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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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