Indiana Court Decisions – March 1-15, 2016

7th Circuit Court of Appeals

March 1

Civil – Excessive Force

Mitchell Alicea v. Aubrey Thomas, Alejandro Alvarez and the City of Hammond

15-1255

The 7th Circuit Court of Appeals said there was enough evidence against two officers accused of excessive force while arresting a Hammond man to create material dispute and therefore reversed summary judgment for the officers. The case was remanded to District Court for further proceedings.

Mitchell Alicea robbed a house and then fled a couple of blocks to hide in an empty pool. Hammond police officers were called to the scene with a police dog, Leo. There are disputed stories as to what happened next, but Alicea claimed the dog caused many injuries to him and use excessive force with him. He also claims officers stepped on his head, threw him to the ground and generally used excessive force as well.

The officers claimed they only used the force necessary, and that Leo was just doing his job. They claimed they did not step on his head, kick him or do anything other than what was necessary to arrest him.

Alicea brought federal and state claims against the city of Hammond and the two officers under 42 U.S.C 1983 and Indiana Code 34-13-4-1, governing indemnification of employees for civil rights violations. The defendants filed for and were granted summary judgment by the trial court, saying Alicea’s indemnification claims against Hammond were not ripe for adjudication. The decision to deploy Leo was objectively reasonable, as was the use of force, and the defendants were entitled to qualified immunity. Alicea appealed.

The police argued even taking Alicea’s version of events as true, his prior fleeing cast doubt on the genuineness of his surrender. The court disagreed, saying Alicea was not in active flight once he was discovered. Also, he was in an above-ground pool, and it would have taken time for Alicea to get out. During that time, the officer could have deployed Leo or fired his weapon to stop him if he tried to flee. Also, according to Alicea, he immediately complied with the officer. Because of that, the officer’s deployment of Leo could have been excessive.

As for the second officer, the court said when he found Alicea, Alicea was in the jaws of the dog and screaming for help, and there was no need to punch, stomp and kick him. The 7th Circuit said the District Court mistakenly inserted an injury requirement into its excessive force analysis, which does not belong there.

The 7th Circuit also said granting qualified immunity to the officers was improper. The evidence would permit a reasonable jury to find excessive force. Also, the officers’ actions violated clearly established law. Excessive force was used on a non-resisting or passively resisting individual.

Also, because the actions are in dispute, the officers cannot seek qualified immunity.

Indiana Supreme Court

March 2

Criminal – Corrupt Business Influence/Street Crimes

Ashonta Kenya Jackson v. State of Indiana

48S02-1509-CR-554

The Indiana Supreme Court ruled that street-level crimes may be prosecuted under the state’s version of the Racketeer Influenced and Corrupt Organizations Act if the crimes aren’t isolated, affirming an Anderson man’s conviction of corrupt business influence related to a string of robberies.

Chief Justice Loretta Rush wrote for the court that while the federal RICO Act requires a continuing pattern of racketeering activities, Indiana’s corrupt business influence law requires a pattern of racketeering activities that were not isolated events.

Ashonta Kenya Jackson drove a getaway car for a crew of younger men who robbed a liquor store twice and later a bank in October 2013. Jackson was charged with three counts of Class B felony robbery, and because of the nature of the crimes, the prosecutor also charged Class C felony corrupt business influence. Jackson was convicted on all counts and sentenced to 63 years in prison as he was also adjudicated a habitual offender.

“Jackson was the mastermind behind each robbery, plotting the crimes and supervising his recruits. The blueprint he developed let him bear little risk, keeping a safe distance while his accomplices carried out the crimes and waiting to rendezvous with his crew until afterward. And Jackson’s coordination of the crimes became more sophisticated over time,” Rush wrote.

“The third armed robbery involved a riskier target, a bank — and a savvier design, calling in a bomb threat to a local school in an effort to distract law enforcement. There is no indication that Jackson’s goal was short-lived and that he would have stopped after the third robbery; rather, the evidence points to the opposite conclusion. In sum, we hold that the fact-finder could reasonably infer from the nature of the crimes that they were not isolated or sporadic.”

The case was remanded to the trial court to revise the sentencing order regarding which offense was enhanced by Jackson’s habitual offender judgment.

