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Thursday, November 15, 2012

Ind. Decisions - "Compensation Fund May not Dispute Liability in Med Mal Case"

The Supreme Court's Oct. 31st opinion in Stephen W. Robertson, Indiana Comm. of Insurance, as Admin. of Indiana Patient's Compensation Fund and The Indiana Patient's Compensation Fund v. B.O., A Minor, Lisa A. Ort and Kevin C. Ort (ILB summary here) is the subject of a story by Stephanie K. Jones in the Insurance Journal. It begins:

Indiana’s high court has ruled that the state’s fund established to cover excess damages in medical malpractice cases may not dispute the existence or cause of a plaintiff’s injury in a case in which the medical providers previously settled the claim, admitting liability.

The Indiana Supreme Court acknowledged that previously in some types of cases it has allowed the Indiana Patient’s Compensation Fund (PCF) to present evidence to dispute the existence or cause of injury.

In a case on appeal from the Marion Superior Court (No. 49D14-0706-CT-23482), however, the Court disagreed with the PCF’s arguments that “the final sentence of Indiana Code Section 34-18-15-3(5), which requires the trial court to ‘consider the liability of the health care provider as admitted and established,’” is inapplicable.

That inapplicability, according to PCF, would allow it to present evidence disputing the existence or cause of the patient’s injury.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Cracking down on public corruption by local government officials

The ILB had this post on Nov. 13th, including this quote from a WRTV6 news story:

Public employees, such as clerk treasurers, trustees and board members, have misappropriated more than $5 million statewide over the past three years, according to the Attorney General's Office.
What about Illinois? The NY Times had this long story today by Steven Yaccino, headed "Former Official Pleads Guilty to Defrauding Illinois Town of $53 Million." It begins:
ROCKFORD, Ill. — Hundreds of horses. Multiple houses. A $2.1 million luxury motor home. In hindsight, they all pointed to the unfathomable: Rita A. Crundwell, while comptroller of a small town two hours west of Chicago, had raided public coffers for decades to pay for a lavish life and a horse-breeding business.

Ms. Crundwell, 59, pleaded guilty in federal court here on Wednesday to one count of wire fraud, after bilking $53 million from her hometown, Dixon, Ill. By then, Dixon was known by outsiders not only as the proud boyhood home of President Ronald Reagan, but also as home to what one federal official called “one of most significant abuses of public trust ever seen in Illinois.”

That is quite a distinction considering the state’s reputation for corrupt officials, including governors. Still, officials said, the continuing tale in Dixon comes as a harsh reminder about the potential for large crimes in small city governments, where oversight can sometimes be an afterthought.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Indiana Government

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

For publication opinions today (3):

In Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire and Marine Ins. Co., d/b/a Zurich; Travelers Ideminity Co. of America , an 8-page opinion, Judge Vaidik writes:

Derek and Pauline Asklar (“the Asklars”) appeal the trial court’s decision to grant summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”). The Asklars contend that the trial court erred in holding that as a matter of law, Georgia law governs this dispute and that Empire’s uninsured/underinsured motorist coverage limit was only $75,000. Finding that Indiana law should apply in this case, but that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm in part and reverse in part.
In In the Matter of the Term. of the Parent-Child Rel. of A.P. & Au.P.; M.H. & T.P. v. The Indiana Dept. of Child Services , a 15-page opinion, Judge Pyle writes:
M.H. (“Mother”) and T.P. (“Father”) appeal the termination of their parental rights as to their minor children, A.P. and Au.P. (collectively, “the children”).
We affirm.
In Derek Clanton v. State of Indiana , a 25-page, 2-1 opinion, Judge Baker writes:
Derek Clanton was found in possession of cocaine after he was stopped and searched by an off-duty police officer who was working part-time as a security officer for an apartment complex in a high crime area of Indianapolis. The cocaine was in a small plastic bag stuffed into a pen cap, and it was discovered after the officer removed the pen cap from Clanton’s pocket during a patdown of Clanton for weapons.

Claiming the cocaine was found during an unreasonable search and seizure in violation of the United States and Indiana Constitutions, Clanton filed a motion to suppress. The trial court denied the motion, and following a bench trial, Clanton was subsequently convicted of Possession of Cocaine, a class D felony.

We conclude that the trial court erred when it admitted the cocaine into evidence because the arresting officer was not entitled to further search the contents of the pen cap after determining that the pen cap was not a weapon. Because we find this issue to be dispositive, we do not specifically address whether the initial stop and patdown were proper under the circumstances presented here. In reaching this decision, however, we also conclude that the Fourth Amendment does not categorically fail to apply to off-duty police officers working as security officers on private property.

