Tuesday, August 27, 2013
Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)
For publication opinions today (2):
In Consolidated Insurance Company v. National Water Services, LLC., a 14-page opinion, Judge Brown writes:
In this interlocutory appeal, Consolidated Insurance Company (“CIC”) appeals from the denial of its motion for judgment on the pleadings pursuant to Ind. Trial Rule 12(C) in favor of National Water Services, LLC (“NWS”). CIC raises one issue which we revise and restate as whether the court erred in denying its motion for judgment on the pleadings. We reverse and remand. * * *In Alec Lucas v. State of Indiana, a 7-page opinion, Judge Crone writes:
The situation presented by the instant case is not unlike those in Hockelberg, Meek, and Adkins. Again, the relevant subrogation clause found in Paragraph 19 states: “You must transfer to us all your rights of recovery against any person or organization for any loss you sustained and for which we have paid or settled. You must also do everything necessary to secure those rights and do nothing after loss to impair them.” Appellant’s Appendix at 20. This language is substantially similar to that in the cases discussed above. Also, just as in those cases, here NWS settled with Arnold and, in so doing, executed the Release which released Arnold “for all claims which [NWS] has or could have asserted, known and unknown, arising out of the employment of Arnold by NWS both as an employee and an independent contractor.” Id. at 49. This Release “after loss” destroyed CIC’s right of subrogation and was a breach of contract on NWS’s part, therefore discharging CIC from obligation under the Policy to provide coverage. Accordingly, we conclude that the court erred when it denied CIC’s motion for judgment on the pleadings.
In 2011, Lucas was charged with several criminal offenses, some of which were dismissed pursuant to a plea agreement. He later filed a petition pursuant to Indiana Code Section 35-38-5-5.5 to restrict access to his arrest records for the dismissed charges. The trial court denied the petition, concluding that the statute does not apply to cases where some, but not all, charges are dismissed pursuant to a plea agreement. Lucas now appeals, arguing that the trial court misinterpreted the statute. While the statute is not a model of clarity, we conclude that it was intended to apply to any dismissed charge and not just in cases where all charges have been dismissed. * * *NFP civil opinions today (1):
Public Law Number 159-2013, effective July 1, 2013, repealed Section 35-38-5-5.5 and created a new Chapter 35-38-9, titled “Sealing and Expunging Conviction Records.” New Section 35-38-9-1 allows a person to petition a court to seal arrest records if: “(1) the arrest did not result in a conviction or juvenile adjudication; or (2) the arrest resulted in a conviction or juvenile adjudication and the conviction or adjudication was vacated on appeal.” This new statute does not appear to be a clarification of the old statute, but rather a shift from focus on the disposition of individual charges to whether the arrest ultimately resulted in a conviction. The trial court’s approach, however, was more consistent with the new statute than with the statute in effect at the time. We conclude that the trial court erred in concluding that Section 35-38-5-5.5 does not apply to cases where some, but not all, charges are dismissed. As there does not appear to be any other basis in the statute for denying Lucas’s petition, we reverse and remand with instructions for the trial court to grant the petition and issue an order pursuant to Section 35-38-5-5.5(i).
NFP criminal opinions today (1):
Posted by Marcia Oddi on August 27, 2013 12:21 PM
Posted to Ind. App.Ct. Decisions