Amicus Committee is a long-standing, well-respected arm of the Association. The Committee is a wholly voluntary group of ITLA members who are committed to legal scholarship and broad issues of concern that impact upon the rights of the citizens of our State. A significant challenge to the Committee is reviewing the numerous meritorious requests for ITLA’s participation in the appellate process as a friend of the court. The Association’s goal is to select those cases that have the broadest impact upon the largest number of Hoosiers.
List of past Amicus Committee Chairs:
P. Gregory Cross
Mark A. Scott
Steven L. Langer
James O. McDonald
On 5/9/15, Tara M. Worthley became the chair of ITLA's Amicus Committee. The other members of the Committee are Nicholas C. Deets, Jerry Garau, Emily Guenin-Hodson, Robert Johnson, Teresa L. Todd and Bill E. Winingham. Since the beginning of this decade, the Chairs of the Amicus Committee have continued to streamline the process of responding to requests for amicus assistance through the use of electronic communication. The members of the Committee, as well as other ITLA members, continue to demonstrate their commitment to our civil justice system by volunteering an extraordinary amount of time to author amicus briefs.
To request amicus assistance, click HERE to access the request form and submit your case today!
1. Lee v. Patchett
2. KS&E Sports v. Runnels
3. Ecamilla v. Shiel Sexton Co
4. Myers v. Bremen Casting Inc and Mastic Home Interiors
5. Parkview Hospital v. Frost
6. Shelton v. Kroger
7. McKeen v. Turner
8. Stevens v. Aegis, et al.
9. Ryan v. TCI Architects
Lee v. Patchett (29A04-1501-CT-00001)
The committee had approved Lee v. Patchett for amicus assistance. This case involves a motor vehicle crash were Plaintiff had Medicaid/HIP. Total medical bills were over $80,000.00. Medicaid paid much less. Plaintiff filed motion in limine to preclude Defendant from offering the amounts paid by HIP. The trial court granted the motion in limine. Defendant filed a Motion to Certify the issue for Interlocutory Appeal, which was granted and the Indiana Court of Appeals accepted jurisdiction. Defendant filed its brief on May 21st. The Court of appeals issued an opinion on November 19th, 2015 affirming the trial court, holding evidence of amounts paid by HIP are not admissible as the "reasonable" value of medical expenses. Defendant filed a Peition for Rehearing, which was denied January 20th, 2015. Defendant filed a Petition to Transfer on Feburary 19th, 2016 and ITLA filed its brief on March 7th, 2016. Update: The Supreme Court held oral argument on June 23rd, 2016. On October 21st, 2016, the Indiana Supreme Court granted the defendant's petition to transfer, reversed the Court of Appeals, and held that evidence of reduced rates from medical expenses paid by governmental entities, such as HIP, are admissible concerning the reasonable value of medical care so long as the parties can introduce such evidence without referencing their source.
Joe Williams served as amicus counsel. View ITLA's amicus brief here. View ITLA's amicus brief in opposition to transfer here.
KS&E Sports v. Runnels (49A02-1501-CT-00042)
The committee has approved KS&E Sports v. Runnels for amicus assistance. Plaintiff is an IMPD office who was shot in the line of duty by a felon. The felon obtained the gun through an illegal “straw purchase,” which Plaintiff alleges a reasonable commercial gun seller should know. Defendant filed a Motion for Judgment on the Pleadings, which was denied by the trial court. Defendant requested interlocutory appeal, which was certified by trial court and granted by court of appeals. Issues involve whether IC 34-12-3-3(2) provides immunity to a negligence claim against the gun seller for an illegal straw purchase under the circumstances and whether that statute is constitutional. ITLA's brief has been filed. Oral argument was held on December 15th, 2015.
On March 17, 2016, the Indiana Court of Appeals issued a 2-1 opinion affirming the denial of KS&E's Motion for Judgment of the Pleadings on the basis that Plaintiff's Complaint did state claims upon which relief could be granted and IC 34-12-3-3 did not provide full immunity to Plaintiff's negligence claim against a firearm retailer for an alleged unlawful sale of a firearm. Judge Riley wrote the majority opinion, Justice Brown wrote a concurring opinion, and Justice Altice wrote a dissent stating that IC 34-12-3-3 did provide immunity.
Update: On April 18th, 2016, the defendant filed a petition to transfer. On June 23rd, 2016, the Indiana Supreme Court granted transfer and has set oral argument for August 31st, 2016.
Nick Baker is serving as amicus counsel. View the brief here.
The committee has approved Escamilla v. Shiel Sexton, Co. for amicus assistance. Escamilla was brought to this country when he was 15 years old by his parents. His work history is in the U.S., he is married to a U.S. citizen and has three children who are U.S. citizens. He provided a Mexican issued driver’s license when he applied for his last job. He recently applied for resident status and is now legally entitled to remain in this country and is eligible to work in the U.S. while his application is being processed. Escamilla was injured on a construction project and has permanent restrictions. Plaintiff’s vocational expert and economist calculated his future wage loss based upon his actual work history and tax returns. The trial court excluded Plaintiff’s vocational and economic experts, ruling that Escamilla is not entitled to seek damages for future lost income or impaired earning capacity because of his immigration status. Trial Court granted Plaintiff’s motion to certify for interlocutory appeal, which was granted by court of appeals. ITLA’S brief has been filed. Oral argument was held on January 6th, 2016.
