Archive | February 2014

Default judgment of $500k set aside where service narrowly defective

In injury case against the American Legion, the plaintiff made service through the sheriff who left copy of summons and complaint with registered agent’s address and then mailed them to the same address, which was not an abode or dwelling, first class. 

Manner of service failed to comply with Trial Rule 4 service on individuals or business entities and setting aside of default judgment was upheld.

www.in.gov/judiciary/opinions/pdf/02281401ewn.pdf.

Slip and fall summary judgment motion denied in IN ND

Plaintiff was a patron at a Target in Valparaiso when she tripped and fell when she “felt her foot catch on something.” Upon examination of the area she saw a hump in the floor mat where she had fallen. This area was in the direct field of vision of a cashier station.

Judge Simon denied Target’s motion for summary judgment, reasoning that the plaintiff’s testimony was enough to rise above mere speculation and that a jury could reasonably infer that the plaintiff caught her foot on the floor mat.

Furthermore, the fact that the defect was in the field of vision of a Target employee was sufficient to show that Target may have had constructive notice of the defect.

OPINION AND ORDER denying 10 Motion for Summary Judgment for Daugherty v. Target Corporation :: Justia Dockets & Filings.

Favor for which electrician was paid deemed “business pursuit” under insurance policy exclusion

A journeyman electrician, Holderman, who was employed, performed in a personal capacity a wiring service for friend for $300. The same wiring job eventually caused the death of a guest at the same residence. Holderman submitted the claim to State Farm, with whom he had personal liability provision under his homeowner’s policy.

Said policy excluded coverage for “business pursuits.” Under Indiana law, an insured is engaged in a business pursuit only when he pursues a continued regular activity for the purpose of earning a livelihood. At summary judgment, Judge Miller of the Northern District held that Holderman’s conduct fell under the exclusion since the favor was right in line with his professional responsibilities (thus a continued regular activity) and that he was earning a livelihood since he charged nearly exactly what he would have for any other job.

OPINION AND ORDER DENYING 27 RULE 12 for State Farm Fire & Casualty Company v. Holderman et al :: Justia Dockets & Filings.

Seventh Circuit affirms denial of Notre Dame’s preliminary injunction request

In a rather lengthy opinion issued on Friday, the Seventh Circuit affirmed the denial of Notre Dame’s request for a preliminary injunction from participating in the Affordable Care Act. The abridged version is that the Court found there was not a likelihood of success on the merits and on multiple occasions stressed that its opinion was limited and preliminary (or without prejudice in essence). In the end, the undoing for Notre Dame was that it could not overcome the provision that the government would pick up the tab for the contraceptive services that Notre Dame could refuse to provide. Notre Dame’s argument that this action would make it something of an enabler to contraceptive services was unavailing. Judge Posner authored the opinion for the majority and Judge Flaum dissented, finding that Notre Dame likely would succeed on the merits at the District Court level.

media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D02-21/C:13-3853:J:Flaum:dis:T:fnOp:N:1295328:S:0.

Mitchell v. 10th and The Bypass, LLC

Evidence obtained after entry of an order granting a motion for partial summary judgment may not form the basis for vacating that order. Relief from judgment under Indiana Trial Rules is not limited to final judgments.

www.in.gov/judiciary/opinions/pdf/02201401rdr.pdf.

IN CoA changes position on statute of limitations on amended complaints

In case where motion to amend complaint, adding new defendants, along with proposed amended complaint was filed before statute of limitations but amended complaint and issue of summons were approved after SOL expired, suit was timely filed as to newly added Defendants. Court expressly abrogated the position it took on the same fact pattern presented in A. J.’s Auto. Sales v. Freet, 725 N.E.2d 955 (Ind. Ct. App. 2000) (a case decided at the trial level by Judge Crone and at the appellate level by Judge Friedlander, Sr. Judge Garrard, and Judge Darden, none of whom participated in this opinion). Instead, the panel took the occasion to adopt the majority view on this issue and deemed that the addition of the defendants was timely by virtue of the filed motion and proposed complaint.

www.in.gov/judiciary/opinions/pdf/02201401msm.pdf.

