - affirmed.

In Mitchell E. Roob, Jr., et al. v. Jannis Fisher, et al., an 18-page opinion, Judge Baker writes:

Appellants-defendants E. Mitchell Roob, et al. (collectively, the State), appeal from two orders entered by the trial court in which the court (1) found that Medicaid transportation providers and recipients have a private right of action pursuant to 42 U.S.C. section 1983 (Section 1983) and determined that the State’s Medicaid transportation reimbursement rates were inadequate under applicable federal law; and (2) ordered that the mileage reimbursement rate be increased from $1.25 per mile to $1.85 per mile.

The State raises a number of arguments, one of which we find dispositive—that the trial court erred as a matter of law in determining that Medicaid transportation providers and recipients have a private right of action under Section 1983. Pursuant to a recent United States Supreme Court opinion and the application thereof by a number of federal appellate courts, we find that neither the providers nor the recipients have a private right of action pursuant to Section 1983. Consequently, we reverse the judgment of the trial court and direct it to vacate the orders at issue and enter judgment in favor of the State. * * *

As a final aside, we note that we are compelled by United States Supreme Court precedent to arrive at this result. We do so reluctantly, however, because we also believe that the restrictive analysis required by federal case law and the recent amendments by Congress render the Medicaid Act’s “equal access” provisions merely illusory. Moreover, we believe that the trial court was correct in determining that the practical consequences of writing and reading the Medicaid Act and operating the Medicaid program in such a manner will be extremely deleterious to those most in need. While recognizing that others are charged with the responsibility of making those decisions, we can only lament their apparent indifference to the plight of Medicaid providers and recipients.

NFP civil opinions today (1):

In Robert Longardner, Naomi Longardner and Cheryl L. Lynn v. Citizens Gas & Coke Utility (NFP), a 30-page opinion, Judge Friedlander concludes:

As we concluded above, there are genuine issues of material fact as to whether Citizens and Love Heating were negligent and caused Robert’s injuries. The trial court, therefore, erred when it foreclosed Robert’s ability to recover damages for pain and suffering. The amount of compensation Robert should receive, if any, is a question reserved for the finder of fact. At this stage of the litigation, it is sufficient that Citizens and Love Heating may have negligently caused Robert’s injuries. Judgment affirmed in part, reversed in part, and remanded.
NFP criminal opinions today (5) (link to cases):

Anthony D. Smith v. State of Indiana (NFP)

Shaun A. Hinson v. State of Indiana (NFP)

Suzanne Prentiss v. State of Indiana (NFP)

Keith E. Abercrombie, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on November 8, 2006 12:25 PM
Posted to Ind. App.Ct. Decisions