author: BARNES, Judge.

text:
    PEABODY ENERGY CORPORATION, Peabody Coal Company, LLC, and Black Beauty Coal Company, Appellants-Defendants and Third-Party Plaintiffs, v. Richard F. ROARK, Appellee-Plaintiff, and Beelman Truck Company, Appellee-Third-Party Defendant, and North American Capacity Insurance Company, Appellee-Third-Party Counterclaim Plaintiff and Third-Party Defendant.
    No. 14A01-1112-CT-555.
    Court of Appeals of Indiana.
    Aug. 30, 2012.
    Patrick A. Shoulders, Jean M. Blanton, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, Karl L. Mulvaney, Nana Quay-Smith, Bingham Greenbaum Doll, LLP, Indianapolis, IN, Attorneys for Appellants.

      Todd A. Croftchik, Seipp & Flick, LLP, Lake Mary, FL, Attorney for Appellee, Beelman Truck Company.
    Julia Blackwell Gelinas, Maggie L. Smith, Dean R. Brackenridge, Carrie G. Doehrmann, Frost Brown Todd, LLC, Indianapolis, IN, Attorneys for Appellee, North American Capacity Insurance Company.
   OPINION

BARNES, Judge.

Case Summary

Peabody Energy Corporation, Peabody Coal Company, LLC, and Black Beauty Coal Company (collectively, “Peabody”) appeal the trial court’s grant of summary judgment in favor of Beelman Truck Company (“Beelman”) and North American Capacity Insurance Company (“NAC”). We affirm in part, reverse in part, and remand.

Issue

The dispositive issue we address is whether Peabody is an additional insured under an insurance policy issued by NAC.

Facts

Peabody owns property in Daviess County where it conducts mining operations, and Beelman is a trucking company. Beelman and Peabody entered into a Master Performance Agreement (“MPA”), which became effective on April 5, 2005, and continued for an initial term of one year. The MPA defined Peabody as “Owner” and Beelman as “Contractor.” App. p. 280. The MPA provided in part:

18. INDEMNITY AND INSURANCE.
A. Contractor agrees to indemnify, defend, and hold harmless Owner, its parent, subsidiaries, affiliates and related companies and the officers, directors, shareholders and employees of such companies (collectively “Owner”) against any and all claims, damages, losses and expenses, including attorney’s fees and other legal expenses, by reason of liability imposed or claimed to be imposed by law for damage because of bodily injury (including death) or on account of damage to property, sustained by any person or persons, arising out of or in consequence of the performance of the work called for by the Contract whether or not such bodily injuries, death, or damage to property arise or are claimed to have arisen in whole or in part out of the negligence or any other grounds of legal liability, including violation of any duty imposed by a statute, or ordinance or regulation, on the part of Contractor, the subcontractors, and the employees or agents of Contractor and the subcontractor (but excluding however, any liability caused by the sole negligence or ⅝⅞-fel misconduct of employees or agents of Owner).[]

B. Contractor shall obtain and continue in force, during the term of the Contract at its own expense, the following insurance coverages:

1. Workers’ Compensation and Occupational Disease Disability insurance as required by the laws of the state wherein the work is to be performed.
2. Employer’s Liability insurance with limits of $500,000 each occurrence, unless the laws of the state in which the work is to be performed precludes an independent right of action by an employee against an employer under common law. 3. Comprehensive Automobile Liability insurance with limits of $1,000,000 Bodily injury and Property Damage combined single limit.
4. Comprehensive General Liability and Property Damage insurance including Operations, Protective, Products/Completed Operations, Broad Form Property Damage, and Contractual Liability coverages with limits of $1,000,000 Bodily injury and Property Damage combined single limit.
C. All insurance policies must contain an unqualified provision that the insurance carrier will give Owner 30 days prior notice in writing of any cancellation, change or lapse in such policy(s).
D. All insurance policies shall name Owner, its parent, subsidiaries, affiliates and related companies, as additional insureds with respect to losses or claims arising out of, or directly or indirectly related to, the performance of this Contract.
E. The parties hereto acknowledge that Contractor’s insurance shall be the primary coverage under the Contract.
F. Prior to commencement of any work hereunder, Contractor shall furnish to Owner (in form satisfactory to Owner) a Certificate of Insurance showing that the requirements of this Paragraph 17[sic] have been satisfied.

Id. at 281.

Beelman had a commercial general liability insurance policy (“the Policy”) with NAC, which was effective from December 1, 2004, to December 1, 2005. The Policy contained an additional insured endorsement that provided:

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person or Organization:
Any person or organization to which you are obligated by virtue of written contract to provide insurance such as is afforded by this policy, but only with respect to (1) occurrences taking place after such written contract has been executed and (2) occurrences resulting from work performed by you during the policy period.
(if no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you.

Id. at 209 (emphasis added). A certificate of liability insurance was issued to Peabody referencing the Policy by number. The certificate named Peabody as the certificate holder and provided, “Certificate holder is an additional insured with respect to the auto and general liability.” Id. at 289.

Richard Roark was employed by Beel-man as a truck driver. On June 22, 2005, while working for Beelman, Roark delivered a load of ash from a power plant to Peabody’s mine. Roark backed the Beel-man truck into a spot at the mine to dump the load of ash. Roark got out of the truck to release the air brakes, which were controlled by switches on the side of the trailer. As he walked toward the middle of the trailer to release the switches, the ground gave away, and Roark went down into the ground past his knee.

On May 29, 2007, Roark filed a complaint against Peabody alleging that its negligence caused injuries to his left foot. On March 25, 2009, Peabody demanded coverage from NAC. In response, NAC determined that “Peabody is only an additional insured with respect to liability arising out of Beelman’s operations or premises owned by or rented to Beelman.” Id. at 182. NAC concluded that Roark’s claim did not arise “from Beelman’s work” and, therefore, NAC had no duty to defend or indemnify Peabody. Id.

