Indiana Court Decisions – April 9-22, 2020

7th CircuitCourt of Appeals

April 9

Civil Tort — Insurance/Obligation of Coverage

Markel Insurance Company v. Lillian Rau

19-2433

An ambulance that crashed into a car and killed its driver was not covered under an insurance policy, the 7th Circuit Court of Appeals ruled April 9. As a result, the insurer had no obligation to either the ambulance service or its employee.

At the time of the accident, Markel Insurance Company insured United Emergency Medical Services’ fleet of ambulances. But the ambulance that crashed — referred to as Ford #4497 — was not listed on the policy.

Before the accident, confusion about adding the ambulance to the policy took place in an email exchange between United administrative director Steven Pavek and Jack Rosen with Insurance Service Center, who served as Markel’s agent. Pavek had emailed Rosen, requesting to add Ford #4497 back onto the policy and that a different ambulance be removed, but Pavek never followed up on the request.

Months later, Ford #4497 crashed into a vehicle driven by Chester Stofko, who eventually died from injuries sustained in the collision. At that point, the ambulance had never been formally added back to the policy. Eventually, United’s owner found a copy of Pavek’s email and forward it to Rosen, who claimed it was the first time he had seen it.

Lillian Rau, as personal representative of Stofko’s estate, filed a lawsuit in state court against United and the ambulance’s driver to recover damages. She argued that it was nevertheless covered by the policy because before the crash, United sent Rosen an email requesting that the vehicle be added to the policy.

The U.S. District Court for the Northern District of Indiana found that Markel had no duty to defend or indemnify United or the driver with respect to Rau’s suit. It also denied both Rau’s and United’s cross-motions for summary judgment against Markel.

Rau’s appeal focused primarily on United’s email to Center, arguing that despite Rosen’s denial, Center actually received the email but failed to forward it to Markel. But in affirming the district court, the 7th Circuit noted that the cases cited by Rau were not based in Indiana Law and were otherwise distinguishable.

“Here, unlike in (State Farm Mut. Auto. Ins. Co. v. Oss, 127 Ill. App. 3d 119 (1984)), Center in no way assured United that Ford #4497 was covered. Moreover, as the district court pointed out, the holding in Oss was dictated by the existence of an oral contract. The contract in this case is the Policy, which required more than notice before a change takes effect: Markel also had to approve any such change. It is undisputed that Markel did not approve the addition of Ford #4497,” Chief Judge Diane Wood wrote for the 7th Circuit.

“Based on (Wille v. Farmers Equitable Ins. Co., 89 Ill. App. 2d 377 (1967)), Rau argues that Markel should be responsible for Center’s failure to forward the requested change in the March 30 email. Wille is distinguishable, however, because no one gave United assurances that Markel accepted the change. Moreover, in Wille, there was again no written contract,” the 7th Circuit wrote.

Regardless of whether the contested email was sent or received, the 7th Circuit concluded that it was undisputed that neither Center nor Markel accepted or responded to United’s request to reinstate coverage for Ford #4497. Thus, Markel did not endorse any such change to the policy and the ambulance was not covered.

Additionally, the panel rejected Rau’s argument that Markel should be estopped from denying coverage for Ford #4497 as a matter of public safety, noting that it would not hear the issue for the first time on appeal.

Lastly, the 7th Circuit found Rau’s argument that equity requires coverage for Ford #4497 as not persuasive, finding that Markel’s amenability to past changes did not mean that it was estopped from rejecting amendment requests, among other factors.

The case is Markel Insurance Company v. Lillian Rau, 19-2433.

Indiana Court of Appeals

April 9

Miscellaneous — Sex Offender Registry/Removal

Trent Dean McPhearson v. State of Indiana

19A-MI-3035

A trial court that vacated its prior order removing a man’s name from the Indiana Sex Offender Registry was correct in doing so because the Indiana Attorney General’s Office had not been notified of the offender’s request to be taken off the registry, the Indiana Court of Appeals ruled.

The panel affirmed the Madison Circuit Court in Trent Dean McPhearson v. State of Indiana, 19A-MI-3035.

Trent McPhearson had been required to register as a sex offender in Maine after he pleaded guilty there to gross sexual assault in 1998. After he was released from prison in 2003, he was required to register as a sex offender for life in Maine and in Indiana, where he resided after his release.

That changed in 2015, when Maine ruled that offenders such as McPherarson had been subjected to ex post facto laws because the registration requirement became law after the offense for which McPherarson was convicted.

