Defense

Indiana Court Decisions — Sept. 13-26, 2018 | 2018-10-03

Questions about investigation, ethical duty persist as Hill inquiry expands | 2018-07-11

seventh Circuit Court of Appeals

Sept. 13

Civil Tort — Failure to Warn/“Popcorn Lung”

Gregory Aregood, Jr. v. Givaudan Flavors Company

17-3390

The seventh Circuit Court of Appeals reinstated a declare filed by almost 30 staff who argue a microwave popcorn plant did not warn them of publicity in the course of the manufacturing course of to a butter taste ingredient that has been linked to a illness referred to as “popcorn lung.”

The employees allege that publicity triggered them to endure from respiratory accidents associated to the flavoring ingredient diacetyl whereas working on the ConAgra Snack Meals Group plant in Rensselaer. In Sept. 2017, Senior Decide Sarah Evans Barker granted abstract judgment to the plant’s longtime provider, Givaudan Flavors Corp., discovering that the plaintiffs offered no skilled testimony on the prices and advantages of a diacetyl-free butter taste.

In Gregory Aregood, Jr. v. Givaudan Flavors Company, 17-3390, Givaudan confronted a number of claims underneath Indiana product legal responsibility regulation for strict legal responsibility, failure to warn, negligence, and design defect. On attraction, the seventh Circuit Court discovered abstract judgment for Givaudan to be correct on all counts, with the exception that the provider did not warn that its merchandise contained a harmful substance.

When inhaled, diacetyl may cause bronchiolitis obliterans or “popcorn lung” — the irritation and obstruction of the smallest airways of the lungs. Signs embrace a dry cough, shortness of breath, wheezing, fatigue, and may result in worse private accidents.

“In the mid-1980s, Givaudan learned from its trade association that inhaling diacetyl was ‘harmful’ and ‘capable of producing system toxicity,’” Decide Michael Brennan wrote for the panel. “In the 1990s, three employees at Givaudan’s plant in Cincinnati were diagnosed with bronchiolitis obliterans, and one died.”

On attraction, the workers targeted on Givaudan’s manufacturing and provide of butter flavorings, its accompanying materials security knowledge sheets, and the shortage of warnings that the flavorings contained diacetyl. As a way to present that the butter flavorings have been faulty underneath the Indiana Product Legal responsibility Act and to prevail on their failure to warn declare, the seventh Circuit famous the plaintiffs wanted present Givaudan had an obligation to adequately warn a few latent harmful attribute. The seventh Circuit discovered that the provider did not warn in that regard.

The seventh Circuit additionally discovered that a jury might fairly conclude that Givaudan knew of diacetyl’s risks after a number of instances of bronchiolitis obliterans within the 1990s, in addition to the necessity to shield its personal staff and the customers of its merchandise.

“Viewing the evidence in the employees’ favor, and drawing justifiable inferences for them, a reasonable jury could conclude that Givaudan failed to discharge its duty to warn the plaintiff employees on the dangers of diacetyl,” the courtroom concluded. “Thus, summary judgment should not have been granted to Givaudan on plaintiffs’ failure to warn claim.”

Indiana Supreme Court

Sept. 13

Civil Tort — Legal responsibility/Police Sexual Assault

Jennifer Cox v. Evansville Police Division and The Metropolis of Evansville; Babi Beyer v. The Metropolis of Fort Wayne

18S-CT-447

The Indiana Supreme Court affirmed two cities have been entitled to abstract judgment on the common-carrier concept, however not on the difficulty of legal responsibility underneath respondeat superior’s scope-of-employment rule in a consolidated civil lawsuit involving two ladies who have been sexually assaulted by on-duty police in Evansville and Fort Wayne.

In 2009, Jennifer Cox was sexually assaulted by then-Evansville police officer Martin Montgomery. He had responded to a home disturbance name involving Cox, who he took again to her condominium, adopted her inside, and coerced her into intercourse. Cox sued, and he later was convicted of felony deviate conduct and sentenced to 12 years in jail.

Then up north, Babi Beyer was assaulted and raped by then-officer Mark Rogers. After she was arrested for sitting behind the wheel of a automotive parked on a street whereas intoxicated, she was taken to a hospital the place a blood draw revealed an alcohol degree greater than 3 times the authorized restrict. She was discharged, nevertheless, to Rogers’ custody, and he took her to a grassy space and raped her on a bench whereas armed and in uniform. Rogers pleaded responsible to costs of rape, sexual misconduct and official misconduct.

The fits have been mixed earlier than the Indiana Court of Appeals as a result of they shared a standard challenge of regulation — whether or not the “common carrier” legal responsibility exception utilized to police departments and municipalities in each instances. Final September, the COA discovered the exception did apply to the cities and officers, nevertheless, the excessive courtroom sided with the trial courtroom’s choice that it didn’t in Jennifer Cox v. Evansville Police Division and The Metropolis of Evansville; Babi Beyer v. The Metropolis of Fort Wayne, 18S-CT-447.

