Indiana Court Decisions – Dec. 30, 2021-Jan. 12, 2022

7th Circuit Court of Appeals

Jan. 3, 2022

Criminal-Resentencing/Procedural Errors

United States of America v. Darrell A. Loving


A Northern Indiana District Court judge who sentenced a defendant to the maximum will have to go back for a do-over after the 7th Circuit Court of Appeals vacated the prison term because of procedural errors that could not be deemed harmless.

Darrell Loving pleaded guilty to drug crimes after law enforcement found 271 grams of cocaine and 56 grams of heroin in his car. The presentence investigation report proposed setting Loving’s offense level at 24 because of the drug quantity.

Also, the report recommended a two-level enhancement because after being stopped initially, Loving sped away, dragging an Indiana State Police trooper for several feet. However, this was offset by a two-level reduction because Loving accepted responsibility.

The report recommended a total offense level of 24 and a criminal history category of II, yielding an advisory guideline range of 57 to 71 months in prison.

The government then noted two guideline issues in its sentencing memorandum. First, it argued that Loving should receive credit for accepting responsibility, which would lower his offense level and his advisory range to 51 to 63 months. Loving agreed on that point.

Second, the government urged the court to sentence Loving above that lower guideline range as if he had had earned another offense level. Loving opposed the extra offense level.

The district court adopted the findings from the PSR but did so without addressing or adopting the parties’ agreement that Loving should receive the lower level for taking responsibility. In sentencing the defendant to the maximum 71 months, Senior Judge James Moody told Loving that his crimes were “deserving of no less than a guideline sentence,” and that the appropriate sentence was 71 months.

However, the 7th Circuit vacated Loving’s sentence and remanded for resentencing, in part because Moody’s comments indicated he relied on a calculation error when determining the defendant’s prison term.

The appellate panel agreed with Loving that the district court made procedural errors in calculating a total offense level of 24. Although the absence of an explanation from the lower court as to its rationale could be enough for a remand, the 7th Circuit asserted it was ordering a resentencing because both potential paths the district court followed to get the offense level contained procedural errors.

If the district court had adopted the calculations from the presentencing report, the 7th Circuit pointed out, then it erred by failing to explain why it declined to apply the further one-level reduction for acceptance of responsibility to which the parties had agreed under U.S.S.G. § 3E1.1(b).

On the other hand, if the district court accepted the calculation from the government’s call for a one-level increase of Loving’s offense level, then the lower court improperly used one of the departure provisions of the Sentencing Guidelines to calculate Loving’s advisory range.

Specifically, the problem was that the district court used the relevant departure provision — application note 6 of U.S.S.G. § 3C1.2 — and applied it at the wrong step of the sentencing process. The lower court could have considered the provision at step two of the sentencing process and used it to explain an upward variance from the guideline range. Here, however, the Northern Indiana court relied on this provision at step one to anchor Loving’s advisory guideline range to 57 to 71 months.

The 7th Circuit held it could not deem harmless the apparent confusion between guideline range and upward departure.

“First, at sentencing, the district court said three times that Loving deserved a sentence within the guideline range. Those statements are strong evidence that the erroneously calculated guideline range influenced the court’s chosen sentence,” Judge David Hamilton wrote, referring to Molina-Martinez v. United States, 758 U.S. 189, 199 (2016). “Second, as explained above, each of the two possible paths toward calculating the total offense level as 24 included an error. Finally, we cannot infer, based on the district court’s terse comments about the sentencing factors under 18 U.S.C. § 3553(a) that the court believed a 71-month prison sentence would be appropriate regardless of the correct guideline range.”

The case is United States of America v. Darrell A. Loving, 21-1382.

Indiana Supreme Court

Published Dec. 29, 2021, posted to on Dec. 30, 2021

Civil Tort-Health Benefits/Reversal

Clark County REMC v. Glenn Reis, et al.


Former Clark County REMC directors weren’t guaranteed health insurance reimbursement in their retirement after a policy change terminated the benefit, the Indiana Supreme Court has ruled.

The high court reversed the Clark Circuit Court’s grant of summary judgment to the plaintiffs after finding the REMC’s policy was not a binding contract because the policy wasn’t an offer.

