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Judges affirm insurer has no duty to defend

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The Indiana Court of Appeals agreed with the trial court that a homeowner’s insurance policy is clear that the ingestion of methadone by a guest at his house and his subsequent injuries are excluded from the policy’s liability coverage.

This is the second time Phillip Forman v. Wayne Penn, Lisa Orr, Bradley Orr, and Christopher Green/Phillip Forman, Wayne Penn, Lisa Orr, and Bradley Orr v. Western Reserve Mutual Casualty Co., No. 33A01-1007-CT-343, has made it to the Court of Appeals. The first time, the judges dismissed the appeal because they found the summary judgment order in favor of Western Reserve Mutual Casualty Co. wasn’t final or appealable.

The trial court has since certified its ruling for discretionary interlocutory appeal and the Court of Appeals granted Wayne Penn and Bradley Orr’s petition for rehearing and heard the interlocutory appeal.

At issue is whether Penn’s insurer, Western Reserve, has a duty to defend Penn, Lisa Orr, and her son Bradley in Phillip Forman’s lawsuit. While spending the night at Penn and Orr’s home – which is only owned and insured by Penn – Forman, who was 17 at the time, took some of Orr’s prescribed methadone and had to be hospitalized. He now has permanent injuries. He claimed Orr’s then-teenage son Bradley gave him the drug. Forman sued alleging negligent supervision and control over the methadone and negligence in caring for him after it was discovered he couldn’t be wakened in the morning and had to be hospitalized.

The trial court granted summary judgment for the insurer, finding that the policy’s exclusion for claims “arising out of the use, sale, manufacture, delivery, transfer, or possession by any person of [a Schedule II Controlled Substance]” precluded the insurer from defending Penn and Bradley.

The Court of Appeals affirmed that Western Reserve had no duty to defend the appellants because the incident was excluded from liability coverage under the policy. Penn, Orr, and Bradley argue the exclusion doesn’t apply because Orr’s possession and use of the drug was legitimate. But Forman’s injury arose from his use of the methadone, which wasn’t a legitimate use of the drug under a doctor’s prescription, wrote Judge John Baker.

“We sympathize with the Appellants’ argument that they are entirely innocent of any connection between Forman and his decision to steal and consume Lisa’s methadone,” he wrote. “We acknowledge that the Appellants justifiably believe that Western Reserve should defend them under these circumstances. Unfortunately for the Appellants, the language of the policy is clear and unambiguous that Forman’s injury, which arose out of his illicit use of a controlled substance, is excluded from liability coverage.”
 

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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