Indiana Court Decisions – Aug. 22-Sept. 4, 2012

7th Circuit Court of Appeals

Aug. 22

Civil – Ineffective Assistance/Sentencing

David H. Swanson v. United States of America

11-2338

The 7th Circuit Court of Appeals declined to find a defendant’s trial attorneys’ representation objectively deficient or ineffective pertaining to how they handled a man’s sentencing hearing.

David Swanson was convicted of various fraud, tax and money laundering offenses. At his sentencing hearing in March 2003, his trial counsel filed 13 pages of objections, including one to the four-level U.S.S.G. Section 3B1.1(a) enhancement in two separate paragraphs. That section deals with organized crime.

Swanson’s attorneys did not orally object to the enhancement, and ultimately U.S. District Judge Sarah Evans Barker in the Southern District of Indiana imposed it. Swanson was originally sentenced to 180 months imprisonment, which was later reduced on appeal to 151 months. He appealed again, but this time he raised an objection to the Section 3B1.1(a) enhancement, which he did not raise in his first appeal. The 7th Circuit declined to rule on it since it wasn’t originally raised.

Then Swanson filed his 28 U.S.C. Section 2255 petition maintaining there was no evidence to support that enhancement and that his trial counsel withdrew the objection at sentencing in a way that failed to preserve it for review on his first appeal. The District Court denied it. Barker found that the trial counsel did not intentionally waive or forfeit the objection to the enhancement and extensively advanced Swanson’s interests. She also found Swanson didn’t suffer any prejudice because she believed his sentence wouldn’t have been lower without the enhancement.

The 7th Circuit agreed with Barker, finding the written objections to the application of the enhancement were sufficiently developed. They also disagreed with Swanson that his attorneys waived his objection to the enhancement. Although initially there was miscommunication between an attorney and Barker at the sentencing hearing, that miscommunication is no basis for finding waiver, Judge John Tinder wrote.

Swanson also failed to show the attorneys’ representation was objectively deficient.
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Aug. 28

Civil – SSDI/Evidence

Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security

11-3589

Because the Social Security Administration Appeals Council did not consider new evidence when it was presented – despite its own regulations requiring it to do so – the 7th Circuit Court of Appeals sent a disability insurance benefits case back to the administrative law judge for further proceedings.

At the time of the hearing on Angela Farrell’s application for disability benefits, she was married with two children and extremely overweight. She suffers from multiple issues, including anxiety, insomnia, fibromyalgia, and plantar fasciitis. Her initial application was denied, but the appeals council remanded her case for reconsideration. On remand, the administrative law judge again ruled against her, in part because of Farrell’s failure to establish definitively that she suffered from fibromyalgia.  

This time, the appeals council affirmed the ALJ’s decision, despite new evidence before the council that confirmed Farrell’s fibromyalgia. The District Court also affirmed.

In addition to finding the appeals council didn’t follow its own regulations that require it to consider “new and material evidence,” the 7th Circuit found several other aspects of the ALJ’s decision independently require correction, including that the ALJ “failed to grapple properly with the competing medical opinions” in considering Farrell’s application.

The 7th Circuit concluded that the ALJ’s residual functional capacity determination for Farrell improperly discounted her doctor’s medical opinions and that the RFC determination was based on an incomplete assessment of the record.

Criminal – Sex Offender Registry

David Schepers, et al. v. Commissioner, Indiana Department of Correction

11-3834

Indiana’s Sex and Violent Offender Registry provides insufficient means for those whose information is incorrect to challenge the information, the 7th Circuit Court of Appeals ruled.

“We agree with the plaintiffs that the state judicial postdeprivation remedies cited by the DOC are insufficient to meet the requirements of due process,” Judge Diane Wood wrote for the unanimous panel.

The 7th Circuit noted that after David Schepers and a class brought suit, the DOC established a policy whereby prisoners received notice so that they could challenge information in their pending registry listing.

“The district court granted summary judgment on the ground that the new policy was sufficient to comply with due process. But the DOC’s new procedures still fail to provide any process at all for an entire class of registrants — those who are not incarcerated. We thus reverse the district court’s grant of summary judgment and remand for further proceedings,” Wood wrote.

“We conclude with the observation that providing additional procedures to correct registry errors may wind up benefitting the state as well as registrants. Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public,” the court ruled.
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Sept. 4

Civil – Employment/Termination

Victor George v. Junior Achievement of Central Indiana Inc.

