Indiana Court Decisions - Nov. 24 to Dec. 8, 2015

December 16, 2015

7th Circuit Court of Appeals

Dec. 3

Civil – Disability Benefits Denial

Anne R. Hill v. Carolyn W. Colvin, acting commissioner of Social Security


Seventh Circuit Judge Richard Posner had harsh words for the Social Security Disability Office regarding vocational expert testimony: clean up your act.

The 7th Circuit Court of Appeals reversed the denial of Anne Hill’s application for Disability Insurance Benefits and Supplemental Security Income, finding the administrative law judge’s credibility analysis was flawed. Hill, 56, worked for more than 13 years at a steel factory where she had to carry steel sheets weighing up to 100 pounds. The manual labor took a toll on her body and she applied for disability benefits in 2011. Her physical issues include total hip replacement, knee pain, recommended total shoulder replacement, and severe physical limitations in the use of her left side.

She babysits, but is unable to lift the child, does chores and goes to church, but is unable to sit or stand for long periods of time.

The vocation expert in her case testified that she could work at jobs classified as light and unskilled, such as dealer account investigator or a counter clerk. The expert, using his own experience to opine on how Hill’s issues with her left side would impact her ability to work, testified she could still perform sedentary jobs such as a registration clerk.

Using the five-step analysis for assessing disability, the ALJ concluded Hill is not disabled. The ALJ noted that Hill was not taking narcotic pain relievers, but Hill had testified that was because of her past alcohol addiction. The judge reasoned Hill exaggerated her back pain because she hadn’t been diagnosed with certain conditions, but that conclusion is not supported by any medical evidence in the record.

“We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had she not inappropriately ‘played doctor,’ ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless,” Judge Anne Claire Williams wrote.

Posner wrote a concurring opinion in which he focused on “a persistent, serious and often ignored deficiency in opinions by the administrative law judges of the Social Security Administration” in denying benefits. He noted the issues regarding vocational expert testimony concerning the number and types of jobs that an applicant deemed not to be totally disabled could perform. It appears the experts simply divide census data estimates on the number of jobs in a broad category that includes the narrow category of jobs that the applicant can perform, by the total number of narrow categories in the broad category.

“The assumption is thus that every narrow category has the same number of jobs as every other narrow category within the broad category – a preposterous assumption,” Posner wrote.

“In short, the vocational expert’s testimony was worthless – and this apart from the apparent arbitrariness of his numerology,” he continued. “It is time the Social Security Disability Office cleaned up its act.”

Indiana Supreme Court

Dec. 1

Discipline – Disbarred

In the Matter of: David J. Steele


Dec. 2

Civil Plenary - Negligent Procurement of Insurance

Christopher Schmidt v. Indiana Insurance Company, C&F Insurance Group, LLC, and Bart Stith


A man’s lawsuit will continue against an insurance agent and his agency after they insured his rental property but then denied coverage after a fire, alleging the man misrepresented the property’s condition.

Christopher Schmidt allowed his cousin to live in his property in Fort Wayne, but the home ended up being condemned by the health department. Schmidt’s cousin had numerous animals in the property, and the property was covered in excrement, fleas and garbage. The home had to be extensively cleaned and repaired before it was habitable.

Schmidt, at that time, did not have insurance on the property, but arranged for insurance through agent Bart Stith with C&F Insurance Group LLC. There is a dispute as to whether Schmidt signed the application that did not say the property was vacant, uninhabitable, being renovated and intended for rent. Indiana Insurance Co. issued a dwelling fire policy on the property, and the property was destroyed by a fire two months later. The insurance company denied coverage after conducting an investigation, saying the policy contained material misrepresentations.

Schmidt sued alleging Stith, C&F Insurance Group, and Indiana Insurance Co. were negligent related to the contents of the application for the dwelling fire policy and for failing to procure appropriate insurance. The trial court granted summary judgment for the defendants; the Court of Appeals reversed regarding Stith, who has since died, and C&F. The Indiana Supreme Court agreed with the COA.