Proposed bill would double number of PCF payout dates per year

Up for second reading today is Senate Bill 56, which would change the current processing and payout dates for the Indiana Patient’s Compensation Fund from twice a year to four times per year.

Currently, medical malpractice cases that exceed the $250,000 cap may be resolved for up to another $1 million with the Indiana Patient’s Compensation Fund (PCF). The trick however is that the PCF processes and pays out on these claims twice per year and all settlements require the approval of court on or before June 30 and December 31. The second of these dates is tricky because judges are hard to find the week between Christmas and New Years Day. If the parties miss the deadline, then it’s another six months before there can be a payout. Additional dates might put a little less pressure on the parties to scramble to settle cases or it might cause four rounds of chaos per year instead of two. Time will tell if it ends up passing.

Indiana General Assembly Senate Bill 56 – 2014 Session.

Michael Jordan treats Jewel like it’s Patrick Ewing

The Seventh Circuit holds that a Jewel congratulatory advertisement to Michael Jordan is commercial speech and therefore not subject to the protections of the First Amendment. As such, Jewel may be liable to Jordan for unauthorized use of his image. Jewel attempted to equate its ad to corporate practice of commending local community groups on notable achievements, which the Court did not readily accept as true. Further, the Court noted that the District Court erred in applying the “inextricably intertwined” test in that the test should be whether the commercial and noncommercial elements of the speech could be legally or practically separated.

media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D02-19/C:12-1992:J:Sykes:aut:T:fnOp:N:1292976:S:0.

And for those who feel they are missing a key reference:

IN CoA sua sponte denies interlocutory appeal for lack of jurisdiction due to untimeliness

In what is now the 9th published decision (State and Federal) emanating from the Mark S. Weinberger, M.D. saga, the Indiana Court of Appeals dismissed the interlocutory appeal of Lake County Judge, Calvin Hawkins’s grant of partial summary judgment. The trial court issued its order on Nov. 19, 2012. The plaintiff then filed a motion to reconsider on January 7, 2013. On April 3, 2013, the trial court entered a stipulated order denying the motion to reconsider and certifying the matter for interlocutory appeal. The order did not cite good cause for delay for filing for interlocutory appeal nor did it include any findings for good cause.

Despite the fact that neither party raised the issue of timeliness, the Appellate Court noted Indiana Appellate Rule 14(B) which provides:

A motion requesting certification of an interlocutory order must be filed in the trial court within thirty (30) days after the date the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion. If the trial court grants a belated motion and certifies the appeal, the court shall make a finding that the certification is based on a showing of good cause, and shall set forth the basis for that finding.

Thus, even though the certification of interlocutory appeal went uncontested at all stages, the failure to follow this appellate procedure deprives the Appellate Court of jurisdiction to hear argument on the matter. Here, the motion to reconsider could not toll the limitations date and the trial court’s order lacked any findings to go beyond the 30 day deadline to file an interlocutory appeal. Thus, the appeal was dismissed for lack of jurisdiction.

www.in.gov/judiciary/opinions/pdf/02181402cds.pdf.

Trial court may order installment payments of judgment in excess of 7 year term

In action to suspend driver’s licenses of two judgment defendants, trial court did not err in amending judgment to installment payments and reinstating driving privileges of said defendants under Ind. Code § 9-25-6-6. Trial court also had discretion to make the installment longer than 7 years even though statute permits suspension of driving privileges only within 7 years of failure to satisfy judgment. Statute was clear and unambiguous and did not set time limit on installment payments.

See McGee v. McGee, 998 N.E.2d 270, 271 (Ind. Ct. App. 2013) (“[I]t is as important to recognize what a statute does not say as it is to recognize what it does say.”). If we were to interpret the statute in the manner in which NIPSCO suggests, we would be adding a requirement to the statute that is not there. We cannot and will not do that. See id. at 272.