Peabody eventually filed a third-party complaint in Roark’s lawsuit requesting indemnification from Beelman, alleging that Beelman had breached the MPA, and seeking declaratory judgment regarding NAG’s obligation to provide coverage based on the Policy. Beelman and NAC denied the allegations, and NAC sought a declaratory judgment against Peabody. Peabody filed a motion for partial summary judgment against NAC. NAC and Beelman also filed motions for summary judgment against Peabody. After the matter was fully briefed and a hearing was conducted, the trial court entered final judgment in favor of Beelman and NAC and against Peabody. The trial court summarized its twenty-five pages of findings and conclusions as follows:

A. The MPA excludes, [sic] and Beel-man Truck Co. therefore has no duty to indemnify, defend or hold Black Beauty harmless when the sole allegations of negligence are against Black Beauty. The fact that Black Beauty will defend those allegations by alleging that Plaintiff was comparatively negligent does not operate to change that outcome.
B. The only potential risk that needs to be insured against in this case is Black Beauty’s own negligent maintenance of its own premises. That is the only negligence alleged in the Plaintiffs Complaint and it is the only negligence for which Black Beauty could be held legally responsible. Paragraph 18 of the MPA does not create or impose a contractual obligation on Beelman, to insure against that specific risk, i.e. the requisite meeting of the minds was lacking.
C. Because Beelman had no contractual duty to insure Black Beauty against claims/losses that Black Beauty negligently maintained its own premises, the insurance policy that is the subject of the Motions for Summary Judgment filed by North American Capacity and Black Beauty is not triggered. Because the MPA does not trigger Beelman’s North American Capacity insurance policy, Black Beauty’s claims against North American [C]apacity fail.
D. This case will return to its original procedural posture, Black Beauty defending itself against allegations that it negligently maintained premises that it owned and that were under its sole control.

Id. at 40. Peabody now appeals.

Analysis

Peabody argues that the trial court improperly granted NAC’s and Beelman’s motions for summary judgment and denied its motion for summary judgment. “We review an appeal of a trial court’s ruling on a motion for summary judgment using the same standard applicable to the trial court.” Perdue v. Gargano, 964 N.E.2d 825, 881 (Ind.2012). “Therefore, summary judgment is appropriate only if the designated evidence reveals ‘no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Ind. Trial Rule 56(C)). Our review of summary judgment is limited to evidence designated to the trial court. Id. (citing T.R. 56(H)). All facts and reasonable inferences drawn from the evidence designated by the parties is construed in a light most favorable to the non-moving party, and we do not defer to the trial court’s legal determinations. Id.

Peabody argues that it is entitled to coverage from NAC as an additional insured under the Policy. Alternatively, Peabody argues that, if it is not entitled to coverage under the Policy, Beelman has breached the MPA by failing to provide the insurance described in Section 18(D). Thus, we must first determine whether the Policy provides coverage to Peabody under these circumstances.

“Insurance policies are governed by the same rules of construction as other contracts, and their interpretation is a question of law.” Masten v. AMCO Ins. Co., 953 N.E.2d 566, 569 (Ind.Ct.App.2011), trans. denied. When interpreting an insurance policy, our goal is to ascertain and enforce the parties’ intent as manifested in the policy, and we construe the policy as a whole and consider all of the provisions of the policy and not just individual words, phrases, or paragraphs. Id. “Because we construe insurance policies as a whole in each case, prior cases that focus upon similar or identical clauses or exclusions are not necessarily determinative of later cases because the insurance policies as a whole may differ.” Id.

The relevant portion of the Policy’s additional insured endorsement provides:

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you.

App. p. 209 (emphasis added). In asserting that Peabody’s liability does not arise out of Beelman’s operations, NAC relies on Liberty Mutual Ins. Co. v. Michigan Mutual Ins. Co., 891 N.E.2d 99 (Ind.Ct.App.2008), a case interpreting an additional insured endorsement. In that case, Linda Swann, an employee of Trilithic, slipped and fell on a snow and ice covered pathway leading from the employee parking lot to a door at the back of the Triltihic facility, which Trilithic leased from Duke. Under the lease, it was Duke’s responsibility to maintain common areas including the pathway where Swann was injured. In accordance with the lease, Trilithic obtained a commercial general liability policy from Michigan Mutual in which Trilithic was the named insured and an endorsement designated Duke as an additional insured. The additional insured endorsement provided:

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule[.]

Liberty Mutual, 891 N.E.2d at 100. Swarm and her husband sued Duke, and Duke tendered the defense of the action to Michigan Mutual pursuant to the additional insured endorsement. Michigan Mutual declined to defend or indemnify Duke. Litigation ensued between Liberty Mutual, Duke’s insurer, and Michigan Mutual, and the trial court eventually declared that Michigan Mutual had no obligation to defend or indemnify Duke against the Swanns’ claims.

On appeal, we noted that there were no Indiana cases interpreting the boilerplate additional insured endorsement at issue. Id. at 103. After considering how other jurisdictions had interpreted such provisions, we rejected a broad interpretation of the provision and agreed “that more than an incidental connection with the leased premises is required to obtain coverage under an additional insured endorsement.” Id. at 104. We observed:

One of the primary functions of an additional insured endorsement in the landlord-tenant context is to protect the landlord from vicarious liability for acts of its tenant on the leased premises. Northbrook Ins. Co. v. American States Ins. Co., 495 N.W.2d 450. “The additional insured endorsements in these settings are meant to provide specialized protection rather than all-encompassing coverage.” United States Fid. & Guar, v. Drazic, 877 S.W.2d at 143.

Id.

