Monday, April 25, 2011
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 4/25/11):
Wednesday, April 27th
- 9:00 AM - Allstate Insurance Co. v. Timothy Clancy, et al. (45S03-1103-CV-138) - Robert and Dianna Goad, as assignees of Allstate's insured, Timothy Clancy, brought an action against Allstate alleging a bad-faith denial of coverage. When Allstate alleged as an affirmative defense that coverage was "fairly debatable," the Goads sought discovery of communications between Allstate and its coverage counsel, arguing that Allstate had waived the attorney-client privilege by raising an advice-of-counsel defense. The trial court granted the Goads' motion to compel discovery. The Court of Appeals reversed on interlocutory appeal, holding Allstate did not impliedly waive the attorney-client privilege. Allstate Ins. Co. v. Clancy, 936 N.E.2d 272 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an Oct. 26, 2010, 2-1 COA opinion where the majority ruled: "We hold that the 'fairly debatable' defense, absent any other connection to reliance upon advice of counsel, is tantamount to a good faith defense and insufficient in and of itself to waive attorney-client privilege. Accordingly, we reverse the trial court's order compelling discovery of the challenged documents."
- 9:45 AM - Kevin Hampton v. State of Indiana (84S04-1103-PC-161) - Hampton's convictions for murder and rape were affirmed on direct appeal. The Vigo Superior Court denied post-conviction relief. The Court of Appeals affirmed, concluding that the trial court had not erred in omitting the last sentence of pattern instruction 12.01, (which says, "Where proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.") because the issue was covered in the trial court's reasonable doubt instruction. Hampton v. State, 936 N.E.2d 1274 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: A Nov. 16, 2010 COA opinion (ILB summary here) where the Court concluded: "It follows that there was no error in omitting the requested sentence and, accordingly, appellate counsel did not fail to provide effective assistance."
- 10:30 AM - Christopher Jewell v. State of Indiana (32S04-1104-CR-200) - Following a jury trial in the Hendricks Superior Court, Jewell was convicted of multiple counts of felony sexual misconduct with a minor and other offenses, and was sentenced to an aggregate term of forty years. Before the charges were filed but at the request of a police detective, the victim obtained an incriminating statement from Jewell, which was played for the jury. Jewell argues the statement violated his right to counsel because it was obtained after he had been arrested and retained counsel with respect to another offense not at issue in this appeal. The Court of Appeals affirmed the convictions, deciding that the right to counsel is "offense specific" and concluding there had been no violation of Jewell's right to counsel under either the federal or state constitution. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: From the Dec. 30, 2010 COA opinion [5th case]: "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."
Next week's oral arguments before the Supreme Court (week of 5/2/11):
Thursday, May 5th
- 9:00 AM - State Automobile Mutual Insurance Co. v. Flexdar, Inc. (49S02-1104-PL-199) - In this dispute over insurance coverage for environmental contamination, the Marion Superior Court granted summary judgment in favor of the insured. The Court of Appeals affirmed, holding that the policy's "absolute pollution exclusion" was ambiguous and must be construed in favor of the insured. State Auto. Mut. Ins. Co. v. Flexdar, Inc., 937 N.E.2d 1203 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a a Nov. 22, 2010 COA opinion that held: "We conclude, pursuant to the last fourteen years of precedent, that State Auto's absolute pollution exclusion is ambiguous, must be construed in favor of the insured, and therefore will not operate to preclude coverage in connection with Flexdar's TCE leakage. Under Kiger and its progeny—and consistent with the above-quoted 1997 executive veto—an insurance policy must be specific if it wishes to except from coverage claims relating a particular alleged contaminant. It is within the province only of our Supreme Court to decide otherwise."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 4/25/11):
Tuesday, April 26th
- 1:00 PM - Robert L. Clark and Debra Clark v. Robert L. Clark, Sr. (01A02-1007-CT-759) - Robert L. Clark, Jr. (Junior) was injured when he was struck by a car driven by his father. The trial court granted summary judgment for the father, on the ground that Junior was being transported in or upon the motor vehicle for purposes of the application of the Indiana Guest Statute, Ind. Code § 34-30-11-1. The Scheduled Panel Members are: Chief Judge Robb and Judges May and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]
Friday, April 29th
- 10:00 AM - Jerry French et al v. State Farm & Casualty Company et al (18A02-1005-PL-489) - Jerry and Becky French purchased a manufactured home for approximately $77,000 that was insured by State Farm when it burned. The Frenches sued State Farm when it refused to pay to replace the destroyed home with a more expensive stick-built home of similar size. On appeal, State Farm argues that its offer to pay for another manufactured home fulfilled its obligations under the insurance policy and that it is entitled to rescind the policy because Jerry failed to disclose both the purchase price of the original home and that it was a manufactured home. The Frenches assert that their stick-built home constitutes "similar construction" under the policy, that they are entitled to reimbursement up to the policy limits, and that State Farm is not entitled to rescind the policy. The Scheduled Panel Members are: Judges Baker, Crone, and Bradford. [Where: Honeywell Center (Ford Theater), 275 West Market Street, Wabash, Indiana]
Next week's oral arguments before the Court of Appeals (week of 5/2/11):
Wednesday, May 4th
- 1:30 PM - T.L. v. J.L. (54A01-1008-DR-386) - RT.L. ("Mother") appeals the trial court's order denying her petition to relocate from Indiana to Tennessee with her two minor children, of whom she was granted primary custody following her dissolution of marriage. Mother argues she has legitimate, good faith reasons to move based upon her need to care for her ill grandmother who lives in Tennessee, a reduced financial burden, the children's wishes to move, and the children's relationships with family and friends in Tennessee. Mother also argues that J.L. ("Father") failed to meet his burden of showing the move would not be in the children's best interest. In making these arguments, Mother contends some of the trial court's findings of fact are clearly erroneous and that the remaining findings fail to support the trial court's judgment. The Scheduled Panel Members are: Chief Judge Robb and Judges Riley and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on April 25, 2011 08:10 AM
Posted to Upcoming Oral Arguments