TOPS v. IN DOE

Indiana Department of Education removed TOPS from its list of approved SES providers. TOPS appealed the determination and the DOE sent a letter affirming the decision. The letter did not contain any factual findings regarding its decision, nor did it reference any other document that would contain such findings. TOPS then filed for judicial review and the DOE moved to dismiss, stating that the letter was a final order and thus TOPS was obligated to submit the entire agency file to the trial court for review. The trial court granted the motion and TOPS appealed.

While the CoA admonished TOPS for not attaching the entire file for judicial review, it was not fatal to TOPS’s case. In fact, TOPS’s oversight was minimal compared to the DOE’s. In a strange bout of “let’s hope no one notices,” the DOE attempted to argue on appeal that the order was not final but rather “purported” order, even though the basis for dismissal at the trial level was that the order was final, thereby necessitating TOPS to attach the entire record. The CoA caught the inconsistency and ruled that DOE did not argue this to the trial court and therefore could not raise the argument for the first time on appeal. The DOE had advanced the argument because a final order is indeed required to contain findings of fact.

Under AOPA, a final order by an administrative agency must present written findings of fact, including ‘findings of ultimate fact . . . accompanied by a concise statement of the underlying basic facts of record to support the findings’ as well as ‘conclusions of law for all aspects of the order.’ Pack v. Indiana Family & Soc. Servs. Admin., 935 N.E.2d 1218, 1222 (Ind. Ct. App. 2010) (quoting Ind. Code § 4-21.5-3- 27(b) & (c)).

Thus, the cause was remanded to the administrative level where the DOE will be given the opportunity to support its decision with findings of fact and conclusions of law.

www.in.gov/judiciary/opinions/pdf/02141402mpb.pdf.

IN SD – Communication with gov’t entity’s insurer not sufficient to provide “notice” under ITCA

The plaintiff, a pedestrian, was struck by a school bus driven by Spark Wiggington in the course and scope of his employment with the New Albany-Floyd Consolidated School Corporation. Indiana Insurance, whose policy covered the School Corporation, began its investigation six days later. The plaintiff then retained counsel from Kentucky who corresponded with Indiana Insurance on multiple occasions and denied the claim. These same attorneys, however, neglected to file a tort claim notice.

The plaintiff then filed suit through an Indiana attorney and the case was removed the federal court. There Judge Sarah Evans Barker entertained the defendants’ motion for summary judgment on the issue that the case should be barred failure to comply with the notice provisions of the ITCA. The plaintiff cited the case of City of Tipton v. Baxter, 593 N.E.2d 1280 (Ind. Ct. App. 1992), wherein there had been,

substantial compliance with the Indiana Tort Claims Act – notwithstanding the claimant’s complete failure to provide a written tort claim notice – because the government entity’s liability insurer had actual knowledge of and promptly investigated the accident.

The problem with Plaintiff’s argument is that City of Tipton v. Baxter was overruled by the Indiana Supreme Court in Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013). Indeed, in Schoettmer, Indiana’s highest court held that under Indiana law, a claimant’s communications with a government entity’s insurer, absent anything more, even where the insurer investigates the accident or occurrence, does not create substantial compliance with the notice requirement of the Indiana Tort Claims Act. Id. at 708.

Thus, summary judgment was affirmed.

In all likelihood, a legal malpractice claim will (and likely should) follow. What will be interesting there is whether it could be considered malpractice when suit was filed in 2012, well before the Schoettmer decision. The lesson here is that it is best to comply with the letter of the statute rather than court opinion, since change in the latter bears no safeguard.

https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?42012cv0117-31.

Short note on tendering exhibit logs for trial ex parte

Earlier this week, the Indiana Supreme Court  ruled on several issues in the case of Inman v. State. While this was a criminal matter, there was one section directed toward the practice of tendering exhibit logs ex parte which could be applied to civil trial practice as well. 

Despite the fact that the exhibit log was provided to the trial court for convenience and administrative purposes, we suggest the better practice going forward would be for trial courts to refuse to accept exhibits when tendered ex parte, unless the opposing party has been given notice and an opportunity to be heard on the matter.

So, be it a criminal or civil trial, the next time you consider tendering an exhibit log without notice to the other side beforehand (or at the last minute), the opposing side may have a valid objection to prevent the Court from viewing it.

