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FOR PUBLICATION
ATTORNEY FOR APPELLANT: DONALD E. WERTHEIMER South Bend, Indiana ATTORNEY FOR APPELLEE: GREGORY J. HAINES Rowe & Rowe

South Bend, Indiana

FILED
Jul 22 2010, 9:35 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
J. JOHN MARSHALL and MARJORIE MARSHALL, Appellants-Defendants, vs. ERIE INSURANCE EXCHANGE a/s/o CINDY CAIN, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 20A03-0908-CV-366

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Evan S. Roberts, Judge Cause No. 20D01-0706-CT-34

July 22, 2010

OPINION ON REHEARING - FOR PUBLICATION

ROBB, Judge

J. John Marshall and Marjorie Marshall have petitioned for rehearing of this court's decision in Marshall v. Erie Ins. Exch., 923 N.E.2d 18, 25 (Ind. Ct. App. 2010), in which we held, inter alia, the Marshalls had a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners arising from the condition of trees on their property and further held they had breached that duty. We grant the petition for rehearing for the sole purpose of addressing certain claims raised by the Marshalls, but affirm our opinion in all respects.1 The Marshalls' petition for rehearing raises several challenges to our opinion. That this case presented an issue of first impression, and therefore was constrained by no Indiana Supreme Court precedent directly on point, was well-explained in the opinion and we will not revisit those issues. The Marshalls also request rehearing on the issue of John's and Marjorie's liability, claiming the trial court's imposition of liability on each of them was contrary to law. The evidence at trial was that Marjorie was the owner of the lot in question, but John routinely handled her business affairs with respect to the property. We determined John was acting as Marjorie's agent in dealing with the property and was negligent in doing so. Id. at 26. The Marshalls contend on rehearing, however, that there was no evidence Marjorie manifested intent for John to be her agent. "Indiana recognizes an agency relationship implied from the actions and circumstances of the parties." Kruszewski v. Kwasneski, 539 N.E.2d 965, 966 (Ind. Ct. App. 1989). Marriage does not by itself create an agency relationship between spouses, but the marital relationship is one of the facts and

1

Erie Insurance Exchange has not filed a brief in response to the petition for rehearing.

2

circumstances considered in determining whether an agency relationship exists. Id. The authority of a spouse to act as an agent must be implied from acts and conduct and not merely from his or her position as a spouse. Moehlenkamp v. Shatz, 396 N.E.2d 433, 436 (Ind. Ct. App. 1979). Here, the evidence of John's acts and conduct with respect to the property

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