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On top of these devices distracting the jurors from focusing on the case, internet services provided through Blackberrys and iPhones allow jurors to research technical aspects involved in the trial they are hearing or simply find out information about the parties themselves. Information that can be prejudicial and prohibited from being considered pursuant to state and federal trial rules.
]]> Indiana Rule of Evidence 606(b) states that jurors may be called to testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror.
In 2002, the Indiana Court of Appeals held that when a juror looked up in the dictionary the word "preponderance"' between jury deliberations, it did not constitute misconduct warranting a mistrial. The court explained that the meaning of the word did not effect jury deliberations and the dictionary definition was essentially the same as the jury instructions being used in the case. See South Bend Clinic, Inc. v. Kistner, 769 N.E.2d 591 (Ind. Ct. App. 2002).
]]>Pursuant to IC 9-24-9-3, Indiana requires that a minor's driver's license application be signed by a parent or legal guardian who promises to assume certain statutory obligations on behalf of the minor. Under IC 9-24-9-4(a), "[a]n individual who signed an application for a permit or license under this chapter agrees to be responsible jointly and severally with the minor applicant for any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damages.”
]]> Unfortunately, the grandson was involved in a car accident where he was the driver and his passenger at the time was injured. Since the grandson was still a minor, the passenger filed a complaint against the grandmother to hold her financially responsible. After a bench trial, the trial court found the grandson to be 100% at fault and awarded the passenger over $99,000 against the grandmother.When the accident occurred, the grandmother had an automobile insurance policy with Motorists Mutual. Under that policy, three cars were named, but not her grandson's new car which he was driving at the time of the accident; it was covered under another policy with a different insurer. Following the bench trial, the plaintiff sought to collect on the grandmother's insurance policy with Motorists Mutual through proceedings supplemental. Motorists Mutual argued that the grandmother did not have liability coverage under the policy in this situation; however, the trial court ruled that she did in granting her motion for summary judgment.
On appeal, the Indiana Court of Appeals held that even though Motorists Mutual agreed to insure grandmother against liability arising from her executing the financial responsibility form and any injuries her grandson causes to others while driving, the fact that he was driving a car not included under the grandmother's insurance policy with Motorists Mutual excluded her from coverage.
See Motorists Mut. Ins. Co. v. Wroblewski, 898 N.E.2d 1272 (Ind. Ct. App. 2009).
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I responded to a recent newspaper editorial written under the headline: "Lawyers, spurious lawsuits threaten a potential civic disaster". Too many newspaper editors have fallen prey to the propaganda campaigns of insurance companies who try to poison the perception of the public--and potential jurors in our community--about the impact of litigation on our society. In fact, our homes, cars, products and lives are safer because personal injury lawyers hold manufacuturers and others accountable for their misconduct.
Attached is my entire letter to the Editor for the Lebanon Reporter:
]]> Dear Editor:I am compelled to respond to the recent editorial of Stephen Dick under the title “Lawyers, spurious lawsuits a potential civic disaster”. Mr. Dick relies upon a single Supreme Court ruling and the view of Phillip K. Howard, an avowed advisor to huge corporations and executives, to suggest the need for “tort reform”.
The conservative press in general, and Mr. Dick in particular, have bought into the propaganda campaigns of the insurance industry and corporate executives to mislead the general public about personal injury claims. Mr. Dick urges judges “to be bold enough to throw (frivolous) suits out”, as if there are lots of these kinds of cases being filed that somehow threaten “a potential civic disaster”.
But the impression he wants to suggest, that there are, in fact, frivolous claims being filed everywhere, is a fiction created by the insurance industry and corporate executives. It simply isn’t true. That isn’t to say that it never occurs, but for every claim that is deemed “frivolous”, there are millions of “legitimate” claims caused by careless or irresponsible conduct. Self declared “tort reformists” use exaggerated headlines about these rare cases to malign the claims of innocent victims.
Judges are already empowered by state law to dismiss a claim deemed “frivolous”. But in my 30 years as a personal injury attorney, I have never seen a defendant attempt to do so. A real “civic disaster” would happen if our legal system couldn’t hold wrongdoers accountable for their misconduct.
The campaigns that Mr. Dick and Mr. Howard support ignore the effectiveness and purpose of a judicial system that allows injured persons the right to assert a claim for damages caused by another person’s negligence. Not only does it provide the aggrieved person a remedy for the misconduct of another, but the collective results of the system help everyone.
