Volume 39 Issue 2 January 13, 2012

Woodson v. State, No. 49A05-1106-CR-306, __ N.E.2d __ (Ind. Ct. App., Jan. 6, 2012).

Officer lacked reasonable suspicion for a Terry stop merely because individual stopped was in a drug “hot-zone.”

Sickels v. State, No. 20A03-1102-CR-66, __ N.E.2d __ (Ind. Ct. App., Jan. 6, 2012).

Conviction on three counts of nonsupport for failure to pay in gross support order for three children did not violate Indiana Double Jeopardy law’s actual evidence doctrine; nonsupport restitution “victims” were the children, not the custodial parent; restitution order erroneously characterized restitution as “a civil judgment.”

Smith v. Cain, No. 10–8145, 565 U.S. __ (Jan. 20, 2012).

State’s failure to disclose to defense the sole eyewitness’s pre-trial statement to detective that he could not identify any of the gunmen, when eyewitness identified defendant at trial as the first gunman, violated the due process prosecution disclosure rule of Brady v. Maryland.

Perry v. New Hampshire, No. 10–8974, 565 U.S. __ (Jan. 11, 2012).

Declines to adopt a due process judicial reliability screening procedure for eyewitness identification evidence.

Williams v. State, No. 49A02-1103-CR-266, __ N.E.2d __ (Ind. Ct. App., Jan. 11, 2012).

Statutory confidentiality for Board of Pharmacy prescription database protects prescription subject’s physician-patient and pharmacist-patient privileges, and subject’s criminal defense discovery request for prescription records waived these privileges’ protection, so that Board’s objections to disclosure based on confidentiality were without merit.

Dexter v. State, No. 79S05-1106-CR-367, __ N.E.2d __ (Ind., Jan. 12, 2012).

In an habitual offender proceeding, “an unsigned judgment is not sufficient to prove beyond a reasonable doubt the fact of a prior conviction.”

Haag v. Castro, No. 29S04-1102-CT-118, ___ N.E.2d ___ (Ind., Jan. 10, 2012).

A local youth soccer team cannot recover under the state youth soccer governing association’s business auto-insurance policy for injuries sustained when the van in which they were riding was involved in an accident, because the van was not being used in the business of the association, a condition for coverage under the insurance policy at issue.

Ramsey v. Moore, No. 45S05-1105-CT-281, ___ N.E.2d ___ (Ind., Jan. 12, 2012).

Because the trial court’s order was not a final appealable judgment, the Indiana Supreme Court has no subject matter jurisdiction to hear an appeal on the trial court’s order denying medical malpractice defendants’ request for a preliminary determination and requesting dismissal due to the plaintiff’s dilatory conduct.



Woodson v. State, No. 49A05-1106-CR-306, __ N.E.2d __ (Ind. Ct. App., Jan. 6, 2012).

BAILEY, J.

            Here, we cannot conclude that Officer Cooper’s interaction with Woodson began as a consensual encounter. Woodson had been riding his bicycle in the parking lot of the gas station and was able to see the maroon car that he had just exited being pulled over by Officer Cooper’s colleague. Officer Cooper approached as Woodson got off the bicycle, pulled his car up immediately next to Woodson, and asked Woodson what he was doing. Officer Cooper testified that he would have pursued Woodson if Woodson fled instead of complying with the request for information. Officer Cooper handcuffed Woodson for officer safety purposes when Woodson became “loud” and “belligerent” in the absence of any apparent threat to Officer Cooper and before obtaining information about Woodson from his police computer. Under these circumstances, we cannot conclude that this was a consensual encounter.

            We thus consider whether Officer Cooper’s stop of Woodson was a proper Terry stop. Woodson argues that Officer Cooper lacked the reasonable suspicion necessary to conduct a Terry stop. We agree.

            Woodson was one of two individuals in a car parked at a gas station in a “hot zone” of drug activity, with a bicycle parked immediately next to the car. Officer Cooper testified that

he could not see what interaction, if any, was occurring within the car. Woodson got out of the car carrying a backpack, got on his bicycle, and began to ride it. The State characterizes this as Woodson riding “around in circles” (Appellee’s Br. 9), but on cross examination Officer Cooper agreed that Woodson was “kind of idly riding his bike” along 38th Street in front of a fast food restaurant attached to the gas station. (Tr. 12-13). At some point before Officer Cooper approached him, Woodson got off the bicycle, even as he was able to see another police officer pull over the maroon car he had just been sitting in.

            Officer Cooper testified here that he could not see any transaction between Woodson and the driver of the maroon car and there had been no report of criminal activity to which Officer Cooper was responding. Woodson did not attempt to flee the scene and hide or dump contraband upon completing a transaction and seeing a police officer approach in a high-crime area. See Ross v. State, 844 N.E.2d 537, 541-42 (Ind. Ct. App. 2006). Nor did Officer Cooper testify that in his training and experience Woodson’s behavior was of a type frequently displayed by individuals dealing in pirated DVDs, drugs, or any other contraband. See Wilson v. State, 670 N.E.2d 27, 28-29 (Ind. Ct. App. 1996) (concluding there was reasonable suspicion to detain defendant where the arresting officer was in a high-crime and -drug area, was trained in the factors pointing to drug transactions, and observed conduct conforming to this pattern).

            Only the fact that the area of Indianapolis in which Woodson was arrested was considered to be a “hot zone” gave Officer Cooper any kind of suspicion that drug-related or other illegal activity might be afoot. Cf. Crabtree, 762 N.E.2d at 246-47 (concluding there was reasonable suspicion where the defendant was in a high-crime area, it was 4:30 a.m., a noise complaint had been conveyed to police, and the defendant was found hiding behind a car when police arrived on scene). This is not enough to amount to reasonable suspicion, and we therefore cannot conclude under the totality of the circumstances that Officer Cooper’s Terry stop was appropriate under the Fourth Amendment.

BAKER, J., and DARDEN, J., concur.

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Sickels v. State, No. 20A03-1102-CR-66, __ N.E.2d __ (Ind. Ct. App., Jan. 6, 2012).

NAJAM, J.

            Here, Sickels contends that his multiple convictions for nonsupport violate double jeopardy principles because his nonsupport violates only one civil order, which is an “in gross” support order. That is, the civil support order requires Sickels to pay a sum certain per week rather than per child. It is apparently irrelevant to Sickels’ double jeopardy argument that he was convicted of two Class C felonies and one Class D felony. The difference between the two levels of conviction is that a Class C felony requires an arrearage of at least $10,000. See I.C. § 35-46-1-5(a) (West 1998).

            Sickels’ double jeopardy arguments recently found support from this court in Sanjari v. State, 942 N.E.2d 134 (Ind. Ct. App. 2011), vacated by grant of transfer (Ind. May 6, 2011) (docket). In that case, another panel of this court concluded that, under the language of the current version of the statute, multiple convictions for nonsupport of a dependent violated the Double Jeopardy Clause of Indiana’s Constitution. Specifically, that panel stated as follows:

            [Defendant] Sanjari also asserts that his convictions for two counts of class C felony nonsupport of a dependent child violate the constitutional prohibition against double jeopardy. . . .