Miscellaneous – Statute of Repose/Asbestos Exposure

Larry Myers and Loa Myers v. Crouse-Hinds Division of Cooper Industries Inc. and Lorillard Tobacco Company and Hollingsworth & Vose; General Electric Company. v. Mary R. Geyman, on her own behalf and on behalf of the state of Raymond Geyman; and Owens-Illinois Inc. v. Mary R. Geyman, on her own behalf and on behalf of the state of Raymond Geyman

49S00-1502-MI-119;

49S00-1501-MI-35; 49S00-1501-MI-36

Read more on pg 1.
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March 15

Criminal – Involuntary Manslaughter/Jury Taint

Saundra S. Wahl v. State of Indiana, and Daniel P. Wahl v. State of Indiana

29S04-1510-CR-605; 29S02-1510-CR-606

The Indiana Supreme Court reversed a couple’s involuntary manslaughter convictions after it found an alternate juror improperly participated in the deliberations. The justices remanded the case to the trial court for a new trial.

Daniel and Saundra Wahl were each convicted of involuntary manslaughter following the death of a child at their in-home day care facility on June 20, 2013. However, before the trial court handed down their sentences, one of the jurors emailed the trial judge saying the alternate juror had taken over deliberations, leading discussions and playing a DVD over and over again. He also manipulated evidence according to the email.

The defendants filed a motion for a mistrial in light of the email, but it was denied, as was a motion to correct error after the trial was over. The Indiana Court of Appeals also upheld the decision, and the Supreme Court granted transfer to both cases, combining them into one decision.

Justice Brent Dickson wrote the opinion and cited Ramirez v. State, 7 N.E.3d 933, 936 (Ind. 2014) in the court’s decision. The defense argued Ramirez shouldn’t apply because in that case misconduct was committed during trial, and in the Wahl case, misconduct was committed during jury deliberations. But Dickson said Ramirez does apply whenever there is jury taint.

Dickson said the actions of the juror, which were outlined in a sworn affidavit, were more than enough to justify the reversal. The juror took over the deliberations, which directly affected the decision in the case.

Because the presumption of prejudice applied, Dickson said, it was up to the state to prove the prejudice was harmless, which it didn’t do. It only showed that the alternate juror’s participation with the jury was less after he was told he can’t participate, but not that it was harmless.

Justice Mark Massa dissented in part. He agreed with the reversal of the denial of the Wahls’ motion for a mistrial, but disagreed there should be a new trial. He said the trial court has a duty to investigate jury taint by interviewing jurors when that is discovered, but didn’t say the state had to do it.

“Today’s decision – in a significant clarification of the burden of proof – extends Ramirez to impose that same duty on the state in a post-conviction setting. The state should thus be given the opportunity to meet that burden before the court makes a determination on the merits. I would therefore remand for additional hearing on the Wahls’ motion, so that every juror can actually inform the court as to the impact of the alternate juror’s misconduct on their respective impartiality.”

Indiana Court of Appeals

March 3

Civil Tort – Handgun at Work/Termination

Caterpillar Inc. v. William Sudlow

79A02-1507-CT-801

The Indiana Court of Appeals overturned a man’s request for summary judgment after he was fired for bringing a gun to work and instead granted summary judgment to his ex-employer after it found the man was not entitled to relief under statute or common law.

William Sudlow drove to work at Caterpillar Inc. and left his Ruger .357 Magnum handgun in sight as he went into work. An employee saw it and notified management, who first suspended and then summarily fired Sudlow for violating company policy.

The trial court granted summary judgment for Sudlow, saying that he did not violate the company policy in place at the time because there was not a policy that said he needed to keep his gun out of sight. That revised policy was posted the day after Sudlow was fired. The trial court awarded $85,000 in damages to Sudlow. Caterpillar appealed.

However, the COA had a different opinion. It said Sudlow was not entitled to relief under I.C. 34-28-7-2(a), the firearms statute, because Caterpillar’s firearms policy did not ban conduct protected by it, and the statute clearly says action under it is authorized only when an employer violates the statute, which Caterpillar did not do.

