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Wednesday, December 20, 2006

Ind. Courts - Yet more on: South Bend Osco Triple Murder Trial

This August 6th ILB entry, like the July 10th entry before it, began "The ILB generally doesn't cover murder trials, but ...". Following up on those entries, here is a report this evening from Mark Peterson of WNDU, South Bend:

The prime suspect in South Bend’s Osco triple homicide case has been let off the legal hook.

Prosecutors have decided that Christopher Allen will not be tried for a fourth time in connection with the 1990 robbery and triple murder at the Osco on Western Avenue.

According to special prosecutor Michael McAlexander, “there aren't a lot of surprises in this after this amount of time, the witnesses have been called at least, most of them five times under oath.” * * *

According to McAlexander, time and time again, jurrors have had mixed reactions: “even on the jury that convicted, there were at least two of the alternates in that jury that would have voted not guilty.”

Allen's lone conviction was overturned by the court of appeals. Today Prosecutor Michael Dvorak announced that that Allen’s third trial--the one that ended in July of this year with a hung jury--would be his last: “we believe that we're stuck with a set of facts that at best will render another hung jury, that we don't have the evidence with which after three trials to secure a conviction.

From the South Bend Tribune:
Allen was fired as store manager for stealing about five months before the slayings.

Allen was not charged until 1999, nine years after the murders, when then-prosecutor Chris Toth filed the murder charges as part of his public vow to clear prominent cold cases.

In 2001, Allen’s trial, held in downstate Henry County because of pretrial publicity in St. Joseph County, ended in a hung jury. In 2002, Allen was convicted, but that verdict was overturned on appeal after he had served 576 days in prison.

Dvorak’s administration inherited the case when Dvorak defeated Toth in the 2002 election.

Another Henry County jury deadlocked 6-6 this summer, McAlexander said.

The three murder charges against Allen will be formally dismissed. Because two of his trials ended in a hung jury and his conviction was overturned on appeal, Allen does not face double jeopardy in the case and can be tried again if authorities ever uncover new evidence, Dvorak said.

Both Dvorak and McAlexander said that possibility is remote because they believe all of the evidence relating to the case has been presented during the three trials.

The third trial was the most complete prosecution yet, McAlexander said.

The financial burden of holding another trial factored into the decision but was not a major reason prosecutors declined to take Allen back to court, Dvorak said. “It was a factor, but it was only one factor,” Dvorak said.

The third trial cost $112,215 for public defender fees, investigators and other public defender-related expenses. But that number does not include the costs relating to the jury, witnesses or other associated trial finances.

And finally, from WSBT News:
“The determination is we believe we're stuck with a set of facts that will render another hung jury, can't secure a conviction,” St. Joseph County Prosecutor Michael Dvorak told WSBT News.

“I think as a prosecutor you have to face reality, no matter how much you believe in the case personally,” added Michael McAlexander, a special prosecutor in the case.

The three trials have cost nearly $600,000. That was also a factor in Wednesday’s decision, although not the deciding factor.

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Indiana Courts

Ind. Decisions - "Insurer Groups, State Trade File Joint Amicus with Supreme Court" [Updated]

State Farm Mutual Automobile Insurance Company v. Jakupko was decided by the Indiana Court of Appeals on November 17, 2006. Access the 14-page opinion by Judge Najam here. The ILB did not summarize the opinion at the time, but here is the conclusion:

The development of Indiana case law on the tort of negligent infliction of emotional distress has been brisk, beginning with our supreme court’s opinion in Shuamber. It may well be that State Farm’s automobile insurance policy was not drafted with negligent infliction of emotional distress claims in mind. But in construing the policy we must take into account the body of case law, which recognizes negligent infliction of emotional distress as an independent tort. See Ethyl Corp. v. Forcum-Lannom Assoc’s, Inc., 433 N.E.2d 1214, 1220 (Ind. Ct. App. 1982) (observing “it is well settled that, unless the contract provides otherwise, all applicable law in force at the time the agreement is made impliedly forms a part of the agreement without any statement to that effect.”).

We hold that the definition of bodily injury in the policy includes negligent infliction of emotional distress claims when accompanied by physical manifestations of that distress. And we also hold that the Jakupkos’ injuries were sustained as a result of their direct involvement in the accident. Thus, the Jakupkos’ negligent infliction of emotional distress claims are subject only to the “each accident” limit of liability. The trial court did not err when it entered summary judgment in favor of the Jakupkos. Affirmed.

