Indiana Law Summaries

Frequently Cited Indiana Statutes

 

Significant Indiana Court Decisions

Supreme Court Decisions


  FREQUENTLY CITED INDIANA STATUTES

I.C. § 9-25-2-3

Financial Responsibility

Requires insurance in the following amounts:

  1. $25,000.00 per person;
  2. $50,000.00 per accident; and
  3. $10,000.00 property coverage per accident.

I.C. § 27-7-5-2(a)

UM/UIM Coverage

Requires insurers to offer UM/UIM coverage with every bodily injury liability policy of insurance in an amount not less than $50,000.00 or the limit of liability insurance, whichever is greater and which can only be rejected in writing.

I.C. § 27-7-5-4(a)

Uninsured Motor Vehicles

An uninsured motor vehicle is one without liability insurance or not otherwise compliant with the financial responsibility requirements of such laws of this or another state or where the insurer is unable to make payments to the limit of liability due to insolvency.

I.C. § 27-7-5-4(b)

Underinsured Motor Vehicles

An underinsured motor vehicle is one where the limits of coverage available for payment to the insured under all bodily injury liability policies covering persons liable to the insured are less than the limits of the insured’s underinsured motorist coverage.

I.C. § 27-7-6-2

Definitions

This statute contains the definitions for “automobile insurance policy”, and “automobile liability coverage”.

I.C. § 7.1-5-10-15.5

Civil Liability For Furnishing Alcohol

A person who furnishes alcohol is not liable for civil action for damages caused by the intoxicated person, unless they actually knew the person was visibly intoxicated, and the intoxication of the person was the proximate cause of the injury or damage.

If a person, who is 21, suffers an injury or death, caused by voluntary intoxication, the person, the person’s heirs, dependants or representative may not make a claim against the person who furnished the alcohol.

I.C. § 12-15-29-4.5

Medicaid Claim

Insurer must accept a Medicaid claim for a Medicaid recipient for three years from the date of service. An insurer cannot deny a Medicaid claim solely based on the date of submission, type or format of the claim, method of submission or failure to provide proper documentation.

Insurer cannot deny a Medicaid claim solely due to lack of prior authorization. Insurer will conduct the prior authorization retrospectively when prior authorization is necessary. Insurer must adjudicate such claim as if it received prior authorization.

I.C. § 14-22-10-2.5

Entry Onto Premises of Another

A person, who enters a premise, without permission or monetary compensation, for the purposes of hunting or fishing, does not have an assurance that the premise is safe.

The owner of a premise does not assume responsibility or incur liability for damage or injury caused by others persons using the premises.

I.C. § 22-3-10-1

Ban on Employer Waiver of Liability

Any contracts between an employer and an employee, or any contracts between an employee and any third-party, which purport to release the employer or third-party from any liability for damages arising out of the negligence of the employer or third-party are against public policy and declared null and void.

I.C. § 34-18-8-4

Medical Malpractice – Prerequisite to Commencement of Action

Prior to commencing a medical malpractice action in Indiana, the claimant’s proposed complaint must be presented to a “medical review panel” for review, and the panel must provide an opinion regarding whether or not the evidence supports the alleged conclusions.

I.C. § 34-20-1-1

Products Liability Actions

The article governs all actions that are brought by a user or consumer against a manufacturer or seller for physical harm caused by a product regardless of the substantive legal theory or theories upon which the action is brought.

I.C. § 34-20-2-1

Product Liability

Liability exists for an unreasonably dangerous or defective product if the seller should reasonably foresee the consumer or class of persons being exposed to the harm caused by the defective condition, the seller is engaged in the business of selling the product and the product reaches the user or consumer without substantial alteration.

I.C. § 34-20-2-2

Product Liability

An action can be maintained even though reasonable care was used in the manufacture and preparation of the product and there is no privity of contract. However, reasonable care is a defense to design defect claims and those for failure to provide adequate warnings.

I.C. § 34-20-2-3

Strict Product Liability

An action for strict product liability for an unreasonably dangerous defective condition may only be brought against the manufacturer.

I.C. § 34-20-2-4

Product Manufacturers

If a court cannot gain jurisdiction over a manufacturer, then the manufacturer’s principal distributor or seller over whom the court can gain jurisdiction will be deemed the manufacturer of the product.

I.C. § 34-20-3-1

Product Liability

A product liability action in negligence or strict liability must be commenced within two years from the cause of action or within ten years after the delivery to the initial user or customer. If the cause of action happens after eight years but before ten years of the date of delivery, the action may be commenced within two years after the cause of action.

I.C. § 34-20-9-1

Indemnity in Product Liability Actions

A party held liable may seek indemnity from other persons whose actual fault caused the product to be defective.

I.C. § 34-23-1-1

Wrongful Death

Requires an action in wrongful death to be maintained by the personal representative of the decedent and to have been able to have been prosecuted by the decedent had the decedent lived.

I.C. § 34-23-1-2(d)

Limitation of Certain Wrongful Death Damages

The type of damages in subsection (c)(3)(A) (reasonable medical, hospital, funeral and burial expenses) are limited to $300,000.00.

I.C. § 34-31-4-1

Parental Liability

A parent is liable for no more than $5,000.00 in actual damages from damage cause by their child, if the parent has custody and the child is living with the parent.

I.C. § 34-44-1-3

Payments of Awards

Proof of payments may be considered by trier of fact for determining the amount of any award and for any court review of awards considered excessive.