            Originally, the State charged Sanjari with two counts of class C felony nonsupport, one pertaining to A.S. and one pertaining to M.S., with each count listing an arrearage of $17,728 as of August 31, 2006. . . .

            Sanjari now claims that, due to double jeopardy constraints, the trial court could enter judgment of conviction on only one of the two class C felony counts. He predicates his claim on the fact that only one child support order exists. That support order is an “in gross” order covering both of Sanjari’s children. Indiana Code Section 35-46-1-5(a) states,

A person who knowingly or intentionally fails to provide support to the person’s dependent child commits nonsupport of a child, a Class D felony. However, the offense is a Class C felony if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).

(Emphasis added.)

            The record supports Sanjari’s double jeopardy argument. The actual evidence used to convict Sanjari of two class C felony counts was one “in gross” support order. Although he has harmed more than one victim, he has committed only one crime: failure to pay at least $15,000 in support to one or more children. As such, conviction on both class C felony counts amounted to multiple punishments for the same offense in violation of his double jeopardy rights. Accordingly, we vacate his conviction on Count II class C felony nonsupport. We affirm his conviction and sentence on Count I, class C felony nonsupport.

Id. at 143-44 (citation to the record omitted). The State sought, and our supreme court granted, transfer of jurisdiction in Sanjari. [Footnote omitted.]  Accordingly, that decision has been vacated. [Footnote omitted.] See Ind. Appellate Rule 58(A).

            Insofar as the panel in Sanjari reached its conclusion based on the current version of the statute, that decision is inapposite here because the current statutory language is materially different from the language in effect at the time Sickels committed his crimes. Under the prior version of the statute, it was well established that the State could prosecute multiple felonies for multiple dependents, even if there was only one support order. See Moore, 688 N.E.2d at 918; Geans, 623 N.E.2d at 437. Sanjari’s reliance on the language of the current version of the statute simply does not apply to Sickels’ prosecution.

            However, the Sanjari panel’s conclusion that the use of one civil order to support multiple convictions violates the Richardson actual evidence test would, if accurate, apply with equal force on these facts as it did in that case. But we are not persuaded that Sanjari is accurate in that respect. The statute proscribes the nonsupport of dependents, not the violation of civil support orders. See Porter v. State, 935 N.E.2d 1228 (Ind. Ct. App. 2010) (holding, under the current version of the statute, that the State could seek multiple Class D felonies convictions for multiple, unsupported dependents); Geans, 623 N.E.2d at 437 (holding the same under the prior version of the statute). In the language of double jeopardy, we conclude that Sickels’ three convictions do not violate the same elements test of the United States Constitution or the statutory elements test or the actual evidence test of the Indiana Constitution.

We first consider the same elements test and the statutory elements test. As our supreme court has stated:

This inquiry is quite simple when a facial comparison of the charged crimes clearly shows that separate offenses are involved. For example, if a defendant is charged with murdering A and murdering B, further inquiry into whether the offenses are the “same offense” for double jeopardy purposes is not warranted because the charged crimes are different on their face. They involve different victims. Similarly, if a defendant is charged with robbing a particular store on Monday and then again on Friday, the offenses are, facially, not the same.

Richardson, 717 N.E.2d 32, 50 n.40.

            Here, the State charged Sickels with having committed three counts of nonsupport of a dependent. Each of the State’s allegations was based on a different victim, namely, one of Sickels’ dependent children. As Sickels himself acknowledges, on the face of the charging information the State alleged three different crimes. See Appellant’s Br. at 45. Stated another way, each alleged offense “require[d] proof of a fact that the other d[id] not,” namely, the nonsupport of a particular dependent child. Id. at 50 n.41 (discussing the Blockburger standard). Thus, the State’s allegations did not violate the same elements test or the statutory elements test.

            Similarly, neither do Sickels’ three convictions violate the actual evidence test. According to our supreme court:

            To show that two challenged offenses constitute the same offense under the actual evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” [Richardson, 717 N.E.2d at 53.]

            Application of the actual evidence test requires the reviewing court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury’s perspective, considering where relevant the jury instructions, argument of counsel, and other factors that may have guided the jury’s determination. Richardson, 717 N.E.2d at 54 n.48; see, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind. 2000). The Richardson actual evidence test was carefully and deliberately crafted to provide a general formulation for the resolution of all actual evidence test claims. The language expressing the actual evidence test explicitly requires evaluation of whether the evidentiary facts used to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. The test is not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense. In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense. Application of this principle has been articulated in different ways. Compare Richardson, 717 N.E.2d at 54 (“the defendant has demonstrated a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of robbery were also used to establish the essential elements of the class A misdemeanor battery”), with Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999) (“the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing the essential elements of robbery as a Class A felony”).

Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002) (emphasis added, footnote omitted). That is, to avoid a double jeopardy violation, “each conviction require[s] proof of at least one unique evidentiary fact.” Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).

            An essential element of the crime of nonsupport of a dependent is the existence of a dependent child. See I.C. § 35-46-1-5(a). Thus, an essential element of the State’s first charge against Sickels was the existence of G.S. An essential element of the State’s second charge was the existence of M.S. And an essential element of the third charge was the existence of B.S. As such, each of the State’s three allegations “required proof of at least one unique evidentiary fact.” Bald, 766 N.E.2d at 1172. And the proof of one child’s existence is a discrete and unique fact that does not prove the existence of another child. Thus, Sickels’ three convictions did not violate to the actual evidence test.  [Footnote omitted.]

            . . . .

            Sickels next argues that the trial court improperly ordered him to pay restitution. At the sentencing hearing, the trial court stated that “restitution” in the amount of “$86,420” is to be made to “Ms. Sickels, the victim in the case.” Transcript at 87. But in its written sentencing order, the court states: “Arrearage in the amount of $84,420.00 as of 2/8/11 reduced to judgment in favor of Kathy L. Sickles [sic], civil cause number 20D03-9107-DR205.” Appellant’s App. at 118 (emphasis original). These two statements are unclear . . . and require a remand for clarification.

            . . . .

            Second, pursuant to Indiana law, “in addition to any sentence imposed” for a criminal offense the trial court is authorized to order “restitution to the victim of the crime.” I.C. § 35-50-5-3. The amount of restitution ordered must reflect the actual loss suffered by the victim. Myers v. State, 848 N.E.2d 1108, 1109 (Ind. Ct. App. 2006). But Kathy is not the victim of Sickels’ crimes. His children are. It is generally established that child support payments are for the benefit of the child, not for the benefit of the parent. See Haley v. Haley, 771 N.E.2d 743, 752 (Ind. Ct. App. 2001). As such, the court’s order for Sickels to pay restitution to Kathy as “the victim” is erroneous. See Transcript at 87.

            Finally, the court’s two statements alternatively refer to Sickels’ payment as either “restitution” or as a civil judgment. See Transcript at 87; Appellant’s App. at 118. While restitution is a proper criminal penalty, civil court is the proper venue to adjudicate civil judgments. See Haltom v. State, 832 N.E.2d 969, 972 (Ind. 2005). Thus, on remand the court shall correct its sentencing order and other documents to reflect only restitution.

RILEY, J., and MAY, J., concur.

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Smith v. Cain, No. 10–8145, 565 U.S. __ (Jan. 20, 2012).

ROBERTS, C.J.

            The State of Louisiana charged petitioner Juan Smith with killing five people during an armed robbery. At Smith’s trial a single witness, Larry Boatner, linked Smith to the crime. Boatner testified that he was socializing at a friend’s house when Smith and two other gunmen entered the home, demanded money and drugs, and shortly thereafter began shooting, resulting in the death of five of Boatner’s friends. In court Boatner identified Smith as the first gunman to come through the door. He claimed that he had been face to face with Smith during the initial moments of the robbery. No other witnesses and no physical evidence implicated Smith in the crime.

            The jury convicted Smith of five counts of first-degree murder. The Louisiana Court of Appeal affirmed Smith’s conviction. State v. Smith, 797 So. 2d 193 (2001). The Louisiana Supreme Court denied review, as did this Court. 2001–2416 (La. 9/13/02), 824 So. 2d 1189; 537 U. S.1201 (2003).

            Smith then sought postconviction relief in the state courts. As part of his effort, Smith obtained files from the police investigation of his case, including those of the lead investigator, Detective John Ronquillo. Ronquillo’s notes contain statements by Boatner that conflict with his testimony identifying Smith as a perpetrator. The notes from the night of the murder state that Boatner “could not . . . supply a description of the perpetrators other then [sic]they were black males.” App. 252–253. Ronquillo also made a handwritten account of a conversation he had with Boatner five days after the crime, in which Boatner said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” Id., at 308. And Ronquillo’s typewritten report of that conversation states that Boatner told Ronquillo he “could not identify any of the perpetrators of the murder.” Id., at 259–260.

            Smith requested that his conviction be vacated, arguing, inter alia, that the prosecution’s failure to disclose Ronquillo’s notes violated this Court’s decision in Brady v. Maryland, 373 U. S. 83 (1963). The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review. We granted certiorari, 564 U. S. ___ (2011), and now reverse.

            Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See 373 U. S., at 87. The State does not dispute that Boatner’s statements in Ronquillo’s notes were fa vorable to Smith and that those statements were not disclosed to him. The sole question before us is thus whether Boatner’s statements were material to the determination of Smith’s guilt. We have explained that “evidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449, 469–470 (2009). A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,” only that the likelihood of a different result is great enough to “undermine[] confidence in the outcome of the trial.” Kyles v. Whitley, 514 U. S. 419, 434 (1995) (internal quotation marks omitted).

            We have observed that evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. See United States v. Agurs, 427 U. S. 97, 112–113, and n. 21 (1976). That is not the case here. Boatner’s testimony was the only evidence linking Smith to the crime. And Boatner’s undisclosed statements directly contradict his testimony: Boatner told the jury that he had “[n]o doubt” that Smith was the gunman he stood “face to face” with on the night of the crime, but Ronquillo’s notes show Boatner saying that he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” App. 196, 200, 308. Boatner’s undisclosed statements were plainly material.

            The State and the dissent advance various reasons why the jury might have discounted Boatner’s undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner’s contradictory declarations the jury would have believed. The State also contends that Boatner’s statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State’s argument offers a reason that the jury could have disbelieved Boatner’s undisclosed statements, but gives us no confidence that it would have done so.

            . . . .

            The judgment of the Orleans Parish Criminal DistrictCourt of Louisiana is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

SCALIA, KENNEDY, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion.

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Perry v. New Hampshire, No. 10–8974, 565 U.S. __ (Jan. 11, 2012).

GINSBURG, J.

            In our system of justice, fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution. Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine. This Court has recognized, in addition, a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.

            An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390

U. S. 377, 384 (1968), the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.

            We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.  [Footnote omitted.]   Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, show up, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, ALITO, and KAGAN, JJ., joined. THOMAS, J., filed a concurring opinion:

The Court correctly concludes that its precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion. I therefore join its opinion. I write separately because I would not extend Stovall v. Denno, 388 U. S. 293 (1967), and its progeny even if the reasoning of those opinions applied to this case. 

SOTOMAYOR, J., filed a dissenting opinion:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.  The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion. It ignores our precedents’ acute sensitivity to the hazards of intentional and unintentional suggestion alike and unmoors our rule from the very interest it protects, inviting arbitrary results. And it recasts the driving force of our decisions as an interest in police deterrence, rather than reliability. Because I see no warrant for declining to assess the cir­cumstances of this case under our ordinary approach, I respectfully dissent.  [Footnote omitted.]

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Williams v. State, No. 49A02-1103-CR-266, __ N.E.2d __ (Ind. Ct. App., Jan. 11, 2012).

CRONE, J.

            Nicholas Williams was arrested and charged with possessing the controlled substances methadone and alprazolam. The existence of a valid prescription is a defense to the crime of possession of a controlled substance. Because Williams initially could not remember the names of the doctors who had allegedly prescribed those substances or the pharmacies at which the prescriptions were allegedly filled, his counsel served a subpoena on the Indiana Board of Pharmacy (“the Board”), which maintains a computerized database used to monitor the prescription of controlled substances, requesting a certified copy of “any and all” of Williams’s prescription records.

            The Board filed a motion to quash the subpoena, asserting that the requested information was confidential pursuant to statute and therefore could not be released to Williams.  . . . .

            . . . .

            We conclude that the confidentiality provisions of the applicable statute were enacted to protect Williams’s physician-patient privilege and pharmacist-patient privilege and that he has waived those privileges by requesting his prescription records in the exercise of his constitutional right to present a complete defense to the charged crimes. We further conclude that Williams’s request is sufficiently particular, that the requested information is material to his defense, that not all the information requested would be available from his doctors, and that the Board has failed to show a paramount interest in not disclosing the information. Therefore, we reverse the trial court’s ruling and remand for further proceedings consistent with this opinion.

            . . . .

            In the absence of a conflicting criminal rule, the Indiana Rules of Trial Procedure generally apply to criminal proceedings. State v. Cline (In re WTHR-TV), 693 N.E.2d 1, 5 (Ind. 1998) (citing Ind. Criminal Rule 21). “Trial Rule 34 enables parties to a lawsuit to request information or material directly from both parties and non-parties.” Id. The scope of discovery is governed by Trial Rule 26(B), which reads in pertinent part as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Ind. Trial Rule 26(B)(1).

            The Indiana Supreme Court has established the following three-part test “for the discoverability of records by a criminal defendant in certain circumstances”: 

(1) there must be sufficient designation of the items sought to be discovered (particularity); (2) the requested items must be material to the defense (relevance or materiality); and (3) if the first two requirements are met, the trial court must grant the request unless there is a showing of “paramount interest” in nondisclosure.

In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011). This test does not apply, however, “when the question is the discoverability of information that is otherwise privileged.” Id.

            Indiana Code Section 35-48-7-11.1(a) provides that the information received by the INSPECT program from controlled substance dispensers is “confidential.”  . . . .

