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The Indiana Supreme Court denied transfer to 22 cases for the week ending July 28, with the justices splitting in six denials. No cases were granted transfer.
One of the denials involved an oil company that was sued by the widow of a man who died using its product.
The man attempted to remove the top of a 55-gallon metal drum containing automotive brake cleaner. He used a cutting torch and the drum exploded, blowing the top off and killing him instantly.
The man’s widow sued Superior Oil Company, which manufactures the brake cleaner. Superior puts a label on top of each drum warning of the dangers of an empty metal drum and giving instructions about not flame-cutting, brazing or welding an empty container.
The Vanderburgh Circuit Court denied Superior’s motion for summary judgment, but the Court of Appeals of Indiana reversed that decision in Superior Oil Company, Inc., et al. v. Samantha M. Labno-Fritchley, 22A-CT-1595.
The COA ruled in part that because the drum was used in contravention of the warning label, Superior established a defense of misuse.
Justices also denied transfer to a related case in which the trial court denied a motion for summary judgment brought by an Evansville car dealer that occasionally gave empty drums to a man for apparent resale.
The COA reversed that denial in Evansville Automotive, LLC v. Penelope Rose Fritchley b/n/f Samantha Labno-Fritchley, 22A-CT-1601, ruling that the act of occasionally giving drums to the man “falls short of establishing that it was ‘engaged in the business’ of selling them.”
Indiana Chief Justice Loretta Rush and Justice Christopher Goff voted to grant transfer to both cases.
Justices also denied transfer to a case involving the owner of a construction project who sued an insurance company for breach of contract and tortious bad faith in its handling of bond claims.
The project owner, Posterity Scholar House LP, brought the claims — one under a performance bond and a series of claims under a payment bond — after a general contractor allegedly defaulted on a contract.
FCCI Insurance Company denied both claims.
The Allen Superior Court granted FCCI’s motion for partial summary judgment on Posterity’s bad faith claim.
The COA affirmed in Posterity Scholar House, LP v. FCCI Insurance Company, 21A-PL-2731, ruling the common law duty of good faith that applies to insurance does not extend to the relationship between a surety company and bond obligee.
Rush and Justice Derek Molter voted to grant transfer to the Posterity case.
The justices also denied transfer to a malpractice lawsuit involving Krieg DeVault LLP.
In that case, WGT V LLC sued the law firm for legal malpractice, negligence and breach of fiduciary duty relating to a commercial real estate transaction.
Krieg moved for summary judgment, and WGT V responded and filed designated evidence from affidavits and transcribed depositions. After determining genuine issues of material fact existed, the Marion Superior Court denied Krieg’s motion.
On interlocutory appeal, a split COA affirmed the trial court’s judgment, ruling the evidence created a genuine issue of material fact about whether Krieg was the lawyer for both H.H. Gregg and WGT V during an ultimately unconsummated transaction in Georgia. Judge Terry Crone dissented.
Justice Geoffrey Slaughter voted to grant transfer to that case.
Next, the justices denied transfer to a case involving a man who was sentenced to 32 years and 360 days for various child molesting and child pornography-related convictions.
A split COA affirmed the sentence in Matthew Lee Thomas v. State of Indiana, 22A-CR-2086.
In a memorandum decision, the majority ruled the sentence was neither inappropriately harsh nor inappropriately lenient. Judge Melissa May dissented.
Molter and Justice Mark Massa voted to grant transfer to Thomas.
Finally, the justices denied transfer to a case involving a man convicted of Level 4 unlawful possession of a firearm by a serious violent felon, Level 5 dealing in a substance represented to be a controlled substance and Level 6 possession of a controlled substance.
Steven Jennings was also adjudicated as a habitual offender and was sentenced to 12 years.
The COA affirmed in a memorandum decision, ruling that the Tippecanoe Superior Court did not err in the admission of evidence and that the evidence was sufficient. The COA also found that Jennings did not demonstrate a violation of his substantive double jeopardy rights.
Rush voted to grant transfer in that case.
The full list of transfer decisions is available online.
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