Articles Posted in Appeals

The Indiana Court of Appeals recently shed more light on what constitutes a “special relationship” necessary for a plaintiff to establish constructive fraud without proving the five traditional elements of constructive fraud. American Heritage Banco, Inc. v. Cranston, 928 N.E.2d 239 (Ind. Ct. App. 2010).

Indiana case law on constructive fraud is, quite frankly, a mess. There are at least two types of constructive fraud. One form of constructive fraud requires five elements. The five elements include:

(i) a duty owing by the party to be charged to the complaining party due to their relationship; (ii) violation of that duty by the making of deceptive material misrepresentations of past or existing facts or remaining silent when a duty to speak exists; (iii) reliance thereon by the complaining party; (iv) injury to the complaining party as a proximate result thereof; and (v) the gaining of an advantage by the party to be charged at the expense of the complaining party.
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Indiana utilities and Indiana utility lawyers should be aware that the Indiana Supreme Court recently had the opportunity to consider the standard of review that courts follow in reviewing utility regulatory settlements of an administrative agency. N. Ind. Pub. Serv. Co. v. U.S. Steel, 907 N.E.2d 1012 (Ind. 2009). The case involved a dispute regarding a settlement agreement entered into between an Indiana public utility and a steel production facility. The agreement arose out of a previous dispute between the two parties, and had been submitted to the Indiana Utility Regulatory Commission (“IURC”) at the time for approval. However, years later when a provision of the agreement became effective, there was a disagreement between the parties regarding its interpretation. U.S. Steel filed a complaint with the IURC seeking to enforce its interpretation of the agreement, and the IURC ultimately granted summary judgment to U.S. Steel on this issue. Id. at 1015 However, the Indiana Court of Appeals reversed, and the Indiana Supreme Court granted transfer. Id.

In hearing the case, the Indiana Supreme Court discussed the standards of review which apply when considering decisions of administrative agencies. Id. at 1016. The Court stated that such reviews were multi-tiered, the first level of review being “whether there is substantial evidence in light of the whole record to support the Commission’s findings of basic fact.” Id. (citing Citizens Action Coalition of Ind., Inc. v. N. Ind. Pub. Serv. Co., 485 N.E.2d 610, 612 (Ind. 1985)). The Court noted that decisions of the IURC will stand under this standard “unless no substantial evidence supports it.” Id. (citing McClain v. Review Bd. of Ind. Dept. of Workforce Dev., 693 N.E.2d 1314, 1317-18 (Ind. 1998)). Under the standard, a court does not reweigh evidence or assess witness credibility but only considers evidence in a light most favorable to the IURC’s findings. Id.
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Here is a case that could describe many farmers and other businessmen retaining independent contractors. It is summer time and paint crews travel from farm to farm offering to paint grain bins or other outbuildings. Almost every farmer owning grain bins will have had this experience and many of us have hired the crews to perform painting tasks. Do you also require the contractor to produce or sign a certificate of insurance that the contractor has insurance, including workers’ compensation insurance for their employees? My guess is that many farmers seal the deal verbally and move on after the price is agreed upon. Read on….

Indiana Supreme Court has granted transfer of a case involving Indiana’s workers’ compensation statute and a farmer’s insurance policy which aimed at excluding the farmer’s liability coverage. Everett Cash Mutual Insurance Company vs. Rick Taylor and Katrina Taylor, No. 02A03-0808-CV-386 (Ind. Ct. App. 2009), transfer granted (September 3, 2009).

In Everett, a farmer employed an independent contractor business to paint his house, grain bin, and barn. The farmer did not check to see if the business carried workers’ compensation insurance for its employees and in fact they did not. One of the business’ employees came into contact with an electrical wire while painting and was injured.

The employee initially filed a workers’ compensation claim against the independent contractor business, but he discovered the business had no such insurance. He then amended his complaint to name the farmer, alleging the farmer failed to verify whether the independent contractor business had workers’ compensation insurance pursuant to Indiana Code 22-3-2-14(b). At no time did the employee file any tort-related claims against the farmer.
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The Indiana Court of Appeals recently reviewed the enforceability of a three-year, 50-mile radius non-compete agreement for a physician in Mercho-Roushdi-Shoemaker-Dilley Thoraco-Vascular Corporation v. Blatchford, 900 N.E.2d 786 (Ind. Ct. App. 2009). Indiana business lawyers and their clients will benefit from the clarification offered by the Court. The case is noteworthy because the court held the non-compete agreement to be unenforceable, not because of the enormous geographical area, but solely because the particular physician was uniquely qualified to provide cardiovascular services in Terre Haute and the patients in Terre Haute would be harmed if the court enforced the non-compete clause.

Mercho-Roushdi-Shoemaker-Dilley Thoraco-Vascular Corporation (“MRSD”) is a physician group practice that provides cardiovascular medical services in both Indianapolis and Terre Haute. Blatchford was a shareholder of MRSD and a cardiovascular surgeon employed by MRSD who signed non-compete agreements pursuant to both his shareholder agreement and his employment agreement. Both non-compete agreements prohibited Blatchford from competing with MRSD or performing cardiovascular medical services for three years within a 50-mile radius around Terre Haute and a 50-mile radius around Indianapolis. After a dispute arose and MRSD terminated Blatchford’s employment, MRSD brought suit to enforce the non-compete agreement and requested a preliminary injunction to prohibit Blatchford from practicing in Terre Haute.
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