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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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