On March 31, 2016, the Court of Appeals in a 2-1 decision held that evidence of a plaintiff’s undocumented immigration status is relevant when 1) plaintiff claims lost earning capacity based on United States wages; and 2) plaintiff’s immigration status leaves him with any risk of deportation. In his dissent, Justice Baker disagreed with the majority opinion and commented that allowing such evidence would likely result in prejudice to the injured party and act as a bad incentive for those who employ undocumented immigrants. Update: on April 27th, 2016, plaintiff filed a petition for rehearing and that petition was denied on July 13, 2016. Update: On October 20, 2016, the Indiana Supreme Court granted Escamilla's Petition to Transfer and scheduled oral argument to occur on November 22, 2016.
Alex Limontes is serving as amicus counsel. View the brief here.
Myers v. Bremen Casting Inc and Mastic Home Interiors
Larry Myers was exposed to asbestos while working as a contractor/electrician at Mastic Home Exteriors and Bremen Casting. Plaintiffs allege these exposures contributed to cause Larry to develop terminal mesothelioma. The Myers alleged three theories of liability against the Defendants: 1) respondeat superior for the acts of their employees directly exposing Larry to asbestos; vicarious liability for the acts of other independent contractors who exposed Larry; and liability for the dangerous asbestos condition on the premises. Trial Court denied summary judgment as to the Myers’ respondeat superior claims holding that premise owners are responsible for conduct of their own employees, but granted it as to the others. The Defendants sought leave to request interlocutory appeal, which was granted. This case involves the scope of PSI Energy v. Roberts. In Roberts, Indiana Supreme Court held an entity is not responsible to employees of independent contractors for injuries sustained by reason of potentially dangerous conditions on the property that the contractor who employed the worker was hired to address. The Myers ask the Court of Appeals to recognize Roberts opinion is limited to situations in which a contractor is injured by the very work he was hired to address and not the circumstances involved in this type of case. Update: On September 28, 2016, the Indiana Court of Appeals held 1) the trial court erred in granting the Defendants' summary judgment on the Myers vicarious pertaining to the negligence of independent contractors; 2) the trial court did not err in denying the Defendants' summary judgment on the Myer's respondeat superior claim; 3) trial court erred in granting the Defendants' summary judgment on the Myers premises liability claim. Essentially, the Court of Appeals disagreed with the defendants' contention that the plaintiff was injured by the condition he was hired to address, thereby making Roberts inapplicable. The Court of Appeals held there was a geuine issue of material fact regarding whether the "due precaution" exception applied to the general rule of non-liability on behalf of a principal for acts of negligence of an independent contractor and whether the landowner was negligent under premises liability. On October 28, 2016 the Defendants filed a Petition to Transfer.
Jeff Hammond is serving as amicus counsel. View ITLA's brief here.
The committee has approved Parkview Hospital v. Frost for amicus assistance. Frost was uninsured and seriously injured in a motorcycle-truck collision. Parkview Hospital provided treatment and then filed a hospital lien for an amount over $600,000.00. The Hospital lien is based solely on Parkview’s chargemaster rates. Plaintiff filed a Petition for Declaratory Judgment against Parkview to challenge the reasonableness of the charges under the Indiana Hospital Lien Act and sought to discover evidence of what the Hospital regularly accepts as full payment for other patients applying various discounts for similar services. The Hospital filed a Motion for Partial Summary Judgment, which sought to limit discovery requested regarding Parkview’s history of providing discounts to other payers. The trial court concluded the evidence of discounts was relevant. The trial court certified the following issue for interlocutory appeal: whether evidence of discounts provided to patients who have either private health insurance or who are covered by governmental healthcare reimbursement programs is relevant to the determination of what are reasonable charges under the Indiana Hospital Lien Act when an uninsured patient is contesting the reasonableness of a Hospital lien filed under the Hospital Lien Act. The Indiana Court of Appeals accepted jurisdiction. ITLA’s brief amicus brief filed as of December 11, 2015.
On March 14, 2016, in a 2-1 opinion, the Indiana Court of Appeals held that evidence of discounts provided to patients who have private health insurance or are covered by government healthcare reimbursement program is relevant in determining reasonable charges under the Indiana Hospital Lien Act. Najam, who wrote the dissent, argued that he would agree with the majority opinion but for Allen v. Clarian Health Partners , 980 N.E.2d 306 (Ind. 2012). Najam disagreed with the Supreme Court’s analysis in Allen and encouraged the Supreme Court to revisit its analysis at the appropriate time. On April 13th, 2016, Parkview Hospital filed a Petition to Transfer. Update: On October 3, 2016, the Supreme Court denied the defendant's Petition to Transfer. (Justices Massa and Slaughter voted to grant the Petition to Transfer).
