author: Najam, Judge.

text:
    Joseph BUDNER, Appellant-Petitioner, v. INCORPORATED TOWN OF NORTH JUDSON, Indiana, Appellee-Respondent.
    Court of Appeals Case No. 18A-MI-984
    Court of Appeals of Indiana.
    FILED October 4, 2018
    Attorney for Appellant: Edward J. Merchant, Ruckelshaus Kautzman Blackwell & Bemis, LLP, Indianapolis, Indiana
    Attorney for Appellee: Justin A. Schramm, Schramm Law Group, P.C., Winamac, Indiana
   Najam, Judge.

Statement of the Case

[1] Joseph Budner appeals the trial court's order dismissing his petition for judicial review, which he had filed following the termination of his job as a deputy Town Marshal for the North Judson Police Department ("NJPD"). Budner presents a single issue for our review, namely, whether the trial court erred when it granted the Town of North Judson's ("the Town") motion to dismiss under Trial Rule 12(B)(6) and denied him a hearing to which he was entitled under Indiana Code Section 36-8-3-4. We reverse and remand for further proceedings.

Facts and Procedural History

[2] In late April 2017, Budner, a full-time deputy Town Marshal for the NJPD, had a medical condition that required him to take leave from his job for several weeks. On July 17, when Budner had not returned to his job, the NJPD Town Marshal, Kelly Fisher, wrote Budner a letter stating in relevant part as follows:

This letter serves as notice that your twelve (12) workweeks of leave have been expended as of July 17, 2017, as your FMLA [ (Family and Medical Leave Act) ] leave was initiated on April 24, 2017. As you have been a valuable member of our police department for a number of years prior to your leave of absence under the federal FMLA, the Town of North Judson will give you until July 31, 2017, to present the Clerk-Treasurer of the Town of North Judson with a letter from your treating physician that you are medically cleared to return to full, active employment, without any physical restrictions or limitations that would hamper your ability to perform the essential functions of your job as a police officer for the Incorporated Town of North Judson Police Department. Failure to deliver this medical clearance will result in our having to release you from employment with our police department, as the Town will have to hire a replacement due to staffing and safety concerns.

Appellee's App. Vol. II at 2. Budner did not respond to that letter, and on August 22, Marshal Fisher wrote Budner another letter stating in relevant part as follows:

As we have still not received a letter from your treating physician indicating the above-mentioned criteria, and as an additional six (6) weeks have elapsed since my last letter, we are no longer able to hold your position with the Town of North Judson Police Department, and as of the end of the workday on August 25, 2017, we must release you from your current employment.

Id. at 3.

[3] On August 28, Budner, by counsel, wrote a letter to the NJPD requesting a hearing regarding his discharge pursuant to Indiana Code Section 36-8-3-4. After the NJPD denied that request, Budner filed a petition for judicial review naming the Town as the respondent. The Town moved to dismiss Budner's petition under Trial Rule 12(B)(6) alleging in relevant part that Budner was not entitled to a hearing. The trial court dismissed Budner's petition following a hearing on the Town's motion. This appeal ensued.

Discussion and Decision

[4] Budner contends that the trial court erred when it dismissed his petition for judicial review. The standard of review on appeal of a trial court's grant of a motion to dismiss for the failure to state a claim is de novo and requires no deference to the trial court's decision. Bellows v. Bd. of Comm'rs of Cty. of Elkhart , 926 N.E.2d 96, 110 (Ind. Ct. App. 2010). The grant or denial of a motion to dismiss turns only on the legal sufficiency of the claim and does not require determinations of fact. Id. " 'A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.' " Id. (quoting Lei Shi v. Cecilia Yi , 921 N.E.2d 31, 36 (Ind. Ct. App. 2010) ).

[5] Indiana Code Section 36-5-7-6(c) (2018) provides in relevant part that a town marshal

may dismiss a deputy marshal at any time. However, a deputy marshal who has been employed by the town for more than six (6) months after completing the minimum basic training requirements[ ]... may be dismissed only if the procedure prescribed by section 3 of this chapter is followed.

[6] Indiana Code Section 36-5-7-3 provides in relevant part that the town marshal

serves at the pleasure of the town legislative body. However, before terminating or suspending a marshal who has been employed by the town for more than six (6) months ..., the legislative body must conduct the disciplinary removal and appeals procedure prescribed by I[.]C[. §] 36-8 for city fire and police departments.

[7] Indiana Code Section 36-8-3-4 ("the statute") provides in relevant part as follows:

(a) This section also applies to all towns and townships that have full-time, paid police or fire departments. For purposes of this section, the appropriate appointing authority of a town or township is considered the safety board of a town or township....
(b) ... Except as provided in subsection (n), a member may be disciplined by demotion, dismissal, reprimand, forfeiture, or suspension upon either:
(1) conviction in any court of any crime; or
(2) a finding and decision of the safety board that the member has been or is guilty of any one (1) or more of the following:
(A) Neglect of duty.
(B) A violation of rules.
(C) Neglect or disobedience of orders.
(D) Incapacity .
(E) Absence without leave .
(F) Immoral conduct.
(G) Conduct injurious to the public peace or welfare.
(H) Conduct unbecoming an officer.
(I) Another breach of discipline....
(c) Before a member of a police or fire department may be ... dismissed, the safety board shall offer the member an opportunity for a hearing . If a member desires a hearing, the member must request the hearing not more than five (5) days after the notice of the ... dismissal.... The hearing conducted under this subsection shall be held not more than thirty (30) days after the hearing is requested by the member, unless a later date is mutually agreed upon by the parties.

(Emphases added).

[8] Here, the parties dispute whether Budner was entitled to a hearing under the statute. Budner contends that, because he requested a hearing under the statute within five days of his termination notice, a hearing was mandatory. The Town responds that the statute only applies when an officer is terminated "for disciplinary reasons," which is not the case here. Appellee's Br. at 7. We agree with Budner.

[9] First, in the Town's August 22, 2017, letter to Budner, the Town stated the reasons for the termination of his employment as follows:

I want to call your attention to the fact that I had asked for a written letter from your treating physician, indicating that you would able to return to full, active employment, by July 26, 2017, without physical restrictions or limitations that would hamper your ability to perform the essential functions of your job as a police officer for the Incorporated Town of North Judson Police Department. As we have still not received a letter from your treating physician indicating the above-mentioned criteria, and as an additional six (6) weeks have elapsed since my last letter, we are no longer able to hold your position with the Town of North Judson Police Department, and as of the end of the workday on August 25, 2017, we must release you from your current employment.

Appellee's App. Vol. II at 3. Thus, the Town terminated Budner's employment because of his incapacity and absence without leave, which are both explicitly delineated in subsection (b)(2) of the statute. We hold that, under the plain language of the statute, Budner was entitled to a hearing.

[10] Second, this court has previously rejected a town council's argument that the statute applies only to a town marshal's termination for disciplinary reasons. In Cook v. Atlanta, Indiana Town Council , the Atlanta town council terminated the employment of Cook, the town marshal, after he had attempted to file criminal charges against a member of the town council. 956 N.E.2d 1176, 1177 (Ind. Ct. App. 2011). Cook requested a hearing under the statute, which was denied, and the trial court dismissed his petition for judicial review. On appeal, the parties disputed in relevant part whether the statute applied to Cook's termination of employment given that " '[t]here were no charges of misconduct alleged against him' " and he was not removed "for 'cause.' " Id. at 1179. We held that, based on the record and applicable statutory provisions, the Atlanta town council "was not free to terminate Cook's employment as its town marshal without conducting the removal and appeals procedure prescribed by Ind. Code [Art.] 36-8 and adhering to the requirements of subsections (b) through (l) of Ind. Code § 36-8-3-4." Id. at 1181. Accordingly, we reversed and remanded for further proceedings.

[11] Here, given the plain language of Indiana Code Section 36-8-3-4 and our opinion in Cook , we hold that Budner was entitled to a hearing regarding the termination of his employment. We reverse the trial court's dismissal of Budner's petition for judicial review for failure to state a claim upon which relief can be granted and remand for further proceedings.

[12] Reversed and remanded for further proceedings.

Crone, J., and Pyle, J., concur.

      There is no dispute that, at the time his employment was terminated, Budner had been employed as a deputy town marshal for at least six months after completing the minimum basic training requirements.

