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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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