Indiana Injury Blog

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 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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A Greyhound bus carrying 41 passengers crashed on Interstate 65 in northwest Indiana. According to the Chicago Tribune, 29 of the passengers required medical treatment. The bus was on its way from Chicago to Nashville Tennessee when it flipped on its passenger's side and came to rest near the median. It is unsure why the crash occurred, although witnesses said the bus appeared to be traveling at a high rate of speed and it is suspected that the driver may have fallen asleep.

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Posted In: Highway & Traffic Safety , Motor Vehicle Accidents , 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 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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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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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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The Court may take judicial notice of a party’s pleadings. In doing so, any admission contained in the pleading is admissible into evidence and is conclusively established as to that party, without any further proof. See Lutz v. Erie Insurance Exchange, 848 N.E.2d 675 (Ind. 2006).

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Posted In: Civil Litigation , Personal Injury Litigation

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If you are contacted regarding a case involving a potential traumatic brain injury, several steps should be taken to insure that the injuries are fully explored and that proper evidence is developed. Among the steps are as follows:

• Obtain the police report and photographs, interview all accident witnesses regarding the nature of the incident and the facts surrounding it.
• Closely review and gather all medical records, including the ambulance run and emergency room reports.
• Gather all medical imaging, including CT Scans, MRI and SPECT Scans. Obtain the DICOM studies so that interactive slice choosers and three-dimensional imaging can be reviewed.
• Interview family, friends and co-workers to identify the client’s behavior, personality or cognitive changes.
• Consult with or retain a neurologist and neuropsychologist to perform testing for measurable brain injury.
• Gather all pre-injury academic, military, employment and medical records to help establish a pre-accident baseline.
• Retain the services of a forensics psychiatrist to determine the psychological impact of the traumatic brain injury.

While each case should be reviewed independently, most traumatic brain injuries require that these issues be addressed in order to fully develop and explore your client’s injuries.

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Posted In: Personal Injury Litigation , Tips for Attorneys

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In a medical malpractice action, evidence that a party expressed a communication of sympathy (a statement, gesture, act, conduct or writing that expresses sympathy, an apology, or a general sense of benevolence) is not admissible into evidence if the statement relates to causing or contributing to an injury, loss, pain, suffering, death or damage to property, unless it relates to fault.

IC § 34-43.5-1, et seq.

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Posted In: Medical Malpractice , Personal Injury Litigation

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An Indiana restaurant patron suffered injuries when a man driving on a nearby highway had a heart attack, crossed over two lanes of oncoming traffic and several parking lots and crashed into a restaurant. Plaintiffs argued that the defendant’s failure to erect barriers in front of the building was a breach of its duty to the plaintiffs to exercise reasonable care.

The Indiana Court of Appeals disagreed and found that the incident was not foreseeable and therefore held there was no breach of duty on the restaurant’s part and granted summary judgment in its favor. See Schoop’s Restaurant v. Hardy, 863 N.E.2d 451 (Ind.App.2007).

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Anyone who has dealt with health insurance companies either on a personal or a professional level is probably familiar with the insurance “write-off” for medical expenses. In a nutshell, the write-off is a contractual reduction in the amount that an insurance company is required to pay a medical care provider for services rendered on behalf of the insured. For the unsuspecting plaintiff’s attorney, however, the insurance write-off can be a potential stumbling block. It is important to be wary of attempts by the defense to limit the evidence of medical expenses to the net amount paid, rather than the gross medical expense charged by the provider. Although the specific issue of insurance write-offs has not been addressed by Indiana Courts, the existing statutes and caselaw support the proposition that the admission of insurance write-offs into evidence is improper, and that such evidence should be excluded.

At trial, the plaintiff should introduce the total medical bills into evidence in order to establish the reasonable cost of medical services; further, the plaintiff should attempt to keep the defense from putting in the insurance write-offs. A motion in limine is a useful pre-trial tool to accomplish this, and it can prevent the possibility having to argue about these issues in front of the jury. In the motion, the plaintiff should first argue that the Collateral Source Rule prohibits the introduction of insurance write-offs because they are a part of the insurance benefit for which the plaintiff has paid. In the absence of specific Indiana caselaw that addresses the insurance write-off, the plaintiff should also refer to Indiana cases which hold that the measure of damages for medical treatment is the reasonable value of the services, and not the actual amount paid. These cases complement the statutory analysis and strengthen the argument that the introduction of the insurance write-off is improper.

Additionally, the plaintiff may make policy arguments that the principles of subrogation help to defray any purported windfall to the plaintiff for damages recovered above and beyond the actual amounts paid by the insurance company. More importantly, the existence of a contractual relationship between an insurer and an insured plaintiff is wholly independent of the defendant tortfeasor, and the defendant should not be exculpated from the full extent of liability on that basis. To hold otherwise would have the effect of punishing the plaintiff who has obtained medical insurance and would deprive the plaintiff of a fair and reasonable award for damages.

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