Indiana Injury Lawyer Blog

In Knightstown Banner, LLC v. Town of Knightstown, the Indiana Court of Appeals set forth the criteria that must be met in order for a party to be granted change of judge after a case is remanded to the trial court. Specifically, the Indiana Court of Appeals held that in order to give rise to a change of judge as a matter of right upon remand, the matter to be decided upon remand must require a hearing and receipt of evidence and must involve at least one issue already tried and decided by the court. 882 N.E.2d 270 (Ind. Ct. App. 2008).

In Scheible v. Jackson, the plaintiff argued that both a purchaser and a vendor owe a duty to the traveling public to maintain property which is the subject of a land-sale contract in a reasonably safe condition. On appeal, the Indiana Court of Appeals noted that, as a general rule, a vendor in a land-sale contract avoids liability on the subject real estate by relinquishing possession and control to the purchaser, at least where the purchaser has a reasonable opportunity to address a known defect. However, the Indiana Court of Appeals also stated, that where a vendor retains control of the subject premises, liability may attach.

As a result, the Indiana Court of Appeals determined the existence of a land-sale contract is not itself dispositive as to the vendor's non-liability for a dangerous condition of the land. Instead, the Indiana Court of Appeals held that it must look to both the terms of the land-contract and the conduct of the contracting parties to determine who actually exercised control over the property. 881 N.E.2d 1052 (Ind. Ct. App. 2008).

In Bailey v. State Farm Mut. Auto. Ins. Co., the Indiana Court of Appeals held that Indiana does not recognize a first-party cause of action for negligent entrustment of a motor vehicle to a voluntarily intoxicated adult. The Indiana Court of Appeals reasoned that denying those who drive another's vehicle while intoxicated the ability to be compensated by the entrustor properly distributes the incentive to control irresponsible drinking between the entrustor and the entrustee, and will encourage personal autonomy and responsibility rather than dependency and paternalism. 881 N.E.2d 996 (Ind. Ct. App. 2008).

In Smith v. Auto-Owners Ins. Co., the plaintiffs automobile insurer argued that IC 27-7-5-4 and the terms of the insurance policy prevented the plaintiffs from making an uninsured motorists claim more than two years after an accident. Upon review, the Indiana Court of Appeals held that although IC 27-7-5-4 requires the tortfeasor's insurer to become insolvent within two years of the date of the accident in order for a party to be able to claim uninsured motorists coverage from their insurer, the statute does not require the claim to be filed within two years after the accident, only within two years after the tortfeasor's insurer becomes insolvent and the insured has knowledge of the insolvency. 877 N.E.2d 1220, 1224 (Ind. Ct. App. 2007).

In Querry & Harrow v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. 2007), the Indiana Court of Appeals denied an excess insurer's claim against the insured's attorneys. In reaching its decision, the Indiana Court of Appeals stated the doctrine of equitable subrogation should not be extended to excess insurers which would allow them to sue the insured's attorneys for legal malpractice. The Indiana Court of Appeals explained that allowing such a claim could jeopardize the attorney's loyalty to his client and maintaining client confidentiality. The Indiana Supreme Court granted transfer of the case.

In a brief opinion, the Indiana Supreme Court affirmed the Indiana Court of Appeals decision and reasoning on this issue. It also affirmed the Indiana Court of Appeals decision on a secondary issue of finding no material issue of fact that the limited communications between the excess insurer and the insured's attorneys did not constitute an attorney/client relationship.

See the Indiana Supreme Court's opinion.

For many high school students throughout Indiana, spring and summer are usually associated with prom, graduation ceremonies, and eventually three months of "freedom" during summer vacation. These events are sure to present teenagers across Indiana with the added responsibilty of driving longer distances with greater than normal passengers in their vehicles. While these were exciting times for all of us and continue to be for high school students, it is crucial that teenage drivers understand the dangers and pitfalls associated with inexperienced driving.

Studies completed by the National Highway Traffic Safety Administration ("NHTSA") showed that motor vehicle crashes are the leading cause of death for 15-year-olds to 20-year-olds. According to the NHTSA, in 2005, 3,467 15-year-old to 20-year-old drivers were fatally injured in motor vehicle accidents and 12.6% of all drivers involved in fatal crashes were in this age group. Research has also shown that a teenage driver's risk of being involved in a motor vehicle accident undoubtedly increases as the number of passengers in the vehicle increases.