I.C. § 34-51-2-2

Comparative Fault of Governmental Subdivisions

Contributory negligence remains a complete defense to claims under the Tort Claims Act.

I.C. § 34-51-2-5

Comparative Fault Set-Off

Contributory fault of a claimant acts to proportionately reduce the total damages for an injury by the claimant’s contributory fault.

I.C. § 34-51-2-6

Contributory Negligence as Complete Defense

Contributory negligence is a complete defense if a claimant’s contributory fault is greater than the fault of all other persons whose fault proximately contributed to the claimant’s damages.

I.C. § 34-51-2-10

Intentional Torts

A plaintiff may recover one-hundred percent of the compensatory damages in a civil action for an intentional tort from a defendant who was convicted after a prosecution based on the same evidence.

I.C. § 34-51-2-12

Contribution and Indemnity

In an action under this chapter, there is no right of contribution among tortfeasors. The right of indemnity is unaffected by this section.

I.C. § 34-51-2-14

Nonparty Defense

In an action based on fault, a defendant may assert that the damages of the claimant were caused in full or in part by a nonparty.

I.C. § 34-51-2-15

Nonparty Defense

The burden of proving a nonparty defense is upon the defendant who must affirmatively plead the defense.

I.C. § 34-51-2-16

Nonparty Defense

A nonparty defense must be pled if known. Nonparty defenses which become known after the filing of the answer must be raised with reasonable promptness. If the summons and complaint were served more than one hundred fifty (150) days prior to the expiration of the claimant’s statute of limitations, nonparty defenses must be pled no later than forty-five (45) days prior to the expiration of that limitation of action; however, the trial court may alter these time limits to allow defendants a reasonable opportunity to discover the existence of a nonparty defense and allow the claimant a reasonable opportunity to add the nonparty as an additional defendant prior to the expiration of the period of limitations applicable to the claim.

I.C. § 34-51-3-2

Punitive Damages – Clear and Convincing Evidence

Any claim for punitive damages must be established by clear and convincing evidence to support an award.

I.C. § 34-51-3-4

Punitive Damages – Maximum Award

Any punitive damage award may not be more than the greater of:

  1. Three times the amount of compensatory damages; or
  2. Fifty Thousand Dollars ($50,000.00).

I.C. § 34-51-3-5

Punitive Damages – Mandatory Reduction

If a trier of fact awards punitive damages that exceed the maximum allowable award, the court shall reduce the punitive damage award to an amount no more than the greater of:

  1. Three times the amount of compensatory damages; or
  2. Fifty Thousand Dollars ($50,000.00).

I.C. § 27-7-5-6(a)

Subrogation For UM/UIM Payments

Provides that payment of UM/UIM coverage for damages operates to subrogate the insurer to any cause of action in tort which payee may have.

I.C. § 27-7-5-6(b)

Exception to the Right of Subrogation For UIM Payments

The insurer providing underinsured motorist coverage does not have the right of subrogation if it is informed of a bona fide offer of settlement which includes a certification of the liability coverage limits of the underinsured motorist and the insurer fails to advance payment in at least the amount of the offer within thirty (30) days.

I.C. § 34-51-2-19

Lien Reduction

Subrogation claims or other liens or claims arising out of the payment of medical expenses or other benefits as the result of personal injuries or death shall be diminished by the claimant’s comparative fault or the uncollectibility of the full value of the claim resulting from limited liability insurance or any other cause in the same proportion as the claimant’s recovery is reduced. The lien or claim shall also bear a pro rata share of the claimant’s attorney fees and litigation expenses.

I.C. § 27-2-13-2

Release of Information by Insurer

Insurer must furnish policy information relevant to fire loss, history of claims of claimant, and materials relating to fire investigation, if requested by an authorized agency investigating a fire loss.

I.C. § 27-2-13-3

Arson Reporting

When an insurer has reason to believe a fire loss in which it has an interest is caused by a means that was not accidental, then the company shall notify an authorized agency in writing and provide that agency with all materials developed from the insurer’s investigation of the fire loss. The insurer shall also provide the office of the State Fire Marshal a copy of any information provided under this section.

I.C. § 27-2-13-4

Arson Reporting

When an authorized agency receives information under this chapter, it may release or provide the same information to any other authorized agency to further its investigation. In addition, an insurer who provides information under this chapter has the reciprocal right to request and receive relevant information from that agency. Finally, an insurer or authorized agency, who releases or provides evidence or information under this chapter, is immune from any civil or criminal liability for providing the evidence or information.

I.C. § 27-2-13-5

Arson Reporting

When an authorized agency is investigating a fire that it believes to have been caused by arson it may, in writing, order an insurer to withhold payment of any policy proceeds on the damaged or destroyed property for up to thirty (30) days from the date of the order. The insurer may not make a payment during that time, except as follows:

  1. Emergency living expenses;
  2. Emergency action necessary to secure the premises;
  3. To prevent further damage to the premises; or
  4. To a mortgagee who is not the target of the investigation of the authorized agency.

I.C. § 27-2-14-2

Vehicle Theft Reporting

If an insurer has reason to believe that a vehicle theft claim made by an insured is fraudulent, the insurer shall notify, in writing, an authorized agency of the suspected fraudulent claim and provide the agency with all materials developed from the insurer’s investigation.

I.C. § 27-2-14-3

Vehicle Theft Reporting

An authorized agency investigating a vehicle theft may, in writing, require an insurer investigating the loss to release any and all relevant information or evidence considered important to the authorized agency, including:

  1. Pertinent policy information (including a policy application);
  2. Policy premium payment records;
  3. History of prior claims made by the insured; and
  4. Material relating to the investigation, including:
    1. Statements;
    2. Proofs of Loss; and/or
    3. Other relevant evidence.

