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Wednesday, December 19, 2012

Ind. Gov't. - Gov.-elect Pence names Ryan Streeter as policy director

Ryan Streeter will become Mike Pence's senior economic policy director.

Gov. Daniels named Streeter as one of three citizen members of the Judicial Nominating Commission last July to fill the remainder of Fred McCashland's term.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, a partial reversal

In Norman Bernstein v. Patricia Bankert (SD Ind., Young), a 66-page opinion, ND Ind. Judge DeGuilio, sitting by designation, writes:

This appeal is the latest chapter in the story of the Environmental Chemical and Conservation Company (“Enviro-Chem”), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind. The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including Enviro- Chem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Indiana Environmental Legal Actions Statute (“ELA”), and more. The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court’s final judgment. Addressing both appeals, we reverse in part and affirm in part. The case is remanded for further proceedings on the reinstated claims. * * *

For the reasons stated, we reverse the district court’s dismissal of Counts I, II, III, and VII. In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC. The Trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on today's Supreme Court decision on health care costs

With respect to the Supreme Court's decision today in Abby Allen and Walter Moore v. Clarian Health Partners, Inc. (ILB summary here), see this post today from Masson's Blog, which points to the language in the COA opinion stating that "Clarian considers its chargemaster rates confidential and proprietary."

See also this Oct. 13, 2011 ILB post.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides three today

In John Kimbrough, III v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:

Defendant John W. Kimbrough was convicted of multiple counts of child molesting and sentenced to an aggregate term of eighty years. Concluding the trial court abused its sentencing discretion the Court of Appeals remanded this cause with instructions to impose an aggregate term of forty years. We grant transfer and affirm the judgment of the trial court. * * *

In summary, because the trial court correctly entered its sentencing statement in compliance with the dictates of Anglemyer and because the “appropriateness” of a sentence has no bearing on whether a sentence is erroneous, the trial court did not abuse its discretion in imposing Kimbrough’s sentence. Further, Kimbrough did not seek review and revision of his sentence under Indiana Appellate Rule (7)(B).

In Abby Allen and Walter Moore v. Clarian Health Partners, Inc., an 8-page, 5-0 opinion, Justice Rucker writes:
Uninsured patients filed a putative class action complaint against a hospital alleging breach of contract and seeking a declaration that rates the hospital billed were unreasonable and unenforceable. The trial court granted the hospital’s motion to dismiss. We affirm the trial court’s judgment. * * *

Before receiving treatment Allen, who is uninsured and not covered by Medicare or Medicaid, signed a form contract drafted by Clarian under which she agreed to pay all charges associated with her treatment. The contract did not specify a dollar amount for services rendered, but provided that Allen “guarantees payment of the account.” Clarian provided medical treatment to Allen and then billed its “chargemaster” rates for medical services and supplies in the amount of $15,641.64. Patients’ two-count putative class action complaint alleges breach of contract and seeks declaratory judgment, namely, that rates the hospital bills its uninsured patients are unreasonable and unenforceable. According to the complaint, if Allen had been insured then Clarian would have accepted $7,308.78 for the same services and supplies. The complaint alleges that Clarian charges only uninsured patients the chargemaster rates, while “[i]nsured patients and Medicare/Medicaid patients pay significantly discounted rates for the same services and supplies.”

Clarian moved to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Indiana Trial Rule 12(B)(6). The trial court granted the motion. Patients appealed and the Court of Appeals reversed the trial court’s judgment and remanded this cause for further proceedings. Among other things the Court of Appeals concluded that because the contract did not contain a price term the reasonable value of services should be implied, and the issue of reasonableness requires resolution by a fact-finder. ... We disagree with our colleagues, and having previously granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we now affirm the judgment of the trial court. * * *

We align ourselves with those courts that have recognized the uniqueness of the market for health care services delivered by hospitals, and hold that Patients’ agreement to pay “the account” in the context of Clarian’s contract to provide medical services is not indefinite and refers to Clarian’s chargemaster. As a result, we cannot impute a “reasonable” price term into this contract. See First Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 604 (Ind. 1990) (refusing to engraft reasonableness language onto a real estate lease, where the express provision at issue was “well understood in the business community and commonly found in such leases”). Because Patients’ complaint stated no facts on which the trial court could have granted relief, it properly granted Clarian’s motion to dismiss. Having thus resolved Patients’ breach of contract claim, we need not reach Patients’ declaratory judgment claim.