From 1972 until 2018, Clark REMC had a series of board policies that allowed former directors who met eligibility requirements to receive health insurance benefits.

Under the 1972 policy, former directors with either 20 years of service or 12 years of service if forced to retire at age 65 could participate in Clark REMC’s group health insurance plan. Under this policy, Clark REMC paid the eligible directors’ health insurance premiums.

The board changed its policy over the years. The changes made in 2014 and 2018 were the basis of the case before the Supreme Court.

The 2014 version eliminated eligibility for the group health insurance plan for former directors; required retired directors to obtain their own health insurance, which Clark REMC then reimbursed subject to certain caps; said that “[t]his policy will be reviewed periodically;” and said that the updated policy “shall take the place of, revoke and render null and void” the previous version.

The 2018 version then terminated the health insurance reimbursement policy for former directors.

After the 2018 revision took effect, the plaintiffs in Clark County REMC v. Glenn Reis, et al., 21S-CT-343, sued Clark REMC, alleging breach of contract.

Clark REMC moved for summary judgment on the breach-of-contract claim and the plaintiffs cross-moved for partial summary judgment on liability. The trial court granted summary judgment on that claim for the plaintiffs and against Clark REMC. The plaintiffs’ other claims, including a promissory-estoppel claim, were later resolved by a court-approved settlement agreement.

The Supreme Court looked at the 2014 version as the purported moment of contract formation when the board established the health care reimbursement plan, which remained unaltered until the board rescinded it in 2018.

The 2014 policy stated:

“If permitted by prevailing law, all eligible active and past directors who were elected to the Board before January 1, 2000 shall, at such time when he or she stops serving on the Board of Directors, have the option to participate in the Cooperative’s family health and hospitalization plan or such substitute health plan acquired through an exchange as dictated by the Affordable Care Act or other prevailing law at the Cooperative’s expense. A Director is not eligible for past director coverage under this subsection unless: (A) the Director has served on the Board no less than twelve (12) full years and has reached the full age of 65 years when s/he leaves the Board, or (B) the Director has served on the Board no less than twenty (20) full years and has not reached the full age of 65 years when s/he leaves the Board. HOWEVER the amount of health insurance premiums payable by the Cooperative for past director coverage shall not exceed the rates established [below].”

In the case of first impression, the Supreme Court found there was never an offer, which meant the policy wasn’t a contract.

“We hold there was no contract as to any plaintiff because the board’s 2014 policy did not manifest Clark REMC’s intention or invitation to contract,” Justice Geoffrey Slaughter opined for the high court. “With no intention to contract, there was no offer; with no offer, there was no binding agreement. Thus, we reverse the trial court’s contrary judgment.

“… The 2014 policy merely formalized the board’s internal operations and did not manifest an intention or invitation by Clark REMC to contract with another,” Slaughter continued. “Thus, it was not an offer that any director could accept to form a binding, enforceable contract.”

The COA concluded there wasn’t any promise the benefits would continue in the future and ordered summary judgment reversed, and remanding to the trial court.

“Here, the 2014 policy contained no promise at all, only an expression of the board’s contemporaneous intention to provide health-insurance benefits to its former directors — an intention that could, and did, change over time,” Slaughter wrote. “Nothing in this policy suggested the board was promising to continue this benefit in perpetuity or for a former director’s lifetime.

“The plaintiffs implicitly conceded this point in their summary-judgment motion by acknowledging: ‘In other words, the REMC agreed to provide health insurance benefits that survived any changes to the contrary,’” he continued. “The plaintiffs cannot contend that Clark REMC agreed to continue providing lifetime health benefits without change when they posit that Clark REMC agreed to provide benefits only until it made ‘changes to the contrary.’ Nor did the 2014 policy convey with reasonable certainty the board’s promise to provide former directors with health-insurance benefits for life in exchange for their future board service.”

Court of Appeals of Indiana

Dec. 30, 2021

Civil Plenary-Liquidated Damages/Dissent

Family Dental Care, P.C. v. Christine Mousa


A dentist who was fired from her job just weeks after starting because she refused to lower her compensation could not convince the Court of Appeals of Indiana that she should get to keep more than $45,000 in liquidated damages from her breach of contract suit.

