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Thursday, March 16, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (3):

In Admiral Insurance Company v. Joseph Banasiak, et al. , a 22-page opinion, Judge Brown writes:

Admiral Insurance Company (“Admiral”) appeals the trial court’s denial of its motion for summary judgment and its grant of declaratory judgment. Admiral raises one issue which we revise and restate as whether the trial court erred in denying its motion for summary judgment or in entering declaratory judgment in favor of the Estate of Dr. Habib Zadeh. We reverse. * * *

Admiral argues that Dr. Zadeh’s undisputed failure to provide notice of a claim to it excludes Muehlman’s claim from coverage, and asserts that the clear and unambiguous terms of the Policy required written notice with specific information to be timely filed within the policy period. * * *

The focus of this statute is cancellation and the protection of a patient following the early cancellation of a policy which is not reported to the insurance commissioner. We cannot say that Ind. Code § 34-18-13-4 applies to this situation given that the Policy was still in effect at the time of the filing of Muehlman’s complaint and the Policy had not yet been terminated by cancellation. Specifically, the initial policy period was from September 21, 2008, to September 21, 2009, with a “Retroactive Date” of September 21, 2005. Thus, at the point at which Muehlman filed her complaint against Dr. Zadeh on October 6, 2008, the Policy was in effect. We also note that the Policy terminated/expired by its own terms prior to Admiral receiving notice of Muehlman’s claim. Under these circumstances, we cannot say that Ind. Code § 34-18-13-4 requires coverage of Muehlman’s claim.

Conclusion. For the foregoing reasons, we reverse the trial court’s denial of Admiral’s motion for summary judgment and its entry of declaratory judgment in favor of the Estate.

In S.R. v. M.J., a 16-page opinion, Judge Riley writes:
[Issue] Whether Mother knowingly and voluntarily waived her right to counsel at the adoption hearing, where the trial court failed to impress upon her the serious consequences she faced if she represented herself. * * *

Based on the foregoing, we conclude that Mother’s due process rights were violated by the adoption court’s failure to, at the beginning of the consent hearing, either afford Mother with her right to counsel or otherwise ensure that Mother’s waiver of the right to counsel was knowing and voluntary. Reversed and remanded.

In Keenan J.P. Mardis v. State of Indiana, a 6-page opinion, Judge Najam concludes:
Mardis misunderstands McCowan. The court in McCowan was unambiguous: the defendant is entitled “to request” an instruction that the presumption of innocence continues in his favor throughout the trial, and the trial court must give that instruction “if requested.” 27 N.E.3d at 766. But Mardis made no such request. * * * Mardis’ argument is contrary to McCowan. Accordingly, we cannot say that the trial court committed fundamental error when it instructed the jury, and we affirm Mardis’ conviction for murder.
NFP civil decisions today (2):

Eric Kennedy v. Michelle M. Wade (mem. dec.)

Termination: SMH v. Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (7):

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

Donald Ray Ross v. State of Indiana (mem. dec.)

Clay P. Manvilla v. State of Indiana (mem. dec.)

Marilyn M. Clontz v. State of Indiana (mem. dec.)

Michael W. Simpson v. State of Indiana (mem. dec.)

Raul Gonzalez v. State of Indiana (mem. dec.)

Jonathan D. Harness v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 16, 2017 11:06 AM
Posted to Ind. App.Ct. Decisions