On attraction, Fort Wayne contended that the sexual assault was outdoors its police officer’s scope of employment as a matter of regulation. And each cities maintained that the common-carrier exception didn’t apply. The excessive courtroom didn’t excuse Fort Wayne from legal responsibility as a matter of regulation, however did discover the widespread carrier-exception didn’t apply.

First, the excessive courtroom discovered that beneath Indiana’s scope-of-employment rule, an employer is liable for workers’ tortious acts that come up naturally or predictably from the employment context.

It additionally decided that when a police officer misuses employer-conferred energy and authority to commit sexual assault, the town is responsible for the assault if it arose naturally or predictably from the officer’s employment actions.

“The reasons underlying scope-of-employment liability support this conclusion,” Chief Justice Loretta Rush wrote. “First, the city benefits from the lawful exercise of police power, so when tortious abuse of that power naturally or predictably flows from employment activities, the city equitably bears the cost of the victim’s loss.”

The excessive courtroom additionally discovered that Rogers exploited his distinctive institutional prerogatives of his police employment.

“Because a question of fact remains about whether Officer Rogers’s sexual assault occurred within the scope of his employment, we affirm the denial of summary judgment to Fort Wayne on the issue of liability under the doctrine of respondeat superior,” Rush wrote.

In its second level, the excessive courtroom declined to increase Indiana’s common-carrier exception outdoors relationships shaped by a “contract of passage.”

“Though the responding officers exercised control over Cox and Beyer, the women’s relationships with the cities were not contractual as required to invoke the common carrier exception,” the panel wrote. “Neither Cox nor Beyer entered a ‘contract of passage’ with Evansville or Fort Wayne: there was no invitation, no acceptance of an invitation, no fare or other consideration, and no agreed-on period of accommodation.”

The courtroom concluded in noting that with “great power comes with great responsibility.”

“Cities are endowed with the coercive power of the state, and they confer that power on their police officers. Those officers, in turn, wield it to carry out employment duties — duties that may include physically controlling and forcibly touching others without consent.”

“For this reason, when an officer carrying out employment duties physically controls someone and then abuses employer-conferred power to sexually assault that person, the city does not, under respondeat superior, escape liability as a matter of law for the sexual assault,” Rush concluded.

Juvenile — Delinquency Listening to/Proper to Be Current

R.R. v. State of Indiana

18S-JV-230

The Indiana Supreme Court cut up over whether or not a juvenile waived his proper to be current when he skipped his listening to, however the justices got here collectively in calling for a legislative treatment. Justices in a Three-2 determination reversed the teenager’s juvenile delinquency adjudication.

A fact-finding listening to was convened for R.R., who was charged with violating the phrases of his probation and committing auto theft and false informing. Nevertheless, he didn’t seem, and his mom advised the Lawrence Circuit Court she didn’t know the place he was.

Regardless of the objections of R.R.’s counsel, the courtroom continued the proceedings, discovering R.R. violated his probation and adjudicating him a delinquent for auto theft and false informing.

About two months later, R.R. was detained by police and the courtroom made him a ward of the Indiana Division of Correction. He appealed, arguing he had a constitutional proper to seem at his fact-finding listening to and the courtroom violated that proper by holding the listening to in his absence.

A cut up Court of Appeals affirmed, discovering that adopting R.R.’s interpretation would permit juveniles to “hijack trial court dockets and avoid responsibility for their delinquent behavior by knowingly and voluntarily (and repeatedly) refusing to appear at factfinding hearings.”

However the Indiana Supreme Court reversed the trial courtroom’s delinquency willpower and remanded for additional proceedings. Justice Steven David wrote a dissent in R.R. v. State of Indiana, 18S-JV-230, which Chief Justice Loretta Rush and Mark Massa joined partially.

Writing for almost all, Justice Geoffrey Slaughter asserted that Indiana’s juvenile waiver-of-rights statute, Indiana Code 31-6-7-Three, doesn’t permit for both his counsel, father or mother or himself to waive his proper to be current at a fact-finding listening to.

Slaughter additionally downplayed the Court of Appeals’ discovering that the juvenile-waiver statute might result in unintended penalties. He additionally contended that making use of a judicial repair would intrude an excessive amount of into legislative territory.

“But even were we to conclude that no reasonable legislator could have intended that a no-show teenager would avoid waiver by resorting to such litigation gamesmanship, the judicial fix would not be modest,” Slaughter wrote. “It would require courts to rewrite the statute by adding a substantive ‘fourth’ waiver option the legislature did not enact.”

In his dissent, David argued holding the listening to in R.R.’s absence was a “just outcome.” The juvenile had presumably run away, a pick-up order for him had been issued, he was almost 18 and had nice familiarity with the justice system, so, David contended, R.R. had waived his proper to be current at his listening to.

