Articles Posted in Indiana Laws

In a somewhat surprising decision by the Indiana Supreme Court last month, the Court reversed two lower Courts’ rulings that a Plaintiff’s medical malpractice suit was not filed within the statute of limitations. In the case of Moryl v. Ransone, the Indiana Supreme Court accepted the Plaintiff’s argument that a medical malpractice suit shall be considered filed when the complainant delivers the complaint to a commercial courier service (i.e. UPS or FedEx), and not when the defendant receives the complaint. This appears to be a minor distinction, but in this case it meant everything to the Plaintiff’s case.

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The Case

On April 20, 2007, the Plaintiff’s husband died while under the care of the Defendant doctors and hospital. The circumstances of the death were suspicious to the Plaintiff, and she pursued a medical malpractice claim against the Defendants. The statute of limitations for an Indiana medical malpractice claim is two years, meaning that a medical malpractice complaint must be filed no more than two years after the alleged malpractice occurred or else it must be dismissed. Here, the Plaintiff mailed the complaint to the Indiana Department of Insurance, using FedEx overnight, on April 19, 2009 – one day before the statute of limitations expired. The Defendant received the complaint on April 21, 2009, or one day after the statute had expired.

The Trial Court’s Decision

When the case was heard by the District Court, the Defendants argued that under Indiana’s Medical Malpractice Act (“the Act”), a complaint is considered filed only when it is sent by US Postal Service Registered or Certified mail. If a complaint is sent any other way, the Act states, it is to be considered filed upon receipt by the Defendant. Because the text of the Malpractice Act is clear that a complaint is only considered filed upon mailing by Certified or Registered mail, and the Defendants received the complaint one day after the statute of limitations expired, the District Court dismissed the complaint under the Act.
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In a recent decision, the federal court for the Northern District of Indiana denied an insurance companies’ request to throw out a plaintiff’s Indiana personal injury lawsuit. In Kopey v. Brown (South Bend Division, 3:11 CV 477), the insurance company argued that because the plaintiff had injuries from a prior accident, that they could not collect damages from a subsequent accident that may have aggravated those prior injuries.

red-light-875740-m.jpgA Terrible Accident
The plaintiff was coming to a stop at an intersection in Mishawaka, Indiana in August 2010 when she saw a car speeding towards her in her rear view mirror. She had little time to brace for impact, and was rear-ended by a car being driven by the defendant. The plaintiff was injured in the accident, and previous injuries she had from a 2007 accident were also aggravated. The defendant was not insured, so the plaintiff filed a claim with her own insurance company, Progressive, to cover the expenses related to the accident under her uninsured motorist protection.

Refused Coverage By Her Own Insurance Company
In response to the plaintiff’s insurance claim, Progressive refused to cover the charges. The company argued that she could not show that it was the second accident that caused her injuries and not the first accident or something else entirely. The plaintiff then filed this suit, claiming that her injuries should covered by her policy. In response to her request to bring the case to trial, the insurance company argued that the plaintiff had not presented any evidence of causation, and moved for summary dismissal of the suit.
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Drunk driving claims the lives of hundreds of Indianans each year. Despite that fact, and the known dangers of drunk driving, people continue to drive drunk as a matter of habit. In response, some have suggested that Indiana should follow the lead of several other states and implement a new requirement that all first-time drunk driving offenders have an ignition interlock system installed on their vehicle.

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What Is An Ignition Interlock Device?

An ignition interlock system is a small box, usually attached to the steering column of the car, that a driver must blow into in order to start the vehicle. If the driver is sober, the car starts as normal. If the driver has alcohol on his or her breath, the ignition locks and that data is recorded and sent to the appropriate authorities.

The device also requires random testing while driving, as to prevent drivers from starting the car sober and then having a drink mid-ride. If a driver fails one of these random tests, the vehicle’s horn will continuously go off until the vehicle is stopped.
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Earlier last week, an iron worker in an ArcelorMittal plant died from blunt force trauma when a blast oxygen furnace rubble pit wall shield fell on top of him. According to a report by the Post-Tribune, the deceased was working alongside two other men to disassemble the large wall shield-measuring 6 x 20 feet-when it came loose and fell on the men.

chemical-industry-4-1123359-m.jpgThe men had performed the same task before without incident. However, this time after the shield had been freed, it was resting on a hoist chain that was not designed to support the shield’s entire weight. Eventually it began to come free. Two of the men were able to run out from under the falling wall shield in time to avoid the brunt of the impact. These two men suffered cuts and broken bones. However, the third man was unable to get out from under the falling shield and was crushed as it came down atop him.

The accident is being investigated by ArcelorMittal in conjunction with United Steelworkers. In addition, because there was a fatality, the Indiana Occupational Health and Safety Administration has launched an investigation of its own.
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In most cases, Indianans do not use realtors to buy houses, but rather to lease homes. People put their hopes and dreams in the purchase of their home, their castle, to keep their family safe. But what happens when your dream house is not as advertised, when it’s deadly? 1427336_painting_a_wall.jpg

This July, a negligence lawsuit has been filed by an Indianapolis couple against their realtors after their infant daughter was poisoned by the lead paint used in their rented home. The realty company, Indiana Realty Partners, leased the home, located on North Keeling Avenue, to the couple in 2012. The couple’s daughter, a newborn, began to exhibit some health symptoms after they moved in.

