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Appellate court reverses summary judgment for insurer

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The Indiana Court of Appeals reversed summary judgment in favor of a hotel’s insurance company in a negligent hiring suit, ruling there is a question as to whether the teenage hotel guest was under the “care, custody or control” of the hotel at the time the teen was molested by an employee.

The parent of R.H.M., a 15-year-old guest at the Holiday Inn Express of New Castle, sued the hotel, its parent company and employee Michael Forshey after R.H.M. was molested by Forshey. AMCO Insurance Co. sought a declaratory judgment action that its policy with Holiday Inn doesn’t provide coverage to any of the defendants. The trial court granted summary judgment to AMCO.

The hotel parent company, Holiday Hospitality, argued that the trial court was wrong in concluding the molestation wasn’t an “occurrence” as that term is defined in the policy. The appellate court agreed with Holiday Hospitality, citing Wayne Township Bd. Of Sch. Commissioners v. Indiana Insurance Co., 650 N.E.2d 1205, 1209 (Ind. Ct. App. 1995). The COA concluded in that case that due to a separation of insureds provision in the township’s insurance policy, the actions of the school board commissioners may have been accidental even though the principal’s action of molesting a minor in his office were intentional. AMCO’s insurance policy also contained a separation of insureds provision.

The judges noted that only once have the state appellate courts specifically addressed whether an employer’s negligent hiring or supervision of an employee could be accidental. They adopted the analysis in American Family Mut. Ins. Co. v. Bower, 752 F.Supp.2d 957 (N.D. Ind. 2010), a negligence supervision suit brought against parents Michael and Anne Bower after their son molested a minor. That court held in light of Indiana’s construction of ambiguous insurance policies against the insurance company, where a severability provision exists, no evidence is designated showing the defendants intended or expected their son Jonathan to molest the minor when they allegedly acted negligently and the term “accident” is not further defined in the policy and is “susceptible to differing reasonable interpretations,” then the alleged negligent conduct constitutes an “occurrence” for purposes of the insurance policy.  

The separation of insureds provision allows the finding of an “occurrence” regarding Holiday Hospital’s action even if Forshey’s actions don’t amount to an accident; there is ambiguity in the insurance policy; and without evidence that the employer intended or expected the sexual misconduct to result, it can’t be deemed intentional, wrote Chief Judge Margret Robb in Holiday Hospitality Franchising Inc. v. AMCO Insurance Company, No. 33A01-1103-CT-104.

The judges also concluded there was a genuine issue of material fact as to whether R.M.H. was in the “care, custody or control” of Holiday Inn, Holiday Hospitality or any other insured. There are exclusions in the insurance policy for abuse or molestation that occur while the person is in the care, custody or control of any of the insured.

While AMCO may be correct that the teen was a business invitee of the hotel and was owed a duty of reasonable care, that is not the same as being “in the care, custody or control” of Holiday Inn, wrote Robb.

“In the context of a hotel, it would require something additional, such as a minor being supervised by hotel employees. Thus, AMCO has not demonstrated that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law,” she wrote. The judges remanded the case for further proceedings.

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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