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Thursday, September 30, 2010

Ind. Decisions - Supreme Court posts several eagerly anticipated opinions

In Thomas P. Donovan v. Grant Victoria Casino & Resort, L.P., a 13-page, 3-1-0 opinion, the Court holds that casinos may exclude card counters. Justice Sullivan writes:

An owner of an Indiana business has long had the absolute right to exclude a visitor or customer, subject only to applicable civil rights laws. This long-standing common law right of private property owners extends to the operator of a riverboat casino that wishes to exclude a patron for employing strategies designed to give the patron a statistical advantage over the casino. The Riverboat Gambling Act, which gives the Indiana Gaming Commission exclusive authority to set the rules of licensed casino games, does not abrogate this common law right. * * *

Conclusion. We affirm the judgment of the trial court.

Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with separate opinion.
Rucker, J., not participating.

Justice Dickson's dissent concludes: I agree with the Court of Appeals conclusion that Grand Victoria should not be allowed to exclude the plaintiff from playing blackjack simply because the casino fears that he may be exceptionally good at it.

In Caesars Riverboat Casino, LLC v. Genevieve M. Kephart, an 11-page, 4-1 opinion, Kephart contended Caesars owed her a common law duty to protect her from its enticements to gamble because it knew she was a pathological gambler. Justice Rucker writes:
A casino sued a patron for unpaid counter checks. The patron, a pathological gambler, countersued for damages because the casino knowingly enticed and encouraged the patron to gamble. We granted transfer to determine if casino patrons have a common law cause of action for damages stemming from the consequences of gambling losses. * * *

[I] In this case, not only does the statutory scheme cover the entire subject of riverboat gambling, but the statutory scheme and Kephart’s common law claim are so incompatible that they cannot both occupy the same space. As the sole regulator of riverboat gambling, the Commission has adopted detailed regulations at the legislature’s direction. * * *

Kephart’s common law claim would hold Caesars to a similar standard regarding known pathological gamblers in absence of the voluntary exclusion program. The existence of the voluntary exclusion program suggests the legislature intended pathological gamblers to take personal responsibility to prevent and protect themselves against compulsive gambling. The legislature did not require casinos to identify and refuse service to pathological gamblers who did not self-identify. Kephart’s claim directly conflicts with the legislature’s choice. To allow Kephart’s claim to go forward under the common law would shift primary responsibility from the gambler to casino. It is apparent that the legislature intended otherwise. Therefore allowing a common law negligence claim addressing behavior essentially the same as prohibited under the statutory scheme irreconcilably conflicts with the intent of the legislature.

In sum it appears to us that by unmistakable implication the Legislature has abrogated any common law claim that casino patrons might otherwise have against casinos for damages resulting from enticing patrons to gamble and lose money at casino establishments. The trial court thus erred in denying Caesars’ motion to dismiss Kephart’s counterclaim under Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted. * * *

[II] Although Kephart does not have a common law cause of action against Caesars for damages stemming from the consequences of her gambling losses, nothing in this opinion precludes Kephart from controverting any element of Caesars’ prima facie case or from raising matters outside the scope of Caesars’ prima facie case.

Conclusion. We reverse the judgment of the trial court.

Shepard, C.J., and Sullivan, J., concur.

Boehm, J., concurs in result with separate opinion. [A sample] This case is, in my view, a good example of how the Webb framework generates more confusion than light, and I am pleased that the Court recognizes that Webb analysis is not always useful. But I do not share the view that it is ever helpful.

Dickson, J., dissents with separate opinion. In my view, the result in this case is particularly disturbing. The Court today holds that a gambling casino may with impunity entice a person the casino knows to be a pathological gambler by offering free transportation from Tennessee to the Indiana casino, providing her with a free hotel room, food, and alcohol, and then extending her credit to gamble at the casino where she not surprisingly suffers $125,000 in casino gambling losses. These facts call for application of the well-established principle of Indiana common law that business owners must use reasonable care to protect their customers while on the business premises. Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991). * * *

Separately, I commend Justice Boehm's separate concurrence, which thoughtfully ques-tions the Webb v. Jarvis three-factor framework and urges that we revisit our traditional but re-dundant application of foreseeability to analyze both duty and proximate cause, and I encourage a careful consideration of his law journal article and its recommendations.

In Sheehan Construction Co., Inc., et al. v. Continental Casualty Co., et al, an 18-page, 3-2 opinion, Justice Rucker writes that the main issue in this case is whether a standard commercial general liability (“CGL”) insurance policy covers an insured contractor for the faulty workmanship of its subcontractor:
In this case the trial court entered summary judgment in favor of Insurers on grounds that there was no damage to property “other than to the structural components of the homes themselves” and thus there was no “occurrence” or “property damage.” Appellants App. at 27. On this point the trial court erred. As we have explained faulty workmanship may constitute an accident and thus an occurrence depending on the facts. More specifically, if the defective work of the subcontractors were done intentionally instead of “without intention or design”, then it is not an accident. Otherwise the opposite is true. Here, none of the parties' Trial Rule 56 materials address the question of whether the faulty workmanship was the product of intentional versus unintentional conduct. And accordingly the trial court reached no conclusion on this point.

Conclusion. The judgment of the trial court is reversed. This cause is remanded for further proceedings.

Dickson and Boehm, JJ., concur.

Shepard, C.J., dissents with separate opinion.[that concludes] As the majority recognizes, there is in the country a divide in the case law on the point we decide today. I would put us on the other side of this divide.

Sullivan, J., dissents with separate opinion in which Shepard, C.J., joins. [that begins] My review of the authorities convinces me that an “occurrence” under a CGL policy in the context of these cases is accidental damage caused by an insured (or an insured's subcontrac-tors) to property owned by third parties, but not the costs of repairing defective work performed by an insured (or an insured's subcontractors).

Posted by Marcia Oddi on September 30, 2010 02:52 PM
Posted to Ind. Sup.Ct. Decisions