Tom Manges is serving as amicus counsel. View the brief here.
The committee has approved this case for amicus assistance. Plaintiff filed a medical malpractice action against qualified healthcare providers and a pharmacy, who was unqualified, related to allegations that a doctor prescribed and a pharmacy dispensed a medication that was contraindicated to patient's medical medications resulting in patient’s death. Since the pharmacy was not qualified provider, it was subject to the Indiana Comparative Fault Act. The qualified healthcare providers were subject to joint & several liability under common law principles of contributory negligence. The qualified HCPs settled the plaintiff's claim and the pharmacy sought benefit of a set-off or credit for the funds Plaintiff received from the qualified HCPs under contributory negligence principles by filing a motion for partial summary judgment on the issue. The trial court granted Kroger's motion, but certified the issue to the Indiana Court of Appeals, which accepted the case on interlocutory appeal.
On August 4, 2016, the Indiana Court of Appeals issued an unanimous opinion clearly holding that Kroger was not entitled to a credit or set-off for an amount equal to the qualified HCPs’ settlement because Kroger was subject to the Comparative Fault Act’s scheme of fault allocation, and that Kroger could only seek to limit its potential liability through its assertion of a non-party defense. The entire opinion is here. Update: On September 2, 2016, Kroger filed a Petition to Transfer. All briefing has been completed. To date, the Supreme Court has not ruled on the Defendant's Petition to Transfer.
Ned Mulligan is serving as amicus counsel. View the brief here.
The committee has approved this case for amicus assistance. The plaintiff saught to admit evidence of breaches in the standard of care that were not clearly raised in the plaintiff's medical review panel submission. The defendant filed a motion to strike these "new opinions" not raised in the medical review panel submission. While the trial court initially granted the defendant's motion, it later reversed the ruling to allow the plaintiff to elicit opinions not briefed at the medical review panel stage. Defendant appealed and the Court of Appeals accepted the issued on interlocutory appeal. this case puts into question the holding of KD v. Chambers. Update: On October 4, 2016, the Indiana Court of Appeals issued an opinion holding the Plaintiff was entitled to introduce evidence of the breaches of the Standard of Care that were alleged not to be raised in the Plaintiff's MRP submission.
Jerry Garau is serving as amicus counsel. View the brief here. The entire opinion can be viewed here.
Stevens v. Aegis, et al.
The committee has approved this case for amicus assistance. This is another case involving the KD v. Chambers issue. Plaintiffs’ case went through the medical review panel proceedings and the panel rendered a decision that the Defendants did not deviate from the applicable standard of care. Plaintiffs filed the case is state court, where defendants filed a motion for summary judgment based on the MRP opinion. Plaintiffs designated the affidavit of an expert to combat the MRP opinion; however Defendants made the argument that the affidavit raises new allegations of negligence that were not addressed by the Plaintiffs during the MRP proceedings. The trial court granted Defendants’ motion for summary judgment, which again puts into question the holding of KD v. Chambers.
Jerry Garau has agreed to serve as amicus counsel. Amicus brief filed on September 14, 2016. View the brief here.
Ryan v. TCI Architects
The committee has approved this case for amicus assistance. The Plaintiff sought to establish a non-delegable assumption of duty by the DBIA form contract on behalf of the general contractor for safety; while the Defendants file an opposing motion for summary judgment arguing no duty. The trial court denied plaintiff’s motion and granted defendants. The Court of Appeals held that the standard DBIA for contract did not create a duty on behalf of the general to an injured employee of a subcontractor. The opinion was handed down on May 23, but a 2-1 vote. Judge Riley dissented, relying on the contractual language to argue there was a duty. UPDATE: Ken Allen and Bob Brown have agreed to serve as amicus counsel. Plaintiff filed Petition for Rehearing on June 21, 2016. Petition for rehearing was denied on August 2, 2016. To date, the Supreme Court has not ruled on the Plaintiff's Petition to Transfer.
ITLA’s amicus brief in support of transfer was filed on or about September 1, 2016. View the brief here.
Green v. Robertson
The committee has approved this case for amicus assistance. This case involves the issue of to what extent the PCF is entitled to inject "loss of chance" or other theories involving causation arguments at the hearting for excess damages with the PCF after a settlement agreement has been entered with the underlying healthcare provider. The Court of Appeals allowed the PCF to argue loss of chance to minimize damages. Plaintiff filed a Petition to Transfer. Update: The Supreme Court granted ITLA's Motion to filed a Belated Brief, which was filed on October 21, 2016. To date, the Supreme Court has not ruled on the Petition to Transfer.
Llobet v. Gutierrez
The Committee has approved this case for amicus assistance. This is another case involving the KD v. Chambers issue. The trial court denied the defendant's motion to strike plaintiff's allegations that were not raised in the medical review panel. Defendant field a motion for interlocutory appeal which was granted. Update: Jerry Garau has agreed to serve as amicus counsel. Amicus Brief was filed on November 1, 2016.