      The Town does not assert any challenge to the trial court's subject matter jurisdiction on cross appeal. To the extent the Town suggests that the trial court lacked jurisdiction because Budner's petition presents a federal question under FMLA, the Town is incorrect. Our Supreme Court has observed that, under 29 U.S.C. § 2617, an employee alleging an employer's interference with FMLA rights or a retaliatory discharge may bring his suit either in federal or state court. Gary Cmty. Sch. Corp. v. Powell , 906 N.E.2d 823, 828 (Ind. 2009). Thus, if Budner's petition is deemed to present an FMLA claim, the trial court has jurisdiction to consider that claim on remand.

      Whether Budner is entitled to any back pay depends on whether the safety board finds in his favor following a hearing and the result of any appeals that may follow that hearing. See I.C. § 36-8-3-4(j).


source: Caselaw Access Project

author: Riley, Judge.

license: Public Domain

text:
    PROGRESSIVE SOUTHEASTERN INSURANCE CO., Appellant-Plaintiff, v. Gregory SMITH, et al., Appellee-Defendant.
    Court of Appeals Case No. 18A-PL-312
    Court of Appeals of Indiana.
    Filed October 10, 2018
    Attorneys for Appellant: Margaret M. Christensen, Karl L. Mulvaney, Bingham Greenebaum Doll, LLP, Indianapolis, Indiana
    Attorneys for Appellee: Ann Marie Waldron, Indianapolis, Indiana, Michael E. Simmons, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Progressive Southeastern Insurance Co. (Progressive), appeals the trial court's summary judgment in favor of Appellees-Defendants, Gregory Smith (Smith), Nolan Clayton (Clayton), Erie Insurance Group, Brackett Restaurant Group LLC d/b/a Stacked Pickle, and Allstate Insurance Company (Allstate), on Progressive's Complaint for Declaratory Judgment requesting a determination that, according to the terms of its insurance policy with Smith, Smith was not entitled to coverage under the policy's uninsured-motorist provisions for injuries sustained during an accident while being a passenger in his vehicle.

[2] We reverse.

ISSUE

[3] Progressive presents two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred by concluding that Smith is entitled to receive payment from Progressive for his bodily injury under his insurance policy's uninsured motorist (UM) coverage, where his injury arose from a single-vehicle accident involving his insured vehicle and the driver's liability insurance covered Smith's bodily injury damages.

FACTS AND PROCEDURAL HISTORY

[4] On February 18, 2016, Smith and Clayton attended a company event in Marion County, Indiana. They left the event together and Smith gave Clayton permission to drive Smith's pick-up truck. Clayton lost control over the vehicle and ran into a tree, seriously injuring Smith. No other vehicles were involved in the accident.

[5] At the time of the incident, Progressive insured Smith under a policy which provided coverage for liability, medical payments, UM coverage, coverage for damage to the insured's vehicle, and roadside-assistance coverage. Accordingly, Progressive paid Smith's vehicular damages in the amount of $10,937.71 and the medical payments coverage limits of $5,000. Smith also brought a negligence claim against Clayton, who was insured by Allstate. Allstate eventually settled out of court with Smith.

[6] On January 19, 2017, Progressive filed its Complaint for Declaratory Judgment against Smith, requesting a determination that, according to the terms of his insurance policy, Smith was not entitled to coverage under the policy's UM provisions or bodily injury provisions for injuries sustained in an accident in his truck and that Progressive was not required to defend or indemnify Clayton, as a permissive driver of the truck.

[7] On April 27, 2017, Smith submitted a motion for summary judgment and designation of evidence, seeking damages for bodily injury under the policy's UM coverage. In his motion, Smith argued that, even though his truck was covered under the policy, it was an uninsured motor vehicle pursuant to the provisions of the policy. On May 23, 2017, Progressive filed its response to Smith's motion and filed its own motion for summary judgment with designation of evidence, arguing that Smith was not entitled to UM coverage under the policy. On December 14, 2017, without a hearing, the trial court signed Smith's proposed findings and summarily granted judgment to him and against Progressive. On January 16, 2018, Progressive filed its motion to correct error, which the trial court denied the following day.

[8] Progressive now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[9] In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley , 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied . Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. A fact is 'material' for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff's cause of action; a factual issue is 'genuine' if the trier of fact is required to resolve an opposing party's different version of the underlying facts. Ind. Farmers Mut. Ins. Group v. Blaskie , 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper.

First Farmers Bank & Trust Co. , 891 N.E.2d at 607. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

[10] We observe that, in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc. , 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight into the trial court's rationale for its review and facilitate appellate review. Id.

[11] Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo . State Farm Mut. Auto Ins. Co. v. Leybman , 777 N.E.2d 763, 765 (Ind. Ct. App. 2002), trans. denied . Provisions of insurance contracts are subject to the same rules of construction as other contracts; we interpret an insurance policy with the goal of ascertaining and enforcing the parties' intent as revealed by the insurance contract. Westfield Cos. v. Knapp , 804 N.E.2d 1270, 1274 (Ind. Ct. App. 2004), reh'g denied, trans. denied . In accomplishing this goal, we must construe the insurance policy as a whole, rather than considering individual words, phrases or paragraphs. Id. "Although some 'special rules of construction of insurance contracts have been developed due to the disparity in bargaining power between insurers and insureds, if a contract is clear and unambiguous, the language therein must be given its plain meaning.' " Beam v. Wausau Ins. Co. , 765 N.E.2d 524, 528 (Ind. 2002). As a result, "[p]olicy terms are interpreted from the perspective of an ordinary policyholder of average intelligence," and if reasonably intelligent persons may honestly differ as to the meaning of the policy language, the policy is ambiguous. Burkett v. Am. Family Ins. Grp. , 737 N.E.2d 447, 452 (Ind. Ct. App. 2000). " 'Where there is ambiguity, insurance policies are to be construed strictly against the insurer' and the policy language is viewed from the standpoint of the insured." Bosecker v. Westfield Ins. Co. , 724 N.E.2d 241, 244 (Ind. 2000) (quoting Am. States Ins. Co. v. Kiger , 662 N.E.2d 945, 947 (Ind. 1996) ). "When construing the meaning of an insurance policy, " 'an ambiguity is not affirmatively established simply because a controversy exists and one party asserts an interpretation contrary to that asserted by the opposing party.' " Id. (quoting Auto. Underwriters, Inc. v. Hitch , 169 Ind.App. 453, 349 N.E.2d 271, 275 (1976) ). One way of determining whether reasonable persons might differ is to see if the policy language is susceptible to more than one interpretation. Westfield Cos. , 804 N.E.2d at 1274.

II. Analysis

[12] Progressive contends that the trial court erred in issuing summary judgment in favor of Smith because Smith's vehicle was not an uninsured motor vehicle as defined under the UM coverage of the policy and Smith's bodily injuries were covered by Clayton's liability insurer. Progressive posits that because Smith's Progressive policy covered damages to Smith's truck and his medical payments and Clayton's insurer tendered its full policy limits to Smith to answer for the damages Clayton caused, Smith cannot recover under an uninsured motorist claim as coverage is available to him.

[13] Indiana law defines an 'uninsured motor vehicle' as 'a motor vehicle without liability insurance' or otherwise not in compliance with the financial responsibility requirements of Indiana law. Ind. Code § 27-7-5-4(a). Thus, "to recover on an uninsured motorist claim, the insured must prove that there is no policy applicable to the vehicle driven by the tortfeasor." Matteson v. Citizens Ins. Co. of Am. , 844 N.E.2d 188, 192 (Ind. Ct. App. 2006). The purpose of Indiana's statutory requirement that insurers make UM coverage available is to ensure that "every insured -within the definition of that term in the policy-[is] entitled to recover uninsured motorist benefits for the damages he/she would have recovered from the offending motorist if that person had maintained a policy of liability insurance." Ind. Lumbermens Mut. Ins. Co. v. Vincel , 452 N.E.2d 418, 426 (Ind. Ct. App. 1983). In other words, "[t]he purpose of the Financial Responsibility Act is to assure a source of compensation for victims harmed by the negligent operation of motor vehicles." Northern Ind. Pub. Serv. Co. v. Bloom , 847 N.E.2d 175, 182 (Ind. 2006).

[14] Part III of Progressive's policy, which provides the UM coverage, specifies in pertinent part:

PART III - UNINSURED/UNDERINSURED MOTORIST COVERAGE
INSURING AGREEMENT - UNINSURED/UNDERINSURED MOTORIST BODILY INJURY COVERAGE
If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury :
Sustained by an insured person ;
Caused by an accident; and
Arising out of the ownership, maintenance or use of an uninsured motor vehicle or underinsured motor vehicle .
* * * *
An "uninsured motor vehicle " does not include any vehicle or equipment:
a. owned by you , a relative , or a rated resident or furnished or available for the regular use of you , a relative , or a rated resident ; [or]
* * * *
g. that is a covered auto

(Appellant's App. Vol. III, pp. 109-11).

[15] Accordingly, the unambiguous language of the policy does not extend UM coverage to Smith's bodily injuries sustained in an accident caused by his own truck because Smith's truck is a covered auto as defined by the policy, and thus not included in the uninsured motor vehicle definition which would trigger coverage of the policy. In other words, no vehicle that Smith owns or insures can ever be an "uninsured motor vehicle" for UM coverage purpose. "[A]n insurance policy that is unambiguous must be enforced according to its terms, even those terms that limit an insurer's liability." Empire Fire v. Frierson , 49 N.E.3d 1075, 1079 (Ind. Ct. App. 2016). Insurance companies are free to limit their liability in a manner not inconsistent with public policy as reflected by case or statutory law. Evans v. Nat'l Life Acc. Ins. Co. , 467 N.E.2d 1216, 1219 (Ind. Ct. App. 1984), reh'g denied .

[16] If a plainly expressed insurance policy is not contrary to public policy, it is entitled to construction and enforcement as expressed. Id. Our interpretation today is consistent with this court's interpretation of similar policy provisions excluding from the scope of UM coverage vehicles owned by the insured and not identified in the policy. See, e.g., Jones v. State Farm Mut. Ins. Co. , 635 N.E.2d 200, 202 (Ind. Ct. App. 1994) (rejecting a claim for underinsured motorist coverage where the policy at issue precluded the insured vehicle from the definition of "underinsured motor vehicle"), trans. denied . It is also consistent with the Indiana Financial Responsibility Act which requires car owners to purchase liability insurance for injuries sustained by others, but does not require such insurance for personal injury sustained by the owner himself. See Allstate Ins. Co. v. Boles , 481 N.E.2d 1096, 1098 (Ind. 1985).

[17] Smith now attempts to insert an ambiguity in the policy by referring to exclusion 1.b of Progressive's UM coverage, which provides

EXCLUSIONS - READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE WILL NOT BE AFFORDED UNDER THIS PART III.
Coverage under this Part III will not apply:
To bodily injury sustained by any person while using or occupying:
* * * *
A motor vehicle that is owned by or available for the regular use of you , a relative , or a rated resident . This exclusion does not apply to a covered auto that is insured under this Part III.

(Appellant's App. Vol. III, pp. 109-11). Smith maintains that by exempting the covered auto from the exclusion of the UM coverage, his injuries should fall within the scope of coverage. However, "[a]n exception to an exclusion cannot create coverage where none exists. Exclusion clauses do not grant or enlarge coverage; rather, they are limitations on the insuring clause." Hartford Cas. Ins. Co. v. Evansville Vanderburgh Pub. Library , 860 N.E.2d 636, 646 (Ind. Ct. App. 2007), trans. denied .

[18] In a similar effort to trigger the UM coverage of Progressive's policy, Smith claims that Progressive denied payment for Smith's injuries under the liability coverage portion of the policy and thus rendered his claim subject to the UM coverage of the policy. Specifically, Smith points to correspondence between Smith's counsel's office and a Progressive claims adjuster. On June 30, 2016, Smith's counsel's office contacted Progressive's claim adjuster, asking

Thanks for your assistance in this matter thus far - I have been unable to confirm fax/and or email addresses for the liability adjuster. Could you confirm their contact information? I need to provide them with a copy of the suit filed as well as all medical bills now in our possession.

(Appellant's App. Vol. II, p. 150). That same day, Progressive's claims adjuster replied:

To my knowledge, there is no bodily injury on this claim as it is a single vehicle accident. There is $5,000.00 of medical payments available and once that is exhausted health insurance will pick up. The file owner is [ ] and she handled the collision portion.

(Appellant's App. Vol. II, p. 150). The following day, July 1, 2016, Smith's counsel's office responded, in part:

It is our understanding that Progressive has not opened a bodily injury or uninsured/underinsured motorist claim in this matter, despite our request that one be established. We respect that this is Progressive' [sic] position and request that the appropriate adjuster confirm receipt of the above documents. To date, we have been unable to establish fax and/or email contact with the appropriate party and we would request that this information be forwarded to appropriate party within Progressive.

(Appellant's App. Vol. II, p. 149). Within an hour, Progressive replied with the requested contact information.

[19] Based on this correspondence, coupled with the filing of the Complaint for Declaratory Judgment, Smith observes that it "clearly evidences Progressive's denial of coverage for the bodily injury claims of Smith[.]" (Smith's Br. p. 18). Added to this, Smith claims that Progressive stipulated to its denial of coverage during a hearing on a motion for protective order on September 9, 2017.

[20] While we agree with Smith that "a tortfeasor vehicle that had its coverage denied is an uninsured motorist vehicle for the purpose of the Financial Responsibility Act," at no point did Progressive concede that Smith had submitted a claim that was denied. Indiana Ins. Guar. Assoc. v. Smith , 82 N.E.3d 383, 385 (Ind. Ct. App. 2017). The correspondence relied upon by Smith to support his argument merely demonstrates that Progressive's claims adjuster stated Progressive's position that the policy does not provide bodily injury coverage because it was a single vehicle accident. Instead of denying coverage, Progressive applied the policy and paid Smith $5,000 in medical payment, and also covered the repair of his truck under the collision provisions of the policy.

[21] Moreover, recent case law confirms that UM coverage is not triggered when statutorily-required liability insurance coverage is available. In both State Farm Mut. Auto. Ins. Co. v. Leybman , 777 N.E.2d 763, 764 (Ind. Ct. App. 2002), trans. denied and Matteson v. Citizens Ins. Co. of America , 844 N.E.2d 188, 194 (Ind. Ct. App. 2006), this court concluded that UM coverage is not triggered when another policy is available to pay the policy limits.

[22] In State Farm Mut. Auto. Ins. Co. v. Leybman , 777 N.E.2d 763, 764 (Ind. Ct. App. 2002), trans. denied , James Gaddy was driving a vehicle owned by his father, John Gaddy, without his father's permission. Although James did not have insurance, John maintained insurance on the vehicle through GRE Insurance Company (GRE). Id. The policy did not list James as an insured driver. Id. In addition, the GRE policy provided coverage for the permissive use of the vehicle but not for any nonpermissive use. Id. GRE offered the policy limits to the Leybmans to settle the case. Id. The settlement was contingent on the Leybmans executing a release of liability of both John and James. Id. GRE's offer had not been withdrawn or accepted when the Leybmans filed a declaratory judgment action against their insurer, State Farm, requesting the $50,000 limits of their policy's uninsured motorist provision. Id. The trial court concluded that GRE's settlement offer to pay John's policy limits of $25,000 did not constitute insurance coverage for the "ownership, maintenance or use" of the vehicle at the time of the accident. Id. On appeal, we held

Through GRE's offer of $25,000 policy limits, James Gaddy, can be made to respond to the damages resulting from the accident. This offer of the policy limits satisfies the minimum requirements prescribed by the [F]inancial [R]esponsibility [A]ct. The insurer's offer of the policy limits, as a result, constituted coverage of the accident. Because insurance was available for the offending party's act, there was no need to resort to Leybman's uninsured motorist policy.

Id. at 766.

[23] In Matteson v. Citizens Ins. Co. of America , 844 N.E.2d 188, 194 (Ind. Ct. App. 2006), Matteson's husband collided with a semi-truck and a policy provided by the commercial carrier did not name the specific truck or driver under the policy. Matteson sought UM coverage under her own policy and attempted to distinguish Leybman on the ground that Leybman's policy insured the specific vehicle driven by the tortfeasor. Id. This court disagreed, noting "even though the [insurance] policy did not specifically list the vehicle, [its owner, or the driver], the fact that [the insurance company] paid out its policy limits to Matteson indicates that the vehicle was insured and the purpose of the [UM] statute had been met." Id.

[24] Likewise here, Smith's policy covered damages to Smith's truck and his medical payments and Clayton's insurer tendered its full policy limits to Smith to answer for the damages Clayton caused. Accordingly, in line with Leybman and Matteson , as the policy limits satisfy the minimum requirements of the Financial Responsibility Act, coverage was available and Smith cannot claim under the UM provisions of his policy.

[25] Accordingly, as Progressive's policy unambiguously excluded Smith's truck from UM coverage and the policy reimbursed Smith for the damage to his vehicle and his medical payments pursuant to the policy's requirements, the trial court incorrectly applied the law to the facts. See First Farmers Bank & Trust Co. , 891 N.E.2d at 607. Therefore, we reverse the trial court's grant of summary judgment in favor of Smith.

CONCLUSION

[26] Based on the foregoing, we hold that the trial court erred by concluding that Smith is entitled to receive payment from Progressive for his bodily injury under his insurance policy's UM coverage, where his injury arose from a single-vehicle accident involving his insured vehicle and the driver's liability insurance covered Smith's bodily injury damages.

[27] Reversed.

[28] Vaidik, C.J. and Kirsch, J. concur

      We held oral argument in this cause on September 13, 2018 in the Court of Appeals Courtroom in Indianapolis, Indiana. We thank counsel for their insightful advocacy.


author: Crone, Judge.

text:
    Tervarus L. GARY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-1101
    Court of Appeals of Indiana.
    FILED October 10, 2018
    Attorney for Appellant: Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Evan Matthew Comer, Deputy Attorney General, Indianapolis, Indiana
   Crone, Judge.

Case Summary

[1] Tervarus L. Gary appeals the two-year sentence imposed by the trial court following his guilty plea to class D felony nonsupport of a dependent child. He asserts that his sentence is inappropriate in light of the nature of the offense and his character. He further asserts that the trial court fundamentally erred in allowing him to appear for his sentencing hearing via video conference without first obtaining a written waiver of his right to be present. Concluding that Gary has not met his burden to show that his sentence is inappropriate or that the trial court committed fundamental error, we affirm.

Facts and Procedural History

[2] Gary has a daughter, T.R., who was born on September 28, 2009. After paternity was established in 2010, a child support order was entered. In short, between May 1, 2014, and April 4, 2018, Gary paid nothing toward his child support obligation. Specifically, in April 2014, the trial court issued a writ of attachment against Gary after he failed to appear at a hearing and show proof of reimbursement to T.R.'s mother for mediation fees. At this time, he was ordered to pay weekly child support of $31 as well as $9 per week toward arrearages. In July 2015, Gary was found in contempt for failure to pay. In July 2016, Gary was again found in contempt for failure to pay and was ordered committed to the Elkhart County Correctional Facility ("ECCF"). However, the trial court suspended the commitment on the condition that Gary missed no payments between the contempt hearing and the next hearing set for August 30, 2016. Gary failed to appear for the hearing, and a body attachment was entered. In October 2016, the trial court ordered Gary into civil commitment to ECCF with a recommendation that he participate in Elkhart County Community Corrections ("ECCC"). Gary's child support arrearage at that time totaled $6808. Gary began work release through ECCC in November 2016. By December 2016, ECCC requested a warrant against Gary due to unacceptable conduct. As of December 2017, Gary's child support arrearage exceeded $8000. Gary was eventually terminated from work release in February 2018 after causing numerous disciplinary issues, and he was transferred to the Elkhart County Jail.

[3] The State charged Gary with class D felony nonsupport of a dependent child alleging that between May 1 and August 31, 2014, he failed to pay any support for T.R. The trial court held a change of plea hearing on March 7, 2018, and Gary appeared via video conference and pled guilty to his crime. On April 4, 2018, the trial court held a sentencing hearing. Gary again appeared via video conference. The court imposed a two-year sentence minus earned credit time. This appeal ensued.

Discussion and Decision

Section 1 - Gary has not met his burden to demonstrate that his sentence is inappropriate.

[4] Gary claims that his two-year sentence is inappropriate and invites this Court to reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence "is inappropriate in light of the nature of the offense and the character of the offender." The defendant bears the burden to persuade this Court that his or her sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment "should receive considerable deference." Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). The principal role of appellate review is to attempt to "leaven the outliers." Id. at 1225. Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case." Id. at 1224. The question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate." Fonner v. State , 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).

[5] Regarding the nature of the offense, the advisory sentence is the starting point that the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State , 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a class D felony is between six months and three years, with an advisory sentence of one and one-half years. Ind. Code § 35-50-2-7(a). Here, the two-year sentence imposed by the trial court is slightly above the advisory but well below the maximum allowable by statute.

[6] As for the nature of the offense, although Gary pled guilty to failing to support T.R. between May 1 and August 31, 2014, his nonsupport of his daughter is not simply an isolated occurrence confined to the current charge. His failure to pay has spanned over four years and has resulted in a child support arrearage in excess of $8000. Gary has not persuaded us that sentence revision is warranted based on the nature of his offense.

[7] Regarding his character, we note that the character of the offender is found in what we learn of the offender's life and conduct. Croy v. State , 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in that assessment is a review of an offender's criminal history. Garcia v. State , 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Our review of the transcript of the sentencing hearing reveals that the trial court tailored an appropriate sentence based on Gary's criminal history and his behavior during work release, and we think rightfully so. At the relatively young age of thirty-one, Gary has an extensive criminal history including eleven misdemeanor and two felony convictions. Indeed, as recently as 2017, Gary was convicted of level 6 felony possession of methamphetamine. The trial court has given him the past benefit of participating in work release through community corrections so that he could support his child, but rather than support T.R., he chose to start "raising hell" and was terminated from the program. Appellant's App. Vol. 2 at 47. Not only does this behavior reflect negatively on Gary's character, but it also resulted in him no longer being a candidate for work release. Under the circumstances presented, Gary has not met his burden to demonstrate that the two-year sentence imposed by the trial court is inappropriate in light of the nature of the offense and his character.

Section 2 - Gary has not met his burden to demonstrate fundamental error.

[8] Gary next contends that the trial court erred in allowing him to appear for his sentencing hearing via video conference without first obtaining a written waiver of his right to be present in person. Gary concedes that he did not object to this procedure below. Thus, he argues that the error was fundamental.

[9] "Neither the United States Constitution nor the Indiana Constitution explicitly or implicitly secure[s] to a defendant the right to be present at sentencing." Cleff v. State , 565 N.E.2d 1089, 1091 (Ind. Ct. App. 1991), trans. denied . Rather, this nonconstitutional right is derived from Indiana Code Section 35-38-1-4(a), which provides that criminal defendants "must be personally present at the time sentence is pronounced." Our supreme court has determined that personal presence in this context means a "defendant's actual physical presence" at sentencing. Hawkins v. State , 982 N.E.2d 997, 1002 (Ind. 2013).

[10] However, Indiana Administrative Rule 14(A)(2)(c) provides that a trial court "may use audio visual telecommunication to conduct ... [s]entencing hearings ... when the defendant has given a written waiver of his or her right to be present in person and the prosecution has consented." Accordingly, "a trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution." Hawkins , 982 N.E.2d at 1002-03.

[11] In Hawkins , the defendant appeared at the sentencing hearing by video conference without expressly waiving his right to be present in person. Like Gary, the defendant in Hawkins failed to object. Because the supreme court was remanding for a new trial on other grounds, the court specifically stated, "we need not decide the impact of Hawkins's failure to contemporaneously object or weigh the impact of denying a defendant the right to be physically present for sentencing under fundamental error analysis." Id. at 1003. Still, the court cautioned:

Going forward, though, we would expect to see what our rules require reflected in the record, and would urge trial courts to be cautious of using procedures-however efficient they may be-without following all of the steps required to implement those procedures in a way that is fair to all involved.

Id. As this warning was not heeded in the instant case, we must determine whether the trial court's failure to obtain a written waiver from Gary or have him physically present at sentencing constituted fundamental error.

[12] Fundamental error is an extremely narrow exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal. Durden v. State , 99 N.E.3d 645, 652 (Ind. 2018). To establish fundamental error, the defendant faces the heavy burden of showing that the alleged error was so prejudicial to his rights as to make a fair trial impossible. Ryan v. State , 9 N.E.3d 663, 668 (Ind. 2014). The defendant must show that, under the circumstances, the error "constitute[d] clearly blatant violations of basic and elementary principles of due process" and "present[ed] an undeniable and substantial potential for harm." Id. (quoting Benson v. State , 762 N.E.2d 748, 756 (Ind. 2002) ).