I.C. § 27-2-14-4

Vehicle Theft Reporting

An authorized agency provided with information under this chapter may release or provide the same information to any other authorized agency to further its investigation. In addition, an insurer who provides information under this section has the reciprocal right to request and receive relevant information from that agency. When requested, the agency shall provide the requested information within a reasonable time, not exceeding thirty (30) days. Finally, an insurer or authorized agency that releases or provides evidence or other information under this chapter is immune from civil or criminal liability for providing that information.

I.C. § 27-2-16-3

Claim Forms

All preprinted claim forms required by an insurer as a condition of payment of a claim must contain a statement which clearly states the following: “A person who knowingly and with intent to defraud an insurer files a statement of claim containing any false, incomplete, or misleading information commits a felony.”

I.C. § 27-2-19-7

Immunity For Exchange of Information

An insurer, attorney, or investigative agency that receives and provides information pursuant to the requirements of the Indiana Code in good faith is immune from liability arising from the act of receiving, or the act of providing the information.

I.C. § 36-8-17-7

Fire Investigation

A fire department must investigate and determine the cause of fire in their territory. If the fire chief believes a crime was committed, he must notify the division and submit a report. The report must include: (1) a statement of facts; (2) the extent of damage; (3) the amount of insurance; and (4) other information required in the commission’s rules. To carry out this section, the fire department may: (1) enter and inspect property; (2) cooperate with prosecuting attorney; (3) subpoena witnesses and documents; (4) give oaths; (5) take depositions and conduct hearings; and (6) separate witnesses and regulate the course of proceedings.

I.C. § 22-3-2-6

Workers’ Compensation – Exclusive Remedy

The Indiana Workers’ Compensation Administration provides the exclusive rights and remedies granted to an employee by account of personal injury or death, by accident, while that employee is within the course and scope of his employment.

I.C. § 25-10-1-15

Admissibility of Chiropractor Testimony

A chiropractor’s testimony relating to records or reports of a licensed medical physician may be admissible as evidence at trial if:

  1. The chiropractor is properly qualified as an expert; and
  2. The court is satisfied the information which the chiropractor testifies about is of the type reasonably relied on by other chiropractors.

I.C. § 27-4-1-4.5

Unfair Claim Settlement Practices

The statute sets forth certain actions/inactions which may constitute unfair claim settlement practices under Indiana law.

I.C. § 34-14-1-1

Declaratory Judgment

A court may declare rights, status, and other legal relations whether or not further relief is or could be claimed.

I.C. § 34-14-1-2

Declaratory Judgment

A person interested under a deed, will, written contract, or other writings or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have questions of construction or validity determined or obtain a declaration of rights, status, or legal relations thereunder.

I.C. § 34-50-1-4

Qualified Settlement Offer

This is essentially a codification of the Trial Rule 68 Offer of Judgment. When a qualified settlement offer is made pursuant to this statute, and not accepted, then the party rejecting the offer must ultimately obtain a more favorable judgment. If the rejecting party fails to obtain a more favorable judgment, the offering party is entitled to attorney’s fees, costs, and expenses in an amount not to exceed $1,000.00. To be valid, a qualified settlement offer must:

  1. Be in writing;
  2. Be signed by the offeror or the offeror’s attorney;
  3. Be designated on its face as a “qualified settlement offer;”
  4. Be delivered to each recipient or the recipient’s attorney by:
    1. Registered or certified mail; or
    2. Any other method that verifies the date of receipt; and
  5. Set forth the complete terms of the settlement proposal in sufficient detail to allow the recipient to decide whether to accept or reject it;
  6. Include the name and address of the offeror and the offeror’s attorney; and
  7. Expressly revoke all prior qualified settlement offers made by the offeror to the recipient.

I.C. § 34-51-4-8

Prejudgment Interest

If a court awards prejudgment interest, the court must determine the period during which prejudgment interest accrues, which may not exceed 48 months. Generally, prejudgment interest will begin to accrue on the latest of the following dates:

  1. Fifteen months after the cause of action accrued; and
  2. Six months after a medical malpractice claim is filed (if, I.C. § 34-18-8 and I.C. § 34-19-9 do not apply) or 180 days after a medical review panel is formed to review a medical malpractice complaint.
  3. In all cases, however, the court shall exclude any period of delay that the court determines is caused by the party requesting prejudgment interest.

 

SIGNIFICANT INDIANA COURT DECISIONS

SUPREME COURT DECISIONS

Everett Cash Mutual Insurance Co. v. Taylor, 926 N.E.2d 1008

Explicit Policy Exclusions in the Workers’ Compensation Context

Insureds hired a contractor to paint buildings on their farm. The contractor’s employee was injured while working. The contractor did not carry Workers’ Compensation coverage, so the injured employee sued the insureds, pursuant to Indiana Code, because the insureds failed to obtain a certificate from the contractor verifying Workers’ Compensation benefits. The insurer denied coverage based on a policy exclusion, applicable if benefits are required to be provided by an insured under Workers’ Compensation law. The court found in favor of the insured and reasoned that because the employee was injured in an “accident,” it was reasonable to infer that the policy covered this type of injury, and the policy exclusion could be construed to allow coverage for this type of incident. The court held that in order to apply a policy exclusion in this context, the language of the exclusion must be explicit, which it was not in this case.