The U.S. Consumer Product Safety Commission’s recent annual report states that there has been a 30% decline in the rate of deaths and injuries associated with consumer products over the past 30 years. It is no coincidence that improvements in the safety of such products have occurred since the 1970s, when the number of personal injury claims arising from dangerous products began to rise.
The National Highway Traffic Safety Administration reports that the overall number of traffic fatalities on the nation’s highways in 2008 will be the lowest number since 1994. More impressive is that the fatality rate per 100 million vehicle miles traveled declined to its lowest point in history. Improvements in the design and maintenance of highways and safety design changes in motor vehicles are reactions to claims of persons who were killed or injured as the result of dangerous and defective conditions in vehicles and roads.
Rather than focus on the improvements in our society that trial attorneys have caused, the insurance companies and corporations would lead us to believe that society has an impending civic disaster. They ignore the fact that every claim must survive the scrutiny and common sense of our judges and juries. Meritorious claims for harm caused by another’s negligence will prevail. And just as importantly, meritorious defenses will also prevail!
Corporate executives and insurance companies have the resources and financial incentives to hire political lobbyists and spokespersons like Phillip K. Howard to advance their interests in the legislature and in the conservative press. Trial attorneys are the only spokespersons for injured victims, and our only venue is the judicial system. The system, provided by our Constitution, has served us well for over 200 years. It ultimately protects everyone, victims and alleged wrongdoers, from the misconduct of others.
Please, Mr. Dick, don’t let corporate executives and insurance companies mislead you. We need to protect victims’ rights too.
Paul Kruse
On Feb. 14, 2006, Kevin Minglin was returning home from work on southbound I-69 just south of mile marker 8 when he was struck head-on by an oncoming vehicle. The other vehicle had lost control and crossed the center median. Because of recent heavy snow, the center median was packed up to and over the guardrail, permitting the car to "fly" over the guardrail and into the windshield of the Minglin car. Numerous vehicles were involved, and Kevin was killed instantly, leaving behing his wife and 2 teenage girls.
Over the past 2 years, the Minglin women have been forced to move on with their lives, but Kevin remains in their thoughts daily. Although our firm was able to help them secure a settlement with the insurance company that has made them financially secure, their lives have been filled with events that are constant reminders of their loss.
This past Sunday's story moved us to consider again the "what-ifs" that might have prevented Kevin Minglin's death. What if he had left work at his normal time, instead of helping "one more account" to make the customer happy? What if he hadn't called home on his cell phone moments before the collision--would he have been in a different lane or gone a little faster, and been out of harm's way? What if he hadn't slowed to let a car pass him moments before? If the snow hadn't been packed in the median, would the other car have collided with the guardrail instead of going over it?
Snow and speed killed Kevin Minglin, too. He was just in the wrong place at the wrong time. But his family's faith has allowed them to accept that it couldn't have been avoided.
have enough insurance to pay any damages they cause up to $25,000 to any one person they injure. While every driver is required to carry insurance, too many drivers have too little or no insurance at all.
While no one can guarantee other drivers on the roadway will have insurance, drivers can protect themselves by purchasing uninsured (UM) and underinsured (UIM) motorist coverage. In fact, every automobile insurance carrier selling policies in Indiana is required to offer UM/UIM coverage in an amount equal to the liability portion of the insurance policies they sell.
UM/UIM coverage acts to protect drivers from uninsured and underinsured drivers by insuring they are protected up to the amount of the UM/UIM coverage they purchase. For example, if you are insured by Allstate Insurance with UM/UIM limits of $100,000, and are hit by a negligent uninsured driver, Allstate is required by law to step in and provide coverage to you and pay any damages you sustain in the accident up to the limits of your $100,000 UM/UIM policy. This would include paying for all of your damages including medical expenses, lost wages, pain, suffering, the loss of enjoyment of life, and any other damages you sustain.
If the negligent driver is insured by Progressive Insurance with liability limits of $25,000 and your damages exceed the $25,000 limits, Progressive would pay the first $25,000 of your damages and Allstate would cover any additional damages you sustained up to your policy limits of $100,000 in total damages.
The law surrounding uninsured and underinsured motorist coverage can be complicated. However, purchasing significant UM/UIM coverage can provide substantial financial protection for you and your family.
In Newkirk, a woman was recovering from surgery at Bethlehem Woods Nursing and Rehab Center. As a result of Bethlehem's medical negligence, the woman died while at their facility. Her estate brought a action for wrongful death within two years of her death, but more than two years after the medical negligence occurred. Bethlehem filed a motion for summary judgment arguing that her estate was barred from bringing the claim as they had not brought it within two years of the alleged malpractice. The trial court agreed and granted the motion.
