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%.
]]>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.
]]>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
Click here to read the report of the incident at Indianagazette.com.
]]>Click here to review the complete article from the chicagotribune.com.
]]>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.
]]>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.
Click here to read about the accident on ChicagoTribune.com.
]]>Please be careful and remember the law when encountering stopped emergency vehicles on Indiana roadways.
]]>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.
]]>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.
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.
]]>In its order, the Court explained that FRCP 26(a)(2)(B) mandates that expert witnesses disclose to opposing counsel during the discovery process "a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition." However, the defendant in this case argued that under FRCP 37(c)(1), the expert's testimony should still be allowed, as the failure to disclose was harmless to the plaintiff.
Ultimately, the Court held that defendant's failure to disclose the other cases in which their expert gave an opinion was prejudicial for the reasons that it prevented the plaintiff from determining whether the expert was credible and from seeing if the expert was giving "inconsistent positions" in the case at hand compared to previous cases.
On appeal, the Indiana Court of Appeals noted that IC 9-19-10-2 states that drivers and front-seat passengers in "passenger motor vehicles" are required to keep their seatbelts fastened, and that IC 9-13-2-123 defines a "passenger motor vehicle" as "a motor vehicle designed for carrying passengers." The Indiana Court of Appeals noted, however, that Indiana statute excludes "truck, tractors, and recreational vehicles" as "passenger motor vehicles." Furthermore, the Indiana Court of Appeals stated a truck is defined as "a motor vehicle designed, used, or maintained primarily for the transportation of property" under IC 9-13-2-188.
In giving the applicable statutes their plain and ordinary meaning, the Indiana Court of Appeals held "the definition of 'truck' does not necessarily exclude SUVs, and if an SUV owner has paid the fee for a truck plate, then by law he drives a truck that is specifically excluded from the seatbelt law." Additionally, the Indiana Court of Appeals stated "[i]f an SUV owner does not have a truck plate, then by law he does not drive a truck but instead drives a passenger vehicle that is subject to the seatbelt law."
Applying its holding to the case at hand, the Indiana Court of Appeals reversed the trial court, stating the owner's Blazer was licensed as a truck. Therefore, Indiana's seatbelt statute did not apply.
With forecasters calling for additional heavy rain throughout the rest of the week, it is important to remember that flood conditions and flash flood situations can create driving hazards, leading to serious injury or death. Flooded roadways are extremely dangerous to drive through and, if at all possible, need to be avoided. The conventional wisdom surrounding motor vehicles and flood conditions is that it only takes a foot of water to float a vehicle, six inches of water may reach the bottom of your vehicle causing operating problems and hydroplaning, and two feet of rushing water can cause your vehicle to be swept off of the roadway in the direction of the current.
Please be careful traveling on the roadways, as we continue to battle these flood conditions.
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