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Opinions March 20, 2012

7th Circuit Court of Appeals
Estate of Nicholas D. Rice, deceased, by Rick D. Rice and Diane J. Waldrop, co-personal representatives v. Correctional Medical Services, et al.
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2012/march/GK0PUU3D.pdf
09-2804, 10-2389
U.S. District Court, Northern District of Indiana, South Bend Division, Judges Robert L. Miller Jr. and Rudy Lozano.
Civil. In No. 09-2804, affirms in part and reverse in part the District Court’s entry of summary judgment in favor of the defendants. A material dispute of fact precludes summary judgment on one of the estate’s Section 1983 claims. In No. 10-2389, reverses the District Court’s decision to dismiss the state claims on the basis of collateral estoppel. Remands both cases for further proceedings consistent with this opinion.

Justices rule on underinsured motorist coverage case

The Indiana Supreme Court has held that a tortfeasor’s vehicle was underinsured according to state statute because the benefit amount actually paid to a woman was less than the per-person limit of liability of the underinsurance endorsement of an insurance policy that applied to all the family members involved in the accident.

Supreme Court rules on habitual-offender filing issue

The Indiana Supreme Court has found that a man convicted of helping to rob a restaurant did not preserve the issue of whether the trial court properly determined he was a habitual offender that could receive an enhanced sentence.

Justices base ruling on level of intent

The Indiana Supreme Court has determined that not enough evidence of intent existed for a judge to grant summary judgment for a bank alleging a business owner committed fraud.

Judges disagree on impact of caselaw

In a man’s appeal of the denial of petition for post-conviction relief, in which he claimed ineffective assistance of his trial and appellate counsel, the Indiana Court of Appeals was divided on whether his appellate counsel was ineffective and if caselaw prevented the trial court from considering charges outside of the guilty plea.

Justices rule on railbanking certified question

The Indiana Supreme Court has issued an answer to a certified question about how state law plays into a federal railroad right-of-way case that involves property owners who want their land rights back for easements that once belonged to a railroad company.

Judges rule in favor of insured

The Indiana Court of Appeals found under the plain language of a woman’s insurance policy, the woman did what was required of her by the policy to pursue an underinsured motorist claim.

Court may consider SSI in restitution order

The Indiana Supreme Court sided with the federal courts that have concluded courts may consider one’s Social Security income when determining how much a person may pay in restitution.

FTC commissioner to speak on privacy at IU Maurer

Julie Brill, one of the four current commissioners of the Federal Trade Commission, will speak on “The FTC and Its Commitment to Consumer Privacy” Wednesday at Indiana University Maurer School of Law.

Court ordered to recalculate division of pension

The Indiana Court of Appeals has ordered the lower court to take another look at the division of a husband’s pension, finding the court used the wrong number in its decision.

Judges affirm change in custody

The Indiana Court of Appeals has upheld the modification of a custody order giving the father primary custody of his son, finding the trial court didn’t abuse its discretion in deciding that the boy’s physical and mental/academic maturation constituted a substantial change warranting the change in custody.

Opinions March 19, 2012 ILD

7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Court of Appeals
Charles L. Eckard v. State of Indiana (NFP)
57A03-1108-CR-382
Criminal. Affirms sentence for Class C felony battery.

Juan Emerson v. State of Indiana (NFP)
49A05-1102-PC-95
Post conviction. Affirms denial of petition for post-conviction relief.

Kelly Scott Thomas v. State of Indiana (NFP)
20A05-1111-PC-651
Post conviction. Affirms denial of motion to withdraw petition for post-conviction relief and denial of that petition.

T.N.S. v. State of Indiana (NFP)
46A03-1105-JV-263
Juvenile. Affirms adjudication as a delinquent for committing what would be sexual battery if committed by an adult.

Mark Wiley v. Midwest Poultry Services, LP (NFP)
93A02-1107-EX-593
Agency appeal. The full board of the Worker’s Compensation Board of Indiana erred in denying Wiley’s claim for the reimbursement of costs associated with his wheelchair because the undisputed evidence reveals his impairment is reduced by having a working motorized wheelchair and the parties’ agreement did not waive this claim. Further, based on a plain reading of the agreement, the board did not err in awarding Wiley reimbursement for the cost of repairing the chair lift added to his pick-up truck. Remands to the full board to enter an amended order consistent with this opinion.

Indiana Tax Court had posted no opinions at IL deadline.

Opinions March 19, 2012

Indiana Supreme Court
Jimmie E. Jones, Jr. v. State of Indiana
29S02-1108-CR-511
Criminal. Adopts Court of Appeals opinion in full, which affirmed the refusal by the trial court to give Jones’ tendered instructions on reckless homicide and involuntary manslaughter as lesser-included offenses to the murder charge. The evidence didn’t support a reckless homicide instruction and the charging information for the murder count foreclosed an involuntary manslaughter instruction.

Supreme Court upholds refusal to give jury instruction

The Indiana Supreme Court has adopted the full opinion of the Indiana Court of Appeals, which upheld the decision by a trial court not to give a defendant’s tendered instructions on lesser-included offenses of murder.

Justices take 5 cases

The Indiana Supreme Court accepted transfer to five cases last week, including a challenge to the school voucher program.

Governor signs DCS, new judge legislation

Gov. Mitch Daniels signed legislation last week that gives Johnson Superior Court a fourth judge and Allen Circuit Court another full-time magistrate, and an enrolled act that makes changes to the Department of Child Services.

State senator appointed secretary of state

Gov. Mitch Daniels has appointed Sen. Connie Lawson, R-Danville, as Indiana secretary of state. She fills the vacancy left by Charlie White, who was recently convicted of several felonies, making him ineligible to hold office.