The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 13 today (and 21 NFP)

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Friday, December 28, 2007

Ind. Decisions - Court of Appeals issues 13 today (and 21 NFP)

Additional summaries may follow.

For publication opinions today (13):

In Paul McMurray v. Nationwide Mutual Insurance Co. , a 12-page opinion, Judge Mathias writes:

At issue in this appeal is whether “other insurance” clauses in the polices of both Nationwide and GuideOne Elite Insurance Company (“GuideOne”) are mutually repugnant, requiring each insurer to be liable for a prorated amount of the damages. We reverse and remand for proceedings consistent with this opinion. * * *

If this court were to attempt to harmonize and give effect to both Nationwide’s escape clause and GuideOne’s excess liability clause, then McMurray would have no coverage under Nationwide’s policy and only excess liability under GuideOne’s policy.5 Indiana law is clear that when insurance coverage provisions are mutually repugnant, they should be ignored, and each insurer should be liable for a prorated amount of the resultant damage not to exceed its policy limits. Id. As in Indiana Ins. Co., Nationwide’s escape clause and GuideOne’s excess liability clause are irreconcilable. Therefore, the Lamb-Weston rule must be applied, and both clauses should be disregarded, making both GuideOne and Nationwide primarily liable on a prorated basis for McMurray’s proven damages at issue. Reversed and remanded for proceedings consistent with this opinion.

[ILB note: See footnote 5 on p. 12]

In Mark White v. Carol White , an 11-page opinion, Judge Bailey writes:

Case Summary: Appellant-Respondent Mark White (“Mark”) appeals the denial of his Motion to Correct Error, which challenged the denial of his motion to set aside an income withholding order for child support receivable by Appellee-Petitioner Carol White (“Carol”) and the State of Indiana. We reverse and remand.

Issue: Mark presents five issues for review, which we consolidate and restate as a single issue: whether he is entitled to equitable relief from a child support withholding order when clerical error caused claimed deductions in excess of that legally allowable. * * *

Neither the Guidelines nor statutory authority contemplate the tender of virtually all of one parent’s income as child support, regardless of the number of children.

Moreover, an income withholding order is not to be utilized to deprive an obligor of his or her means of self-support. * * *

Finally, the trial court’s determination that Mark knew he was ordered to pay $266.00 weekly is contrary to the evidence of record. Mark testified that he did not receive a copy of the wage withholding order. Carol testified that she never objected that she was receiving less than the court-ordered amount of child support. It defies logic to infer that had Mark known he was ordered to pay virtually all his disposable salary as child support, he would have merely acquiesced.

In light of the foregoing, the trial court is instructed on remand to correct the child support withholding order to reflect that the deduction was to be $266.00 bi-weekly (from the date of the order until modified on January 13, 2005), and to calculate the child support arrearage, if any, consistent with this opinion.

Pierre Fisher v. State of Indiana

In Dreaded, Inc. v. St. Paul Guardian Insurance, et al , a 12-page opinion, Judge Kirsch writes:

Dreaded, Inc. (“Dreaded”) appeals the trial court’s grant of summary judgment in favor of St. Paul Guardian Insurance Company, St. Paul Protective Insurance Company, and St. Paul Fire and Marine Insurance Company (collectively “St. Paul”) holding that St. Paul is not liable for environmental cleanup defense costs incurred prior to receiving notice of potential liability. Dreaded contends that the trial court erred in holding that its delay in notifying St. Paul of its claim was a material breach of Dreaded’s comprehensive general liability policy (“policy”) with St. Paul. Dreaded raises two issues, which we consolidate and restate as: whether the trial court erred in entering summary judgment finding that Dreaded cannot recover defense costs that it incurred prior to notifying St. Paul. Affirmed in part, reversed in part, and remanded for further proceedings.

Travis Marlett v. State of Indiana

Willie Eaton v. State of Indiana

Heather Parmeter v. Cass Co. Dept. of Child Services - "However, we conclude that the trial court’s findings do not support the judgment. In support of the CHINS determinations, the trial court listed only one fact-specific finding, namely, the court’s observation of Mother’s expert witness as he viewed a video tape of Mother “hysterically” questioning the children and referring to Father as a “bad daddy.” That factual finding, without more, is insufficient to support the CHINS determinations. Thus, we remand for the trial court to make proper findings and conclusions in support of its judgment."

