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Thursday, January 19, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (3):

In Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White v. Commissioner of Indiana Department of Insurance, and Douglas J. Hill, Esq., Medical Review Panel Chair, a 21-page, 2-1 opinion, Judge Robb writes:

On September 7, 2012, Elizabeth White visited Dr. Sonya Campbell Johnson at Dermatology Associates, P.C. (collectively, the “Providers”), for laser hair removal on her face. Due to a reaction between the makeup White was wearing and the treatment, part of White’s face was burned and remained discolored thereafter. In 2013, White filed a complaint for medical negligence against the Providers directly with the trial court, seeking damages in an amount not greater than $15,000 for her injury. Later, White moved to dismiss that complaint. The trial court granted the motion to dismiss without prejudice, and on November 18, 2014, White filed a proposed complaint with the Indiana Department of Insurance. The Providers filed a petition for preliminary determination and a motion for summary judgment alleging White failed to timely file her claim with the Department of Insurance. The trial court denied the motion for summary judgment but certified its order for interlocutory appeal. The Providers raise one restated issue for our review: whether the trial court erred in denying their motion for summary judgment. Concluding the statute of limitations bars White’s action and the Providers are entitled to judgment as a matter of law, we reverse. * * *

The facts of this case are not in dispute. The Providers have shown that White did not file her proposed complaint with the Department of Insurance within two years of her action accruing. White in turn has failed to establish she is entitled to the benefit of Indiana Code sections 34-18-8-6(c) and 34-18-7-1(c) extending the statute of limitations in certain circumstances. Section 34-18-8- 6(c) imposes certain requirements on the ability to benefit from the extended time to file a medical negligence action, and White has failed to meet those requirements. White had every right to dismiss and refile her cause of action in order to seek additional damages, but under these facts, she needed to do so within the two-year statute of limitations.

Conclusion. The Providers are entitled to judgment as a matter of law on their motion for summary judgment alleging White’s proposed complaint was filed with the Department of Insurance outside the applicable statute of limitations. The trial court’s denial of the motion is reversed.

Brown, J., concurs. Mathias, J., dissents. [with an opinion that begins, on p. 18] I respectfully dissent. The majority’s explanation of the statutory framework of the issue before us is commendable. I disagree only with the majority’s interpretation of this statutory framework. * * *

The majority concludes that White failed to allege that she learned anything new or different about her injury after filing her original complaint. However, she averred that the discoloration still remained. Thus, because the discoloration had still not improved, White came to the personal conclusion that a lifetime of facial disfiguration was worth more than $15,000. In terms of the statute, White “learned” that her claim, based upon her permanent facial disfiguration, was worth more than $15,000. Under the facts and circumstances before us, I think a woman’s ultimate decision that a lifetime of facial disfiguration was worth more than $15,000 is something she could, and here did, “learn” from looking into the mirror every day, trying without success to use make-up to make the scarring less noticeable. I believe this alone is sufficient to trigger the 180-day extension provided for by Indiana Code section 34-18-7-1(c).

Accordingly, I would affirm the trial court’s denial of the Provider’s motion for summary judgment.

In George S. Fischer v. Jennifer M. Fischer , a 16-page opinion, Judge Robb writes:
Jennifer Fischer filed for dissolution of her marriage to George Fischer on October 30, 2014. The trial court held a final hearing on August 27, 2015, and issued an order dissolving the marriage on November 23, 2015. George appeals the dissolution decree, raising two issues for our review, which we consolidate and restate as one: whether the trial court abused its discretion in dividing the value of certain stock options as part of the marital estate. Concluding the value of the stock options at issue are not properly included in the marital estate, we reverse and remand. * * *

Because the stock options at issue vested after the date of the parties’ final separation, they should not have been included in the marital estate as an asset subject to division. Accordingly, we reverse the trial court’s order in this respect and remand for further proceedings consistent with this opinion.

In Daniel Ray Holloway v. State of Indiana, a 14-page opinion, Judge Pyle writes:
Daniel Ray Holloway (“Holloway”) appeals his convictions, received following a jury trial, for Class B felony dealing in methamphetamine, Class D felony maintaining a common nuisance, and Class D felony possession of chemical reagents or precursors. At trial, the trial court admitted, over Holloway’s objection, evidence of items used in methamphetamine manufacturing that investigators had discovered during a warrantless search of Holloway’s car. On appeal, Holloway argues that the trial court abused its discretion in admitting this evidence because the search that produced it violated his right to privacy under the United States and Indiana Constitutions. We conclude that the trial court did not abuse its discretion because the exigent circumstances exception to the prohibition against warrantless searches under the United States Constitution applied, and the search was reasonable under the Indiana Constitution. We affirm.
NFP civil decisions today (1):

In the Term. of the Parent-Child Relationship of: G.C., A.R., and B.R. (minor children); E.R. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

Rebecca Michelle Mason v. State of Indiana (mem. dec.)

Amy Morinskey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 19, 2017 12:33 PM
Posted to Ind. App.Ct. Decisions