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Indiana Court Of Appeals: Civil Cases Of Note (Oct. 26-30, 2009)
Posted in Litigation

In Donovan v. Grand Victoria Casino & Resort, L.P., the Indiana Court of Appeals held that a card counter was “entitled to summary judgment on his request for a declaratory judgment to the effect that Grand Victoria may not exclude him from blackjack because he counts cards.”  The Court observed that the Gaming Commission “did not enact a prohibition against card counting and Grand Victoria did not seek a prohibition by rule amendment.”  “Grand Victoria has no right to exclude Donovan on the grounds that he plays the game under existing rules.” 

In Howard v. Daugherty, an inmate filed a Section 1983 complaint and was ordered to pay a partial filing fee of twenty-two cents.  The inmate submitted a forty-two cent stamp as payment.  The trial court dismissed his complaint for failure to timely pay the filing fee.  The Indiana Court of Appeals found that the dismissal of the inmate’s complaint “was not error because the trial court was not obliged to accept the stamp as payment for the filing fee.”

In Bingley v. Bingley, the Indiana Court of Appeals addressed as a matter of first impression whether post-retirement health insurance premium payments paid for by a former employer qualify as marital asset “property.”  The Court affirmed the trial court’s determination that the employer-paid health insurance premiums were not marital assets subject to division.  The Court observed that the husband’s “benefit was not payable to him” and he “could not elect to have his stipend increased in lieu of the premium payments; rather, the benefit was non-elective and not subject to divestiture, division or transfer.”  The Court further observed that benefits which are “purely supplemental, i.e., not purchased/obtained using marital assets, non-elective and not subject to divestiture, division, or transfer are properly excluded from the marital estate.”  Judge Crone concurred in result stating that the “premiums are more akin to future income, and I think that they would be more appropriately treated by the trial court in the same manner as future earnings ability,” which is not subject to division.

In Brown-Day v. Allstate Insurance Co., the Indiana Court of Appeals reviewed pretrial orders that granted a motion for party substitution and a motion in limine, which collectively prohibited explicit reference to Allstate as a party.  The Court found that the trial court erred.   Following a car accident, Brown-Day sued the other driver for the bodily injuries sustained in the crash.  She settled with the other driver’s insurance company, but reserved her right to pursue an underinsured motorist claim against Allstate, her insurance company.  More than two years after the other driver had been dismissed from the lawsuit, Allstate filed a motion to substitute the other driver as the sole defendant for trial, claiming that was necessary to prevent “substantial unfair prejudice” to Allstate should a jury learn that insurance coverage applied to the damages sought. 

The Court of Appeals found that the trial court’s order on party substitution “procedurally creates a fictitious person.”  In this case liability had been conceded, leaving only damages to be determined.  “Regardless of academic argument as to whether a jury is likely to assess greater damages against a deep-pocket insurance company, [Indiana] Evidence Rule 411 simply is not a mechanism providing for an outright substitution of parties so that the identity of a party as an insurer may be shielded.”  

The Court also reviewed whether Brown-Day should be allowed to “inquire as to payments Allstate made to its examiner/expert witness.”  The Court noted that “relevant evidence is not to be excluded on grounds that an insurer is involved.”  “Brown-Day has a right to cross-examine Allstate’s examiner/expert witness regarding compensation paid to him by Allstate,” because “evidence of bias, prejudice, or interest of a witness for or against a party is admissible, and the rule may not be disregarded on grounds that the party involved is an insurance carrier.”




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