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Thursday, May 31, 2007
Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)
For publication opinions today (6):
In Keith B. Von Hor v. Jane Doe and State Farm Insurance Companies, a 7-page opinion, Judge Crone writes:
In advocating for coverage under his vehicle’s insurance policy, motorcyclist Von Hor raises three issues, which we consolidate into one. We address whether the “strike,” or physical contact, requirement within an uninsured motorist clause may be disregarded when independent evidence exists that an unidentified miss-and-run driver was the proximate cause of an accident. * * *Bobbie J. Rowe v. State of Indiana - "We cannot say that Rowe’s sentence is inappropriate in light of the nature of the offenses and the character of the offender."Von Hor’s case is remarkably similar to that presented in Rice v. Meridian Insurance Company, wherein we affirmed summary judgment in favor of an insurance company. Rice, 751 N.E.2d 685 (Ind. Ct. App. 2001), trans. denied. More specifically, we concluded, “The hit-and-run vehicle did not directly or indirectly physically contact [Dianna Rice’s] car and, therefore, the accident that occurred does not fall within the scope of the [uninsured motorist] policy provision.” Like Von Hor, the Rices raised public policy and corroborative evidence issues issues, which we addressed as follows: [ILB - lengthy quotations omitted] * * *
In addressing Von Hor’s argument, we would add that the same justices that denied transfer of the Rice case remain on our supreme court today. Furthermore, six years have passed since our decision in Rice. During that time, our legislature has had ample opportunity to amend the Act to mandate miss-and-run motorist coverage. Yet, our lawmakers have chosen not to make such a change. See Allis, 628 N.E.2d at 1255-56. We are not authorized to redraft legislation. See id.; St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 703-04 (Ind. 2002) (“Clear and unambiguous statutory meaning leaves no room for judicial construction.”). Accordingly, however compelling we may find the facts and logic presented, we, as an intermediate appellate court, must reject Von Hor’s invitation to adopt the corroborative evidence test. Therefore, we will not overturn the summary judgment granted in State Farm’s favor.
Indiana Surgical Specialists v. Helen Griffin and MDS Courier Service, Inc. - "Indiana Surgical Services (“Indiana Surgical”) appeals the small claims court’s decision that the earnings Helen Griffin received as an independent contractor for MDS Courier Services (“MDS”) could not be garnished. Although Griffin was an independent contractor, she received periodic payments for her personal services, which payments were earnings that could be garnished. We reverse and remand."
In Re the Involuntary Termination of the Parent-Child Relationship of K.L., K.L., and S.G.; Pamela Eden v. Johnson County Department of Child Services - termination, affirmed.
In the Matter of M.K. and K.K.: Paula Sokol v. Porter County Office of Family & Children, Mark Sokol and Jean Sokol, and Court Appointed Special Advocate - "Paula Sokol (“Sokol”) appeals the trial court’s denial of her motion to terminate the guardianship of her two children, fifteen-year-old K.K. and twelve-year-old M.K. Sokol raises one issue, which we restate as: Whether the trial court erred in denying her petition. We reverse and remand."
NFP civil opinions today (4):
Rita Beatty, et al. v. James T. Martin, et al. (NFP) - "Specifically, the Beattys claim that the trial court erred in granting summary judgment for Wood because the designated evidence created a genuine issue of material fact as to whether Martin was Wood’s employee. Alternatively, the Beattys argue that summary judgment was improper because Wood should be held liable for Martin’s acts under an exception to the general rule of non-liability of a general contractor for the torts of an independent contractor. Also, the Beattys claim that this court should adopt a new exception to the general rule regarding non-liability when the potential independent contractor lacks sufficient financial resources to perform the contract “in a way that would not be detrimental to other persons lawfully upon the highway.” Concluding that summary judgment was properly entered for Wood, we affirm the judgment of the trial court."
In the Marriage of James L. Blaising and Nikki J. Blaising v. Bonnie L. Blaising and William R. Blaising (NFP) - "Mother raises one issues on appeal which we restate as follows: Whether the trial court properly granted joint legal custody of A.B. to Mother and the Grandparents, with primary physical custody retained by the Grandparents. * * *
Based on the evidence presented, we agree with the trial court’s decision to gradually increase Mother’s involvement in A.B.’s life by instituting joint legal custody. At the moment, A.B. is only familiar with his Grandparents’ environment: he was effectively raised by them since three months of age and has established a close emotional bond with them resulting in a deep mutual affection and feeling of safety. Immediately and without any warning uprooting A.B. from what he considers to be his home would not be in his best interests. Mindful of this, the trial court formulated a beneficial custodial arrangement for A.B. by allowing him to continue to build on the stable foundation of his relationship with his Grandparents, while at the same time expanding his relationship with his Mother. Consequently, we find that the evidence supports the trial court’s findings and the findings support its judgment. See Staresnick, 830 N.E.2d at 131. As such, we decline to set aside the trial court’s Order."
In Re The Matter of the Involuntary Termination of the Parent Child Relationship of S.B., A.B. and A.B.; Lori Bracken v. Marion County Department of Child Services and Child Advocates, Inc. (NFP) - "The trial court did not err in concluding there is a reasonable probability that the conditions resulting in the children’s removal from Bracken’s care still exist and will not be remedied, and that Bracken did not have sufficient income and adequate housing to support her children. Judgment affirmed."
Mike Whittman and Linda Whittman v. Carolyn Duning, Mark Brown and Heavenly Scents Candly Company, LLC (NFP) - "Mike Wittman and Linda Wittman appeal an order enforcing a settlement agreement in favor of Carolyn Duning, Mark Brown, and Heavenly Scents Candle Company, LLC. Because there was no “meeting of the minds” regarding the terms of a settlement agreement, no agreement was formed. We accordingly reverse and remand."
NFP criminal opinions today (12, now 13):
State of Indiana v. Billy Wayne Julian (NFP) - "The State of Indiana appeals the grant of post-conviction relief to Billy Wayne Julian. We affirm. * * *
There is a reasonable probability the result of the trial would have been different if Julian had been made aware Brooks was on home detention the night of the fire. The evidence most favorable to the post-conviction court’s ruling indicates Brooks was in his home several miles from the school and did not violate his home detention during the relevant time. Consequently, Brooks could not have sold marijuana to Julian at the school shortly before the fire. Although other evidence and testimony placed Julian at the scene,7 this evidence is sufficient to undermine our confidence in the outcome of the trial. We conclude Julian’s claim under Brady prevails and, accordingly, affirm the court’s grant of post-conviction relief. Affirmed."
Shane Craig v. State of Indiana (NFP)
S.J. v. State of Indiana (NFP)
Jason Tye Myers v. State of Indiana (NFP)
Robert Evan Wright v. State of Indiana (NFP)
Edward Dancy v. State of Indiana (NFP)
Vincent Antoine Irving v. State of Indiana (NFP)
Lonzell Mobley v. State of Indiana (NFP)
Darius V. Bowles v. State of Indiana
Tamera Richards v. State of Indiana (NFP)
Pedro A. Cordoba v. State of Indiana (NFP)
James E. Doss v. State of Indiana (NFP)
Will E. Dunlap v. State of Indiana (NFP) [NEW]
Posted by Marcia Oddi on May 31, 2007 01:52 PM
Posted to Ind. App.Ct. Decisions