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Friday, October 29, 2010

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In John Taele and Sarah Taele v. State Farm Mutual Automobile Insurance Co., a 14-page, 2-1 opinion, Judges Barnes writes:

The issue in this case is whether the Taeles's claims of emotional distress caused by witnessing the accident that killed their daughter are a compensable “bodily injury” within the definition of the State Farm policy. State Farm does not deny that the Taeles have adequately stated a claim for negligent infliction of emotional distress (“NIED”) against Figueroa. * * *

Given Jakupko, Elliott, D.L.B., Bush, and Armstrong, we must conclude that the Taeles are not entitled to recover UM benefits under the State Farm policy because they themselves were neither directly impacted nor directly physically injured by the accident that killed their daughter, notwithstanding the fact that they may have a valid NIED claim against Figueroa under Groves, unlike the parents in Bush and Armstrong. It does seem slightly incongruous that persons having NIED claims arising in a Shuamber-type scenario may be entitled to recover UM benefits for “bodily injury,” but those having equally valid NIED claims arising in a Groves-type scenario are not so entitled. Nonetheless, we presume that if our supreme court intended Groves-type claims to be covered under the definition of “bodily injury” for purposes of insurance policy and UM statutory interpretation, it would have mentioned that case at some point in Jakupko, Elliott, D.L.B., or Bush. * * *

The trial court properly granted summary judgment in favor of State Farm. We affirm.

FRIEDLANDER, J., concurs.
CRONE, J., dissents with separate opinion. [that begins, as p. 12 of 14] I commend Judge Barnes on his scholarly survey of our supreme court's NIED jurisprudence, and I agree with his assessment that it seems “slightly incongruous that persons having NIED claims arising in a Shuamber-type scenario may be entitled to recover UM benefits for 'bodily injury,' but those having equally valid NIED claims arising in a Groves-type scenario are not so entitled.” Slip op. at 9.

That said, I respectfully disagree with his conclusion that the Taeles “did not sustain any 'direct impac' in the accident that killed their daughter” and that therefore their NIED claims against Figueroa “arise under the Groves rule, not the Shuamber 'direct impact' test[.]”

In J.M. v. D.A., a 19-page, 2-1 opinion by Judge Brown, Judge Bradford's dissent begins:
While I concur with the majority's conclusion that the trial court's order denying Father's petition to modify his child support obligation was not clearly erroneous, I respectfully dissent from its conclusion that the trial court abused its discretion in finding Father in contempt.
In Sean H. Chiszar v. State of Indiana , a 23-page opinion, Judge Najam writes:
Sean Chiszar appeals his convictions for two counts of Voyeurism, as Class D felonies; three counts of Possession of Child Pornography, Class D felonies; Possession of Paraphernalia, as a Class A misdemeanor; Possession of Marijuana, as a Class A misdemeanor; and Battery, as a Class A misdemeanor, following a bench trial. He presents five issues for our review, which we consolidate and restate as four issues:
1. Whether the voyeurism statute is void for vagueness.
2. Whether the trial court abused its discretion when it admitted evidence obtained during a warrantless search.
3. Whether a subsequent search warrant was supported by sufficient probable cause.
4. Whether the State presented sufficient evidence to support two of his convictions. * * *

Chiszar has not demonstrated that the voyeurism statute is unconstitutionally vague. The trial court did not abuse its discretion when it admitted evidence deputies obtained after Chiszar had consented to the search of his garage. There was probable cause to support the search warrant. And the State presented sufficient evidence to support Chiszar's convictions for one count of voyeurism and battery. Chiszar does not challenge the sufficiency of the evidence with regard to his other convictions. Affirmed.

In Douglas Denzell v. State of Indiana, a 9-page opinion, Judge Najam writes:
Douglas Denzell appeals the trial court’s denial of his motion to dismiss a criminal charge against him. Denzell presents a single issue for review: whether the denial of his motion to dismiss violated his due process rights because, due to his incompetence to stand trial, he had already been confined longer than the maximum sentence the trial court could have imposed following a conviction. We affirm. * * *

We analogize this situation to periods of pretrial confinement pending trial as contemplated by Indiana Rule of Criminal Procedure 4. That rule refers to “a period in aggregate embracing more than” six months or one year, depending on the subsection. See Ind. Cr. R. 4(A), (C). The use of the “aggregate” term shows that Criminal Rule 4 contemplates tacking periods of confinement for purposes of calculating a total period of confinement. Calculating the period of confinement in the present case should be treated similarly. Thus, here, where Denzell has been restored to competency and then decompensated, resulting in more than one period of confinement under a charge, the aggregate period of confinement should be used to determine whether he has satisfied the test for discharge set out in Davis and applied in Habibzadah.

In Y.G. v. Review Board - Y.G. appeals the Review Board’s decision to deny him unemployment benefits. We affirm.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of A.K.; S.K. v. IDCS (NFP)

Peters Broadcast Engineering v. WROI-FM (NFP)

NFP criminal opinions today (7):

In State of Indiana v. Lynn Wilson (NFP), a 10-page opinion, Judge Najam writes:

The State appeals the post-conviction court's grant of Lynn Wilson's petition for post-conviction relief. The State presents a single issue for our review, namely, whether the post-conviction court erred when it granted Wilson's petition despite its conclusion that he could not show the likelihood of a different outcome had his appellate counsel raised an omitted issue on direct appeal. We reverse.
Rebecca Reed-Harrison v. State of Indiana (NFP)

Ivette Haylett v. State of Indiana (NFP)

Charles Huntley v. State of Indiana (NFP)

Joel Williams v. State of Indiana (NFP)

Michael Clay v. State of Indiana (NFP)

Tracy D. Price v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2010 12:17 PM
Posted to Ind. App.Ct. Decisions