Sheehan Construction, Inc. v. Continental Casualty Co., et al., 935 N.E.2d 160

“Faulty Workmanship” of a Subcontractor – Commercial General Liability Policy

Changing the long-standing law of the state that “faulty workmanship” did not constitute an “accident” or “occurrence” under a standard CGL policy, the Indiana Supreme Court held the faulty workmanship of a subcontractor could constitute an “accident” within the meaning of a standard CGL policy in certain circumstances. The court adopted the reasoning of other jurisdictions holding improper or faulty workmanship can constitute an “accident” under a CGL policy where the resulting damage is an event that occurs without expectation or foresight. In dicta, the court suggested if insurers do not intend to insure such risks, the CGL policy should be amended by adding a “breach of contract” exclusion, or eliminating the “subcontractor” exception to the “your work” exclusion.

Bradshaw v. Chandler, 916 N.E.2d 163

Pleading and Contractual Time Limitation

The insured was injured in a motor vehicle accident and sued the at-fault driver and his own insurer. In his initial complaint, the insured mentioned only his policy’s underinsured motorist provisions. The insured’s policy precluded recovery under the uninsured motorist provisions unless the proceeding was commenced within two years. More than two years after the accident, the insured learned the other driver was excluded for liability coverage on the vehicle he was driving. The insured then amended his complaint to include uninsured coverage. The court concluded bringing suit after two years met the provisions of the policy. Because “suit” did commence within two years, the policy requirements were met.


Smith v. Champion Trucking Co., 925 N.E.2d 362

Employee Precluded From Adjustment of Workers’ Compensation Benefits After Settling Claim

Plaintiff employee was injured in a motor vehicle accident with a third party. Defendant employer’s Workers’ Compensation benefits provided for the employee’s initial medical expenses. After two years, the employee applied to have his Workers’ Compensation benefits adjusted to reflect a permanent impairment and additional medical expenses. The employee also settled the case with the third party motorist for $10,000.00 without the consent of his employer. The employer challenged the adjustment to benefits, and the lower court found that the Indiana Workers’ Compensation Act releases an employer from liability from Workers’ Compensation benefits after an employee settles a claim without employer consent. The Supreme Court upheld the decision to bar the employee from an adjustment in benefits because by settling with the third party without the employer’s consent, the employee prevented the employer from recovering the benefits from the third party.

Babes Showclub v. Lair, 918 F.3d 308

Fireman’s Rule

A police officer responded to an altercation involving a patron at plaintiff’s nightclub. The officer was injured by the patron. The officer sued the nightclub for negligence in failing to maintain adequate security. The nightclub cited Indiana’s fireman’s rule in defense. The court found for the nightclub and held that the fireman's rule allowed no claim by a professional emergency responder for the negligence that created the emergency to which he responded. The court indicated the fireman’s rule would permit liability for negligence or tortious conduct unrelated to the conduct that contributed to the injury.

Eads v. Cmty. Hosp., 932 N.E.2d 1239

Premises Liability v. Medical Malpractice

The patient was injured leaving the hospital on crutches. She filed a negligence claim in superior court. The Medical Malpractice Act’s limitations period expired before her negligence complaint was dismissed for failure to comply with the requirement of the MMA that a medical malpractice complaint be filed with the Department of Insurance before it was presented to a court. Approximately two weeks before her superior court complaint was dismissed, the patient submitted a proposed complaint to IDOI based on the same circumstances alleged in the superior court complaint. The patient asserted that her IDOI complaint was a continuation of the superior court action. The court agreed. The patient's new complaint changed no parties, facts or elements, and altered only the procedural requirements to assert the claim. The patient's original action did not fail for "negligence in the prosecution" by reason of her filing initially as a premises liability claim and her failure to appeal the action's dismissal did not preclude invocation of the JAS. In addition, the IDOI claim, though brought before the failure of the superior court claim, could be considered a continuation of the original claim. The Supreme Court of Indiana affirmed the trail court’s grant of summary judgment.

Kroger Co. v. Plonski, 930 N.E.2d 1

Foreseeable Criminal Acts

Plonski filed a negligence claim against Kroger after she was attacked and robbed in the store’s parking lot. Kroger filed a motion for summary judgment and argued that it did not owe Plonski any duty, it did not breach any duty if one was owed, and its conduct was not the proximate cause of the victims injuries. The trial court denied the motion and the Court of Appeals affirmed. The Indiana Supreme Court ruled that the lower court should have reviewed the affidavits submitted by Kroger in support of their motion and should not have allowed Plonski to introduce the police reports to support her motion to strike. The court ruled that the landowners duty to protect invitees from “foreseeable criminal acts” includes the owner’s parking lot and the routes in and out of the premises. The Supreme Court ruled that Kroger failed to meet its burden that the criminal act was not foreseeable and therefore affirmed the lower court’s denial of Kroger’s motion for summary judgment.

Bules v. Marshall County, 920 N.E.2d 247

County Immunity in Public Road Warnings

A tractor-trailer driver lost control of his vehicle and sustained injuries due to hitting rising water in the defendant county. The driver noticed a sign prior to hitting the water but did not realize that it was a “high water” sign. The driver and his passenger sued the county for negligence in warning about the water. The county argued that it had immunity because of the Indiana Tort Claims Act’s protection of governmental entities from losses arising out of weather problems on public thoroughfares. The court found in favor of the county because the accident occurred during a “period of reasonable response to a condition” and because the flooding condition had not yet stabilized.” The court also found that an insurance company letter to the county was not an admission of liability pursuant to Indiana Rule of Evidence 408, as the letter was part of ongoing settlement negotiations.