Nevertheless, he did observe the Indiana Basic Meeting ought to act.

“I urge our legislature to consider amending the statute to give trial court judges some discretion in situations where the juvenile is absent,” David wrote. “That is, the statute should allow for knowing, intelligent and voluntary waiver by a juvenile who is aware of upcoming proceedings but chooses to be absent with no adequate explanation.”
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Sept. 25

Infraction – Indiana Blocked Railroad Crossing Statute

State of Indiana v. Norfolk Southern Railway Firm

18S-IF-193

A unanimous Indiana Supreme Court despatched a message to all Hoosier motorists caught at a railroad crossing ready for the practice to cross – loosen up, you’re going to be there awhile.

All 5 justices discovered that Indiana’s statute stopping trains from blocking a railroad crossing for greater than 10 minutes was pre-empted by the federal Interstate Commerce Fee Termination Act. The courtroom concluded the federal regulation runs over any state makes an attempt to “mange or govern rail transportation.” This consists of Indiana’s blocked-crossing statute, as a result of it considerably interferes with railroad operations.

“While Congress largely deregulated the railroad industry, it did not invite states to step in and fill the void,” Chief Justice Loretta Rush wrote for the courtroom.

Norfolk Southern challenged Indiana’s blocked-crossing statute, Indiana Code part Eight-6-7.5-1, after it received hit with 23 citations between December 2014 and December 2015 for blocking crossings close to its Allen County trainyard. Every violation is a Class C infraction and carries a minimal $200 nice.

Allen Superior Court dominated for the railroad, discovering that complying with the state statute can be an onerous course of for Norfolk Southern. Nevertheless, the Indiana Court of Appeals reversed on the idea that the ICCTA didn’t particularly say blocked-crossing statutes have been squashed by the federal regulation.

The Indiana Supreme Court accepted switch and heard oral arguments in Might.

In a 16-page opinion sprinkled with locomotive references, the Indiana Supreme Court tore aside the ICCTA. It appeared intently on the language that claims ICCTA cures relating to the regulation of railroads “are exclusive and preempt” state cures.

The courtroom decided Indiana’s statute dictates key operational decisions.

“Railroads cannot run trains too slowly or make them too long, lest they take more than 10 minutes to clear a crossing,” Rush wrote. “… Railroads also cannot schedule trains or operate trainyards in a way that forces them to stop trains for more than ten minutes at a crossing to repair problems, perform safety checks, or wait for tracks to clear.”

For Norfolk Southern particularly, the justices famous the railroad firm’s switching operations take greater than 10 minutes to securely full. Norfolk Southern must run quicker or shorter trains or it must minimize the trains into segments, however the reassembly and obligatory brake checks would take greater than 10 minutes.

“All this means that Norfolk Southern — just to try to comply with the blocked-crossing statues — would have to change several key railroad-operation choices,” Rush wrote. “… The statute’s duty to clear crossings within ten minutes means that if there is any way for the railroad to comply — no matter how onerous — then it must do so.”

Pointing to Friberg v. Kansas Metropolis S. Ry., 267 F.3d 439, 443 (fifth Cir. 2001), the Indiana justices concluded the state’s statute as to when trains can use the tracks and cease on them violates the ICCTA as a result of it’s trying to handle or govern rail transportation in a direct method.

The ruling in State of Indiana v. Norfolk Southern Railway Firm, 18S-IF-193, will impression motorists throughout the state. As Rush famous, not solely does Indiana have greater than four,000 miles of monitor, however it additionally has 5,693 railroad-highway grade crossings — one for each 17 roadway miles, which is the very best focus within the nation.

“Indiana — The Crossroads of America — is a railroad capital,” Rush wrote.

Nevertheless, the Supreme Court did trace at an alternate answer for annoyed motorists. It famous the Floor Transportation Board’s Rail Buyer and Public Help Program handles complaints and, in 2017, addressed 32 points associated to blocked railroad crossings.
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Sept. 26

Company Motion — Utility Charges/Modified Order, Value Overruns

NIPSCO Industrial Group v. Northern Indiana Public Service Firm

18S-EX-334

Revisiting a choice that restricted how utilities can move the invoice for future prices to ratepayers, the Indiana Supreme Court tweaked its earlier opinion to insert language in a modified choice that now will permit utilities to get well venture value overruns in utility price will increase.

Justices in June dominated towards Northern Indiana Public Service Co. and in favor of a gaggle of its heaviest business customers, NIPSCO Industrial Group. The choice reversed regulatory approval of a portion of a fee improve meant to pay for undefined alternative of a proportion of NIPSCO fuel pipes all through its system.

