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Thursday, December 30, 2010

Ind. Decisions - Month-long, year-end desk-clearing still continues: Court of Appeals issues 7 today (and 18 NFP)

For publication opinions today (7):

Richmond State Hospital, et al. v. Paula Brattain, Francis Ernst, et al. is the state employees' back pay suit where plaintiffs were awarded $42 million in trial court - see list of ILB entries here. Here is the Oct. 8, 2010 COA opinion. Today Judge Crone writes in a 5-page opinion on rehearing:

Richmond State Hospital and all other similarly situated State Institutions and Agencies (collectively referred to as “the State”) and Jennie Veregge (who replaced Paula Brattain), Francis Ernst, Rebecca Strong, and Terry Sutcliffe (collectively “the Employees”) petition for rehearing in Richmond State Hospital v. Brattain, 935 N.E.2d 212 (Ind. Ct. App. 2010). We deny the State’s petition and grant the Employees’ petition to clarify our instructions on remand for determining the merit Employees’ damages. * * *

To sum up, the merit Employees are entitled to back pay for the period beginning either ten days before the filing of the July 29, 1993, complaint or ten days before the filing of their individual administrative grievances, whichever comes first, until the date that the State abolished the split class system. The trial court must determine whether the State terminated the split class system on September 12 or September 19, 1993. See Richmond, 935 N.E.2d at 238, 242. In all other respects, we affirm our original opinion.

In Dewayne Rhoiney v. State of Indiana , an 11-page opinion, Judge Riley concludes:
we find that based on the record and the case law available at the time of Rhoiney’s sentencing, appellate counsel should have recognized the trial court’s imposition of consecutive sentences in the absence of any available aggravators as a significant and obvious issue; her failure to raise this issue cannot be explained by any reasonable strategy. See Ben-Yisrayl, 738 N.E.2d at 260-61. Therefore, we conclude that Rhoiney’s appellate counsel’s representation fell below an objective standard of reasonableness, and her error was so serious that it resulted in a denial of the right to counsel guaranteed to Rhoiney by the Sixth Amendment. This deficient performance prejudiced Rhoiney because there is more than a very reasonable probability that if the issue had been raised, Rhoiney’s sentence would have been different. Therefore, we reverse the order of the post-conviction court and remand to that court for resentencing.
In K.A. v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
The juvenile court entered dispositional orders under two different cause numbers placing fifteen-year-old K.A. on probation. When K.A. allegedly violated his probation, the juvenile court held a hearing and modified its dispositional orders. K.A. now appeals the modification of his disposition. He contends that the juvenile court violated his due process rights by modifying his disposition after a hearing at which the State presented no evidence of the alleged probation violation. We conclude that because the modification was predicated on the alleged probation violation, principles of fundamental fairness required the State to present evidence of the allegation. Because K.A. was denied due process, we reverse.
In Kathy Inman v. State Farm Mutual Automobile Insurance Co. . a 13-page opinion, Judge Riley writes:
Appellant-Plaintiff, Kathy Inman (Inman), appeals the trial court's denial of her motion for prejudgment interest pursuant to Indiana Code section 34-51-4-5 in her action against Appellee-Defendant, State Farm Mutual Automobile Insurance Company (State Farm). We reverse and remand with instructions. * * *

The purpose of the TPIS is to encourage settlement and to compensate the plaintiff for the lost time value of money. Johnson v. Eldridge, 799 N.E.2d 29, 33 (Ind. Ct. App. 2003), trans. denied. If a defendant has the option to terminate the dispute at a known dollar cost, and chooses not to do so, that defendant, and not the plaintiff, should bear the cost of the time value of money in the intervening period if the ultimate result is within the parameters set by the legislature. * * *

Here, Inman argues that the trial court should have granted her motion and awarded her prejudgment interest because she met all of the requirements of the TPIS. State Farm responds that Inman does not meet the statutory requirements because an underinsured motorist claim arises out of a contract and is not a civil action arising out of tortious conduct as required by the statute. State Farm also argues that it is not liable for any amount beyond the $100,000 policy limit. We address each of these contentions in turn. * * *

Although no Indiana cases have addressed this issue, we find Woods v. Farmers Insurance of Columbus, Inc., 666 N.E.2d 283 (Ohio Ct. App. 1995), to be instructive. * * *

We find the reasoning of these cases, as well as similar ones in other jurisdictions, to be persuasive. * * * We therefore hold that a claim against one's insurer for underinsured motorist benefits is a
civil action arising out of tortious conduct, and the award of prejudgment interest pursuant to Indiana Code section 34-51-4-5 in such a case is appropriate.

