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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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