WWW.DISSERTATION.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Dissertations, online materials
 
<< HOME
CONTACTS



Pages:   || 2 | 3 |

«FILED Sep 08 2016, 9:19 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Mark A. Matthes ...»

-- [ Page 1 ] --

FILED

Sep 08 2016, 9:19 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE

Mark A. Matthes David S. Wirth

Yoder Ainlay Ulmer & Buckingham, Fairfield, Ohio

LLP Kristine Lindley

Goshen, Indiana Richard R. Skiles Skiles DeTrude Indianapolis, Indiana IN THE

COURT OF APPEALS OF INDIANA

Thomas A. Carpenter, September 8, 2016 Court of Appeals Case No.

Appellant-Plaintiff, 33A01-1602-CT-265 v. Appeal from the Henry Circuit Court Lovell’s Lounge and Grill, LLC The Honorable Mary G. Willis, and Jerry Dean Johnson, Judge Defendants, Trial Court Cause No.

33C01-1308-CT-27 and The Cincinnati Specialty Underwriters Insurance Company, a subsidiary of the Cincinnati Insurance Companies, Garnishee-Defendant ______________________________

Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 1 of 26 The Cincinnati Specialty Underwriters Insurance Company, Appellee-Plaintiff, v.

Thomas A. Carpenter, Lovell’s Lounge and Grill, LLC, and Jeremy Lovell d/b/a Lovell’s Lounge and Grill, Appellants-Defendants Crone, Judge.

Case Summary This case arises from an incident at Lovell’s Lounge and Grill, in which [1] Thomas A. Carpenter was injured by Jerry Dean Johnson. Carpenter, Lovell’s Lounge and Grill, LLC, and Jeremy Lovell d/b/a Lovell’s Lounge and Grill (collectively “Appellants”) appeal the judgment in favor of The Cincinnati Specialty Underwriters Insurance Company (“CSU”) on its action seeking a declaratory judgment regarding its obligations under its insurance policy with Lovell’s Lounge. In that judgment, the trial court found that CSU had no obligation to make payments under a consent judgment (“the Consent Judgment”), in which Carpenter and Lovell’s Lounge agreed that Carpenter’s injuries were caused by Lovell’s Lounge negligence or that Lovell’s Lounge was Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 2 of 26 vicariously liable for Johnson’s negligence. Appellants argue that the trial court erred in finding that the Consent Judgment was the product of bad faith or collusion, and therefore collateral estoppel does not require CSU to be bound by the determinations of liability and damages in the Consent Judgment.

Because we conclude that CSU has carried its burden to show by clear and convincing evidence that the Consent Judgment was the product of bad faith or collusion, we conclude that the trial court did not err in finding that collateral estoppel does not require CSU to be bound by the Consent Judgment.

–  –  –

Castle. Jeremy Lovell is the registered agent for Lovell’s Lounge. In May 2012, Carpenter went to the Lounge, and within moments of entering, he was injured by Jerry Dean Johnson (“the Incident”). Johnson was charged with class C felony battery resulting in serious bodily injury for his actions in injuring Carpenter. At the trial, Carpenter testified that upon entering the Lounge, he heard Johnson say, “You’re stupid for coming in here.” Appellee’s App. at 60.

Carpenter also testified that Johnson hit him in the left jaw, causing him to fall, and kicked him in the left eye. Id. at 61. In addition, Carpenter testified that a couple months prior to the Incident, Johnson threatened to hurt him because Johnson was upset that Carpenter was dating Johnson’s ex-girlfriend. Id. at 63A jury found Johnson guilty as charged. Johnson appealed, and this Court Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 3 of 26 affirmed his conviction. Johnson v. State, No. 33A01-1306-CR-266 (Ind. Ct.

App. Dec. 31, 2013), trans. denied (2014).

In August 2013, Carpenter filed a verified complaint against Lovell’s Lounge [3] and Johnson based on the Incident. The complaint’s “Facts” section contained the following allegation: “Within moments of entering [the] Lounge, Carpenter was brutally attacked by [Johnson] with numerous punches and kicks.” Appellants’ App. at 41. In the “Parties and Jurisdiction” section, the complaint alleged that “Johnson [was] an employee of and/or performed services for Lovell’s Lounge.” Id. at 40.

Carpenter’s complaint included three counts. In Count I, a claim for civil [4] assault and battery, Carpenter alleged that “Johnson did effectuate a civil assault and battery upon [him],” and “intended to cause a harmful or offensive contact with [him],” which caused severe bodily injury to him. Id. at 42. In Count II, a negligence claim based on premises liability, Carpenter alleged that he was an invitee and that Lovell’s Lounge breached its duty to him by failing to protect him from “expected criminal acts,” failing to “prevent a reasonably foreseeable attack by [Johnson],” and “failing to manage the [Lounge] in a manner that took previously known threats or acts of violence into consideration of the safety of patrons, including Carpenter.” Id. at 43. In Count III, a claim based on a Dram Shop Act violation, Carpenter alleged that Lovell’s Lounge furnished Johnson with alcohol when Johnson was visibly intoxicated and Johnson’s intoxication was a proximate cause of Carpenter’s

–  –  –





Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 4 of 26 Lovell’s Lounge was insured by CSU under a commercial general liability [5] policy (“the Policy”) and sought insurance coverage from CSU for Carpenter’s complaint. However, in October 2013, CSU denied coverage to Lovell’s Lounge on several grounds, including that the Policy contained an exclusion for

–  –  –

In July 2014, Carpenter filed a verified amended complaint against Lovell’s [6] Lounge and Johnson. The amended complaint was identical to the first complaint except for four paragraphs added to the end of Count III, which

contained the following allegations:

–  –  –

Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 5 of 26 Lovell’s Lounge sought insurance coverage from CSU based on Carpenter’s [7] amended complaint. In a letter dated August 4, 2014, CSU again denied coverage based on the Policy’s exclusion for assault and battery.

On November 14, 2014, attorney Mark A. Matthes filed an appearance for [8] Carpenter. At that time, Lovell’s Lounge was represented by attorney Robert Emmerson. Matthes and Emmerson attempted to negotiate a consent judgment between Carpenter and Lovell’s Lounge. On December 17, 2014,

Emmerson sent Matthes the following email:

–  –  –

On December 31, 2014, Emmerson withdrew his appearance on behalf of [9] Lovell’s Lounge. During his deposition, Jeremy testified that Emmerson withdrew because Emmerson had charged him $7000 for legal fees and Lovell “told [Emmerson] I wasn’t gonna pay him.” Id. at 215.

On February 25, 2015, Carpenter and Lovell’s Lounge submitted their Consent [10] Judgment to the trial court, which the court approved and entered. The

Consent Judgment provided in relevant part as follows:

Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 6 of 26

2. Upon entering Lovell’s Lounge, [Johnson] negligently came into physical contact with Carpenter, accidently causing him serious bodily injury. The harm was neither intended nor expected from the standpoint of Johnson or Lovell’s Lounge.

….

6. Carpenter was a business invitee, and as such, Lovell’s Lounge owed a duty of reasonable care, including the duty to warn Carpenter of foreseeable negligent conduct that could cause harm.

7. The negligent conduct engaged in by Johnson which caused the harm to Carpenter was foreseeable to Lovell’s Lounge, however, while foreseeable to Lovell’s Lounge, it was neither intended nor expected from the standpoint of Lovell’s Lounge or its employees, including Carpenter.

8. Lovell’s Lounge breached its duty to warn Carpenter of the foreseeable danger, which breach was also a proximate cause of the harms of Carpenter.

9. Not only did Lovell’s Lounge breach its duty to warn, [Johnson] performed services for and was an agent of Lovell’s Lounge, and he was within the scope of his agency at the time of the negligent conduct which was the harm to Carpenter.

10. Based on the foregoing, and to avoid the costs and expense of litigation Defendant Lovell’s Lounge agrees that [Carpenter] has incurred injuries and damages, including pain and suffering, totaling $1,125,000.

Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 7 of 26 Id. at 54-56. The Consent Judgment was signed by Jeremy Lovell, pro se, as the agent of Lovell’s Lounge and by Matthes, as attorney for Carpenter. Jeremy was not a licensed attorney. Johnson was not a party to the Consent Judgment.

On March 17, 2015, Johnson was dismissed from the case.

In addition to the Consent Judgment, Carpenter, Lovell’s Lounge, and Jeremy [11] entered into a postjudgment agreement not to execute, in which Carpenter, in consideration for the Consent Judgment, agreed not to execute or enforce the Consent Judgment against Lovell’s Lounge, to indemnify and defend Lovell’s Lounge from any action that CSU might have against Lovell’s Lounge for its execution of the Consent Judgment, and to pay Jeremy the first $7000 of any recovery by Carpenter against CSU.

On March 17, 2015, Carpenter filed a motion for proceedings supplemental, [12] asserting that the Policy provided coverage for the Consent Judgment and asking the trial court to order CSU to appear to answer to its obligations under the Policy. On March 23, 2015, Matthes, who was still representing Carpenter, filed an appearance on behalf of Lovell’s Lounge. CSU filed an answer.

On June 19, 2015, CSU filed a complaint seeking a declaratory judgment in [13] cause number 33C01-1506-PL-45, naming as defendants Lovell’s Lounge, Jeremy Lovell d/b/a Lovell’s Lounge, and Carpenter. CSU asserted that it had no obligation under the Policy to make payment to Carpenter for the Consent Judgment because Carpenter’s injuries were caused by assault and battery and the Policy contained an exclusion for assault or battery. CSU also asserted that Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 8 of 26 the Consent Judgment had been obtained by fraud, bad faith, or collusion; it had been procured by the unauthorized practice of law; it did not fall within a broad range of reasonable solutions of the underlying dispute; and it contained statements of fact and/or law that were not necessarily adjudicated and therefore were unenforceable against CSU. Id. at 69-73. On June 24, 2015, the declaratory judgment action was consolidated with the proceeding

–  –  –

On July 9, 2015, Matthes filed an appearance on behalf of Jeremy Lovell d/b/a [14] Lovell’s Lounge. In August 2015, Carpenter, Lovell’s Lounge, and Jeremy filed a motion to dismiss CSU’s complaint for declaratory judgment and a supporting brief, asserting that CSU’s complaint failed to state a claim because CSU was barred by collateral estoppel from relitigating facts and issues determined in the Consent Judgment. Id. at 78-110. In September 2015, Lovell’s Lounge and Jeremy filed a counterclaim against CSU, alleging that CSU breached the Policy by failing to defend and/or indemnify Lovell’s Lounge for Carpenter’s lawsuit against it.

In October 2015, CSU filed a motion to set aside the Consent Judgment, a [15] cross-motion for summary judgment, and a memorandum in opposition to Carpenter, Lovell’s Lounge, and Jeremy’s motion to dismiss and in support of its cross-motion for summary judgment, arguing, among other things, that the Consent Judgment was the product of bad faith or collusion and therefore was not binding on CSU. In November 2015, Carpenter, Lovell’s Lounge, and Jeremy filed a cross-motion for partial summary judgment on CSU’s complaint Court of Appeals of Indiana | Opinion 33A01-1602-CT-265 | September 8, 2016 Page 9 of 26 for declaratory judgment, arguing that because CSU failed to file a timely declaratory judgment action, it was barred from challenging the Consent Judgment. Id. at 290. In December 2015, the trial court held a hearing on the motion to dismiss CSU’s complaint, the motion to set aside the Consent Judgment, and the cross-motions for summary judgment.