State Farm also responds that prejudgment interest is not appropriate in this case because Inman has already reached the $100,000 limit on her policy, and an award of prejudgment interest would improperly exceed the policy limit. Although no Indiana cases have addressed this issue, Potomac Insurance Company v. Howard, 813 S.W.2d 557 (Tex. Ct. App. 1991), is instructive. * * *

Here, based upon the purpose of the TPIS as well as the public policy considerations as already stated in Denham, we hold that an insurer can be required to pay prejudgment interest in excess of uninsured and/or underinsured motorist limits in an action brought by an insured for failure to pay uninsured and/or underinsured motorist coverage. Our holding today is consistent with the United States Northern District of Indiana Court's decision in Schimizzi v. Illinois Farmers Insurance Company, 928 F.Supp. 760 (N.D. Ind. 1996), which awarded Schimizzi $250,000, her uninsured motorist policy limit, as well as $46,799.20 in prejudgment interest.

This holding is also consistent with the Indiana supreme court's treatment of prejudgment interest in medical malpractice cases where that court has held that a qualified health care provider is responsible for the collateral litigation expense of prejudgment interest even if the expense brings the provider's total liability over the cap. * * *

Based upon the foregoing, we conclude that the trial court erred in denying Inman's motion for prejudgment interest pursuant to Indiana Code section 34-51-4-5. Reversed and remanded with instructions that the trial court's order be amended to require payment of prejudgment interest consistent with this opinion.

In Christopher Jewell v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
Christopher Jewell appeals his convictions and aggregate forty-year term for six counts of sexual misconduct and child molesting. Jewell was arrested and charged for another alleged offense not at issue here. He posted bond and secured counsel. While that charge was pending, law enforcement enlisted the victim in this case to call Jewell and elicit incriminating statements relating to his sexual misconduct. The calls were recorded. Jewell was charged thereafter with the instant sex offenses, and Jewell’s recorded statements were introduced against him at trial. Jewell argues that the statements were procured and admitted in violation of his federal and state constitutional rights to counsel. We conclude that Jewell’s statements were not obtained unconstitutionally. The right to counsel is offense-specific and attaches only after adversarial judicial proceedings have commenced. Although Jewell had been charged and had hired counsel in an unrelated case, he had not been charged with the present crimes when the subject phone calls took place. Accordingly, Jewell’s right to counsel for this proceeding had not attached, and the investigatory phone calls were permissible. We also find that Jewell’s aggregate sentence is not inappropriate in light of the nature of his offenses or his character. We affirm the judgment and sentence of the trial court.
In Paternity of R.M.; K.B. v. S.M., a 22-page, 2-1 opinion, Judge Brown writes:
K.B. (“Putative Father”) appeals the trial court's order granting the motion filed by S.M. (“Mother”) to dismiss his petition to establish paternity of Mother's child, R.M., based on the doctrine of laches. Because Mother designated evidence in support of her motion to dismiss, we review the trial court's order as one granting summary judgment. Putative Father raises three issues, one of which we find dispositive, that is whether the designated evidence supports the trial court's conclusion that Putative Father's petition to establish paternity is barred by laches as a matter of law. We reverse and remand. * * *

VAIDIK, J., concurs.

NAJAM, J., dissents with separate opinion. [that concludes] A trial court exercises its sound discretion when acting on an equitable defense such as laches. In re K.H., 709 N.E.2d at 1036. Putative Father has not shown that the trial court abused its discretion when it granted Mother's motion to dismiss considering Putative Father's failure to designate any evidence, Mother's designated evidence, and the reasonable inferences from that evidence. The designated evidence supports the trial court's conclusion that Putative Father's petition is barred by laches. I would, therefore, affirm the trial court's dismissal of Putative Father's petition.

In Roscoe C. Fry, II v. State of Indiana , a 9-page opinion, Judge Brown writes:
Roscoe C. Fry II, pro se, appeals the trial court's denial of his motion to correct erroneous sentence. Fry raises two issues, which we revise and restate as whether the court erred in denying Fry's motion. The State raises the issue of whether Fry's appeal is moot. We reverse and remand.
NFP civil opinions today (4):

Term. of Parent-Child Rel. of S.H., et al.; A.M. v. IDCS (NFP)

Paternity of C.B.; D.B. v. A.C. (NFP)

Z.T., Alleged to be C.H.I.N.S.; S.W. v. I.D.C.S. (NFP)

C.S. v. Review Board (NFP)

NFP criminal opinions today (14):

Charles Hartsell, Jr. v. State of Indiana (NFP)

Kenneth Hopper v. State of Indiana (NFP)

Kenny Hawkins v. State of Indiana (NFP)

Donnie R. Pierce v. State of Indiana (NFP)

Jeffrey Adams v. State of Indiana (NFP)

Troy H. Worthington, Sr. v. State of Indiana (NFP)

Johnny N. Standberry v. State of Indiana (NFP)

Bernard Markey v. State of Indiana (NFP)

Dione J. Osuna v. State of Indiana (NFP)

Chester L. Tripplett v. State of Indiana (NFP)

Opie Glass v. State of Indiana (NFP)

Billy R. Case v. State of Indiana (NFP)

Wesley Crabtree v. State of Indiana (NFP)

Hezekiah Colbert v. State of Indiana (NFP)

Posted by Marcia Oddi on December 30, 2010 01:04 PM
Posted to Ind. App.Ct. Decisions