Inman v. State, No. 49S00-1207-LW-000376, __ N.E.2d __ (Ind., Feb. 11, 2014)..

Local fraternity potentially liable for personal injuries from hazing but not national fraternity or university

In today’s decision, the Indiana Supreme Court addressed several questions relating to duty and the safety of college students. The analysis can be broken down as follows:

  1. Wabash College: Wabash College was not liable under a premises liability theory since its tenant, the local fraternity, maintained exclusive control and possession of the premises where the injury occurred. The school’s promulgation of a policy against hazing was insufficient to create an assumed duty as it “did not extend to direct oversight and control of the behavior of individual student members of the local fraternity.” In other words, it discouraged hazing and offered educational outreach but did not police it in such a way that it failed in its undertaking to protect Yost. Finally, the local fraternity was not the agent of Wabash since “mere consent to governance does not equate to agency.”
  2. National Fraternity: the  Fraternity similarly lacked liability on the theories of assumed duty and agency and the reasoning mirrored that which was applied to Wabash.
  3. Local Fraternity: the local fraternity did bear liability because there were sufficient facts to show that the fraternity may have assumed a duty of care of Yost in that it may have assumed supervisory services upon which Yost relied.

www.in.gov/judiciary/opinions/pdf/02131401bd.pdf.

Indiana v. IBM

Much as I try to provide analysis of an entire opinion with what time I have, I draw the line at 93 page opinions. Suffice it to say that, the IN CoA found that IBM materially breached its agreement to provide a working welfare infrastructure to the State but . . .

Despite finding a material breach on IBM’s part, we affirm the trial court’s award of $40 million in assignment fees and $9,510,795 in Equipment fees to IBM. We do so because the State and IBM agreed under the terms of the contract that the State would pay these fees. Further, the State would be unjustly enriched if it were to keep IBM’s  equipment and to assume IBM’s subcontracts without paying IBM. We further affirm the trial court’s denial of Deferred Fees to IBM, reverse the trial court’s award of $2,570,621 in Early Termination Close Out Payments and $10,632,333 in prejudgment interest to IBM, and remand the case to the trial court to determine the amount of fees IBM is entitled to for Change Orders 119 and 133. Finally, we remand the case to the trial court to determine the State’s damages for IBM’s material breach of the contract and to offset any damages awarded to IBM. We therefore affirm in part, reverse in part, and remand the case to the trial court.

www.in.gov/judiciary/opinions/pdf/02131403nhv.pdf.

How not to contest adverse possession.

“While the parties were litigating the issue of ownership, Flick tried to drive Reuter from her home. He removed the underpinning of her mobile home and severed the water lines accessing the well. A short time later, he entered Reuter’s land with a large rotary mower, destroyed her plants, and erected an electric fence around her home.”

While the IN CoA ultimately found that the Reuter was not entitled to retain the property under adverse possession or any other theory, reversing the trial court, it did affirm the award of damages award of $29,487.70 against Flick for damages he caused by attempting to eject Reuter without court authorization pursuant to Indiana Code § 32-30-2-1.

www.in.gov/judiciary/opinions/pdf/02131401nhv.pdf.

IN CoA reverses trial court’s judgment to pierce corporate veil

“Country Contractors, Inc. (“Country”) entered into a contract to provide excavation services for A Westside Storage of Indianapolis, Inc. (“Westside”). Country subcontracted out a substantial portion of the work and eventually left the worksite without completing the job.” Westside filed for breach of contract and slander of title against Country and its two shareholders, the Songers.

On March 11, 2013, the trial court issued its findings, conclusions, and judgment in favor of Westside against Country and against the Songers personally. The $117,542.20 damage award consisted of $51,162.86 in additional costs to complete the Westside project; $14,959.34 in prejudgment interest; $17,500.00 in attorney’s fees; and $33,920.00 in damages for delay of the project caused by Country’s breach.

On the issue of piercing the corporate veil, the CoA did not upset the finding that the corporation was substantially under-capitalized or that the shareholders did not observe corporate formalities. Rather, the focus was on the nexus between any of the elements of piercing the veil and the alleged resulting injustice. Here, the CoA could find no such nexus and so the judgment of the trial court was reversed.

