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Thursday, December 06, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp, a 10-page opinion, Sr. Judge Barteau writes:

The Yateses and Tibbses raise one issue, which we restate as: whether the trial court erred by granting Kemp’s motion for summary judgment as to their claims for nuisance. * * *

The trial court determined that Kemp was not liable for his neighbors’ nuisance claims due to “I.C. § 14-22-31.5-1 et seq.” * * *

The key statute here, Indiana Code section 14-22-31.5-6 (1996) (“section 6”), provides a safe harbor in limited circumstances for owners, operators, and users of shooting ranges against claims of noise pollution. It provides:

A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.
Id. The parties have not cited to any prior cases applying this statute, and we have not found any.

The Yateses and the Tibbses argue that Kemp is not entitled to the protection granted by section 6 because there were no applicable laws or ordinances in effect at the time he built and began operating his shooting range. Kemp responds that their argument is “nonsensical.” Appellee’s Br. p. 7. The plain language of the statute supports the Yateses’ and the Tibbses’ argument. * * *

[B]ased on the plain language of section 6 and its context within the Act as a whole, we conclude that Kemp is not shielded by section 6 from liability related to his neighbors’ nuisances claim arising from noise pollution. * * *

To recover in a nuisance action the complaining party need show only inconvenience, annoyance, or discomfort. Lesh v. Chandler, 944 N.E.2d 942, 951 (Ind. Ct. App. 2011). Noise may be a nuisance if it is unreasonable in its degree, and reasonableness is a question of fact. Id.

The Yateses and the Tibbses have complained that Kemp is operating his shooting range to the detriment of their use and enjoyment of their property. Therefore, they are alleging a private nuisance. Furthermore, given that the range received conditional approval from the Marshall County Board of Zoning Appeals in 2008, we conclude that the range is an otherwise lawful use that may become a nuisance per accidens depending upon the circumstances surrounding the use. Thus, we must determine if the Yateses and the Tibbses have established a dispute of material fact as to whether Kemp has caused them to experience inconvenience, annoyance, or discomfort. * * *

All of this evidence is sufficient to establish a dispute of material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance, or discomfort. * * * Consequently, the trial court erred by granting summary judgment to Kemp on the Yateses’ and Tibbses’ claims for nuisance.

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings.

In Thomson, Inc., n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor Limited v. Continental Casualty Co.; Travelers Casualty & Surety Co. & Travelers Property Casualty Co. of Am., et al, a 9-page opinion, Judge Bradford writes:
Several years ago, Thomson, Inc., acquired the assets of Technicolor, Inc., which included, among other things, three contaminated former film-processing sites. Eventually, local environmental authorities directed Thomson to remediate the contamination at the sites, an expensive and ongoing process for which Thomson seeks indemnification from Continental, who insured Technicolor from 1969 to 1974. Thomson argues that the umbrella policy Continental issued to Technicolor covers losses resulting from orders from administrative agencies, as occurred here. Continental argues that its liability is limited to losses resulting from courtroom litigation.

After both parties moved for summary judgment on the question of whether coverage exists, the trial court ruled in Continental’s favor. Appellants/Plaintiffs Thomson Inc. n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor, Ltd. (collectively, “Thomson”) now appeal from the trial court’s grant of summary judgment in favor or Appellee/Defendant Continental Casualty Co. Finding that under California law, damages under the umbrella policy are limited to those as a result of courtroom litigation rather than administrative proceedings, we affirm.

NFP civil opinions today (2):

In Re: The Adoption of K.H.: S.H. (Mother) v. W.B. and B.B. (Guardians) (NFP)

Hugh Z. Nelson v. Renee Burtin (NFP)

NFP criminal opinions today (3):

Toni Cox v. State of Indiana (NFP)

Andra Dossey v. State of Indiana (NFP)

Steven Kamp v. State of Indiana (NFP)

Posted by Marcia Oddi on December 6, 2012 10:35 AM
Posted to Ind. App.Ct. Decisions