11-3291

The 7th Circuit Court of Appeals had to determine how best to read Section 510 of the Employment Retirement Income Security Act of 1974 to rule whether a former vice president of Junior Achievement of Central Indiana was fired because of his protests about the company’s failure to deposit money into his retirement account.

Victor George discovered in the summer of 2009 that money withheld from his paycheck wasn’t being deposited into his retirement and health savings accounts. He lodged several complaints with Junior Achievement accountants and some executives and contacted the U.S. Department of Labor. He declined to file a written complaint, however. In October 2009, he received checks in the amount owed, plus interest.

George was contemplating retirement when, in early January 2010, JA’s president told George not to come to work the next day. He believes his protests to how JA handled his retirement funds led to his firing. Section 510 of the act prohibits retaliation “against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this [Act].”

Junior Achievement argued – to which the District Court agreed – that the language doesn’t cover George’s complaint. The Circuit courts have disagreed about the scope of Section 510. Some have observed that “testify” and “proceeding” denote formal actions and that “inquiry” also should be understood as a formal proceeding. Two Circuits held Section 510 applies to unsolicited informal complaints, and the 9th Circuit stated that reporting misconduct is a necessary step in the commencement of any formal inquiry.

“We conclude that the best reading of §510 is one that divides the world into the informal sphere of giving information in or in response to inquiries and the formal sphere of testifying in proceedings. This means that an employee’s grievance is within §510’s scope whether or not the employer solicited information. It does not mean that §510 covers trivial bellyaches — the statute requires the retaliation to be ‘because’ of a protected activity,” Chief Judge Frank Easterbrook wrote. “Someone must ask a question, and the adverse action must be caused by the question or the response. What’s more, the grievance must be a plausible one, though not necessarily one on which the employee is correct.”

“George notified Junior Achievement of the potential breach of its fiduciary duties and asked (repeatedly) what would be done to remedy the situation. Those conversations involved an ‘inquiry,’ as we understand that word, because Junior Achievement responded to them rather than ignoring them,” he continued.

The judges reversed summary judgment and remanded for further proceedings.

Indiana Court of Appeals

Aug. 22

Civil Tort – Expert Witness/Medical Malpractice

Ashley T. Tucker v. Michelle R. Harrison, M.D.

79A05-1108-CT-404

The Indiana Court of Appeals held that the trial court ruled correctly when it did not allow certain epidemiological evidence by a plaintiff’s expert witness in a medical malpractice lawsuit, but the court stopped short of saying this type of evidence could never be admitted in a medical malpractice case.

Ashley Tucker filed a medical malpractice complaint against Dr. Michelle Harrison, alleging the doctor’s negligence in performing a surgical procedure damaged her ovaries and left her infertile. The jury ruled in favor of Harrison, and Tucker appealed on three grounds. She claimed the trial court abused its discretion in excluding testimony from her expert witness, epidemiologist Dr. Michael Freeman, Ph.D.; in denying Tucker the opportunity to question witnesses about possible financial bias; and in refusing to give the jury a res ipsa loquitur instruction.

Freeman described his profession as dealing with populations of people and the kind of injuries or diseases they get and what causes them, and doing statistical analysis of what you find in populations to draw conclusions that are reliable. The court allowed into evidence Freeman’s testimony that one in 700 procedures ever year done in Tucker’s age group resulted in iatrogenic ovarian failure, but excluded his testimony that the procedure is 99 percent likely to be the cause of ovarian failure when it occurs in someone who has had the same procedure as Tucker.

No Indiana case has directly addressed the admissibility of epidemiological evidence in a medical malpractice case, or otherwise. Other jurisdictions have allowed this type of evidence, but the appellate court pointed out those cases cited by Tucker did not involve medical malpractice.

“Testimony establishing that the fact of a surgery makes ovarian failure more likely could mean that Dr. Harrison did everything right and ovarian failure is simply a risk of having any sort of ovarian surgery. It does not establish a causal relationship between Dr. Harrison’s acts or omissions and Tucker’s injury,” Chief Judge Margret Robb wrote.

Epidemiological testimony is not relevant to the issue of causation in this case, so the trial court did not abuse its discretion in excluding part of Freeman’s testimony, she wrote, noting this testimony may be admitted in the appropriate medical malpractice case.

The trial court excluded evidence from a physician witness called by Tucker that she says alleges bias on the part of every Indiana doctor because they are all participants in the Indiana Patient’s Compensation Fund, and therefore have a financial interest in whether payouts are made from the fund. The COA affirmed, finding Tucker’s proffered evidence merely speculates through the physician’s testimony that every doctor in Indiana has an interest in limiting financial exposure by limiting payouts from the Patient’s Compensation Fund.

