Opinions

Indiana Court of Appeals
John Pelliccia, M.D. v. Anthem Insurance Companies, Inc.
49A02-1705-PL-1080
Civil plenary. Reverses the grant of summary judgment in favor of Anthem Insurance Companies, Inc. Finds the language of Anthem’s policy clearly provides the effective date of the termination of Dr. John Pelliccia’s health insurance coverage for nonpayment of one premium was Jan. 3, 2015. Also finds Anthem was required to abide by its policy with respect to covered medical expenses Pelliccia incurred before Jan. 3, 2015. Finally, finds Pelliccia’s bad faith claim against Anthem remains pending. Remands for Pelliccia’s motion for partial summary judgment to be granted.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
E.F. Transit, Inc. v. David Cook, et al.
16-3641
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Reverses the dismissal of E.F. Transit’s declaratory and injunctive action that argued enforcement of Indiana’s prohibited-interest statutes is preempted by federal law. Finds the Indiana Supreme Court’s ruling in Indiana Alcohol and Tobacco Commission v. Spirted Sales, LLC, removes any ripeness barrier to the federal lawsuit. Remands for further proceedings.

The following Indiana Tax Court opinion was posted after IL deadline Friday.
Nick Popovich v. Indiana Department of State Revenue
49T10-1010-TA-53
Tax. Affirms the Department of Revenue’s 2004 proposed assessment of income taxes for Nick Popovich, finding he failed to prove that he gambled with continuity and regularity and with the intent to make a profit.

Indiana Court of Appeals
Campbell Hausfeld/Scott Fetzer Company v. Paul Johnson
64A03-1705-CT-984
Civil tort. Affirms and reverses in part the grant of summary judgment in favor of Campbell Hausfeld/Scott Fetzer Company on Paul Johnson’s defective design claim and the denial of summary judgment with regard to Johnson’s failure to warn claim. Finds Campbell Hausfeld is not entitled to summary judgment on any of its asserted statutory defenses. Also finds the designated evidence establishes a genuine issue of material fact regarding whether Campbell Hausfeld provided adequate warning concerning the use of a Grinder with a cut-off disc. Finally, finds Campbell Hausfeld failed to establish its entitlement to summary judgment on the defective design claim. Remands.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Abdullah Ennin v. CNH Industrial America, LLC
17-2270
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Affirms the judgment in favor of CNH Industrial America, LLC in Abdullah Ennin’s discrimination case. Finds Ennin waived the admissibility of certain evidence CNH attacked as inadmissible, and without that evidence the record undisputedly shows CNH fired Ennin before it knew of his alleged disability or FMLA leave. Also finds nothing in the record support Ennin’s argument that CNH’s stated reasons for terminating him were pretextual, and CNH did not interfere with his right to take FMLA leave. Finally, finds Ennin’s federal conspiracy and state law negligent-supervision claims fail because they are derivative of underlying federal claims.

Indiana Court of Appeals
Christine Marie Lindhorst v. State of Indiana
02A03-1704-CR-696
Criminal. Affirms Christine Marie Lindhorst’s conviction of battery resulting in serious bodily injury to a person younger than 14 and neglect of a dependent resulting in serious bodily injury, both as Level 3 felonies, and her six-year executed sentence. Finds any error in limiting Lindhorst’s cross-examination of Dr. David Smith did not prejudice her defense and was harmless. Also finds there is sufficient evidence to support the Allen Superior Court’s determination Lindhorst knowingly or intentionally inflicted the injury upon S.E. and knowingly or intentionally placed S.E. in a dangerous situation by delaying medical assistance. Finally, finds Lindhorst’s sentence is not inappropriate.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:

United States of America v. Robert E. Fox
16-2892
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Criminal. Affirms Robert Fox’s his convictions of two Hobbs Act robberies. Vacates Fox’s sentence to 435 months’ imprisonment. Finds the district court was within its discretion to deny Fox’s morning-of-trial motion for a continuance when there was no indication Fox was particularly close to retaining new counsel. Also finds Fox is entitled to resentencing in light of Dean v. United States. Remands for resentencing.

The following Indiana Supreme Court opinions were posted after IL deadline Thursday:
Matthew L. Johnson v. State of Indiana
32S05-1707-CR-469
Criminal. Reverses the trial court’s overruling of Matthew Johnson’s objection to his habitual offender charges. Finds Indiana Code section 35-50-2-8(d) unambiguously requires each underlying low-level offense to meet the statutory 10-year requirement for a habitual offense.