The COA also argued with Sudlow’s interpretation of the statute. “In other words, Sudlow believes that if an employer does not have a firearms policy in place, an employee could walk into the workplace with a loaded assault rifle and face no employment consequences as a result.”

The court said the statute is not nearly that broad, and its plain language means Sudlow was not protected under the statute.

Sudlow is also not entitled to relief under common law, the COA said. Sudlow was an at-will employee and is not covered under the public policy exception, the only one the parties discussed. The firearms statute does give an employee the right to confer a weapon if it’s kept out of sight; it does not give the right to store a weapon in plain sight. Therefore, Sudlow’s actions were not protected under the statute.
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March 11

Civil Plenary – Preliminary Injunction/Fight

Indiana High School Athletic Association and Hammond Gavit High School v. Nasir Cade, et al.

45A03-1503-PL-84

The Indiana Court of Appeals reversed a preliminary injunction against the Indiana High School Athletic Association in a case involving a fight between Griffith and Hammond High Schools last year that allowed both schools to participate in the IHSAA tournament. The COA said the trial court improperly added its own judgment and remanded the case to the trial court for further proceedings.

During a basketball game on Feb. 7, 2015, students from both schools came on the court during a fight, as well as coaches, parents and fans. The IHSAA called both schools for a meeting the next day and ruled both schools’ teams could not participate in the IHSAA state boys’ basketball tournament and would be on probation for the rest of the season after violating two IHSAA rules and one National Federation of State High School Associations rule.

After appealing to the IHSAA review committee and receiving the same result, Griffith and Hammond appealed to a trial court for judicial review. The trial court issued a preliminary injunction, finding the penalties imposed by the IHSAA were disparate treatment and suggested the IHSAA did not follow its own rules. It cited IHSAA Rule 8-4, which said if a player is involved in any unsportsmanlike conduct for the first time, you lose eligibility for one game, but Hammond and Griffith lost the rest of their seasons. The IHSAA filed an interlocutory appeal.

The COA held the students’ interest in the outcome of the decision is moot, because the tournament is already over. “The students already participated in the state tournament, and nothing short of time travel can change that fact,” Judge Margret Robb wrote.

The schools’ interest, however, is not moot due to records and history of the schools.

The COA found the trial court erred when it held the schools demonstrated a reasonable likelihood of success on the merits. Beause the IHSAA is treated as a voluntary organization, absent illegal actions, courts do not interfere with internal affairs. The IHSAA’s suspension of the schools did not go against its own rules and nothing in its rules requires it to give similar punishments for similar violations.

The COA also said the trial court engaged in its own fact-finding in the case, which it should not have done, and applied the incorrect standard to revew the challenge.
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March 14

Civil Plenary – Uninsured Patient/Bills

Parkview Hospital v. Thomas E. Frost by Shirley A. Riggs, his guardian

02A03-1507-PL-959

The Indiana Court of Appeals ruled in a split decision the state’s Hospital Lien Act allows an uninsured hospital patient to renegotiate the terms of his contract with the hospital after a man was charged more than $600,000 for a nearly three-month stay.

Thomas E. Frost filed a declaratory judgment action under the Indiana Hospital Lien Act after he was treated at Parkview Hospital in Fort Wayne and its health services campus from Oct. 8, 2013, when he was injured in a motorcycle crash, to Jan. 28, when he was released from in-patient rehabilitation. Frost did not have health insurance at the time, and Parkview filed a hospital lien of $625,117.66, which was amended after an independent medical billing expert reviewed the charges and found several billing errors.

Frost said Parkview’s charges were unreasonable because they were more than what Parkview charges patients with insurance or those covered under Medicare or Medicaid. He submitted a written discovery request to the trial court requesting information about discounts patients with either government or private insurance receive, but did not get a satisfactory response from Parkview. He sought an order to compel discovery, and Parkview filed and was granted a stay of discovery. Parkview then filed a motion for partial summary judgment, saying its rates were reasonable as a matter of law. The trial court denied the motion, and Parkview filed this interlocutory appeal.