Even if Schmidt was truthful and provided complete information regarding the property to the insurance agent, there remains no genuine issue of fact regarding proximate causation, Justice Brent Dickson wrote. No dwelling fire insurance policy would have been issued on such information.

However, summary judgment was not appropriate for Stith and C&F regarding the negligent failure to procure appropriate insurance claim. The two defendants failed to exclude the possibility that other types of fire insurance coverage for the property could have been obtained and issued, Dickson noted.

The justices summarily affirmed the COA as to summary judgment in favor of Indiana Insurance Co.

Dec. 8

Civil Tort – Respondeat Superior

Stacy Knighten v. East Chicago Housing Authority, Individually and d/b/a West Calumet Complex, Davis Security Service, LLC, and Donnell Caldwell


Whether a security guard, who shot a woman during an argument while he was on duty, was acting to further his employer’s business when he shot her is a matter that should be decided by a judge or jury, the Indiana Supreme Court held.

Stacy Knighten sued Donnell Caldwell, his employer Davis Security, and the East Chicago Housing Authority after Caldwell shot Knighten in the back with his handgun after they got into a confrontation near the guard shack of the housing complex where Caldwell worked as a security guard. Knighten and Caldwell were romantically involved. He allowed her to use his car to go to the liquor store and she returned to the housing complex intoxicated. At some point in the confrontation, she damaged the entrance gate to the complex. Knighten was paralyzed from the waist down from the shooting.

At issue is whether the trial court and Court of Appeals erred in granting Davis Security’s motion for summary judgment on Knighten’s claim for negligent hiring and supervision.

Her case is premised on the doctrine of respondeat superior, under which Davis Security who is not liable because of its own acts, could be held liable for wrongful acts Caldwell committed within the scope of his employment.

There is conflicting evidence as to what Caldwell’s duties and responsibilities were as security guard. Davis Security asserted that his position at the guard shack included traffic control and he was only allowed to monitor traffic and allow in residents and authorized individuals. Caldwell testified he was only allowed to monitor traffic. Justice Robert Rucker pointed out that Davis Security used the word “included,” and the contract between the housing authority and Davis Security shows that armed security guards would also work to deter theft of property and threatening or unruly conduct.

Caldwell said his supervisor told him he should not be armed, but five months before Caldwell shot Knighten, Davis Security informed him that his handgun permit had expired and he needed proof that it was current.

There are genuine issues of material fact precluding summary judgment, the justices held in reversing the trial court and remanding for further proceedings.

Indiana Court of Appeals

Nov. 30

Juvenile - CHINS

In the Matter of S.M., J.M., A.M., H.G., Children in Need of Services, A.M. (Mother) v. The Indiana Department of Child Services


Finding the evidence to be “wholly lacking,” the Indiana Court of Appeals reversed a CHINS adjudication and admonished the juvenile court and the Indiana Department of Child Services to refocus their efforts on families truly in need.

Four siblings, all under the age of 10, were found to be Children in Need of Services in part because the mother, A.M., had a history of drug use and the father of the youngest child tested positive for illegal substances. The Marion Superior Court also ordered the mother to participate in home-based therapy, home-based case management and random drug screens.

The Court of Appeals did not find the evidence sufficient to support a CHINS finding. There was no evidence the children were endangered or ever lacked food, shelter or love and care. Moreover, there is no evidence that the parents ever used drugs in the presence of the children or were impaired by substance abuse while the children were in their care.

“The mere fact of an unemployed parent does not make a CHINS,” Judge John Baker wrote. “The mere fact of a family on food stamps does not make a CHINS. Even the mere fact of a family living in a shelter while seeking stable housing does not make a CHINS. Here, those mere facts are the only facts (and one of them was merely a future concern rather than a present fact). The record is wholly devoid of a single example of the children’s needs going unmet.”

The Department of Child Services argued the children were CHINS because the youngest, H.G., tested positive for marijuana at birth. However, the Court of Appeals found DCS failed to prove H.G. was not receiving the care, treatment or rehabilitation he needs.

“We are well aware that DCS and the courts are overwhelmed with the growing numbers of CHINS cases statewide,” Baker concluded. “All would be better served if the system focused its time, efforts, and resources on the families who really need them. This one did not.”

