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Friday, May 25, 2012

Ind. Decisions - Court of Appeals issues 6 today (and 11 NFP)

For publication opinions today (6):

In Mark Gasser v. Lesa B. Downing, Auto-Owners Insurance Company, and Property Owners Insurance Company, an 8-page opinion, Judge May writes:

Mark Gasser was injured in an automobile accident while a friend was driving him to a golf course. He sued Auto-Owners Insurance Co. for underinsured motorist coverage, claiming the car in which he was a passenger was a temporary substitute for his own vehicle. The trial court granted Auto-Owners’ motion for summary judgment and denied Gasser’s. We affirm. * * *

Gasser’s business, Huntingburg Machine Works (“HMW”), owned Gasser’s truck and other vehicles, and Auto-Owners insured them. The HMW policy applies “to an automobile you do not own which is temporarily used as a substitute for your automobile. Your automobile must be out of use because of breakdown, repair, servicing, loss or destruction.” “Substitute” is not defined. * * *

Kamman’s car was not a “temporary substitute” for purposes of the Auto Owners policy because it was being used as a favor or friendly accommodation, not to fulfill a legal or contractual obligation Gasser had. * * *

Gasser’s ride to the golf course similarly is best described as a “favor” by Kamman, and not a “fulfillment of a prior contractual or legal obligation.” Auto-Owners therefore was entitled to summary judgment, and we affirm.

In Cody Dallas v. Brandon Cessna, a 12-page opinion by Judge Riley, the issues were:
(1) Whether the trial court erred when it imposed joint and several liability for an intentional tort that originated in a crime; and
(2) Whether Dallas’ intentional touching of Cessna was a proximate cause of Cessna’s injuries.
The opinion concludes:
[Joint and Several Liability] The Act clearly stipulates that Cessna may recover one hundred percent of his damages for the intentional tort from Dallas, as Dallas pled guilty after a prosecution based on the same evidence used in the civil proceedings. See I.C. § 34-51-2-10. Because both Dallas and Lewellen were involved in the battery on Cessna and both were held liable after a criminal prosecution based on the same evidence, the imposition of joint and several liability for Cessna’s damages complies with the statutory requirement of I.C. § 34-51-2-10. Therefore, we affirm the trial court. * * *

[Proximate Cause] The incredible dubiosity rule represents an exception to the general prohibition against reweighing a witness’ testimony in criminal proceedings and its application is extremely limited and sporadic. In this light—and even discounting the disparity in burden of proof between criminal and civil proceedings—we decline Dallas’ invitation to extend the applicability of the rule to civil proceedings. Therefore, because Dallas’ argument amounts to a reweighing of witness credibility, we refrain from addressing his argument.

[Conclusion] Based on the foregoing, we conclude that the trial court properly imposed joint and several liability. We will not address Dallas’ argument on proximate cause as it amounts to a reweighing of a witness’ credibility.

In In Re the Estate of Ruby Shuler Blankenbaker Botkins, Deceased; Mark Allen Shuler and David Lee Shuler, co-personal representatives v. Estate of George Botkins and Larry Botkins, personal rep. , a 7-page opinion, Judge Mathias writes:
Mark and David Shuler (collectively, “the Shulers”), the co-personal representatives of the estate of Ruby Shuler Blankenbaker Botkins (“Ruby”), appeal from the trial court’s denial of their motion to set aside a Family Settlement Agreement (“the Settlement Agreement”) relating to the administration of Ruby’s estate. Concluding that the order from which the Shulers appeal is neither a final judgment nor an appealable interlocutory order, we dismiss this appeal sua sponte. * * *

For all of these reasons, we conclude that the order from which the Shulers appeal is neither a final judgment nor an appealable interlocutory order. This court is therefore without subject matter jurisdiction to entertain the Shulers’ appeal. Dismissed.

Anthony Dorelle-Moore v. State of Indiana

In E. Paul Haste v. State of Indiana , a 4-page opinion, Judge Mathias writes:

[On August 17, 2011] the trial court issued an order sentencing Haste to a ten-year executed sentence and indicating that the court was taking the issue of restitution under advisement. On August 23, 2011, before the trial court entered any order addressing the issue of restitution, Haste filed his notice of appeal. The trial court clerk filed the Notice of Completion of Clerk’s Record on the same date. This appeal ensued. * * *

Because the trial court specifically stated in its August 17, 2011 sentencing order that it was taking the restitution issue under advisement, that order did not completely dispose of all sentencing issues. Accordingly, the August 17, 2011 sentencing order from which Haste appeals is not an appealable final judgment, and we must dismiss this appeal. * * *

Assuming that Haste did not file another notice of appeal within thirty days of the entry of the October 24, 2011 restitution order, it would appear that he has missed the deadline for filing a direct appeal of his conviction and sentence. However, it also seems apparent that Haste’s conduct might qualify him to file a petition for permission to file a belated notice of appeal under Post-Conviction Rule 2. Dismissed.

Tyjuan J. Dixon v. State of Indiana

NFP civil opinions today (3):

Clovis Smith v. Alexandra Ryan (NFP)

Victoria Thomas v. National Education Association-South Bend and South Bend School Corporation (NFP)

Paul Esparza v. Denis Lynch (NFP)

NFP criminal opinions today (8):

William Pargo v. State of Indiana (NFP)

Anthony McCoy v. State of Indiana (NFP)

Keith M. Butler v. State of Indiana (NFP)

Lucas E. Holland v. State of Indiana (NFP)

Lorinda Harper v. State of Indiana (NFP)

Darrell Lawrence v. State of Indiana (NFP)

Shane J. Johnson v. State of Indiana (NFP)

Jeremy Kyle Everhart v. State of Indiana (NFP)

Posted by Marcia Oddi on May 25, 2012 11:05 AM
Posted to Ind. App.Ct. Decisions