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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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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Indiana's Southern Federal District Court recently ruled in favor of plaintiff's motion to strike defendant's expert witness's testimony, determining that defendant's expert witness's failure to disclose the previous cases in which he provided expert testimony violated Federal Rule of Civil Procedure 26(a)(2)(B) and this violation was prejudicial to the plaintiff. See Wallace v. Hounshel, 2008 Lexis 44977 (S.D. Ind.) (May 22, 2008).

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.

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Posted In: Civil Litigation , United States District Court - Southern District for Indiana Decisions

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Indiana's Hospital Lien Statute, IC 32-33-4-1 et seq., allows a hospital to hold a lien against an injury claim. When properly perfected, this lien applies to any amount recovered by the patient.

The hospital must record its lien in the county where the hospital is located within 180 days after the patient is discharged, and, within 10 days of recording, must provide notice of the lien to (1) the tortfeasor, (2) the patient's attorney, and (3) the Indiana Department of Insurance.

Despite the statute explicitly requiring a hospital to provide the patient's attorney with actual notice of the lien's existence, the Indiana Supreme Court has determined that, in certain situations, constructive notice will suffice. To avoid personal liability, search the Recorder's Office for any hospital liens prior to disbursing any funds in a personal injury claim.

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Posted In: Civil Litigation , Indiana Laws , Personal Injury Litigation , Tips for Attorneys

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Tony Patterson was named Indiana Trial Lawyer of the Year at the November 1, 2007, Indiana Trial Lawyers Association ("ITLA") 43rd Annual Institute at the Indiana Roof Ballroom in Indianapolis. The annual award is given to an attorney who exemplifies the foundation of ITLA's mission and who has shown distinguished service to the citizens of Indiana and the United States as a leading member of the Indiana Trial Bar and dedication to the rights of the injured under the laws of the State of Indiana and the United States of America. Congratulations Tony!

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Posted In: Civil Litigation , Parr Richey Obremskey & Morton , Personal Injury Litigation , Tony Patterson

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The Indiana Court of Appeals handed down a decision on Monday, in Stanley v. Walker, holding write-offs constitute insurance benefits for purposes of the collateral source rule. In its opinion, the Indiana Court of Appeals reasoned "that write-offs constitute insurance benefits for which the plaintiff has paid directly, and therefore, defendants cannot be allowed [to] introduce evidence of write-offs to reduce damage awards" pursuant to Indiana's collateral source statute. The majority concluded that these benefits "should inure to the benefit of the plaintiffs," as they had the forethought to carry insurance and make the required premium payments.

In Stanley, the plaintiff was involved in a motor vehicle accident and sustained medical bills stemming from his injuries in the amount of $11,569.99. However, due to write-offs negotiated by his insurance company, this gross amount was significantly adjusted downward. At trial court, defendant acknowledged he could not introduce evidence of or ask plaintiff about the amount of his medical expenses that were being paid for through his insurance coverage. However, defendant sought to introduce evidence of the write-offs arranged by plaintiff's insurance coverage. Plaintiff objected and the trial court sustained the objection citing Indiana's collateral source statute.

Click here to see the Indiana Court of Appeals opinion in Stanley v. Walker.

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

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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).

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Posted In: Civil Litigation , Indiana Court of Appeals Decisions

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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).

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

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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).

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

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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).

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Posted In: Civil Litigation , Indiana Laws , Personal Injury Litigation , Tips for Attorneys

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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.

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Posted In: Civil Litigation

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Most litigating attorneys will agree that obtaining fair settlements in injury cases can be challenging. For this reason, once settlement is reached, the temptation exists to simply execute the release the defendant's attorney encloses with the check. Unfortunately, many releases contain un-negotiated terms or language which leads to unintended results; therefore they must be carefully scrutinized prior to signing.

The first fundamental issue is to be sure the release only discharges intended defendants. Indiana law historically held that a release of one torfeasor released all tortfeasors. However, in Huffman v. Monroe County Community Sch. Corp., 588 N.E.2d 1264 (Ind. 1992), the Indiana Supreme Court abrogated the common law release rule and held that the release of one wrongdoer does not release all unless the agreement was to release all, as in any contract for the release of joint tortfeasors.

In Pelo v. Franklin College of Indiana, 715 N.E.2d 365 (Ind. 1999), the Indiana Supreme Court extended this holding to derivative actions, reversing the prior Indiana Court of Appeals opinion in United Farm Bureau Mut. Ins. Co. v. Blossom Chevrolet, 668 N.E.2d 1289 (Ind. Ct. App. 1996). The Indiana Supreme Court held that a settlement agreement only released those specifically identified and not other defendants, including those whose liability is derivative. Pelo, 715 N.E.2d at 366-67.

In a case in which several individuals have been named as parties to the case, there is little difficulty in identifying the individuals who are not released. However, in a case in which there is an early settlement and there is time to file subsequent claims, it is not always known who the later defendants will be. Pelo was significant in allowing plaintiffs to release one defendant while continuing on with investigation to determine if there were other tortfeasors.

While Pelo provides some protection to plaintiffs, it is still important to review the release document to ensure that it does not release other individuals the plaintiff may wish to remain as defendants in the case. In Esate of Spry v. Greg & Ken, Inc., 749 N.E.2d 1269 (Ind. Ct. App. 2001), the deceased's estate filed a claim against a drunk driver who negligently caused the deceased's death. The estate reached a settlement with the drunk driver and executed a release discharging the drunk driver "and any other party who is or may be liable" for the death.