This spring, the couple had their home inspected and medical tests run on their daughter. The inspection of the home revealed “hazardous” levels of lead in the paint, in the soil, and air. Tests conducted on child indicated the she had lead levels in her blood, which the CDC marks as the “reference level which public health actions be initiated.”

The couple’s suit alleges the realtors were negligent and “should have known”, based upon the condition of the home, that the family was being exposed to dangerous lead levels. Furthermore, the allegations recognize Indiana Realty Partners’ failure to provide the EPA’s lead hazard information disclosure. The lawsuit was filed in Marion Superior Court and the realty company has yet to publicly respond to the suit.

The damages sought are undefined, as the injuries caused by lead exposure can include brain damage and other long-term health problems.

This suit comes as another Indiana realty company just moved to dismiss the Indiana attorney general civil lawsuit against the firm for their allegedly fraudulent rent-to-own scheme. A Madison Circuit Court will likely hear arguments alleging that the defendants failed to pay property taxes and insurance premiums for properties advertised and instead used the money for groceries, restaurants, personal expenses for the realty husband-wife team.

No one should have to go through what these families went through, but each year lawsuits in Indiana are filed for fraud and negligence through the purchase of a home. Indiana Code 34-11-2-7(4) allows for a six year statute of limitation action for fraud, but obviously you will want to consult with an attorney once a problem is detected. The legal battle will involve an extensive discovery process because the case hinges upon evidence of the realtor’s knowledge of the defect. It is consequently most advisable to contact a skilled and experienced Indiana personal injury attorney to help ensure a higher likelihood of a more positive outcome for your case.

Furthermore, in instances where it is appropriate for a suit to be filed against a realtor, oftentimes a suit may also be successful against the home inspector and home seller, as realty companies rely on the home inspector’s report. The home inspector’s or seller’s purposeful misinformation can lead to an award based on fraud, plus their unintentional failures to properly inspect could lead to an award for negligence.
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Every month in America, plenty of bizarre lawsuits get filed (like suing Jessica Simpson for baby snatching) but Indiana has had one strange May, with three ‘unique’ cases making national headlines.

Funny Fuzz

The ACLU is stepping up to represent a Greenfield, Indiana police corporal attempting to exercise his constitutional right of speech. The police officer was attempting to exercise this freedom on his license plate through a vanity plate. Corporal Rodney Vawter had a sense of humor when he bought the vanity license plate “0ink” with the obvious humorous self-referencing slang “pig” for police officers. Vawter actually had acquired the license plate years ago, but only was recently denied renewal under a statute referencing Indiana Bureau of Motor Vehicles’ (BMV) right to refuse vanity license plates for “offensive or misleading content”.

The suit beginning with Vawter has developed into a full class action suit against the BMV. The vague content restriction is not constitutional, according to Vawter’s attorney. In furtherance of confusion and unfair enforcement, Vawter’s choice to use a zero for the “o” in oink was as a result of “oink” already have been taken by another Indiana driver.

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Not all lawsuits in themselves are bizarre; rather, some attempt to take down the bizarre status quo. One does not need to live in Indiana for long to become familiar with the rather odd way the state of Indiana micro-manages beer sales. The temperature of beer to be sold has long been regulated by Indiana, with cold beer being banned to consumers. However, chilled wines, containing higher levels of alcohol could be sold cold. This archaic unnecessary statute has recently been modified to permit liquor stores to sell beer cold. With this one-sided exception, the Indiana Petroleum Marketers and Convenience Store Association has initiated a lawsuit to be treated equally.

Currently, alcohol ranks third for items purchased at convenient stores. However, according to store owners, if they are allowed to sell beer cold, the item would leap to the number two spot. This would lead to great gains for convenience stores, simplicity for consumers, constitutional fairness, and simply the abolishment of an outdated, silly law (Oklahoma is the only other US state which puts any sort of regulation on the temperature of beer).
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193990_4742.jpgA nationwide outbreak of fungal meningitis, traced to medications from a Massachusetts compounding pharmacy, has prompted lawmakers and others to propose strengthening oversight and regulation of compounding pharmacies around the country. These pharmacies currently have no consistent system of federal oversight, although state governments have a wide range of regulations intended to promote drug quality and patient safety. Indiana’s Board of Pharmacy responded to the meningitis outbreak with reassurances about its oversight.

Two bills introduced towards the end of the last session of the 112th Congress sought to give the U.S. Food and Drug Administration (FDA) additional regulatory authority over certain compounding pharmacies, but neither bill made it out of committee. H.R. 6584, The Verifying Authority and Legality In Drug (VALID) Compounding Act, would have subjected compounding pharmacies that act as drug manufacturers to the same FDA regulations as drug manufacturing companies. It also would have required pharmacies to label compounded drugs to indicate that the FDA had neither inspected nor approved the drug, required reporting of adverse reactions to compounded drugs, and created a public “Do Not Compound” list.

