« Ind. Decisions - Supreme Court decides Indiana Gas (Rockport) case | Main | Ind. Decisions - More on: Supreme Court decides Indiana Gas (Rockport) case »

Tuesday, December 17, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Indiana Restorative Dentistry, P.C. v. The Laven Insurance Agency, Inc., and Proassurance Indemnity Company, Inc. f/k/a The Medical Assurance Company, Inc, a 25-page opinion, Judge Riley writes:

Appellant-Plaintiff, Indiana Restorative Dentistry, P.C. (IRD), appeals the trial court’s denial of its motion to correct error following the trial court’s summary judgment in favor of Appellee-Defendant, ProAssurance Indemnity Co, Inc. f/k/a The Medical Assurance Co., Inc. (ProAssurance).

IRD raises three issues on appeal, which we restate as:
(1) Whether Appellee-Defendant, Laven Insurance Agency, Inc. (Laven), was under a special duty to advise IRD about its insurance coverage where Laven and IRD had a long-term relationship;
(2) Whether Laven had a duty to procure full coverage insurance based on its past dealings with IRD; and
(3) Whether ProAssurance is vicariously liable for Laven’s actions. * * *

Based on the foregoing, we hold that (1) Laven was under a special duty to advise IRD about its insurance coverage based on their long-term relationship; (2) Laven had a duty to procure full coverage insurance based on its past dealings with IRD; and (3) there is a genuine issue of material fact as to whether Laven is ProAssurance’s agent and therefore ProAssurance can be held vicariously liable for Laven’s actions. Consequently, we reverse the trial court’s summary judgment in favor of ProAssurance and grant summary judgment to IRD with respect to Laven’s duty to advise and duty to procure. Additionally, we reverse the trial court’s summary judgment with respect of ProAssurance’s vicarious liability and remand to the trial court for further proceedings.

Reversed and remanded for further proceedings.

In Indiana High School Athletic Association, Inc. v. Gregory S. Schafer and Shane Schafer b/n/f Gregory S. Schafer, a 15-page opinion, Sr. Judge Shepard writes:
A trial court may award attorney’s fees when a party continues to litigate the case after the party’s claims have become frivolous, unreasonable, or groundless. Here, the trial court ordered fees after finding that the litigation conduct by the Indiana High School Athletic Association in trying to prevent a student from playing for his school demonstrated all three of these.

We conclude that, at the least, the trial court was within its discretion to hold that the course of conduct by IHSAA was “unreasonable” and that it could consider the multiple rulings adverse to IHSAA in reaching that decision.

We thus affirm the imposition of fees. * * *

Finally, we are not the first appellate court to take notice of IHSAA’s arbitrary and capricious decision-making toward the Schafers. Such decision-making can result in substantial harm to the individual student-athletes the rules are intended to serve. The Schafer I court pointed out the absurdity resulting from IHSAA’s positions in this case as follows: [quote omitted] Similarly, the Schafer II panel stated its disapproval of IHSAA’s tactics, quoting a prior decision that turned on a fee award due to IHSAA litigation tactics: [quote omitted]* * *

We associate ourselves with these observations without adding to them. The trial court did not abuse its discretion by awarding attorney’s fees to the Schafers.

For the reasons stated above, we affirm the judgment of the trial court.

In Jason Young v. Hood's Gardens, Inc., a 13-page, 2-1 opinion, Judge Riley writes:
Young raises two issues on appeal, which we restate as the following:
(1) Whether the trial court abused its discretion by striking portions of Young’s designated affidavit; and
(2) Whether the trial court erred when it granted summary judgment in favor of Hood’s. * * *

Based on the foregoing, we conclude that the trial court did not abuse its discretion by striking Young’s affidavit, and the trial court properly granted Hood’s Motion for summary judgment Affirmed.

ROBB, C. J. concurs
KIRSCH, J. dissents with separate opinion:

I respectfully dissent.

This case illustrates once again the marked difference in summary judgment procedure in Indiana as compared to federal practice. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 865 (Ind. Ct. App. 2010) (citing Cole v. Gohmann, 727 N.E.2d 1111, 1113 (Ind. Ct. App. 2000)). Federal summary judgment procedure requires summary judgment to be granted against a party who fails to establish an essential element of that party’s case as to which that party bears the burden of proof at trial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In contrast, under Indiana’s summary judgment procedure, the party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists. Id. at 865-66 (citing Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d 118, 123 (Ind. 1994)). Only after the moving party has met this burden with a prima facie showing that no genuine issue of material fact exists does the burden then shift to the non-moving party to establish that a genuine issue of material fact does in fact exist. Id. at 866.

Here, the dispute between the parties centered on whether the value of the work provided by Mead exceeded $1,000. As the moving party, Hood’s had the burden of establishing the absence of any genuine issue of material fact that the actual value of the services provided by Mead to Hood’s, the $600 contract price plus the value of the wood Mead was allowed to keep, did not exceed $1,000. However, Hood’s failed to designate any evidence to show that the value of the wood Mead was allowed to keep did not exceed $400, which would make the value of the services provided over $1,000. Mead testified that the wood was more valuable to him than the $600 in cash he received and that he made sure to clarify with Hood’s that the contract was for $600 plus the wood. Hood’s did not establish that the value of the wood combined with the $600 caused the value of services provided to it by Mead to not exceed $1,000.

The trial court found that, although it was possible that the wood did have a fair market value of over $400, Hood’s did not acknowledge it and that no evidence was presented that Hood’s was aware or should have been aware that the value of the wood exceeded $400. Under Indiana’s summary judgment procedure, unlike the federal procedure, the burden was on Hood’s to come forth with evidence to show that no genuine issue of material fact existed as to the value of the contract not exceeding $1,000, which Hood’s failed to do. I, therefore, vote to reverse the grant of summary judgment in favor of Hood’s and would remand for further proceedings.

NFP civil opinions today (2):

In the Matter of the Commitment of T.G. (NFP)

Donald L. Deputy v. Connie S. Deputy (NFP)

NFP criminal opinions today (6):

Christopher D. Bunch v. State of Indiana (NFP)

Kelly S. Craig v. State of Indiana (NFP)

Carl E. Ascherman v. State of Indiana (NFP)

Ayanna Earls v. State of Indiana (NFP)

Christopher Turner v. State of Indiana (NFP)

Adam S. Fiers v. State of Indiana (NFP)

Posted by Marcia Oddi on December 17, 2013 11:45 AM
Posted to Ind. App.Ct. Decisions