Accordingly, we reverse the judgment of the trial court. * * *

ROBB, C.J., concurs.
BRADFORD, J., concurs in part and dissents in part with opinion. [which begins, at p. 15 of 25] I agree with the majority that the stop conducted by Officer Smith implicated the constitutional protections provided by the Fourth Amendment and Article I, Section 11. However, I do not believe that either the stop or the subsequent search violated those constitutional protections. As such, I concur in part and respectfully dissent in part.

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of: B.T. (Minor Child), and B.J.T. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

Kurt E. Hinkle v. State of Indiana (NFP)

Jeffery Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Ind. App.Ct. Decisions

Courts - "Pennsylvania Judges Sue over Mandatory Retirement Provision"

Joe Palazzolo of the WSJ Law Blog reported yesterday that begins:

Six Pennsylvania judges are suing to invalidate a state constitutional provision that requires them to retire at age 70.

Standing in their way is a 1990 decision by the U.S. Supreme Court, Gregory v. Ashcroft, that upheld a similar mandatory retirement requirement in Missouri. But the judges and their lawyers are hoping that advances in medicine, new research on aging and evolving law on the 14th Amendment’s Equal Protection Clause will help them sustain their challenge.

The challenge could have national implications. Thirty-three states and the District of Columbia enforce age limits for at least some of their judges, according to the National Center for State Courts.

What about Indiana? The Indiana General Assembly abolished all remaining mandatory age caps for trial court judges in 2011.

With respect to Supreme Court justices and Court of Appeals judges, Article 7, section 11 of the Indiana Constitution includes this provision:

Every such justice or judge shall retire at the age specified by statute in effect at the commencement of his current term.
The age currently specified by statute (IC 33-38-13-8) is seventy-five:
(a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.
(b) Notwithstanding subsection (a), the supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.
For ILB background entries, start here.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Courts in general

Ind. Decisions - 7th Circuit: "For damages, child porn victims must show cause"

US v. Laraneta (ILB entry here), an Indiana case decided yesterday by the 7th Circuit, is the subject of this Thomson Reuters article by Terry Baynes headed "For damages, child porn victims must show cause, court says." The article begins:

Nov 14 (Reuters) - Two women who are seeking restitution from a man who viewed pornographic images taken of them when they were children must show that the defendant helped circulate the images, a federal appeals court ruled on Wednesday.

The 7th U.S. Circuit Court of Appeals, in Chicago, said the two victims must prove a causal link between their losses and a defendant's crime of possessing the images.

The issue, which has divided federal courts, could determine the extent to which victims of child pornography can recover money for medical costs, therapy and lost income from the people convicted of viewing their images.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: Table of Title 35 definitions repealed and reenacted under a new citation

Prof. Schumm received this note yesterday:

I’ve run across something that I think is a potentially big problem that I’d like to run by you.

The legislature has recently moved some criminal statutes. I’ve already run into this problem twice, so I don’t think it was an insignificant number. Case in point is Obstruction of Justice, formerly IC 35-44-3-4, now IC 35-44.1-2-2. Two words in the page long statute were changed – “himself” was changed to “person” in two places.

Pulling the new statute in Westlaw gives you 0 notes of decisions. I’ve spoken to the Westlaw people, and they say they are powerless to include the annotations in the new home of the statute because LSA has classified this as a “repeal” rather than a “recodification.” That frankly makes no sense to me. There may be a good reason for doing that but it eludes me.

The result now, for the unaware or inexperienced researcher, is that there are apparently no decisions interpreting the statute. I think this is pretty hazardous.

Prof. Schumm responded:
The General Assembly moved scores of definitions, which I agree will cause a lot of problems. I just checked the Lexis annotations to the new statutory cite, which do include the old cases for the predecessor statute.

Here's a table of the new and old statutory cites and an explanation tracing how this situation occurred, from the ILB.

Unless you have the annotated statute books from 2011, I'm not sure how you will find cases relying on the predecessor statutes. You could run a Westlaw case search with the old statutory cite, but that will probably give you more chaff than wheat.

ILB: The ILB posted this Table on Sept. 1st. In a 2012 bill rearranging the criminal law statutes, the General Assembly repealed a large number of criminal definitions, and then reenacted them in another Indiana Code location. The Table I created allows you to match the earlier citation to a "new" definition. Then, as Prof. Schumm points out, you can go to an old, 2011 volume of West and review the annotation.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Indiana Law

Ind. courts - Applications to replace Judge Moberly open until Nov. 30th

Supplementing this ILB entry from Oct. 24, the Governor's judicial appointments webpage announces:

Marion Superior Court Judicial Vacancy

The Governor’s Office is now accepting applications for Judge of the Marion Superior Court, due to the recent appointment of Judge Robyn L. Moberly. All applications must be completed and returned to the Governor’s Office by the close of business on Friday, November 30th, 2012. The Governor’s Office is also accepting recommendation letters for this vacancy during this time period

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Indiana Courts