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Tuesday, February 04, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP) [Updated]

For publication opinions today (4):

[2-5-14: Listed first below is a case that the ILB somehow missed yesterday]

In The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc. and Daniel L. Gutapfel, a 33-page, 2-1 opinion, Judge Mathias writes:

The Board of Commissioners of Jefferson County (“Jefferson County”) appeals the Scott Circuit Court’s entry of summary judgment in favor of Teton Corporation,
Innovative Roofing Solutions, Inc., Gutapfel Roofing Inc., and Daniel L. Gutapfel (collectively “the Appellees”). The trial court determined that Jefferson County waived its right to subrogate damages pursuant to the terms of the American Institute of Architects Contract (“the AIA Contract”) it entered into with the general contractor, Teton.

On appeal, Jefferson County raises the following dispositive issue: whether the trial court erred when it determined that the County waived its right to subrogate damages to non-Work property. We conclude that Jefferson County waived its right to subrogate any and all claims covered by its property insurance, and therefore, we affirm the trial court. * * *

In support of its argument, Jefferson County relies on our court’s prior decision concluding that under the AIA contract there is a distinction between Work and non-Work property, and the scope of the waiver is limited to damages to the Work. See Midwestern Indemnity Company v. Systems Builders, Inc., 801 N.E.2d 661 (Ind. Ct. App. 2004), trans. denied. * * *

For all of these reasons, we disagree with the Midwestern Indemnity panel and hold that, under the terms of the AIA contract, Jefferson County’s claims for damages against the Appellees are barred. We therefore affirm the trial court’s entry of summary judgment in favor of the Appellees. Affirmed.

NAJAM, J., concurs.
BROWN, J., dissents with separate opinion. [which begins at p.26 and concludes:] By adopting the Majority Approach, the majority extinguishes Jefferson County’s ability to attempt to recoup damages from Teton’s liability insurer based upon alleged negligence on the part of Teton and its subcontractors. For the reasons discussed above, I believe this to be error, and I would uphold Midwestern and the so-called “Minority Approach” as valid Indiana law, and allow Jefferson County to bring suit under these circumstances to recoup liability damages to non-Work property. I respectfully dissent.

In Jason A. Fishburn v. Indiana Public Retirement System, a 22-page opinion, Judge Brown writes:
Jason A. Fishburn appeals from the trial court’s ruling affirming the determination of the Indiana Public Retirement System (“INPRS”) of his disability benefit as a member of the 1977 Police Officers’ and Firefighters’ Pension and Disability Fund (the “1977 Fund”). Fishburn raises two issues which we consolidate and restate as whether the ruling of the trial court is erroneous. We affirm the ruling of the trial court and the agency determination.

[ILB - There are several interesting administrative law arguments discussed in the opinion and footnotes, including a rule of implementation (requiring promulgation) vs. a rule of administration, and the doctrine of legislative acquiescence.]

In the Matter of Des.B. and Dem.B., Minor Children in Need of Services, E.B. v. Indiana Department of Child Services

In Ruben Gonzalez v. State of Indiana, a 5-page opinion, Judge Friedlander writes:

Ruben Gonzalez was convicted and sentenced for class A felony Attempted Murder and class B felony Aggravated Battery. In this appeal, he challenges only the latter conviction, as well as an aspect of his sentence requiring him to pay restitution. Gonzalez presents the following restated issues for review:
1. Does the conviction for both attempted murder and aggravated battery constitute a double jeopardy violation?
2. Did the trial court improperly include in the restitution award the amount paid through worker’s compensation benefits for the victim’s permanent partial impairment?
We reverse and remand.
NFP civil opinions today (5):

In the Matter of C.U., A Child in Need of Services, C.U. and J.U. v. Indiana Department of Child Services (NFP)

Brian Brough v. C. Richard Rush (NFP)

James B.Wynne v. Review Board of the Indiana Department of Workforce Development and Thyssenkrupp Presta (NFP)

Paul Fletcher v. National Financial Services d/b/a Fidelity Investments and Mark Zupan (NFP)

In Re the Involuntary Termination of the Parent-Child Relationship of T.S., C.S., and I.S.: S.R. v. The Indiana Department of Child Services and Child Advocates, Inc. (NFP)

NFP criminal opinions today (5):

Jerry Cooper v. State of Indiana (NFP)

Steven Smith v. State of Indiana (NFP)

Junius U. Brooks v. State of Indiana (NFP)

Bradly Hornsby v. State of Indiana (NFP)

Ramon Santana, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on February 4, 2014 11:20 AM
Posted to Ind. App.Ct. Decisions