Today the Insurance Journal reports:
The Insurance Institute of Indiana, the National Association of Mutual Insurance Companies (NAMIC), and the Property Casualty Insurers Association of America (PCI) have filed a joint amicus curiae brief on a case that the groups believe could set a dangerous precedent for future emotional distress claims.

The trade associations filed the brief with the Indiana Supreme Court in State Farm Mutual Automobile Insurance Company v. Jakupko.

In the case Richard Jakupko, his wife and two children were involved in a crash that resulted in spinal cord fractures and mental injuries to Jakupko. State Farm paid the plaintiffs $1 million under the umbrella policy and $100,000 under the automobile policy for under-insured motorist (UIM) coverage. The plaintiff's UIM limit was $100,000 per person and $300,000 per accident.

The plaintiffs brought action against State Farm for the additional $200,000 they believed was available under the UIM coverage, claiming Jakupko's family witnessed his injuries and suffered emotional distress that led to physical problems such as inability to sleep, loss of appetite, and fatigue. The court ruled that the physical manifestations of emotional distress constitute bodily injuries that are covered in the defendant's policy.

"While we certainly sympathize with the Jakupko family, the policy in question simply does not cover this kind of claim," Insurance Institute president Stephen Williams said. "We believe the court overreached in this instance."

"There is no precedent in Indiana for the appellate court's ruling," NAMIC's Regulatory Affairs Counsel Marsha Harrison stated. "This decision could open insurers up to lawsuits expanding the connection this court made."

PCI counsel Robert Hurns added, "The impact of this ruling is broader than this single case, as it has the potential to be damaging to insurers writing business in Indiana. This case could dramatically increase costs by expanding coverage beyond what the contract states."

The Indiana Supreme Court has not set a date for arguments in this case.

In fact, a check of the docket (29 A 02 - 0603 - CV - 00207) shows only:
11/17/06 ISSUED THE ENCLOSED OPINION:
11/17/06 2006 TERM
AFFIRMED----------NAJAM, J.
SHARPNACK, J. AND ROBB, J. CONCUR
14 PAGES KM
11/17/06 ****** ABOVE ENTRY MAILED ******
12/18/06 APPELLANT'S PETITION FOR TRANSFER (9) WORD COUNT CERTIFICATE(2)
PROOF OF SERVICE (2) MAIL YL
12/18/06 NOTICE OF APPEARANCE BY ROBERT B. CLEMENS, GEORGE T. PATTON AND
BRYAN H. BABB ATTORNEY'S FOR AMICUS CURIAE (2) PROOF OF SERVICE
(2) MAIL * INSURANCE INSTITUTE OF INDIANA, PROPERTY CASUALTY
INSURERS ASSOCIATION AND NATIONAL ASSC OF MUTUAL INSURANCE COMP*
YL
12/18/06 MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE INSURANCE
INSTITUTE OF INDIANA, NATIONAL ASSOCIATION OF MUTUAL INSURANCE
AND PROPERTY CASUATY INSURERS ASSOC IN SUPPORT OF PETITION TO
TRANSFER(6)PROOF OF SERVICE(2) MAIL YL
12/18/06 ****RECEIVED: BRIEF OF AMICUS CURIAE. (9) YL
[Updated 12/21/06] Here is a story on the insurance industry effort, written by Charles Wilson of the AP. Some quotes:
Insurance industry trade groups are asking the Indiana Supreme Court to review an appeals court decision that awarded damages for emotional distress to the family of an injured man, saying it could set a costly precedent. * * *

State Farm paid $1 million under a personal umbrella policy and $100,000 under an underinsured motorist policy which had a limit of $100,000 per person or $300,000 per accident.

The family filed suit, seeking $200,000 more for family members' emotional distress that led to uncontrollable crying, sleeplessness, fatigue, loss of appetite and other physical problems.

A Hamilton Superior Court judge agreed that each family member should be covered and ruled in their favor. State Farm appealed, but the Indiana Court of Appeals last month upheld the lower court ruling.

The appeals court said that since the other family members were involved in the accident, their distress and suffering could not be treated as merely a result of Richard Jakupko's injuries.

"A claimant's direct involvement in the accident requires that a negligent infliction of emotional distress claim accompanied by physical manifestations be treated in the same manner as any other bodily injury claim," Judge Edward W. Najam Jr. wrote.