Within weeks of beginning her employment at Family Dental Care P.C., Dr. Christine Mousa was confronted by its principal, Dr. Chanbo Sim, about her paycheck.

Before joining Family Dental, Mousa signed an employment agreement that she would be given 30% of her net collections and that she must be provided with a 30-day notice if she were to be terminated from the position.

When Sim believed that Mousa was being overcompensated for her work, he gave her three options of how to reduce the amount she should be paid. Refusing to change any terms of her employment, Mousa requested a 30-day written notice if Family Dental intended to terminate her current employment contract.

Rather than abiding by the contract, the following week Sim handed Mousa a check for $825.97, from which no employment taxes were withheld, and refused to provide the notice of termination. Family Dental also did not forward any additional sums to her despite subsequent collections for dental services she performed.

Mousa sued both Family Dental and Sim — the latter of whom was later dismissed as a defendant — for breach of contract, conversion and violation of wage law.

The Lake Superior Court ruled partially for Family Dental on the conversion claim and partially for Mousa on Family Dental’s counterclaim for an alleged breach of the employment agreement’s noncompete clause.

After a bench trial, the trial court in March 2021 found Family Dental acted in bad faith through its failure to pay the wages due and awarded Mousa $94,465.82 in damages, with $45,995.24 of that being liquidated damages.

The Court of Appeals of Indiana split in partially affirming and reversing in Family Dental Care, P.C. v. Christine Mousa, 21A-PL-670.

It concluded that while the trial court was correct in denying Mousa her requested attorney fees, it erred in granting her the liquidated damages.

“Because Dr. Mousa was terminated by Family Dental, her wage claim, filed after her involuntary separation, clearly fell under the (Wage Claim Act), and her suggestion to the contrary is without merit,” Judge Robert Altice wrote for the majority. “Further, Dr. Mousa stipulated below that she failed to file a claim with the (Department of Labor) prior to filing her complaint with the trial court.

“Dr. Mousa claims that she was entitled to take her wage claim straight to court and seek attorney fees and liquidated damages under the Wage Payment Statute,” Altice continued. “We cannot agree.”

The COA pointed out the fact that Mousa’s claim, which exceeded $6,000, did not negate the need for a letter of referral for her counsel to seek redress for her under the Wage Payment Statute.

While the majority agreed with dissenting Judge L. Mark Bailey’s concern regarding the imprecise language used by the DOL on its online wage claim form, the majority concluded that the statutory language is clear: “in the context of the WCA, only the attorney general or the designee of the attorney general may proceed under the Wage Payment Statute.”

“Thus, we conclude that the trial court erred in awarding liquidated damages to Dr. Mousa but that it properly denied her request for attorney fees. On remand, the trial court is directed to reduce the damages award accordingly,” it wrote.

In dissent, Bailey argued he would reverse the trial court decision regarding attorney fees and costs.

“Of course, here, neither the AG nor a private lawyer designated by the AG could initiate a lawsuit on Mousa’s behalf because the DOL refuses to process, investigate, and refer to the AG any claim such as Mousa’s that exceeds $6,000,” he wrote. “Again, Mousa should not suffer a loss of her claims simply because the DOL fails to comply with the law.”


Jan. 4, 2022

Criminal-Police Report/Motion to Compel

Frank E. Minges, III v. State of Indiana


Despite having concerns about the continued viability of a 1985 Indiana Supreme Court decision, the Court of Appeals of Indiana upheld the denial of a defendant’s motion to compel evidence of unredacted copies of police reports based on that precedent.

The case of Frank E. Minges, III v. State of Indiana, 21A-CR-216, started in October 2020, when police conducted a traffic stop of a vehicle driven by appellant-defendant Frank Minges. As a result of the stop, the Dearborn County Prosecutor’s Office charged Minges with Class A misdemeanor and Class C misdemeanor counts of operating while intoxicated.

