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Ensley v. VFW

Court of Appeals of Indiana

March 12, 2014

TASHA ENSLEY, et al., Appellant-Defendant,
v.
VETERANS OF FOREIGN WARS, et al., Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE ALLEN SUPERIOR COURT. The Honorable Nancy Eshcoff Boyer, Judge. Cause No. 02D01-1109-CT-447.

ATTORNEY FOR APPELLANT: JOSEPH A. CHRISTOFF, Fort Wayne, Indiana.

ATTORNEYS FOR APPELLEE: MICHAEL H. MICHMERHUIZEN, THOMAS M. KIMBROUGH, Fort Wayne, Indiana.

MATHIAS, Judge. BRADFORD, J., and PYLE, J., concur.

OPINION

MEMORANDUM DECISION -- NOT FOR PUBLICATION

MATHIAS, Judge

Tasha Ensley (" Ensley" ) and Dawn McElvene (" McElvene" ) (collectively, " the Plaintiffs" ) appeal from the Allen Superior Court's grant of summary judgment in favor of the Veterans of Foreign Wars Department of Indiana (" the Indiana Department" ) in the Plaintiffs' negligence action against the Indiana Department. We agree with the trial court's conclusion that the Indiana Department did not assume a duty to the Plaintiffs under negligence theory and therefore, we affirm.

Facts and Procedural History

The Veterans of Foreign Wars of the United States (" the National VFW" ) is a congressionally-chartered war veterans' organization that provides services and programming for veterans, military personnel, and their families. The Indiana Department is a subdivision of the National VFW and operates under a charter from the National VFW. The Indiana Department is divided into eleven districts. Those eleven districts are further divided into approximately seventy VFW posts, most of which are incorporated as separate non-profit corporations. Each post operates under a charter issued by the National VFW.

The bylaws of the National VFW and the Indiana Department allow the Indiana Department little control over the activities of individual posts. Each post elects its own leaders under a procedure prescribed by the Indiana Department. VFW members join the National VFW through their local post. Members pay membership dues to the National VFW, which remits a portion of those dues to the Indiana Department. In addition, each post pays a delegate fee to the Indiana Department for each delegate sent to the VFW state convention. The Indiana Department performs an annual inspection of each post in the state and can suspend or revoke a post's charter for failure to follow the bylaws of the National VFW or the Indiana Department or failure to participate in veterans' service programming.

Posts may choose to operate a club, but are not required to do so. Clubs are considered to be subordinate units of the individual post. The bylaws of the Indiana Department and the National VFW do not regulate posts' operation of clubs, bars, or canteens. Rather, the Indiana Department's Club Regulations require posts to submit individual club bylaws and applications for liquor licenses to the Indiana Department's State Commander for approval and limit club membership to VFW and Auxiliary members, but otherwise assign responsibility for the operation of the clubs to a post's House Committee, a Post Commander, and post membership. The Indiana Department does not have the authority to select members of the House Committee, hire post employees, or receive proceeds from the post's operation of a club. The Indiana Department receives the same portion of a post's membership dues and delegation fees regardless of whether the post operates a club.

The Veterans of Foreign Wars Selmer Kinrick Post 8147 (" Post 8147" ) is located in Fort Wayne and operates a club, at which the post periodically hosts social gatherings open to VFW members and non-members. Post ...


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