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Thursday, June 19, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Thomson Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al., and XL Insurance America, et al. , an 88-page (!!!), 2-1 opinion, involves complex environmental insurance issues originating from a class action. From Judge Crone's introduction:

In 2004, a group of former factory workers and their heirs filed a class-action lawsuit in Taiwan (“the Taiwan Class Action”) against Thomson Consumer Electronics Television Taiwan Ltd. (“TCETVT”), a Taiwanese company which owned and operated an electronics manufacturing plant in Taiwan from the late 1980s to 1992. The workers sought damages for bodily injury allegedly resulting from exposure to organic solvents while working in the plant and living in dormitories near the plant. Over 99% of TCETVT’s stock is owned by Thomson Consumer Electronics (Bermuda) Ltd. (“TCEB”), and less than .01% is owned by Thomson Inc. n/k/a Technicolor USA, Inc. (“Thomson”), a Delaware corporation with its headquarters in Indiana. Both TCEB and Thomson are wholly owned subsidiaries of French electronics company Thomson SA.
Judge Crone's conclusions, joined by Judge Bradford, are listed on p. 82; Chief Judge Vaidik's partial dissent begins on p. 84 with:
I applaud the well-written and well-reasoned opinion of my colleagues, and I wholeheartedly concur in all but one respect. I respectfully disagree with my colleagues’ conclusion that XL/Century is only liable for the portion of damages that occurred in its policy periods. Rather, I agree with the trial court that the XL/ Century policies’ use of the phrase “those sums” instead of “all sums” does not constitute the clear proration language that our Supreme Court in Dana II Court noted that insurers needed to use to limit their liability to only those damages that occur in their policy period. I would affirm the trial court’s entry of summary judgment in favor of Thomson on this issue.
NFP civil opinions today (0):

NFP criminal opinions today (3):

In State of Indiana v. Randall Scott Stiverson (NFP), a 6-page opinion, Judge Crone writes:

Randall S. Stiverson was involved in a car crash and was taken to the hospital. Randall consented to a blood draw and admitted that he had previously smoked “spice.” The standard drug panel came back with no positive results. The prosecutor requested that the blood be tested for synthetic cannabinoids, and the test showed that AM-2201, a synthetic cannabinoid, was present in Stiverson’s blood. The State charged Stiverson with class D felony operating a vehicle while intoxicated causing serious bodily injury and class A misdemeanor operating a vehicle while intoxicated in a manner that endangered a person. Stiverson filed a motion to dismiss the charges contending that AM-2201 was legal for him to use at the time of the accident. The trial court granted the motion to dismiss on the basis that AM-2201 was not listed in a statute outlawing the inhalation of toxic vapors.

On appeal, the State contends that the trial court erred in granting Stiverson’s motion to dismiss on that basis. We agree. Therefore, we reverse and remand for further proceedings. * * *

The State argues that the trial court erred in granting Stiverson’s motion to dismiss on the basis that AM-2201 is not one of the substances listed in Indiana Code Section 35-46-6-2(2). We agree. Indiana Code Section 35-46-6-2(3) references “any other chemical having the property of releasing toxic vapors,” and Stiverson has never disputed the State’s assertion that AM-2201 is a chemical having the property of releasing toxic vapors. As such, it is undisputed that AM-2201 is “a substance described in IC 35-46-6-2” for purposes of Indiana Code Section 9-13-2-86(4), and therefore the State may prosecute Stiverson for operating a vehicle while intoxicated as a result of being under the influence of AM-2201. This is so even though it was not illegal for Stiverson to use AM-2201 at the time of the accident. Accordingly, we conclude that the trial court abused its discretion in granting Stiverson’s motion to dismiss and reverse and remand for further proceedings consistent with this opinion.

Raven N. Young v. State of Indiana (NFP)

Clifford J. Elswick v. State of Indiana (NFP)

Posted by Marcia Oddi on June 19, 2014 11:33 AM
Posted to Ind. App.Ct. Decisions