Owens-Illinois, Inc. v. Geyman (49S00-1501-MI-00036) &
Myers v. Crouse-Hind and Lorillard Tobacco Co and Hollingsworth & Vose (49S00-1502-MI-119) (Product Liability Statute of Repose Cases)
The committee has approved the above cases for amicus assistance. The plaintiff in each of these cases has or had terminal mesothelioma. Because of mesothelioma's long latency period, decades passed between “last delivery” and the diagnosis/initiation of the lawsuits. In Myers, trial court granted defendants summary judgment based upon Product Liability Act's statute of repose. The Plaintiffs appealed and requested Indiana Supreme Court to accept immediate jurisdiction, which was granted. In Geyman, the trial court denied defendants' motion for summary judgement. Defendants requested interlocutory appeal and Plaintiff requested and received leave to have case immediately heard by Indiana Supreme Court. Issues to be determined include whether IC 34-20-3-1 is unconstitutional as to latent injury/disease claims and/or IC 34-20-3-2 applies to all Defendants which sold asbestos containing products. The Indiana Supreme Court has consolidated oral arguments of both of these appeals.
Update: On march 2nd, 2016, in a 3-2 decision, the Indiana Supreme Court held that the Product Liability Statute of Repose Sec 2 was unconstitutional for asbestos victims under the circumstances. on April 1st, 2016, the defendents filed a petition for rehearing and the State of Indiana also filed for rehearing as amicus. The State was provided an opportunity to file an amicus. On April 28th, 2016, the majority opinion of the Indiana Supreme Court denied the motions for rehearing.
Gabe Hawkins served as amicus counsel. View the amicus brief for Owens-Illinois, Inc. v. Geyman, here.
View the amicus brief for Myers v. Crouse-Hind and Lorillard Tobacco Co and Hollingsworth & Vose, here.
The committee has approved State Farm v. Jakubowicz for amicus assistance. Plaintiff filed lawsuit against tortfeasor and resolved that claim against the tortfeasor over three years after the crash. Plaintiff then made an underinsured claim against State Farm. State Farm alleged its contract put at three year statute of limitations on making an underinsured claim from the date the crash originally occurred and because the Plaintiff did not make the underinsured claim within three years of the date of the crash, the underinsured claim was timebarred. State Farm filed a motion for summary judgment which was denied by the trial court. State Farm filed an interlocutory appeal; the Court of appeals has reversed and remanded holding policy language was not ambiguous. Plaintiff’s counsel has sought ITLA amicus assistance after the Court of Appeals decision; as such ITLA will serve as Amicus Counsel to advocate the Indiana Supreme Court accept transfer. ITLA’s amicus brief was filed on February 26, 2016.
Update: The Indiana Supreme Court has granted transfer and held oral argument on June 2nd, 2016. On July 26, 2016, The Indiana Supreme Court issued a unamious opinion holding the State Farm policy was ambiguous and vacated the opinion of the court of Appeals holding the Plaintiff was entitled tp pursue its UIM claim against State Farm.
Bill Winningham and Jon Noyes served as amicus counsel. View the brief here.
2015 ITLA Amicus Briefs and Activity
The committee has approved Ball Memorial Hospital v. Fair (18A02-1405-CT-316) for amicus assistance. The case is a medical malpractice claim involving allegations of negligence stemming from a medication error leading to death. After the medical review panel rendered its opinion, a defendant raised allegations of negligence against another defendant that were not raised during the panel stage by the Plaintiff. The issue in this case is whether a plaintiff is precluding from presenting evidence at trial of alleged acts of malpractice that were not presented to the medical review panel and the Defendants seek to exclude this allegation of negligence based on K.D. v. Chambers. The trial court denied Defendant’s Partial Motion for Summary Judgment seeking to exclude the new allegations of negligence from evidence at trial. Defense sought interlocutory appeal. On June 13, 2014, the Court of Appeals accepted jurisdiction of the interlocutory appeal. Fully briefed as of December 2014. On March 2nd, 2015, the Court of Appeals held plaintiffs were entitled to pursue the claims of neglegance, but distinguished KD v. Chambers. UPDATE: Petition to transfer denied as of July 16th, 2015.
City of Fort Wayne v. Parrish (02A05-1408-CT-359)
The committee has approved City of Fort Wayne v. Parrish for amicus assistance. The City of Fort Wayne filed an interlocutory appeal based on trial court’s grant of motion in limine excluding evidence that she was not wearing a seatbelt when she was involved in a motor vehicle crash caused by a police officer. The Indiana Court of Appeals held that the failure to wear a seatbelt is not evidence of contributory negligence. City of Fort Wayne filed a Petition to Transfer.
Kate Brown-Henry served as amicus counsel. View the brief here. The Indiana Supreme Court denied transfer on September 21, 2015.
State Farm Mutual Automobile Insurance Company v. Earl (36AO5-1212-CT-635)
The committee has approved State Farm Mutual Automobile Insurance Company v. Earl (36AO5-1212-CT-635) for amicus assistance. In a jury trial involving an underinsured motorist claim, the trial court, over the objection of State Farm, admitted into evidence the $250,000 bodily injury policy limit for underinsured motorist coverage. The jury returned a verdict for $250,000.