With respect to the slander of title claim, Country and its subcontractor filed liens against Westside for teh same invoiced work. The sub then resolved its lien with Westside and recorded its release. Country filed its lien after the release was filed and had no independent work of its own to claim the lien. Thus there was sufficient evidence to support a slander of title claim and the award of attorneys fees was appropriate enough not upset the trial court’s discretion.

Finally, the award for delay damages was reversed as speculative.

www.in.gov/judiciary/opinions/pdf/02121401tac.pdf.

Employment/Civil Rights Law – 7th Circuit affirms SJ for Cook County

A Cook County Lothario, Felice “Phil” Vanaria, in his capacity as an administrative assistant at Oak Forest Hospital decided to create a fictitious position at the hospital and then convinced the plaintiff to provide him erotic massages in exchange for this position, which again did not even exist. Vanaria also had a long history of similar conduct while an employee of the Cook County Adult Probation Department, a state entity.

In her lawsuit against Cook County, plaintiff’s claims were dismissed via summary judgment. 1) Her § 1983 equal protection relief under Monell could not succeed because the County was not the “moving force” behind Vanaria’s action, especially since his prior misconduct had come as a state, and not a county, employee. 2) Her § 1983 due process claim was dismissed because plaintiff could not show that what happened to her was an obvious result of hiring Vanaria since he previously had positions of authority and his position with the County was not. 3) Her claim under Title VII was dismissed since the employment she sought was fictitious and not an actual job for which she was passed over.

media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D02-10/C:13-1464:J:Griesbach:aut:T:fnOp:N:1287965:S:0.

7th Circuit affirms SJ for Ds in 1983 claim for excessive force from 2009

Plaintiff, Helman, was served with an arrest warrant and discussed matter with ISP. When asked if he was armed, he showed that he was and went inside his home. ERT then waited six hours and Helman exited home to his backyard carrying coffee and water. When he was talking to the police, an unbeknownst ERT ignited a flash bang grenade that behind him. Helman turned and drew his pistol at which point he was shot. Helman was eventually convicted of resisting arrest.

Since Plaintiff was convicted of resisting arrest, he could not assert a 1983 claim for excessive force that would in essence demonstrate that the conviction was invalid under Heck v. Humphrey, 512 U.S. 477, 486 (1994). Therefore, his only viable claim would be if he was fired upon before drawing his pistol, which the record revealed to be not the case.

Thus, Helman was left with a 4th Amendment claim under 1983 for being fired upon when he drew his pistol. This too was not viable since the police response was commensurate to the perceived threat.

SJ was granted by Judge William Lee in Northern District – South Bend.

media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D02-06/C:12-3428:J:Rovner:aut:T:fnOp:N:1286519:S:0.

Veolia Water Indianapolis, LLC, et al. v. National Trust Ins. Co.

Indiana Supreme Court case clarifies issues of sovereign immunity with respect to third party contractors. Here, the insurer (NTI) of Texas Roadhouse sued, as subrogee of the restaurant, Veolia, a company managing water for City of Indianapolis. NTI stated that the hydrants were negligently managed and therefore a fire that broke out at Texas Roadhouse resulted in a total loss of the building.

The Indiana Supreme Court held that the City could not claim immunity for discretionary functions under the ITCA since it made no policy decision to enforce the standard of care promulgated in the contract between the City and Veolia (basically, no decision at all is not the same as deciding to do nothing).

The Court then held that common law immunity applies under Campbell v. State, 284 N.E.2d 733 (Ind. 1972) exception to the claims relating to providing adequate fire protection.

Finally, the Court held that Veolia was not entitled to common law immunity since it was a “for-profit private company operating a public utility under contract with a governmental unit” as opposed to a company working at the direction of the government as distinguished in Metal Working Lubricants Co. v. Indianapolis Water Co., 746 N.E.2d 352 (Ind. Ct. App. 2001), where common law immunity did apply to the third party contractor.

www.in.gov/judiciary/opinions/pdf/02061401SHD.pdf.

%d bloggers like this: