Opinions Sept. 28, 2022

Keywords Opinions

The following 7th Circuit Court of Appeals opinions were posted after IL deadline on Tuesday:
Accident Fund Insurance Co. of America v. Custom Mechanical Construction, Inc., Liberty Mutual Insurance Co., Schultheis Insurance Agency, Inc. and James Lee Sublett
21-2548, 21-2549, & 21-2560
Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil. Affirms the grant of summary judgment in favor of Accident Fund Insurance Co. of America and the entry of partial final judgment under Federal Rule of Civil Procedure 54(b) in its suit seeking a declaration that its policy does not cover Danny Cope’s workers’ compensation claim. Finds Custom Mechanical Construction Inc. — the subcontractor who had hired Cope — indisputably never notified AFICA that it had work, or began work, in Kentucky.

Elaine Scaife v. United States Department of Veterans Affairs and Denis R. McDonough, Secretary of Veterans Affairs
21-1152
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt.
Civil. Affirms the grant of summary judgment to the U.S. Department of Veterans Affairs on Elaine Scaife’s claims for retaliation, constructive discharge and hostile work environment based on gender and race. Finds Scaife has failed to show that Brian Fogg’s use of the N-word outside of her presence eight months prior was severe enough for a jury to find that she experienced a hostile work environment based on race, that harassment based on gender or the alleged related conduct was severe or pervasive, or that she endured a hostile work environment based on both race and gender. Also finds the written counseling email sent to Scaife after she initiated an internal Equal Employment Opportunity complaint, standing alone, cannot constitute an adverse action. Finally, finds Scaife cannot leave her old job for a new one with the same employer, without any apparent repercussion, and establish a constructive discharge claim absent evidence that she was forced out.

Wednesday opinions
Court of Appeals of Indiana
Residential Warranty Services, Inc. and P. Nathan Thornberry v. L.M. Henderson and Company, LLP
22A-PL-408
Civil plenary. Affirms the grant of judgment on the pleadings to L.M. Henderson and Company LLP in a dispute with Residential Warranty Services and Nathan Thornberry. Finds it was unnecessary to convert the motion for judgment on the pleadings to a motion for summary judgment. Also finds the Hamilton Superior Court applied the correct statute of limitations.

Jerry Dixon v. Shiel Sexton Company, Inc.
22A-CT-847
Civil tort. Affirms the entry of summary judgment in favor of Shiel Sexton Company Inc. Finds the designated evidence establishes that Shiel Sexton’s actions regarding safety at the project fell within the scope of its contractual obligations to Dormakaba USA Inc., and it did not assume a duty of care with respect to the safety of Biancofiori Masonry Inc. employees through its actions to supervise or ensure compliance with general safety requirements imposed by contract.

In the Matter of Z.D., a Child Alleged to be in Need of Services J.O. (Father) v. Indiana Department of Child Services
22A-JC-875
Juvenile CHINS. Reverses the adjudication of father J.O.’s daughter, Z.D., as a child in need of services. Finds the Marion Superior Court erred by denying J.O.’s request for a new factfinding hearing after he mistakenly appeared at the courthouse rather than in a virtual hearing. Remands for a new factfinding hearing.

Matthew Hayko v. State of Indiana
21A-CR-2407
Criminal. Reverses Matthew Hayko’s conviction of Level 4 felony child molesting but affirms the admission of Hayko’s statement to police. Finds the Spencer Circuit Court misinterpreted Indiana Evidence Rule 608 and thus did not allow Hayko the fair opportunity to challenge the “she said” part of the evidence with his proffered witness. Remands for a new trial on the issue of the admissibility of the proffered opinion testimony under Rule 608(a). Judge Elizabeth Tavitas concurs in part and dissents in part with separate opinion.

Edward P. Grimmer v. Denise A. Grimmer (mem. dec.)
21A-DN-1861
Domestic relations no children. Affirms the final decree dissolving the marriage of Edward and Denise Grimmer. Finds that because Edward asked the arbitrator to reconsider the trial court’s entry of partial summary judgment of Denise, he invited the arbitrator’s alleged error in making findings and conclusions on that issue. Also finds any error in the Porter Superior Court’s grant of partial summary judgment for Denise was harmless. Finally, finds Edward has not demonstrated any error in the trial court’s division of the marital estate.

Kim Laureano, individually and as n/b/f to Minor J.L. v. Siobhan Campbell White and Lamaya Hudson (mem. dec.)
22A-CT-188
Civil tort. Affirms the entry of summary judgment for Siobhan Campbell White on Kim Laureano’s claim for negligent parental supervision, brought individually and on behalf of her daughter. Finds White did not have a duty to exercise control over Lamaya Hudson on July 22, 2018. Also finds Laureano has waived her argument that Hudson engaged in “bullying and misconduct” before she turned 18.

Justin Gerard Stewart v. State of Indiana (mem. dec.)
22A-CR-729
Criminal. Affirms Justin Gerard Stewart’s convictions for two counts of Level 5 felony intimidation. Finds the evidence is sufficient to sustain the convictions.

R.G. v. G.S. (mem. dec.)
22A-AD-793
Adoption. Dismisses R.G.’s appeal of the decree of adoption terminating his parental rights over his minor child. Finds R.G. has failed to demonstrate extraordinary circumstances to justify our review of his untimely appeal. Judge Margret Robb concurs in result with separate opinion.

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