ILNews

COA affirms $2.3 million damage award

Michael W. Hoskins
January 1, 2007
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An Evansville shopping center owner is entitled to $2.3 million in damages for loss of access to a public thoroughfare resulting from a state highway project, the Indiana Court of Appeals ruled today.

The court's unanimous decision came in State of Indiana v. Kimco of Evansville, Inc., No. 82A01-0607-CV-301, affirming a Vanderburgh Circuit jury award that stems from the road project in 2000 impacting the Plaza East Shopping Center along State Road 66 and Green River Road.

In June 2000, the state took 0.154 acres of Plaza East (owned by Kimco) along Green River Road as part of the construction project to improve access to the state highway. Part of the project involved putting in a concrete median and changing the setup of the shopping center's two entrances, causing traffic backups and a loss of business by the time the trial began early last year.

A four-day trial in February 2006 resulted in a jury verdict of $2.3 million for Kimco, or a total judgment of almost $3.2 million with legal costs and interest. The state appealed, arguing that Kimco cannot be compensated for its loss of access as a matter of law, and that the trial court improperly admitted evidence of damages associated with the loss of access and incorrectly instructed the jury on that issue.

But in its 17-page decision that includes diagrams to map out the area being debated, the appellate judges determined that Kimco was entitled to the damages since the state had taken property and the access and the reconfiguration of the entrances amounted to more than a "mere inconvenience."

The court cited an Indiana Supreme Court ruling from January in Biddle v. BAA Indianapolis LLC, 860 N.E.2d 570, 575 (Ind. 2007), as rationale in making its decision. That decision involving the Indianapolis International Airport clarified when a taking has occurred as a question of law.

In this case, the concrete median and refigured turn and driving lanes in front of the property contributed to the problem, the court said.

"Any one of these changes by itself might not amount to a taking of access rights. When considering all of these changes, however, we conclude that a taking has occurred as a matter of law," the court wrote. "The state's reconfiguration of Green River Road and the changes to the Southern Entrance and Northern Entrance are peculiar to Plaza East and Kimco, and the changes are 'of a degree that exceeds mere inconvenience.'"
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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

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  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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