The judges also upheld that Tucker was not entitled to a res ipsa loquitur instruction.
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Aug. 23

Civil Collection – Corporate Veil/Collections

Konrad Motor and Welder Service, Inc., Konrad Lambrecht, and Sharon Lambrecht v. Magnetech Industrial Services, Inc.

45A04-1203-CC-109

One Court of Appeals judge believed the “only reasonable inference” that could be drawn from the evidence in a collections case is that a former company was a “sham corporation,” so the trial court properly pierced the corporate veil on summary judgment.

Judge Terry Crone dissented from his colleagues on the corporate veil issue, writing, “Although piercing the corporate veil is, and should be, a rare occurrence on summary judgment because of the highly fact-sensitive nature of the inquiry involved, I believe that it is appropriate when the relevant facts are undisputed and lead to only a single reasonable conclusion. The trial court reached the right conclusion here.”

Magnetech Industrial Services Inc. sued Konrad Motor & Welder Service Inc. and husband and wife Konrad and Sharon Lambrecht to recover a $35,000 judgment entered against a former company, Kondrad Electric, which was owned by Sharon Lambrecht.

The lawsuit at issue began in 2005 when a company sued Konrad Electric after problems arose with work Magnetech performed. Konrad Electric subcontracted the work to Magnetech. Konrad Electric then filed a third-party against Magnetech, leading to Magnetech’s counterclaim for payment of services.

While the lawsuits were pending, Sharon Lambrecht – who was sole shareholder and president – decided to close Konrad Electric and her husband launched Konrad MWS. Konrad Lambrecht worked for Konrad Electric as its general manager.

After Magnetech won the $35,000 judgment, it sued Konrad MWS and the Lambrechts in 2011 to recover the money. Konrad Electric was without assets to satisfy the judgment. The trial court granted summary judgment for Magnetech, piercing the corporate veil of Konrad Electric to hold the Lambrechts liable and finding Konrad MWS is the alter ego of Konrad Electric.

Judges Nancy Vaidik and Cale Bradford reversed on the corporate veil ruling, finding, “While it may be that Konrad Electric’s corporate veil should be pierced, this determination should not have been made on summary judgment,” Vaidik wrote. The majority believed more than one inference can be drawn from the facts of this case.

The three judges upheld summary judgment on the finding Konrad MWS is the alter ego of the former corporation, finding significant similarities between the two corporations, including names, business services, and the timing of the shutting down of Konrad Electric and creating Konrad MWS.

The majority noted that on remand, if Konrad Electric’s corporate veil is pierced, Konrad Lambrecht, even though not a shareholder, may be held individually liable along with his wife.
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Aug. 27

Domestic Relation – Present Interest/Settlement Agreement

Joseph Meizelis v. Dana Durbin and Debra Durbin

70A01-1112-DR-598

The man who wanted to purchase a divorcing couple’s farm lacked a present interest in the real estate and couldn’t prevent a settlement agreement between the couple, which led to the husband keeping the farm, the Indiana Court of Appeals held.

The appellate court affirmed Rush Circuit Special Judge Daniel Lee Pflum’s denial of Joseph Meizelis’ motion for relief from the agreed judgment between Dana and Debra Durbin on grounds he hadn’t been given notice of the agreement. Meizelis also had filed a lis pendens notice after the Durbins entered into the settlement agreement.

The couple was divorcing, and Meizelis offered to buy the farm. He was even permitted to intervene in the dissolution action. In a March 23, 2011, order, the trial court determined Dana Durbin could keep the farm property if he met certain financial obligations; if not, he could sell it to Meizelis. Dana Durbin filed a motion to correct error, and he and Debra Durbin reached a settlement agreement during the pendency of that motion.

The agreement was similar to the court order, but it did relax some of the obligations Dana Durbin had to meet if he wanted to keep the farm.

Meizelis argued that the agreed entry was void because it had been entered without his knowledge or consent. The trial court found that Meizelis had no present interest in the real estate and his lis pendens notice will be stricken, depending on the outcome of this appeal.

The Court of Appeals upheld Pflum’s ruling, finding that Meizelis merely made an offer to purchase, but the Durbins never accepted it.

“Meizelis’s position appears to be that his interest arises from the fact that the trial court ordered Dana to sell to him if he could not meet certain financial obligations, but at no point was Meizelis under an affirmative obligation to do anything; the court’s orders were addressed to Dana, not Meizelis,” Judge Terry Crone wrote.

