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Tuesday, December 10, 2013

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In David Didion and Kristi Didion as Parents and Legal Guardians of Brayden Didion v. Auto-Owners Insurance Company, a 12-page opinion (with a separate concurring opinion), Judge Bradford writes:

In June of 2008, Braydon Didion was playing in the yard of a Gas City house (“the House”) being lived in by Michael Carl when he was allegedly bit in the face by Michael’s dog and injured (“the Loss”). Von Carl and Ginger Hawk, who lived in Kentucky at the time, owned the House and had home owner’s insurance pursuant to a policy with Appellee Auto-Owners Insurance Company (“the Policy”). Michael did not notify Auto-Owners, Von, or Ginger of the Loss. Braydon’s parents, Appellants David and Kristi Didion (“the Didions”), filed suit against Michael and eventually named Ginger as a defendant. Ultimately, default judgment was entered against Michael and Ginger, although the judgment as to Ginger was subsequently set aside. Most likely in July of 2009, Ginger became aware of the Loss and the lawsuit and soon notified her insurance agent of both. In February of 2012, Auto-Owners filed a complaint, seeking a declaratory judgment that it had no liability for the Loss. The trial court entered summary judgment in favor of Auto-Owners. The Didions claim on appeal that the trial court erred in concluding that (1) Michael was not an insured under the terms of the Policy and (2) Auto-Owners was not given timely notice of the Loss. Concluding that Michael was not an insured and that Auto-Owners was not given timely notice of the Loss pursuant to the terms of the Policy, we affirm. * * *

We must conclude that Ginger’s failure to notify Auto-Owners of the Loss until over year had passed did not satisfy her obligation to do so “as soon as possible.” We have little trouble concluding that the length of delay in this case was unreasonable. * * *

Ginger’s obligation to report the Loss to Auto-Owner’s was not altered by her ignorance of it. The trial court correctly concluded that Auto-Owner’s did not receive timely notice.

MAY, J., concurs.
BAILEY, J., concurs in result with opinion. [in an opinion that begins on p. 11 of 12] I agree with the majority that the trial court did not err when it entered summary judgment against the Didions on the question of the availability of insurance coverage for Michael under the homeowners’ insurance policy of his sister, Ginger, and I concur in the majority’s reasoning on that point. I write separately because I do not think there is any need to examine the question of the timeliness of notice.

NFP civil opinions today (2):

Sheryl A. Payne v. Thomas L. Payne (NFP)

Kennith Howard v. Erica Lofton (NFP)

NFP criminal opinions today (6):

Robert Jackson v. State of Indiana (NFP)

Raymond B. Baker v. State of Indiana (NFP)

Dabian Dorion Boyd v. State of Indiana (NFP)

Jessica L. Ryhe v. State of Indiana (NFP)

Aaron Edward Belcher v. State of Indiana (NFP)

Timothy D. Driscoll, Jr v. State of Indiana (NFP)

Posted by Marcia Oddi on December 10, 2013 10:59 AM
Posted to Ind. App.Ct. Decisions