As part of its discovery answer, the prosecutor’s office indicated Minges’ “Criminal History” and the “Dearborn County Sheriff’s Department Case Report Narrative” were “available to review upon appointment.” But in November 2020, defense counsel emailed the prosecutor and requested a copy of the police report by email.

The prosecutor declined and indicated defense counsel could view the report in the prosecutor’s office or, if defense counsel agreed to a non-negotiable protective order, the prosecutor would give defense counsel a copy. Minges then filed a motion to compel discovery, requesting that the Dearborn Superior Court order the prosecutor “to produce a complete and accurate copy” of the police report.

At a subsequent hearing, defense counsel acknowledged he had reviewed the police report at the prosecutor’s office, but he indicated he was not permitted to take a copy of the report with him because he would not sign the protective order. Minges’ lawyer asserted he did not feel comfortable signing the protective order, which required him to return the document after the case, because he had an ethical obligation to maintain his client file. Also, he argued the requirement to prepare the defense by viewing the document at the prosecutor’s office was particularly limiting during the COVID-19 pandemic.

In response, the prosecutor argued the trial court had no “power to order production of verbatim copies of police reports over a work product objection.”

The trial court indicated its hands were tied by Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146 (Ind. 1985), unless defense counsel had caselaw overturning Keaton, which it did not.

On appeal, the COA cited Keaton in affirming the trial court — though it found the precedent “problematic in a number of respects.”

“No doubt, the police are agents of the State, but it seems problematic to treat them categorically as agents of the prosecutor before the prosecutor is even involved in a case,” Judge Melissa May wrote for the court. “… Moreover, even when only evaluating police activity related to the investigation of a crime, it is still problematic to categorically treat police officers as agents of the prosecutor. For example, ‘the law permits the police to pressure and cajole, conceal material facts, and actively mislead’ suspects, within certain limits, as part of the evidence gathering process.

“… As attorneys, prosecutors cannot engage in that sort of conduct, and they cannot allow their agents to do so either,” she continued. “… Because the ethical limitations on prosecutors do not carry through to police prior to a prosecutor’s involvement, it would seem to follow that police officers are not always to be treated as agents of the prosecutor whenever they are investigating a crime. Similarly, prosecutors would presumably dispute that police officers are their agents in every excessive force case and every instance of an illegal search.”

The COA further opined that Keaton gives the state advantages provided to no other party under the work-product doctrine, with prosecutors receiving a “blanket privilege, while every other party in Indiana who wishes to assert work product privilege has ‘the burden to allege and prove the applicability of the privilege as to each question asked or document sought.’”

“Finally, this case illustrates that Keaton’s concerns about burdening the state and subjecting police officers to misleading cross-examination are misplaced, or at least they do not warrant shielding all police reports,” May wrote. “Both sides acknowledge that the majority of counties in Indiana — and they only mention Dearborn and Elkhart Counties as the exceptions — have an open file policy, which generally means that the prosecutor allows defense counsel to review the prosecutor’s complete file. … The fact that prosecutors all over the State routinely produce police reports severely undermines the notions that allowing defendants access to police reports — redacted or unredacted — is too burdensome or will subject officers to unfair cross-examination.

“Even in this case particularly, the Prosecutor allowed Defense Counsel to examine the police report in person,” May continued. “Especially during a pandemic, that is far more burdensome to everyone than producing a copy. There can also no longer be any basis to claim that a copy of the report — as opposed to in-person inspection — could subject a testifying officer to unfair cross-examination.”

The state argued that because it allowed defense counsel access to the report in the prosecutor’s office, the appeal is not about the discoverability of the report but rather the manner of production.

“But that just further proves the point — the State’s refusal to produce a copy of the police report has nothing to do with attorney work product even though the attorney work product doctrine is its sole basis for refusing to provide a copy of the report,” May wrote. “Indeed, both in the trial court and on appeal the State is unable to articulate any interest whatsoever that it has in refusing to produce a copy of a police report in a misdemeanor OWI case beyond blind adherence to a policy that appears to serve no legitimate purpose in this case.

