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Tuesday, May 13, 2008

Ind. Decisions - Supreme Court issues four opinions late this afternoon, including the "MySpace case"

In Querrey & Harrow, LTD, et al v. Transcontinental Insurance Co., a 5-page, 4-1 opinion, Justice Dickson writes:

Addressing an issue of first impression in Indiana, the Court of Appeals holds that an excess insurer may not bring an action for legal malpractice against the insured's attorneys. Querry & Harrow v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. 2007). We agree and now adopt this opinion as to all issues addressed. Ind. Appellate Rule 58(A)(1). * * *

We adopt the opinion of the Court of Appeals. This cause is remanded for the entry of summary judgment in favor of the appellants-defendants.

Shepard, C.J., and Rucker, J., concur.
Boehm, J., concurs in result.
Sullivan, J., dissents with separate opinion. [that concludes] For the reasons discussed in these cases, I would allow an insurer to bring an action under equitable subrogation. (In a similar vein, I note that Judge Tinder predicted that our Court would allow an excess insurer to bring an action against a primary insurer under equitable subrogation for negligent defense of a claim against the insured. Phico Ins. Co. v. Aetna Cas. and Sur. Co. of Am., 93 F. Supp. 2d 982, 990 (S.D. Ind. 2000).) Any claim that an insurance company would bring against its insured’s attorney would have to be prosecuted without access to any confidential client information of any kind whatso-ever. But I would not close the courthouse door to an insurance company that is willing and able to do so.

In Andrew Lee Watts v. State of Indiana, a 9-page, 3-2 decision, Justice Sullivan writes:
Having charged Andrew Watts with murder in a tavern shooting, the State sought at trial to have the jury also instructed on the lesser-included offense of voluntary manslaughter. It was reversible error for the trial court to give the instruction over defense counsel’s objection because there was no evidence of sudden heat. * * *

The trial court erred when it instructed the jury on voluntary manslaughter in the absence of evidence of sudden heat in the record. Therefore, Watts’s conviction for voluntary manslaughter is reversed.

Dickson and Rucker, JJ., concur.
Shepard, C.J., dissents without opinion.
Boehm, J., dissents with opinion.

In State of Indiana v. Karl D. Jackson, a 6-page 3-2 opinion, Justice Dickson writes:
We hold that a conviction for Operating a Vehicle After Being Adjudged a Habitual Traffic Violator, a class D felony, in violation of Ind. Code § 9-30-10-16(a)(1), does not require proof that the person operated a vehicle with knowledge that the person's driving privileges were suspended because of a habitual traffic violator determination; rather, such a conviction requires only proof that the person operated a vehicle with knowledge that the person's driving privileges were suspended, regardless of the reason. Because of the limited remedy available to the State upon its appeal following an acquittal, however, the trial court's judgment of acquittal remains unaffected. unaffected. I.C. § 35-38-4-2(4); Casada, 825 N.E.2d at 940; O'Grady, 876 N.E.2d at 765.

Shepard, C.J., and Boehm, J., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs.

In A.B. v.State of Indiana, an 8-page, 5-0 opinion (the "MySpace case"), Justice Dickson writes:
A.B., a juvenile, appeals her adjudication as a delinquent child for her postings on the Internet site MySpace.com that, if committed by an adult, would constitute the criminal offense of Harassment. The Court of Appeals reversed, concluding that A.B.'s allegedly harassing messages were protected political speech. A.B. v. State, 863 N.E.2d 1212 (Ind. Ct. App. 2007), reh'g denied. Disagreeing with this rationale, we granted transfer, and now also reverse the trial court, but for different a reason: the State failed to prove all of the statutory elements for the offense of Harassment. * * *

Because the evidence failed to prove that A.B. made postings and comments on MySpace with the intent "to harass, annoy, or alarm" her former principal "but with no intent of legitimate communication," I.C. § 35-45-2-2(a), the requisite intent common to the six Counts on which A.B. was adjudicated a delinquent child, we reverse the judgment of the trial court.

Justice Dickson writes near the beginning of the opinion:
As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com ("MySpace"), which is central to this case. Only two witnesses testified at the fact-finding hear-ing, the school principal and A.B.'s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose "understanding [came] from talking to students and trying to go figure how to go about researching this." The principal testified: "I don't get on MySpace." The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: "A judge must not independently investigate facts in a case and must consider only the evidence presented." Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.
The Court of Appeals decision in A.B. v. State was issued April 9, 2007 - see initial ILB entry here. Since that time much has been written on this case, and related issues. See the list of ILB entries mentioning "MySpace" here.

In another social network case involving Indiana students, Jon Murray of the Indianapolis Star had a story May 10th headed "Roncalli dean sues over fake Facebook profile.". The longish report begins:

Defamation and identity fraud lawsuits have become the latest weapons of choice for educators targeted by online tormentors.

A fake online profile prompted a Roncalli High School dean to file just such a suit this week.

Cloaked in near-anonymity, the creator of the profile on Facebook used it to contact Roncalli students with inappropriate messages in Tim Puntarelli's name, an attorney for the Archdiocese of Indianapolis said.

School officials came one step closer to unmasking the person's identity Friday when a Marion County judge ordered the online social-networking site to turn over information identifying the user.

Posted by Marcia Oddi on May 13, 2008 04:41 PM
Posted to Ind. Sup.Ct. Decisions