State Farm appealed claiming the trial court erred in admitting evidence of the underinsured policy limit. On January 24, 2014, by majority decision, (Judge Riley dissenting) the Court of Appeals reversed the trial court and ordered a new trial holding that the trial court erred in admitting into evidence the $250,000 bodily injury limit as the policy limit was irrevelant to the issue of damages which was the only issue being tried. UPDATE: Re-hearing denied 4/8/14 (Riley dissents); on August 28th, 2014, the Indiana Supreme Court granted transfer. Oral argument held on November 6, 2014.
On June 9, 2015, the Indiana Supreme Court affirmed the trial court: the trial court did not abuse its discretion in admitting evidence of the underinsured policy limits.
Nick Deets served as amicus counsel. View the brief here.
St. Vincent Regional Hospital v. Rashauna White (48A05-1412-CT-00546)
The committee has approved St. Vincent Regional Hospital v. Rashauna White (48A05-1412-CT-00546) for amicus assistance. Plaintiff was involved in a motor vehicle crash and received medical treatment at St. Vincent. Even though the patient was a Medicaid recipient, St. Vincent refused to bill Medicaid for the hospital charges incurred as a result of the crash and instead filed a Hospital Lien for the entire amount of the charges. Plaintiff filed a Motion to Quash/Reduce Lien, which was granted by the trial court. Hospital filed a Motion to Correct Error, which was denied. Hospital appealed. The issue is whether a hospital lien must be reduced by Medicaid benefits under the new Hospital Lien statute.
After Plaintiff and ITLA Filed their appellate briefs, St. Vincent filed a Motion to Withdraw their Appeal, which was granted by the Court of Appeals. Plaintiff filed a Motion to Reconsider which was denied on June 5, 2015. As such, this case is no longer in front of the Court of Appeals.
Tom Manges served as amicus counsel. View the brief here.
Walnut Creek Nursery, Inc., v. Barbara Banske (45A05-1406-CT-256)
The committee has approved Walnut Creek Nursery, Inc., v. Barbara Banske (45A05-1406-CT-256) for amicus assistance. Plaintiff fell on defendant’s premises. Plaintiff’s treating physician and naprapath testified at trial regarding injuries sustained as a result of the fall. A naprapath provides manual therapy and is a licensed profession in Illinois, but not Indiana. Plaintiff received care from a naprapath in Illinois. The issue is whether a naprapath, which is not a licensed profession in Indiana but is in Illinois, can testify in an Indiana court regarding treatment provided to an injured plaintiff. Trial court allowed the testimony of the naprapath regarding the treatment provided to plaintiff over defendant’s objection. Jury returned verdict in favor of Plaintiff for $243,000.00. Defendant appealed arguing the naprapath’s testimony should have been barred. Fully briefed as of December 2014. On February 19th, the Indiana Court of Appeals affirmed the trial court.
The committee has approved Camoplast Krocker v. Kris Schoolcraft (29A02-1303-CT-0273) for amicus assistance. On 5/5/10 Schoolcraft was involved in an accident involving a mower. A lawsuit was filed. On 5/4/12 plantiff filed a motion to amend complaint to add defendents who manufactured the mower parts. Plantiff filed an amended complaint and summonses directed to add additional defendents. That motion was filed stamped 5/7/12. The trial court granted the motion to amend on 5/15/12.
The trial court denied defendents' motion to dismiss the amended complaint as untimely. Defendents appealed. Court of Appeals held that an action is commenced when the plaintiff filed the motion to amend and the proposed complaint irrespective of when the court grants the motion to amend. UPDATE: On July 21st, 2014, the Supreme Court granted transfer and unamiously adopted and incorporated by reference the Court of Appeals opinion.
Joe Williams authored the amicus brief. View the amicus brief here.
The committee has approved Pierson v. Service America Corp (49A02-1307-CT-00561) for amicus assistance. At twelve year old child was struck and killed by a drunk driver (over two times the legal limit) who had attended the Colts game. Plaintiffs’ brought a dram shop action against Centerplate, which was the exclusive alcohol vendor at the Colts game. The trial court granted summary judgment in favor of Centerplate. The Court of Appeals reversed. On June 20, 2014, the Defendant filed a Petition to Transfer. UPDATE: On September 19, 2014, the Indiana Supreme Court denied transfer by a vote of 4-1.
Matthew Anderson authored the amicus brief. View ITLA’s Amicus brief here.
The committee has approved Asklar v. Empire Fire and Marine Insurance Co. (02S03-1305-CT-332) for amicus assistance. The primary issue is whether the insured properly rejected UIM liability coverage under Indiana law. The Court of Appeals held that the insured did properly reject UIM coverage.
