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Wednesday, October 29, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Gary Lamb v. Mid Indiana Service Company, Inc., B2 Contractors, LLC, C&M Wrecking Inc., and C&M Trucking & Excavating Inc., a 7-page opinion, Sr. Judge Sharpnack writes:

Gary Lamb, while working for Kingdom Electric, a subcontractor together with others of Mid Indiana Service Company, Inc., the general contractor for a construction project, sustained injuries when a trench partially collapsed. Lamb sued Mid Indiana and others to recover damages for his injuries. Mid Indiana moved for summary judgment and Lamb responded. Both parties designated evidence. The trial court granted summary judgment and entered final judgment for Mid Indiana. Lamb appeals. We reverse and remand.

The issue presented is whether there are any genuine issues of material fact shown in the designated evidence which preclude summary judgment for Mid Indiana. * * *

Here, although the general contractor may not have assumed responsibility for providing a safe work place for all subcontractors, by its actions through Conarro it created a condition in the work place that posed an unreasonable risk of harm to Lamb. Thus, there are genuine issues of material fact that preclude summary judgment for Mid Indiana.

In Robert A. Masters v. Leah Masters, a 7-page opinion, Judge Najam writes:
In this contentious dissolution action, the parties submitted to arbitration pursuant to the Family Law Arbitration Act, Indiana Code Sections 34-57-5-1 to -13. After several hearings, the arbitrator entered numerous findings of fact and conclusions of law, and the trial court reduced the arbitrator’s findings and conclusions to judgment accordingly. See Ind. Code § 34-57-5-7 (2014). In her findings and conclusions, the arbitrator, among other things, dissolved the marriage of Robert A. Masters (“Husband”) and Leah Masters (“Wife”); valued and distributed the vast majority of the marital assets; resolved questions of child custody, support, and parenting time; and determined the parties’ respective incomes, whether actual or imputed. In particular, the arbitrator found that Husband had an annual income of $80,000; that he must immediately pay $17,735 in back child support; that he must pay to Wife $23,965.05 in cash within 100 days of the arbitrator’s order to equalize the parties’ marital assets; that he must replenish $51,000 in the parties’ bank accounts; and that he should be awarded $93,843 in the valued portion of the marital estate. The arbitrator then ordered Husband to pay $95,000 of Wife’s attorney’s fees.

On appeal, Husband challenges only the arbitrator’s finding that he pay $95,000 of Wife’s attorney’s fees. We hold that the arbitrator’s finding is clearly erroneous because it does not consider Husband’s ability to pay Wife’s attorney’s fees in light of his earnings, living expenses, and valued assets, or in light of the other obligations the arbitrator imposed on Husband. Further, we reject Wife’s arguments on cross-appeal as well as each party’s request under Appellate Rule 66(E) for appellate attorney’s fees. * * *

In sum, the arbitrator’s order that Husband pay $95,000 to Wife for her attorney’s fees is clearly erroneous. As such, we reverse and remand on that issue. We reject Wife’s arguments on cross-appeal as well as each side’s request for appellate attorney’s fees under Appellate Rule 66(E).

In Tom Seeber v. General Fire and Casualty Company, Indiana Insurance Company, and Peerless Indemnity Insurance Company, an 18-page opinion, Judge Bradford writes:
In the fall of 2008, Appellant-Plaintiff Tom Seeber owned a commercial building located on North College Avenue in Bloomington (the “Building”). The Building was leased to Harry and Karen Kidwell, who operated Delilah’s Pet Shop. On November 3, 2008, the Building was destroyed by fire and determined to be a total loss. At the time of the fire, Seeber had an insurance policy for the Building that was issued by Appellee-Defendant General Fire and Casualty Company (“General Fire & Casualty”). The Kidwells had an insurance policy relating to their interests in the Building that was issued by Appellees-Defendants Indiana Insurance Company and Peerless Indemnity Insurance Company (collectively, “Indiana Insurance”). As a result of the fire, General Fire & Casualty and Indiana Insurance (collectively, “the Insurance Companies”) agreed that the actual cash value of the Building was $512,418.12 and the replacement cost was $650,812.70. The Insurance Companies thereafter collectively paid Seeber the full $512,418.12 actual cash value of the building.

Seeber subsequently claimed that he was entitled to receive the full $650,812.70 replacement cost of the building. Seeber filed a complaint for declaratory judgment on November 1, 2010, asking the trial court to interpret his rights under the relevant insurance policies. On December 30, 2013, Seeber filed a motion for summary judgment, along with designated evidence and a memorandum in support of his motion. Also on December 30, 2013, General Fire & Casualty and Indiana Insurance each filed motions for summary judgment, designated evidence, and supporting memoranda. The trial court conducted a hearing on all outstanding motions on March 21, 2014. On April 17, 2014, the trial court entered an order denying Seeber’s motion for summary judgment and granting summary judgment in favor of the Insurance Companies.

On appeal, Seeber contends that the trial court erred in denying his request for summary judgment and in granting summary judgment in favor of the Insurance Companies. Seeber specifically claims that the Insurance Companies were not entitled to an award of summary judgment because, under the applicable policy language, he was entitled to recover $650,812.70, the replacement cost of the building that was destroyed by fire. Concluding that the trial court properly denied Seeber’s request for summary judgment and granted summary judgment in favor of the Insurance Companies, we affirm.

NFP civil opinions today (2):

Auto-Owners Insurance Company v. Edward Foster (NFP)

Brent Wroblewski and Gretchen Wroblewski v. Angelo G. Valle (NFP)

NFP criminal opinions today (5):

Joel McGee v. State of Indiana (NFP)

Mauricio Reyes-Flores v. State of Indiana (NFP)

Alvin Donald Grisby v. State of Indiana (NFP)

James M. Burton v. State of Indiana (NFP)

Jeremy J. Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2014 11:24 AM
Posted to Ind. App.Ct. Decisions