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Tuesday, October 23, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In State Automobile Ins. Co., Meridian Security Ins. Co., and Indiana Farmers Mutual Ins. Co. v. DMY Realty Co., LLP and Commerce Realty, LLC , a 39-page opinion, Judge Brown writes:

State Automobile Insurance Company and Meridian Security Insurance Company (collectively, “State Auto”) appeal the trial court’s order denying State Auto’s motion for summary judgment and granting summary judgment in favor of DMY Realty Company, LLP and Commerce Realty, LLC (collectively, “DMY”). State Auto raises three issues which we revise and restate as: I. Whether the language of certain pollution exclusions and endorsements contained in insurance policies issued by State Auto to DMY is ambiguous; II. Whether there exists a genuine issue of material fact precluding the grant of summary judgment in favor of DMY; and III. Whether the court erred in determining that State Auto should indemnify DMY for all of its past and future costs associated with DMY’s claim. We affirm and remand. * * *

[I] The first issue is whether the language of the pollution exclusions and endorsements contained in insurance policies issued by State Auto to DMY is ambiguous. In examining this issue, however, we note that the Indiana Supreme Court’s recent pronouncements in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845 (Ind. 2012), reh’g denied, are dispositive. * * * [C]onsequently we conclude that the pollution exclusions and endorsements contained in DMY’s insurance policies with State Auto are ambiguous. Thus State Auto may not deny DMY the coverage it seeks based upon such language.

[II] The next issue is whether there exists a genuine issue of material fact precluding the grant of summary judgment in favor of DMY. * * *

To the extent that State Auto challenges Mundell’s expert report’s admissibility based upon the Daubert factors, we observe that the Indiana Supreme Court “has not established a specific test for the scientific admissibility of evidence pursuant to Indiana Evidence Rule 702(b)” and, although the Daubert factors can be helpful in that determination, the Court “has not mandated the application of Daubert and has chosen alternative approaches in the past.” Akey v. Parkview Hosp., 941 N.E.2d 540, 543 (Ind. Ct. App. 2011), trans. denied. * * *

Accordingly, we conclude that the court did not err when it concluded that there was no issue of material fact precluding the granting of summary judgment in favor of DMY.

[III] The final issue is whether the court erred in determining that State Auto should indemnify DMY for all of its past and future costs associated with DMY’s claim. * * *

We also find notable that State Auto in its reply brief does not reject DMY’s contention regarding the nature of the settlement, lending credence, albeit implicitly, to the notion that DMY and Indiana Farmers did in fact settle pursuant to a loan receipt agreement. Accordingly and under the circumstances, we conclude that remand is warranted for the trial court to review any settlement agreement between DMY and Indiana Farmers and consider any valid contribution or credit issues.

For the foregoing reasons, we affirm the court’s order granting summary judgment in favor of DMY and denying summary judgment in favor of State Auto, and we remand for the court to address any valid contribution or credit issue consistent with this opinion.

In David Mathews v. State of Indiana, a 17-page opinion, Judge Brown writes:
David Mathews appeals his convictions for public intoxication as a class B misdemeanor and intimidation as a class D felony and being an habitual offender. Mathews raises two issues which we revise and restate as: I. Whether the trial court abused its discretion by denying Mathews’s request for a mistrial; and II. Whether the evidence is sufficient to sustain his conviction for public intoxication as a class B misdemeanor. We affirm.
In Calvin Merida v. State of Indiana , a 10-page, 2-1 opinion, Judge Bailey writes:
Calvin Merida (“Merida”) pled guilty to and was convicted of two counts of Child Molesting, as Class A felonies. He now appeals his sentence. We reverse and remand with instructions.

Merida raises two issues for our review, which we restate as a single issue: whether his sentence is inappropriate. * * *

We therefore reverse the trial court’s sentencing order and remand with instructions to revise the sentencing order to run his two thirty-year sentences concurrent to one another, for an aggregate thirty-year term of imprisonment.

RILEY, J., concurs.
CRONE, J., concurs in part and dissents in part, with opinion.

I would remand with instructions to revise Merida’s sentence such that eight years of the thirty-year sentence on count 10 would run consecutive to the thirty-year sentence on count 9 and the remainder would run concurrent, for a total executed sentence of thirty-eight years. * * *

I acknowledge that Indiana Code Section 35-50-1-2 does not specifically authorize partially consecutive sentences, but I believe that the statute should be interpreted to provide trial courts with as much flexibility as possible to tailor an appropriate sentence for each defendant based on the facts of each case. See id. at 1224 (“Indiana has never adopted a mechanical approach to sentencing, and we have not identified any inflexible system that did not raise more problems than it solved.”). Any doubts in this regard should be resolved by either our supreme court or our legislature, which is currently reviewing Indiana’s criminal code with an eye toward overhauling both its substantive and sentencing provisions. If it is determined that the statute as currently written does not authorize partially consecutive sentences, it is my hope that the legislature would amend the statute accordingly and give trial courts and appellate courts an important tool for crafting appropriate sentences in cases like this one.

NFP civil opinions today (0):

NFP criminal opinions today (1):

David A. Young v. Gladys C. Young (NFP)

Posted by Marcia Oddi on October 23, 2012 10:32 AM
Posted to Ind. App.Ct. Decisions