ILB: For background, see this April 30, 2012 ILB entry.

In Hugh David Reed v. Edward Reid; Reid Machinery, Inc.; North Vernon Drop Forge, Inc.;Jennings Manufacturing Co., Inc.; Reid Metals, Inc.; Glen White; Douglas Dibble; et al., a 35-page, 5-0 opinion, Justice Rucker writes:

After a steel fabrication company deposited solid waste on a landowner’s property the landowner filed a complaint seeking damages against multiple parties and on multiple grounds, including a claim for an environmental legal action. Both sides moved for summary judgment. The trial court granted the motions with respect to some claims and denied the motions with respect to others. We affirm the trial court in part, reverse in part, and remand this cause for further proceedings. * * *

[This opinion deals with the ELA (environmental legal action statute), illegal dumping, private nuisance, trespass, and many other claims]

We affirm the trial court as follows: denial of summary judgment for David on his ELA claim; denial of summary judgment for David on his claims that Edward and his corporations are liable under the corporate law doctrine of piercing the corporate veil; denial of summary judgment for David on his claim against Jennings Manufacturing as successor to Forge; grant of summary judgment for Defendants on David’s unjust enrichment claim; grant of summary judgment for Defendants on David’s intentional torts claim; and grant of summary judgment for Dibble and White on David’s responsible corporate officer claim.

We reverse the trial court as follows: denial of summary judgment for David on David’s claim against Edward as responsible corporate officer of Forge; grant of summary judgment for Defendants on David’s ELA claim; grant of summary judgment for Defendants on David’s illegal dumping claim; grant of summary judgment for Defendants on David’s claim of fraud; grant of summary judgment for Defendants on David’s nuisance claim; grant of summary judgment for Defendants on David’s trespass claims; grant of summary judgment for Defendants as responsible corporate officers of Forge; grant of summary judgment for Jennings Manufacturing on David’s successor liability claim; and grant of summary judgment for Reid Metals on its personal jurisdiction claim.

This cause is remanded for further proceedings.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Stephen W. Robertson, Ins. Comm. of the State of Indiana, on behalf of the Indiana Dept. of Ins. v. Ticor Title Ins. Co. of Florida, n/k/a Chicago Title Ins. Co. , a 22-page opinion, Judge Mathias writes:

The Insurance Commissioner of the State of Indiana initiated administrative proceedings against Ticor Title Insurance Company of Florida (“Ticor”) after an investigation revealed that Ticor was charging potentially excessive and discriminatory title insurance rates to its Indiana customers. A hearing was held and a hearing officer for the Indiana Department of Insurance (“the IDOI”) determined that Ticor’s title insurance rates were excessive and discriminatory. The hearing officer issued an order directing Ticor to, in part, refund excessive premiums, establish an internal control process to ensure that the appropriate premium is charged to Ticor’s customers, and pay unpaid premium taxes. Ticor subsequently filed a Petition for Judicial Review of Administrative Order in Marion Superior Court. After a hearing was held on the petition, the trial court issued findings of fact and conclusions of law reversing the administrative order. The IDOI appeals and raises the following issues:

I. Whether the trial court failed to appropriately defer to the IDOI’s interpretation of the Rate Statute when the court accepted Ticor’s interpretation of that statute in issuing its findings of fact and conclusions of law and,
II. Whether the trial court erred when it reversed the administrative order because the administrative hearing officer’s findings of fact and conclusions of law are supported by substantial evidence.

Concluding that the IDOI’s interpretation of the Rate Statute was reasonable and that the administrative hearing officer’s findings of fact are supported by substantial evidence, we reverse and remand for proceedings consistent with this opinion. * * *

We conclude that the trial court exceeded its authority when it reweighed the
evidence presented to the administrative hearing officer. Because there is substantial evidence to support the administrative hearing officer’s findings that Ticor allowed its agents to charge excessive and discriminatory rates to its Indiana customers, we reverse the trial court’s decision to set aside the Indiana Commissioner of Insurance’s September 3, 2010 order, and we reinstate the administrative order.

