Indiana Injury Blog

The Indiana Court of Appeals upheld the trial court's award of prejudgment interest in a medical malpractice case earlier this month in Hupfer v. Miller, 2008 WL 2600021 (Ind. Ct. App. 2008). In Hupfer, a jury returned a verdict in favor of the Plaintiff for $75,000 against a podiatrist who was found liable for committing malpractice. Following the verdict, the Plaintiff filed a motion for prejudgment interest. The trial court granted the motion and awarded the plaintiff $24,000 after applying an interest rate of 8%.

The Indiana Court of Appeals affirmed the trial court's decision on appeal. In doing so, it stated that the initial award of prejudgment interest was made pursuant to the Tort Prejudgment Interest Statute ("TPIS") (or IC 34-51-4-1 et. seq.), which was enacted to "encourage settlement and to compensate the Plaintiff for the lost time value of money." Moreover, TPIS preempts comomon law prejudgment interest in tort cases.

On appeal, the Defendant argued that Plaintiff's written settlement offer did not comply with TPIS because it failed to specify the exact Plaintiff and Defendant to whom the offer applied. The Court disagreed stating the it was clear who the offer was directed at when the letter was sent from the individuals who filed the claim to the person whom the claim was filed against.

The Defendant also argued that the prejudgment award violated TPIS as it was more than one and one-third (1 1/3) the amount of the total judgment. The Court again disagreed explaining that the TPIS states the prejudgment interest award must not exceed one and one-thid the total amount of the judgment and in the case at hand the prejudgment interest award was exactly one and one-third.

Lastly, the Defendant unsuccessfully argued that the trial court erred in awarding prejudgment interest when it applied a prejudgment interest rate of 8%. The Court, however, noted that the TPIS allows a trial court to award a prejudgment interest rate of not less than 6% and no more than 10% per year. Consequently, the trial court was within its discretion to award 8%.

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Posted In: Civil Litigation , Indiana Court of Appeals Decisions , Medical Malpractice , Tips for Attorneys

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Msnbc.msn.com has reported that early Saturday morning a 33-year-old Indianapolis man accessed Interstate 65 northbound in the wrong direction, causing a motor vehicle accident killing both himself and the driver of another car. Mark Cabbell, Jr. was identified as the driver of the car headed in the wrong direction that collided with the car driven by 22-year-old Samatha Burke, as she was headed northbound near the State Road 39 exit. Burke was heading home from her shift as a nurse at Riley Children's Hospital.

Both drivers were pronounced dead at the scene of the accident. Police are investigating whether Cabbell was under the influence of alcohol at the time of the accident.

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Posted In: Car Accidents , Motor Vehicle Accidents

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The SunHerald.com reported that the American Association for Justice ("AMJ") recently released a report ranking the United States "worst" insurance companies based on factors such as: refusal to pay just claims, the company employs harball tactics against policyholders, rewarding of company executives with extravagant salaries, and the raising of premiums while stockpiling excessive profits.

Researchers for the AMJ spent six months gathering information to base the report on. According to the SunHerald.com, researchers used "court documents, SEC and FBI records, state insurance department investigations and complaints, nationwide news accounts, and testimony of former insurance agents and adjusters" to draw their conclusions.

The top five "worst" companies listed in the report are:
1. Allstate
2. Unum
3. AIG
4. State Farm
5. Conseco

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Posted In: Reports & Studies , Tips for Attorneys

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The Indianagazette.com recently reported that a Cambria County coal miner was killed early Friday morning, while working inside Nolo Mine in Buffington Township. Indiana state police believe the miner's death can be attributed to power cables that interfered with the proper use of a feeder, which is designed to load coal on a conveyor belt carrying the coal outside of the mine. Some suspect that the cables fell on the feeder's controls, causing the machine startup movements to unexpectedly swing towards the miner, crushing his body against the wall inside the mine. The man was pronounced dead at the scene with fatal injuries to his abdomen and chest.

Click here to read the report of the incident at Indianagazette.com.

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The chicagotribune.com reported recently that more Indiana motorcycle deaths has caused a renewed debate over Indiana's lack of a mandatory motorcycle helmet law. According to the report, while Indiana does not have a mandatory motorcycle helmet law, 20 states currently do. The Indianapolis based Indiana Criminal Justice Institute states that since April of this year, at least 12 Indiana motorcycle crashes have resulted in deaths and motorcycle deaths have risen 80 percent in the last 10 years.

Click here to review the complete article from the chicagotribune.com.

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Posted In: Highway & Traffic Safety , Indiana Laws , Motor Vehicle Accidents , Motorcycle Accidents , Tony Patterson

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Tristatehomepage.com reported Wednesday evening that two teens were killed in a motor vehicle accident U.S. Highway 231 just south of Gentryville Wednesday morning. The report explained that the two teens were lifeguards on their way to work when the accident occurred.

The teen driver was attempting to pass a motor vehicle on the left hand side of the highway when the car collided head on with a mini-van that was oncoming from the opposite direction. At the time of the accident, the teens' car was approaching a hill crest that made them unable to see the oncoming mini-van. At that location, the highway was marked as a "no passing" zone.

Click here to read the article at tristatehomepage.com.

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Posted In: Car Accidents , Highway & Traffic Safety , Motor Vehicle Accidents

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Under Indiana law, when a person driving a vehicle that is approaching a railroad crossing, that person must stop within fifty feet but not less than fifteen feet from the nearest track of railroad and may not proceed until safe to do so when: 1) a clearly visible electric or mechanical signal device gives warning of the immediate approach of a train, 2) a crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a train, 3) a railroad train approaching within one thousand five hundred (1,500) feet of a highway crossing emits an audible signal and because of speed or nearness to the crossing is an immediate hazard, and 4) an approaching train is plainly visible and is in hazardous proximity to the crossing. See IC 9-21-8-39.

