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Wednesday, June 04, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Lori Nicklas v. Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber; and Von Tobel Lumber Company, Inc., an 8-page opinion, Judge Robb writes:

Lori Nicklas (“Lori”) appeals the trial court’s grant of summary judgment in favor of Von Tobel Corporation (“Von Tobel”) and its denial of her summary judgment motion. Lori raises three issues for review, which we consolidate and restate as whether the trial court erred when it granted summary judgment in favor of plaintiff Von Tobel and against Lori after Von Tobel had obtained a judgment against her co-defendant, Shawn Nicklas (“Shawn”) in the same proceeding. Concluding summary judgment in favor of Von Tobel was proper, we affirm. * * *

Concluding Von Tobel’s claim against Lori was not extinguished by its agreement with Shawn, claim preclusion does not apply, and Von Tobel is not placed in a better position than if the contract had not been breached, we affirm.

In Michael W. Palmby v. Karen M Palmby, a 9-page opinion, Judge Riley writes:
[Issue] Whether the trial court abused its discretion when it denied Michael’s request to revoke spousal maintenance which the parties had agreed upon and the trial court had incorporated in the final divorce decree. * * *

Mindful of the “great restraint” which we should exercise in reviewing settlement agreements, we cannot say that the trial court abused its discretion in denying Michael’s request to revoke the spousal maintenance and instead modified the payment terms of the accumulated rehabilitative maintenance. See Voigt, 670 N.E.2d at 1277.

In Indiana Insurance Company v. Patricia Kopetsky, and KB Home Indiana Inc., a 34-page opinion, Judge Bradford writes:
In 1998, Appellee/Defendant KB Home Indiana Inc., f/k/a Durabuilders, Inc. (“KB Home”) entered into an agreement (“the Agreement”) to purchase lots from Appellee/Defendant/Counterclaim Plaintiff Patricia Kopetsky’s late husband George Kopetsky in Cedar Park, a housing development being developed by George. In the Agreement, George represented that he was unaware of any contamination in Cedar Park at the time of the Agreement’s execution. Additionally, George indicated that at each lot closing, he would certify that he had not received any notice from any governmental agency or private person concerning the existence of any toxic or hazardous waste on that lot. After purchasing over sixty lots from George, KB Home became aware that some of the lots it had purchased contained contaminants. In 2007, KB Home filed suit against George and other defendants, alleging that George knew of possible contamination in the Cedar Park lots as early as April of 2002, he was negligent in failing to notify KB Home of potential environmental issues, he breached the Agreement by violating the requirement that he inform KB Home if he received notice concerning the presence of toxic waste, and he committed constructive fraud on KB Home.

In April of 2009, Appellant/Plaintiff/Counterclaim Defendant Indiana Insurance Company, who at relevant times had been George’s commercial general liability (“CGL”) insurance carrier, filed a declaratory judgment action against George and KB Home, asking for a declaration that it had no duty to defend and/or indemnify George in KB Home’s suit against him. George filed a counterclaim against Indiana Insurance, alleging that it had breached its insurance contracts (“the Policies”) with George in bad faith. In 2010, George passed away, and Patricia was substituted as a defendant and counterclaim plaintiff. Ultimately, the trial court granted summary judgment in favor of Patricia on the coverage question but dismissed her bad faith counterclaim. Indiana Insurance contends that the trial court erred in granting Patricia summary judgment because (1) no damages were alleged by KB Home that qualify as “property damage” under the Policies; (2) the damages alleged were not the result of an “occurrence” under the Policies; (3) the Policies’ “expected and intended” exclusion barred coverage; (4) the Policies’ “contractual liability” exclusion barred coverage; (5) the “known loss” doctrine barred coverage; (6) Patricia was not properly substituted for George in the underlying lawsuit as counterclaim plaintiff; and (7) the trial court erred in concluding that Indiana Insurance would have to indemnify Patricia for any judgment rendered in KB Home’s favor. Patricia cross-appeals, claiming that the trial court erred in dismissing her bad faith claim against Indiana Insurance. Concluding that there is a genuine issue of material fact as to whether the known loss doctrine bars coverage and that the question of whether Indiana Insurance is obligated to indemnify Patricia is not yet ripe for adjudication, we affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings.

In In the Matter of the Supervised Estate of Mildred Borgwald, Deceased v. Old National Bank and Raelynn Pound , a 17-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that (1) the trial court properly excluded the testimony of Dr. Lalouche pursuant to Evid. R. 702; (2) the Estate was not denied the opportunity to make an offer of proof regarding Dr. Lalouche’s anticipated testimony; (3) the trial court did not abuse its discretion by admitting redacted, certified copies of medical records; and (4) ONB’s mortgage was not invalidated.
NFP civil opinions today (2):

Shemika L. Boyd v. Review Board of the Indiana Department of Workforce Development and Amazon Com INDC, LLC (NFP)

Nathan Feguson and Deanna Ferguson v. Shiel Sexton Company, Inc. d/b/a Shiel Sexton, And WR Dunkin & Son, Incorporated; Lynch, Harrison & Brumleve, Inc.; et al (NFP)

NFP criminal opinions today (6):

Marilee Garrison v. State of Indiana (NFP)

Corday C. Dixon v. State of Indiana (NFP)

Dennis Daniels v. State of Indiana (NFP)

Aubrey Thompson v. State of Indiana (NFP)

>Jason Severs v. State of Indiana (NFP)

Jacob Lutz v. State of Indiana (NFP)

Posted by Marcia Oddi on June 4, 2014 11:12 AM
Posted to Ind. App.Ct. Decisions