“… This is especially disconcerting given all the work that has gone into transitioning Indiana to utilizing electronic information exchanges. This allows lawyers to serve clients more efficiently because trips no longer need to be made to the Courthouse or to opposing counsel’s office, and this efficiency permits lawyers to serve clients whose cases may be occurring at greater distance from the lawyer’s office. In this evolving legal landscape, it makes little sense for a Prosecutor’s Office to expect defense counsel to arrive at the Prosecutor’s Office merely to review a document.”

Concurring, Judge L. Mark Bailey further urged the Supreme Court to revisit Keaton.

“All in all, I would urge our Supreme Court to embrace for all litigants, including the State, the tried and true analytical approach set forth in Trial Rule 26(B)(3) for analyzing ‘work product’ claims,” Bailey wrote. “That is, where there is a discovery dispute, allow the trial court to determine — on a case-by-case basis — the true nature of the materials sought, with the burden on the proponent to establish that the materials at issue constitute ‘work product.’

“And then, if the trial court determines that any item, in whole or in part, constitutes protectible ‘work product,’ allow the trial court to decide whether the item should nevertheless be disclosed due to an adequate showing of need and hardship,” he concluded.

Civil Plenary-Loss of Use/COVID-19

Indiana Repertory Theatre v. The Cincinnati Casualty Company and McGowan Insurance Group LLC


Despite the “dire” financial downturn caused by COVID-related business closures, the Indiana Repertory Theatre cannot claim loss-of-use coverage under its insurance policy because the theater was not physically damaged, the Court of Appeals of Indiana has affirmed.

Judge Melissa May wrote for the unanimous appellate panel that upheld summary judgment for the IRT’s insurer in Indiana Repertory Theatre v. The Cincinnati Casualty Company and McGowan Insurance Group LLC, 21A-PL-628.

Located in downtown Indianapolis, the IRT announced on March 17, 2020, that it was canceling its 2019-2020 season due to the emerging novel coronavirus. Three days later, the theater filed a claim with Cincinnati Casualty Company asserting “loss of business income and extra expense as a result of the COVID-19 pandemic.”

Cincinnati Casualty responded by asking for additional information regarding direct physical loss or damage, but the IRT did not respond. The insurer then denied the claim, writing in a denial letter that “the fact of the pandemic, without more, is not direct physical loss or damage to property at the premises.”

The IRT responded with a complaint against Cincinnati Casualty seeking declaratory judgment that the scope of its insurance policy included COVID-related losses. The parties filed cross-motions for summary judgment, and the Marion Superior Court ultimately entered judgment in favor of the insurer, finding, “the Policy requires physical alteration to the premises to trigger the business income coverage.”

But on appeal, the theater argued the language of its insurance policy — specifically, the language addressing “physical loss or physical damage” — was ambiguous. According to the IRT, the language governing “accidental physical loss or accidental physical damage” included the alleged presence of COVID on its premises.

But the COA rejected those claims, pointing to the New York case of Roundabout Theatre Co. v. Cont’l Cas. Co., 302 A.D.2d 1 (N.Y. App. Div. 2002).

“Like here, Roundabout’s building did not suffer any damage or alteration,” May wrote for the appellate court. “Rather, the building was unusable for its intended purpose because of an outside factor. The COVID-19 pandemic in the instant case is like the construction accident in Roundabout.

Likewise, the 8th Circuit Court of Appeals in Oral Surgeons, P.C. v. Cincinnati Ins. Co., 20 F.4th 1141 (8th Cir. 2021), held that “Oral Surgeons’ suspension of non-emergency procedures due to COVID-19 were not covered as ‘accidental physical loss or accidental physical damage’ in its insurance contract with Cincinnati Casualty.”

“Finally,” May wrote, “IRT’s interpretation of ‘physical loss or physical damage’ is unreasonable because it parses and dichotomizes the Policy language.”

The court concluded by noting its sympathy for the IRT, writing that “(m)illions of small business owners suffered losses due to the COVID-19 pandemic, and the ensuing worldwide financial crisis is dire.”

“At the same time, we cannot ignore well-established principles of insurance contract interpretation and add provisions in the Policy that do not exist,” May concluded. “IRT did not suffer physical loss or physical damage under the language of the Policy because the premises covered, that is the theater building located at 140 W. Washington Street in Indianapolis, was not destroyed or altered in a physical way that would require restoration or relocation.”