Asklar, a truck driver, driving a tractor-trailer registered, principally garaged, and licensed in Indiana was rear ended, while stopped, in West Virginia by another truck which had a single liability limit of $1 million. Because of all of the claims against the defendant truck driver, Asklar attempted to recover under the defendant's UIM coverage. The defendant had $5 million in liability coverage but only $75,000 in UIM coverage. The defendant, in writing, attempted to reduce UIM coverage to $75,000. Indiana law requires that UM/UIM insurance must be at least equal to bodily injury liability limits unless rejected in writing by the insured. The plaintiff claimed that the rejection was not in accord with IC 27-7-5-2.
The trial court held that the rejection was proper. The Court of Appeals affirmed that the rejection complied with IC 27-7-5-2. Rehearing denied. UPDATE:Transfer granted; oral argument 10/31/13.
On May 29th Justice Massa authored a unanimous opinion holding that the Court of Appeals was correct in deciding that the trial court erred in applying Georgia law to the issue of whether or not the owner of a truck, registered and principally garaged in Indiana, had waived underinsured motorist coverage for an amount that was less than the amount of liability coverage.
The opinion also held that the trial court, and Court of Appeals erred in determining that the insurance carrier was entitled to summary judgment that the UIM limits were only $75,000, based on the ambiguity of the insurance carrier’s waiver forms which it utilized, when applying Indiana law, and found a factual dispute existed.
Mark Guenin authored the amicus brief and Thomas Manges is Appellant's counsel.
The committee has approved Brenton v. Lutz (77A01-1302-ES-86) for amicus assistance. The main issue in this case is who determines the personal representative of a wrongful death estate, the beneficiaries under Indiana’s Wrongful Death Act or the person designated by the decedent in a will. Brenton’s mother died testate from a car crash. Brenton was named personal representative for purposes of pursuing a wrongful death action. Lutz, another sibling, filed a petition to remove Brenton as personal representative because he was named executor in Brenton’s mother’s will. Three of the four children wanted Brenton as personal representative. The trial court removed Brenton as personal representative and replaced her with Lutz. Brenton appealed. On July 30, 2013, the Court of Appeals affirmed the trial court decision holding that the executor named in a will controls the appointment of a personal representative in a wrongful death action despite the wishes of the beneficiaries under the Wrongful Death Act. UPDATE: Petition to Transfer filed August 21, 2013. Petition to transfer denied 11/21/13 (Dickson, CJ votes to grant transfer).
Adam Sedia authored the amicus brief.
The committee has approved Justice v. American Family Mutual Insurance Company (49-S-021303-PL-00221) for amicus assistance. The issue is whether and to what extent the defendant is entitled to set-off against uninsured motorist benefits coverage for workers compensation benefits recieved by the plaintiff.
Justice, a bus driver, was injured in a crash in the course and scope of his employment. Car driver's insurance company paid $25,000 policy limits. Underinsured carrier filed summary judgement saying that the worker's compensation set-off provisions reduced the limits of the liability policy such that the uninsured carrier's liability under the plan was zero. Trial court grants defendant's summary judgement motion. Following Beam v. Wausau, the Court of Appeals reversed holding that the exclusion called for the reduction of damages by any amount of worker's compensation benefits recieved for the same element of damages insured by the policy. The Court of Appeals remanded with instructions to determine the amount of liabilty and damages and then reduce plaintiff's damages by $25,000 and the percentage of worker's compensation benefits paid to plaintiff based upon the defendant's percentage of comparative fault.
Petition for Amicus assistance denied after brief filed.
UPDATE: 3/13/14 Supreme Court reversed trial court's grant of summary judgement holding that an insurer may set off against underinsured policy limits worker's compensation payments made to underinsured, but may not reduce the policy limits below the $50,000 statutory minimum.
Emily Guenin-Hodson authored the amicus brief.
The committee has approved Smith v. Delta Tau Delta (54A01-1204-CT-169) for amicus assistance. This case deals with whether a national fraternity can be held liable via assumption of duty or agency relationship when a college student at a local chapter dies from alcohol poisoning during a fraternity event. The trial court granted summary judgment in favor of the fraternity on the issues of assumption of duty and agency. The Court of Appeals reversed finding genuine issues of material fact as to whether the national fraternity assumed the duty to protect its freshman pledges and whether an agency relationship exists between the national fraternity and its local chapter. UPDATE: Delta Tau Delta filed Petition to Transfer on 8/19/13.
On May 28th Justice Dickson authored a unanimous decision in favor of the national fraternity, upholding the trial courts grant of summary judgment. The Court found that based on the evidence, as a matter of law, the local fraternity was not an agent of the national fraternity and the national fraternity assumed no duty to members of the local fraternity to protect them from the hazing, illegally being furnished alcohol, reasonably foreseeable acts of third parties or render aid to pledges after it became clear that he could not care for himself.
The decision could serve as a case study for how the Catholic church could avoid adverse financial consequences for its priests molesting children if it were to reorganize itself along the lines of national local fraternities.
Tim Vrana authored the amicus brief and Stephen Wagner was Appellant's counsel.