Meizelis could not prevent the Durbins from entering into a settlement agreement regarding the distribution of their property, he continued. The judges sent the case back with instructions to strike the lis pendends notice upon certification of the appellate opinion.

Criminal – Jury Instructions

Robert Dowell v. State of Indiana

09A05-1201-CR-36

Because a trial judge did not re-read all of the jury instructions when giving jurors an additional instruction after deliberations began, the Indiana Court of Appeals ordered a new trial on the felony robbery charge.

Robert Dowell was charged with Class A felony robbery resulting in serious bodily injury stemming from an attack by Dowell, his girlfriend, and another man on Roman Nusbaum. The three decided to rob Nusbaum after seeing him at a bar. The girlfriend lured Nusbaum to another location where Dowell hit him with a bat.

After the jury began deliberations, jurors had a few questions as to the elements of robbery. The jury foreman submitted a handwritten note with the questions. Cass Superior Senior Judge Douglas Morton responded to the questions by writing on the note, “Indiana law provides that a person who aids another person to commit an offense commits that offense.” He did not call the jury back into the room nor did he re-read all the instructions, including the new one on accomplice liability. The jury convicted Dowell as charged.

The Court of Appeals reversed based on Crowdus v. State, 431 N.E.2d 796, 798 (Ind. 1982), and Graves v. State, 714 N.E.2d 724, 726 (Ind. Ct. App. 1999). The Indiana Supreme Court “has long recognized that once jury deliberations begin, the trial court should not give any additional instructions,” Judge Melissa May wrote, with the exception of when the jury’s question coincides with an error or “legal lacuna” in the final instructions.

In those cases, the trial judge should re-read the entire set of final instructions as to not place special significance or emphasis on the particular issue raised by the jury.
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Aug. 28

Criminal – Ex Post Facto/Sex Offender

Anthony Mark Sewell v. State of Indiana

73A01-1112-CR-609

The Indiana Court of Appeals rejected a defendant’s ex post facto argument and affirmed a trial court’s decision to convict him of committing a sex offender residency offense.  

Anthony Mark Sewell was convicted of child molesting as a Class B felony in 2001. After his release in 2007, he was required to register his address with law enforcement. When he moved to a new address in 2011, he was in violation of the state statute that prohibits sex offenders from living within 1,000 feet of a church that has a school, day care or youth program center.

After the state charged him with one count of residing within 1,000 feet of a youth program center, the trial court found Sewell guilty and sentenced him to 1 ½  years in the Department of Correction with six months suspended to probation.

In his appeal, Sewell argued that applying the statute to him violated the ex post facto prohibition in state and federal constitution.

He stated his conviction for child molesting was entered in 2001 for acts that took place in 2000. The application of the statute did not take effect until 2006.

Sewell relied heavily on the Indiana Supreme Court’s opinion in State v. Pollard, 908 N.E.2d 1145 (Ind. 2009). He contended that the decision in Pollard stands for the proposition that anyone convicted of an offense listed in Indiana Code 35-42-4-11 before July 1, 2006, is not subject to its provisions.

The COA found that Pollard did not apply because Sewell did not reside or own property within 1,000 feet of the church when he was convicted of child molesting. The court concluded that because Sewell’s residency decision occurred after the enactment of the statute, Sewell’s prosecution does not violate state or federal ex post facto provisions.

Civil Plenary – Insurance/Liability

FLM, LLC, and Daimler Chrysler Corp., n/k/a Chrysler LLC v. The Cincinnati Insurance Company

49A02-0902-CV-127

Finding language in an insurance policy to be ambiguous, the Court of Appeals reversed and remanded a trial court’s entry of summary judgment for an insurance company.

FLM LLC leased property in Indianapolis to International Recycling Inc. Daimler Chrysler Corp. entered into purchase order transactions with IRI for the removal and reuse or disposal of foundry sand generated from Chrysler’s Indianapolis foundry. IRI started depositing the sand onto the FLM property in May 1999.

In 2002, Chrysler stopped paying and IRI could no longer fund the removal of the sand. IRI stopped paying rent to FLM in 2003 and abandoned more than 100,000 tons of sand on the property.

FLM filed a complaint against IRI’s insurer Cincinnati Insurance Co. in January 2005, seeking declaration that IRI was covered under the commercial general liability policy and the umbrella policy for the environmental liabilities asserted by the state and the city of Indianapolis.

In March 2005, the insurance company filed its answer and counterclaim, seeking a declaration that there was no coverage under the policies for the claims.

