Monday, March 21, 2011
Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)
For publication opinions today (2):
In Darryl Harris v. United Water Services, Inc. , a 17-page opinion, Judge Crone writes:
Darryl Harris (“Harris”) was employed by United Water Services, Inc. (“United Water”), a waste water treatment plant. During the time that he worked for United Water, Harris developed a bacterial infection, acid reflux, an ulcer, and gastric cancer. Harris filed a worker's compensation claim, alleging that his illnesses were caused by exposure to bacteria while working for United Water. United Water filed a motion to dismiss, arguing that his symptoms all stemmed from a particular incident when Harris was splashed in the face by waste water and that his claim had not been filed within two years of that incident. Harris argued that his medical condition was either an occupational disease or a repetitive injury, which would alter the starting date for statute of limitations analysis. A single hearing member of the Worker's Compensation Board (“the Board”) found that Harris had admitted that his condition stemmed from a single incident and granted the motion to dismiss. The full Board affirmed and adopted the single hearing member's decision. We conclude that Harris's deposition testimony does not support the Board's finding that he admitted that his condition stemmed from a single incident and that the Board applied the wrong burden of proof. Therefore, we reverse and remand for further proceedings consistent with this opinion. * * *In Larry Bowyer v. Indiana Dept. of Natural Resources, a 36-page opinion, Judge Brown writes:
In this case, the statute of limitations issue is closely related to the issue of causation. If the case proceeds to a hearing on the merits, Harris will of course bear the burden of proof on the elements of his claim. To have the case dismissed without reaching the merits of his claim, United Water has to prove its alleged grounds for dismissal. Instead, it appears that the Board expected Harris to come forward with proof of causation in order to survive United Water's motion to dismiss. Given the speculative nature of Harris's lay testimony and the lack of expert medical opinion supporting either party's theory of the case, we cannot say
with certainty that the Board would have granted the motion to dismiss had it not erroneously found that Harris conceded a crucial point and held him to an erroneous standard. Therefore, we reverse the Board's order and remand for the Board to reconsider the motion to dismiss applying the correct burden of proof.
Larry Bowyer d/b/a Lakes Limited Liability Corp. (“Bowyer”) appeals the trial court's grant of a permanent injunction and damages in favor of the Indiana Department of Natural Resources (the “DNR”). Bowyer raises four issues, which we consolidate, revise, and restate as whether the trial court's Amended Findings of Fact, Conclusions of Law and Judgment granting the DNR's complaint for a permanent mandatory injunction and damages was clearly erroneous. We affirm.NFP civil opinions today (2):
This case was initiated when the DNR filed its complaint on January 13, 2000 and has produced three published opinions as well as one opinion on rehearing from this court. On this score, both at the trial level at a hearing on November 13, 2008, as well as in this instant appeal, Bowyer has either attempted to relitigate issues which have already been decided, or at least to narrow the impact of the previous decisions, with the hope that we might read this court's previous opinions in a light more sympathetic to Bowyer's interests. Moreover, Bowyer states in his brief that he “has fought hard but he has fought fair, and he only asks that this court treat him fairly and give this case one more honest review.” However, as will be thoroughly examined below, there are points in Bowyer's briefs where he has mischaracterized both the record and the applicable law.
NFP criminal opinions today (9):
Posted by Marcia Oddi on March 21, 2011 11:08 AM
Posted to Ind. App.Ct. Decisions