Gary Community Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224

School Slip and Fall

A woman taking her children to school slipped and fell on a patch of ice on the school’s premises. The woman sued the school claiming it negligently maintained the walkway. The school argued the Indiana Tort Claims Act conferred immunity to the school because the fall was a result of a temporary condition. The Indiana Supreme Court determined while the Indiana Tort Claims Act does provide immunity to a government entity for injuries caused by the temporary condition of a public thoroughfare, here there was no undisputable evidence the woman fell from an isolated patch of ice caused by temporary cold. The school had the burden of establishing its immunity and failed. The court further declined to create a rebuttable presumption that all icy conditions are temporary.


Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120

Repayment of Debt and Counterclaim For Unjust Enrichment

Plaintiff casino brought action for repayment of gambling debts, treble damages, and attorneys fees. The defendant brought a counterclaim for unjust enrichment based on allegations the casino took advantage of her gambling addiction in order to obtain more profits. The Court of Appeals held that the defendant was not entitled to her counterclaim. Reviewing the case de novo, the Indiana Supreme Court held that the existence of the voluntary exclusion program in Indiana suggests the legislature intended pathological gamblers to take personal responsibility to prevent and protect themselves against compulsive gambling. The legislature did not require casinos to identify and refuse service to pathological gamblers who did not self-identify. The court held that to allow the crossclaim to go forward under the common law would shift primary responsibility from the gambler to casino when it is apparent that the legislature intended otherwise. Therefore, allowing a common law negligence claim addressing behavior essentially the same as prohibited under the statutory scheme irreconcilably conflicts with the intent of the legislature.

Clay City Consolidated Schools Corp. v. Timberman, 918 N.E.2d 292

Children and Contributory Negligence

Parents brought a wrongful death action against a school district after their 13 year-old son died during basketball practice. The school district claimed the child’s negligence was contributory to death. This provided an affirmative defense for governmental entities, such as the school district. The court found Indiana Rule of Evidence 301 establishes a rebuttable presumption children between the ages of 7 and 14 are incapable of contributory negligence. The court emphasized this evidentiary presumption in no way changes the standard of care applicable to children ages 7 to 14, which is a standard of due care toward themselves as measured by the level of care ordinarily exercised by other children of the same age, knowledge, judgment, and experience in similar circumstances.

Donovan v. Grand Victoria Casino & Resort, L.P., 929 N.E.2d 786

Non-Discriminatory Exclusion of Business Patron

Following his eviction from defendant’s casino for admittedly counting cards while playing the game of “Blackjack,” plaintiff filed suit alleging defendant could not evict him on this basis, as there was no statute or other express prohibition of card counting. Defendant obtained summary judgment based on the common law right of a business owner to refuse a patron’s business, so long as the refusal was not based on a discriminatory purpose. Determining the casino was subject to strict government regulation, and finding no statutory prohibition to card-counting, the Indiana Court of Appeals reversed the trial court’s summary judgment, and held defendant could not rely on a common law right to exclude plaintiff under these circumstances. The Indiana Supreme Court reversed the Court of Appeals, and re-affirmed the trial court’s summary judgment in favor of defendant. The Supreme Court held Indiana casinos are not unlike other private “amusements” simply because they are subject to government regulation. The Supreme Court held the Riverboat Gambling Act, which gives the Indiana Gaming Commission exclusive right to set the rules for licensed casino games, does not abrogate the casino’s common law rights as a private business owner under Indiana law.

In re Estate of Enlow, 916 N.E.2d 664

Wrongful Death Settlement

Husband died from injuries after being struck by a helicopter rotor blade. His wife paid the funeral and burial costs and was later reimbursed in full from the estate. The court appointed a special administrator who pursued a wrongful death action and a compromise settlement was reached. The wife argued she was not required to reimburse the estate for the funeral and burial costs from the compromise settlement. She relied on the Wrongful Death Act, Ind. Code 34-23-1-1, and argued because no part of the wrongful death settlement was recovered specifically for the funeral or burial costs, it did not fall within the act. The court refused to impose upon compromise settlements made before adjudication of total damages a rule where proceeds first repay the medical, hospital, funeral, and burial expenses. The court ruled payment should have been made from the compromise settlement for that part of the medical, hospital, funeral, and burial expenses corresponding to the ratio of the total of such expenses to the estimated total damages sustained.

Indianapolis City Market Corp. v. MAV, Inc., 915 N.E.2d 1013

Declaratory Judgment

Plaintiff argued defendant failed to appeal a declaratory judgment in the thirty days allowed by the Uniform Declaratory Judgment Act. Defendant argued it was not bound by the confines of the Declaratory Judgment Act. The court held not all declaratory judgments are issued pursuant to the Uniform Declaratory Judgment Act because Trial Rule 57 greatly expanded trial courts’ authority to issue declaratory judgments. One distinction between the two is the Declaratory Judgment Act can only “declare rights, status, and other legal relations,” while Trial Rule 57 allows trial courts to grant “executory, coercive, or affirmative” relief. Furthermore, nothing in the plaintiff’s complaint mentioned the Uniform Declaratory Judgment Act and the relief plaintiff sought was coercive in nature.