The COA majority relied heavily on Stanley v. Walker, 906 N.E.2d 852 Ind. (2009), when affirming the trial court’s ruling. In that case, the court had to decide whether the discounted amount of expenses actually paid in a personal injury case was admissible and relevant to a determination of damages to an injured party. The plaintiff showed the amount originally charged by the provider in his case, but did not show what was actually paid. When the defendant wanted to show what was actually paid, the trial court did not allow it, saying it was banned by the collateral source statute.

However, the Indiana Supreme Court thought differently in that case. It said presentation of medical bills in a case where reasonableness is not an issue should be allowed. In cases where reasonableness is an issue, the defendant should be able to present contradictory evidence, in the Stanley case the discounted amount, to contradict the plaintiff’s prima facie evidence.

The COA majority said this case was very similar to the Stanley case. Parkview sought to have the court determine its rates were reasonable, but that issue was disputed and Frost sought evidence to discover discounted amounts other patients had paid to challenge it. Parkview prevented Frost from meeting its prima facie evidence with contradictory evidence, and Frost should be allowed to get his information.

Senior Judge Ezra Friedlander and Chief Judge Nancy Vaidik agreed in the decision, but Judge Edward Najam dissented. Najam said it should be Allen v. Clarian Health Partners Inc., 980 N.E. 2d306, 308 (Ind. 2012), that controls the case, not Stanley. In that case, uninsured patients disputed the hospital’s rates because the patients said their contracts did not specify a price for services and because of that, the patients could introduce evidence in court that determined a reasonable price.

In that case, the Supreme Court rejected that argument, saying the patients did not state a claim upon which relief could be granted. The court said “price terms in these contracts while imprecise, are not sufficiently indefinite to justify imposition of a reasonable prices standard.” The court then said the patients entered into an agreement to pay the account, and should pay it.

Najam said this case is similar, that Frost agreed to paid the account, no matter the reasonableness of the prices. Najam says the majority agreed Allen was not relevant because Frost is not challenging a debt is due Parkview, and he is not asking the court to impute a reasonable price, but Najam said that’s wrong. He is challenging the amount of debt he has agreed to pay and is asking the court to impute a new contract price.

Najam said if Allen is not controlling, hospitals will stop seeking payment of fees through the Hospital Lien Act, and will instead try to get it through breach of contract, where Allen does control.

However, Najam said he does not agree with the Allen decision. He said Allen places patients at “a permanent take it or leave it disadvantage,” and does not determine that the way hospitals determine health care prices is fair, especially without consent of the patient.

Najam said he believed the court’s statutory analysis would be correct if not for Allen.
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March 15

Civil Plenary – Private Cause of Action

HealthPort Technologies, LLC v. Garrison Law Firm, LLC

49A02-1502-PL-99

The Indiana Court of Appeals reversed a decision that denied HealthPort’s motion for judgment against Garrison Law Firm LLC after it found Garrison did not have a private cause of action under Indiana law or Administrative Code.

Garrison sought health care information about six potential clients from their medical providers. HealthPort looked for information, but did not find any. However, HealthPort still charged Garrison a $20 labor fee for each client to cover the costs of the information gathering, which Garrison begrudgingly paid.

Garrison filed a class-action complaint, charging HealthPort violated Indiana Code 15-39-9-4 when it charged a labor fee when no documents were produced. HealthPort field a motion for judgment on the pleadings, but the trial court denied it after a hearing. HealthPort appealed.

The COA said determining a private right of action begins with legislative intent. The COA found the statute was designed to protect a general public rather than a private party and also includes an enforcement mechanism.

“As a general rule, a private party may not enforce rights under a statute designed to protect the public in general that contains a comprehensive enforcement mechanism,” Judge Randolph Pyle wrote in the decision. The court relied on Indiana Code 16-39-9-4 and 760 Administrative Code 1-71-3 to come to its decision.

“We cannot glean any legislative intent to authorize a private right of action by a personal injury attorney against a medical records company, and we are unwilling to go beyond the intent of the legislature,” Pyle wrote later.

Because there was no private cause of action, the COA remanded the case to the trial court with instructions to grant HealthPort’s motion.

Miscellaneous – Police Records/APRA

ESPN, Inc. and Paula Lavigne v. University of Notre Dame Security Police Dept., a Dept. of the University of Notre Dame du Lac

71A05-1505-MI-381

The Indiana Court of Appeals ruled the University of Notre Dame Police Department is a public agency under the Indiana Access to Public Records Act and is subject to APRA requests, overturning a trial court decision in St. Joseph Superior Court.