The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Bellwether Properties, LLC v. Duke Energy Indiana, Inc.
53S04-1703-CT-121
Civil tort. Reverses the dismissal of Bellwether Properties, LLC’s complaint against Duke Energy Indiana, Inc. Finds the dismissal was premature because the face of the complaint did not establish the asserted claim was time-barred. Remands for further proceedings.

Indiana Court of Appeals
City of Washington, Indiana v. Daviess County Rural Water System, Inc.
14A01-1702-PL-316
Civil plenary. Affirms and reverses in part the entry of judgment in favor of Daviess County Rural Water System, Inc. and the invalidation of an ordinance that raised DCRW’s rate 57 percent. Finds the Daviess Circuit Court did not abuse its discretion in finding the city breached its contract with DCRW by enacting the ordinance, so the ordinance is null and void as it relates to DCRW. Also finds the trial court erroneously invalidated the entire ordinance, so the ordinance remains in full force and effect as it relates to out-of-city customers other than DCRW. Finally, finds the trial court did not err in declining to dismiss DCRW’s declaratory judgment action or in consolidating the declaratory and statutory actions.

The following Indiana Supreme Court opinion was posted after IL deadline Monday:
In the Matter of: Philip H. Chamberlain
53S00-1303-DI-191
Disciplinary. Suspends Philip Chamberlain for at least three years without automatic reinstatement. Finds Chamberlain engaged in attorney misconduct by committing the crime of counterfeiting.

Indiana Court of Appeals
Miguel Alvarado v. State of Indiana
12A04-1704-CR-818
Criminal. Affirms the denial of Miguel Alvarado’s motion to introduce evidence that his ex-wife’s daughter, M.L., had been molested by her mother’s new boyfriend, and the denial of his motion to reopen evidence after the state’s closing argument. Finds the Clinton Circuit Court did not abuse its discretion in refusing to admit evidence that M.L. was molested by her mother’s new boyfriend, or in denying Alvarado leave to reopen evidence.

Indiana Court of Appeals
J.R. and C.R. v. S.P. and D.P
31A04-1706-DC-1284
Domestic relations with children. Affirms the grant of S.P. and D.P.’s motion to dismiss a custody action in which C.R. and J.R. sought to obtain custody of A.P. 13 years after C.R. voluntarily relinquished right to A.P. and consented to A.P.’s adoption. Finds the Harrison Circuit Court did not err in granting the motion to dismiss.

Indiana Court of Appeals
Bryan Fearman v. State of Indiana
49A04-1704-CR-802
Criminal. Reverses Bryan Fearman’s 910-day sentence for direct criminal contempt. Finds Fearman’s multiple acts of contemptuous behavior constitute a single contemptuous episode and can only warrant a single punishment of not more than six months without a jury trial. Remands for the Marion Superior Court to enter a sentencing order for criminal contempt with a six-month sentence.

Indiana Supreme Court
Merchandise Warehouse Co., Inc. v. Indiana Department of State Revenue
49S10-1712-TA-735
Tax. Grants review and reverses the partial denial of Merchandise Warehouse Co., Inc.’s claims for refunds for sales tax paid on blast freezing equipment and the electricity used in operating that equipment. Enters summary judgment for MWC on the issue of direct production. Finds MWC’s blast freezing process constitutes direct production because it represents the crucial final step in creating a distinct marketable good – blast frozen food. Also finds the relevant statutes and regulations impose no requirement that MWC’s blast-freezing procedure be its own, separate production process. Remands for further proceedings.

Indiana Supreme Court
Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC v. Joseph V. DeSpirito
53S01-1709-PL-612
Civil plenary. Stays consideration of the appeal. Remands for the Monroe Circuit Court to decide whether to expressly determine there is no just reason for delay and to direct entry of judgment under Trial Rules 54(B) or 56(C).

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
United States of America v. John Foster
17-1703
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms John Foster’s sentence to a mandatory minimum of 15 years under the Armed Career Criminal Act. Finds Indiana’s Class B felony burglary qualifies as a violent felony under the ACCA.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday:
United States of America v. John D. Gries and James McCullars
15-2432, -2447
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Grants petition for panel rehearing for the purpose of withdrawing and replacing the original Sept. 20 opinion. Finds the original opinion contained an error in remand instructions. Denies the petition for rehearing in all other respects, and denies the petition for rehearing en banc.