            Conspicuously absent from the list of persons specifically authorized to receive information from the INSPECT database is the person for whom a controlled substance is prescribed and dispensed – in other words, the patient. To the extent that the confidential information in the database might also be considered privileged, by virtue of either the physician-patient privilege or the pharmacist-patient privilege, [footnote omitted] that privilege inures to the patient, not the Board (or the physician or the pharmacist, for that matter). Here, Williams’s request for information from the database regarding his prescriptions amounts to a waiver of any privilege, and therefore we conclude that the aforementioned three-part test for discoverability applies in this case.

            . . . .

            The Board contends that Williams’s request for “any and all” of his prescription records is “overly broad.” Appellee’s Br. at 8. Given that the INSPECT database is computerized, one would reasonably expect that producing “any and all” of Williams’s prescription records would not be especially burdensome. As such, the scope of his request is not particularly concerning here. The Board also contends that Williams “can obtain the information regarding any legally obtained prescriptions from the treating physicians in this matter.” Id. We disagree. As mentioned earlier, Williams could not remember the specific pharmacies that allegedly dispensed his prescriptions, and thus obtaining his records from the INSPECT database would verify whether those prescriptions were actually dispensed to him. There is no indication that such information would be available from his treating physicians.

            Regarding the second part of the three-part test, “[a]n item is ‘material’ if it appears that it might benefit the preparation of the defendant’s case. The relevance of some information or items may be self-evident.” Cline, 693 N.E.2d at 7 (citation omitted). Here, the relevance of Williams’s prescription records is indeed self-evident, in that they would establish (or at least help to establish) a complete defense to the two possession charges.

            Having concluded that Williams has made a sufficient showing of both particularity and materiality, we now address whether the Board has shown a paramount interest in the nondisclosure of Williams‟s prescription records. “Whether a sufficient interest has been shown to prevent discovery will depend upon the type of interest put forth and the category of information sought. A legitimate interest in keeping the information or items confidential, for example, may suffice to deny discovery.” Id. (citation and quotation marks omitted). Here, the Board emphasizes the confidentiality provisions of Indiana Code Section 35-48-7-11.1 and says,

The information may only be disclosed to those persons or agencies delineated in the statute. Ind. Code § 35-48-7-11.1(b). There is no exception for disclosure by the Board to parties not listed in the statute. Moreover, it is a criminal offense for anyone to disclose information in violation of the statute. Ind. Code § 35-48-7-14.[4]

Appellee’s Br. at 5.

It seems obvious that the confidentiality provisions of Indiana Code Section 35-48-7-11.1 were enacted to uphold the protections of the physician-patient privilege and the pharmacist-patient privilege. Where, as here, a patient seeks to waive those privileges for the purpose of exercising his or her constitutional right to present a complete defense to charges in a criminal case, both the rationale for and the Board’s interest in keeping the patient’s prescription records confidential evaporate.  . . . .

BAILEY, J., and MATHIAS, J., concur.

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Dexter v. State, No. 79S05-1106-CR-367, __ N.E.2d __ (Ind., Jan. 12, 2012).

SULLIVAN, J.

            For almost 30 years, this Court has held that the State must introduce into evidence proper certified and authenticated records of the defendant’s prior felony convictions in order to prove beyond a reasonable doubt the existence of those prior convictions.  . . . In the absence of a showing by the State that such records are unavailable, parol evidence alone is not sufficient to prove the fact of prior convictions. E.g., Washington, 441 N.E.2d at 1359-60; Morgan, 440 N.E.2d at 1090-91. Even though additional supporting evidence is required to prove the identity of the defendant and may be required to prove the proper sequence of the felony convictions, e.g., Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002); Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988); Coker v. State, 455 N.E.2d 319, 322 (Ind. 1983), proper certified and authenticated documentary evidence is required to establish that the prior convictions in fact occurred. See Powers, 617 N.E.2d at 547 (Dickson, J., concurring) (“The majority today concludes that where the existence of prior felonies is established by certified records, parol evidence may provide sufficient proof of the dates of commission. However, this holding does not modify the holding in Morgan . . . and Washington . . . that the evidence of habitual offender status is insufficient in the absence of proper available certified records of the prior felony convictions.”); Bell v. State, 610 N.E.2d 229, 235 (Ind. 1993) (“[T]he State must produce certified copies of records showing convictions of two prior unrelated felonies and supporting evidence to identify the defendant as the same person who was convicted of those crimes.” (citation omitted)); Beavers, 566 N.E.2d at 535 (holding that oral testimony considered in conjunction with documentary evidence was sufficient to establish proper sequence because “[t]he date upon which an offense may have been committed . . . . is not part of the fact of a prior conviction, the proof of which is restricted to authenticated documents”).

            The issue here is not whether the State submitted documentary evidence – it clearly did – but whether the documentary evidence presented was sufficient to establish the fact of the alleged 2000 conviction.

            In view of our insistence that proper documentary evidence be submitted to prove the existence of a prior conviction and the important rationale underlying that rule, [footnote omitted] we hold that a judgment must be signed by the trial judge to constitute substantial evidence of probative value sufficient to sustain a habitual-offender enhancement. Accordingly, the unsigned order of judgment was not probative of the fact of Dexter’s alleged theft conviction in 2000.

            Here, the Court of Appeals held that the unsigned judgment was not sufficient evidence to prove the fact of the alleged 2000 conviction. But it went on to hold that the record contained other evidence of probative value sufficient to support the jury’s habitual-offender finding. Dexter, 945 N.E.2d at 226. We conclude otherwise.

            First, the Court of Appeals found that a “rules of probation” form signed by both the defendant and the trial judge created a reasonable inference that “Dexter must have been convicted of the underlying offense before being placed on probation.” Id. But the cause number on the rules-of-probation form differs from the cause number on the unsigned judgment and the cause number in the information alleging Dexter to be a habitual offender. Moreover, the rules-of-probation form is not like a sentencing order because it does not itself impose the sentence. The form merely indicates the rules to be followed during probation and, in this case, lists the probation period as four years. There is nothing to indicate that four years of probation actually was imposed on Dexter, except for the unsigned judgment. The rules-of-probation form is not probative of Dexter’s alleged 2000 theft conviction.

            Second, included in the record is a Presentence Investigation Report filed prior to sentencing on the 2005 convictions. The report includes Dexter’s criminal history and demonstrates that he had been convicted of Class D felony theft in 2000. But presentence reports may contain hearsay and other inadmissible evidence. Pointer v. State, 499 N.E.2d 1087, 1089 (Ind. 1986). They are also confidential under Indiana Code section 35-38-1-13. Due to the function of the jury during the habitual-offender phase of trial and the nature of presentence reports, this Court has held that such reports are irrelevant in a habitual-offender proceeding as a matter of law. Cornett v. State, 536 N.E.2d 501, 505-06 (Ind. 1989); Pointer, 499 N.E.2d at 1089-90. Accordingly, the presentence report is not probative of Dexter’s alleged 2000 theft conviction.

