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Opinions June 22, 2010

June 22, 2010
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The following opinion was posted Monday after IL deadline.
7th Circuit Court of Appeals

Medical Assurance Co., Inc. v. Amy Hellman, et al.
08-2887
U. S. District Court, Northern District of Indiana, Hammond Division, Judge Allen Sharp.
Civil. Medical Assurance appealed the District Court’s stay on the company’s declaratory judgment action. The company asked the court to declare that Dr. Mark Weinberger breached his contract obligations when he disappeared while on vacation and hasn’t been participating in his defense in more than 350 medical malpractice claims. As an insurer, it must show that the breach resulted in actual prejudice by showing that the outcome of the underlying case would have been altered by the insured’s cooperation. The District Court had noted it would be impossible for Medical Assurance to show actual prejudice without interfering with the state court processes, but the Circuit Court disagrees. The Circuit Court wrote that summary judgment is a good tool to examine not only whether Medical Assurance can succeed as a matter of law but also whether this case is a suitable candidate for declaratory relief by allowing the company to go forward with its challenge to its duty to defend. Vacates and remands the case for further proceedings.

Today’s opinions
7th Circuit Court of Appeals

United States of America v. Vertran Wheaton
09-3171
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Dismisses appeal of 36-month sentence for violating terms of supervised release. Wheaton admitted having violated the terms, and his counsel filed an Anders brief. The court notes Wheaton didn’t ask to withdraw his admissions but objects only to the sentence and not the revocation of supervised released based on his admissions. Using United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002), the court holds the challenge cannot stand. Grants counsel’s motion to withdraw.

Indiana Supreme Court
In the Matter of Mandate of Funds; St. Joseph County Commissioners and St. Joseph County Council v. The Hon. Peter J. Nemeth and the St. Joseph Probate Court
71S00-0912-MF-569
Civil. On automatic review pursuant to Trial Rule 60.5(B) and Appellate Rule 61, this is the first case utilizing the 2009 amended procedures of T.R. 60.5. Reverses the dismissal of Mandate 1 directing that the commissioners “shall not sell, assign, or otherwise transfer any interest in the land without the court’s consent” and remands it for trial. Affirms in part and reverses in part Mandate 2 about renovations to the Juvenile Justice Center and Mandate 3 regarding raises in salaries. Affirms the award of attorney fees and remands for a determination and award of the court’s appellate attorney fees. Chief Justice Shepard and Justice Rucker concur with author Justice Sullivan. Justice Dickson concurs in part and dissents in part with a separate opinion, with which Justice Boehm concurs.
 
Indiana Court of Appeals
Adam Starr v. State of Indiana
49A04-0912-CR-677
Criminal. Reverses conviction of refusal to identify self, a Class C misdemeanor because Starr did not fall within the purview of the refusal to identify statute.

Indiana Tax Court had posted no opinions and IL deadline.
 

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. 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.

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

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