« Law - Update on lead paint lawsuits | Main | Law - Unsettled times at Ave Maria Law School »

Wednesday, August 22, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In James Atterholt v. Marilyn Robinson, a 25-page opinion, Chief Judge Baker writes:

Appellants-defendants James Atterholt, the Commissioner of Insurance of Indiana, and the Patient Compensation Fund of Indiana (collectively, the Fund) appeal the trial court’s $1,250,000 judgment in favor of appellee-plaintiff Marilyn Ruth Robinson, the personal representative of the Estate of Irene H. Gray (the Estate). Specifically, the Fund argues that the trial court erred by allowing the Estate to recover $1,250,000 of damages pursuant to the Indiana Survival Act (the Survival Act) because it should have, instead, awarded damages pursuant to the Indiana Adult Wrongful Death Statute (the AWDS). Alternatively, the Fund argues that even if the trial court did not err by awarding damages pursuant to the Survival Act, the award was excessive. Concluding that the trial court erred by not allowing the Fund to challenge the theory of compensation at the damages hearing but that such error was harmless and the resulting award was not excessive, we affirm the judgment of the trial court.
In New Albany Residential Inc. v. Karen Hupp, a 12-page, 2-1 opinion with a dissent beginning on p. 10, chief Judge Baker writes:
Appellant-plaintiff New Albany Residential, Inc. (New Albany) d/b/a Re/Max Associates of New Albany (Re/Max), appeals the trial court’s order granting appellee-defendant Karen Hupp’s motion for summary judgment on New Albany’s complaint against Hupp. In particular, New Albany argues that the trial court erroneously concluded that New Albany’s claim against Hupp is barred because it should have been raised as a compulsory counterclaim in separate litigation instituted by Hupp. Finding that because New Albany was not a party to the separate litigation and that, consequently, its claim is not a compulsory counterclaim, we reverse the judgment of the trial court and remand for further proceedings.

CRONE, J., concurs. FRIEDLANDER, J., dissents with opinion [which begins:] I believe New Albany Residential’s (New Albany’s) claims were compulsory counterclaims and should have been raised in Hupp’s prior lawsuit. Therefore, I respectfully dissent from the reversal of summary judgment in favor of Hupp.

NFP civil opinions today (6):

AMCO Insurance Co., et al. v. Global Group, Inc., et al. (NFP) - "Appellants-plaintiffs AMCO Insurance Company and Farm Bureau Insurance Company (collectively, the Insurers) appeal the trial court’s grant of summary judgment in favor of appellees-defendants Global Group, Inc. (Global), and Jay Shah (collectively, the appellees). Specifically, the Insurers argue that the trial court erred by granting summary judgment in favor of the appellees because Global breached its lease with Pulp Products (Pulp) by not obtaining fire insurance and, thus, the Insurers should be entitled to assert their subrogation claim against the appellees. Concluding that the lease’s subrogation waiver provision supersedes Global’s breach and bars the Insurers’ claim, we affirm the judgment of the trial court."

Carolyn Precht v. Franklin County Farmers Mutual Insurance Co. (NFP)

In Luke Oil Company, Inc., et al. v. Lake County, Indiana, et al. (NFP), an 18-page opinion, Judge Robb writes:

Luke Oil Company, Inc., an Indiana corporation, SVT, LLC, an Indiana limited liability company, and Van Til’s Supermarket, Inc., an Indiana corporation, individually and doing business as Almira’s, (collectively, “Luke Oil”) appeal the trial court’s partial grant of summary judgment to Lake County, the Board of Commissioners of Lake County, and Christine S. Clay, Director of the Lake County Department of Weights and Measures (collectively, “Lake County”). The order relates to an “Ordinance Establishing the Rules and Penalties for Weights and Measures” (“Ordinance No. 1264D”) passed by the Lake County Council that, in part, revised the license fee schedule for all businesses employing weights and measures in Lake County to double the license fee to $100.00 per location and established fines if specific requirements were violated. The trial court’s order declared that the ordinance is invalid as it relates to the imposition of fines, but valid as to the imposition of a licensing fee. Two issues presented for our review are: (1) whether Lake County has the authority to regulate weights and measures and impose license fees, and (2) whether the license fees are an unlawful attempt to impose fees for tests and inspections of weights and measures. Concluding that the trial court properly found Lake County had the authority to regulate weights and measures and institute a license fee, and that the license fee is reasonable and relates to the County’s administrative and regulatory costs, we affirm.
James R. Kinney v. Brenda K. Kinney (NFP)

In Jonathan E. Hadt v. Sharon Goodall (NFP), a 6-page opinion in an interlocutory appeal, Judge Bailey writes:

Case Summary. Jonathan E. Hadt appeals the trial court’s award of attorney’s fees and costs as a sanction for his refusal to increase his settlement offer. We reverse.

Issue. Hadt raises a single issue on appeal: whether the trial court abused its discretion in ordering him and his non-party insurer to pay the attorney’s fees and costs of other persons participating in a settlement conference. * * *

This Court has held repeatedly that an unwillingness to make or modify a settlement offer does not warrant sanctions. * * *

Additionally, while the trust of the court’s ire arose from Hadt’s unwillingness to increase his offer, the court also found Hadt’s failure to appear was a basis to support sanctions against him. Granted, Hadt did not attend the conference; but it was unclear that attendance was required. The trial court’s two orders, issued on the same day, were inconsistent in naming the persons required to attend. Ambiguous orders do not support sanctions. * * *

Finally, if Hadt’s absence had been the basis for the decision, Magistrate Miller should have immediately noted it on the record, rather than after learning that the parties had reached an impasse. The trial court abused its discretion in sanctioning Hadt. Reversed.

Paula A. Condon and Herbert L. Allison v. Robert J. Condon (NFP)

NFP criminal opinions today (8):

Franklin Johnson v. State of Indiana (NFP)

Lee Guzman v. State of Indiana (NFP)

Lester Rowe v. State of Indiana (NFP)

William C. Stitts v. State of Indiana (NFP)

Jerry Jackson v. State of Indiana (NFP)

Laef Lewis v. State of Indiana (NFP)

Joe Wade v. State of Indiana (NFP)

Samuel Pope, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on August 22, 2007 01:13 PM
Posted to Ind. App.Ct. Decisions