Indiana Court Decisions – Dec. 10-19, 2014

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For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section. To read the complete opinion issued in any of these cases, visit and search by case name.

Indiana Supreme Court

Dec. 18

Criminal – Public Intoxication

Rodregus Morgan v. State of Indiana


The Indiana Supreme Court vacated a man’s public intoxication conviction after finding his agitation does not rise to the level that would annoy a reasonable person. But the justices did find that the statute is not unconstitutionally vague.

Rodregus Morgan challenged his conviction of Class B misdemeanor public intoxication, which occurred after a police officer working security for the city bus service tried to wake Morgan, who was sleeping in a bus shelter. When Morgan woke up, he seemed agitated but complied with the officer’s request to get up from the bench. That’s when the officer believed Morgan was intoxicated and placed him under arrest.

The Indiana Court of Appeals reversed, finding the portion of the public intox statute enacted in 2012 that uses the term “annoys” is void for vagueness. Morgan’s conviction was based on his “annoying” behavior.

The justices also reversed the conviction, but only after finding the statute was not unconstitutionally vague. Morgan argued that the term “annoys” is not defined in the statute and the term alone does not provide necessary warning or notice of the prohibited conduct that is required in a criminal statute.

Justice Steven David noted that the term “annoys” standing alone does appear to create a vagueness problem. But because of precedent using a reasonableness standard and principles of statutory interpretation apply, the justices found the statute to be constitutional.

“We acknowledge Morgan’s argument that ‘behavior that annoys some people will not annoy others,’” David wrote. “However, Indiana has historically recognized that the purpose of the public intoxication statute ‘is to protect the public from the annoyance and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition,’ thus demonstrating the apparent suitability of the word ‘annoys’ within the statute.”

Morgan was provided sufficient notice of the type of conduct that is prohibited, and neither arbitrary nor discriminatory enforcement will be authorized or encouraged. But, the justices found insufficient evidence to support his conviction.

“Morgan was agitated after being approached by the police officer. However, the degree of agitation expressed … by Morgan, standing alone, does not rise to the level that would annoy a reasonable person,” David wrote.

Indiana Court of Appeals

Dec. 16

Civil Plenary – Environmental Cleanup

Thomson, Inc. n/k/a Technicolor USA, Inc., et al. v. XL Insurance America, Inc. f/k/a Winterthur International America Insurance Co., et al.


A trial court improperly ruled in favor of an insurer on Thomson Inc.’s claims for the cleanup of toxic chemicals at two consumer electronics manufacturing sites.

“Based on the evidence, we conclude that a material issue of fact exists as to whether Thomson had actual knowledge of its liability as to contamination … prior to the purchase of XL’s policies,” Indiana Court of Appeals Judge James Kirsch wrote for the majority joined by Judge Margret Robb. The panel reversed summary judgment in favor of XL Insurance America and remanded to Marion Superior Judge Michael D. Keele for entry of summary judgment in favor of Thomson on one matter and further proceedings on another.

Thomson incurred $4.3 million in remediating groundwater around the site of a plant in Taiwan, and the trial court erred in granting the insurer summary judgment and denying summary judgment for Thomson. The company also incurred $25,000 in costs investigating possible contamination at a plant site in Circleville, Ohio. The majority found summary judgment for the insurer was error and remanded for proceedings on this issue.  

Judge John Baker dissented and found that the known loss doctrine prohibits Thomson from recovering damages at either site. Baker wrote that Thomson was aware of contamination at the Taiwan site as early as 1989. Baker would affirm the trial court’s grant of summary judgment in favor of XL with regard to both sites.

Dec. 18

Civil Plenary – Wrongful Discharge/Tortious Interference

Dawn Duty v. Boys and Girls Club of Porter County and Chuck Leer


A woman who claims she was fired after she blew the whistle about alleged accounting violations by her boss can move forward with her lawsuit against her former employer.

Dawn Duty filed a complaint against the Boys and Girls Club of Porter County and then-president Charles Leer after her employment was terminated. She claims the club wrongfully discharged her and Leer tortiously interfered with a business relationship.

The Porter Superior Court granted the defendants’ joint motion to dismiss on the grounds that Duty failed to state a claim upon which relief can be granted.

However the Indiana Court of Appeals overturned part of that decision. It affirmed the dismissal of Duty’s claim against the Boys and Girls Club but reversed the dismissal of her claim against Leer and remanded for further proceedings.

The defendants argued Duty was not specific enough about Leer’s “wrongful conduct,” instead making only an unsupported statement that Leer did not have any justification for his alleged conduct.

