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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. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  2. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  3. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

  4. If our State Government would sue for their rights to grow HEMP like Kentucky did we would not have these issues. AND for your INFORMATION many medical items are also made from HEMP. FOOD, FUEL,FIBER,TEXTILES and MEDICINE are all uses for this plant. South Bend was built on Hemp. Our states antiquated fear of cannabis is embarrassing on the world stage. We really need to lead the way rather than follow. Some day.. we will have freedom in Indiana. And I for one will continue to educate the good folks of this state to the beauty and wonder of this magnificent plant.

  5. Put aside all the marijuana concerns, we are talking about food and fiber uses here. The federal impediments to hemp cultivation are totally ridiculous. Preposterous. Biggest hemp cultivators are China and Europe. We get most of ours from Canada. Hemp is as versatile as any crop ever including corn and soy. It's good the governor laid the way for this, regrettable the buffoons in DC stand in the way. A statutory relic of the failed "war on drugs"

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