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Thursday, January 23, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In Chubb Custom Insurance Company, et al. v. Standard Fusee Corporation , a 22-page opinion, Judge Riley writes:

Appellants-Defendants, GAN North American Insurance Company (GAN) and Chubb Custom Insurance Company (Chubb) , appeal the trial court’s summary judgment and award of defense costs in favor of Appellee-Plaintiff, Standard Fusee Corporation. We reverse. * * *

[Issue] Whether, under Maryland law, the trial court erred in deciding that the total pollution exclusion clause in Appellants’ comprehensive general liability insurance policies is not applicable to Standard Fusee’s liability for the release of perchlorate and therefore Appellants’ duty to defend and indemnify was triggered. * * *

We expect that, our decision notwithstanding, interpretation of the scope of pollution exclusion clauses likely will continue to be ardently litigated throughout state and federal courts. We are also aware that courts may arrive at divergent decisions from our own within the specific context of perchlorate contamination. Yet, guided by Maryland’s rules for interpreting insurance contracts, we conclude that the total pollution exclusion clause applies and relieves Appellants of their duty to defend and indemnify the Standard Fusee in the underlying action.

Conclusion. Based on the foregoing, we conclude that the total pollution exclusion clause in Appellants’ comprehensive general liability insurance policies is applicable to Standard Fusee’s liability for the release of perchlorate and therefore Appellants’ duty to defend and indemnify is not triggered. Reversed.

In State of Indiana v. DeAngelo Banks , a 22-page opinion, Judge Brown writes:
The State appeals the trial court’s grant of DeAngelo Banks’s motion to suppress his confession of murder. The State raises one issue which we revise and restate as whether the court erred in granting Banks’s motion to suppress. We affirm. * * *

We are therefore confronted with an inadequate Miranda warning to an undeniably and seriously mentally ill suspect who was in the area of the Newcastle Correctional Facility where the mentally ill are housed apart from the general prison population, who was involuntarily medicated at the time and in restraints even during the interrogation at issue. Yet, despite these compelling and compromising facts and circumstances, the State chose to interview Banks, and secured the confession we now review.

There is substantial evidence supporting the trial court’s decision, and its decision is not contrary to law. Given our deferential standard of review, we affirm the trial court’s determination that Banks’s confession should be suppressed.

In A.J.R. v. State of Indiana, a 16-page opinion, Judge Robb writes:
A.J.R. appeals the juvenile court’s adjudication of A.J.R. as a delinquent based on conduct that would be criminal mischief, cruelty to animals, and aiding, inducing, or causing criminal mischief if committed by an adult. He raises three issues on appeal: (1) whether admission of certain testimony given by a police officer without notice from the State that the officer would testify as a skilled witness was an abuse of discretion; (2) whether there was sufficient evidence to prove A.J.R. shot two cattle; (3) assuming he shot the cattle, whether there was sufficient evidence to prove his acts constituted mutilation or torture of an animal. We hold that the juvenile court did not abuse its discretion by admitting the officer’s testimony, and the evidence is sufficient to prove A.J.R. shot two cattle and to sustain his adjudications for criminal mischief. However, concluding A.J.R.’s actions did not constitute mutilation or torture of an animal, we reverse his adjudications for cruelty to an animal. Accordingly, we affirm in part and reverse in part.
In Johnathon R. Aslinger v. State of Indiana , a 25-page opinion, Judge Riley writes:
The State is mistaken in its sequence of events; in fact, Officer Foster had to physically take the cigarette from Aslinger and then sniff it to detect any odor. Accordingly, because the seizure of the hand-rolled cigarette was unrelated to the purpose justifying the Terry stop and not subject to seizure under the plain view doctrine, Officer Foster did not have probable cause to make an arrest and conduct an incidental search. We find the trial court abused its discretion in admitting the marijuana joint, methamphetamine, and paraphernalia (with the exception of the second pipe, which was thought to have been a knife) because no warrant or warrant exception authorized their seizure. * * *

Based on the foregoing, we conclude that, the trial court erred in admitting the evidence seized in violation of Aslinger’s Fourth Amendment rights and in imposing consecutive HSO sentence enhancements; we thus reverse and remand the conviction for Case #127. We further conclude that, in Case #152, the trial court did not err in excluding Aslinger’s jury instruction, and his sentence for dealing methamphetamine is not inappropriate in light of the nature of the offense and character of the offender.

KIRSCH, J. concurs
ROBB, J. concurs with concurring opinion [J. Robb concurs, beginning at p. 23] I concur in the majority opinion. However, I write separately regarding the search and seizure in Case #127 because I believe the majority’s statement of law applicable to the plain view doctrine is too broad.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: R.A.B. (Minor Child) and Z.T.B. (Mother) & R.W.B. (Father) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Dexter Hawkins v. State of Indiana (NFP)

Tyrone Shelton v. State of Indiana (NFP)

Posted by Marcia Oddi on January 23, 2014 10:55 AM
Posted to Ind. App.Ct. Decisions