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Opinions June 19, 2014

June 19, 2014
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7th Circuit Court of Appeals
Devon Groves v. United States of America
12-3253
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of Groves’ Section 2255 motion to vacate, set aside or correct his sentence of 240 months in prison for one count each of possession of a firearm by a felon and possession of ammunition by a felon. Finds Groves was provided with effective assistance of counsel.

Indiana Court of Appeals
Thomson Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al., and XL Insurance America, et al.
49A05-1109-PL-470
Civil plenary. Denies XL’s request to dismiss this appeal; affirms the Duty to Defend Order as finalized by the Allocation Order and the Defense Cost Orders, the trial court’s finding of two “occurrences” under the XL and Century policies and the ruling that Thomson must satisfy the deductible for each occurrence for XL’s 2000, 2001, and 2002 primary policies. Reverses and remands with instructions to apply the self-insured
retentions in XL’s 2003, 2004 and 2005 primary policies. Reverses the trial court’s ruling that the “personal injury” provisions in XL’s 2000 primary policy are inapplicable. Affirms the trial court’s application of a “continuous trigger” to XL’s policies but reverses and remands with instructions to use when the disease became reasonably capable of medical diagnosis as the trigger’s manifestation point. Reverses the trial court’s use of an “all sums” allocation method for XL’s and Century’s policies and remands with instructions to use an appropriate pro rata allocation method. Affirms the trial court’s ruling that TCETVT and Thomson SA are insureds under XL’s primary and umbrella policies. Affirms the trial court’s ruling regarding the reasonableness and necessity of Thomson’s defense costs as to XL and the trial court’s award of prejudgment interest on the defense costs as to XL. Chief Judge Vaidik concurs in part and dissents in part.

State of Indiana v. Randall Scott Stiverson (NFP)
76A03-1311-CR-421
Criminal. Reverses grant of Stiverson’s motion to dismiss charges of Class D felony operating a vehicle while intoxicated causing serious bodily injury and Class A misdemeanor operating a vehicle while intoxicated in a manner that endangered a person. Remands for further proceedings.

Raven N. Young v. State of Indiana (NFP)
62A01-1401-CR-29
Criminal. Affirms revocation of placement in community corrections day reporting program and order Young serve her suspended sentence in the Department of Correction.

Clifford J. Elswick v. State of Indiana (NFP)
20A05-1311-CR-553
Criminal. Affirms denial of motion to correct erroneous sentence.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline.
 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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