Miscellaneous - Driver’s License Suspension

Kent W. Abernathy, Commissioner of the Indiana Bureau of Motor Vehicles and Bernard Carter, Prosecuting Attorney for Lake County v. Eric C. Gulden, Jeremy Crawford, David J. Klahn, et al.


A divided panel of the Indiana Court of Appeals ruled against five Lake County motorists who a trial court determined could not be judged habitual traffic violators.

The majority ruled a 2012 statute amendment clarified that in order for someone to be judged a habitual traffic offender, he or she must have committed three qualifying offenses within a 10-year period. A trial court denied the Bureau of Motor Vehicles’ HTV petitions in five cases, relying on the date of conviction rather than date of offense.

The 2012 amendment clarified that date of offense was the basis. The trial court determined, however, that in the cases of Eric C. Gulden, Jeremy Crawford, David J. Klahn, John P. Martin, and James M. Panozzo, applying the 2012 amendment to prior offenses violated ex post facto protections.

Judge Patricia Riley wrote for the majority joined by Judge Robert Altice that the amendment “only sought to clarify the calculation method used in the HTV determination, it did not amend the offense nor alter the penalty and was procedural in nature. … Accordingly, we reverse the trial court.”

Dissenting Judge Elaine Brown would affirm the trial court. She concluded the amendment “changed the elements of the habitual violator offense as to Appellees, that the amendment was not procedural in nature, and that as applied to Appellees the amendment violates the prohibition on ex post facto laws.”

Protective Order - Hearsay

Anna Wood v. D.W., Minor Child, by next friend, Rhonda Wood


A protective order against a family member who police accused of sexual abuse against a child was lifted by the Indiana Court of Appeals.

Anna Wood is a half-sister to the father of D.W. Rhonda Wood, D.W.’s mother, sought a protective order against Anna Wood that was granted in Hamilton County. However, the appellate panel concluded the court abused its discretion in issuing the order.

The court improperly relied on hearsay evidence from D.W.’s nanny, who testified that when she picked up the 7-year-old boy from school, he told her Anna Wood had touched his penis. A Carmel police detective also testified that she believed the child was being truthful in alleging sexual abuse.

“D.W.’s statement and Detective (Sarah) Harris’s opinion were the only probative evidence that Anna committed a sexual offense/domestic violence against D.W. Consequently, the trial court’s erroneous admission of this evidence affected Anna’s substantial rights and cannot be considered harmless. Therefore, we reverse and remand with instructions to vacate the protective order against Anna,” Judge Terry Crone wrote for the panel.

Civil Tort - Negligence/Dram Shop Act

Pamela Marlow v. Better Bars, Inc.


A bar will have to face a negligence lawsuit brought by a man who was served at least one drink before he fled from a police stop in handcuffs and was hit by two cars as he tried to cross a state highway.

The divided Court of Appeals opinion reinstated a negligence suit brought by the guardian of Kenneth Marlow. He spent more than three months recovering in the hospital from a broken leg, broken arm, broken ribs, a fractured skull and brain trauma after he was struck by motorists on State Road 67 in Hendricks County.

A police officer was dispatched to a White Castle restaurant where Marlow allegedly was creating a disturbance in the drive-through lane. The officer cuffed Marlow and moved his car from the line when Marlow attempted to flee across the four-lane divided highway.

Before this, Marlow had been drinking with co-workers at Bubbaz Bar & Grill in Camby. The record indicates Marlow stayed after the co-workers left, and he claims liability under the Dram Shop Act. A trial court granted summary judgment in favor of Better Bars Inc., the corporate parent of Bubbaz.

“Summary judgment was improper,” wrote Judge Patricia Riley in a majority opinion joined by Judge Robert Altice. “(W)e find the fact the Bar ‘served even one (drink) to a person who shortly thereafter was in a serious state of intoxication gives rise to a question of fact whether (Marlow) was visibly intoxicated at the time,’” Riley wrote, applying the language of Ward v. D & A Enterprises of Clark Cnty., Inc., 714 N.E.2d 728, 729 (Ind. Ct. App. 1999).

