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Tuesday, January 09, 2007

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

Supervised Estate of Edith Alice Scholz/Kenneth Scholz v. Lorraine Kirk - "Ken Scholz (“Ken”) appeals the trial court’s order that granted the objection of Lorraine Kirk (“Lorraine”) to the final accounting he filed as personal representative of the estate of Edith Alice Scholz (“Mrs. Scholz”) and ordered him to pay annual cash rent of $12,000 to farm the estate’s real property. We affirm."

Central Indiana Podiatry, P.C. v. Kenneth J. Krueger, et al - "Central Indiana Podiatry (“CIP”) appeals the trial court’s order denying a preliminary injunction to CIP on its action asserting that Kenneth Krueger, D.P.M., violated the restrictive covenants contained in the employment contract between CIP and Krueger. We reverse."

Anna H. Cochran v. State of Indiana - "Anna H. Cochran appeals the judgment rendered by the trial court, which overruled her objections and denied her motion to dismiss the State of Indiana’s complaint for the appropriation of her real estate pursuant to the power of eminent domain conferred upon the Indiana Department of Transportation (“INDOT”). She raises one issue, which we restate as: whether the trial court erred in determining that the State has the right pursuant to IC 8-23-6-2 to acquire real estate interests for a drainage system needed in a reconstruction project on an existing state highway. We affirm."

Donald Ware v. State of Indiana - "We conclude that the trial court properly admitted the evidence obtained pursuant to the search and arrest, and the evidence that the State did not disclose prior to trial. We further conclude that sufficient evidence exists to support Ware’s convictions. Finally, we conclude that Ware’s sentence is not inappropriate in light of his character and the nature of the offense. We affirm."

[Update] The Indianapolis Star has posted a brief report on this decision, here, that begins: "The Indiana Court of Appeals today upheld an Avon man's conviction for fatally shooting a teen who had thrown eggs at his truck."

In Austin Elliot, et al v. Allstate Insurance Co. , a 22-page opinion (with a dissent beginning on p. 20), Judge Riley writes:

Issue. Whether Allstate’s policy for uninsured motorist coverage (UIM) confines Appellants’ negligent infliction of emotional distress claim to a single “each person” limit of liability.

[ILB - From pp. 7-11, the opinion covers "The development of Indiana case law on the tort of negligent infliction of emotional distress," which, it notes, "has been vigorous, to say the least," ending with the Court of Appeals 11/17/06 decision in State Farm Mutual Automobile Insurance Company v. Jakupko.]

As we are presented with a very similar scenario as to the Jakupkos’ situation, we will analyze Austin’s and Amber’s claim for negligent infliction of emotional distress in light of Jakupko’s holding. * * *

Conclusion. Based on the foregoing, we hold that the definition of bodily injury in Allstate’s policy includes negligent infliction of emotional distress that is susceptible to medical diagnosis and can be proven through medical evidence even when not accompanied by physical manifestations of that distress. Accordingly, we find that Amber’s claim is covered under Allstate’s policy. Pursuant to Jakupko, we also determine that Austin’s claim falls within the policy’s definition of bodily injury. Furthermore, Appellants negligent infliction of emotional distress claims are subject only to the “each accident” limit of liability. Therefore, we conclude that the trial court erred when it granted summary judgment in favor of Allstate.

Reversed and remanded for further proceedings.
KIRSCH, C.J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which concludes]

I believe Tozer was correctly decided on this point and would apply it here. The majority, however, rejects Tozer in favor of Jakupko, which reached a contrary conclusion on the question of whether emotional distress is a bodily injury within the meaning of policy language such as is before us here. We are left, then, to decide which view is better. I part ways with the majority and conclude that emotional distress under these circumstances is not a bodily injury within the meaning of the policy, and therefore that Austin’s and Amber’s claims for emotional distress “result from” Amanda’s injuries. Having already paid the policy limits for Amber’s injuries, Allstate’s liability on claims derivative of those injuries is exhausted. See Allstate Ins. Co. v. Tozer, 392 F.3d 950. On this basis, I would affirm the grant of partial summary judgment in favor of Allstate.

[ILB - In a footnote on p. 11, the majority expressly declines to follow Tozer: "Because the trial court in the instant case relied on Tozer, we find it noteworthy to expressly decline to follow the Seventh Circuit as we conclude that Jakupko reaches the better result."

If Jakupko seems familiar, it may be because of an ILB entry from Dec. 20, headed ""Insurer Groups, State Trade File Joint Amicus with Supreme Court" - available here.]

NFP civil opinions today (3):

Marlan C. Bonds v. Sheriff Michael Books and Greg Eash (NFP)

In Re the Termination of the Parent-Child Relationship of K.L. (NFP)

Jeffrey L. Mahan v. American Standard Insurance Company (NFP)

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

State of Indiana v. Michael E. Kasten, Jr. (NFP) - "The State appeals a reserved question of law subsequent to the acquittal of Michael E. Kasten, Jr. We reverse. Issue. Whether the trial court erred when it found insufficient corpus delicti to admit Kasten’s admission that he was driving his vehicle at the time it crashed into a utility pole."

Eric Carpenter v. State of Indiana (NFP)

Stephen Jack v. State of Indiana (NFP)

Michael Ferrell v. State of Indiana (NFP)

Steven A. Wrightsman v. State of Indiana (NFP)

Sylvester Bellamy v. State of Indiana (NFP)

Jerry W. Lock v. State of Indiana (NFP)

Posted by Marcia Oddi on January 9, 2007 12:05 PM
Posted to Ind. App.Ct. Decisions