Indiana Injury Lawyer Blog

On Wednesday, U.S. Transportation Secretary Ray LaHood announced a federal ban on drivers of commercial vehicles, including buses and semi-trailer trucks, from text-messaging while driving. Click here to read an article on the ban posted at www.washingtonpost.com.

This ban comes in the wake of a recent study by the Virginia Tech Transportation Institute, which found texting truckers to be 23 times more likely to be involved in a crash or near crash. Distracted driving has become a concern of Congress, and many view this ban as a first step in passing more laws and bans to eliminate or reduce cellphone use among drivers.

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In Hillenbrand v. Supervised Estate of Charlotte Fern Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), Charlotte Fern Large was killed in a motor vehicle accident and a wrongful death action was pursued by the personal representative of Large’s Estate. The attorney for the Estate (“Attorney”) negotiated a settlement awarding Hillenbrand, as Large’s sole surviving child and beneficiary to the wrongful death claim, $47,983.28, with an additional $12,016.72 to be paid to Large’s Estate.

The Attorney then filed a Request for Attorney Fees and Personal Representative Fees with the probate court handling Large’s Estate requesting her attorney’s fees to be paid out of the entire settlement amount that was recovered (amount paid to Hillenbrand plus amount paid to Large’s Estate). Hillenbrand objected and a hearing was held. The probate court held $6,545.50 in attorney’s fees was to be deducted from the wrongful death claim settlement. Hillenbrand appealed the decision, arguing that all settlement amounts remaining after the payment of reasonable medical, hospital, funeral, and burial expenses shall go to the exclusive benefit of Hillenbrand as the nondependent child of Large. The Estate argued that since it is the personal representative of the Estate that is entitled to pursue the wrongful death claim, the Attorney must be paid from the settlement amount from the wrongful death claim. Consequently the singular issue on appeal was “whether the Estate [could] charge the attorney fees incurred in the pursuit of the wrongful death claim against the settlement funds instead of being paid from the probate estate.”

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In EADS v. Community Hospital, 909 N.E.2d 1009 (Ind. Ct. App. 2009), Plaintiff brought a medical malpractice claim against a hospital after receiving treatment for a broken ankle. Following her treatment, plaintiff’s request for a wheelchair was denied. She was instead given crutches and ultimately fell while leaving the hospital, resulting in her injuries. Plaintiff initially filed a general liability negligence claim in Lake County Superior Court. The hospital then filed a motion to dismiss, arguing plaintiff’s claim was a medical malpractice claim requiring it to first be filed before the Indiana Department of Insurance (“IDOI”). Plaintiff argued it was premises liability/general liability case, which does not fall under the Medical Malpractice Act (“MMA”). The trial court agreed with the hospital and dismissed plaintiff’s claim without prejudice. Plaintiff did not appeal this ruling. Approximately two weeks after plaintiff’s case was dismissed, she re-filed her claim with the IDOI. The hospital responded by filing a petition for preliminary determination of law with the trial court, requesting summary judgment be granted in its favor. The hospital argued in its petition that plaintiff’s claim was barred because it was filed with IDOI outside of the MMA’s two-year statute of limitations period. Plaintiff filed initially filed her claim in the Lake County Superior Court within the two-year statute of limitations period, but plaintiff’s filing with IDOI was outside of the two-year period. The trial court agreed and dismissed plaintiff’s claim with prejudice.

On appeal, the Indiana Court of Appeals first looked at the Journey Account Statute. IC § 34-11-8-1. In summary, the Journey Account Statute is used to “save an action filed in the wrong court by allowing the plaintiff enough time to refile the same claim in the correct forum.” For example, “the statute enables an action dismissed for lack of personal jurisdiction in one state to be refilled in another state despite the intervening running of the statute of limitations.”

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In Spar v. Cha, M.D., No. 45S05-0906-CV-273 (Ind. 2009), plaintiff patient brought a medical malpractice claim against defendant doctor after the patient suffered complications and infections following laparoscopic surgery. The Indiana Supreme Court (“ISC”) held, in part, that the defense of incurred risk (assumption of risk) was not and could not be a defense to plaintiff patient’s lack of informed consent claim. In echoing the Indiana Court of Appeals prior decision in this case, the ISC explained that the defense of incurred risk has little to no applicability as a defense to a lack of informed consent claim or a claim of negligent performance of a medical procedure. In Spar, the trial court instructed the jury on the defense of incurred risk. The ISC concluded it was error for the trial court to do so, and it remanded the case for a new trial.

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