The ruling held that the $100,000 "each person" rule applied, subject to the $300,000 per accident limit, so the Jakupkos were entitled to the additional $200,000.

Marsha Harrison, regulatory affairs counsel for the National Association of Mutual Insurance Companies, said the ruling was without precedent in Indiana.

State Farm has appealed the ruling to the state Supreme Court, which has not yet decided whether to hear the case.

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Small claims judge sues Center Twp trustee" [Updated]

Updating this entry from yesterday, the ILB has been able to obtain, thanks to Marion Superior Court Civil Division, Room 5, a copy of the "verified complaint for mandate, for injunction, and for declaratory judgment" filed in State ex.rel. Lopossa v. Carl L. Drummer. Access it here.

[Updated 12/21/06] Advance Indiana has posted a good review of the contents of the complaint here.

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Rita (Threlkel) Quinn v. Robert A. Threlkel, an 18-page opinion, Judge Barnes writes:

Rita Quinn appeals the trial court’s order on her petition for modification of child support and for payment of college expenses from her ex-husband, Robert Threlkel, for their child, Elaine Threlkel. We affirm in part, reverse in part, and remand. * * *

We remand for further consideration and clarification of the post-secondary education expense order in this case in proceedings consistent with this opinion. We also reverse the trial court’s current formulation of Robert’s child support obligation and remand for recalculation consistent with our supreme court’s guidelines, commentary, and worksheets. We affirm the trial court’s decisions regarding the non-retroactivity of the modification of Robert’s child support obligation and the dependent tax exemption for Elaine.

In Timothy J. Clancy v. Dianna Goad and Robert Goad, a 21-page opinion, Judge Vaidik writes:
Case Summary. Timothy Clancy appeals the jury verdict awarding Dianna and Robert Goad damages stemming from an accident where Clancy’s truck collided with Dianna’s motorcycle. The jury awarded Dianna $10 million for injuries including the loss of her left leg, and Robert, who witnessed the accident, received $1 million for his claim of negligent infliction of emotional distress. Clancy argues that both awards are excessive in light of the evidence presented at trial and that the trial court erred when it instructed the jury on the modified impact rule with respect to Robert’s claim. We find, as to both Dianna and Robert, that the jury’s awards for damages are reasonable in light of the evidence presented at trial. We also find that Robert sustained an “impact” for purposes of the modified impact rule when he chose to execute an emergency maneuver with his motorcycle in order to help his wife and that maneuver resulted in him falling to the asphalt and sustaining minor injuries. As such, the trial court was correct to instruct the jury on the application of the modified impact rule. We therefore affirm in all respects.
NFP civil opinions today (4):

Michelle Hartwell v. United Consulting Engineers, Inc.; United Consulting Engineers, Inc. v. Hunt Paving Co., Inc. (NFP)

Fast Tek Group, LLC v. On Site, LLC (NFP)

Jerrolyn M. Douglas v. Review Board of the Indiana Dept. of Workforce Development and Chavis & Chavis (NFP)

Marriage of Anna Calabrese v. Robert Calabrese (NFP)

NFP criminal opinions today (6) (link to cases):

Lonnie Washington v. State of Indiana (NFP)

Dylan Morgan v. State of Indiana (NFP)

Jeorge Celayos v. State of Indiana (NFP)

Gus N. Leftakes v. State of Indiana (NFP)

Samuel A. Moore v. State of Indiana (NFP)

Anthony Fisher v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Indiana Lawyer James Bopp Jr. featured in Nov. ABA Journal

On Nov. 3 the ILB had an entry on Terre Haute attorney James Bopp Jr. being the focus of a cover story in the ABA Journal. Today Howard Greninger of the TH Trib-Star has a story headlined "Bopp turns cover boy for national legal issues mag." It begins:

TERRE HAUTE — It’s a nickname not heard since his fraternity days in Kappa Sigma while attending Indiana University, and needless to say, it brought a chuckle to James Bopp Jr. when he saw the cover of the November issue of the ABA Journal.

The cover reads: “The BIG BOPPER, Exploding the canons of judicial ethics.”

“I didn’t think there was anybody still alive that still remembered that nickname,” Bopp said Monday in a telephone interview. “I was truly honored that the work that I have done, and other people in my law firm have done with me, would be profiled and be the featured cover article. It was very humbling.”

