Judges affirm insurer has no duty to defend

Back to TopCommentsE-mailPrintBookmark and Share

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.”


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...