Thereafter, the estate filed a dram shop claim against the bar that served the drunk driver. Upon reviewing the release document, the Indiana Court of Appeals held that the bar was released by the language discharging "any other party who is or may be liable." This case highlights the importance of reviewing the release language to ensure that only intended parties are released.

Continue Reading What's in a Release? in Newsletter

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Posted In: Civil Litigation , Personal Injury Litigation

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Last February, in a matter of first impression, the Indiana Court of Appeals handed down an opinion holding that an excess insurer of a client being sued in a product’s liability case was not allowed to bring a legal malpractice claim against the client’s attorneys and the law firms of those attorneys who negotiated a settlement for $6,300,000. See Querrey & Harrow, Ltd. v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. 2007), reh’g denied, trans. granted, opinion vacated.

The attorneys had negotiated a $6,300,000 settlement stemming from a product’s liability claim that had been brought against the client regarding an injury that was produced from a trampoline the client manufactured. Id. at 720. The client’s primary liability insurer paid around $3,000,000 of the settlement before its coverage eroded. Id. The client’s excess insurer paid the remaining $3,740,000 of the settlement. Id. Arguing the settlement could have been substantially less had the client’s attorneys raised a timely non-party defense, the excess insurer filed suit against the client’s attorneys and their law firms. Id. The client’s attorneys appealed the denial of their motion for summary judgment by the trial court and the trial court’s determination that, as a matter of law, the excess insurer could bring a legal malpractice suit against them. Id. at 721.

On appeal, the Indiana Court of Appeals did not accept the excess insurer’s argument that they should be allowed to bring a legal malpractice claim against the client’s attorneys under the doctrine of equitable subrogation. The Indiana Court of Appeals found no material issue of fact in finding that limited correspondence between the excess insurer and the client’s attorneys fell significantly short of constituting an attorney/client relationship. Id. at 724. Furthermore, the Indiana Court of Appeals held that allowing the legal malpractice suit under the doctrine of equitable subrogation would essentially be the same as allowing an assignment of the cause of action from one party to another, which it will not do. Id. at 723. In support of the holding, the Indiana Court of Appeals explained it will not allow legal malpractice actions in these situations for the reason that allowing them would divide the loyalty of the attorneys. If allowed, attorneys will be tempted in not vigorously representing their clients in order to protect themselves against third parties such as the excess insurer in this case. Id.

The Indiana Supreme Court granted a petition to transfer and the Indiana Court of Appeals opinion has been vacated.

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Posted In: Civil Litigation

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The Indiana Supreme Court held that a county in which a passenger's damaged property was regularly located was not a county of preferred venue in an automobile accident case. The Indiana Supreme Court disapproved two prior Indiana Court of Appeals decisions in which the plaintiffs were allowed to use a claim for personal property damaged in an automobile collision to establish preferred venue in the plaintiff's home county, rather than the county in which the accident occurred or the defendant's home county. In disapproving the prior Indiana Court of Appeals cases, the Indiana Supreme Court refused to broadly interpret Indiana Trial Rule 75(A)(2) to allow preferred venue in the plaintiff's county of residence, where it would ordinarily have secondary status.
R&D Transport, Inc. v. A.H., 859 N.E.2d 332 (Ind. 2006).

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Posted In: Civil Litigation , Personal Injury Litigation

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Whether your organization is taking advantage of the latest electronic communication devices or is merely using e-mail as an inexpensive form of communication, electronically stored information can become a minefield of problems if your organization ever finds itself in litigation.

Companies are obligated to prevent the destruction of relevant evidence to a law suit. However, now with electronic information, that task has become more difficult. At a minimum, all organizations should have a formal written process for implementing a “hold” on destruction of data when a lawsuit is reasonably likely.

Next, all companies should have a detailed written inventory of the kinds of electronically stored information the organization produces, its format, and the system or software used for its creation. Often the most troublesome area for many organizations is determining what information exists on off-premise, personal electronic devices, such as personal laptops, or PDAs, yet data from these sources can also be subject to discovery.

On the other hand, there is a proper method to the deletion of electronically stored information if it is destroyed as part of a routine operation done in good faith. In order to qualify for the safe harbor, your organization must have already implemented a data retention policy before litigation and must consistently adhere to it.

Finally, parties may not be required to provide certain information if it can be shown that it is not reasonably accessible. Companies should prepare in advance to provide proof of the costs of accessing and recovering electronic information that it would seek to prove is not “reasonably accessible”. Through proper planning and implementation of these policies, your organization can be well-prepared to meet the challenges of litigation in this information age.

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Posted In: Civil Litigation

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Despite argument to the contrary from the Indiana Supreme Court Disciplinary Commission, the Indiana Supreme Court held that a structured or sliding scale contingency fee agreement in a medical malpractice case does not violate the Indiana Rules of Professional Conduct, so long as the total fee is reasonable. In this disciplinary action, the attorney fee contract provided for a fee of 15% of any recovery from the Indiana Patient’s Compensation Fund plus up to 100% from the first $100,000 received from the physician’s insurance carrier, to equal a fee of one-third of the total recovery. The attorney later renegotiated the contract and required a $10,000 non-refundable retainer. After the Indiana Supreme Court sanctioned the attorney, the Indiana Trial Lawyers Association (ITLA) intervened and requested clarification on the Indiana Supreme Court’s position upon the “sliding scale” fee in medical malpractice cases. In re Stephens, 867 N.E.2d 148 (Ind. 2007).

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Posted In: Civil Litigation , Medical Malpractice

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