The COA remanded the case to the lower court, ordering it find in favor of ESPN. The COA said the trial court must determine which records the police department was required to produce under APRA and produce only those records, not all of the public documents ESPN sought.

ESPN investigative reporter Paula Levigne filed a request for public incident reports in September 2014, but the ND police department denied the request, saying it was not a public law agency. After two decisions by Indiana’s Public Access Counselor which said Notre Dame should produce the documents, ESPN filed a complaint in St. Joseph Superior Court. Both parties filed cross-motions for judgment and on April 20, 2015, granted judgment in the police department’s favor, saying it was not a public agency. ESPN appealed.

The COA said that all of Notre Dame is not a public agency, but its police department is. It cited an Ohio Supreme Court decision that said a private entity is only considered a public agency when it performs a government function, which Notre Dame does not as a university, even though its police department does.

“Here it is clear that the police department is exercising a public function,” Judge Rudolph R. Pyle wrote for the COA. “Police power is a sovereign power. Even though the Police Department is not a governmental entity, the State has delegated its officers these (g)eneral police powers, including ‘the power to arrest, without process, all persons who commit any offense within the view of the officer(s).’” Pyle cited Indiana Code 21-17-5-4 (a) in his writing.

However, how much precedence and effect the case will have is still in question since the Indiana Legislature recently passed a bill that would put into state law federal requirements of private college crime reporting, which is limited compared to other police departments.

During arguments Feb. 24, ESPN argued public policy, legislative intent and precedent in Indiana and other states favored a decision in favor of the company. Notre Dame said because it is a private institution, its records are its own and worried what the effects of a decision saying otherwise would mean not only for itself, but for other private institutions.

ESPN also challenged the trial court’s decision that its claim should be blocked by legislative acquiescence. The COA said legislative acquiescence shouldn’t exist because public access counselor decisions have existed for just over a decade, which is not enough time to determine whether the legislature has acquiesced to the determination.

Indiana Tax Court

March 7

Tax – Motions to Compel

Nick Popovich v. Indiana Department of State Revenue

49T10-1010-TA-53

The Indiana Tax Court ruled Nick Popovich should get $24,963 for successfully prosecuting his first motion to compel against the Indiana Department of Revenue, but ruled the Department of Revenue should get $5,175.25 in court fees for successfully defending Popovich’s second motion to compel.

There were two separate filings under the same cause number. In the first, Popovich filed a motion to compel the department to deliver documents to a deposition. The tax court found the department was justified in opposing the motion based on relevance, the deliberative process privilege and general bar against probing mental processes of administrative decision makers.

“Indeed, the Department’s written submissions and oral arguments reveal that it supported its positions regarding those three objections by citing both binding and persuasive authority as well as by providing its own reasoning,” Judge Martha Blood Wentworth wrote.

However, the court found the department was not justified in opposing Popovich’s discovery requests because the department relied on “blanket objections,” not giving specific reasons why Popovich’s requests should be denied. The department admitted some objections were broad, but thought it was common practice in discovery. The court said it was well established blanket objections would not be tolerated, and ruled in favor of Popovich.

However, the court thought Popovich’s request for $51,210.29 was excessive because it does not adequately account for the department’s partial success in defending against Popovich’s motion to compel and does not encompass the proper time frame for calculating expenses. The court awarded him $24,963.

However, when Popovich lost his motion to compel, he filed a second motion to compel, bringing on the second decision. His motion to compel was denied because he did not document his attempts to resolve the matter informally as required by Indiana Trial Rule 26F. The department then filed a request for expenses to recover money after it defended itself on Popovich’s second motion to compel.

The tax court found Popovich was not justified in filing his second motion to compel. Popovich claimed that because the department was being obstinate in not granting his request, he had a right to file his second motion. Also, he said if he had “couched” his motion as a Trial Rule 45F, he would have won. He needed to document his attempts in his motion and he did not, and the court said “two wrongs do not make a right here.”

Also, Popovich did not question the reliability of the department’s figures nor does he say the amount was unreasonable.•