Additionally, motor vehicle drivers have a duty under IC 9-21-5-4 to reduce their speed as necessary at railroad crossings in order to avoid colliding with people, vehicles, or other conveyances on or near the intersection.

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Posted In: Highway & Traffic Safety , Indiana Laws

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The ChicagoTribune.com has reported that three people were killed in a train/automobile collision early Monday evening in Gary, Indiana. The car was hit when the driver attempted to drive the car around crossing gates at the intersection, but was unable to do so in time to miss the oncoming CSX freight train. Upon impact, two of the individuals were ejected from the car. None of the indiviudals in the car were wearing safety belts at the time of the collision.

Click here to read about the accident on ChicagoTribune.com.

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Posted In: Highway & Traffic Safety , Motor Vehicle Accidents , Truck Accidents

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Under Indiana law, when approaching a stationary authorized emergency vehicle that has its emergency lights activated, all motor vehicle drivers are required to proceed with "due caution" in yielding the right-of-way by changing into a lane not adjacent to that of the authorized emergency vehicle, "if on a highway having at least four (4) lanes with not less than two (2) lanes proceeding in the same direction as the approaching vehicle." See IC 9-21-8-35(b)(1). If a motor vehicle driver is unable to safely change lanes, Indiana law requires drivers to reduce the speed of their vehicle, while still maintaing a speed that is safe for the current road conditions. See IC 9-21-8-35(b)(2).

Please be careful and remember the law when encountering stopped emergency vehicles on Indiana roadways.

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Posted In: Highway & Traffic Safety , Indiana Laws

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Indystar.com has reported that Indiana State Police trooper Jeff Woodward was injured early Sunday morning while assisting a motorist changing a tire on southbound Interstate 465 near Rockville Road. Woodward had parked his patrol car, with its emergency lights activated, behind the car he was assisting when a driver rear-ended his patrol car. Upon impact, the patrol car was knocked into the car Woodward was assisting, which then struck him causing injuries to his back and legs.

According to Indystar.com, a young woman was cited in causing the accident for reckless driving, failure to yield to an emergency vehicle, speeding, having an unexpired plate, having no driver's license with her, and unsafe lane movement.

Under Indiana law, motor vehicle drivers are required by statute to change lanes or reduce their speed when approaching an emergency vehicle stopped with its emergency lights on.

Click here to read the article on Indystar.com.

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Posted In: Highway & Traffic Safety , Motor Vehicle Accidents

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On a rehearing of the matter, the Indiana Court of Appeals recently affirmed its decision in Estate of O'Neal v. Bethlehem Woods Nursing Rehab. Ctr., LLC, 878 N.E.2d 303, 314 (Ind. Ct. App. 2007), that the Indiana Wrongful Death Act's ("WDA") two-year statute of limitation, which begins at the date-of-death, controls over Indiana's professional services two-year statute of limitation, which begins at the time of the occurrence. See Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., LLC (Estate of O'Neal), (Ind. Ct. App. 2008) (June 10, 2008) (opinion on rehearing), 2008 WL 2346138.

In its petition for rehearing, the petitioners argued, among other things, that the similarities in text and purpose between the Indiana professional services statute of limitation and the Indiana Medical Malpractice Act's ("MMA") two-year, occurrence based statute of limitation requires the Indiana Court of Appeals to conclude that the Indiana professional services statute of limitation controls over the Indiana WDA's statute of limitation.

The Indiana Court of Appeals disagreed, holding that even though the professional services statute of limitation has similarities in its text and purpose to the Indiana MMA's statute of limitation, the legislative goals of the MMA constitute a far more comprehensive means of accomplishing certain legislative goals. Thus, even though the MMA's statute of limitation controls over the WDA's statute of limitation, the professional services statute of limitation does not control over the WDA's statute of limitation.

Click here to read the opinion.

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Posted In: Civil Litigation , Indiana Court of Appeals Decisions , Personal Injury Litigation

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In deciding two matters of first impression, the Indiana Supreme Court recently held that a trampoline may constitute an attractive nuisance and that a parent/landowner may be liable for injuries of a minor sustained on the parent/landowner's property, when the parent/landowner's minor child invites the other minor onto the property. Click here to read the Indiana Supreme Court's opinion in Kopczynski v. Barger.

In Kopczynski, a twelve-year-old girl was invited by her neighbor's minor child to jump on a trampoline in the neighbor's back yard and subsequenlty injured her knee while on the trampoline. The trampoline was located in an unenclosed area behind the neighbor's house and the children were jumping on the trampoline without adult supervision.

The trial court granted the parent/landowner's motion for summary judgment on the injured girl's claim for liability under the attractive nuisance doctrine and premises liability, determining that the girl was a trespasser and that the attractive nuisance doctrine was not applicable. The Indiana Court of Appeals affirmed the trial court's determination.

The Indiana Supreme Court reversed the trial court's grant of summary judgment, holding that there is a genuine issue of material fact as to whether the injured girl was an invitee on the property, opposed to a trespasser. Additionally, the Court used expert testimony that stated unenclosed trampolines on private property "are particularly attractive to children," that knee injuries are a common result of trampoline use and additional testimony stating the injured girl was not warned of the dangers of the trampoline in determining that a genuine issue of material fact existed as to whether the trampoline in this case constitued an attractive nuisance.

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Posted In: Civil Litigation , Indiana Supreme Court Decisions , Personal Injury Litigation , Premises Liability

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