            The only remaining “evidence” suggesting that Dexter was in fact convicted of theft in 2000 is the testimony of Kipp Scott, the Chief Probation Officer for Tippecanoe County. The habitual-offender enhancement cannot be sustained on this evidence. Parol evidence alone is not sufficient evidence to support a habitual-offender finding, and the State made no showing that proper documentary evidence was unavailable. Washington, 441 N.E.2d at 1359-60; Morgan, 440 N.E.2d at 1090-91; see also Davis, 493 N.E.2d at 168-69; Driver, 467 N.E.2d at 1187-88.

            Dexter’s habitual-offender enhancement cannot stand on this record.

Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.

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Haag v. Castro, No. 29S04-1102-CT-118, ___ N.E.2d ___ (Ind., Jan. 10, 2012).

Sullivan, J.

Players on a local youth soccer team seek to recover under the state youth soccer governing association’s business auto-insurance policy for injuries sustained when the van in which they were riding was involved in an accident. Because the van was not being used in the business of the association, a condition for coverage under the insurance policy at issue, the injured players may not recover.

….

Discussion

I

Virginia Surety issued a commercial lines policy to the IYSA that provided business auto coverage in certain circumstances. At issue in this case is an endorsement for “hired” (rented) vehicles that reads as follows:

With respect to hired auto and employers non-ownership liability, the insured means the named insured, member associations and its clubs, leagues teams, employees, volunteers, executive officers, directors, stockholders, therein, but only while the automobile is being used in the business of the Named Insured. Cover-age is not provided on behalf of the parents, managers, coaches, umpires, officials, referees, of the insured or volunteers using any automobile (personally owned, leased, borrowed or employer furnished) in the transportation of youth or adult participants to and from athletic games or athletic events, including but not limited to practices, exhibitions, post season and scheduled events.

Appellants’ App. 101 (emphasis added).

The Players make three arguments about this endorsement.

First, they contend that under the first sentence of the endorsement, the rented van in which they were riding was being used in the business of the IYSA.

Second, they contend that the second sentence of the endorsement does not apply because they were not traveling to an athletic game or event; rather, they were traveling to a “team-building” event.

Third, they contend that the endorsement must be construed to provide coverage in these circumstances because if it is not, coverage would not be available under any reasonably expected set of circumstances and, therefore, would be “illusory.”

II

As the Court of Appeals recognized, Castro may well be an “insured” under the policy. Haag, 934 N.E.2d at 193. But the dispositive issue is whether Castro was using the rented van “in the business of” the IYSA at the time of the accident.

The policy does not define “in the business of” and the Players argue that this creates an ambiguity that should be construed against the insurer. Of course, that a policy does not define a term does not necessarily make the term ambiguous. Wagner v. Yates, 912 N.E.2d 805, 810 (Ind. 2009). Furthermore, “an ambiguity is not affirmatively established simply because controversy exists and one party asserts an interpretation contrary to that asserted by the opposing party.” Id. (citing Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002)). We find that the IYSA’s organizational documents combined with widespread general familiarity with the business of sports governing bodies render the term unambiguous here. To the extent that Lea v. St. Paul Fire and Marine Insurance Co., 306 So. 2d 740, 743 (La. 1975), cited by the Players, holds to the contrary, we respectfully disagree with our Louisiana colleagues.

And in fact, the Players as well as Virginia Surety direct us to the IYSA’s organizational documents for insight into its “business.” The IYSA’s Articles of Incorporation declare its relevant purposes as follows:

SECTION 1. To develop, promote and administer the game of soccer among Youth under 19 years of age residing within the State of Indiana.

SECTION 2. To encourage and assist in the development and growth of community leagues, associations, organizations, programs and teams so that soccer is made available to more Indiana residents in all levels of competition.

SECTION 3. To develop and encourage sportsmanship and playing proficiency by all players and persons involved in soccer in the State of Indiana.

SECTION 4. To affiliate with USYSA and to encourage registration of all Indiana Youth teams with the USYSA.

SECTION 5. To conduct tournaments of Youth team competition and to sanction said teams to enter and participate in said tournaments.

SECTION 6. To do any and all other acts necessary or desirable in the furtherance of the foregoing purposes and for the good of Youth soccer.

Appellants’ App. 815. The IYSA also has a set of “Playing Rules” that “are intended to provide a uniform set of guidelines governing: player eligibility, registration, team formation, player assignments, playing rules, and standards of Sportsmanship and conduct for all Member Organizations.” Id. at 820, 825.

We read these organizational documents to identify three lines of endeavor or “business” for the IYSA: (1) “promoting” soccer; (2) “regulating” competition, leagues, teams, and players (e.g., registering teams, certifying coaches and referees, sanctioning participation in tournaments, etc.); and (3) “conducting” specific events. Thus, when the Virginia Surety policy requires that the automobile be “used in the business of the [IYSA]” for there to be coverage, the policy requires that the automobile be used in one of these three lines of business – “promoting,” “regulating,” or “conducting.”

Perhaps because our state is home to so many sports governing bodies, there is widespread general familiarity with their business. These bodies are not in the business of “competing” in athletic events – their business is promoting, regulating, and sometimes sponsoring com-petition. Likewise, the IYSA is not in the business of “competing.” It is a state governing body, acting in conjunction with the United States Youth Soccer Association, the United States Soccer Federation (also known as U.S. Soccer, the national governing body of the sport), and the United States Olympic Committee. [Footnote omitted.]

The Players argue that their participating in the Colorado soccer tournament was “in the business of” the IYSA (and therefore the use of the rented van was “in the business of” the IYSA) because the IYSA not only explicitly approved but also encouraged them to participate in the tournament. They reason that “[t]he business of the IYSA involves the organization of competitive soccer teams and their participation in soccer tournaments such as the tournament in June, 2004 in Colorado.” Appellants’ Br. 21. Thus, they argue that “any transportation from the time the team commenced their trip to Colorado for the tournament until the time they returned to Indiana was in furtherance of the business of the IYSA.” Id. [Footnote omitted.]

To interpret the endorsement’s “in the business of” language, the majority of the Court of Appeals panel relied on respondeat superior principles. Haag, 934 N.E.2d at 193-95 (citing Liberty Mut. Ins. Co. v. Conn. Indem. Co., 55 F.3d 1333, 1335-37 (7th Cir. 1995)). [Footnote omitted.] While it may be that respondeat superior analysis could be helpful in such situations, we believe that here only a straightforward application of the plain language of the policy is necessary to resolve the question. “‘An insurance policy that is unambiguous must be enforced according to its terms, even those terms that limit an insurer’s liability.’” Prop.-Owners Ins. Co. v. Ted’s Tavern, Inc., 853 N.E.2d 973, 978 (Ind. Ct. App. 2006) (alteration deleted) (quoting Amerisure, Inc. v. Wurster Constr. Co., 818 N.E.2d 998, 1002 (Ind. Ct. App. 2004)). This policy covers the IYSA in the event that it is subject to liability because of an auto accident if, and only if, a hired or non-owned automobile is being “used in the business of” that organization – either (1) promoting soccer or (2) regulating leagues, teams, players, and referees or (3) conducting specific events. Simply stated, neither Carmel Commotion nor Castro were doing any of those things and so the accident was not covered.

