Forman v. Penn
938 N.E.2d 287
| Ind. Ct. App. | 2010Background
- Phillip Forman (17) and Christopher Green (18) spent night at Bradley Orr's home with Lisa Orr and Wayne Penn in Penn's residence.
- Bradley allegedly furnished Lisa's methadone to Forman, causing purported permanent injuries; Bradley denies supplying it or knowledge.
- Forman sued Bradley, Green, Penn, and Lisa for negligent supervision and care after discovery of methadone ingestion.
- Penn’s homeowners policy with Western Reserve Mutual Casualty Company: Western Reserve sought defense/indemnity as named insured; Bradley claimed insured status under household- resident/under-21 care provisions.
- Western Reserve intervened in Forman v. Orr et al. to seek a declaratory judgment that it had no duty to defend, and moved for summary judgment on exclusion for schedule II controlled substances.
- Trial court granted summary judgment for Western Reserve on the exclusion and on Bradley’s status; Penn and Bradley filed Motion to Correct Error; appeal was pursued despite lack of finality under Rule 54(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the order appealable as of right? | Forman/Bradley argue order is appealable because it resolves coverage/defense issues. | Western Reserve contends no final judgment and improper interlocutory appeal. | No; not appealable as of right. |
| Does Trial Rule 54(B) permit an appeal from a partial ruling? | Appeal should be allowed to review defense/coverage issues separately. | TR 54(B) requires express 'no just reason for delay' and direction for entry of judgment. | Not satisfied; appeal not proper under TR 54(B). |
| Did Western Reserve owe a duty to defend Penn/Bradley under the homeowners policy? | Coverage should extend to defend/indemnify the insureds in underlying suit. | Exclusion for claims arising from possession of Schedule II controlled substances precludes coverage; Bradley not within 'care of' Penn. | Questions of duty/coverage unresolved on appeal; dismissed for lack of appealability. |
Key Cases Cited
- Sans v. Monticello Insurance Co., 718 N.E.2d 814 (Ind. Ct. App. 1999) (separate-declaratory-suit approach to insurer defense obligations; flow of appeals)
- Indiana Farmers Mut. Insurance Co. v. Ellison, 679 N.E.2d 1378 (Ind. Ct. App. 1997) (review of insurer’s duty to defend in coverage disputes)
- Martin v. Amoco Oil Co., 696 N.E.2d 383 (Ind. 1998) (bright-line rule enforcing Trial Rule 54(B) before appeal of partial judgments)
- Rayle v. Bolin, 769 N.E.2d 636 (Ind. Ct. App. 2002) (cautions about improper attempts to appeal without proper TR 54(B) language)