In analyzing the connection between the accident and the leased premises, we considered that the accident occurred in a common area outside of the leased premises and under Duke’s control, that there was no physical connection between the accident and the leased premises or Tril-ithic’s business operations thereon, and that there was no allegation that the ice and snow on which Swann slipped was caused by the leased premises, was connected to work done on the leased premises, or had any other significant connection with the leased premises. Id. at 105. We observed that the accident arose out of Duke’s own failure to maintain the pathway from the parking lot to the employee entrance and that “[t]he only way Swann’s fall was even remotely related to the leased premises was due to the fact Swann was on her way to work.” Id. We deemed this “isolated connection” to be insufficient to bring the accident within the coverage of the policy under the additional insured endorsement and held that Michigan Mutual had no duty to defend or indemnify Duke. Id.

Even if we agree with Liberty Mutual that an expansive interpretation of an additional insured endorsement such as the one here should be rejected, Liberty Mutual does not resolve the question of whether Peabody is entitled to coverage under the Policy. The policy language and facts of Liberty Mutual are easily distinguishable from the policy language and circumstances before us today.

First, although both cases apparently involve negligence claims based on premises liability theories, the relevant policy language is different. At issue here is whether the liability arises “out of [Beel-man’s] operations,” not whether the liability arises out of “ownership, maintenance or use of’ a leased premises, which was at issue in Liberty Mutual. App. p. 209; Liberty Mutual, 891 N.E.2d at 100. Thus, although Liberty Mutual’s focus on the “connection with the leased premises” may be appropriate in the landlord-tenant context, is of limited application here. Id. at 104.

In that regard, NAC’s suggestion that Peabody’s potential liability arises out of Peabody’s own alleged negligence in maintaining its own property misses the mark because it does not resolve the question of whether Peabody’s potential liability arises out of Beelman’s operations. NAC also asserts that there is no contention that Peabody’s liability “arose out of the actions of’ Beelman and that Peabody does not face “liability for Beelman’s operations.” Appellee NAC’s Brief p. 14. Because these assertions are more narrowly worded than the actual language of the Policy, which refers to “liability arising out of [Beelman’s] operations,” they are of little help in determining whether Peabody is an additional insured under the Policy. App. p. 209.

Aside from the differences in the policy language, Liberty Mutual is also factually distinguishable because Roark was not on Peabody’s property as a means to an end — to get to work — as Swarm was. Instead, Roark was at Peabody’s mine as part of his employment as a truck driver for Beelman. According to Roark’s complaint, while working for Beelman, he delivered a load of ash from a power plant to the mine, where he stepped in a hole and was injured. NAC’s letter denying coverage provides, “On June 22, 2005, Mr. Roark allegedly delivered a load of ash from the Petersburg Power Plant to the defendants’ mine. During his delivery, Mr. Roark allegedly stepped in a hole and suffered bodily injuries.” Id. at 180. In his deposition, Roark stated that he was directed to drive the truck to “the high wall.” Id. at 607. According to Roark, he backed the truck toward that area and then secured the truck. Roark described that process of securing the truck and how he was injured as follows:

Lock the brakes on it, trailer and the truck, and you get out. And all the Beelman trucks had outside switches which released the air bags on the truck so it would be solid when you raised it up in the air, you release the air brakes. You got switches on the side of the trailer. That’s where I’m walking when I step, when the ground gives away. I’m walking back to the middle ways of the trailer to release those switches, and the ground give way, and I went down into the ground up past my knee.

Id. at 608.

The parties do not direct us to any designated evidence suggesting that Roark was injured while acting outside the scope of his employment or while undertaking a task unrelated to Beelman’s operations when he was injured. Cf. Davis v. LTV Steel, Co., 128 Ohio App.3d 733, 716 N.E.2d 766 (1998) (concluding that LTV was not an additional insured “with respect to liability arising out of [Shafer’s] operations” for injuries incurred by Shafer employees who were injured on LTV’s premises while performing a task “not contemplated as part of Shafer’s duties pursuant to its contract with LTV.”). Unlike in Liberty Mutual, the connection between Roark’s presence at the mine and his injuries was not “incidental” or “isolated;” instead, Roark’s injuries were directly related to his work as a truck driver for Beelman. Liberty Mutual, 891 N.E.2d at 104, 105. Regardless of whether Roark was injured because of Peabody’s sole negligence, the designated evidence shows that Roark’s injuries — the basis of Peabody’s potential liability — arose out of Beelman’s operations. Thus, Peabody is an additional insured under the Policy.

As such, the trial erroneously entered summary judgment in favor of NAC and against Peabody regardless of the language of the MPA. Because of our conclusion that Peabody is an additional insured under the Policy, we necessarily conclude that Beelman did not breach the MPA. Therefore, the trial court properly granted Beelman’s motion for summary judgment.

Conclusion

Because Roark’s injuries arose out of Beelman’s operations, Peabody is an additional insured under the Policy. As such, Peabody, not NAC, is entitled to summary judgment on the declaratory judgment action. Further, because Peabody is an additional insured under the Policy, Beelman did not breach the MPA. Thus, summary judgment in favor of Beelman was appropriate. We affirm in part, reverse in part, and remand.

Affirmed in part, reversed in part, and remanded.

VAIDIK, J., and MATHIAS, J., concur.

      . The strikethrough modifications were handwritten and initialed.

      . Peabody does not appeal the entry of judgment on its claim for indemnification against Beelman pursuant to Section 18(A) of the MPA.

      . The Liberty Mutual court did not reference Travelers Cas. & Sur. Co. v. Elkins Constructors, Inc., 2000 WL 724006 (S.D.Ind.2000), which interpreted additional insured provisions similar to the one at issue today. The Elkins court observed:
      Although the court cannot locate any reported opinions discussing the construction of "additional insured” provisions under Indiana law, the majority of courts to have considered the issue construe such provisions (which rely on language very similar to, or identical to, the language used in the additional insured provisions in the [relevant] policies) broadly, encompassing coverage to extend to liability beyond merely the additional insured’s vicarious liability for the actions of the named insured.

        Elkins, 2000 WL 724006 at 2 (footnote omitted).