The committee has approved Wren v. Kindred Nursing Centers (34A02-1307-CT-00660) for amicus assistance. The issue in this case is whether a plaintiff in a medical malpractice case is precluded from presenting evidence at trial of alleged acts of malpractice that were not presented to the medical review panel. The trial court held that all aspects of the plaintiff's medical care shall be determined by the jury. Defense sought interlocutory appeal. On 9/3/13 the Court of Appeals accepted jurisdiction of the interlocutory appeal. Update: on July 30, 2014, the Indiana Court of Appeals unanmiously affirmed the trial court. The opinion was certified as of September 15, 2014.
Jerry Garau authored the amicus brief. View the amicus brief here.
The committee has approved A.M.D. v. YMCA (49A04-1211-CT-551) for amicus assistance. An eight year old with disabilities was attending a summer YMCA day camp. While at a park, the boy was allowed to go to the bathroom unsupervised in violation of YMCA rules. He was abducted and sexually assaulted. Perpetrator was caught and is in jail. Plaintiff sues YMCA for negligent supervision. Trial court grants YMCA's motion for summary judgment on the grounds that a perpetrator's criminal act was a superceding cause. UPDATE: 7/19/13 Court of Appeals reversed trial court granting of summary judgment; petition to transfer denied 11/7/13. Dave Stewart and Mike Sobieray authored the amicus brief.
The committee has approved Columbus Regional Hospital v. Amburgey (03A01-1110-CT-00450) for amicus assistance. The plaintiff filed a lawsuit against the hospital primarily because of the conduct of two independant contractors, one of which was an anaesthesiologist. The hospital claimed that since the independant contractors were not sued individually within the applicable statute of limitations period the plaintiff's claims were barred. The case is challenging Sword v. NKC Hospitals, (714N.E2d 142) (IN 1999). The trial court denied the hospital's motion for summary judgment. The Court of Appeals granted an interlocutory appeal to address the certified question of whether the hospital is liable for the conduct of the independant contractor physicians. On 9/19/12 the Court of Appeals affirmed the trial court holding that the running of the statute of limitations with repect to a physician does not preclude a complaint against a hospital on a theory of vicarious liability and apparent authority. UPDATE: Transfer denied 3/14/13.Mike Stapleton and Elizabeth Searle authored the amicus brief.
The committee has approved Kosarko v. Padula 960 N.E.2d 810 (Ind. Ct. App. 2011), for amicus assistance. This case involves Indiana's pre-judgment interest statute. Plaintiff made a qualified settlement offer of $100,000. Padula rejected offer. Jury returned $210,000 verdict. Trial court denied plaintiff's motion for pre-judgment interest stating that Kosarko's damages were not ascertainable within a time frame justifying pre-judgment interest. Court of Appeals reversed by majority decision finding that pre-judgment interest is allowable when damages are capable of being determined by some standard such as fair market value and that the defendant should bear the cost of the time value of money in the intervening period. UPDATE: On 12/12/12, Indiana Supreme Court reversed trial court's denial of prejudgment interest and remanded case to consider awarding prejudgment interest based on Court's holding that TPIS abbrogates and supplants common law rules governing availability of prejudgment interest in cases covered by TPIS. Rick Hovde and Nick Deets authored the amicus brief.
The committee has approved PCF v. Holcomb (49S05-1404-CC-00209) for amicus assistance. The PCF is appealing the trial court's ruling that IC 34-18-18-1 (15% cap on attorney fees) does not limit the amount of money that a trial court can order for payment of attorney fees in an adult wrongful death action. The fund argued that IC 34-18-18-1 limits the assessment of attorney fees to 15% of the recovery from the fund. Plaintiff sought $50,000 in attorney fees. The fund stipulated that the $50,000 in attorney fees was a reasonable amount but argued that the trial court could not order more than $17,000 which was 15% of the recovery from the fund as attorney fees. Court of Appeals reversed and remanded the case for the trial court to recompute damages (Robb, dissenting stating that the trial court should be affirmed). UPDATE: On August 26th, 2014, the Indiana Supreme Court unamiously affirmed the trial court, holding that the fee cap provision of the Indiana Medical Malpractice Act does not reduce the patient's compensation fund's liability to the plaintiff in a AWDS claim, but instead only applies to cap the fees that the plaintiff's lawyer may charge to the client as to the payment the client obtains from the Fund. Bob Johnson authored the amicus brief. View the amicus brief here.
The committee has approved State of Indiana v. John Doe (49S00-1201-CT-00014) for amicus assistance. On April 24, 2008, a jury awarded Doe $5,000 in compensatory damages and $150,000 in punitive damages for being a victim of sexual abuse by a priest. The trial court refused to reduce the amount of punitive damages to the statutory cap of $50,000 finding the punitive damages cap unconstitutional. In March 2009, the state of Indiana intervened to seek its portion of Doe's judgment. The state refused to share in payment of any portion of plaintiff's litigation expenses which exceeded $20,000. On December 2, 2010, Doe filed a complaint for declaratory judgment arguing that Indiana's punitive damage statute is unconstitutional. On September 27, 2011, Judge Dreyer, in an eighteen page opinion, declared Indiana's punitive damage statute unconstitutional in violation of Articles III & I, Section 20 of the Indiana Constitution. The State of Indiana has filed a notice of appeal. To read the brief, please click here. UPDATE: On 5/14/13 Supreme Court reversed trial court holding Indiana's punitive damage statute constitutional. Tom Manges authored the amicus brief.