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Indiana Law

Ind. Law - More on "Muncie attorney held on drug charge"

Updating this ILB entry from July 8th, the Muncie Star-Press has a story today headed "Lawyer's deal kept under wraps: No trial date for a Muncie attorney has been set on cocaine possession five months after arrest." Some quotes from the story by Nick Werner:

WINCHESTER -- A Muncie attorney who authorities said had cocaine in his possession after he was caught urinating in the middle of a state highway has apparently reached a plea bargain with the Randolph County prosecutor's office.

The terms of that agreement, however, remain sealed and unavailable for public inspection.

Donald K. McClellan, 51, rural Selma, was charged in Randolph Superior Court on July 18 with possession of cocaine, a class D felony carrying a standard 18-month prison term, and public intoxication, a class B misdemeanor that carries a sentence of up to six months.

Court records indicate McClellan's defense attorney, Michael J. "Mick" Alexander, and Prosecutor David Daly filed a plea agreement in that court on Dec. 8, the same day the case was scheduled for a pre-trial conference.

However, when a reporter for The Star Press a few days later inspected the McClellan case's court file, it did not contain the plea agreement.

County employees said the agreement was in the possession of Jay Circuit Court Judge Brian Hutchison, appointed special judge in the McClellan case on July 19 after Randolph Superior Court Judge Peter Haviza disqualified himself.

Hutchison, through a court employee, referred all questions to Prosecutor Daly, who declined comment on the issue of a plea agreement, citing court rules governing public statements concerning court proceeding. * * *

In some counties, including Delaware, plea agreements are typically kept unsealed in the same court file as other related documents and are generally open for public view.

A plea agreement that is not yet approved by the court, however, does not fall under public records law, Indiana Public Access Counselor Karen Davis said, and a prosecutor would have the legal authority to withhold the document.

Indiana Code states that the contents of a plea agreement are not part of the official record of a case unless the court approves the plea agreement.

Nonetheless, the proceedings in McClellan's case have followed a timeline atypical when compared to most felony cases in East Central Indiana courts.

Normally, when a plea bargain is filed, the court schedules a hearing, frequently within a month, in which the defendant pleads guilty to a crime and is then sentenced, assuming the judge accepts the terms of the agreement.

The scheduling of a pre-trial conference for next June could indicate that prosecutors have allowed McClellan, who is apparently a first-time offender, to enter a diversion program in which he would likely undergo counseling, pay fines and complete community service in exchange for the dismissal of charges against him.

Indiana law prohibits diversion programs for felony defendants and in McClellan's case the drug charge would have to be reduced to misdemeanor status.

McClellan also has yet to receive a trial date.

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Indiana Law

Ind. Law - No surprises here: Fireworks law change proposed

Here is a very long list of ILB entires from last summer where various communities express outrage over the fireworks law passed last here, with headlines like: "Sadly, the Legislature doesn't have a Stupid-O-Meter on which to test new laws."

Today Lesley Stedman Weidenbener of the Louisville Courier Journal reports, in a lengthy story:

A handful of state senators are proposing to change the law regulating fireworks less than a year after the General Assembly voted to legalize their use.

Senate Bill 9, which will be considered by the 2007 legislature, would give cities and counties the authority to set some restrictions on the use of fireworks in their communities.

The bill's primary author, Sen. Vic Heinold, R-Kouts, said the proposal comes from the Valparaiso City Council, which sent him a resolution requesting more authority to set the hours and days when fireworks could be used.

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Indiana Law

Ind. Gov't. - Bill prohibiting serial meetings introduced in House this year

In the past two sessions, Senator Beverly Gard has introduced and had passed by the Senate a bill prohibiting serial meetings, only to see it die without even a committee hearing in the House. (See long list of ILB entries re "serial meeting" here.) This year, according to a report yesterday by Bryan Corbin of the Evansville Courier&Press, a similar bill has been introduced in the House. Some quotes:

A Southwestern Indiana legislator is trying to prohibit government boards from holding "serial meetings" n that is, circumventing the Open Door Law by gathering in small groups to conduct public business, behind closed doors and without having a quorum.

The best-known example occurred in September 2000 when the Indiana University board of trustees divided into two groups to discuss termination of then-Coach Bob Knight and avoided triggering the state public-meeting requirement.

State Rep. Russell Stilwell, D-Boonville, said he is introducing a bill to close the serial-meetings loophole. * * *

Stephen Key, general counsel for the Hoosier State Press Association, said serial meetings occur when members of a government board - such as a city council, school board or university trustees - subdivide into groups of less than a quorum, and then conduct business in private that legally ought to be conducted in public. To get around the law, one board member might meet individually with other board members, but not with the quorum of the entire board simultaneously, and yet make decisions collectively.

"Under the fashion they are doing it, they can look citizens in the eye and say, 'We didn't violate the Open Door Law because we never had a meeting,'" Key said. "Invariably, the discussion or subject matter of these serial meetings is information that if they had a quorum present at one time, it would have to be done in an open meeting where the public could observe the discussion."

When members of the IU board of trustees met informally with then-IU President Myles Brand at his home Sept. 9, 2000, and discussed Knight's possible termination, Brand had four trustees gather in one room, and four in another. Brand later testified in a lawsuit that he deliberately gathered fewer than a quorum and briefed the two groups separately, in order "to exclude any impropriety with respect to the Open Door Act," court records said.

In a decision on the trustee lawsuit last June 2, the Indiana Court of Appeals ruled that because there was not a quorum, the trustees' gatherings did not constitute a "meeting" under the Open Door Law, and so were not prohibited. But the appeals court found the IU trustees acted "in direct contravention to the public policy behind the Open Door Law," which requires that conclusive government action take place in public.

Stilwell's bill aims to close that loophole. It would apply not just to public university trustees but to other governmental boards, such as town councils, school boards and city or county councils. "That doesn't mean they can't caucus or chat with other members of the commission; it means they cannot have serial meetings," Stilwell said.

If the loophole were closed, Key said, then the public would have legal remedies under the Open Door Law if a serial-meeting violation occurred: Citizens could file a lawsuit in court and ask the judge to declare the board's action illegal, seek an injunction to undo the action or prohibit further violations, and seek attorney's fees, Key said.

Stilwell's bill is similar to one authored the past two years by state Sen. Beverly Gard, R-Greenfield. Gard's proposal passed last session in Republican-controlled state Senate, 48-2, but did not receive a hearing in the Indiana House. Stilwell, whose party retook control of the House in the Nov. 7 election, is optimistic that his serial-meetings bill will get a House hearing this year.

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Indiana Government

Environment - "IDEM's answer gives false idea of county power to ban hog farms"

"IDEM's answer gives false idea of county power to ban hog farms" is the headline to a story in Tuesday's Madison Courier, written by Peggy Vlerebome:

A county's power to regulate confined animal feeding operations does not include banning them altogether, despite what was said at a public meeting Monday night.

Representatives of the Indiana Department of Environmental Management answered written questions submitted before and during a public meeting at the 4-H Fairgrounds. One question was whether a county can prohibit all confined animal feeding operations. The answer was yes.

Afterward, County Commissioner Julie Berry, chairman of a county advisory committee studying possible regulations for such operations in Jefferson County, and committee member Mark Goley approached the IDEM representative who had given the answer. Berry asked him to explain what he meant since the committee has received legal advice that an all-out ban would violate the state's right-to-farm law.

It turned out that he was referring to temporary bans imposed by counties through moratoriums like the one in place in Jefferson County, which expires Feb. 4. "That is altogether different" from a prohibition against confined animal feeding operations, Berry told him.

The IDEM representatives, who work in the Office of Land Quality, conducted the meeting in Jefferson County as part of the process of reviewing an application for a permit to operate a 4,000-hog feeding operation near Kent.

The IDEM representatives said they didn't know when a decision will be made on the permit.

From the answers to questions, the audience of about 100 people learned that the proposed hog feeding operation in Kent has lined up more land than the state requires for the disposal of manure on cropland, and that the manure holding tank underneath the hog barn will have more capacity than the state requires.

The audience also was told that the state does nothing to regulate odors, but the U.S. Environmental Protection Agency will conduct a two-year study of odors and then decide whether states should be involved in controlling them.

IDEM's sole interest in regulating confined animal feeding operations is to guard the state's water supplies, both groundwater such as wells and surface water such as creeks, the audience was told.

The audience also learned that IDEM inspects feeding operations about every five years. The operator of the feeding operation must keep records for the inspector to review, the IDEM representatives said.

Posted by Marcia Oddi on Wednesday, December 20, 2006
Posted to Environment