      . In its brief, Beelman does not dispute that Roark was at the mine “because of his employment with Beelman.” Appellee Beel-man's Br. p. 5.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    Dana YOUNG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1201-JM-18.
    Court of Appeals of Indiana.
    Aug. 30, 2012.

      Darren Bedwell, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant Dana Young appeals following her conviction for Class B misdemeanor Failure to Ensure School Attendance. In challenging her conviction, Young contends that she was unlawfully denied the right to a jury trial. Concluding that Young was adequately advised of and waived her right to a jury trial, we affirm.

FACTS AND PROCEDURAL HISTORY

Young is the mother of a minor child, M.D. During much of the 2010-11 school year, M.D. was enrolled at Indianapolis Public School # 58 (“School 58”). During that period of time, M.D. had nine unexcused absences as well as another six or seven tardies. Melissa Neher-Phelps, counselor at School 58 whose job includes monitoring attendance, made several attempts to contact Young regarding M.D.’s unexcused absences, including four phone calls, five letters, and one in-person meeting. On February 8, 2011, Neher-Phelps provided Young with legal notice that M.D. had excessive unexcused absences and that further absences would require a medical statement from a physician to be documented as excused. The legal notice advised Young that “proceedings may be instituted against you under Indiana law” if M.D.’s attendance did not satisfy Indiana’s compulsory attendance laws. State’s Ex. 1, p. 14. Two of M.D.’s nine unexcused absences from School 58 occurred after Young received the legal notice concerning M.D.’s school attendance.

Beginning March 21, 2011, through the end of the 2010-11 school year, M.D. was enrolled at Indianapolis Public School # 114 (“School 114”). M.D. had another unexcused absence during this time period. When contacted by Pearle Washington, the School 114 social worker regarding M.D.’s unexcused absence, Young complained that IPS officials wanted “her to be a superwoman” and stated that M.D. had missed school on the day in question because they “overslept” and M.D. “missed the bus.” Tr. p. 31. In addition to the numerous unexcused absences and tardies, M.D. also missed several days during the 2010-11 school year due to illness. These absences, however, were considered to be excused.

On June 20, 2011, the State charged Young with Class B misdemeanor failure to ensure school attendance of her minor child. On August 4, 2011, the trial court conducted an initial hearing at which Young was given a written advisement of her rights, including her right to a jury trial. Young signed and dated the written advisement indicating that she had read her rights and believed that she understood them. Young’s trial was initially scheduled for October 20, 2011, but was later rescheduled for November 17, 2011. A bench trial was conducted on November 17, 2011, at which Young appeared and was represented by counsel. Following the bench trial, the trial court found Young guilty as charged. On December 15, 2011, the trial court sentenced Young 120 days on probation. This appeal follows.

DISCUSSION AND DECISION

Young contends that she was unlawfully denied the right to a jury trial. The right to a jury trial is guaranteed by the Indiana and United States Constitutions. Jackson v. State, 644 N.E.2d 595, 596 (Ind.Ct.App.1994) (citations omitted). In Indiana, the right to a jury trial is further guaranteed by Indiana Code section 35-37-1-2 (2009), which provides that all criminal trials be tried to a jury unless there is a joint waiver by the defendant, the prosecutor, and the trial judge, and Indiana Code section 31-32-6-7(b) (2009), which provides that a trial of an adult charged with a crime arising in the juvenile code shall be trial to a jury unless the adult requests a bench trial.

However, in misdemeanor cases, the right to a jury trial is not self-executing but is controlled by Indiana Rule of Criminal Procedure 22 (“Criminal Rule 22”). Liquori v. State, 544 N.E.2d 199, 201 (Ind.Ct.App.1989). In relevant part Criminal Rule 22 provides:

A defendant charged with a misdemean- or may demand a trial by jury by filing a written demand therefor no later than ten (10) days before [her] first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by [her] of trial by jury unless the defendant has not had at least fifteen (15) days advanced notice of [her] scheduled trial date and of the consequences of [her] failure to demand a trial by jury.

Thus, when charged with a misdemeanor, a defendant can waive her right to a jury trial by failing to make a timely demand for trial by jury. Jackson, 644 N.E.2d at 596 (citing Belazi v. State, 525 N.E.2d 351, 352 (Ind.Ct.App.1988), trans. denied). Further, although a defendant must be advised of her constitutional right to a jury trial, a written advisement of her rights and the consequences of failure to make a timely demand is sufficient to act as a waiver of said right. Id. (citing Combs v. State, 533 N.E.2d 1241, 1242 (Ind.Ct.App.1989); Belazi, 525 N.E.2d at 352).

Here, Young concedes that she was charged with a misdemeanor. However, in alleging that she was denied her constitutional right to a jury trial, Young argues that Criminal Rule 22 should not apply to the instant matter because she was charged with a misdemeanor that arose from an offense set forth in the juvenile code. Thus, Young claims Indiana Code section 31-32-6-7(b) should apply rather than Criminal Rule 22. Young further claims that under Indiana Code section 31-32 — 6—7(b), she was denied her constitutional right to a jury trial because she did not explicitly request a bench trial. Young, however, provides no authority supporting her position that Criminal Rule 22 does not apply to criminal misdemeanor charges arising from offenses set forth in the juvenile code, and we find none. Because Young was charged with a misdemeanor criminal offense, we conclude that Criminal Rule 22 applies to the instant matter. See generally Liquori, 544 N.E.2d at 201 (applying Criminal Rule 22 to misdemean- or charges arising under Title 9 of the Indiana Code).

Young further claims that even if Criminal Rule 22 does apply, the written advisement given by the court during her initial hearing was insufficient to advise her of the consequences of waiving her right to a jury trial. Here, during the initial hearing held on August 4, 2011, Young was presented with an advisement form entitled “Marion Superior Court Juvenile Division Initial Hearing Rights.” Appellant’s App. p. 56. Paragraph five of this form set forth the applicable provision within Criminal Rule 22 and stated:

You have the right to trial by jury. If you wish to have a trial by jury, you must make your request at least ten (10) days prior to your trial setting. If you do not request a jury trial at least ten (10) days prior to your trial setting, you waive your right to a trial by jury. If you want a jury trial, you must make a timely request even if you do not have an attorney.