What Carmel Commotion (with Castro’s help) was doing was participating in a specific event, a soccer tournament; Carmel Commotion’s “business” is competing – along with the practicing, “team-building,” and the like that comes with it. And while the IYSA promotes tournaments and regulates who plays in tournaments and even sponsors tournaments, as discussed above, the IYSA itself does not compete. The IYSA promotes soccer. It regulates playing soccer. It conducts soccer tournaments. But when an IYSA-registered team, with the help of its coach, competes in a tournament (even a tournament sponsored or sanctioned by the IYSA), the team is engaged in its own business, not that of the IYSA.

Examining the second sentence of the endorsement helps in understanding this point. It specifies that the policy does not cover any automobiles used “in the transportation of youth or adult participants to and from athletic games or athletic events.” Why not? Because participating in the soccer games themselves – the competition – is not the business of the IYSA. (In this regard, the second sentence of the endorsement is not an “exclusion” but an amplification of the endorsement’s limitation of the coverage of hired or non-owned automobiles to those being “used in the business.”)

The fact that coverage is not available here does not make the coverage the IYSA purchased “illusory.” “Coverage under an insurance policy is not illusory unless the policy would not pay benefits under any reasonably expected set of circumstances.” Lexington Ins. Co. v. Am. Healthcare Providers, 621 N.E.2d 332, 339 (Ind. Ct. App. 1993) (citing Meridian Mut. Ins. Co. v. Richie, 544 N.E.2d 488 (Ind. 1989)), trans. denied. That the IYSA might need auto-liability insurance in respect of hired or non-owned vehicles is clear. In the course of traveling to promote youth soccer or in transporting a celebrity guest – perhaps a member of our national team like Lauren Cheney or Lori Lindsey – to an IYSA sponsored event, an employee or volunteer might be involved in an auto accident while using a rented vehicle. The coverage is not illusory.

In her dissent in the Court of Appeals, Judge Riley presses the importance she places on the IYSA’s explicit approval of the Colorado trip. Pointing to IYSA Playing Rule 3.6-2’s provision that teams traveling with a permit are covered by insurance, she maintains that because Carmel Commotion followed all the rules for traveling out-of-state, the team, “without any other limitations placed on insurance coverage, should have been entitled to assume that they were covered for the duration of the trip, regardless of the activities scheduled.” Haag, 934 N.E.2d at 196 (Riley, J., dissenting). This is a highly respectable argument but it does not go to the construction of the “used in the business of” endorsement. We have not been asked to decide whether the Players had any claim against IYSA, only whether Virginia Surety has liability under the endorsement.

Conclusion

Because Castro was not using the automobile “in the business” of the IYSA, the policy provides no coverage. The judgment of the trial court is affirmed.

Shepard, C.J., concurs.

Rucker, J., concurs in result.

Dickson, J., dissents with separate opinion.

David, J., not participating.

Dickson, J., dissenting.

The Court’s decision is predicated on its application of the insurance endorsement language adding coverage for “hired” (rented) vehicles but limiting the scope of those “insured” by the phrase “but only while the automobile is being used in the business of the Named Insured [the Indiana Youth Soccer Association ('IYSA')].” Haag v. Castro,___ N.E.2d___ (Ind. 2012) (emphasis added). I believe this insurance contract is ambiguous and thus should be construed to provide coverage under Indiana law.

It is a well settled rule that insurance contracts are, in the first instance, “subject to the same rules of interpretation as are other contracts.” Eli Lilly and Co. v. Home Ins. Co., 482 N.E.2d 467, 470 (Ind. 1985); see also Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind. 1996) (“The interpretation of insurance policies is not a new task for this Court.”). Accordingly, when the language of an insurance policy is clear and unambiguous, it will be enforced according to its plain and ordinary meaning. Eli Lilly, 482 N.E.2d at 470. But “‘[w]here 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) (alteration in original) (quoting Kiger, 662 N.E.2d at 947). This is one of those “special rules of construction of insurance contracts . . . developed due to the disparity in bargaining power between insurers and the insured[].” Allstate Ins. Co. v. Boles, 481 N.E.2d 1096, 1101 (Ind. 1985). This approach is longstanding, and is “driven by the fact that the insurer drafts the policy and foists its terms upon the customer.” Kiger, 662 N.E.2d at 947. [Footnote omitted.] Thus, “if reasonable persons may honestly differ as to the meaning of the policy language,” that ambiguous language “should be construed to further the policy’s basic purpose of indemnity.” Eli Lilly, 482 N.E.2d at 470; see also Bosecker, 724 N.E.2d at 244 (“Ambiguities are construed strictly against the insurer to further the general purpose of the insurance contract to provide coverage.”).

Considering the disputed policy language and giving its words “their plain, ordinary, and popularly accepted meanings,” USA Life One Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 539 (Ind. 1997), the insurance contract language appears ambiguous. The provision in dispute, an endorsement providing coverage for automobile use, states:

With respect to hired auto and employers non-ownership liability, the insured means the named insured, member associations and its clubs, leagues, teams, employees, volunteers, executive officers, directors, stockholders, therein, but only while the automobile is being used in the business of the Named Insured. Coverage is not provided on behalf of the parents, managers, coaches, umpires, officials, referees, of the insured or volunteers using any automobile (personally owned, leased, borrowed or employer furnished) in the transportation of youth or adult participants to and from athletic games or athletic events, including but not limited to practices, exhibitions, post season and scheduled events.

Appellants’ App’x at 101 (emphasis added). There is no dispute that the Carmel Commotion was a “team” from a “member association” riding in a “hired auto” at the time of the accident. The Court and the parties are then correct that the question turns on whether the “automobile [was] being used in the business of the [IYSA].” But I disagree with the Court’s narrow characterization of the “business” of the IYSA in light of the designated evidence.

The Court views the “business” of the IYSA as “(1) ‘promoting’ soccer; (2) ‘regulating’ competition, leagues, teams, and players . . . ; and (3) ‘conducting’ specific events,” but opines that the “IYSA is not in the business of ‘competing,’” and since the Carmel Commotion was in Colorado to compete it was “engaged in its own business, not that of the IYSA.” Haag, ___N.E.2d at____ . But the IYSA’s Articles of Incorporation, designated to the trial court on summary judgment, paint a broader picture of the IYSA’s “business.” One of the purposes of the IYSA, explained by its Articles of Incorporation, is “To develop and encourage sportsmanship and playing proficiency by all players and persons involved in soccer in the State of Indiana.” Appellants’ App’x at 815. “[P]laying proficiency” in the game of soccer is not encompassed within “promoting,” “regulating,” or “conducting.” Proficiency is “Performing in a given art, skill, or branch of learning with expert correctness or facility.” American Heritage Dictionary 989 (2d college ed. 1982). Thus, one of the stated purposes of the IYSA evinces a goal of cultivating and strengthening adept performance on the field. [Footnote omitted.] The vehicle for evaluating the success or failure of this goal is competing. This was precisely the purpose for the Carmel Commotion’s trip to Colorado, to demonstrate its playing proficiency in a tournament in which they could not compete without the blessing of the IYSA.

Additionally, “promoting soccer” embraces interstate travel to engage in competitive sport as an incentive to the youth of Indiana to participate in soccer under the IYSA. To the extent the Carmel Commotion achieved success in the Colorado tournament, the purposes of the IYSA would be further served. The publicity associated with championship level play by an IYSA team, however minimal, surely “promotes” soccer. Thus, the Carmel Commotion’s participation in the Colorado tournament, as an IYSA team, served to “promote . . . the game of soccer among Youth under 19 years of age residing within the State of Indiana.” Appellants’ App’x at 815.

The Carmel Commotion’s Colorado trip could thus be reasonably understood as being “in the business of” the IYSA. Indiana law is clear: where an insurance policy conveys conflicting reasonable constructions, it should be construed against the insurer and in favor of coverage. Bosecker, 724 N.E.2d at 244; Kiger, 662 N.E.2d at 947; Eli Lilly, 482 N.E.2d at 470; see also Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008, 1014 (Ind. 2010) (“A reasonable construction that supports the policyholder’s position must be enforced as a matter of law.”).

The second sentence of the endorsement, purporting to severely limit the coverage provided by the first sentence, does not apply to the facts of this case. Responding to its apparant deceptive or illusory effect, the Court finds a narrow possibility of resulting coverage. Even if the second sentence is to be given effect, however, such effect must be constrained by the plain language of the sentence, as discussed above. The second sentence of the endorsement states that there is no coverage for “the transportation of youth or adult participants to and from athletic games or athletic events, including but not limited to practices, exhibitions, post season and scheduled events.” Appellants’ App’x at 101. This language, however, does not “clearly and unmistakably” exclude coverage in this case. See Taylor, 926 N.E.2d at 1012 (“Although insurers are free to limit coverage to the extent the limitations are consistent with public policy, the exclusionary clause must clearly and unmistakably bring within its scope the particular act or omission that will bring the exclusion into play.”). The policy does not define “athletic games or athletic events,” but certain specific examples are identified: “practices, exhibitions, post season and scheduled events.” The four examples provided all speak to transportation to and from the soccer field. The Carmel Commotion was not traveling to or from the soccer field at the time of the accident; they were traveling to a team-building activity away from the soccer field. They had finished their games for the day and returned to the hotel in the interim. If such travel was to be excluded, it was the responsibility of the drafter, Virginia Surety, to “clearly and unmistakably” bring it within the scope of the exclusionary clause. They did not do so, and thus the policy should be construed to further its basic purpose of indemnity.

Furthermore, it appears that the Court’s narrow view of “the business of the IYSA” is somewhat contradicted by the Court’s characterization of the second sentence as a mere amplification of the first. Haag, ___N.E.2d at____ . Reading both sentences of the endorsement together, if “the competition” was unambiguously not “in the business of” the IYSA, then there would be no need for such “amplification,” and therefore no need to exclude from coverage “transportation . . . to and from athletic games or athletic events.”

Because I find that, under the facts of this case, a reasonable construction of the hired auto endorsement supports coverage, which coverage is not diminished by the plain language of the second sentence of the provision, I would reverse the summary judgment entered in favor of the insurance company.

 

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Ramsey v. Moore, No. 45S05-1105-CT-281, ___ N.E.2d ___ (Ind., Jan. 12, 2012).

David, J.

In medical malpractice cases governed by Indiana’s Medical Malpractice Act, a medical review panel renders an opinion on a case before the case proceeds to a trial court. The medical review panel chairman, among other things, sets a deadline for a plaintiff’s submission of evidence to the panel. If the plaintiff fails to adhere to the deadline, a defendant can file a motion with the appropriate trial court to dismiss the medical malpractice complaint pending before the panel. This motion initiates a preliminary-determination proceeding before the trial court—a proceeding unique to medical malpractice cases.

In this case, the defendants, a doctor and hospital, filed motions for a preliminary determination, requesting that the trial court dismiss the pending medical malpractice complaint due to the plaintiff’s dilatory conduct. The trial court issued an order, denying the request, and the defendants appealed. We hold that because the trial court’s order is not a final appealable judgment, there is no subject matter jurisdiction to hear the appeal.

….

Final Appealable Judgment

A. Relevant Background on the MMA

Before turning to the dispositive issue in this case, a brief background of the relevant provisions of Indiana’s Medical Malpractice Act (MMA) is in order. Importantly, the parties do not dispute that the MMA applies here.

Before a party brings a medical malpractice action in an Indiana court, the MMA requires that the proposed complaint be presented to a medical review panel and that the panel render an opinion. [Footnote omitted.] Ind. Code § 34-18-8-4 (2008). The chairman of the medical review panel has various powers, such as establishing a reasonable schedule for the parties’ submission of evidence. Id. § 34-18-10-3(c). Furthermore, the MMA states that “[t]he evidence in written form to be considered by the medical review panel shall be promptly submitted by the respective parties.” Id. § 34-18-10-17(a).

When a plaintiff fails to adhere to the submission schedule, a defendant may seek re-course in a trial court while a complaint is pending before a medical review panel. In these in-stances, two additional provisions of the MMA become pertinent. See Galindo v. Christensen, 569 N.E.2d 702, 704–05 (Ind. Ct. App. 1991). First, a defendant may request the appropriate trial court to “preliminarily determine an . . . issue of law or fact.” I.C. § 34-18-11-1(a)(1). Second, a plaintiff “who fails to act as required by this chapter without good cause shown is subject to mandate or appropriate sanctions upon application to” the trial court. Id. § 34-18-10-14.

Thus, a defendant may file a motion with the trial court for a preliminary determination on the plaintiff’s failure to adhere to the submission schedule, and the defendant may request the sanction of dismissal. See Galindo, 569 N.E.2d at 705. The court may dismiss the complaint pending before the medical review panel if the plaintiff fails to show good cause for not adhering to the submission deadline. See Beemer v. Elskens, 677 N.E.2d 1117, 1119 (Ind. Ct. App. 1997), trans. denied.

B. Denial of Defendants’ Motions for Preliminary Determination

Moore argues that there is no subject matter jurisdiction to hear this appeal. Specifically, Moore contends that the portion of the trial court’s order denying the defendants’ request to dismiss the complaint is neither a final appealable judgment nor an appealable interlocutory order. Dr. Ramsey and the hospital, on the other hand, assert that the order is a final appealable judgment, giving an appellate court jurisdiction over the appeal. [Footnote omitted.] In addition, the parties present their respective arguments on the merits of the preliminary determination, namely, whether the trial court abused its discretion in refusing to dismiss Moore’s complaint.

“The authority of the Indiana Supreme Court and Court of Appeals to exercise appellate jurisdiction is generally limited to appeals from final judgments.” Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind. 2006). Indiana Appellate Rule 2(H) defines final judgments and states in relevant part [Footnote omitted.]

H. Final Judgment. A judgment is a final judgment if:

(1) it disposes of all claims as to all parties; [or]

(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties[.]

Moore argues that the trial court’s order does not fall within the confines of Appellate Rule 2(H). Specifically, Moore contends that the order “clearly allows [her] case to continue” and thus Appellate Rule 2(H)(1) is inapplicable. She further argues that the order lacks the requisite language to fall under Appellate Rule 2(H)(2).

