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Wednesday, July 20, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (2):

In Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill, a minor, et al. v. Erich E. Gephart, et al., a 5-page opinion on rehearing, Judge Mathias concludes:

Therefore, Charles’s testimony creates a genuine issue of material fact as to whether he was contributorily negligent in walking on the right side of the road instead of the left side as Indiana Code section 9-21-17-14 requires. Again, it is Charles’s burden at trial to rebut the presumption that he was contributorily negligent and acted reasonably in violating the statute.

Because Investigator Senefeld’s declaration and photos were admissible and we relied on Charles’s testimony to conclude that a genuine issue of material fact existed as to his contributory negligence, we grant Appellee’s motion for rehearing for the limited purpose of clarification and affirm our May 6, 2016 opinion in all other respects.

Kirsch, J., concurs.
Brown, J., would grant rehearing for the purpose of affirming the trial court, in accordance with her dissent expressed in the May 6, 2016 opinion.

In Milbank Insurance Company v. Indiana Insurance Company, et al. , a 20-page opinion, Judge Robb writes:
Milbank Insurance Company filed a declaratory judgment action seeking to determine, as between its personal auto policy and Indiana Insurance Company’s business auto policy, which policy was primary and which insurer owed a duty to defend and indemnify Sydney Mireles in an underlying personal injury action against her. On summary judgment, the trial court determined the Milbank policy was primary. Milbank now appeals, raising several issues which we consolidate and restate as whether the trial court erred in determining the Milbank policy was primary. Concluding Milbank’s appeal is untimely, but that regardless, the trial court did not err, we affirm.
NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of S.F., Father, and G.F. and S.S., Children, S.F. v. Indiana Department of Child Services (mem. dec.)

M. Jewell, LLC v. Ezeguiel Garcia and William Shoemaker (mem. dec.)

NFP criminal decisions today (2):

Isaac Perez v. State of Indiana (mem. dec.)

Larry W. Scroggins, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 20, 2016 01:15 PM
Posted to Ind. App.Ct. Decisions