Appellant’s App. p. 56. The last line of the form stated, “I have read these rights and believe that I understand them.” Appellant’s App. p. 56. Young signed and dated this form on August 4, 2011.

Young claims that the above-stated advisement is insufficient because she was not “adequately advised of the consequences of failure to request a jury trial.” Appellant’s Br. p. 5. In Jackson, the defendant was given a form setting forth his initial hearing rights that was identical to that given to Young. 644 N.E.2d at 596. The defendant challenged the advisement, claiming that the written advisement was insufficient to advise him of his right to a jury trial or of Criminal Rule 22. Id. Upon appeal, this court concluded that the written advisement was adequate to advise the defendant of his right to a jury trial and that the consequence of failing to make a timely request for a jury trial would result in waiver. Id. at 597. Thus, this court concluded that the defendant had effectively waived his right to a jury trial by failing to demand a jury trial within the time limits prescribed by Criminal Rule 22. Id.

In light of our conclusion that an identical advisement was sufficient to warn criminal defendants of their right to a jury trial and that the consequence of failing to make a timely request for a jury trial results in waiver of said right, we cannot agree that Young was not adequately advised of the consequences of her failure to request a jury trial. Young was given the advisement form during her initial hearing, which occurred more than ten days before her initial trial setting. Young signed the advisement indicating that she had both read and understood the advisement. Young, however, failed to request a jury trial within the time proscribed by the advisement and Criminal Rule 22. In light of Young’s failure to request a jury trial after indicating that she understood the time limitations set forth in paragraph five of the advisement of her rights, we conclude that here, as in Jackson, Young effectively waived her right to a jury trial, and accordingly, cannot successfully challenge the trial court’s failure to conduct a jury trial rather than a bench trial. See generally, id.

The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.

      . Ind.Code § 35-42-4-9(A)(l) (2009).


author: BROWN, Judge.

text:
    SEABROOK DIECKMANN & NAVILLE, INC., Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Monica Hilbert, Appellees.
    No. 93A02-1202-EX-100.
    Court of Appeals of Indiana.
    Aug. 31, 2012.

      Justin E. Endres, New Albany, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephanie Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Review Board.
   OPINION

BROWN, Judge.

Seabrook Dieckmann & Naville, Inc. (“Employer”) appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in favor of Monica Hilbert (“Employee”) with respect to Employee’s claim for unemployment benefits. Employer raises several issues which we restate as whether the Board erred in concluding that Employee’s employment was not terminated for just cause. We reverse and remand. The relevant facts follow. Employee worked as a full-time clerical worker for Employer, a funeral home business, from September 2006 until December 2, 2010, when Employee was discharged for poor work performance and unprofessional conduct. Employee filed a claim for unemployment benefits, and on December 27, 2010, a deputy with the Board determined that Employee was discharged for just cause due to a work-related breach of duty.

Employee appealed, and an administrative law judge (“ALJ”) held a hearing and issued a decision on February 14, 2011, reversing the deputy’s determination and finding that Employer failed to show that Employee was discharged for just cause. Following an appeal by Employer the Board entered a decision on March 29, 2011, which summarily affirmed the ALJ’s decision. Employer appealed to this court, this court issued an order of remand, and pursuant to this court’s order the Board vacated the decisions of the ALJ and Board and remanded the case to the appellate division for a de novo hearing on the merits of Employee’s claim for benefits.

On December 1, 2011, a second hearing was held before an ALJ at which Employee, her husband, and Employer’s representatives were present in person. In a decision issued on December 5, 2011, the ALJ reversed the deputy’s initial determination dated December 27, 2010. The ALJ’s decision provided in part:

FINDINGS OF FACT: The Employer is a funeral home. [Employee] worked for the Employer from September of 2006 until December 2nd, 2010, as a full-time clerical worker. [Employee] was discharged from employment. The cited reason is poor job performance in the form of a plethora of proofreading mistakes on printed materials for distribution at funerals, rudeness, insubordination, and personality conflicts with coworkers.
For roughly four years and two months [Employee] occasionally made some clerical errors while performing work for the Employer. Some of these errors, mistaken facts or misspellings on printed materials, caused the waste of a large amount of the printed materials and extra money to be spent to replace the materials. Employees in [Employee’s] position are expected to make some such mistakes.
The Employer began to document mistakes that were made in the office on or about November 8th, 2009. Employer’s Exhibit Three. The documentation does not evidence that [Employee] was responsible for all of the listed mistakes. It is possible that at least some of the listed errors were committed by other employees.
For roughly four years and two months, two of [Employee’s] co-workers found her to be rude, uncooperative, unprofessional, and did not enjoy her presence in the office. [Employee’s] attitude, demeanor, and job performance remained the same during the entire period of employment.
The Employer documented one meeting with [Employee] concerning her job status. The date of this meeting is listed as January 26th, 2010. Employer’s Exhibit Three. The content of the meeting is listed as follows: “Employee ... is told that it is her job to print all of the necessary paperwork associated with respective death call and that if she wasn’t going to get that done, she would be terminated....” Id. No meetings about the errors, demeanor, or insubordination cited as the reason for discharge were documented. [Employee] asserted no such meetings occurred while the Employer asserted such meetings did occur. The Administrative Law Judge determines the Employer’s testimony is not credible on this subject.
CONCLUSIONS OF LAW: ....
* * * ⅜ * *
The Employer proved [Employee] was possibly difficult to work with and a prickly character, but the Employer did not prove [Employee] committed all of the errors it alleged [Employee] committed. Further, the Employer did not prove [Employee] was aware that her job was in jeopardy for proofreading errors, insubordination, or unprofessional demeanor, which were cited as the main reasons for discharge. The Employer acquiesced to the same performance from [Employee] for over four years. If [Employee’s] performance and attitude was really as poor as the Employer alleged, and [Employee’s] mistakes caused such a large financial liability, a reasonable Employer would have discharged [Employee] much sooner. Therefore, the Administrative Law Judge concludes that [Employee] was not aware her job was in jeopardy for the cited reasons of discharge, did not commit all of the alleged breaches of duty cited as the cumulative reason for discharge, and was not discharged for just cause pursuant to Ind.Code § 22-4-15-1.