Here are some things for young drivers to think about as they get behind the wheel this summer:

Limit your distractions and focus on your driving
o Try to only use your cell phone in emergency situations, and even though earpieces/headsets are preferable to hand-held cell phones, they still are a distraction when driving
o Remember that text messaging while driving creates even greater risk, requiring you to look away from the road for longer periods of time

Never drink and drive
o In 2005, NHTSA reports that 23% of drivers 15-years-old to 20-years-old who died in motor vehicle crashes had a blood alcohol concentration of 0.08 g/dl or higher
o After consuming alcohol teenage drivers are more likely to not wear seat belts leading to more fatal injuries

Know your driving ability level and only drive in situations where you feel comfortable
o For young drivers just starting out, busy interstates and heavily populated urban areas are not the best places to learn the ropes
o Build confidence and develop your driving skills in areas that are less congested and that you feel comfortable driving in

Indiana law allows only 1 additional passenger on a motorcycle, in addition to the motorcycle driver. The passenger must be seated only on a firmly attached and regular seat designed for passenger use. See IC 9-21-10-1

Indiana law requires a motorcycle to have its headlamp illuminated at all times during operation. See IC 9-21-10-5

All drivers or passengers of a motorcycle under the age of 18 in Indiana must wear protective headgear meeting Indiana's minimum requirements, and must also wear protective glasses, goggles, or use a transparent face shield at all times while operating or riding on a motorcycle. See IC 9-21-10-9

With the warm weather months upon us, many of you have jumped at the chance to hit the open road on your motorcycle. While it is a great time of year to enjoy motorcycle riding, everyone must keep in mind the additional safety concerns that are associated with motorcycle use. With this in mind, Indiana Governor Mitch Daniels declared the month of May as Motorcycle Safety and Awareness Month in Tippecanoe County.

Motorcycles continue to rise in popularity as more and more motorcyclists can be spotted using the highways around Indiana. With the popularity of motorcycles seeming to be at an all-time high, now more than ever it is essential for people to be aware of motorcycle safety. The Indiana Department of Education reports an 80% chance of injury if a motorcycle is involved in a crash and that a crash involving a motorcycle with an automobile, the possibility of severe injury or death is 29 times higher for the motorcyclist compared to the driver of the automobile. The best ways to serious or fatal motorcycle accidents are: (1) responsible driving by both motorcycle drivers and automobile drivers, (2) making sure you use the necessary protective equipment, and (3) making sure you are properly trained and licensed to operate a motorcycle.

It is vital that automobile and motorcycle drivers are aware of one another on the roadways. One study showed that in two-thirds of multiple-vehicle accidents, the motorcyclist’s right-of-way was violated by the driver of the other vehicle. Most of the time these accidents are simply caused by the automobile driver’s failure to notice the motorcycle driver in traffic or failing to notice the motorcycle driver until it was too late to avoid a collision.

In most cases, automobile drivers do not see the motorcycle because it is small and less visible. However, there are many steps both automobile drivers and motorcycle drivers can take to prevent these types of accidents, including:

Automobile Drivers
o Always be searching for motorcycle drivers in traffic and pay particular attention to your blind spots and in heavy traffic
o When following a motorcycle give yourself a two-second cushion between the motorcycle and your car; increase the cushion in adverse weather conditions and at higher speeds
o Look for road conditions or hazards that a motorcycle driver might have to react to and anticipate their reactions in traffic (i.e. wet spots on the road)
o Pay special attention and look twice for motorcycles when turning left, since most crashes between motorcycles and cars occur at intersections where automobiles are turning left
o Properly use your turn signals and let motorcyclists know when you are changing lanes

Motorcycle Drivers
o Be as noticeable as possible
o Wear fluorescent clothing and/or clothing with reflective strips (wear bright yellow, orange or red jackets)
o Have a bright colored helmet
o Avoid having dark colors on your protective equipment and clothing
o Some experts suggest riding with your headlights on at all times
o Communicate with the other drivers on the road, making them aware of your lane changes
o Obey the speed limit and never drive impaired
o Be especially careful at intersections where the majority of motorcycle accidents occur

Arguably one of the most important pieces of equipment a person can wear is a full-face helmet. Using the proper motorcycle gear when you ride is a major factor in preventing injuries. Unfortunately, many motorcycle drivers today choose not to wear helmets because they are not “cool” or because they are uncomfortable. Motorcycle drivers wearing helmets show significantly fewer head and neck injuries after an accident. Sadly, less than 50% of fatally injured motorcyclists are reported wearing helmets. Under Indiana law, all persons riding or operating a motorcycle under the age of 18 are required to wear a helmet and protective goggles or face shields.

If possible, it is best to wear jackets, pants, gloves, and boots designed for motorcycle injury protection, preferably made of leather or cordura. Look for increased padding in the more commonly impacted during accidents, such as the knees, elbows, neck and chest. The more popular motorcycle jackets and pants have hard plastic in the highly impacted areas, which allows the driver to slide relatively easy on the pavement in the event of an accident.

Finally, it is very important that you are properly trained and licensed before you operate a motorcycle. Most motorcycle accidents involve drivers that are self-taught and have little or no formal training. Motorcycle training and experience is not only related to fewer accidents, but also to fewer injuries in the event of an accident. Be especially careful when operating a motorcycle that you are unfamiliar with, even if you are an experienced driver. The majority of motorcycle accidents occur with motorcycles that the driver had owned or operated less than 5 months.