ILNews

Opinions Dec. 13, 2012

December 13, 2012
Keywords
Back to TopE-mailPrintBookmark and Share

The following Indiana Supreme Court opinions were posted after IL deadline Wednesday.

Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased
45S03-1206-CT-310
Civil tort. Reverses denial of motion for prejudgment interest following a jury verdict awarding Kosarko monetary damages. Holds the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute. Remands for a prejudgment interest determination consistent with this opinion.

Jacqueline Wisner, M.D. and The South Bend Clinic, L.L.P. v. Archie L. Laney
71S03-1201-CT-7
Civil tort. Affirms denial of defendants’ motion for a new trial and the decision to deny the discretionary award of prejudgment interest. The trial court determined that the conduct of counsel did not prevent the jury from rendering a fair and just verdict. The awarding of prejudgment interest is not mandatory and is left to the discretion of the trial court.

Hassan Alsheik v. Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased
45S04-1212-CT-675
Civil tort. Reverses decision to deny Guerrero prejudgment interest based upon a defective settlement letter as the letter did comply with Indiana Code 34-51-4-6. Remands with instructions to determine whether Guerrero should be entitled to prejudgment interest. Affirms the Court of Appeals opinions relating to the second autopsy, the expert witness and the admission of photographs.

Kathy Inman v. State Farm Mutual Automobile Insurance Company
41S01-1108-CT-515
Civil tort. Holds the Tort Prejudgment Interest Statute applies to underinsured motorist coverage disputes because they are properly considered “civil actions arising out of tortious conduct” as required by I.C. 34-51-4-1. Also holds that because prejudgment interest is a collateral litigation expense, it can be awarded in excess of an insured’s UIM policy limits. Affirms finding that Inman is not entitled to prejudgment interest because the trial court acted within its discretion when it denied her request for prejudgment interest.

Today’s opinions
7th Circuit Court of Appeals

Estate of Rudy Escobedo (deceased) (Raquel Hanic, Personal Representative of Estate) v. Officer Brian Martin, et al.
11-2426
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms jury verdict in favor of the defendants on the estate’s excessive force claim against the police and the city of Fort Wayne and grant of judgment as a matter of laws on qualified immunity grounds, as well as summary judgment in favor of officers Martin and Brown on the excessive force claim. Finds among other things, that the District Court did not improperly admit evidence unknown to the officers at the time they used force against Escobedo, that the court committed a harmless error when it prohibited the estate from introducing evidence at trial of Escobedo’s death for purposes of calculating damages, and the court did not err when it granted summary judgment in favor of officers Martin and Brown on the estate’s excessive force claim for shooting Escobedo.

Indiana Court of Appeals
Byram E. Dickes, Ruth E. Logar, Christopher S. Spiritoso, Gregory Spiritoso, Lindsey E. Dickes, Dickes Development Co., LLC, et al. v. Ronald D. Felger, and Shambaugh, Kast, Beck & Williams, LLP
02A03-1206-PL-302
Civil plenary. Affirms summary judgment in favor of Felger and the law firm on the plaintiffs’ legal malpractice claim. The claim is barred by the statute of limitations.

Scott J. Lunsford v. State of Indiana (NFP)
34A02-1206-CR-501
Criminal. Reverses time the trial court calculated as the time remaining on Lunsford’s sentence at the time his probation was revoked and remands with instructions to resentence him to 673 days.

Uriah S. Swelfer v. State of Indiana (NFP)
45A05-1205-CR-260
Criminal. Affirms sentence for two counts of Class C felony battery and one count of Class D felony criminal mischief.

Decarlos Connell v. State of Indiana (NFP)
48A05-1203-CR-141
Criminal. Affirms conviction of Class B misdemeanor visiting a common nuisance.

Kerry Wagner and Wagner Trucking, Inc. v. Rugged Enterprises, LLC (NFP)
26A05-1206-CC-333
Civil collection. Affirms denial of relief from default judgment rendered in favor of Rugged Enterprises in its action against Wagner and Wagner Trucking for repayment of money mistakenly paid to Wagner Trucking by Rugged, which Wagner refused to refund.

Joseph Majors v. State of Indiana (NFP)
49A02-1205-CR-433
Criminal. Affirms convictions of attempted murder and carrying a handgun without a license. Reverses sentencing enhancement and orders it vacated, but affirms 45-year aggregate sentence imposed.

Roseann Kwak v. Kimberly Overmyer and Marshall-Starke Development Center, Inc., West Bend Mutual Ins. Company (NFP)
75A03-1203-CT-104
Civil tort. Affirms order denying Kwak’s motion to correct error from the trial court order granting summary judgment to West Bend Mutual, the garnishee-defendant, in proceedings supplement initiated by Kwak.

Daniel A. Sage v. State of Indiana (NFP)
20A03-1206-PC-266
Post conviction. Affirms denial of post-conviction relief.

Tyler P. Hogue v. State of Indiana (NFP)
29A02-1203-CR-217
Criminal. Affirms sentence after Hogue admitted to violating his probation.

Jaconiah Fields v. State of Indiana (NFP)
89A01-1205-PC-232
Post conviction. Affirms denial of petition for post-conviction relief.

Melissa L. Freyberger v. Duane L. Freyberger (NFP)
71A03-1206-MI-252
Miscellaneous. Dismisses Melissa Freyberger’s appeal of the modification of Duane Freyberger’s parenting time rights, allowing him to take the children on a six-week vacation in Europe. Denies her request for appellate attorney fees.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT