Forman v. Penn
945 N.E.2d 717
| Ind. Ct. App. | 2011Background
- Phillip Forman, a minor, alleges negligent supervision and care by Bradley Orr, Lisa Orr, Wayne Penn, and Christopher Green arising from methadone use.
- Bradley Orr resided with Penn and Lisa Orr at Penn's home; Penn owned the home and had a homeowners policy with Western Reserve.
- Western Reserve intervened to seek a declaratory judgment that it has no duty to defend under the homeowners policy.
- The policy excludes bodily injury arising out of possession or use of a controlled substance by any person, with a carve-out for legitimate prescription drug use as directed by a physician.
- Forman's injury allegedly resulted from his illicit consumption of Lisa's prescribed methadone, not from a legitimate medical use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to defend under policy exclusion | Forman's claim seeks defense; exclusion should not bar coverage because Lisa's use was legitimate. | Exclusion applies to any use of a controlled substance; Forman's injury arises from illicit use, so no duty to defend. | No duty to defend; exclusion applies. |
Key Cases Cited
- Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905 (Ind. 2001) (summary judgment standards and favorable construction for nonmovant)
- Morris v. Economy Fire & Cas. Co., 848 N.E.2d 663 (Ind. 2006) (interpretation of insurance policy terms)
- Linder v. Ticor Title Ins. Co. of Cal., Inc., 647 N.E.2d 37 (Ind. Ct. App. 1995) (ambiguity not created by mere disagreement)
- Mass. Prop. Inc. Underwriting Ass'n v. Gallagher, 911 N.E.2d 808 (Mass. App. Ct. 2009) (illicit use of prescribed drugs excluded despite legitimate possession)