The courtroom usually held in June that beneath that the 2013 TDSIC Statute, utilities might acquire price will increase for particular, outlined tasks, however not for broad classes of tasks akin to unspecified upkeep of infrastructure.

After a rehearing, the courtroom reissued Justice Geoffrey Slaughter’s unanimous opinion in NIPSCO Industrial Group v. Northern Indiana Public Service Firm, 18S-EX-334, with a small however vital distinction. The brand new opinion is considerably similar to the June order, with the notable exception of the addition of the clause in daring on this paragraph:

“After the Commission has approved the foundational seven-year plan under Section 10, the utility may file petitions every few months under Section 9 to obtain ‘automatic’ rate adjustments for approved costs and expenditures as it completes these improvements and puts them into service. I.C. §§ 8-1-39-9(a), (c), (e). These periodic Section 9 petitions allow the utility to recoup eighty percent of approved cost estimates. Id. § 8-1-39-9(a). The remaining twenty percent — along with any cost overruns that are specifically justified by the utility and specifically approved by the Commission — is recoverable during the general ratemaking case required.”

Slaughter wrote for the courtroom that the choice within the NIPSCO case can be far-reaching, as possible the modification can be for utilities and their ratepayers.

“The stakes are much larger than just the roughly $20 million at issue between NIPSCO and the Industrial Group. The Commission, we are told, has approved billions of dollars of utility-infrastructure investments through the TDSIC process. Given the favorable regulatory treatment, utilities are likely to funnel increasing amounts of infrastructure investments through this reimbursement mechanism. How we resolve these competing visions of the TDSIC Statute will likely have enormous financial consequences for utilities and their customers,” each opinions say.

Indiana Court of Appeals

Sept. 17

Civil Plenary — Default Judgment/Jurisdiction

Timothy C. Troxel v. Dale Ward, successor in curiosity to unique Plaintiff, Plan Directors, Inc.

18A-PL-597

Timothy Troxel had a grievance filed towards him and his firm, WK Payroll, Inc., in Wisconsin in 2014. The plaintiff, Plan Directors, claimed WK Payroll had breached a $653,000 promissory word by failing to make agreed funds.

Nevertheless, Troxel had already moved to the Sunshine State virtually a yr earlier. The method server left the summons and grievance at an previous handle for Troxel in Francesville, Indiana, however advised Plan Directors the property was vacant, and neighbors believed Troxel had moved.

Nonetheless, the Wisconsin state courtroom discovered the plaintiffs had glad Indiana Trial Rule four.1(A)(Three) by leaving a replica of the summons and grievance at Troxel’s former handle. It then entered a default judgment towards WK Payroll and Troxel for $490,zero10.13 plus prices.

Greater than a yr later, Plan Directors filed in LaPorte Circuit Court a Discover of Submitting of Overseas Judgment and a Grievance to Implement Overseas Judgment towards Troxel. Plan Directors advised the courtroom Troxel was dwelling in LaPorte County despite the fact that a summons and grievance mailed to him at a La Crosse handle got here again marked “return to sender” and “unable to forward.”

Almost a yr after that, Plan Directors assigned its proper, title and curiosity within the Wisconsin judgment to Dale Ward. The LaPorte Circuit Court granted Ward’s movement for an order authorizing the sale of Eight,578 shares of Adaptasoft inventory, valued at $300,000, and owned by Troxel.

On attraction, Troxel argued the LaPorte Circuit Court’s order authorizing the sale of the inventory is void underneath Trial Rule 60(B)(6) as a result of he was not correctly served.

The Court of Appeals overturned the sale for a “more fundamental reason” than correct notification in Timothy C. Troxel v. Dale Ward, successor in curiosity to unique Plaintiff, Plan Directors, Inc., 18A-PL-597. The appellate panel discovered the LaPorte Circuit Court’s order authorizing the sale of the inventory was void as a result of a “judgment which is void in the state where it is entered is also void in Indiana.”

Though Troxel didn’t argue the Wisconsin judgment is void, he did problem the Wisconsin judgment in his temporary. As well as, Ward acknowledged Troxel was difficult the Wisconsin judgment.

Nevertheless, Ward claims that private jurisdiction ought to be presumed on this case as a result of there’s nothing to recommend that jurisdiction was not correct within the Wisconsin lawsuit. The Court of Appeals was not satisfied, pointing to the issues serving Troxel.

“Because Troxel was not properly served with notice of the Wisconsin lawsuit, the Wisconsin court did not have personal jurisdiction over Troxel when it entered default judgment against him and therefore that judgment is void,” Chief Decide Nancy Vaidik wrote for the courtroom. “Accordingly, any Indiana orders based on the void Wisconsin judgment are also void.”

The Court of Appeals reversed the LaPorte Circuit Court’s denial of Troxel’s Trial Rule 60(B) movement and remanded with directions for the courtroom to vacate its order authorizing the sale of Troxel’s inventory.•