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Opinions Aug. 10, 2011

August 10, 2011
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7th Circuit Court of Appeals
Gregory K. Weatherbee v. Michael J. Astrue, Commissioner of the Social Security Administration
10-3736
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Affirms denial of application for Social Security disability insurance benefits and supplemental security income payments after plaintiff suffered serious injuries in a motorcycle crash. The decision to deny his application was supported by substantial evidence.

Indiana Supreme Court
Howard Regional Health System, et al. v. Jacob Gordon, b/n/f Lisa Gordon
34S02-1009-CV-476
Civil. Reverses partial summary judgment for the Gordons, who sought a finding of liability against the hospital for the count alleging third-party spoliation, separate from their Medical Malpractice claim. The Supreme Court declines to recognize that count as representing a separate cause of action, so the hospital is entitled to summary judgment on that count. Justice Dickson concurs in result.
 

Indiana Court of Appeals
Raymond Flores v. Juan P. Rocha Gutierrez
45A04-1101-CT-28
Civil tort. Affirms denial of motion to correct error; the admission of certain evidence, including a photograph of property damage and Flores’ claim for workers’ compensation benefits relating to a subsequent fall; and the exclusion of certain medical records of Flores. The jury’s determination that Flores was entitled to zero damages arising out of his accident with Gutierrez is not outside the bounds of evidence.

Thomas Kornelik v. Mittal Steel USA, Inc., et al.
45A03-1011-CT-583
Civil tort. Reverses the trial court’s decision to not reduce Kornelik’s lien arising under the Indiana Worker’s Compensation Act by attorney fees and pro rata costs, but affirms the refusal to reduce the lien in the same proportion that Kornelik’s full recovery was reduced. Based on the circumstances of the case, Lafarge, Kornelik’s employer, was not fully protected, so the trial court did not err in failing to reduce the lien in the same proportion that his full recovery was reduced. Remands with instructions for the trial court to reduce the lien by attorney fees and a pro rata share of the costs.

Thomas R. Crowel v. Marshall County Drainage Board
50A03-1011-MI-606
Miscellaneous. Reverses the denial of Crowel’s petition for judicial review. The trial court erred in concluding that the drainage board’s decision was not arbitrary, capricious, unlawful, or unsupported by substantial evidence. The additional drainage of surface water naturally flowing off of Crowel’s land and burdening the lower-lying parcels does not constitute a benefit to Crowel’s land supporting the drainage board’s assessment. Remands with instructions. Judge Vaidik dissents.

Jose Lozano v. State of Indiana (NFP)
49A02-1010-CR-1129
Criminal. Affirms denial of motion to suppress pretrial identification evidence drawn from an allegedly impermissibly suggestive photo array and the trial court ruling that a hearsay statement concerning an unnamed third party’s purported confession to the crimes with which Lozano has been charged was inadmissible.

Freddie McKnight v. Curtis T. Hill, Jr., et al. (NFP)
20A03-1005-CT-277
Civil tort. Affirms that Hill and Wargo are entitled to absolute immunity for McKnight’s negligence claim and McKnight’s federal constitutional claims are barred by the doctrine of res judicata.

R.J.C. v. State of Indiana (NFP)
28A01-1102-JV-69
Juvenile. Affirms dispositional order placing R.J.C. with the Indiana Department of Correction.

Christopher Richmond v. State of Indiana (NFP)
45A04-1101-CR-9
Criminal. Affirms sentence for Class D felony theft.

Yasmin Wilson v. State of Indiana (NFP)
49A05-1012-CR-761
Criminal. Affirms conviction of Class A misdemeanor carrying a handgun without a license.

Javier Soto v. Monaco Coach Corp. (NFP)
93A02-1102-EX-204
Agency appeal. Reverses in part the denial of Soto’s application for adjustment of claim. Remands to the Full Worker’s Compensation Board of Indiana to vacate paragraph 27 of the hearing member’s decision, as adopted by the board, and any other portions of the decision related to the issue of Soto’s permanent and total disability. Permits the parties to present evidence and argument on this issue at a further hearing.

Tradell Marzette v. State of Indiana (NFP)
79A04-1004-CR-346
Criminal. Affirms convictions of and sentences for Class B felony conspiracy to commit robbery and four counts of Class B felony criminal confinement. Remands with instructions to vacate his conviction and sentence for Class B felony attempted robbery.

D.R., Alleged to be C.H.I.N.S.; J.R. v. I.D.C.S. & Child Advocates (NFP)
49A02-1012-JC-1450
Juvenile. Affirms determination that D.R. is a child in need of services.

Indiana Tax Court had posted no opinions at IL deadline.





 
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. 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.

  4. 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?

  5. 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

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