In January 2016, the trial court issued findings of fact, conclusions thereon, and [16] order of judgment, finding in relevant part that the Consent Judgment was procured by bad faith and/or collusion, and therefore the doctrine of collateral estoppel did not apply to bind CSU to the Consent Judgment. Specifically, the

–  –  –

The trial court concluded that CSU had no obligation under the Policy to make [17] payment to Carpenter for the Consent Judgment or for the Incident between Johnson and Carpenter. The trial court denied Carpenter, Lovell’s Lounge, and Jeremy’s motion to dismiss CSU’s complaint and their cross-motion for partial summary judgment. Also, the trial court granted CSU’s motion to set aside the Consent Judgment and its cross-motion for summary judgment and directed final judgment in favor of CSU on its declaratory judgment action.

Finally, the trial court dismissed Lovell’s Lounge and Jeremy’s counterclaim and denied Carpenter’s motion for proceedings supplemental as moot. This

–  –  –

C.M.L. ex rel. Brabant v. Republic Servs., Inc., 800 N.E.2d 200, 202 (Ind. Ct. App.

2003) (citations omitted), trans. denied (2004). 1 “[W]e will affirm a summary judgment order if it is sustainable upon any theory or basis found in the record.” E.J. ex rel. Jeffrey v. Okolocha, 972 N.E.2d 941, 945 (Ind. Ct. App.

2012).

Appellants challenge the trial court’s finding that collateral estoppel does not [19] apply to bind CSU to the Consent Judgment.

–  –  –



Pages:   || 2 | 3 |


Similar works:

«By Harleen Gambhir With startling speed, the Middle Eastern terrorist organization known as ISIL has burst into the local news in Western nations, associated with attacks in Paris and now, if indirectly, with the mass shooting in San Bernardino, California. This might have shocked Americans and Parisians for whom the group was long a distant-sounding threat, but for close observers of the organization, ISIL’s global strategy should come as no surprise. In fact, ISIL has pursued an...»

«Unmet Load Hours Troubleshooting Guide IES Virtual Environment 2013 Feature Pack 1 How to use this Document This guide is designed to help reduce or eliminate unmet load hours in a model. You should begin by understanding what an unmet load hour is, using the “Definition” section of this document. Next, you should identify when and where unmet load hours occur in your model. The “Unmet Load Hours Tests” section in this document will walk you through that process. To determine the cause...»

«PROYECTO Reconstrucción de Sistema de Transmisión Principal de Radio Segovia, Ocotal (Nueva Segovia, Nicaragua). Entidad solicitante: Cooperativa de Servicios de Radiodifusión y Comunicación Segovia R. L (Radio Segovia). Título del proyecto: Reconstrucción del Sistema de Transmisión Principal de Radio Segovia, Ocotal (Nueva Segovia, Nicaragua).1. DATOS DE PRESENTACIÓN DEL PROYECTO Resumen: El jueves 11 de agosto a eso de las 6:30 de la tarde hubo una especia de tornado con fuertes...»

«Nervous Wrecks and Ginger-nuts: Bartleby at a Standstill1 RALPH JAMES SAVARESE Grinnell College Where, however, from disease, or the food being inappropriate, the stomach is injured by what is eaten, consciousness then becomes painful for the express purpose of warning us that mischief has been done, and we must take means for its removal. In some kinds of dyspepsia, indeed, the sensibility becomes exalted to an extraordinary degree. — William Beaumont2 R ecall the moment in Moby-Dick when...»

«Hide and Seek How a Government Partner Uses Tax Havens to Avoid Canadian Taxes A Report by UNITE HERE Canada INTRODUCTION In Canada, an estimated $8 billion annually is lost to tax havens. A series of major banking leaks have spotlighted the widespread use of tax havens by wealthy Canadians and corporations in recent years. As a result, the Canadian Revenue Agency (CRA) has begun to take some steps to discourage the use of offshore tax havens. Yet, one of the Government’s private sector...»