[13] Gary has not met the heavy burden of establishing fundamental error. His entire fundamental error argument is as follows:

In the present case, Gary's due process rights under both the Fourteenth Amendment of the U.S. Constitution and Article I, Section 12 of the Indiana Constitution, as well as precepts of fundamental fairness grounded in both constitutions were violated when he was sentenced by video hearing when he had not waived his right to be physically present and the state had not consented to any waiver of right to be present.

Appellant's Br. at 13. As we stated above, the right to be physically present during sentencing is not a constitutional right, and from a basic due process standpoint, the right to be physically present during sentencing has long been held not to be on par with the right to be physically present during the guilt-determination phase. E.g., Cleff , 565 N.E.2d at 1091. While the trial court failed to obtain a written waiver for the sentencing hearing, we conclude that such error did not run afoul of underlying basic due process itself.

[14] In essence, Gary's argument is that he would have had a winnable objection to the sentencing had his trial counsel in fact objected. But fundamental error requires more than just showing a winnable objection. The record establishes that Gary was represented by counsel and had more than an adequate opportunity to be both seen and heard at the sentencing hearing and to present his argument, albeit via video conference. Unlike the dissent, we will not make the leap from our supreme court's careful cautioning in Hawkins to the conclusion that all irregularities are per se fundamental errors. Although we disapprove of the trial court's failure to follow proper procedure, we cannot say that Gary's sentencing via video conference absent a proper written waiver constituted a clearly blatant violation of basic and elementary principles of due process. Accordingly, Gary has not carried his burden to show fundamental error on appeal.

[15] Affirmed.

Najam, J., concurs.

Pyle, J., dissents with opinion.

[16] I respectfully dissent from my colleagues' opinion. As an initial matter, I believe that the issue of Gary's lack of physical presence at the sentencing hearing should first be addressed. There is a lengthy history involving the common law and statutory right requiring a defendant's actual physical presence at a sentencing hearing. The history is so compelling that I believe a trial court may commit fundamental error when a sentencing hearing is conducted without the defendant being physically present.

[17] My colleagues ably point out that fundamental error is a substantial, blatant violation of due process that also exposes the defendant to undeniable harm. Hall v. State , 937 N.E.2d 911, 913 (Ind. Ct. App. 2010). However, in my mind, the question is, can the violation of a long established common law and statutory right provide the basis for fundamental error?

[18] Indiana was admitted into the Union as the nineteenth state on December 11, 1816. THE NEW YORK PUBLIC LIBRARY DESK REFERENCE 693 (1989). As early as 1852, a statute was passed requiring defendants to be physically present at sentencing hearings. 2 R.S. 1852, Art. XII sec. 123 p. 378 (J.P. Chapman ed., 1852 ed.). In addition, the United States Supreme Court has taken note of the long established common law tradition requiring a defendant to be "personally present before the court at the time of pronouncing sentence, ...." Ball v. U.S. , 140 U.S. 118, 131, 11 S.Ct. 761, 766, 35 L.Ed 377 (1891). Quoting Justice Scholfield of the Illinois Supreme Court, the Supreme Court listed the important purposes behind the requirement for personal presence at a sentencing hearing as follows:

... that the defendant might be identified by the court as the real party adjudged guilty; that he might have a chance to plead a pardon, or move in arrest of judgment; that he might have an opportunity to say why judgment should not be given against him; and that the example of being brought up for the animadversion of the court and the opening enunciation of punishment might tend to deter others from the commission of similar offenses.

Ball , 140 U.S. at 131, 11 S.Ct. 761 (citing Fielden v. People , 128 Ill 595, 21 N.E. 584 (Ill. 1889) ). Notably, that same year, the Illinois Supreme Court found that failure to have a defendant present "was no ground for reversal in any case." Id. (citing Gannon v. People , 127 Ill 507, 21 N.E. 525 (Ill. 1889) ). However, the Supreme Court concluded that "the great weight of authority is the other way." Id.

[19] Our supreme court has noted that the right of a defendant to be physically present at sentencing is well settled. Hawkins v. State , 982 N.E.2d 997 (Ind. 2013) ; Royal v. State . 272 Ind. 151, 154, 396 N.E.2d 390, 393 (1979). As we have discussed above, this right may be as old as the great State of Indiana. For this reason, I would respectfully submit that a trial court's failure to follow such a well-established law is a blatant violation of basic and elementary principles of due process. In addition, failure to follow this settled law carries a significant risk of prejudice to the defendant; an audio-visual link does not convey the same emotion, meaning, and judicial import as personally appearing in court. Cf. Love v. State , 61 N.E.3d 290 (Ind. Ct. App. 2016) (J. Pyle, dissenting) vacated by Love v. State , 73 N.E.3d 693 (Ind. 2017). I am aware that for many trial courts, use of an audio-visual link may be more efficient and preferable to spending county funds to transport a defendant to court for sentencing. However, the law must be honored. See Hawkins v. State , 982 N.E.2d 997 (Ind. 2013). As a result, I would reverse and remand for a new sentencing hearing at which Gary is personally and physically present.

      The Hawkins court noted that Indiana Code Section 35-38-1-4(a) is written "in such a way that it conveys not only the defendant's right to be present at sentencing, but also his obligation to be present." Hawkins , 982 N.E.2d at 1003 n.4.
      This is why the Administrative Rule turns not just on the defendant's written waiver, but also on the prosecution's consent. Just as the defendant benefits at sentencing from being able to directly view witness demeanor and present personal emotion in his own testimony, so too might the State benefit-in pursuing a higher sentence-from presenting the defendant in person as opposed to a more sterile video conference.
      Id.


author: Brown, Judge.

text:
    Edward Duke BROWN, Appellant-Plaintiff, v. The CITY OF INDIANAPOLIS and the Town of Speedway, Appellees-Defendants.
    Court of Appeals Case No. 18A-CT-715
    Court of Appeals of Indiana.
    FILED October 10, 2018 Publication Ordered October 26, 2018
    Attorneys for Appellant: Danford R. Due, Charles J. Maiers, Due Doyle Fanning & Alderfer, LLP, Indianapolis, Indiana
    Attorney for Appellee Town of Speedway: Joseph M. Hendel, Stephenson Morow & Semler, Indianapolis, Indiana
    Attorney for Appellee City of Indianapolis: Adam S. Willfond, Office of Corporation Counsel, Indianapolis, Indiana
    MEMORANDUM DECISION
   Brown, Judge.

[1] Edward Duke Brown appeals the trial court's entry of summary judgment in favor of the City of Indianapolis ("Indianapolis") and the Town of Speedway ("Speedway") and the denial of his motion to correct error. We affirm.

Facts and Procedural History

[2] On May 25, 2014, Brown attended the Indianapolis 500 at the Indianapolis Motor Speedway ("IMS") with his wife and friends. Brown rode to the race in one of his friend's vehicles, and they parked in someone's yard east of the track and walked westward on the sidewalk adjacent to West 16th Street to the IMS. Following the race and while carrying a backpack, Brown exited the IMS and began to walk eastward on the sidewalk adjacent to 16th Street in order to return to the vehicle. At that time, all lanes of 16th Street were designated as eastbound lanes. At some point, Brown left the sidewalk and started to walk on 16th Street. As he was walking on 16th Street, he fell and was injured. Indianapolis Metropolitan Police Detective Zachary Olson was assigned to traffic detail at 16th Street and Olin Avenue which included attempting to keep traffic flowing and protecting motorists and pedestrians as they passed through the intersection. Detective Olson walked west on 16th Street from his assigned intersection toward the racetrack advising and motioning for pedestrians to move onto the sidewalk on the north side of 16th Street in order to make room for the traffic flow, and when he was returning to his assigned intersection he encountered Brown on the ground and called for an ambulance.

[3] In his complaint as amended, Brown alleged in part that he inadvertently stepped into a pothole and that his fall and injuries were a result of the negligence of Indianapolis and Speedway. Speedway and Indianapolis filed motions for summary judgment together with designated evidence, and Brown filed responses and designated evidence. The parties' designated evidence included, among other materials, portions of the deposition testimony of Brown, Brown's wife, and Detective Olson.

