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Opinions Dec. 19, 2012

December 19, 2012
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7th Circuit Court of Appeals
Norman W. Bernstein, et al. v. Patricia A. Bankert, et al. and Auto Owners Mutual Insurance Co.
11-1501, 11-1523
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Reverses dismissal of counts I, II, III and VII. In Count I, the trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant
to the 2002 AOC. The trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. Finds that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not
moot. The District Court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, affirms the District Court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.

Indiana Supreme Court
John Kimbrough, III v. State of Indiana
45S04-1212-CR-687
Criminal. Grants transfer and affirms aggregate sentence of 80 years for multiple convictions of Class A felony child molesting. Because the trial court correctly entered its sentencing statement in compliance with the dictates of Anglemyer and because the “appropriateness” of a sentence has no bearing on whether a sentence is erroneous, the trial court did not abuse its discretion in imposing Kimbrough’s sentence. Further, Kimbrough did not seek review and revision of his sentence under Indiana Appellate Rule (7)(B).

Abby Allen and Walter Moore v. Clarian Health Partners, Inc.
49S02-1203-CT-140
Civil tort. Affirms trial court grant of Clarian’s motion to dismiss a putative class-action complaint alleging breach of contract and seeking a declaration that rates the hospital billed were unreasonable and unenforceable. Holds the patients’ agreement to pay “the account” in the context of Clarian’s contract to provide medical services is not indefinite and refers to Clarian’s chargemaster. Because patients’ complaint states no facts on which the trial court could have granted relief, the court properly granted Clarian’s motion to dismiss.

Hugh David Reed v. Edward Reid; Reid Machinery, Inc.; North Vernon Drop Forge, Inc.; Jennings Manufacturing Co., Inc.; Reid Metals, Inc.; Glen White; Douglas Dibble; et al.

40S01-1107-PL-436
Civil plenary. Affirms in part and reverses in part regarding summary judgment motions on Hugh David Reed’s complaint seeking damages against multiple parties on multiple grounds, including a claim for an environmental legal action after a steel fabrication company deposited solid waste onto his property. Remands for further proceedings.

Indiana Court of Appeals
Stephen W. Robertson, Ins. Comm. of the State of Indiana, on behalf of the Indiana Dept. of Ins. v. Ticor Title Ins. Co. of Florida, n/k/a Chicago Title Ins. Co.
49A02-1110-PL-971
Civil plenary. Reverses trial court’s reversal of the administrative order directing Ticor to refund excessive premiums, pay unpaid premium taxes, and establish an internal control process to ensure the appropriate premium is charged to Ticor customers. The Indiana Department of Insurance’s interpretation of the rate statute was reasonable and the administrative hearing officer’s findings of fact are supported by substantial evidence. Remands for proceedings consistent with the opinion.

LBM Realty, LLC, d/b/a Summer Place Apartments v. Hillary Mannia
71A03-1205-PL-231
Civil plenary. Reverses grant of Mannia’s motion to dismiss LBM’s claims of breach of contract and negligence regarding a fire. Because Indiana law does not currently preclude a landlord’s insurer from bringing a subrogation claim against a tenant and because the allegations in LBM’s complaint establish a set of circumstances under which it would be entitled to relief, LBM’s complaint states claims upon which relief could be granted. Remands for further proceedings.

Larry Garmon v. State of Indiana (NFP)
48A02-1202-PC-170
Post conviction. Affirms denial of petition for post-conviction relief.

Toby Hicks v. State of Indiana (NFP)
49A02-1104-CR-328
Criminal. Affirms convictions of murder and Class C felony robbery.

Sandra R. Peters v. Wal-Mart (NFP)
93A02-1207-EX-562
Agency appeal. Affirms denial of claim for workers’ compensation benefits.

Toni L. Woods v. State of Indiana (NFP)
48A05-1204-CR-203
Criminal. Affirms order Woods serve half of her previously suspended sentence following a probation violation.
 

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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