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Wednesday, February 29, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 18 NFP)

For publication opinions today (5):

In Joseph A. Davis v. Herbert Simon and Bui Simon , a 26-page opinion, the question is whether the Simons have jurisdiction to sue Mr. Davis (of California) in Indiana. "Joseph A. Davis appeals the trial court's denial of his Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens, in favor of Herbert and Bui Simon." The trial court denied Mr. Davis' motion to dismiss. The COA panel here reverses, 2-1, Judge Brown writing for the majority.

In Monte Hanna and Kim Hanna v. Indiana Farmers Mutual Insurance Company, a 12-page opinion, Judge Baker writes:

A sixteen-year-old passenger in a friend's vehicle was killed in a two-car collision during a drag race. The parents of the other drivers compensated the plaintiffs, who were the parents of the deceased child, in accordance with the liability limits under their own insurance policies. The decedent's parents then sought to recover additional funds in their individual capacities under the Uninsured Motorist provisions (UIM) of their own automobile policy that was issued by appellee-defendant Indiana Farmers Mutual Insurance Company (Indiana Farmers).

The Child Wrongful Death Act (CWDA), our Supreme Court's interpretation of the CWDA, and the Hannas' insurance policy do not entitle the parents to bring more than a single joint claim for their son's death. And because the parents have already received amounts from the other drivers' insurers that exceeded the maximum to which they would have been entitled under the UIM provisions of the Indiana Farmers policy, the trial court properly granted summary judgment in Indiana Farmers's favor and concluded that it was not obligated to pay under the UIM provisions.

Appellants-plaintiffs Monte and Kim Hanna (collectively, the Hannas), appeal the trial court's grant of summary judgment in favor of Indiana Farmers, on their claim for amounts that it should have paid them under the UIM provisions of their policy. The Hannas contend that Indiana Farmers was obligated to pay the full amount of the UIM policy limits and that the claim for their son's wrongful death should not be restricted to one joint claim for damages.

Concluding that the trial court properly granted Indiana Farmers's motion for summary judgment, we affirm.

In Engineered Steel Concepts, Inc., ESC Group Limited, and Tom Anderson v. General Drivers, Warehousemen, and Helpers Union Local 142, International Brotherhood of Teamsters, and Steven Parks, a 15-page opinion, Judge Najam concludes:
Anderson and the Company's state law claims are preempted by their actual conflict, on these facts, with the NLRB's exercise of jurisdiction against them under the Act. Thus, the trial court properly determined that it had been divested of its subject matter jurisdiction over the state law claims, and we affirm the trial court's judgment.
State of Indiana ex rel. Family and Social Services Administration v. Estate of Phillip Roy

In Kevin B. Perry v. State of Indiana , a 10-page opinion, Judge Baker writes:

In the instant case, the father of a teenage girl's boyfriend invited her and two of her friends over to his house while his son was away. After the girls had arrived, he served them alcoholic beverages and then got into bed where his son's girlfriend was sleeping and, without her consent, inserted his fingers into her vagina and rubbed his penis on her buttocks. The father was charged and convicted of class D felony sexual battery. While the father's actions are reprehensible, they do not qualify for sexual battery as defined by Indiana statute. His actions, however, do constitute class B misdemeanor battery.

Appellant-defendant Kevin B. Perry appeals his conviction for Sexual Battery, a class D felony, arguing that the evidence was insufficient. More particularly, Perry contends that the evidence failed to show that he compelled the victim to submit to touching by force or the imminent threat of force. Concluding that the State failed to show that Perry used force or the imminent threat of force, we reverse his conviction for class D felony sexual battery and remand with instructions that the trial court enter judgment of conviction for class B misdemeanor battery and sentence him to 180 days of incarceration with 90 days suspended.

NFP civil opinions today (5):

Mark Yoder and Barbara Yoder v. Capital One Bank, (USA), N.A. (NFP)

Thomas Pine, Individually and as Admin. for the Estate of Helen Pine, Deceased v. Stirling Clinic, Inc., Albert C. Lee, M.D., and Indiana Neurology Specialty Care (NFP)

Felix R. St. Pierre v. Jeannette St. Pierre (NFP)

Douglas J. Smith v. Gail Lynnette Smith (NFP)

Term. of Parent-Child Rel. of J.C.; J.P. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (13):

Charles A. Jones v. State of Indiana (NFP)

Daniel Robert Mola v. State of Indiana (NFP)

Anthony Taylor v. State of Indiana (NFP)

D.P.J. v. State of Indiana (NFP)

Calvin J. Spaulding v. State of Indiana (NFP)

Edwin D. Calligan v. State of Indiana (NFP)

Charles Neal v. State of Indiana (NFP)

Logan B. Lake v. State of Indiana (NFP)

Antonio Rush v. State of Indiana (NFP)

Adam Schafer v. State of Indiana (NFP)

Stacey L. Certain v. State of Indiana (NFP)

Harley J. Wise, II v. State of Indiana (NFP)

Nick Bigsby v. State of Indiana (NFP)

Posted by Marcia Oddi on February 29, 2012 11:01 AM
Posted to Ind. App.Ct. Decisions