Appellant’s Appendix at 3-4; Exhibits at 67-68. Employer appealed, and the Board summarily affirmed the decision of the ALJ without a hearing. Employer now appeals the decision of the Board.

The issue is whether the Board erred in concluding that Employee’s employment with Employer was not terminated for just cause. Employer maintains that the decisions of the ALJ and Board are contrary to law, use an erroneous legal standard, are against the undisputed and overwhelming evidence, and are not supported by substantial evidence. Employer specifically argues that the undisputed evidence compels a finding of dismissal for just cause due to Employee’s unprofessional behavior, name calling, use of racial slurs, refusal to obey instructions, a pattern of errors, and leaving work early, and that Employer did not acquiesce in Employee’s actions. The Board asserts that the ALJ presided over an in-person hearing and was in a position to make credibility determinations, that this court may not reweigh the evidence or reassess the credibility of witnesses, that if Employee were making financially harmful mistakes as alleged and had been creating such an unpleasant working environment Employer would not have continued to employ Employee for four years, that the only documented warning issued to Employee was on January 26, 2010, regarding Employee’s failure to print out all necessary documents for an upcoming funeral, and that Employer failed to place Employee on notice that she could be discharged for making typographical errors, for her attitude, or for her rudeness. In its reply brief, Employer argues that the facts found by the ALJ show that Employee breached duties owed by the Employee to Employer, that the Board did not state that there was any evidence contradicting that Employee used racial slurs, was uncooperative, or rude, that Employer is not asking this court to reweigh the evidence, and that the undisputed evidence in the record demonstrates that Employer met its burden of showing that Employee was discharged for just cause.

[1,2] “The standard of review on appeal of a decision of the Board is threefold: (1) findings of basic fact are reviewed for substantial evidence; (2) findings of mixed questions of law and fact — ultimate facts— are reviewed for reasonableness; and (3) legal propositions are reviewed for correctness.” Recker v. Review Bd. of Ind. Dep’t. of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind.2011) (citing McClain v. Review Bd. of Ind. Dep’t. of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind.1998), reh’g denied). “Ultimate facts are facts that involve an inference or deduction based on the findings of basic fact.” Id. (citing McClain, 693 N.E.2d at 1317, and internal quotation marks omitted). “Where such facts are within the ‘special competence of the Board,’ the Court will give greater deference to the Board’s conclusions, broadening the scope of what can be considered reasonable.” Id. (citing McClain, 693 N.E.2d at 1318).

[3-5] In Indiana, an employee is ineligible for unemployment benefits if he or she is discharged for just cause. Stanrail Corp. v. Review Bd. of Dep’t. of Workforce Dev., 735 N.E.2d 1197, 1202 (Ind.Ct.App. 2000), trans. denied; Ind.Code § 22-4-15-l. Ind.Code § 22-4-15-l(d) delineates nine non-exclusive scenarios that can amount to “[discharge for just cause,” which include “any breach of duty in connection with work which is reasonably owed an employer by an employee.” This basis for a just cause discharge does not explicitly condition a claimant’s ineligibility on a requirement that the breach of duty must have been knowing, willful, or intentional. Recker, 958 N.E.2d at 1140. The breach of duty “ground for just [cause] discharge is an amorphous one, without clearly ascertainable limits or definition, and with few rules governing its utilization.” Id. (quoting Hehr v. Review Bd. of Ind. Emp’t. Sec. Div., 534 N.E.2d 1122, 1126 (Ind.Ct.App.1989)).

In considering whether an employer may utilize this provision as a basis for justifying its action, the Board should consider whether the conduct which is said to have been a breach of a duty reasonably owed to the employer is of such a nature that a reasonable employee of the employer would understand that the conduct in question was a violation of a duty owed the employer and that he would be subject to discharge for engaging in the activity or behavior.

Id. at 1140-1141 (quoting Hehr, 534 N.E.2d at 1126). “The duties reasonably owed to the employer by the employee may vary considerably depending on the circumstances.” P.K.E. v. Review Bd. of Ind. Dep’t. of Workforce Dev., 942 N.E.2d 125, 132 (Ind.Ct.App.2011), trans. denied. The employer bears the burden of establishing a prima facie showing of just cause for termination, and if that burden is met, the burden shifts to the employee to introduce competent evidence to rebut the employer’s case. Spieker v. Review Bd. of Ind. Dep’t. of Workforce Dev., 925 N.E.2d 376, 378 Ind.Ct.App.2010).

In this case, evidence and testimony presented at the December 1, 2011 hearing reveals that Employee was employed by Employer in a clerical position and was responsible for preparing death certificates, register books, memorial folders, and other items. Employee delivered poor work performance and would not cooperate with other employees. Employee’s supervisors repeatedly discussed with Employee the mistakes she had made, that her accuracy must improve, that every document must be proofread before it is printed, and that the mistakes “would happen over, and over, and over again.” Transcript at 15. Employee was hired for the technical skills she presented and because she was efficient on the computer and was ultimately fired for the lack of those technical skills, her inaccuracy, and the fact that she was unable to get along with the other employees. The errors by Employee involved misspelling, incorrectly identifying, or failing to include family members’ names on a registry book, a laminated bookmark, or a memorial folder.