The trial court granted partial summary judgment in November 2008 in favor of Cincinnati and denied FLM’s and Chrysler’s cross-motions for summary judgment.

On appeal, FLM and Chrysler raised the issue of whether IRI’s abandonment of sand constitutes a “wrongful entry” or “invasion of the right of private occupancy” covered by the “personal injury” provisions of the insurance policies.

The COA focused on determining whether any ambiguity existed in the language of the policies. It cited Travelers Indem. Co. v. Summit Corp. of Am. 715 N.E.2d 926 (Ind. Ct. App. 1999), finding the reasoning underlying the Summit decision applies here.

Judge James Kirsch concluded, “Cincinnati’s personal injury provision contained language identical to the language in the personal injury provision at issue in Summit, and just as the court in that case determined such language to be ambiguous, we likewise conclude that the language used in Cincinnati’s policies is ambiguous. Because the Policies are ambiguous, we must construe the language against the insurer and in favor of coverage.”

Civil Plenary – Medical Malpractice/Expert

Ann Rachelle Johnson v. Dr. A., Dr. B., and Medical Provider

90A05-1109-PL-487

An expert for a plaintiff in a medical malpractice case who was ordered to execute a release indemnifying a former employer must do so, the Indiana Court of Appeals ruled.

Ann Rachelle Johnson filed a proposed complaint against two unnamed doctors and an unnamed medical provider in 2008. Disputes over discovery ensued, including the defense’s request of the practice and educational background of a plaintiff’s expert, Illinois Dr. Hansel DeBartolo Jr.

The court ordered DeBartolo to execute a release indemnifying a prior employer, Delnor Community Hospital, but DeBartolo declined to do so, and Johnson appealed the court’s order.

“We only very rarely issue advisory opinions, though we observe that on at least one occasion, this Court has issued an opinion reversing a trial court’s order on a pretrial matter where it appeared that the court’s interpretation of a prior order would clearly prejudice parties not immediately affected by the appealed-from order. See Travelers Indem. Co. v. P.R. Mallory & Co., 772 N.E.2d 479 (Ind. Ct. App. 2002),” Judge L. Mark Bailey wrote in a unanimous opinion.

“Here, however, Johnson has not yet been subject to any order that has actively prejudiced her case. We therefore cannot conclude that Johnson’s appeal is properly perfected. … Yet neither are we certain that the defendants’ decision to pursue the order and the trial court’s grant of the order are acceptable discovery practices under our trial rules,” Bailey wrote.

“It is not clear to us that the trial court could sanction Johnson for Dr. DeBartolo’s failure to comply with the Order without abusing its discretion. Nevertheless, because Johnson does not yet face actual prejudice from the trial court’s order, we dismiss her appeal.”

Juvenile – School/Adjudication as Delinquent

K.W. v. State of Indiana

49A02-1201-JV-9

A Ben Davis High School student won an appeal of his adjudication as a delinquent after the Court of Appeals held the circumstances for which he was adjudicated did not meet the equivalent of Class D felony resisting law enforcement.

K.W. was a 15-year-old student when he and another student faced off with raised fists indicating they were about to fight. A teacher intervened, as did school liaison Officer Eugene Smith, who serves as an Indianapolis Metropolitan Police Department officer employed by the school.

Smith placed a handcuff on one of K.W.’s wrists, but the student pulled away and Smith initiated a “straight arm-bar takedown,” struggling with the student and sustaining injuries in the process. After a hearing, K.W. was adjudicated a delinquent child on a charge of Class D felony resisting law enforcement when committed by an adult.

The Indiana Court of Appeals reversed in a unanimous opinion written by Judge Edward Najam.

“K.W. contends that the evidence shows that Officer Smith was not ‘lawfully engaged in the execution’ of the duties of an IMPD officer when he handcuffed K.W. but was instead engaging in the duties of a school liaison officer, which is not covered by the statutory definition of law enforcement officer. … We must agree,” Najam wrote.

“For the crime of resisting law enforcement to have been committed, Indiana Code 35-44-3-3 requires that a law enforcement officer be engaged in his duties as a law enforcement officer at the time of the offender’s forcible resistance. A school liaison officer is not a law enforcement officer under the statute, and neither is there any evidence in the record that Officer Smith was acting in his capacity as a law enforcement officer when he handcuffed K.W. Thus, we hold that K.W.’s adjudication for resisting law enforcement cannot stand.”
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Aug. 29

Criminal – New Trial/Attorney Error

Willis Pryor v. State of Indiana

49A02-1202-CR-101

A Marion County man was prejudiced by his counsel’s error of not timely filing a request for a jury trial, so the Indiana Court of Appeals ordered a new trial on his Class A misdemeanor resisting law enforcement conviction.