H.R. 6638, the Supporting Access to Formulated and Effective (SAFE) Compounded Drugs Act, would have mandated FDA registration for all compounding pharmacies, labeling of all compounded drugs, and FDA production standards and training programs for state health officials. It also would have required disclosure to patients that they are receiving a compounded drug, and improvements to communication between federal and state health regulators. Both bills were referred to the House Subcommittee on Health, where they died at the end of the 112th Congress.
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1353560_13422799.jpgHundreds of people around the country die every year when they are hit by trains while walking on or along railroad tracks. Despite such a seemingly large number of fatalities, the issue received little attention by lawmakers or the justice system. Railroad companies view the issue as a matter of trespassing and take few, if any, measures to prevent deaths along their rail lines. Laws in many states, including Indiana, make it a crime to walk along the tracks, but put no responsibilities on railroads to avoid such incidents. The families of people killed by trains in this manner have little or no legal recourse.

Research by the St. Louis Post-Dispatch found that trains have killed over 7,200 pedestrians nationwide since 1997 and injured another 6,400. Trains kill more pedestrians each year than motor vehicles, when calculated based on number of miles traveled. On a single day, May 30, 2012, researchers found that trains killed four pedestrians in California, Illinois, Maryland, and Missouri. The death in Missouri, a fourteen year-old middle school student, was the twelfth fatality along that set of tracks since 1996, when another student from the same middle school was killed by a train there. The Missouri victim’s parents asked Union Pacific, the railroad operator, to install fences along the tracks or take other protective measures, but the railroad reportedly refused, even in the face of lawsuit threats.
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398px-Flickr_-_Official_U.S._Navy_Imagery_-_A_Sailor_operates_a_plasma_cutter.jpgA welder filed a products liability lawsuit, claiming that defects in the shirt he was wearing caused it to catch fire while he was operating a plasma torch. The suit, Hathaway v. Cintas Corporate Services, Inc., also asserted causes of action for breach of warranty and negligence. The District Court for the Northern District of Indiana granted summary judgment for the defendant on the breach of warranty and products liability claims, but allowed the negligence claim to proceed.

Plaintiff Rex Hathaway worked for Quik Cut, Inc. as a welder and plasma torch operator. His employer used uniforms provided by the defendant, Cintas Corporate Services. The rental agreement between Quik Cut and Cintas provided that Cintas would furnish work clothes and provide laundry and repair services. Hathaway was operating a plasma torch, a machine used to cut various types of metal, on February 12, 2009. Sparks from the plasma torch allegedly caused Hathaway’s shirt, a 100% cotton shirt provided by Cintas, to catch fire, and he suffered severe burns over much of his body.

Hathaway filed suit against Cintas, asserting causes of action for negligence, breach of warranty, and products liability. His wife also brought a cause of action for loss of consortium. Hathaway alleged that the shirt had both a manufacturing defect and a design defect, and he claimed that Cintas was liable for failure to warn of the risk of injury.

Cintas moved for summary judgment on the negligence, breach of warranty, and products liability claims. The court first ruled that the plaintiff’s breach of warranty claim was subsumed by his products liability claims. The court held that because the plaintiff did not claim economic damage for the loss of the shirt, the breach of warranty claims were based in tort, and were therefore part of the products liability claim under the Indiana Products Liability Act (IPLA).
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800px-INTERSTATE_80_-_NARA_-_547294.jpgA Nebraska law allowing wrongful death claims for unborn children is getting its first test in a federal lawsuit. The suit, Baumann v. Slezak, et al, arises from a multi-vehicle accident that killed a family of four and their unborn child. It asserts causes of action for negligence and violations of federal trucking regulations. Several states, including Indiana, have passed statutes allowing wrongful death claims for unborn children at various stages of gestation, and courts in other states have recognized causes of action related to fetal death.

The accident giving rise to the lawsuit occurred on westbound Interstate 80 during the early morning of September 9, 2012. Traffic had become backed up for about a mile after two semi-trailers collided at about 4:30 a.m. One semi-trailer had become disabled and pulled onto the right shoulder. The driver, Vladimir Zhukov, however, allegedly left the trailer in a lane of traffic. Another semi-trailer driven by Keith Johnson reportedly collided with Zhukov’s trailer. The impact killed Johnson and caused his tractor to catch fire. The accident blocked all westbound lanes of the highway, creating a significant risk of further accidents for vehicles forced to stop on the highway.

Christopher and Diana Schmidt were traveling to California from Maryland with their two children, and Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. Diana Schmidt was driving a 2007 Toyota Corolla with the two children, and Christopher Schmidt was following her in a 2010 Ford Mustang. They were at the rear of the line of cars stopped because of the semi-trailer accident, with the Corolla stopped behind another semi-trailer, and the Mustang behind the Corolla. A semi-trailer driven by Josef Slezak approached the stopped traffic reportedly travelling at about seventy-five miles per hour. Allegedly without slowing or stopping, Slezak’s vehicle collided with the back of the Mustang at about 5:19 a.m., propelling it into the Corolla. This pushed the Corolla under the trailer in front of it. All four members of the Schmidt family and their unborn child died in the impact.
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