«Climate KIC – Analysis of support for climate-related start-ups and education ecosystem in Ireland Climate-KIC UK & Ireland Tender for Application Analysis of support for climate-related start-ups in Ireland and the underpinning education eco-system Date: 5 October 2016 Climate KIC – Analysis of support for climate-related start-ups and education ecosystem in Ireland Contents Page 1. Introduction 2. Background 3. Objectives 4. Tender specification 5. Contract Value & Payment arrangements 6....»

«Tell us about yourself. Date:_/_/ Patient Name: Last, First MI Preferred/Nick Name Date of Birth: /_/_ Social Security # (for insurance purposes): _  Male  Female Sex: Phone (Home): (Cell): Email: Address: Street Apartment # _ City State Zip Code Employer Name: _ Phone:  Single  Separated  Divorced  Widowed  Married: Marital Status: Spouse Name: _ Last, First MI Date of Birth: /_/_ Social Security # (for insurance purposes): Do you currently have dental Insurance?...»

«Perrin, Martin and Hansen Paper No. 01-3233 Duplication for publication or sale is strictly prohibited without prior written permission of the transportation research board. Modifying Signal Timing During Inclement Weather Joseph Perrin Jr. Peter T. Martin Blake G. Hansen University of Utah Traffic Lab University of Utah 122 South Central Campus Drive Rm. 104 Salt Lake City, Utah 84112-0561 (801) 581-7144 Phone (801) 585-5860 Fax E-mail: martin@civil.utah.edu www.trafficlab.utah.edu...»

«The Drive for Thinness: The Relationship Between Social Support, Body Image and Eating Habits Emily Larson, Jessica Retka, Alyssa Williams, and two additional authors During the transition from high school to college, students experience drastic changes in their social support networks. Family presence is limited, high school friends become Facebook friends and complete strangers take on intimate roles. Because of this transition, the college campus provides a unique setting to study the types...»

«1 Electrostatic Ignition Hazards Associated with Flammable Substances in the Form of Gases, Vapors, Mists and Dusts M.Glor Swiss Institute for the Promotion of Safety & Security, WKL-32.3.01, PO box, CH-4002 Basel, Switzerland Abstract. The paper deals with the assessment of the electrostatic ignition hazards when flammable gases, liquids or powders are handled and processed in industry. It reviews the present state of knowledge in this field based on information available from literature,...»

«UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Release No. 57728 / April 28, 2008 ADMINISTRATIVE PROCEEDING File No. 3-13025 ORDER INSTITUTING In the Matter of ADMINISTRATIVE AND CEASE-ANDDESIST PROCEEDINGS PURSUANT TO RYAN G. LEEDS, SECTION 8A OF THE SECURITIES ACT OF 1933 AND SECTION 15(b) OF THE Respondent. SECURITIES EXCHANGE ACT OF 1934, MAKING FINDINGS, AND IMPOSING REMEDIAL SANCTIONS AND A CEASEAND-DESIST ORDER I. The Securities and...»

«IPSWICH ENVIROFORUM 2015 PROGRAM Photograph by G. Passier Ipswich Enviroplan Photographic Competition Sharing water wisdom for a sustainable future Friday, 1 May 2015 | 8.00 am – 5.30 pm Brookwater Golf and Country Club www.ipswich.qld.gov.au HANDBOOK CONTENTS WELCOME CONFERENCE SPONSORS AND SUPPORTERS ABOUT THE IPSWICH ENVIROFORUM ABOUT THE THEME INTEGRATED WATER MANAGEMENT IN IPSWICH CONNECT/ COMMUNICATE FIELD TRIP PROGRAM OVERVIEW KEYNOTE SPEAKER PROFILE – JIM SOORLEY SETTING THE SCENE...»





 
<<  HOME   |    CONTACTS
2016 www.dissertation.xlibx.info - Dissertations, online materials

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.