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Wednesday, October 07, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (2):

In Buckeye State Mutual Insurance Co. v. Keith Carfield, et al, a 9-page, 2-1 opinion, Justice Riley writes:

Buckeye raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in concluding that Keith was entitled to coverage under an insurance policy issued by Buckeye, his insurance carrier, because the truck involved in the accident was furnished or available for his regular use. * * *

Although the facts before us indicate that there was a clear periodic use of the Silverado by Keith, we agree with the trial court that this does not reach the level of consistent, regular use called for under the policy's exclusion. Because the vehicle is a farm truck, twice yearly and for a limited time, the vehicle would be used on Keith's fields. However, depending on who was driving the heavy farm equipment, Keith or Weldon would be driving the truck. Thus, even during these sixty-two days that the truck was available for Keith's use, it was not furnished to him nor did he drive the Silverado on a routine or recurring basis. Therefore, we find that the exclusion does not apply and Keith is entitled to coverage under Buckeye's policy. * * * Affirmed.

FRIEDLANDER, J., concurs.
BAKER, C.J., dissents with separate opinion. [which concludes] I believe that both the trial court and the majority split hairs by concluding, based on these facts, that although the truck was “available” to Carfield during the farming seasons, it was not “available” for his “regular” use because he did not generally use it outside of those two seasons. This truck was a farm truck, to be used for farming purposes. Its primary usefulness occurred during the farming seasons, and during those seasons, Carfield used it every day. In the off seasons, Carfield continued to use it, albeit less frequently. He did not need to ask permission to use it, he changed the truck's oil, and the vehicle spent the night at his house more than ten times. I believe that his recurring use of the truck over a period of four years, including heavy usage during the farming seasons, constitutes “regular” use. Therefore, I would reverse.

In LaGrange County Regional Utility District v. Jerry Bubb, et al , a 15-page opinion, Chief Judge Baker writes:
Here, we are presented with a matter of first impression, namely, whether the Indiana Utility Regulatory Commission (IURC) properly reviewed the rates and fees charged by a regional sewage district at the request of a campground owner. Indiana Code section 13-26-11-2.1 (the Statute), which became effective on January 1, 2005, allows a campground owner to request the IURC to review the fees charged by certain regional utility districts, including regional sewage districts. The Statute also provides that when such a request is made, the IURC's appeals division (CAD) is to conduct an informal review, which includes a “prompt and thorough investigation of the dispute.” I.C. § 13-26-11-2.1(d). If the IURC concludes that the campground owner was charged an excessive fee, the regional sewer district “shall” refund the excessive amount. Id. at -2.1(e).

Appellant-respondent LaGrange County Regional Utility District (LaGrange) appeals an order issued by the appellee-intervenor IURC, requiring it to refund an excessive fee to appellees-petitioners Jerry and Sandy Bubb (the Bubbs), owners of Gordon's Campground, arguing that the IURC lost jurisdiction over the dispute. In the alternative, LaGrange contends that even if the IURC retained jurisdiction over the dispute, it did not have the authority to grant the ordered relief. Finding that the IURC retained jurisdiction and that it had the authority to order the relief granted, we affirm the judgment of the IURC. * * *

A. The Rule. * * * [W]e emphasize that the IURC's failure to promulgate any rules to implement the Statute is inappropriate. We recognize that the Statute uses the permissive term “may,” I.C. § 13-26-11-2.1(i), when addressing the IURC's duty to adopt rules rather than the mandatory term “shall.” Nevertheless, if the IURC had adopted rules establishing how it would proceed, a portion of this dispute could have been avoided.

B. The Statute. In a related argument, LaGrange maintains that the CAD did not conduct a timely investigation or render its disposition in a timely manner as required by the Statute. The Statute provides, in relevant part, that when a campground owner requests a review, the CAD “shall provide an informal review of the disputed matter. The review must include a prompt and thorough investigation of the dispute.” I.C. § 13-26-11-2.1(d). * * *

We find the instant case to be more analogous to Hancock REMC. Specifically, similar to the statute at issue in Hancock REMC, the Statute does not contain language that restrains the IURC from acting if the CAD fails to conduct a prompt investigation. Likewise, the Statute does not provide for an adverse consequence or state that the IURC loses jurisdiction if the CAD fails to conduct a prompt investigation.

Furthermore, unlike the statute at issue in United REMC, the “prompt” investigation requirement does not go to the essence of the Statute. * * *

III. Authority to Grant Relief. LaGrange maintains that even if the IURC retained jurisdiction, it did not have authority to grant relief because the CAD's review was untimely. * * *

Furthermore, the Statute does not contain any language limiting the IURC's ability to grant relief if the CAD does not complete its review of the dispute within a certain time period. Indeed, such a rule would be illogical, inasmuch as relief would be foreclosed to an overcharged campground owner through no fault of his own. We will not presume that the legislature intended such an absurd and unjust result, especially in light of the plain language of the Statute. See Cubel v. Cubel, 876 N.E.2d 1117, 1120 (Ind. 2007) (stating that “[t]he Court presumes that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals”). Therefore, we conclude that the IURC had the authority to grant relief and affirm its decision. The decision of the IURC is affirmed.

This opinion, State of Indiana v. Misty Moore, is 25-pages long, with the dissent beginning on p. 7. Chief Judge Baker's majority opinion concludes:
Under these circumstances, we can only conclude that where, as here, inmates have no intent or plan to flee from detention in the penal facility in which they are confined, they cannot be guilty of the crime of escape when they merely enter restricted areas of the facility without permission. They may be in violation of facility rules, and can be punished accordingly, but have not committed a crime. We acknowledge that the relevant statutes could be drafted more artfully and explicitly, but given the well-established rules that we construe penal statutes strictly against the State and that ambiguities should be resolved in favor of the accused, Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009), close calls such as this one must be resolved in the defendants‘ favor. Therefore, we find that the trial court did not abuse its discretion by dismissing the charges herein. The judgment of the trial court is affirmed.

RILEY, J., concurs.
FRIEDLANDER, J., dissents with opinion. [which begins] Upon my view that Ind. Code Ann. § 35-44-3-5 (West, PREMISE through 2009 Public Laws approved and effective though 4/20/2009) applies where incarcerated persons escape from a cell in a penal facility, but did not intend to leave the boundaries of the penal facility, I respectfully dissent from the decision to affirm the dismissal of escape charges against the Inmates. * * * [and concludes] I believe that when the Inmates were locked in their cells in the Greene County Jail, they were lawfully detained therein, and if they broke out of the cell through the ceiling as alleged, they committed the offense of escape within the meaning of I.C. § 35-44-3-5. I would reverse the trial court and reinstate the charges.

Adam Gaynor v. State of Indiana - "Adam Gaynor was convicted of multiple drug offenses. He argues two of his convictions, manufacturing methamphetamine and maintaining a common nuisance, were not supported by sufficient evidence. We affirm his conviction of manufacturing methamphetamine, but we reverse his conviction of maintaining a common nuisance because the State did not prove he had any control over the premises."

NFP civil opinions today (0):

NFP criminal opinions today (7):

Lymann Lamarr Spurlock v. State of Indiana (NFP)

Derek D. Hardy v. State of Indiana (NFP)

Henry Coleman v. State of Indiana (NFP)

Marco Aca v. State of Indiana (NFP)

Teresa M. Vinson v. State of Indiana (NFP)

Samuel Wait v. State of Indiana (NFP)

Deborah J. Schwartz v. State of Indiana (NFP)

Posted by Marcia Oddi on October 7, 2009 12:27 PM
Posted to Ind. App.Ct. Decisions