After McPhearson was removed from Maine SOR in 2015, he petitioned in 2018 for removal from the Indiana Sex Offender Registry. He served only the Madison County prosecuting attorney and, without objection from the local prosecutor’s office in Anderson, the trial court granted McPhearson’s petition.

About a month later, in May 2018, a deputy attorney general appeared on behalf of the Indiana Department of Correction with a motion to intervene. The AG’s office noted the DOC had not been notified of McPhearson’s petition, as required by law, until it was granted, thus moving to vacate the trial court’s order removing McPhearson from the Indiana registry. The trial court agreed, vacating its prior removal order and later denying McPhearson’s subsequent petition for removal.

The Indiana Court of Appeals affirmed, finding the trial court did not err either in granting the AG’s motion to intervene or in vacating its removal order. It also found that McPhearson committed a crime in another jurisdiction equivalent to sexual battery in Indiana.

“In other words, McPhearson is required to register in Indiana not based on his previous obligation to register in Maine — which no longer exists — but rather because he was convicted of a crime in Maine that is substantially equivalent to a sexual offense proscribed under Indiana law. And he was always required to register as a sexual offender in Indiana on that basis alone, irrespective of his registration status in Maine. As such, McPhearson cannot rely on the Maine appellate courts’ decision that removed him from Maine’s sex offender registry to say that his requirement to register for life in Indiana automatically violates ex post facto principles,” Judge John Baker wrote for the panel.

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April 13

Civil Plenary — Logging Dispute/Trespass Damages

Mike Dow and Midwest Logging and Veneer v. John Hurst and Linda Hurst

19A-PL-1709

A logging company that allegedly fell more than three dozen hardwood trees on a Morgan County property whose owner had warned the contractor to stay off his land was rightly awarded more than $80,000 in damages, the Indiana Court of Appeals ruled.

The appellate panel found no error in the Morgan Superior Court’s grant of summary judgment in favor of landowners John and Linda Hurst and against Mike Dow, doing business as Midwest Logging and Veneer.

The Hursts own about 15 heavily wooded acres in Morgan County, where their home also is located. A neighbor entered into a logging contract with Dow, but before logging started, Linda Hurst spoke with Dow before logging began to make sure that trees were not cut across the property lines that John Hurst had marked with metal posts.

Dow hired a contractor to cut trees on the property neighboring the Hursts’ land and harvest the timber, but when John Hurst heard chainsaws that seemed to be coming from his land, he went to investigate and found logging taking place on his property. He told the logger to finish harvesting the tree he was cutting, but to harvest no more timber from his land. Despite this, Hurst later observed more trees being harvested from his property and again told Dow to stay off his land.

After Hurst sued, he presented evidence from a Department of Natural Resources forester and a landscaper to assess damages including the value of the cut timber and the cost of remediation, leading to the judgment and damages ruling in his favor. The trial court found Hurst was not eligible for treble damages he sought.

On appeal, Dow claimed the trial court erred in concluding he was liable for the actions of independent contractors, in awarding damages to the Hursts, and in the admission of alleged hearsay evidence.

The COA affirmed in Mike Dow and Midwest Logging and Veneer v. John Hurst and Linda Hurst, 19A-PL-1709. The panel found Dow had a duty that could not be delegated under the Timber Buyers Act, I.C. 25-36-5-1-4(b) — a duty to not cut or cause to be cut or appropriate any timber not purchased. The panel likewise rejected Dow’s argument regarding damages — that the Hursts should be entitled either to the value of the timber or the estimated cost of remediating the land, but not both.

“To hold otherwise would be to permit a windfall to the tortfeasor, permitting the tortfeasor to either profit from the value of the timber taken or shield the tortfeasor from liability for the injury to the real property caused by the taking of the timber. We therefore reject Dow’s position …,” Judge Paul Mathias wrote. The panel also noted the award of damages was not excessive and represented only a small percentage of the value of the total property.

Finally, the panel also found admission of Linda Hurst’s testimony regarding what the contracted logger said Dow told him was harmless.

Criminal — OWI Causing Death/Blood Draw Challenge

Ruel P. Pedigo, III v. State of Indiana

19A-CR-1848

A defendant was unable to convince the Indiana Court of Appeals the state was improperly allowed a “do-over” by being able to offer as evidence at trial an analysis of his blood that showed the presence of controlled substances.