Indianapolis-Marion Cnty. Pub. Library v. Charlier Clark & Linard, 929 N.E.2d 722

Economic Loss Rule

The library filed suit against three subcontractors for breach of contract and negligent design and construction of a building. The trial court granted partial summary judgment to the defendants on the negligence claims, because the economic loss rule barred the library’s tort claims. The library appealed and made several arguments that the economic loss rule should not apply to its tort claims. The library argued that the defendants’ negligence caused damage to property that was not the service or product provided, and created a risk of personal injury. They further argued that the economic loss rule should not bar their negligence claim because the defendants were professionals who negligently misrepresented facts and provided services, not products. The Supreme Court rejected the library’s arguments and held that the economic loss rule barred all of the library’s tort claims, since the tort claim was for a purely economic loss, and the defendant subcontractors were connected to the plaintiff through a chain of contracts.

Patients Comp. Fund. v. Patrick, 929 N.E.2d 190

Emotional Distress Claim Unavailable Under the Adult Wrongful Death Statute (AWDS)

Patrick’s son died as a result of medical malpractice following an auto accident. Patrick filed suit and the trial court awarded him $300,000.00 for loss of companionship and $600,000.00 for emotional distress. The appellate court affirmed both awards. Thereafter, the Supreme Court ruled that an emotional distress claim is not available under the Adult Wrongful Death Statute (AWDS) and that Patrick could not seek a derivative claim for the emotional damages under the Medical Malpractice Act.

Reiswerg v. Statom, 926 N.E.2d 26

Raising Affirmative Defense on Reply to Motion For Summary Judgment

Plaintiff pursued a malpractice action against her former attorney and the law firm. In response to the complaint the attorney and law firm raised the statute of limitations defense. Plaintiff then filed a motion for partial summary judgment on the issue that the defendants were negligent as a matter of law. In response to the motion the defendants did not raise the statute of limitations defense. Plaintiff therefore argued that the affirmative defense was waived. The court ruled that the defendant did not waive its affirmative defense by not raising it in response to a motion for partial summary judgment that would not be dispositive on the issue of liability.

Sibbing v. Cave, 922 N.E2d 594

Exclusion of Testimony Regarding Plaintiff’s Medical Conditions

Plaintiff was rear-ended by defendant, resulting in substantial damage to plaintiff’s vehicle. Plaintiff received treatment for her injuries over the next month. The trial court allowed the plaintiff to testify as to what her doctors told her the condition was, and what might have caused it. The Indiana Supreme Court found that this testimony was improper and found that it should have been excluded as hearsay, although the court determined this was not reversible error. The defendant also challenged the exclusion of his medical expert’s testimony questioning the reasonableness and necessity of the plaintiff’s medical treatment. The court found that the evidence was properly excluded because the defendant was not asserting that the treatment lacked causation in fact, but rather was attempting to call the plaintiff’s medical provider’s judgment into question.

Travelers Indemnity Co. v. Jarrells, 927 N.E.2d 374

Collateral Source Rule and Jury Instructions

Plaintiff received Workers’ Compensation benefits and thereafter sued a third party for damages. The insurance company was notified of the suit against the third party but did not intervene. The issue was whether the jury verdict amount included the amount of Workers’ Compensation benefits or whether the jury verdict was the damages award minus the Workers’ Compensation benefits that had previously been paid. The lower court gave the Indiana Pattern Jury Instruction-that allowed the jury to consider any amount the plaintiff was required to repay to a collateral source and the cost to the plaintiff of the benefits received in determining the amount of collateral benefits received by the plaintiff. The Supreme Court held that the jury instructions were confusing and should not be used in future trials. Because the insurer did not intervene in the trial, the court refused a new trial. The court ruled that it was likely that the jury followed the instructions and deducted the Workers’ Compensation benefits from the final award. The court emphasized that the trial court was in the best position to determine what the jury intended and the jury was informed of the amount of benefits to deduct from its award to the plaintiff in order to prevent double recovery in accord with Ind. Code. §34-44-1-1. Therefore, the court upheld the trial court’s judgment.


APPELLATE COURT DECISIONS

Adkins v. Vigilant Insurance Co., 927 N.E.2d 385

Employer’s Excess Umbrella Policy

Plaintiff was struck by a van while riding on a tractor as part of his employment. Plaintiff asserted claims against his employer’s vehicle, homeowner’s, and excess umbrella insurance policies for uninsured motorist coverage. The trial court granted summary judgment to the excess insurer. The Court of Appeals affirmed the trial court’s ruling and concluded that the plaintiff’s damages were not covered by the umbrella policy. The umbrella policy only provided for excess coverage for damages which the employer was legally responsible and would only provide coverage after the maximum limits of the underlying liability policies were exhausted. The plaintiff failed to prove that the employer was liable for the damages, and it was undisputed that none of the employer’s liability policies covered any of the alleged damages. Therefore, the employer’s excess umbrella policy provided no coverage to the plaintiff.

Myers v. Yoder, 921 N.E.2d 880

Limited Duty of Insurance Agent

Plaintiffs obtained homeowners insurance on their newly constructed home, and renewed that policy with their original agent over a period of years. After the original agent retired, the plaintiffs conveyed to the defendant agent that they wanted “full coverage” insurance. A replacement cost estimator was never performed for the property. The plaintiffs’ home and its contents were destroyed by explosion, with replacement cost determined to be well in excess of the policy limit. Plaintiffs argued that the defendant insurance agent was responsible for informing them of the value of their home and had breached his duty. The court found in favor of the defendant, finding that no long-term intimate relationship existed to give rise to a duty on the part of the insurance agent to advise the plaintiffs on the value of their home for insurance purposes.

Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548

Evidence of Insurance

Plaintiff was involved in an automobile accident with defendant driver and brought suit against both defendant driver and Allstate. Before trial, Allstate motioned the court to identify the driver as the sole defendant. Allstate argued the substitution was necessary to prevent substantial unfair prejudice should the jury become aware underinsured motorist coverage was available. The court denied the motion, and held Evidence Rule 411 does not contemplate the creation of a fiction to avoid possible prejudicial effects from reference to insurance or an insurer. Evidence Rule 411 deals with the admissibility of evidence, excluding evidence of insurance offered to show a party acted negligently or wrongfully, so a jury is not induced to decide a case on improper grounds. In this case, liability had been conceded, and the only issue was damages.

Cincinnati Ins. Co. v. Trotsky, 918 N.E.2d 1

Choice of Law and UIM Coverage

A group of friends were involved in a motor vehicle accident with the Florida Highway Patrol on their way home to Indiana. Several suits were filed, along with claims for UIM coverage. The court held the victim could recover under the UIM policy regardless of the fact the UIM limits equaled the amount that the victim had recovered from the tortfeasor. The court stated “the exhaustion of a tortfeasor’s statutory cap liability” does not affect the insured being “legally entitled to recover,” as is used in insurance policies. The court ruled because the only contact with Florida was the accident itself, Indiana substantive law applied. The court further explained the government-vehicle exclusion in UIM insurance policies was void as against public policy.

Allied Prop. and Cas. Ins. Co. v. Good, 919 N.E.2d 144

Sanctions For Violations of Orders in Limine

The court held Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. The power is designed to protect the integrity of the judicial system and to secure compliance with the court's rules and orders. In order for a trial court to impose sanctions against a party or attorney, the court must find the party engaged in egregious misconduct causing a mistrial. The trial court's sanctioning power is reviewed for an abuse of discretion.

Hillebrand v. Large, 914 N.E.2d 846

Attorneys’ Fees

The attorney who represented the estate in a wrongful death action requested her fees be paid from the entire settlement recovery. The court found attorneys’ fees in wrongful death actions were recoverable under the Adult Wrongful Death Statute. Furthermore, because the settlement already allocated the funds which inured to the exclusive benefit of the estate for payment of expenses, the court directed the attorney fees also be paid out of the funds expressly allocated to the estate.

Miller v. Yedlowski, 916 N.E.2d 246

Summary Judgment Response Time

Parents of a deceased child brought a medical negligence action against the treating physician. After a medical panel found unanimously for the doctor, he moved for summary judgment. Parents were granted enlargement of time to respond by the lower court. After failing to respond within the enlarged time, the parents were granted another enlargement by the court. The appellate court found the response filed by the parents was untimely. The rule stating a response or request for enlargement be filed within 30 days of a motion for summary judgment does not become nullified simply because the court grants enlargements of time to respond. If more time is needed to respond after an enlargement has been granted, the party responding must make their request for extended time within the originally granted enlargement period.

Powers & Sons Constr. Co. Inc. v. Healthy East Chicago, 919 N.E.2d 137

Claims Against a General Contractor and Statute of Limitations

Health care provider hired general contractor as construction manager for the construction of a new facility. After completion of the facility, health care provider found cracks in the building’s walls, floors, and ceilings. When general contractor refused to fix the cracks, health care provider sued for breach of contract nine (9) years after completion of the building. General contractor filed a motion for summary judgment on the grounds the claim fell outside the two (2) year statute of limitations provided for injury to personal property. The court found the ten (10) year statute of limitations for breach of contract claims was applicable, rather than the two year limitation suggested. When deciding what statute of limitations to apply, the court looked to the substance of the claim and what caused it to be filed. The claim brought against the general contractor stemmed from a failure to perform work as was set forth in the contract, not from an injury to personal property.

Terry v. Stephens, 921 N.E.2d 516

Child Dependency Under the Wrongful Death Act

Representatives of decedent brought a wrongful death action stemming from decedent’s suicide while incarcerated. Plaintiff claimed that under the Wrongful Death Act, decedent’s children qualified as “dependent” based on the giving of love, care and affection, despite no financial dependence. The court found that love, care and affection are not enough to establish that the children were “dependent,” and that the Wrongful Death Act is based on pecuniary loss. Further, the court recognized “dependent child” as meaning a child in need of support, and who actually receives that support. Because the plaintiff decedent had never paid child support and would not be able to pay it, the second portion of the definition failed, and the court found in favor of the defendant.

FEDERAL COURT DECISION

Estate of Luster v. Allstate Ins. Co., 598 F.3d 901(7th Cir.)

Vacancy, Increase in Hazard, Vandalism

Mrs. Luster, an elderly widow, had a homeowner’s policy issued by Allstate. In 2001 she was seriously injured, hospitalized and moved into an extended care facility. She never returned home, and died in April 2006. No one lived in the house after she left it in 2001. Her lawyer notified Allstate of his Power of Attorney, and Allstate sent the insurance premium notices to his law office. Three months after Mrs. Luster’s death, while her house was still unoccupied, a fire damaged the house. Her estate submitted a claim to Allstate. An investigation revealed the fire may have been started by burglars.

Allstate denied coverage based on a substantial increase in hazard, and based on a vandalism exclusion where the dwelling has been vacant for thirty (30) days prior to the loss. Allstate also returned the paid premium dating back to thirty (30) days after the house became unoccupied, and attempted to cancel the policy retroactively.