In LBM Realty, LLC, d/b/a Summer Place Apartments v. Hillary Mannia, a 15-page opinion, Judge Pyle writes:
After a fire broke out at an apartment building owned by LBM Realty, LLC d/b/a Summer Place Apartments (“LBM”), LBM’s insurance company, Greater New York Mutual Insurance Company (“Insurer”), paid LBM’s fire loss claim and then filed an insurance subrogation action, in LBM’s name, against LBM’s tenant, Hillary Mannia (“Mannia”), who is alleged to have negligently started the fire on her balcony patio. Mannia filed a Trial Rule 12(B)(6) motion to dismiss LBM’s claims of breach of contract and negligence, and the trial court granted her motion. LBM now appeals from the trial court’s dismissal of its complaint against Mannia. We reverse and remand. * * *

LBM argues that the trial court erred by granting Mannia’s motion to dismiss LBM’s complaint. Specifically, LBM contends that the trial court erroneously adopted the no-subrogation approach and concluded that Mannia was a co-insured under LBM’sinsurance policy.

NFP civil opinions today (1):

Sandra R. Peters v. Wal-Mart (NFP)

NFP criminal opinions today (3):

Larry Garmon v. State of Indiana (NFP)

Toby Hicks v. State of Indiana (NFP)

Toni L. Woods v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Formal Investiture Ceremony for Justice Rush set for Friday, Dec. 28

From a news release:

The robing ceremony and oath administration for Loretta Rush as Indiana’s 108th Justice will take place on December 28th. Chief Justice Brent E. Dickson announced the date and invited the public to watch a webcast of the ceremony at courts.in.gov.

The one-hour ceremony will include remarks from Governor Mitch Daniels, former Supreme Court Justice Myra Selby, Allen County Superior Court Judge Charles Pratt and Dr. Will Miller. Governor Daniels will administer the oath and Justice Rush’s official courtroom photograph will be unveiled. A photo gallery of previous swearing-in ceremonies is online.

In September, Governor Daniels named Judge Loretta Rush to succeed Justice Frank Sullivan, Jr., who stepped down from the bench earlier this year. After her appointment, Rush continued her work as Judge of Tippecanoe Superior Court #3 until November. Chief Justice Dickson administered a private oath on November 7th so that Rush could officially begin her work as an Indiana Justice prior to the December 28th ceremony.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Indiana Courts

Environment - Still more on: Concerns in NW Indiana about Enbridge Energy Partners LP's aging Line 6B oil pipeline and its replacement

Updating this ILB entry from Oct. 25th, Bowdeya Tweh reports in the NWI Times:

LAPORTE | There may be a growing chorus of Northwest Indiana residents who are frustrated about a proposal from Enbridge Energy LP to build a new oil pipeline adjacent to an existing one that spans four Indiana counties.

Nearly all of the 11 people who spoke at an Indiana Department of Environmental Management hearing Tuesday urged IDEM to provide a rigorous review of the entire project because they questioned the company's effort to reduce impacts to landowners and the environment.

Enbridge plans to shut down its existing Line 6B crude oil and liquids pipeline that runs from Griffith to Sarnia, Ontario, and build a new one adjacent to it. The new pipeline, which is expected to cost hundreds of millions of dollars to construct, would have a larger transmission capacity than the current one.

IDEM organized the hearing to help guide its decision to approve or deny two Enbridge applications establishing the framework for placing fill material in state-regulated waters and how the company will mitigate the environmental impacts. About 60 people from Indiana, Illinois and Michigan attended the public hearing. * * *

Kim Ferraro, Hoosier Environmental Council Water and Agriculture policy director, said IDEM also should require Enbridge to conduct post-construction wetland and waterway monitoring until full restoration is achieved, provide a clear timeline for annual monitoring and have a financial assurance mechanism to ensure funds are available for additional restoration work.

From a side-bar:
Information on Enbridge's applications seeking two Section 401 Water Quality Certifications can be found online. The certifications are required before Enbridge can petition the U.S. Army Corps of Engineers for permission to move forward with pipeline construction.
The link leads to the index page for the two applications, which look to be thousands of pages long.