Ruel Pedigo III was driving a tow truck along State Road 46 in Bartholomew County in January 2018 when he rear-ended a passenger car that was stopped at a traffic light. The collision killed the driver of the car, Patrick Bowman, and seriously injured his fiancee, Sarah Fliehman.

At the scene, Pedigo told police he had not anything to drink or taken any medication. Columbus Police Officer John Morphew administered a horizontal gaze nystagmus test and a portable breath test. Neither provided any indication Pedigo was intoxicated. Next, the officer took Pedigo to Columbus Regional Hosptial to have a blood draw.

Morphew read Pedigo the Indiana Implied Consent law and obtained the his consent to conduct the blood draw. Also, at the hospital, Pedigo was asked to complete additional documentation to indicate he consented to have his blood drawn. Then Alexa Nemeth, a phlebotomist at Columbus Regional Hospital, preformed the blood draw on Pedigo.

The Indiana State Department of Toxicology analyzed the blood sample and found THC-COH along with four times the therapeutic level of amphetamine and methamphetamine in Pedigo’s blood at the time of the accident.

Pedigo was charged with Level 5 felony reckless homicide, Level 4 felony causing death when operating a motor vehicle with a schedule I or II controlled substance in the blood, and Level 6 felony causing serious bodily injury when operating a motor vehicle with a schedule I or II substance in the body.

At trial in Bartholomew Circuit Court, Pedigo failed to suppress the evidence related to his blood draw but was successful in getting the court to sustain his objection to the admission of his toxicology report.

He argued the state did not present evidence to show that Nemeth had followed protocol. The state then requested permission to recall Nemeth, but again Pedigo objected, saying giving the state a “second shot at it” was not appropriate. Finding neither party had requested Nemeth be released from her subpoena, the trial court allowed her to be recalled.

After Nemeth took the witness stand again and described the steps she takes in collecting a blood sample for law enforcement, the trial court overruled Pedigo’s objection. The court based its decision on the evidence that there was an established protocol for the blood draw, Columbus Regional Health was a licensed facility and Nemeth was certified in phlebotomy. In addition, no evidence had been offered to show the reliability of the sample had been compromised.

Pedigo was subsequently convicted of all charges and sentenced to an aggregate 15-year sentence. He appealed, in part, on the grounds the trial court abused its discretion by admitting his chemical test results into evidence.

However, the Indiana Court of Appeals affirmed the conviction and sentence in Ruel P. Pedigo, III, v. State of Indiana, 19A-CR-1848.

Before the appellate panel, Pedigo renewed his arguments that the trial court abused its discretion when it admitted blood draw results into evidence at trial. He asserted the state failed to present evidence that the person who drew his blood was following the protocol prepared by a physician as required by Indiana code section 9-30-6-6.

Pedigo cited Combs v. State, 895 N.E.2d 1252 (Ind Ct. App. 2008), trans. denied. There, the Court of Appeals found the “record devoid of evidence that a physician prepared the protocol followed by” the technician, and “absolutely no evidence that she acted under the direction of a physician” when drawing Combs’ blood. Also, the appellate court held “the State failed to lay a proper foundation for admitting the blood test results.”

The Court of Appeals found Pedigo to be distinguishable from Combs in that the evidence presented established Nemeth was a person trained in obtaining bodily samples as required by I.C. 9-30-6-6(a).

“Here, the evidence most favorable to the ruling shows that Nemeth testified that she is certified in phlebotomy,” Judge James Kirsch wrote for the court. “She further testified that she followed a protocol approved by a pathologist when drawing Pedigo’s blood, and that Columbus Regional Health is a licensed hospital. Nemeth also testified about each step that she takes when she collects a blood sample for law enforcement.”

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April 14

Miscellaneous — Dam Repair Responsibility/Ownership Dispute

Miami County and Miami County Board of Commissioners v. Indiana Department of Natural Resources, and Walter B. Woodhams and Dorothy Woodhams, et al.

19A-MI-2099

Reversing a trial court that determined Miami County was responsible for fixing six crumbling dams in a lake community housing addition, the Indiana Court of Appeals found the county was responsible only for maintaining the roads that crossed the tops of the embankments.

The ruling concerns a long-simmering dispute between officials in Miami County north of Indianapolis and residents of the Hidden Hills addition near Peru.

The addition was built beginning in the 1990s and includes six dams that the Department of Natural Resources in 2014 found to be unsafe and ordered the owners to take action to fix them. Both the county and property owners, including name appellees Walter and Dorthy Woodham, assert the opposing parties in this litigation own the dams and, therefore, are obligated to maintain them in safe condition.