Jan. 7

Criminal-Incarcerated Defendant/Due Process

Jermaine Dewayne Marshall v. State of Indiana


A Vanderburgh County man will get a second day in court after the Court of Appeals of Indiana reversed his criminal conviction, finding in part that his inability to get his case file while in jail violated his right to due process.

Jermaine Dewayne Marshall was charged with criminal trespass as a Class A misdemeanor and, initially, asked for a public defender. A few months later, at a pretrial conference, Marshall rescinded his request for appointed counsel.

When he told the Vanderburgh Superior Court that his public defenders had advised him to take a plea agreement, Magistrate Judge David Vowels said that did not matter to him, and he set the date for a bench trial.

At the May 2021 bench trial, Marshall told the court he had not received any witness statements or affidavits. The court responded that the state had followed procedure by filing those documents with the court’s clerk and that they were available for review.

“You could’ve gained access to those at any time,” Vowels said to Marshall. “As you were advised, being in custody makes that extremely difficult but that’s a choice you made.”

Marshall was subsequently convicted and sentenced to 180 days in the Vanderburgh County Jail.

On appeal, Marshall argued, in part, that he was denied fundamental fairness and due process of law because the court did not provide him with the discovery materials as originally promised. He cited Griffith v. State, 59 N.E.3d 947 (Ind. 2016), in which the Indiana Supreme Court noted, “It is quite possible that the State could violate a pro se prisoner’s due process rights by providing discovery solely in a format it knows the prisoner has no means of accessing. We hope never to see such a case.”

The Court of Appeals agreed and reversed in Jermaine Dewayne Marshall v. State of Indiana, 21A-CR-1123.

As the appellate court found, Marshall informed the court at the March 2021 pretrial conference that he had not received any of the court filings or documents related to his case. The prosecutor told Marshall, “I’ll see how we can get discovery to the jail,” and the court assured him, “We’ll have the prosecutor send you your case file from the clerk, or somehow give you access to that.”

During closing arguments, Marshall again stated that he had not received the information the court had instructed the prosecutor to provide. The prosecutor did not dispute Marshall’s statement.

“The Fourteenth Amendment to the United States Constitution provides that no state shall ‘deprive any person of life, liberty, or property, without due process of law … .’ The phrase expresses the requirement of ‘fundamental fairness,’” Judge Elaine Brown wrote, citing Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 24, 101 S. Ct. 2153, 2158 (1981). “Fundamental fairness involves meaningful access to the courts, including through discovery, and through a knowing, voluntary, and intelligent waiver of the right to counsel at all significant phases of criminal proceedings, including trial and sentencing.”


Jan. 10

Juvenile Paternity-Child Custody/Stepfather

G.S., Jr. v. H.L.


A stepfather may keep legal and physical custody of his ex-wife’s child despite objections from the biological father, the Court of Appeals of Indiana has ruled.

Mother H.L. had a child with father G.S. Jr. in 2012. Shortly after the child, J.S., was born and father executed a paternity test acknowledging that he was the child’s biological father, mother and father called it quits.

Father then only saw J.S. on a few occasions within a “couple of weeks” in 2012 and also exercised parenting time for 1.5 months in 2014. Meanwhile, mother’s ex-husband A.L. met J.S. while picking up his son with mother, D.L., for parenting time.

At some point, stepfather decided to take J.S. under his wing and bring the child along with D.L. for parenting time. Mother and stepfather eventually decided to reconcile and live together when J.S. was less than 1 year old.

But when mother moved out in 2017, J.S. remained with stepfather, where he has lived continuously ever since. After being investigated for providing D.L. with marijuana and for her own substance abuse, mother agreed that stepfather would retain custody of J.S.

But when J.S.’s biological father eventually began exercising parenting time, mother petitioned for an order to “maintain status quo” with respect to J.S.’s custody. The Hendricks Superior Court entered orders regarding interim parenting time for mother and father while J.S. remained in stepfather’s custody.

