Tuesday, December 14, 2010
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Presbytery of Ohio Valley, Inc., et al. v. OPC, Inc., et al. , an 18-page opinion, Chief Judge Baker writes:
In this appeal, a local congregation that was a part of the national Presbyterian Church petitioned to leave the national Church. When the governing Church body indicated that it might not permit the local congregation to retain the property on which it was situated, the local congregation truncated the process and refused to acknowledge the Church's right to the property. The dispute made its way into the judicial system, and we now conclude that because (1) the local congregation was part of the national Church and accepted the benefits of being part of a national organization, (2) the local congregation acknowledged in its bylaws that it was bound by the national Church Constitution and could not amend its bylaws to conflict with that document, and (3) the Church Constitution contains a clause providing that all property titled to local congregations is held in trust for the use and benefit of the national Church, judgment must be entered in favor of the governing judicatory bodies of the national Church—the Appellants. * * *In The Hunt Construction Group, Inc., et al. v. Shannon D. Garrett , a 21-page, 2-1 opinion, Judge Barnes writes:
The Appellants argue that the trial court erred by applying the neutral principles of law approach rather than the polity approach to this property dispute. But even if the neutral principle approach is found to apply herein, the Appellants contend that they should prevail. We conclude that when the neutral principles of law approach is applied correctly, the Appellants prevail. Consequently, we reverse and remand with instructions to enter summary judgment in the Appellants' favor, together with a declaratory judgment that Olivet has no right, title, or interest in the Oak Hill Property, and a constructive trust on that property in favor of the Presbytery.
On October 16, 2006, Garrett, an employee of Baker Concrete, was injured at the jobsite when another employee of Baker Concrete was removing a piece of forming material above her and the forming material fell, striking Garrett. Garrett sustained injuries to her head and left hand.In Kathy Niegos v. Arcelor Mittal Burns Harbor LLC, f/k/a ISG Burns Harbor, LLC, a 7-page opinion, Judge writes:
Garrett filed a complaint for negligence against Hunt Construction. Garrett then filed a motion for partial summary judgment regarding Hunt Construction's duty to her. Garrett argued that Hunt Construction had assumed a nondelegable duty to her through its contract and that it had assumed a duty to her through its conduct. * * *
Hunt Construction was not vicariously liable to Garrett, and the trial court erred by granting summary judgment to Garrett on this issue. However, Hunt Construction owed a duty to Garrett through its contracts, and the trial court properly granted summary judgment to Garrett on that issue and properly denied Hunt Construction's motion for summary judgment on that issue. We affirm in part and reverse in part.
CRONE, J., concurs.
FRIEDLANDER, concurs in part and dissents in part with separate opinion. [that begins, at p. 18] I concur with the Majority that Hunt Construction, by virtue of its relationship to Baker Concrete, did not owe a nondelegable duty to Garrett so as to support a finding of vicarious liability. I respectfully dissent, however, from the Majority's conclusion that Hunt Construction independently owed a duty to Garrett based on contract. I would further conclude that Hunt Construction did not assume a duty to Garrett based on conduct.
Appellant/Petitioner Kathy Niegos appeals from the Indiana Worker’s Compensation Board’s (“the Board”) dismissal of her claim, pursuant to the Occupational Disease Act (“the ODA”), against ArcelorMittal Burns Harbor LLC, her late husband’s former employer. Niegos contends that the Board erroneously concluded that the “absolute bar” provision of ODA should apply when she has resolved some, but not all, claims against third-party defendants. ArcelorMittal counters that receipt of any third-party settlement relieves it of any liability under the ODA and that Niegos’s failure to notify it before accepting third-party settlements forfeits her rights under ODA. Concluding that Niegos’s failure to notify ArcelorMittal before entering into third-party settlements is fatal to her ODA claim, we affirm. * * *NFP civil opinions today (2):
It is undisputed that Niegos failed to notify ArcelorMittal of any of the settlements she entered into with third-party defendants. (Appellant’s App. 25). In so doing, Niegos signed away ArcelorMittal’s rights without its consent or notice, preventing it from protecting its interests during settlement negotiations. As such, Niegos has forfeited her right to proceed against ArcelorMittal under the ODA, and the Board properly dismissed her claim. We affirm the judgment of the Board.
KIRSCH, J., concurs.
CRONE, J., concurs in result.
NFP criminal opinions today (6):
Posted by Marcia Oddi on December 14, 2010 11:16 AM
Posted to Ind. App.Ct. Decisions