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Thursday, October 29, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (2):

In Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Southern Indiana Gas and Electric Co. d/b/a Vectren Energy Delivery of Indiana, Inc., Ind. Utility Regulatory , a 34-page opinion, Judge Bradford writes:

On January 17, 2014, Appellee-Petitioner Southern Indiana Gas and Electric Company d/b/a Vectren Energy Delivery of Indiana (“Vectren”), a public utility company which provides electricity to southern Indiana residents, filed a petition with Appellee the Indiana Utility Regulatory Commission (“the Commission” or “IURC”) for approval of projects to modify their current coal-powered generating stations so as to meet new EPA standards. The petition also requested financial incentives and reimbursement from ratepayers for costs associated with the projects. Appellants-Intervenors Citizens Action Coalition of Indiana, Inc., (“CAC”) Sierra Club, Inc., and Valley Watch, Inc. (collectively “Appellants”) intervened in the action and, in addition to the Indiana Office of Utility Consumer Counselor1 (“OUCC”), opposed Vectren’s petition. Appellants argued that retiring some or all of Vectren’s current coal-powered generators and replacing them with new natural gas-powered generators was a more cost-effective plan than Vectren’s proposal to install emission controls on its current generators. Ultimately, the OUCC ceased its opposition to Vectren’s proposal prior to the Commission’s decision.

The Commission found that Vectren’s proposal was reasonable and necessary, approved the proposal, and granted Vectren’s request for reimbursement of project costs. On appeal, Appellants argue that the Commission failed to make necessary findings on (1) facts material to its determination of the issues and (2) statutory factors required to be addressed prior to authorizing the use of clean coal technology. In response, Vectren claims that Appellants’ appeal is moot and that the Commission made all necessary findings. We find that the Commission erred in failing to make findings on the factors listed in Indiana Code section 8-1-8.7-3 and, accordingly, we remand with instructions. * * *

We find that (1) the Appellants’ claims are not moot, (2) the Commission did not err in failing to consider the necessity of Culley unit 2 or the reasonableness of Vectren’s delay in filing its petition, and (3) regarding the soda ash and hydrated lime injection systems, the Commission erred by failing to make findings on the statutory factors listed in Indiana Code section 8-1-8.7-3 and by failing to grant or deny Vectren’s request for a CPCN thereunder. Accordingly, we remand the case to the Commission with instructions that the Commission make the required findings under Chapter 8.7.

In State Farm Mutual Automobile Insurance Company v. Carol Jakubowicz, Individually, and as Parent and Legal Guardian of Jacob Jakubowicz and Joseph Jakubowicz, Minors, a 12-page opinion, Judge Riley writes:
Appellant-Defendant, State Farm Mutual Automobile Insurance Company (State Farm), appeals the trial court’s denial of its motion for summary judgment in favor of Appellees-Plaintiffs, Carol Jakubowicz, Individually, and as Parent and Legal Guardian of Jacob and Joseph Jakubowicz, Minors (Collectively, Jakubowicz). We reverse and remand. * * *

State Farm raises one issue on appeal, which we restate as: Whether the trial court properly denied summary judgment when it determined that Jakubowicz’ underinsured motorist vehicle claim against State Farm is not barred even though it was filed outside the policy’s three-year limitations period for claims arising under the underinsured motorist coverage. * * *

Here, the collision occurred on August 2, 2007 and thus, pursuant to the provisions of the policy, Jakubowicz had to present State Farm with an underinsured motor vehicle claim and file a lawsuit within three years, i.e., by August 2, 2010. Jakubowicz filed her Amended Complaint on July 27, 2011, almost a full year outside the contractual limitation period. Even if we were to construe Jakubowicz’ notification to State Farm on December 10, 2009 that a claim was “likely” to be instituted, Jakubowicz would still not be in compliance with the provisions of the policy as these require both the notification of the claim and the lawsuit to be filed within the three-year contractual limitation period. Therefore, we reverse the trial court’s denial of State Farm’s motion for summary judgment and we remand with instruction to grant summary judgment to State Farm.

NFP civil decisions today (0):

NFP criminal decisions today (7):

D.S. v. State of Indiana (mem. dec.)

J.K. v. State of Indiana (mem. dec.)

Aaron Brubaker v. State of Indiana (mem. dec.)

Jeremy Tidmore v. State of Indiana (mem. dec.)

William Craven v. State of Indiana (mem. dec.)

Christina L. Reber v. State of Indiana (mem. dec.)

Jennifer Gibson Pearson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 29, 2015 11:02 AM
Posted to Ind. App.Ct. Decisions