Willis Pryor was represented by four different public defenders by the time his bench trial began Jan. 23, 2012. He claimed that he asked for a jury trial at a Nov. 1, 2011, hearing, although he and his attorney at the time signed a form stating there would be a bench trial in January. A different attorney then filed Pryor’s request for a jury trial on Jan. 17, 2012, but inadvertently miscalculated the deadline date. The motion was denied as untimely, and Pryor was convicted at a bench trial.

The Court of Appeals reversed, finding trial counsel’s failure to preserve Pryor’s right to a jury trial denied him effective assistance of counsel. His counsel’s performance was deficient and he was prejudiced by it. The judges cited Stevens v. State, 689 N.E.2d 487 (Ind. Ct. App. 1997), and Lewis v. State, 929 N.E.2d 261 (Ind. Ct. App. 2010), in support of his argument that failure to file a timely demand was a mistake and not a choice or trial strategy by his attorney.

“Based upon the record, we find that the failure of Pryor’s counsel to timely file a written request for a jury trial fell below the range of professionally competent representation,” Judge Elaine Brown wrote.

Civil Plenary – Car Ownership/Liability

Auto-Owners Insurance Company v. Bill Gaddis Chrysler Dodge, Inc., Garrett Gaddis and Edward Foster

18A02-1112-PL-1087

The insurer of a car dealership is not entitled to summary judgment because there are genuine issues of material fact as to whether the dealership or the son of an employee who purchased a car from the dealership owned the car at the time the son hit a bicyclist.

The Indiana Court of Appeals upheld the denial of Auto-Owners Insurance Co.’s motion for summary judgment on its motion asking the court to determine that it had no liability for the injuries of the cyclist, Edward Foster, under the dealership’s commercial liability policy or a garage liability policy.

Foster was hit by a car driven by Garrett Gaddis. When he was 18, he purchased the car from his father, Scott Gaddis, who was a salesman at the dealership owned by Scott Gaddis’ father. Scott Gaddis “charged” the car to an account he had with the dealership, and the car’s title was never transferred to Garrett Gaddis’ name. He did not register or insure the car and it had a temporary license plate. The day Garrett Gaddis hit Foster while driving, he had taken the car without his father’s permission.

The trial court found material questions as to ownership, possession and control of the car and denied summary judgment. It also denied two motions to strike filed by Auto-Owners regarding “untimely filed evidence” and certain exhibits.

The Court of Appeals found the trial court shouldn’t have allowed the four exhibits designated by Foster, which included Garrett Gaddis’ bank records and his employment records, because Foster’s attempt to certify and authenticate the four challenged exhibits was untimely. However, Auto-Owners didn’t show it was prejudiced by the denial of its motion to strike, Judge Edward Najam wrote. The judges also found the trial court didn’t err in granting Foster’s motion for extension of time to file a response in opposition to summary judgment, as it was timely filed under Ind. Trial Rule 56(C).

There are questions as to who owned the car at the time of the accident and whether Garrett Gaddis is an insured under the terms of the dealership’s garage liability policy, he wrote.  
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Aug. 30

Civil Tort – Employment Injury/Insurance

Peabody Energy Corp., Peabody Coal Company, LLC, and Black Beauty Coal Company v. Richard F. Roark, Beelman Truck Co., and North American Capacity Insurance Co.

14A01-1112-CT-555

The mining company that hired a truck company as a contractor is considered an insured under the truck company’s insurance policy with regards to an injured trucking employee, the Indiana Court of Appeals ruled.

The Court of Appeals reversed summary judgment for North American Capacity Insurance Co. on its motion that it does not have to defend Peabody Energy Corp. in a negligence lawsuit filed against the company by Richard Roark. Roark worked for Beelman Truck Co., which entered into a master performance agreement with Peabody. In June 2005, Roark delivered a load of ash from a power plant to Peabody’s mine. When he got out of the truck and walked toward the middle of the trailer, the ground gave way and his left foot was injured.

Peabody demanded coverage from NAC, which was Beelman’s insurer. The insurance company claimed it had no duty to defend because Roark’s claims did not arise from Beelman’s work. Peabody also alleged that Beelman breached the master performance agreement. Both sides filed for summary judgment, which Daviess Circuit Judge Gregory Smith granted in favor of NAC.

The Court of Appeals reversed, finding Roark’s injuries arose out of Beelman’s operations, so Peabody is an additional insured under the insurance policy and is therefore entitled to summary judgment.

“Regardless of whether Roark was injured because of Peabody’s sole negligence, the designated evidence shows that Roark’s injuries – the basis of Peabody’s potential liability – arose out of Beelman’s operations. Thus, Peabody is an additional insured under the Policy,” Judge Michael Barnes wrote.

Since Peabody is an additional insured under the policy, Beelman did not breach the MPA, the court affirmed.
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Aug. 31

Civil Plenary – Public Officers

Patricia J. Barrow and Charlie Hanka v. City of Jeffersonville, Jeffersonville Planning and Zoning Dept., Jeffersonville Board of Zoning Appeal, Jeffersonville Building Comm., et al.

10A05-1112-PL-647

The Indiana Court of Appeals determined that the Jeffersonville director of planning and zoning and the city building commissioner are public officers under Indiana Code 34-11-2-6. The judges discovered there is no precedent defining public officer under this statute.

Patricia Barrow and Charlie Hanka in August 2010 sued the city of Jeffersonville and other entities after the city Director of Planning and Zoning Chester Hicks and Building Commissioner Russell Segraves approved and issued an Improvement Location Permit to allow MAC Construction and Excavating to lease a portion of property to operate an asphalt plant. The property was used as a quarry.

Barrow and Hanka claimed the July 14, 2005, zoning interpretation and the Aug 4, 2005, ILP were improperly issued. They sought revocation of both. MAC argued the issue was barred by the statute of limitations under I.C. 34-11-2-6, which the trial court granted. Under the statute, suits against a public officer must be filed within five years of when the cause of action accrued.

The plaintiffs claimed the court erred when it found Hicks and Segraves were public officers protected by the statute of limitations.

Determining how to define “public officer” for the first time under this statute, the Court of Appeals affirmed. It took into account statutes and caselaw. “… we believe that in order for an individual to be a public officer under Indiana Code section 34-11-2-6, it must be determined that the individual holds a position for which duties are prescribed by law to serve a public purpose. We further conclude that the taking of an oath is not required to be a public officer, but the fact that one has been taken is a strong indicator of the position being one of a public officer,” Judge James Kirsch wrote.

The judges found both men to be public officers, so the statute of limitations is applicable. However, the court erred in granting summary judgment because the plaintiffs’ cause of action wasn’t barred by the five-year statute of limitations. The plaintiffs’ couldn’t have learned of the July 2005 letter or issuance of the ILP in August 2005, Kirsch continued. The earliest they could know of the plant construction was Nov. 30, 2005, when a public hearing on the construction was scheduled. The plaintiffs filed their complaint on Aug. 16, 2010, which is within the five years of the date on which the cause of action accrued. The judges remanded the case for further proceedings.

Juvenile – Termination of Parental Rights

Term. of the Parent-Child Rel. of: B.F. (Minor Child), and M.G. & S.F. (Father & Mother) v. The Indiana Dept. of Child Services

26A04-1202-JT-90

The Gibson Circuit Court committed fundamental error in terminating the parental rights of a mother and father over their young child, the Indiana Court of Appeals held. The Department of Child Services admitted that it failed to comply with statute when filing the petition to terminate their parental rights.

Parents M.G. and S.F. appealed Judge Jeffrey Meade’s decision to terminate their rights to their child, B.F. The DCS removed the child from the mother’s home in January 2010. The parents admitted to the allegations in the CHINS petition. On March 30, 2010, the parents signed a parental participation order, and the trial court entered its dispositional decree in May.

In October 2010, the DCS filed the petition to end M.G. and S.F.’s parental rights, alleging B.F. had been removed from their care for at least six months under the dispositional decree issued in March. But the petition contained no allegations that the trial court entered a finding under Indiana Code 31-34-21-5.6, nor did it allege that B.F. had been removed from the parents for at least 15 of the most recent 22 months, the appellate court noted.

Meade terminated their parental rights in February 2012.

“Here, DCS has conceded that its petition is jurisdictionally flawed. We acknowledge that DCS admits they failed to comply with the statute,” Judge Patricia Riley wrote.

The trial court entered the dispositional decree in May 2010, but the termination petition was filed in October 2010, less than four months after the entry of the dispositional decree and less than nine months after B.F. was removed from the home.

“Further, there is no evidence that the trial court ever entered a finding under I.C. § 31-34-21-5.6. Therefore, the only requirement alleged under I.C. § 31-35-2-4(b)(2)(A) was not true,” she wrote.

