Justices decline to hear IRT’s COVID coverage case but agree to revisit criminal case decisions

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The Indiana Supreme Court has brought the curtain down on the Indiana Repertory Theatre’s push to get its insurance company to cover losses incurred when the pandemic forced the show to close in the spring of 2020.

A petition from the theater was among the 14 cases denied transfer by the justices for the week ending July 22.

Among the four accepted cases, the Supreme Court will again address questions about the adjudication of a juvenile charged with possessing a firearm and the ability of a defendant to appeal a guilty plea.

All five justices concurred in denying transfer to Indiana Repertory Theatre, Inc. v. The Cincinnati Casualty Co., et al., 21A-PL-628.

The IRT filed a claim with its insurer, seeking reimbursement for the financial losses it suffered during the 2020 shutdown. While the theater argued the COVID-19 virus altered its physical space by creating a health hazard inside the building, Cincinnati Casualty disagreed and denied coverage on the basis that the theater did not sustain any “direct physical loss or direct physical damage.”

Both the Marion Superior Court and the Court of Appeals of Indiana ruled for the insurance company, and the high court let the COA’s decision stand.

The Supreme Court did grant transfer in two cases regarding the guilty plea entered by defendant Matthew H. Thomas Davis.

In Matthew H. Thomas Davis v. State of Indiana — two cases now consolidated under cause number 22S-CR-253 — Davis argued he could not have knowingly and voluntarily waived his right to appeal because the Madison Circuit Court advised him the of right to appeal at multiple hearings while the state did not interject to clarify the terms of the agreement. Also, he maintained he did not waive his right to appeal the discretionary sentence imposed by the trial court.

Citing precedent, the Court of Appeals dismissed the appeal with prejudice.

The Supreme Court also granted transfer in M.H. v. State of Indiana, 22S-JV-251, which revisits the issue of adjudicating a juvenile delinquent on a gun charge.

In the 2020 decision in K.C.G. v. State of Indiana, the Supreme Court held that juvenile courts lack subject matter jurisdiction to adjudicate a juvenile delinquent under the dangerous-possession-of-a-firearm statute, Indiana Code § 35-47-10-5. The Indiana General Assembly subsequently enacted legislation which amended the law to provide that a minor commits a delinquent act if, before turning 18, the minor commits an act in violation of that statute.

M.H. was arrested in June 2019 and charged with being in dangerous possession of a firearm in violation of I.C. 35-47-10-5. He was adjudicated as a delinquent, but after the Supreme Court ruling, M.H. filed a motion for relief from judgment, asserting the juvenile court lacked subject matter jurisdiction.

The juvenile court denied the motion and the Court of Appeals reversed.

Finally, the Supreme Court granted transfer in City of Gary v. Jeff Nicholson, et al., 22S-MI-252. The justices issued an opinion when they accepted transfer, ruling in favor of Gary’s “welcoming ordinance.”

In four of the denials, the justices split.

Chief Justice Loretta Rush voted to grant transfer to Supervised Estate: Stanley w. Balcerak v. The Estate of Roger D. Craft, Deceased, et al., 21A-ES-1731, and Derek Christopher Cerny v. State of Indiana, 21A-CR-2306.

Justice Christopher Goff voted to grant transfer in State of Indiana v. Sarah A. Allen, 21A-CR-2009, and in A.B. v. B.B., 21A-AD-1792.

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