At a final hearing to determine child custody, parenting time and child support, mother testified that she believed the best place for J.S to live would be with stepfather. A guardian ad litem also recommended custody be awarded to him.

Thus, the trial court granted stepfather sole legal and primary physical custody of J.S., with mother and father each having substantial, unsupervised parenting time. Both were also ordered to begin providing child support.

Only father appealed, but the COA affirmed, concluding there was sufficient evidence to overcome the presumption in his favor.

“The evidence indicates that Stepfather has been the stabilizing force in Child’s life for many years during Father’s absence and Mother’s struggles,” Judge L. Mark Bailey wrote. “By all accounts, these years of stability have permitted Child to forge a strong bond with D.L. and with Stepfather. The guardian ad litem opined that, although Child was developing a continually growing bond with Father, it would be ‘difficult’ for him to leave Stepfather’s custody.”

The appellate court also concluded there was no indication that the trial court failed to engage in an appropriate best-interests analysis.

The COA noted that while the statutes contain no requirement that the trial court articulate its reasoning with respect to each factor, its order was replete with references “to Child’s age, adjustment to home and community, interrelationships with the parties and siblings, wishes of the parties, circumstances surrounding Mother’s placement of Child with Stepfather, and Stepfather’s historical provision of care and support to Child.”

The court thus concluded that father had not shown that any abuse of discretion occurred in the trial court’s decision, therefore affirming in G. S., Jr. v. H.L., 21A-JP-1382.


Jan. 12

Negligence/Bystander Rule

Ceres Solutions Cooperative, Inc., v. Estate of Kathryn Bradley, et al.


A Pulaski County man claiming “negligent infliction of emotional distress” will be able to continue with his lawsuit after the Court of Appeals of Indiana found he satisfied the Bystander Rule.

Kenneth Bradley filed a lawsuit against Ceres Solutions Cooperative Inc. seeking emotional distress damages after his home exploded and caught fire, killing his wife, Kathy, and severely injuring his son, Eric. Ceres had refilled the residential propane tank at the home but did not check for leaks. The gas was ignited when Eric turned on his bedroom lamp.

In his January 2020 complaint for negligent infliction of emotional distress, Bradley asserted he “came upon his home unaware that it had exploded at which time he could not find his wife and witnessed his son severely burned.” Ceres filed a motion for partial summary judgment, which the Pulaski Superior Court granted in regard to Eric but denied in regard to Kathy.

Ceres appealed and Bradley cross-appealed.

The appellate panel affirmed the trial court’s denial of Ceres’ motion as it related to Kathy but reversed the trial court’s grant of Ceres’ motion regarding Eric.

Specifically, the Court of Appeals found Bradley met the three factors to recover damages for his claim of “negligent infliction of emotional distress.”

One of the factors holds the bystander must come on the scene at or immediately following the incident. Even though Bradley arrived about three hours after the explosion but while his house was still burning, the Court of Appeals found the blast and the fire were a single injury-producing event. Also, because the flames were “big and steady” and firefighters were still attempting to search for Kathy, the appellate court ruled the injury-producing event was ongoing when Bradley arrived.

Ceres argued Bradley did not satisfy the bystander requirement that the victim must be in essentially the same condition as immediately following the incident. Eric, the company argued, had been wrapped in blankets and was being prepped to be flown out by helicopter when Bradley arrived.

“Here, Eric’s injuries were visible to Bradley,” Judge Margret Robb wrote for the court. “Based on the video from an officer’s body camera, a blanket was placed over Eric; however, his face and torso were not covered so burns on his face were visible. Bradley testified that Eric’s face was ‘all blistered and peeled.’ It is not necessary for Bradley to have been able to see all of Eric’s burns.

“Further, when Bradley arrived, the flames were ‘big and steady[,]’ and although first responders had already arrived, they had not removed Eric from the scene,” Robb continued. “Therefore, because Bradley witnessed his son with visible burns in front of his burning home, we conclude that Bradley did experience the ‘gruesome aftermath’ of the accident.”

The case is Ceres Solutions Cooperative, Inc. v. Estate of Kathryn Bradley, et al., 21A-CT-377.•

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