The case was remanded for further proceedings.
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Sept. 4

Criminal – Murder/Witness Testimony

Nathan S. Berkman v. State of Indiana

45A04-1111-CR-583

A witness’s testimony from a man’s murder trial and the deposition testimony of another unavailable witness were correctly allowed at the man’s second murder trial, the Indiana Court of Appeals held.

Nathan Berkman appealed his conviction and sentence for felony murder, raising four issues on whether the trial court abused its discretion: in denying his motion to dismiss, which was made on the basis that the instant charge was barred by double jeopardy prohibitions; in denying his mistrial motion, which was made on the basis that the trial court abused its discretion in admitting certain testimony from his first trial; and in admitting certain deposition testimony. Berkman also appealed his 60-year executed sentence.

Berkman slit the throat of Olen Hawkins in his car and stole drugs and money from Hawkins. He drove Hawkins’ car home with the body in it and eventually disposed of the body a few days later by setting the car on fire.

Berkman was charged with murder and felony murder. He was acquitted of the murder charge. The jury didn’t reach a verdict on the felony murder count. At his second trial for felony murder, his girlfriend, Arlene Timmerman, told the judge while on the stand she might be having a migraine and didn’t feel well. The judge declared her unavailable to testify and admitted her testimony from the first trial. The judge also allowed the deposition testimony of Paul Barraza into evidence. Barraza was also considered unavailable as the state tried to locate him but was unsuccessful. He was believed to be in Florida avoiding an open arrest warrant in Lake County.

The Court of Appeals ruled the state was not barred by collateral estoppel from trying Berkman again for felony murder. The admission of Timmerman’s previous testimony was not an abuse of discretion as the trial court correctly found she was unavailable, the judges held. The trial judge was able to observe Timmerman’s behavior and knew she had been previously hospitalized. Berkman was able to cross-examine her during Timmerman’s prior testimony, so his right to confront the witness was not violated, Judge Cale Bradford wrote.

The trial court also did not abuse its discretion in admitting Barraza’s deposition testimony, the court held. The state made a reasonable, good-faith effort to secure Barraza’s presence at trial, but he had apparently fled to avoid an arrest warrant, Bradford continued. Efforts to reach him at his previous address and phone number did not pan out.  

Berkman’s confrontation rights were not violated by admitting the deposition testimony as he had the opportunity to ask Barraza questions to undermine his testimony or any other questions he wanted answered. The appellate court also declined to adopt the Florida rule that the use of discovery depositions during a criminal trial does not satisfy constitutional confrontation requirements.

The judges also found Berkman’s sentence to be appropriate given the nature of the offense and his character.  

Civil Plenary – Workers’ Compensation

Hood’s Gardens, Inc. v. Jason Young, Craig Mead d/b/a Discount Tree Excavation a/k/a D & E Tree Extraction

29A04-1201-PL-8

The Indiana Court of Appeals ruled that a Hamilton Superior Judge erred in granting an injured worker’s motion to dismiss a company’s action on whether it was liable to pay workers’ compensation to the injured man, who worked for another company.

Hood’s Gardens entered into a contract with D&E Tree Extraction to have a tree removed for $600. D&E would also haul the wood and debris away and keep the wood. D&E sent Jason Young to remove part of the tree. He was severely injured in the process and rendered a paraplegic. Young’s attorney made a demand that Hood’s Gardens pay workers’ compensation benefits to Young.

HG knew it could be liable under Indiana Code 22-3-2-14(b) because it didn’t check whether D& E had proper insurance, but HG believed the statute didn’t apply because the contract was only for $600. The statute holds a company liable for work exceeding $1,000.

Young argued that the value of the wood hauled away was at least $400, making HG liable. HG filed a complaint for declaratory judgment on the matter, and it later filed a motion for summary judgment. Young sought to have the declaratory judgment dismissed because he argued the worker’s compensation board had exclusive jurisdiction to hear the issues raised by HG. The trial court granted the motion to dismiss.

The appellate court ruled the Declaratory Judgment Act is the appropriate vehicle for resolving the issue raised by HG in its complaint. The issuance of a declaratory judgment serves the useful purpose of determining whether the value of the contract between D&E and HG is a statutory basis for changing HG’s legal status, Senior Judge Carr Darden wrote.

The exclusivity provisions of the Worker’s Compensation Act didn’t give the board exclusive jurisdiction to decide the simple contract construction issue, he wrote. The judges reversed the motion to dismiss and remanded for further proceedings.•