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Opinions Dec. 19, 2012

December 19, 2012
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7th Circuit Court of Appeals
Norman W. Bernstein, et al. v. Patricia A. Bankert, et al. and Auto Owners Mutual Insurance Co.
11-1501, 11-1523
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Reverses dismissal of counts I, II, III and VII. In Count I, the trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant
to the 2002 AOC. The trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. Finds that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not
moot. The District Court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, affirms the District Court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.

Indiana Supreme Court
John Kimbrough, III v. State of Indiana
45S04-1212-CR-687
Criminal. Grants transfer and affirms aggregate sentence of 80 years for multiple convictions of Class A felony child molesting. Because the trial court correctly entered its sentencing statement in compliance with the dictates of Anglemyer and because the “appropriateness” of a sentence has no bearing on whether a sentence is erroneous, the trial court did not abuse its discretion in imposing Kimbrough’s sentence. Further, Kimbrough did not seek review and revision of his sentence under Indiana Appellate Rule (7)(B).

Abby Allen and Walter Moore v. Clarian Health Partners, Inc.
49S02-1203-CT-140
Civil tort. Affirms trial court grant of Clarian’s motion to dismiss a putative class-action complaint alleging breach of contract and seeking a declaration that rates the hospital billed were unreasonable and unenforceable. Holds the patients’ agreement to pay “the account” in the context of Clarian’s contract to provide medical services is not indefinite and refers to Clarian’s chargemaster. Because patients’ complaint states no facts on which the trial court could have granted relief, the court properly granted Clarian’s motion to dismiss.

Hugh David Reed v. Edward Reid; Reid Machinery, Inc.; North Vernon Drop Forge, Inc.; Jennings Manufacturing Co., Inc.; Reid Metals, Inc.; Glen White; Douglas Dibble; et al.

40S01-1107-PL-436
Civil plenary. Affirms in part and reverses in part regarding summary judgment motions on Hugh David Reed’s complaint seeking damages against multiple parties on multiple grounds, including a claim for an environmental legal action after a steel fabrication company deposited solid waste onto his property. Remands for further proceedings.

Indiana Court of Appeals
Stephen W. Robertson, Ins. Comm. of the State of Indiana, on behalf of the Indiana Dept. of Ins. v. Ticor Title Ins. Co. of Florida, n/k/a Chicago Title Ins. Co.
49A02-1110-PL-971
Civil plenary. Reverses trial court’s reversal of the administrative order directing Ticor to refund excessive premiums, pay unpaid premium taxes, and establish an internal control process to ensure the appropriate premium is charged to Ticor customers. The Indiana Department of Insurance’s interpretation of the rate statute was reasonable and the administrative hearing officer’s findings of fact are supported by substantial evidence. Remands for proceedings consistent with the opinion.

LBM Realty, LLC, d/b/a Summer Place Apartments v. Hillary Mannia
71A03-1205-PL-231
Civil plenary. Reverses grant of Mannia’s motion to dismiss LBM’s claims of breach of contract and negligence regarding a fire. Because Indiana law does not currently preclude a landlord’s insurer from bringing a subrogation claim against a tenant and because the allegations in LBM’s complaint establish a set of circumstances under which it would be entitled to relief, LBM’s complaint states claims upon which relief could be granted. Remands for further proceedings.

Larry Garmon v. State of Indiana (NFP)
48A02-1202-PC-170
Post conviction. Affirms denial of petition for post-conviction relief.

Toby Hicks v. State of Indiana (NFP)
49A02-1104-CR-328
Criminal. Affirms convictions of murder and Class C felony robbery.

Sandra R. Peters v. Wal-Mart (NFP)
93A02-1207-EX-562
Agency appeal. Affirms denial of claim for workers’ compensation benefits.

Toni L. Woods v. State of Indiana (NFP)
48A05-1204-CR-203
Criminal. Affirms order Woods serve half of her previously suspended sentence following a probation violation.
 

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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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