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Tuesday, September 17, 2013

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Bartholomew County and Bartholomew County Commissioners v. Doug Johnson and Lucretia Johnson v. C & H/M Excavating and Construction, Inc., and Christopher B. Burke Engineering, LTD., a 21-page opinion, Judge Crone writes in his case summary:

Bartholomew County and the Bartholomew County Commissioners (collectively, “the County”) contracted with two companies to design and construct a replacement bridge on a county road. After the bridge was constructed, Doug and Lucretia Johnson’s nearby property was damaged by flooding. The Johnsons filed a complaint against the County, alleging that it had negligently designed, constructed, maintained, and operated the bridge, which contributed to the flooding. The County filed a third-party complaint against the bridge’s designer and builder, alleging that they were the real parties in interest.

The County also filed a motion for summary judgment, alleging that it was entitled to immunity from liability for the acts or omissions of the designer and builder pursuant to Indiana Code Section 34-13-3-3(10), which provides that “[a] governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from … [t]he act or omission of anyone other than the governmental entity or the governmental entity’s employee.” In support of its immunity argument, the County relied on Hinshaw v. Board of Commissioners of Jay County, 611 N.E.2d 637 (Ind. 1993). The Johnsons argued that the County had a non-delegable duty to design and construct the bridge and therefore could not avoid liability by blaming the designer and builder. In support of their argument, the Johnsons relied on Shand Mining, Inc. v. Clay County Board of Commissioners, 671 N.E.2d 477 (Ind. Ct. App. 1996), trans. denied (1997), and City of Vincennes v. Reuhl, 672 N.E.2d 495 (Ind. Ct. App. 1996), trans. denied (1997), neither of which mentions Hinshaw.

The bridge designer filed a summary judgment motion asserting that the bridge was not negligently designed, which the trial court denied. The bridge builder filed a summary judgment motion asserting that the bridge was not negligently constructed, which the trial court granted. The trial court entered summary judgment for the County as to the Johnsons’ negligent construction claims but denied the County’s summary judgment motion on the issue of immunity, finding that the County had a non-delegable duty to “provide appropriate bridges” and therefore was not immune from liability for the acts or omissions of the bridge designer.

The County now appeals, arguing that Hinshaw requires reversal of the trial court’s ruling and that Shand Mining and Reuhl were wrongly decided. The Johnsons contend that the County’s appeal is frivolous and in bad faith and request an award of attorneys’ fees pursuant to Indiana Appellate Rule 66(E). We agree with the County that, pursuant to Hinshaw, it is entitled to immunity from liability from any loss resulting from the acts or omissions of the bridge designer. Under Indiana law, a principal may be liable for the negligence of its independent contractor only if the contractor was performing a non-delegable duty; Indiana Code Section 34-13-3-3(10) would be useless if it did not provide immunity to a governmental entity for a loss resulting from an independent contractor’s performance of a non-delegable duty, and we presume that the legislature did not enact a useless provision. Therefore, we reverse the trial court’s ruling on the immunity issue and respectfully disagree with Shand Mining and Reuhl to the extent that they conflict with our supreme court’s opinion in Hinshaw. Because the County’s summary judgment motion was directed only toward the negligence of third parties and the Johnsons’ negligent design and construction claims, we remand for further proceedings as to the negligent maintenance and operation claims. Because we have determined that the County’s immunity argument prevails, we deny the Johnsons’ request for attorneys’ fees.

In Evergreen Shipping Agency Corp., v. Djuric Trucking, Inc., a 6-page opinion, Judge Vaidik writes:
Evergreen Shipping Agency Corp. (“Evergreen”) appeals the award of attorney’s fees to Djuric Trucking, Inc. (“Djuric”). Evergreen contends that the award is barred by res judicata and that Djuric waived its claim to attorney’s fees. Because we conclude that the award is not barred by res judicata and Djuric has not waived its claim, we affirm.
In Nancy A. Missig v. State Farm Fire & Casualty Company, Andre M. Missig, and Autumn Missig, a 29-page opinion, Judge Baker writes:
Today we are confronted with the issue of whether the appellee-defendant State Farm Insurance Company (State Farm) had a duty to inquire about the circumstances surrounding a particular land sale transaction before issuing a homeowner’s policy to individuals who may have had an interest in the insured property. Specifically, it was contended that the appellant-plaintiff Nancy Missig’s interest in the particular real property was a matter of public record and, therefore, State Farm had sufficient notice of Nancy’s interest in the property before issuing the policy to her son and daughter-in-law, the appellees-defendants Autumn and Andre Missig. As a result, Nancy claims that State Farm was negligent in issuing the policy without naming her as an insured in the policy.