The majority also found a reasonable trier of fact could reasonably determine that Marlow’s intoxication impaired his judgment to the extent he fled from the police stop.

Dissenting Judge Elaine Brown agreed there may be an issue as to whether the bar had actual knowledge of Marlow’s intoxication, and summary judgment was proper because this was not the proximate cause of Marlow’s actions that resulted in his injuries.

“The intervening act of Marlow resisting law enforcement by running from the police and into the middle of a four-lane highway at night leads to the single conclusion that the Bar was not the proximate cause of Marlow’s injuries,” Brown wrote.

Dec. 2

Criminal – Strangulation/Battery/Sentence

Thomas M. Kunberger v. State of Indiana (could move to more online)


The Indiana Court of Appeals affirmed there were no double jeopardy violations following a man’s open plea agreement to strangling, confining and battering his ex-fiancée, but one judge believed the man deserved more time in the Department of Correction based on the seriousness of the incident.

Thomas Kunberger, upset his romantic relationship with S.C. had ended, choked her so hard during the attack that she hemorrhaged in her eyes and had lingering injuries. He followed her around the apartment and refused to let her leave. The incident happened while their two children were sleeping nearby. He was arrested several days later and released on bond, but that was revoked after he violated a no-contact order involving S.C. At the bond-revocation hearing, Kunberger mouthed to S.C. that he was “going to f---ing get you.” He was later found in contempt for that action.

After pleading guilty to Level 6 felonies strangulation and criminal confinement, and Class A misdemeanor domestic battery, the judge sentenced Kunberger to two years and 183 days in the Department of Correction, with 23 days of credit for time served and two years suspended to probation.

Kunberger challenged his convictions and sentence, claiming that double jeopardy should result in overturning his strangulation and domestic battery convictions. He also argued that all of his sentence should have been suspended to probation because of his remorse and mental health history.

Even though the judges could review Kunberger’s convictions because he pleaded guilty without benefit of a plea agreement, the record does not allow for them to determine whether the same act – strangulation – was the basis for all three offenses, Judge Margret Robb wrote.

The majority affirmed his sentence based on S.C.’s injuries and Kunberger’s actions after the incident – violating the no-contact order and threatening in court to kill S.C. Judge Rudolph Pyle III dissented with his colleagues on this point, believing that Kunberger’s actions toward the victim and lack of respect for the court warrant a fully executed sentence to the Department of Correction.

Dec. 4

Criminal – Jury Instruction/DWI

Dannie Carl Pattison v. State of Indiana


A jury instruction given at a man’s drunken-driving trial resulted in fundamental error because it contained a constitutionally impermissible evidentiary presumption, the Indiana Court of Appeals concluded. As such, the court reversed the man’s conviction.

At Dannie Carl Pattison’s jury trial for Class C misdemeanor operating a vehicle with an alcohol concentration equivalent of 0.08 percent or more, the jury was given an instruction regarding rebuttable presumption. The instruction said if the evidence establishes that a chemical test was performed within three hours and the person charged had at least 0.08 percent of alcohol in 210 liters of the person’s breath, the jury shall presume that Pattison had an ACE of at least 0.08 percent at the time he operated the vehicle. The last sentence of the instruction said the presumption is rebuttable; Pattison argued the presumption created in the instruction unconstitutionally shifted the burden of proof to him.

The appellate judges agreed, noting the instruction was essentially the same one given in Hall v. State, 560 N.E.2d 561, 563 (Ind. Ct. App. 1990). In Hall, the court held that a jury instruction that tracked the language of the statute was erroneous because it ran the risk of misleading a jury into thinking the presumption was mandatory, rather than permissive.

Because Pattison didn’t object to the instruction at trial, the COA evaluated it for fundamental error. The judges reversed Pattison’s conviction because the defect of the jury instruction wasn’t corrected by any other jury instruction and the error was not harmless based on the other evidence presented.

Civil Plenary – School Conveyance

Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pam Sandefur v. Utica Township, John Durbin as Township Trustee, Jacob’s Well, Inc., Kevin Williar, John Posey, et al.