Kerry L. Meredith v. State of Indiana

In Filter Specialists, Inc. v. Dawn Brooks, Charmaine Weathers, and Michigan City Human Rights Commission , a 55-page, 2-1 opinion (including a 16-page dissent by Judge Vaidik beginning on p. 40), Judge Robb writes:

Filter Specialists, Inc., appeals from the trial court’s order affirming the decision of the Michigan City Human Rights Commission (the “Commission”), which found Filter took adverse employment action against two employees, Dawn Brooks and Charmaine Weathers (referred to collectively as the “Employees”), based on their race.1 Filter raises five issues, which we restate as: (1) whether Filter was subject to the Commission’s jurisdiction; (2) whether the Commission’s decision cannot stand based on the Employees’ failure to introduce the local ordinance proscribing racial discrimination by employers; (3) whether the trial court abused its discretion in granting the Commission’s motion to be joined as a party; (4) whether sufficient evidence supports the Commission’s decision; and (5) whether the evidence supports the Commission’s award of back pay. We conclude Filter has waived its jurisdictional argument, the Employee’s failure to introduce the applicable ordinance is not fatal, and the trial court properly joined the Commission as a party. However, concluding the Commission’s decision was not supported by sufficient evidence, we reverse. * * *

We conclude that Filter was subject to the Commission’s jurisdiction and that the Employees’ failure to introduce the local ordinance into evidence is not fatal, as we take judicial notice of it at this time. We further conclude that the trial court properly joined the Commission. Finally, we reverse, concluding that the Commission’s decision was not supported by substantial evidence.

BRADFORD, J., concurs.
VAIDIK, J., dissents with opinion. [which begins] I respectfully dissent from the majority’s decision to reverse the trial court’s order affirming the Michigan City Human Rights Commission’s (“Commission”) determination that Filter Specialists, Inc. (“Filter”) unlawfully terminated the employments of Dawn Brooks (“Brooks”) and Charmaine Weathers (“Weathers”). I disagree with the majority’s conclusion that the Commission’s decision was not supported by sufficient evidence, and I believe that the majority’s burden-shifting analysis requires clarification. In addition, I write to express my position on one preliminary matter addressed by the majority. Specifically, I believe that the majority’s resolution of Filter’s challenge to the Commission’s recognition of local law, while reaching the correct result, is problematic.

In The State Group Industrial (USA) Unlimited v. Murphy & Associates Industrial Services , a 12-page opinion, Judge Robb writes:

The State Group Industrial (USA) Limited (“State Group”) appeals from the trial court’s judgment awarding State Group actual damages but denying State Group’s request for relief under Indiana Code section 34-24-3-1. State Group raises the sole issue of whether the trial court improperly denied it relief under this statute based on a contract provision. Concluding the Contract does not proscribe the relief sought by State Group, we remand with instructions that the trial court determine whether and to what extent damages under this statute are warranted. * * *

Recovery under the Crime Victims Statute is not based on a breach of contract, but must be predicated on an independent tort. * * *

The indemnification clause in this case lacks the requisite specificity, as it in no way refers to criminal or fraudulent conduct on the part of M&A. In this sense, it “contains no clear statement that would give [State Group] notice of the harsh burden that complete indemnification imposes.” Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 480 (Ind. Ct. App. 2000), trans. denied. We hold that the Contract did not protect M&A from liability under the Crime Victims Statute stemming from M&A’s intentional misrepresentations.

Conclusion: We conclude that the Contract did not explicitly protect M&A from liability for damages stemming from its own fraudulent representations. Having found that the Contract did not preclude damages under the Crime Victims Statute, we remand to the trial court with instructions that it exercise its discretion in determining whether to award damages and the amount of any damages.6 See MCS LaserTec, Inc. v. Kaminski, 829 N.E.2d 29, 35 (Ind. Ct. App. 2005) (“[T]he award of damages above the actual damages is within the discretion of the trial court.”). 5 Even in the absence of a specific and explicit indemnification statement, we have upheld release clauses where the damages “are inherent in the nature of the activity.” Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 585 (Ind. Ct. App. 2006), trans. denied. We are not willing to hold that the risk that a party to a contract will commit the crime of deception is inherent in the nature of business transactions. 6 As the trial court has already heard all the relevant evidence, the trial court should make this determination without holding any additional hearings.