Employer presented testimony that Employee’s errors were continual and did not improve, and in about November 2009 Employer began to keep a record of the errors. Employer presented testimony and documentation related to seventeen examples of Employee’s performance-related issues. The documentation of the errors submitted by Employer included, in part, source documents or forms provided by customers or others which Employee would use to prepare Employer’s documents and funeral provisions and the documents created or prepared by Employee which contained the errors. The errors related to a number of misspellings, typographical errors, misidentification of family members, and other mistakes. Employer counseled Employee about some of the errors.

On at least two occasions, Employee failed to transfer phones to an answering service when she left the office and later lied to Employer and said that she had transferred the phones. On one occasion, on January 26, 2010, Employer informed Employee that her job was to print all of the necessary paperwork associated with a death call and that, if she was not going to perform the work, that her employment would be terminated. Employee left work early, was subsequently instructed several times not to leave the funeral home early or transfer the phones to the answering service prior to closing, and nevertheless left early again.

One employee for Employer stated that Employee had a very poor attitude towards co-workers, vendors and sometimes clients, that Employee would become very defensive regarding mistakes, that two companies had stated they preferred to talk to someone besides Employee because she was rude anytime she spoke with them, that Employee would not help clean the building or empty her trash can as all employees were expected to do, that Employer wasted money on documents and paper products due to Employee’s continual mistakes, and that Employee would treat her superiors like her enemies and would call them derogatory names.

Another employee indicated that Employee stated that everyone working with Employer were liars, that Employee would have a confrontation with a supervisor/owner and later state to the other employee “I ain’t nobody’s n-r, and he can do things himself,” that the supervisor was “such an idiot I refuse to kiss his ass like you and [other employees],” and “I can’t understand why they don’t fire me so I can just go home and collect unemployment.” Exhibits at 58.

An employee who shared an office with Employee was told by Employee that “there would be no more eating at [the employee’s] desk, no more chewing gum, and no more wearing perfume.” Id. at 62. The employee stated that she had worked with nursing homes and rehab centers as clients for a long time and that soon after Employee started answering the phone those clients reported that Employee was “so rude.” Id. Employee was “always very confrontational” and made “many, many, many[ ] mistakes in printed material” which were “always someone else’s fault.” Id. On one occasion, a supervisor asked the employee who shared an office with Employee to tell Employee to put paper in his office fax machine, that when Employee received the message she said “you are kidding me I am not going to do that,” and that Employee obtained a package of paper from the supply room and placed the paper on the supervisor’s desk but did not load the fax machine. Id. at 63.

Based upon the evidence and testimony above and in the record before the ALJ and Board, we conclude that Employer showed that Employee breached a duty in connection with work which was reasonably owed Employer and that Employee’s conduct was of such a nature that a reasonable employee of Employer would understand that the conduct was a violation of a duty owed Employer. Accordingly, Employee was discharged for just cause. See VanCleave v. Review Bd. oflnd. Emp. Sec. Din, 517 N.E.2d 1260, 1264 (Ind.Ct. App.1988) (noting that the claimant persisted in a pattern of substandard work performance even though he knew what his duties were, had received training and assistance, and had been disciplined for substandard work performance and affirming the Board’s decision denying the employee benefits). Accordingly, we reverse the decision of the Board that Employee was not discharged for just cause and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FRIEDLANDER, J., and PYLE, J„ concur.

      . Ind.Code § 22-4-I5-l(a) provides in part:
      [A]n individual who has voluntarily left the individual’s most recent employment without good cause in connection with the work or who was discharged from the individual's most recent employment for just cause is ineligible for waiting period or benefit rights for the week in which the disqualifying separation occurred and until the individual has earned remuneration in employment equal to or exceeding the weekly benefit amount of the individual’s claim in each of eight (8) weeks.
      (Emphasis added).


author: DARDEN, Senior Judge. BROWN, Judge,

text:
    Tommi Emerson WINN, Appellant, v. STATE of Indiana, Appellee.
    No. 42A04-1201-CR-49.
    Court of Appeals of Indiana.
    Sept. 4, 2012.
    Christopher A. Ramsey, Ramsey Law Office, Vincennes, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF CASE

Tommi Emerson Winn appeals the trial court’s denial of his motion for bail bond reduction.

We reverse and remand.

ISSUE

Whether the trial court abused its discretion in denying Winn’s motion for bond reduction.

FACTS

On September 6, 2011, a Knox County resident called the police department after three young men approached her residence, asked for a person who did not live there, and then drove down the road and stopped in a neighbor’s driveway. Knox County Sheriffs Department Detective Michael Fisher arrived on the scene shortly after another officer stopped the men’s vehicle. After advising the men of their rights, Detective Fisher identified the men as Winn, Michael Ridge, and Jordan Dow-ney.

Detective Fisher then observed a large amount of jewelry in plain view in the back seat of the men’s vehicle. Later, Detective Fisher conducted a taped interview with Ridge, who confessed that earlier in the day the group stole the jewelry from a local home and that they had committed numerous other robberies. Downey also provided a statement admitting to the burglaries.

After completing the burglaries, the group transported the stolen items to a local pawn shop. The men sold what jewelry they could and then took the rest out into the country and threw it out of the window as they were driving. The group also took multiple trips to Wal-Mart to convert stolen change into bills, a practice that was verified by the store’s surveillance cameras. Detective Fisher recovered a guitar stolen by the group.

The State charged Winn with thirteen counts of burglary for his role in the home invasions. On September 14, 2011, the trial court set Winn’s bail at $25,000 cash. Winn then filed his “Motion for Bond Reduction, requesting that the “bond be modified such that he can post ten percent of twenty-five thousand dollars ($25,000) to secure release from jail.” (App. 19). In his motion, Winn stated that he had (1) lived in Knox County most of his life; (2) not been arrested for or convicted of a felony; (3) possessed strong ties to the community; and (4) not had a failure to appear in a court appearance.