The Indiana Natural Resources Commission found the county owned not only the roads atop the dams when it had accepted easements into its highway system, but also the dams beneath them. On judicial review, Marion Superior Judge P.J. Dietrick agreed, finding that when the county accepted the roadways, it also accepted the structures beneath, and therefore was on the hook for the costs of repairs.

The Indiana Court of Appeals reversed in Miami County and Miami County Board of Commissioners v. Indiana Department of Natural Resources and Walter B. Woodhams and Dorothy Woodhams, et al., 19A-MI-2099.

“The County advances a multifaceted argument that it is not an ‘owner’ of the dams pursuant to the (Dam Safety Act) and therefore should not be responsible for repairing or reconstructing them. We agree, for the simple reason that the County does not have ‘an interest in or to the property upon which the structure is located,’” Judge Terry Crone wrote for the panel, citing to Ind. Code § 14-27-7.5-4.

“Only the Owners have an interest in the property ‘upon which’ the dams are located, and only they have a duty to repair or reconstruct the dams pursuant to the Act. The County has only an easement interest in the roads on top of the dams, and it is obligated to maintain only the roads pursuant to its 2005 resolution.”

In a footnote, the panel observed that “Under the NRC’s and the trial court’s reasoning, a nonprofit group that owns an easement for a hiking path on top of a dam would be considered an ‘owner’ of the dam pursuant to the Act and therefore would be responsible for maintaining the entire dam. This strikes us as an unjust and absurd result.”

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April 17

Criminal — Murder, Gang Enhancement/Evidence

Angel Luis Garcia-Berrios v. State of Indiana

19A-CR-02405

An East Chicago man could not convince the Indiana Court of Appeals on April 17 that he shouldn’t be found guilty of murder for his involvement in a gang-related killing.

One night in early 2016, Angel Garcia-Berrios, Rolando Manuel Leal Jr., and Rito Maciel Jr., were together when Maciel received a message from a man Garcia-Berrios didn’t like, Thaddeus Rodriguez, Jr.

The three men began driving around as Maciel continued to speak with Rodriguez, and eventually they stopped the car near where Rodriguez said he was located. When Rodriguez appeared and was talking to a neighbor outside an apartment, both Garcia-Berrios and Leal ran out of the car toward Rodriguez and started shooting. Rodriguez was killed, and the bystander was shot multiple times.

Garcia-Berrios was eventually charged with murder, Level 5 felony battery by means of a deadly weapon and Level 6 felony criminal gang activity, and an information was filed alleging a criminal gang enhancement.

During trial and on redirect examination, a detective was asked why certain individuals had been eliminated as suspects in the case, and the detective explained that he had been in possession of a recorded conversation between Maciel and Leal. In the recording, the detective noted that Leal said “that he and a person by the name of Angel were at the scene, at the Thaddeus Rodriguez homicide.”

The jury ultimately found Garcia-Berrios guilty of murder, battery by means of deadly weapon and criminal gang activity, as well as the allegations in the criminal gang enhancement. He was sentenced to 60 years for murder, enhanced by 60 years, plus three years for the battery conviction, to be served concurrently with the murder sentence. However, no judgment was entered on his criminal gang activity count.

Garcia-Berrios appealed, arguing that the trial court improperly admitted a portion of the detective’s testimony and that there was insufficient evidence to support the criminal gang enhancement.

But in affirming the Lake Superior trial court, the Indiana Court of Appeals first noted that the detective’s limited testimony on redirect examination did not make a fair trial impossible or result in fundamental error.

“To the extent Garcia-Berrios refers to his right to confrontation and asserts fundamental error, we note the fundamental error exception is extremely narrow and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process,” Judge Elaine Brown wrote for the appellate court. “The error must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. This exception is available only in egregious circumstances.

“Defense counsel opened the door to the challenged portion of Detective (Stuart) Hinson’s testimony. The trial court could recognize a viable reason why Garcia-Berrios’s defense counsel wished to question Detective Hinson about eliminating other suspects even if the questioning opened the door to the challenged portion of his testimony,” the appellate court concluded.

Additionally, the panel found that the state presented sufficient probative evidence that Garcia-Berrios was a member of a criminal gang while committing the offenses and committed the felony offenses in affiliation with a criminal gang.

The case is Angel Luis Garcia-Berrios v. State of Indiana, 19A-CR-02405.•