[4] During his deposition, Brown testified that the tip of his shoe made contact with the far side of a chuckhole, his toe became hooked, and he fell back. He indicated that he could give an approximate location where he fell but did not believe he would be able to remember the exact location. He indicated he was proceeding eastbound but did not make it as far as "the viaduct on 16th Street." Appellant's Appendix Volume 3 at 45. Brown indicated that no one specifically told him to walk or not to walk on the street. He testified that the chuckhole was perhaps three inches deep and that he did not remember its width. When asked "[t]raffic was using the eastbound lanes, but the westbound lanes where you were was all pedestrians," he replied "[c]orrect." Appellant's Appendix Volume 2 at 109. In her deposition, when asked about the depth of the pothole, Brown's wife answered "[n]ot very deep. It wasn't like that (indicating). It was more, like, little." Id. at 67. When asked "[h]ow wide was it," she answered "[n]ot very" and "I didn't spend a whole lot of time looking at it. I don't know." Id. When asked if she thought it could damage her car to drive over the pothole, she answered "[n]o. I don't think -- no, it wasn't one of those -- it wasn't a deep one." Id.

[5] During his deposition, Detective Olson testified that his traffic detail "usually consists of trying to keep traffic flowing, protecting the safety of motorists and the pedestrians as they pass through the intersection, and assisting people getting to and from the race." Id. at 73. When asked if pedestrians walk in the street, Detective Olson answered "[t]hey do," and when asked if he could give a proportion of people he believed were on the sidewalk versus the street, he replied "[w]ell, obviously, it's a lot of factors at play, but the majority of people try to stay on the sidewalk. Sometimes the flow is heavy and there are people in the street. It fluctuates." Id. at 115. Detective Olson further testified that he spoke with Brown and observed in Brown what he believed to be signs of intoxication, including glassy and bloodshot eyes and slurred speech. When asked to estimate the number of people "surrounding [him] at that time within let's say 50 yards," Detective Olson answered in part "the best way I could describe it would be is if you were walking through the concourse of a sporting event as it's letting out. I mean the same, more or less, a similar density of people was walking down the sidewalk as would be walking out of an event ... there's still a lot of people at that point." Id. at 116. When asked "[w]ould it be fair to characterize the pedestrian volume as if not shoulder to shoulder, then very close to that," he replied "I would say pretty close." Id. Detective Olson indicated that he told pedestrians to move out of the street very frequently, that he was able to give tickets to pedestrians for being in the street, that he had not written any such tickets, that he typically encouraged people to exit the street for their safety, and that writing tickets would take all of his time.

[6] Detective Olson indicated that at some point there were six lanes of traffic all traveling eastbound and that there was never any lane of 16th Street that was specifically closed for pedestrian traffic. When asked "[s]o you had actually proceeded west of [Brown's] location, correct, telling pedestrians to get out of your way," Detective Olson answered "[c]orrect," and when asked "[s]o [Brown] would have passed you" and "at that time, you were telling pedestrians repeatedly get out of the road," he responded affirmatively. Id. at 78. When asked "[s]o he would've been one of those pedestrians you were telling [to] get out of the road," Detective Olson replied "I would assume, yes." Id.

[7] Speedway designated deposition testimony that there were no prior reports of personal injury or property damage on 16th Street. Speedway, Indianapolis, and Brown designated deposition testimony that, after the race, none of the lanes on 16th Street were designated as pedestrian walking surfaces and all of the lanes were being used for vehicular traffic. Brown and Indianapolis designated portions of the deposition testimony of the Director of Public Works for Speedway, who testified that, in 2014, Indianapolis and Speedway had an agreement related to 16th Street on the south end of the IMS property whereby Indianapolis was responsible for major repairs, replacement, and upgrades and Speedway was responsible for minor maintenance which included pothole patching and some striping and crosswalks. Indianapolis also designated evidence that the area of 16th Street west of Olin Avenue was part of the plan whereby Speedway is responsible for minor repairs of paved areas such as potholes and that Indianapolis's westernmost boundary on 16th Street is a railroad trestle near Olin Avenue.

[8] In a portion of the Director's deposition designated by Brown, when asked if Speedway inspected the streets which surround the track prior to the Indianapolis 500, the Director replied "[y]es ... before the mini-marathon at the first of May and we're coming out of winter into spring, we start pothole patching as soon as the asphalt plants open up, so we start running thoroughfares, secondaries, and then spread out to our alleyways." Id. at 124. He continued that "[t]hen when we get closer to May, we reinspect all of our mini-marathon routes around the track, 16th, Georgetown, anything that's in our jurisdiction that we have activities and people/fans coming to our events." Id. When asked about records of the inspections, the Director replied: "They're not specific to. It will show that we were doing pothole patching, whatever variety of work we were doing that week. It wouldn't be specific to a street or an area that the crews were assigned out to do specific tasks that week and what was accomplished that week." Id. Indianapolis designated an affidavit of an administrator in its Department of Public Works stating that Speedway is responsible for minor repairs of paved areas such as potholes, routine maintenance, street cleaning, and weed and grass control on West 16th Street and that Indianapolis is responsible for large-scale projects, capital improvements, major resurfacings, street signage, and traffic signals.

[9] Following a hearing, the trial court entered summary judgment in favor of Indianapolis and Speedway. Brown filed a motion to correct error, and the court denied the motion.

Discussion

[10] The issue is whether the trial court erred in entering summary judgment in favor of Speedway and Indianapolis or abused its discretion in denying Brown's motion to correct error. When reviewing a grant or denial of a motion for summary judgment our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Goodwin v. Yeakle's Sports Bar & Grill, Inc. , 62 N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. Once these requirements are met, the burden then shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Id. Any doubt as to any facts or inferences to be drawn therefrom must be resolved in favor of the non-moving party. Id. A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous.

Henderson v. Reid Hosp. & Healthcare Servs. , 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied . We will affirm a trial court's grant of summary judgment upon any theory or basis supported by the designated materials. Id. We review the denial of a motion to correct error for an abuse of discretion. Speedway SuperAmerica, LLC v. Holmes , 885 N.E.2d 1265, 1270 (Ind. 2008), reh'g denied .

[11] Brown argues that he can identify what made him fall, i.e. a pothole, although he is unable to identify the precise location of the pothole. He argues that, "[w]hile it may be that a municipality is normally only required to take reasonable steps to keep its roads safe for vehicular traffic, certain instances (such as when a municipality can reasonably expect thousands of people to be exiting a sporting event) call for a jury determination of whether the broad type of plaintiff and the broad type of harm suffered, in light of all of the facts, were foreseeable, giving rise to a duty." Appellant's Brief at 15. Brown further argues that Speedway and Indianapolis had a duty to maintain 16th Street for pedestrian traffic on the day of the race, and that "whether use of the sidewalk along 16th Street right outside of IMS is practicable within an hour or so following the Indianapolis 500, is a question for a jury." Id. at 18. He asserts that "a juror could reasonably infer that Speedway had constructive notice of the subject pothole; that in the exercise of ordinary care and diligence it would have discovered this pothole while doing its inspections of the roadways in the days and weeks before the Indianapolis 500." Id. at 25.

[12] Speedway maintains that the designated evidence establishes that Brown was contributorily negligent and was in the best position to see if there was a hole in front of him and nevertheless failed to observe where he was walking and stepped into an open hole. It further argues Brown was contributorily negligent per se because he was walking in the middle of the street in violation of Ind. Code § 9-21-17-12, that Brown cannot overcome the presumption of contributory negligence resulting from his violation of the statute, that he would have been one of the pedestrians Detective Olson was instructing to exit the street, and that there is no designated evidence that the sidewalk was not accessible or that Brown was prevented from using it. In addition, Speedway maintains that it had neither actual nor constructive notice of the pothole, that there were no prior reports of a pothole in the area, and that it is mere speculation that a pothole existed when the town made its pre-race inspections. It also argues that it did not owe Brown a duty to maintain the center of 16th Street in a condition safe for pedestrian traffic. Indianapolis argues that it had no duty to repair the pothole which injured Brown and that Brown was contributorily negligent and negligent per se as a matter of law.

[13] To prevail on a claim of negligence the plaintiff must show: (1) a duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant's breach of duty. Goodwin , 62 N.E.3d at 386. Whether a duty exists is a question of law for the court to decide. Id. at 386-387. A defendant may obtain summary judgment in a negligence action when the undisputed facts negate at least one element of the plaintiff's claim. Pelak v. Ind. Indus. Servs., Inc. , 831 N.E.2d 765, 769 (Ind. Ct. App. 2005), reh'g denied , trans. denied . Negligence cannot be inferred from the mere fact of an accident. Id. Rather, all the elements of negligence must be supported by specific facts designated to the trial court or reasonable inferences that might be drawn from those facts. Id. An inference is not reasonable when it rests on no more than speculation or conjecture. Id. Where the facts are undisputed and lead to but a single inference or conclusion, the court as a matter of law may determine whether a breach of duty has occurred. King v. Ne. Sec., Inc. , 790 N.E.2d 474, 484 (Ind. 2003), reh'g denied .