In In the Matter of the Adoption of Z.D., an 8-page opinion concerning grandparent visitation, Judge Mathias writes:

Karen Dawson (“Dawson”) filed a petition to adopt her grandchild, Z.D., in Benton Circuit Court. Before her petition was adjudicated, the Tippecanoe Circuit Court granted Z.D.’s foster parent’s adoption petition. Dawson then filed a motion to correct error and a petition to intervene in the Tippecanoe Circuit Court, but her motions were denied. Dawson appeals and argues that the Benton Circuit Court had exclusive jurisdiction over the adoption of Z.D., and therefore, the Tippecanoe Circuit Court’s decree of adoption is void. We affirm. * * *

From the record before us, it appears that the TCDFC was acting in Z.D.’s best interests when it refused to consent to the adoption of Z.D. by Dawson. Dawson’s son and Z.D.’s father is a convicted child molester whose parental rights have been terminated, yet Dawson indicated that she would allow her son to maintain contact with Z.D. Appellant’s App. pp. 43-44, 47. For this reason, the Benton County Department of Child Services also opposed Dawson’s petition to adopt Z.D. Appellant’s App. p. 51.

We find further support for our conclusion in the following well-settled principles of Indiana law. Grandparent visitation rights survive the adoption of the child by a stepparent or a “person who is biologically related to the child as” a grandparent, a sibling, an aunt or uncle, or a niece or nephew. Ind. Code § 31-17-5-9 (1998). However, “[i]f a person not included in this list adopts a grandchild, the grandparent no longer has a right to seek visitation.” In re Guardianship of J.E.M., 870 N.E.2d 517, 521 (Ind. Ct. App. 2007). Therefore, Dawson no longer has a right to seek visitation with Z.D.

For all of these reasons, we conclude that Dawson was not entitled to notice of Z.D.’s foster parent’s adoption petition and the Tippecanoe Circuit Court properly denied Dawson’s motion to correct error and motion to intervene. Furthermore, the Benton Circuit Court did not err when it dismissed Dawson’s petition to adopt Z.D. Affirmed.

Jeffrey Douglas v. State of Indiana

In Donald L. Garriott, et al v. Edward L. Peters, et al , a 20-page opinion, Judge Robb writes:

Case Summary and Issues: Donald, Larry, Mark, and Dennis Garriott appeal the trial court’s denial of their motion for summary judgment and its subsequent judgment following trial denying their claim for title by adverse possession and resolving a boundary dispute between them and Edward Peters and Patsy Christian (referred to collectively as “the Appellees”). The Garriotts raise four issues, but we need address only two: whether the trial court improperly denied the Garriotts’ motion for summary judgment and whether the trial court erred in finding that the Garriotts failed to prove the elements of their adverse possession claim. Although we conclude the trial court properly denied the Garriotts’ motion for summary judgment, we also conclude the trial court improperly found that the Garriotts failed to establish title by adverse possession. We therefore reverse. * * *

Conclusion: Although we conclude the trial court properly denied the Garriotts’ motion for summary judgment, we also conclude that the trial court’s judgment following trial was clearly erroneous. Reversed.

NFP civil opinions today (9):

In the Matter of M.P.T. v. State of Indiana (NFP)

Nancy J. McDonough v. Scott McDonough (NFP)

Regina Fender v. Bartholomew Co. Dept. of Child Services (NFP)

Horace Franks, Jr. v. Cheryl Rush (NFP)

Parkland, Inc. d/b/a Village Green Mobile Home Park v. Alanya (Eisenmenger) Cunningham (NFP)

Term. of Parent-Child Rel. of A.B. and M.B., IV, and M.B. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP)

Glory (Jordan) Harris v. Jonathan J. Jordan (NFP)

Matthew McHugh v. Rebecca L. Lockard, et al (NFP)

Carl L. Peters v. J. Russell Sutton (NFP)

NFP criminal opinions today (12):

Stanley Mooney v. State of Indiana (NFP)