[More] Here is a Dec. 18th Chesterton Tribune story headed "Save the Dunes, HEC, others urge state scrutiny of Enbridge pipeline."

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Environment

Ind. Decisions - "Judge OKs sale of 2 vacant public schools"

For background, start with this Nov. 3, 2012 ILB entry headed "EACS sues to clear up confusion on sale law: Charters get 1st buy chance."

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

FORT WAYNE – An Allen Superior Court judge ruled two local public school districts can sell two vacant schools without letting the buildings languish for four years in case a future charter school wants to use them.

The ruling came Tuesday in two cases involving the Indiana Public Charter Schools Association and Fort Wayne Community Schools and East Allen County Schools.

In the case involving the Fort Wayne school district, the charter school association sued to stop the sale of the Pleasant Center Elementary School building to the Fort Wayne-Allen County Airport Authority. It was an agreement reached before the changes to the charter school law went into effect, but was about to be made official by an airport board vote the day the association filed its lawsuit.

In the East Allen case, the district sued the charter school association to get a judge to weigh in on whether the district should be allowed to sell the shuttered Monroeville Elementary School to the Fort Wayne-South Bend Catholic Diocese, which wanted to use it for educational purposes. Because the diocese has offered to buy the building, no existing charter school has expressed any interest in its use. * * *

At issue was whether amendments to the Indiana law governing the sale of abandoned school buildings mean that vacant classroom buildings have to sit on a waiting list for four years providing charter schools the opportunity to claim them for $1, or whether the districts can sell the buildings under long-held state laws if no existing charter school is asking for them at the time of the sale.

Attorneys for both districts argued that a plain reading of the statute said that the buildings go on the Department of Education list until another offer comes up or until a charter school expresses interest in buying or leasing it for $1.

Attorneys for the Indiana Public Charter Schools Association argued that a district cannot sell or dispose of a building until it sits on the list for four years, unclaimed by an interested charter school. But even if no charter expresses interest, the building must remain on the list.

In her 12-page ruling, Allen Superior Court Judge Nancy Boyer found in favor of the school districts. She said state law does not prohibit the districts from selling or transferring buildings to entities that want them.

She wrote that those amendments to the law, enacted in 2011 as part of a sweeping charter schools bill, did not modify or repeal the existing wording of state law and did not limit the school districts’ ability to transfer its own property.

“Reading (state law) to require a school corporation to refuse to sell or transfer unneeded property to a purchaser … forces a school corporation to bear the costs associated with maintaining an unneeded and unoccupied building for an unreasonably long period of time,” she wrote.

The 48-month time frame is not triggered unless a charter school files a letter of intent expressing interest in the building, Boyer wrote.

“(The) Charter Schools’ interpretation fails to protect taxpayer investment in school assets,” Boyer wrote. “Forcing unused school properties to sit idle for four years, even if no charter school is interested, is contrary to the public interest.”

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. Trial Ct. Decisions

Law - "Michigan Governor Vetoes Gun Bill"

The WSJ Law Blog reported last evening:

Michigan Republican Gov. Rick Snyder vetoed a controversial bill Tuesday that would have allowed concealed weapons to be carried into public spaces including schools, day-care centers and hospitals.

The bill was passed by the GOP majority last week in the waning hours of the state legislature’s lame-duck session. Mr. Snyder, who received national attention for signing so-called right-to-work legislation last week, said in an interview Monday that he had reservations about the bill because it may have given schools and other institution no choice but to allow highly trained holders of concealed weapons to enter.

ILB: Indiana passed a similar bill in 2011. It is located at IC 35-47-11.1, "Local Regulation of Firearms, Ammunition, and Firearm Accessories." It was referred to by some opponents at the time as the "Take your gun to the library" bill. From a news description at the time:
Senate Bill 292 essentially prohibits local governments, libraries and mass transit systems from regulating guns in any manner. That would eliminate prohibitions against guns in most municipal buildings and public parks.

State law prohibiting guns on school grounds would stand. And the bill doesn't prohibit state regulations on guns, such as state rules passed in 2007 banning guns from the Statehouse and adjoining government center, though lawmakers get an exception.

There's another exception for buildings with courts.

The prohibition against guns in schools is not in SB 292, it is IC 35-47-9.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to General Law Related