[14] Governmental entities have a general duty to exercise reasonable care in designing, constructing, and maintaining highways for the safety of public users. Fulton Cty. Comm'rs v. Miller , 788 N.E.2d 1284, 1286 (Ind. Ct. App. 2003). Ind. Code § 9-13-2-73 provides: " 'Highway' or 'street' means the entire width between the boundary lines of every publicly maintained way when any part of the way is open to the use of the public for purposes of vehicular travel. The term includes an alley in a city or town." The duty of a governmental entity to maintain and repair roads within its control does not attach unless the city has actual or constructive notice of a dangerous situation. Harkness v. Hall , 684 N.E.2d 1156, 1161 (Ind. Ct. App. 1997), trans. denied . The rule of constructive knowledge applies to defects as might have been discovered by the exercise of ordinary care and diligence. Id. It is well settled that the complaining party must not only prove that the alleged defective condition existed, but that the governmental entity "had knowledge thereof, actual or constructive, long enough before the accident to repair the defect, and failed to do so." Bd. of Comm'rs of Delaware Cty. v. Briggs , 167 Ind. App. 96, 119-120, 337 N.E.2d 852, 868 (1975), reh'g denied .

[15] In most actions for negligence in Indiana, a plaintiff's contributory fault does not bar recovery unless it exceeds fifty percent of the total fault proximately contributing to the damages and otherwise operates only to reduce a plaintiff's damages in proportion to fault. Funston v. Sch. Town of Munster , 849 N.E.2d 595, 598 (Ind. 2006) (citing Ind. Code §§ 34-51-2-5, -6). However, the Indiana Comparative Fault Act expressly excludes application to governmental entities, and thus the common law defense of contributory negligence remains applicable for governmental defendants. Id. (citing Ind. Code § 34-51-2-2 ). Therefore, even a slight degree of negligence on the part of Brown, if proximately contributing to his claimed damages, will operate as a total bar to his action against Speedway and Indianapolis. See id.

[16] A plaintiff is contributorily negligent when his conduct falls below the standard to which he should conform for his own protection and safety. Id. Lack of reasonable care that an ordinary person would exercise in similar circumstances is the factor upon which the presence or absence of negligence depends. Id. Where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence is one of law. Id. (citing Jones v. Gleim , 468 N.E.2d 205, 207 (Ind. 1984) ).

[17] Further, it must be shown that the plaintiff's negligent act was a proximate cause of his injury and that he was actually aware of or should have appreciated the risks involved. Jones , 468 N.E.2d at 207. Indiana courts have found contributory negligence as a matter of law in cases in which the voluntary conduct of the plaintiff exposed him to imminent and obvious dangers which a reasonable person exercising due care for his own safety would have avoided. Id. An act or omission is said to be a proximate cause of an injury if the resulting injury was foreseen, or reasonably should have been foreseen, as the natural and probable consequence of the act or omission. Funston , 849 N.E.2d at 600. There can be multiple proximate causes of a resulting event. Id. The defense of proximate cause requires only that a plaintiff's negligence be "a" proximate cause, that is, one of the proximate causes. Id.

[18] Negligence per se is the unexcused or unjustified violation of a duty prescribed by statute where the statute is intended to protect the class of persons in which the plaintiff is included and to protect against the type of harm which has occurred as a result of the violation. City of Ft. Wayne v. Parrish , 32 N.E.3d 275, 277 (Ind. Ct. App. 2015), trans. denied . Indiana courts have a long and continuous history of recognizing negligence actions for statutory violations. See Kho v. Pennington , 875 N.E.2d 208, 212 (Ind. 2007) (plurality opinion) (citing numerous opinions including Canfield v. Sandock , 563 N.E.2d 1279, 1283 (Ind. 1990) (violation of statutory duties of pedestrians), reh'g denied ). Proof of the violation of a safety regulation creates a rebuttable presumption of negligence. Witham v. Norfolk & W. Ry. Co. , 561 N.E.2d 484, 485 (Ind. 1990). The presumption may be rebutted by evidence that the person violating the statute did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. Id. Ind. Code § 9-21-17-12 provides: "If a sidewalk is provided and the sidewalk's use is practicable, a pedestrian may not walk along and upon an adjacent roadway." Ind. Code § 9-21-17-13 provides that, "[i]f a sidewalk is not available, a pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway." Ind. Code § 9-13-2-167 provides: " 'Sidewalk' means the part of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines intended for the use of pedestrians."

[19] In this case, the designated evidence reveals that Speedway and Indianapolis had an agreement pursuant to which Speedway was responsible for minor maintenance of 16th Street south of the IMS and that this minor maintenance included patching potholes in the roadway. The designated evidence also reveals that there were no prior reports of personal injury or property damage on 16th Street. Brown points to the roadway inspections performed by Speedway prior to the Indianapolis 500; however, the Director of Public Works for Speedway testified that the inspections occurred prior to the mini-marathon at the first of May, and Brown does not point to designated evidence that the inspections revealed the pothole upon which Brown tripped or the extent to which the inspections revealed roadway defects which were not addressed prior to the race. Brown's wife indicated that she did not think the pothole would have caused damage to a vehicle driving over it. The designated evidence demonstrates a prima facie showing of a lack of actual or constructive notice or knowledge of any roadway defect or dangerous condition in the area where Brown fell. The burden then shifted to Brown to specifically designate evidence that Speedway had notice or knowledge of the defect for a sufficient period of time before the accident to perform any needed patch or repair. See Briggs , 337 N.E.2d at 868. An inference is not reasonable when it rests on no more than speculation or conjecture. See Pelak , 831 N.E.2d at 769. The fact that Speedway completed the inspections as described in the designated materials, without more, does not reveal that it had constructive knowledge of all possible defects or of a particular defect on 16th Street. Brown has not met his burden of specifically designating evidence of Speedway or Indianapolis's knowledge. Thus, the duty to repair a particular pothole on 16th Street did not attach. See Harkness , 684 N.E.2d at 1161. The entry of summary judgment was proper on this basis.

[20] In addition, the designated evidence establishes that Brown left the sidewalk adjacent to 16th Street, entered the roadway, and was walking in the roadway of 16th Street when he fell. Although there may have been a number of people leaving the IMS, the designated evidence establishes that, at the time of Brown's fall, all of the lanes of 16th Street were designated vehicular lanes and that none of the lanes were designated as pedestrian walking surfaces. Detective Olson was directing pedestrians at that time to move to the sidewalk so that the street would be clear for vehicular traffic. The designated materials demonstrate that Brown failed to exercise, for his own safety, that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would have exercised, that his conduct exposed him to a danger which a reasonable person exercising due care for his own safety would have avoided, and that his failure to exercise reasonable care was one of the proximate causes of his injury. Brown's contributory negligence also supports the entry of summary judgment in favor of Indianapolis and Speedway. See Funston , 849 N.E.2d at 598 n.2 ("Under the common law defense of contributory negligence, a plaintiff may not recover if guilty of any negligence, no matter how slight, that proximately contributes to the claimed injury.").

Conclusion

[21] For the foregoing reasons, we affirm the trial court's entry of summary judgment.

[22] Affirmed.

Altice, J., and Tavitas, J., concur.

Order

[1] Appellee, City of Indianapolis, by counsel, filed an Appellee's Motion to Publish.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellee's Motion to Publish is granted.
2. This Court's opinion heretofore handed down in this cause on October 10, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 10/26/2018.

[4] Brown, Altice, Tavitas, JJ., concur.


author: Baker, Judge.

text:
    Thomas A. DECOLA, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
    Court of Appeals Case No. 18A-MI-732
    Court of Appeals of Indiana.
    Filed October 17, 2018 Rehearing denied January 2, 2019
    Appellant Pro Se: Thomas A. DeCola, North Judson, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, Indiana
   Baker, Judge.

[1] Thomas DeCola appeals the trial court's order denying his request to expunge any and all records pertaining to a school suspension. DeCola also argues that he was improperly denied a jury trial. Finding no error, we affirm.

Facts

[2] DeCola was suspended from Kankakee Valley High School in 2001; because of this, his driving privileges were subsequently suspended. DeCola regained his driving privileges in 2002.