In reversing the decision of the trial court, the Court of Appeals determined an insured’s breach of a duty of the insured to notify the insurer of any change in occupancy of the premises entitles the insurer to cancel the policy, but the insurer must do so in accordance with the cancellation provision of the policy. The court did note four and a half (4 ½) years of continuance absence of human occupation constitutes a change in occupancy for purpose of an insurance policy. The court rejected Allstate’s argument that an unoccupied dwelling necessarily creates an increase in hazard. The court made no determination concerning the vandalism provision, because the trial court issued no finding as to whether the fire was the result of vandalism.

 

SIGNIFICANT CASES PENDING BEFORE THE INDIANA SUPREME COURT

 

Howard Reg'l Health Sys. v. Gordon, appealed from 925 N.E.2d 453 (Ind. App. 2010)

Spoliation of Evidence in Medical Malpractice Cases

Parents filed a medical malpractice claim for injuries allegedly sustained at the time of their infant’s birth. The parents’ counsel requested records from the hospital, and the hospital responded 18 months later that the records could not be located. The trial court determined the hospital had a duty imposed by Ind. Code § 16-39-7-1 to maintain its medical records and breached its duty. The court also held that § 16-39-7-1 imposed on entities subject to the statute a duty to maintain their health records, and that a breach of that duty was negligence per se. Further, an action for third-party spoliation of evidence was permissible under the facts of this case and the parent was entitled to summary judgment on the question whether the loss of the records was the proximate cause of the damage she suffered in the form of inability to prove a lawsuit against the doctor. The parent was not obliged to proceed with the underlying malpractice action in order to show the potential amount of damages before bringing the spoliation action. The appellate court affirmed partial summary judgment against the hospital.

On appeal, the Indiana Supreme Court will decide whether the lower courts correctly granted the motion for partial summary judgment against the hospital for spoliation of evidence.

McCabe v. Comm'r, Ind. Dep't of Ins., appealed from 930 N.E.2d 1202 (Ind. App. 2010)

Recovery Under the Adult Wrongful Death Statute

The trial court held that the Indiana Patient’s Compensation Fund had no liability for attorney fees and expenses incurred by the attorney representing the personal representative of the deceased, because these fees and expenses were not recoverable damages under Indiana’s Adult Wrongful Death Statute. The court held that the disjunctive nature of the remedies available under the wrongful death statutes did not compel recovery of reasonable attorney fees under the AWDS to reach a harmonious result between the statutes, and that strict construction precluding such recovery was consistent with the American rule. The appellate court affirmed.

The Indiana Supreme Court will review this case to determine whether the Adult Wrongful Death Statute precludes liability for attorney fees.

Nat'l Union Fire Ins. Co. v. Std. Fusee Corp., appealed from 917 N.E.2d 170 (Ind. App. 2010)

Choice of Law Analysis in Insurance Cases

The trial court applied Indiana law when the insured sought defense and indemnification for environmental cleanup proceedings in California and Indiana. The court noted that Indiana case law generally had followed the uniform-contract-interpretation approach to choice of law analysis in insurance cases, in which the law of a single forum governed the interpretation of policy coverage for claims arising from environmental damage in multiple jurisdictions. However, the appellate court concluded that a site-specific approach construing the policies separately under the laws of each state would be preferable as it protected the significant governmental interest of each jurisdiction. Therefore, the court applied California law with regard to the California site. Therefore the appellate court reversed and remanded the case with instructions to follow California law for the California sites. All other holdings were affirmed.

The Indiana Supreme Court will review this decision to determine if the appellate court correctly reversed and remanded the case with instructions to follow California law for the California site.

O’Brien v. Davidson, appealed from Ashby v. Davidson, 930 N.E.2d 53 (Ind. App. 2010)

Actual Written Notice to the Insurer of a Legal Malpractice Claim

Legal malpractice insurer intervened in a malpractice action and filed a declaratory judgment complaint. Insurer argued that, even though it received written notice of the attorney clients’ claims, there was no coverage under a legal malpractice liability policy because the insured did not supply written notice to the insurer and the insured did not receive a demand from the clients within the policy period. The appellate court held that the trial court erred in granting summary judgment in favor of the insurer, because, as a matter of law, the actual notice the insurer received from the clients was proper. In this case, it was impossible for the insured to give proper notice as he was running from the law as a result of a multi-state crime spree. Further, the insurer received actual written notice of the claims in a timely and true manner and had been able to investigate and defend the clients’ claims against the insured. The appellate court reversed and remanded the case.

On appeal, the Indiana Supreme Court will review this decision and determine whether summary judgment was proper.

Putnam County Sheriff v. Price, appealed from 930 N.E.2d 669 (Ind. App. 2010)

Sheriff Tort Immunity

Plaintiff lost control of her vehicle when she hit a patch of ice across the road, causing personal injury and property damage. The sheriff’s department had been called to that same location earlier in the morning to investigate another car accident caused by the icy conditions. Plaintiff sued the Sheriff. The trial court denied the sheriff’s motion to dismiss, finding that the sheriff was not entitled to immunity under either the Indiana Tort Claims Act or common law. The sheriff owed a common law duty of ordinary and reasonable care to warn the public of the known hazardous condition and was not entitled to immunity under Ind. Code § 34-13-3-3-(3) for a temporary condition caused by weather, because the icy road was caused by a waterline leak.

On appeal, the Indiana Supreme Court will determine whether it was proper to deny the Sheriff’s motion to dismiss.