At a hearing on the motion, the then twenty-two-year-old Winn presented evidence that he had lived in the community for approximately sixteen years. He and his father had lived at the same address for ten years. His sole encounter with the justice system was a ticket for underage consumption of alcohol, a class C misdemeanor that occurred in 2007. Winn pled guilty to the misdemeanor and served twelve months of supervised probation. During the probationary period, Winn completed a drug and alcohol program. Winn did not fail to appear at a hearing that required his attendance.

Winn presented additional evidence that he graduated from Vincennes Lincoln High School and has ties to the Vincennes community. His grandmother, uncle, and father live in Vincennes. Martha Beliles, a retired woman living in Winn’s neighborhood, testified that she considers Winn a grandson due to their close relationship. She also testified that Winn would perform tasks around her house and yard that she could not accomplish.

After the hearing, the trial court denied the motion on the basis that there were thirteen separate victims. The trial court reasoned:

Okay. I get it. I understand. Well, I appreciate that young Mr. Winn here doesn’t have a lengthy criminal history. But, the reason I set bond at the amount I did was at his initial hearing, I looked at the ... the fact there were 13 separate counts against him and 13 separate sets of victims, and decided at the time that I think that ... at that time $25,000.00 was the appropriate ... cash only was the appropriate bond. And while I appreciate the testimony of the witnesses here, Miss Beliles and his father, I think that is still the appropriate bond. So, the Court having considered the matter, now denies the request for bond reduction. Mr. Winn’s bond -will remain $25,000.00 cash only. We’re done, thank you.

(Tr. at 38). Winn now appeals.

DECISION

In general, the setting of the amount of bail is within the discretion of the trial court and will be reversed only for an abuse of discretion. Sneed, 946 N.E.2d at 1257 (citing Perry v. State, 541 N.E.2d 913, 919 (Ind.1989)). We therefore review the trial court’s denial of a defendant’s motion to reduce bail for an abuse of discretion. Id. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Id.

In setting the amount of bail, the trial court is required to take into account all facts relevant to the risk of nonappearance, including:

(1) the length and character of the defendant’s residence in the community;
(2) the defendant’s employment status and history and his ability to give bail;
(3) the defendant’s family ties and relationships;
(4) the defendant’s character, reputation, habits, and mental condition;
(5) the defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring him to trial;
(6) the defendant’s previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;
(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;
(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and
(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring him to trial.

Ind.Code § 35-33-8-4(b).

By statute, a trial court has several options regarding the manner of executing bail, including the option to “execute a bail bond by depositing cash or securities with the clerk of the court in an amount not less than ten percent (10%) of the bail.” Ind.Code § 35-33-8-3.2(a). This statute, like the statute governing the amount of bail, “also places the manner of executing the bail within the discretion of the trial judge.” Sneed, 946 N.E.2d at 1260. As we noted above, in reviewing the trial court’s exercise of discretion, we look to the same factors as are relevant to setting the amount of bail. See id.

Applying the statutory factors of Indiana Code section 35-33-8-4(b), we note that subsections 1, 2, 3, 4, 5, 6, 8, 9, and 10 weigh in favor of reduction or modification of bail in this case. Subsection 7, however, arguably weighs against such a reduction. See Sneed, 946 N.E.2d at 1258-59 (the fact that a defendant, if convicted, may face a lengthy sentence “tends to increase the risk [he] will fail to appear for trial and thereby cuts substantially against [his] argument that the trial court abused its discretion by not reducing the $25,000 bail”). As we held in Sneed, subsection 7 alone is sufficient to warrant a refusal to reduce the amount of bail.

However, the record shows that Winn was without the funds to post the entire $25,000 in cash. “Thus, it is only proper to consider the type of bail set by the trial court.” Id. at 1260. In effect, by denying Winn the option of depositing cash or securities in an amount not less than ten percent of the bail, “the trial court condemned [him] to jail pending trial without explicitly ordering [him] to be held or articulating any reason for doing so.” See id. While the severity of the thirteen charges arguably supports the setting of bail in the amount of $25,000, “the absence of any other factors suggesting [Winn] was a flight risk leads us to conclude the trial court should have granted” Winn’s request to deposit an amount not less than 10 percent of bail under Indiana Code section 35_33_8_3.2(a). See id.

We reverse and remand with instructions that the trial court grant Winn’s motion.

FRIEDLANDER, J., concurs.

BROWN, J., concurs in part with separate opinion.

BROWN, Judge,

concurring in part.

I concur in part with the majority and write separately to state that IC 35-33-8-3.2 cited in the opinion allows the trial court options in addition to granting Winn’s request to deposit an amount with the clerk of not less than 10 percent of the amount of bail. Specifically, IC 35-33-8-3.2(a)(1)(A) provides for execution of a bail bond with sufficient solvent sureties. Other parts of subsection (a)(1) allow for execution of a bond secured by real estate in the county, posting a real estate bond, or performing any combination of the four requirements described in that subsection. On remand I would not require that the trial court grant Winn’s motion but would allow the court the discretion afforded by IC 35-33-8-3.2.

      . Both our supreme court and this court have held that the denial of a motion to reduce bail is a final judgment appealable as of right. State ex ret. Peak v. Marion Criminal Court Div. One, 246 Ind. 118, 121, 203 N.E.2d 301, 302 (1965); Sneed v. State, 946 N.E.2d 1255, 1256 (Ind.Ct.App.2011). Here, the motion to reduce bond is a request to modify the manner in which the bail bond shall be paid, and as such, the motion is based "upon the same factors as are relevant to the setting of the amount of bail.” See Sneed, 946 N.E.2d at 1260. Both motions are premised upon the defendant's inability to pay the bond imposed. Although the State argues otherwise, we hold that the denial of Winn’s motion is a final judgment appealable as of right.

      . We note that the trial court's statement in the present case uses the words "cash only” but does not give the trial court's reasoning for this limitation.