[3] On February 6, 2018, DeCola petitioned the trial court to expunge any and all records pertaining to his 2001 school suspension. On February 13, 2018, the trial court denied the petition to expunge. Shortly thereafter, on February 20, 2018, DeCola filed a new expungement petition and a motion to correct error.

[4] At a hearing on March 8, 2018, the trial court denied both the new petition to expunge and the motion to correct error. At the hearing, the trial court made clear that DeCola could not identify any relevant statute as a basis for his claim. DeCola now appeals.

Discussion and Decision

[5] DeCola presents two arguments on appeal: (1) the trial court erred when it denied his request to expunge any and all records pertaining to his 2001 school suspension; and (2) he was entitled to a jury trial.

[6] We reverse a lower court's ruling denying a petition to expunge only where the decision is clearly against the logic and effect of the facts and circumstances before it. Cline v. State , 61 N.E.3d 360, 362 (Ind. Ct. App. 2016).

[7] First, DeCola's claim that the trial court improperly denied his petition to expunge the school suspension from his record is totally without merit. The Indiana Code does not allow for an individual to have a school suspension expunged from his records. Rather, expungement as a remedy is limited to criminal arrests and convictions. Ind. Code § 35-38-9-2(-5). DeCola would have us act as legislators and add school suspension to the list of penalties capable of being expunged, which we may not do. Any collateral argument that DeCola makes based on precedent and stare decisis is equally unfounded and without any merit. We hold that the trial court did not err in denying DeCola's amended petition for expungement of the school suspension from his records.

[8] Second, DeCola's claim that the trial court erred when it did not conduct a jury trial fails as a matter of substance. Indiana Trial Rule 38(A) specifies that "[a]ny party may demand a trial by jury of any issue triable of right by a jury ." (Emphasis added). Historically, the only issues that were deemed triable by a jury were those available at common law. Cardinal Health Ventures, Inc. v. Scanameo , 85 N.E.3d 637, 640 (Ind. Ct. App. 2017). The common law era predates modernity, and it has been the province of today's courts to determine whether a particular claim would have been legal or equitable. Id. Generally, claims which were equitable rather than legal in nature were tried by a court rather than by a jury. Lewandowski v. Beverly , 420 N.E.2d 1278, 1282 (Ind. Ct. App. 1981). Therefore, if the issue was equitable rather than legal at common law, there was no right to a jury since it was the court that evaluated and granted relief for such claims. That standard persists today as is evidenced by the language in Indiana Trial Rule 38(A).

[9] While there is no Indiana case that directly establishes expungement as an equitable or legal remedy, the language of Indiana's expungement statutes provides sufficient clarity. In every expungement statute, the court is responsible for finding that expungement is an available remedy, and subsequently, the court is the body responsible for granting that remedy. Ind. Code §§ 35-38-9-2(e), -3(e), -4(e), -5(e). Thus, the General Assembly clearly established a statutory framework in which the court, rather than a jury, would be tasked with evaluating and ruling on requests for expungement. It follows that expungement would have been deemed an equitable rather than a legal remedy. Because expungement was not triable by a jury at common law, we hold that petitioners seeking expungement are not entitled to a jury trial. Consequently, DeCola's argument that he be afforded a jury trial is without merit.

[10] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

      Ind. Code § 9-24-2-4(a).


author: Vaidik, Chief Judge.

text:
    Shane R. BRADTMILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-884
    Court of Appeals of Indiana.
    FILED October 17, 2018
    Attorney for Appellant: Anthony S. Churchward, Anthony S. Churchward, P.C., Fort Wayne, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Laura R. Anderson, Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Shane R. Bradtmiller appeals his habitual-offender finding, arguing that he did not personally waive his right to a jury trial for the habitual-offender enhancement. We agree. Although Bradtmiller personally waived his right to a jury trial on the underlying felonies, that waiver came before the State filed the habitual-offender enhancement. Contrary to the State's argument on appeal, Bradtmiller's waiver on the underlying felonies did not encompass a waiver on the yet-to-be filed habitual-offender enhancement. We therefore vacate Bradtmiller's habitual-offender finding and the sentence imposed thereon and remand this case to the trial court for further proceedings.

Facts and Procedural History

[2] In the summer of 2017, the State charged Bradtmiller with several felonies. At a pretrial conference on Monday, October 30, 2017, the State told the trial court about several pending motions in the case, including a motion to waive jury trial that Bradtmiller's attorney had filed on October 27. The court then engaged Bradtmiller in a colloquy during which it informed Bradtmiller of his right to a jury trial, and Bradtmiller waived that right. See Pretrial Tr. p. 5. Also at this hearing, the State told the trial court that it had made a plea offer to Bradtmiller that expired at "the end of the week." Id. at 4. The State said that if Bradtmiller did not accept its offer, it was going to file a habitual-offender enhancement on Friday. The court set a hearing for Friday, November 3 to see where matters stood.

[3] At the hearing on Friday, Bradtmiller's attorney informed the trial court that Bradtmiller was not accepting the State's offer. The State then filed the habitual-offender enhancement in open court. Bradtmiller's attorney told the trial court that "[w]e're ... wanting for the record to waive the Jury ... [i]n reference to the Habitual Offender Enhancement[.]"Id. at 9-10. Unlike the October 30 hearing, however, the court did not inform Bradtmiller of his right to a jury trial for the habitual-offender enhancement or otherwise engage in a colloquy with Bradtmiller regarding waiver.

[4] A bench trial was held in February 2018, and the trial court found Bradtmiller guilty of the felonies and also found him to be a habitual offender. The court sentenced Bradtmiller to thirty-five years, including twenty years for the habitual-offender finding.

[5] Bradtmiller now appeals.

Discussion and Decision

[6] Bradtmiller contends that he did not personally waive his right to a jury trial for the habitual-offender enhancement. The Indiana Supreme Court recently reaffirmed the personal-waiver requirement in Horton v. State , where it stated that the Indiana Constitution's right to a jury trial "may be waived by one, and only one, person-the defendant. Unless the defendant personally communicates to the judge a desire to waive that right, he must receive a jury trial." 51 N.E.3d 1154, 1155 (Ind. 2016) (holding that Horton's attorney's waiver for the second phase of trial was not a personal waiver by Horton). The State does not argue that Bradtmiller personally waived his right to a jury trial for the habitual-offender enhancement at the November 3 hearing. Instead, the State argues that Bradtmiller's personal waiver at the October 30 hearing "encompassed the habitual offender enhancement." Appellee's Br. p. 12. The State reasons that although the habitual-offender enhancement was not filed at the time of the October 30 hearing, Bradtmiller and his attorney nevertheless knew that the State would file the habitual-offender enhancement if Bradtmiller did not accept the State's offer.

[7] We have addressed this argument from the State before. In O'Connor v. State , the State argued that while the habitual-offender enhancement "was not filed until well after O'Connor waived her right to a jury trial upon the underlying charges, O'Connor knew full well at the time that she waived jury trial that the State would file the habitual count if she did not accept the plea offer." 796 N.E.2d 1230, 1234 (Ind. Ct. App. 2003) (quotation omitted). We rejected the State's argument:

Even though O'Connor knowingly, voluntarily, and intelligently waived her right to a jury trial upon the underlying charges, we fail to see how O'Connor's waiver was effective as to an habitual offender information which had yet to be filed. The record reveals that O'Connor was never advised of her right to a jury trial as to the habitual offender determination and that at no time after the State filed the habitual offender information did she waive her right to such. O'Connor's waiver of her right to a jury trial was not made with sufficient awareness of the relevant circumstances surrounding its entry and its consequences so as to be deemed a voluntary, knowing, and intelligent waiver of her right to a jury trial as to the habitual offender determination. Therefore, we reverse the trial court's habitual offender determination, vacate the sentence imposed thereon, and remand to the trial court for proceedings not inconsistent with this opinion.

Id. at 1235.

[8] We reach the same result in this case. Because Bradtmiller was never advised of his right to a jury trial for the habitual-offender enhancement, his jury-trial waiver on October 30 was not made with sufficient awareness of the relevant circumstances and therefore did not apply to the later-filed habitual-offender enhancement. See Jones v. State , 810 N.E.2d 777, 780 (Ind. Ct. App. 2004) ("As in O'Connor , we believe Jones was not given the opportunity to voluntarily, knowingly and intelligently waive his right to trial by jury on the habitual offender count."). We therefore reverse the trial court's habitual-offender finding and the sentence imposed thereon and remand this case to the trial court for further proceedings.

[9] Reversed and remanded.

Riley, J., and Kirsch, J., concur.