On appeal, the Indiana Court of Appeals reversed argreeing with the trial court that the estate's claim arose under the PSS, but finding that the claim was timely filed under the Wrongful Death Act. The Indiana Supreme Court vacated the Indiana Court of Appeals decision and affirmed the trial court's grant of summary judgment for the defendant.
See Newkirk v. Bethlehem Woods Nursing and Rehab. Center, LLC, 898 N.E.2d 299 (Ind. 2008).
]]>In an effort to circumvent their insured’s statutory lien reduction rights, some aggressive med-pay lien holders attempt to collect reimbursement of one hundred percent of their liens directly from the negligent third party’s insurance carrier. These overt attempts to bypass the lien holder’s insured are not permissible. As recognized by the Indiana Supreme Court in Erie v. George, 681 N.E.2d 183 (Ind. 1997), a med-pay carrier’s contractual claim for reimbursement does not allow it to assert a direct claim against the third party in the absence of permission from the plaintiff. For this reason, plaintiff’s counsel should challenge any attempts by med-pay lien holders for reimbursement directly from third party carriers. Failure to do so can lead to a smaller net settlement for the plaintiff.
]]>As a father of two elementary school aged children, reports like this hit very close to home. Last year, I published an article regarding school bus safety which seems particularly relevant given last week's tragedy. Below is the article which contains useful information for kids, parents and motorists.
]]> SCHOOL BUS SAFETY The presence of yellow school buses taking children to and from school is a familiar sight for everyone on the road this time of year. While traveling behind these school buses can pose unexpected delays for motorists, it is important that everyone exercise the utmost caution when encountering a school bus to ensure that everyone remains safe.
The National Highway Transportation Safety Administration’s (NHTSA) studies have revealed that school buses are a very safe mode of transportation for children. NHTSA reports that American students are almost eight times safer riding in a school bus than with their own parents or guardians in cars. In fact, the fatality rate for school buses is only 0.2 fatalities per 100 million vehicle miles traveled, compared to 1.5 fatalities per 100 million vehicle miles traveled for cars.
While it is very rare for children to be seriously injured or killed while riding on a bus, the National Research Council of the National Academy for Sciences has determined that for every one instance where a child is killed on a school bus, three children are injured getting on or off the bus as pedestrians. Obviously, it is important for motorists to remain constantly on the lookout and exercise extreme caution when they encounter a stopped school bus.
Under Indiana Law, the driver of a vehicle meeting or overtaking, from either direction, any school bus stopped on a roadway must stop before reaching the school bus if its warning arm signal is in its extended position. Drivers may not proceed until the arm signal is no longer extended. However, drivers do not have to stop, but may proceed with due caution of the safety of children, on divided highways if the school bus is on the opposite side of the divided highway.
If you have a child or loved one riding a school bus, it is important that they take steps to ensure their own safety. The NHTSA recommends the following for school bus riders:
1. Getting to the bus stop
• Always get to the bus stop at least 5 minutes before the bus is due to arrive.
• Running across the road to catch the bus isn’t smart.
• If you have to walk on roads where there’s no sidewalk, always walk against traffic.
• When crossing the street to get to the bus, always look left, then right, then left again. If there are parked cars blocking your view, go to the nearest corner cross walk.
2. Getting on the bus
• When the bus approaches, do the smart thing: step back and stand at least THREE GIANT STEPS away from the curb. That way the bus driver can pull up to the curb so you won’t have to walk out in the street to get on.
• Wait until the bus stops, the door opens, and the driver says its okay to board before stepping onto the bus.
• Never walk behind the bus or close to the side of the bus. You could be in the driver’s blind spot.
• If you drop something near the bus, don’t pick it up until you tell the bus driver or he may not see you.
• When you get on the bus, take your seat quickly.
3. While you’re riding the bus
• When the bus is moving, always stay in your seat.
• Let the bus driver concentrate on the road. Just imagine how hard it would be to pay attention to the road with 30 students talking all at once!!! Remember, the bus driver’s job is to get you to and from school safely.
4. Getting off the bus
• When you leave the bus, use the handrail. It’ll help you avoid a fall.
• Make sure there’s nothing sticking out of your backpack that could get caught in the handrail or the bus door.
• If you have to cross the street in front of the bus, walk on the sidewalk (or along the side of the road) to a point that’s at least 5 giant steps ahead of the bus before you cross. Be sure the bus driver can see you, and that you can see the bus driver.
Hopefully, by following these steps and exercising patience and good common sense, Boone County students will enjoy another accident free year.
by: Tony Patterson
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