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Opinion rules on 2 issues of first impression

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The Indiana Court of Appeals was faced with two issues of first impression in one opinion – the meaning of Indiana Code Section 27-9-3-34(d) and whether a party is entitled to a jury trial for disputes concerning claims in liquidation proceedings.

In Carol Cutter, as the Commissioner of the Indiana Department of Insurance v. Classic Fire & Marine Insurance Co. v. J.W., et al., No. 49A05-0906-CV-315, Indiana company Classic Fire & Marine Insurance issued a general liability policy to Alaska corporation Allvest in 1995 for one year. During its policy coverage, Allvest let CFM know that women were going to file claims of sexual molestation against an Allvest employee. In 1998, the Indiana Department of Insurance’s petition for liquidation against CFM was granted.

Allvest’s claim for indemnification from CFM under the policy was identified as disputed claim 83, which the Allvest bankruptcy estate sold to the women’s attorney. Allvest was placed in involuntary Chapter 11 bankruptcy in Alaska several years after the women filed their claim. The women, known as the J.W. claimants, got final judgments against Allvest totaling more than $1.22 million before Allvest went into bankruptcy. The bankruptcy court awarded them more than $430,000.

The J.W. claimants wanted a jury trial on the disputed claim and argued they were entitled to full faith and credit in the Indiana insolvency proceedings based on the Alaska judgments. In 2006, the Alaska bankruptcy court approved more than $555,000 from Allvest’s bankruptcy estate for the J.W. claimants, which the Department of Insurance as liquidator objected to based on double recovery. The trial court agreed with the liquidator and dismissed disputed claim 83.

The appellate court ruled that the J.W. claimants’ claim against Allvest and Allvest’s claim against CFM are two separate, distinct claims, so a distribution on the disputed claim 83 won’t result in a double recovery. The trial court erred in its decision.

With respect to judgments or orders entered against an insured, such as Allvest in CFM’s liquidation proceedings, Indiana Code Section 27-9-3-34(d) says “The following do not need to be considered as evidence of liability or the measure of damages: A judgment or order against an insured or the insurer entered after the date of filing a successful petition for liquidation.”

The liquidator argued the J.W. claimants have to prove their claim against Allvest from scratch; the J.W. claimants argued the Alaska judgments are entitled to full faith and credit. Since it’s first impression for Indiana courts, the judges looked to Montana and Pennsylvania cases, which held a judgment or order against an insured filed after a successful petition for liquidation against the insurer isn’t conclusive of liability or the quantum of damages. In CFM’s liquidation proceedings, the Alaska judgments aren’t conclusive evidence of liability or the measure of damages, the COA judges concluded.

The judges noted that the statute doesn’t prohibit a judgment or order against an insured or an insurer entered after the date of filing a successful petition for liquidation from being considered as evidence of liability or the measure of damages.

“The particular facts of each case, the legal issues involved, and the Indiana Rules of Evidence should be used to determine whether such a judgment or order may be considered as evidence of liability or the measure of damages,” wrote Judge Terry Crone.

In the other matter of first impression, the appellate judges ruled that a party isn’t entitled to a jury trial for disputes concerning claims in liquidation proceedings. I.C. Section 27-9-3-37(b) prescribes a hearing before a judge, not a jury.

The case was remanded for further proceedings.
 

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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