The trial court entered sixty-nine findings of fact and conclusions of law, and granted equitable relief to Nancy against Andre and Autumn for the full unpaid balance owed under a land contract plus accrued interest. The trial court also granted a lien and constructive trust in Nancy’s favor with regard to other property that Autumn had purchased with the insurance proceeds that State Farm had paid her and Andre following the loss of another residence in a fire. However, it determined that Nancy was not entitled to relief from State Farm.

Andre also cross-appealed, claiming, among other things, that State Farm was liable for failing to take any steps to recover the proceeds of the check that State Farm had issued where Autumn had forged his signature. Andre also maintained that the trial court erred in not ordering State Farm to pay Nancy for her insurable interest in the real estate because it had notice or knowledge of Nancy’s claim to the fire loss proceeds, that State Farm was negligent in issuing the homeowner’s policy, and that it breached a duty of good faith to its policy holders because it purportedly failed to inquire as to all of the insurable interests in the residence that sustained a loss in the fire. Finally, Andre asserted that he is entitled to indemnification by State Farm for an amount that is allegedly owed to Nancy for her insurable interest in the residence.

We note that Andre raises several of these issues for the first time in his brief on cross-appeal. Moreover, the circumstances properly established that Autumn and Andre were liable to Nancy, and the trial court correctly determined that State Farm had no liability to Andre for Autumn’s actions, and no evidence was presented that State Farm breached any duty of good faith and fair dealing to Andre.

Finally, the circumstances showed that Andre was under a duty to pay Nancy some of the insurance proceeds, and his failure to do so superseded any alleged wrongful conduct on State Farm’s part. As a result, we affirm the trial court’s judgment.

In Nathan K. Barker v. State of Indiana, a 15-page opinion, Judge Crone writes:
Twenty-two-month-old J.S. died shortly after he was babysat by his mother’s live-in boyfriend, Nathan K. Barker. Early in the afternoon, Barker had called J.S.’s mother (“Mother”) at work and told her that J.S. had fallen off the couch. He said that he had called for an ambulance and that the paramedics had said that the child was fine. In fact, he had never called for help. Later that night, Mother called 911, and by the next morning J.S. was on life support. J.S. died later that day, and an autopsy showed that he had suffered massive brain injuries as well as injuries to his abdomen, eyes, mouth, shoulder, thigh, buttocks, and penis.

The State charged Barker with class A felony neglect of a dependent causing death, class A felony battery causing death, and class D felony neglect of a dependent. Barker agreed to plead guilty to class A felony neglect of a dependent causing death, and in exchange, the State agreed to dismiss the remaining charges and to cap the executed portion of his sentence at forty years. The court sentenced Barker to forty-five years, with forty years executed and the remainder suspended to probation, with 120 days to be served on home detention.

Barker now appeals, claiming that the trial court abused its discretion in designating aggravating and mitigating factors and in imposing a term that exceeded the forty-year cap on the executed portion of his sentence. He also claims that his sentence is inappropriate in light of the nature of the offense and his character. Finding that the imposition of 120 days of home detention causes the executed portion of Barker’s sentence to exceed the forty-year cap, we remand for a new sentencing order on that issue. In all other respects, we affirm his sentence.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Kenneth F. Kipp v. State of Indiana (NFP)

Eric G. Couthen v. State of Indiana (NFP)

Spiros Alatorre v. State of Indiana (NFP)

Dellia Castile v. State of Indiana (NFP)

Katherine Cervantes v. State of Indiana (NFP)

Jennifer Rose Peverly v. State of Indiana (NFP)

Posted by Marcia Oddi on September 17, 2013 10:16 AM
Posted to Ind. App.Ct. Decisions