The Indiana Court of Appeals had to determine whether the conveyance of a school for park and recreational use was done so by a restrictive covenant or a fee simple with condition subsequent.

There is no Indiana precedent addressing the distinction between a restrictive covenant and a fee simple with condition subsequent, Judge Melissa May noted.

This is the second time the appeals court has ruled on a dispute between Clark County residents and Old Utica School Preservation Inc. and Utica Township and others over a quitclaim deed that conveyed an unused school to the township. The quitclaim deed said the school had to be used for park and recreation purposes, as outlined in I.C. 20-4-5-8(b). Some community activities were held at the school, but it eventually fell in disrepair. Utica Township then leased the school to Jacob’s Well, a nonprofit religious organization that would use the property to provide transitional housing to single mothers and women who receive professional assistance for drug addiction. Kevin and Barbara Williar, the founders of the organization, financed renovation of the school and built an apartment on site to live in.

The residents and the preservation group sued, seeking an injunction against Jacob’s Well using the school. Part of the building was still available for public use, and some groups did use it. The trial court determined the language of the deed is a restrictive covenant and plaintiffs didn’t have standing to sue, but the COA reversed last year. On remand, the trial court again ruled against the plaintiffs, but this time found the language to be a fee simple conveyance with a condition subsequent.

May noted that I.C. 20-4-5-8(b), in effect at the time of the conveyance, does not outline what is to happen to the school in the event that it is not used for park and recreational activities. In addition, the current statute no longer includes the requirement that land be used for park and recreation purposes.

“Here, it is not clear whether (the Greater Clark County School Corp.) intended the transfer to be a restrictive covenant or a fee simple estate subject to condition subsequent. However, the deed does not indicate the School would revert to GCCSC if it is not used for park and recreation purposes, nor does the statute under which the School was conveyed indicate such,” May wrote. “Absent such statutory language, and in light of the deed’s language that the property ‘shall be used by Utica Township . . . for park and recreation purposes,’ we conclude the conveyance was a restrictive covenant.”

The case is remanded for correction of the declaratory judgment to indicate the property was conveyed with a restrictive covenant. The appeals court affirmed the trial court’s determination the school was used for park and recreation purposes and that the residents did not demonstrate an irreparable injury that would make a mandatory injunction appropriate.

Dec. 7

Domestic Relation – Divisionof Assets

Brad Barton v. Alexandra Barton


The Indiana Court of Appeals agreed with a man that a dissolution court’s valuation and division of his pension and deferred tax savings plan was incorrectly calculated, but rejected his other claims stemming from his divorce.

Brad and Alexandra Barton filed for divorce in 2011 after six years of marriage. The divorce became final in 2014, with the dissolution court finding wife to be physically incapacitated to the point that spousal maintenance was justified. Husband was ordered to pay her $1,500 per month as well as more than $24,000 in attorney fees. The dissolution court found he had caused wife to incur extraordinary attorney fees by his failure to comply with discovery, switching attorneys and delaying the case. Wife remarried six weeks after the divorce was finalized.

Husband filed a motion for relief from judgment challenging the spousal support maintenance and attorney fees award. He also challenged the division of his pension and deferred tax savings plan.

The appeals court found that the dissolution court erred in valuing and dividing the retirement plans. The dissolution court used the coverture fraction formula to divide the plans between the parties, but there were several errors in its application. It appears the trial court awarded wife the entire amount calculated using the formula instead of one half of the coverture portion. Regarding the pension, the trial court appears to have erroneously included what is already the coverture part of the pension.

“[W]e conclude that Husband has met his burden to show prima facie error in the dissolution court’s valuation and division of his pension and deferred tax savings plan. Accordingly, we reverse that part of the dissolution decree and remand with instructions for the dissolution court to include the entire value of each retirement asset in the marital estate, apply the coverture fraction formula to determine what portion of each asset is subject to division, and then either divide those amounts equally between the parties or state reasons why an equal division of marital property would not be just and reasonable,” Judge Terry Crone wrote.

The judges affirmed the dissolution decree in all other respects.•


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