The Court of Appeals found Duty’s allegation to be “sufficiently specific.” Duty claims Leer said and did things to get her fired in retaliation for her telling another club official about Leer’s and the financial officer’s financial practices that violated good accounting practices, policy and recommendations. In addition, she alleges Leer’s actions were vindictive.

Consequently, the Court of Appeals found that under Trial Rule 12(B)(6), Duty has stated a claim upon which relief can be granted for tortious interference with a contractual relationship.

Dec. 19

Criminal – Identity Deception/Double Jeopardy

Christopher Duncan v. State of Indiana


Finding that the state relied on the same evidence to convict a man of three charges after he fired a gun at police while fleeing, the Indiana Court of Appeals ordered one of those convictions vacated and the other reduced.

The judges also reversed Christopher Duncan’s conviction of Class D felony identity deception because of insufficient evidence.

Police stopped the car Duncan was a passenger in for a routine traffic stop. Duncan, when getting out of the car, ran away from officers, who had smelled marijuana. One officer shot his TASER at Duncan as he saw Duncan fire at him. The gun was a 9mm, but Duncan claimed he thought it was a BB gun.

Duncan provided a false name and birth date to officers. Police later obtained a search warrant for a home and found Duncan’s Social Security card and birth certificate, 9 mm ammunition and some marijuana. Police also found marijuana in the car after the traffic stop.

Duncan appealed his convictions of Class C felony attempted battery by means of a deadly weapon, Class D felony identity deception, Class D felony pointing a firearm, Class D felony possession of marijuana, and Class D felony resisting law enforcement.

The appeals court ordered the lower court to reverse the identity deception conviction because the state did not prove that George Frederick Walker, the name given by Duncan to police, was an actual person. The identity deception statute does not criminalize for the use of a fictitious name, Judge Ezra Friedlander pointed out.

The judges also remanded the case for the trial court to reverse Duncan’s conviction of pointing a firearm and reduce his resisting law enforcement conviction to a Class A misdemeanor due to double jeopardy principles. The state invited the jury to rely on the same evidence when convicting him of pointing a firearm and attempted battery with a deadly weapon. As such, there is a reasonable possibility that the jury relied on the same facts to convict Duncan of both offenses.

The resisting law enforcement conviction was elevated to a felony based on the use of a deadly weapon, which again was used to support both the enhancement of that charge and the attempted battery charge.

Agency Action – Unemployment Benefits

Suzanne E. Esserman v. Review Board of the Indiana Department of Workforce Development, and Indiana Department of Environmental Management


The Indiana Court of Appeals found a 25-year state employee did not breach a duty reasonably owed to her employer when she failed to meet monthly quotas because she thoroughly reviewed cases instead of quickly approving expenses.  

The appeals court ruled that the review board of the Indiana Department of Workforce Development erred when it denied Suzanne E. Esserman’s claim for unemployment benefits after finding she was discharged for just cause. Esserman worked for the Indiana Department of Environmental Management from February 1989 until her employment was terminated in January 2014. When she was fired, she was a senior environmental manager 1 within the Excess Liability Trust Fund section, which reviewed claims submitted by owners and operators who had underground storage tanks that required remediation and cleanup. The ELTF program reimbursed for specific costs incurred in those cleanups.

Beginning in June 2013, IDEM instituted quota requirements for employees. For several months, Esserman did not meet her quota because she performed in-depth reviews of files and found other employees signed off on overcharges. She believed it was important to save the department money, but the department instead fired her for failure to meet work expectations.

Esserman sought unemployment benefits, but a deputy from the DWD, an administrative law judge, and the review board all found that IDEM terminated her for just cause.

“We note that there will always be a balance between efficiency and thoroughness in administering programs such as the ELTF program. Nevertheless, in addition to controlling administrative costs, it is in the interest of Employer to limit improper distributions for cleanup costs by ensuring that claims are processed accurately and that substantial overpayments exhausting limited resources are not authorized by reviewers and quality control reviewers,” Judge Elaine Brown wrote.

The judges also noted that many of the months Esserman didn’t meet her quotas were when she was out on medical leave of absence.

“Additionally, we cannot say that a reasonable employee would understand that attempting to process claims accurately leading to possibly significant savings to the ELTF, and especially considering that the employee would have been held responsible for inaccurate payments of claims or held liable or discharged for knowingly authorizing overpayments, would be considered a violation of a duty reasonably owed to Employer for the purpose of being ineligible for unemployment benefits,” Brown continued.

IDEM did not meet its burden of establishing Esserman breached a duty reasonably owed to it. She is entitled to benefits under her claim.•

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