We address each argument in turn and begin our analysis with the relevant portion of the trial court’s order, which states as follows:

The court, being duly advised, now finds as follows: The pending Chapter 11 complaints and motions by Ramsey and Methodist Hospitals should be denied in part and granted in part. The request by Ramsey and Methodist Hospitals to dismiss Moore’s proposed complaint in the underlying medical malpractice action based on her failure to tender a panel submission in a timely manner—prior to the expiration of the chairman’s deadline for Moore’s submission and the 180-day statutory deadline for the medical review panel’s opinion—should be, and hereby is, ordered denied.

However, with respect to the specific claim for fetal loss of chance of survival that is articulated in Moore’s panel submission, the court finds that the pending Chapter 11 complaints and motions are meritorious, that there is no genuine issue of material fact, and that Ramsey and Methodist Hospitals are entitled to judgment thereon because no such claim is recognized by Indiana law. The court further finds that there is no just reason for delay and enters summary judgment for Ramsey and Methodist Hospitals, and against Moore, upon that specific claim for relief.

1. Appellate Rule 2(H)(1)

To fall under Appellate Rule 2(H)(1), an order must dispose of all issues as to all parties, ending the particular case and leaving nothing for future determination. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003). A majority of the Court of Appeals determined that the order here “ultimately disposed of the issue as to whether Moore could proceed to the medical review pan-el” and thus “is a final judgment that is appealable of right.” Ramsey, 946 N.E.2d at 588, 589. Judge Riley concurred in result, disagreeing with the majority on whether the order was a final appealable judgment. Id. at 592 (Riley, J., concurring in result). Judge Riley explained, “[a]lthough the limited preliminary determination action in the trial court was concluded by the trial court’s order, the medical malpractice action itself continues” and thus the order “cannot be considered a final judgment.” Id.

Ultimately, we are confronted with differing views on the preliminary-determination proceeding’s role in a medical malpractice action. Essentially, a majority of the Court of Appeals treated the preliminary-determination proceeding as distinct from the medical malpractice action, finding that “the trial court’s order adjudicated claims of right separate from—and collateral to—the rights that the medical review panel will determine.” Id. at 589 (majority opinion). Judge Riley, on the other hand, viewed the preliminary-determination proceeding more narrowly, believing it is a piece of the larger medical malpractice action.

Dr. Ramsey and the hospital urge us to adopt the logic of the majority of the Court of Appeals, arguing that “the order by the trial court effectively put an end to the issue of Moore’s noncompliance with the submission requirements under the Medical Malpractice Act.” Moore counters that case law supports the view that this type of preliminary-determination order—one that denies, rather than grants, a request to dismiss a medical malpractice complaint—is interlocutory in nature. Moore specifically cites Schriber v. Anonymous, 848 N.E.2d 1061 (Ind. 2006), and Bueter v. Brinkman, 776 N.E.2d 910 (Ind. Ct. App. 2002), for support.

In Schriber, the plaintiff, operating on the assumption that the MMA did not apply to her case, filed a medical malpractice complaint directly in the trial court instead of first obtaining an opinion from a medical review panel. 848 N.E.2d at 1062. The defendant, a health-care provider, filed a motion to dismiss, arguing that the MMA did apply and thus the trial court lacked subject matter jurisdiction. Id. Ultimately, the trial court agreed the MMA applied and concluded that it had no subject matter jurisdiction to hear the case until a medical review panel rendered an opinion. Id. at 1063. The plaintiff initiated an appeal. Id. This Court dismissed the appeal, finding that the trial court’s ruling did not constitute a final judgment under Appellate Rule 2(H). [Footnote omitted.] Id. at 1064–65. This Court noted that the trial court “decline[d] to take any further action until completion of further administrative proceedings pursuant to the Act” and that the “case was to remain pending until completion of proceedings before the Department of Insurance.” Id. at 1064. Accordingly, we determined that “the trial court’s ruling clearly did not dispose of all claims as to all parties” because the case would continue to the medical review panel. Id. at 1064–65.

In Bueter, the plaintiffs filed a medical malpractice complaint with the DOI. 776 N.E.2d at 912. The defendant doctors filed a motion for preliminary determination with the trial court, seeking dismissal of the complaint. Id. The doctors asserted that the applicable statute of limitations precluded the plaintiffs’ claims. Id. The trial court denied the motion. Id. On appeal, the Court of Appeals determined that the trial court’s order denying the motion was interlocutory in nature, and not final, because the medical malpractice action would continue. Id. at 913. The Court of Appeals explained that “[t]he trial court’s order on the doctors’ motion for preliminary determination does not conclusively establish that the [plaintiffs’] complaint was filed within the statute of limitations” and thus found that the doctors could raise the statute of limitations as an affirmative defense in the trial court after the panel proceedings were over. Id.

Thus, before the present case, both this Court and the Court of Appeals have treated denials of preliminary-determination motions to dismiss medical malpractice complaints as nonfinal. But Dr. Ramsey and the hospital argue that the case at hand is unique because it “does not leave unresolved an affirmative defense that can be raised again later when the trial court has full jurisdiction over the merits of Moore’s underlying medical malpractice claim.” We agree that this case does present a novel set of facts: neither Schriber nor Bueter squarely dealt with a preliminary determination denying a motion to dismiss a medical malpractice complaint for a plaintiff’s dilatory conduct. But the language of Appellate Rule 2(H)(1) dictates the proper result: this order is not a final appealable judgment because it did not dispose of all claims as to all parties.

Dr. Ramsey and the hospital are correct in noting that the preliminary-determination proceeding disposed of the issue of whether the case would proceed to the panel. But the issue the trial court decided is just that—an issue. Although a preliminary-determination proceeding is unique in nature, it is still inextricably linked to the larger medical malpractice case as a mechanism to decide threshold issues. See generally Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 694 (Ind. 2000) (noting the “unique” nature of a preliminary-determination proceeding and its role in deciding “threshold issues”). Here, the larger medical malpractice case—conceivably comprising many more underlying issues—will continue. Accordingly, the trial court’s order does not fall under Appellate Rule 2(H)(1).

2. Appellate Rule 2(H)(2)

Under Appellate Rule 2(H)(2), an order is a final appealable judgment if “the trial court in writing expressly determines under Trial Rule 54(B) . . . there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties.” This Court has stated that a “Trial Rule 54(B) certification of an order that disposes of less than the entire case must contain the magic language of the rule.” Georgos, 790 N.E.2d at 452.

Here the trial court’s order does contain this “magic language”; however, that language applies to only one portion of the order. Specifically, the trial court included 54(B) language on the portion of its order granting summary judgment for Dr. Ramsey and the hospital on “the specific claim for fetal loss of chance of survival.” But it is apparent from the structure and language of the order that the trial court intended the 54(B) language to apply solely to that claim. Furthermore, there is a clear absence of 54(B) language in the portion denying the motions for preliminary determination and to dismiss Moore’s complaint. Accordingly, the relevant part of the trial court’s order does not fall under Appellate Rule 2(H)(2).

Conclusion

Having previously granted transfer, we now dismiss this appeal for lack of subject matter jurisdiction.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

 

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