2011 ITLA Amicus Briefs and Activity
The committee has approved Allied v. Good, 938 N.E.2d 227 (Ind. Ct. App. 2010), for amicus assistance. In this case, Allied’s application for insurance asked for the name of the applicant’s current insurance company, the number of years with that company, and the expiration date of that policy. On the same line, there was a space to answer the following question: “Coverage ever declined, cancelled, or non-renewed?” The Goods believed this question was limited to their current homeowners’ coverage, and answered “no.” After coverage was issued, a fire destroyed the Goods’ home. Allied then denied coverage claiming a misrepresentation in the application, since there had been an insurance denial several years previously. The Goods argued that the term “ever” in the application only referred to the policy in effect when they completed the application, while Allied argued that “ever” referred to the applicant’s entire insurance history. The issue is whether an ambiguous question in an insurance application should be construed in favor of the insurer or the insured. UPDATE: Transfer granted June 3, 2011. Transfer was withdrawn on September 12, 2011, and the Court of Appeals' decision was summarily affirmed. Nick Baker authored the amicus brief.
The committee has approved Campbell v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011) (Case Number 49A04-1010-CT-636), for amicus assistance. In this case, the salient issue is whether a plaintiff in a medical malpractice case is prohibited from alleging breaches of the standard of care which were not specifically presented to the medical review panel vis-a-vis the medical review submission. In Miller v. Memorial Hospital of South Bend, the Supreme Court previously held that: “We decline to accept Memorial Hospital’s argument that the plaintiffs’ action is restricted by the substance of the submissions presented to the medical review panel. . . . While a medical malpractice plaintiff must, as a prerequisite to filing suit, present the proposed complaint for review and expert opinion by a medical review panel, there is no requirement for such plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.” In interpreting the above-cited language from Miller, the Court of Appeals in Campbell concluded that "we do not interpret the above language so broadly as to allow a plaintiff to argue at trial separate breaches of the standard of care that were not presented in a submission of evidence to the panel." UPDATE: On December 9, 2011, the Supreme Court denied transfer. Justices Shepard & David voted to grant transfer, Justices Sullivan & Rucker voted to deny transfer. Justice Dickson did not participate. Because Court evenly divided, transfer denied. Jerry Garau authored the amicus brief.
The committee has approved Dept. of Insurance v. Everhart, 932 N.E.2d 684 (Ind. Ct. App. 2010), for amicus assistance. The case involves a claim brought against a healthcare provider after a patient died in the ER. If proper treatment had been rendered, the patient would have had an 80% chance of recovery. The trial court awarded $1 million, holding that Section 323 did not serve to reduce the award because it had been proven that the decedent had an 80% chance of recovery. The Court of Appeals reversed, holding that the trial court must determine “the actual percentage chance of survival” and adjust the award accordingly. Transfer granted on May 13, 2011. UPDATE: On January 20, 2012 the Supreme Court issued a decision holding that Everhart is an inappropriate vehicle to decide whether to extend the loss of chance to cases involving patients who stood better than even chance of recovery; trial court affirmed.Steve Langer and Tara Worthley authored the amicus brief.
The committee approved Doe Corporation v. Honore, 950 N.E.2d 722 (Ind. Ct. App. 2011) for amicus assistance. This case involved the role of a nurse on a MRP. The parties had agreed, prior to the time the panel was convened, that the nurse member of the panel would not be allowed to decide the issue of causation. When the case was submitted to the panel, however, the panel chair reneged on the parties prior agreement and allowed the nurse to opine as to causation. In the original opinion, there was language which suggested a limitation on the right of a nurse to serve on the MRP. UPDATE: Rehearing was sought and granted on July 8, 2011, and the court clarified its earlier opinion so as not to limit the right of nurses to serve on medical review panels.George Gray and Dan Robinson authored the amicus brief.
The committee has approved Kornelik v. Mittal, 952 N.E.2d 320 (Ind. Ct. App. 2011) (Case Number 45A03-1011-CT-583), for amicus assistance. This case involves a plaintiff who settled an underlying personal injury case without the consent of the Worker’s Compensation carrier for an amount far less than the actual value of his injuries, but the full amount of the lien was placed in trust pending adjudication of the lien issues. The trial court concluded that because the carrier's permission to settle was not obtained, the plaintiff was not entitled to offset the amount of the lien for attorney's fees and litigation expenses, and further held that the lien was not subject to diminishment under I.C. 34-51-2-19. On appeal, the Court of Appeals determined that the lienholder was required to reduce its lien for attorney's fees and litigation expenses, but it upheld the trial court's determination that the lien was not subject to further reduction under I.C. 34-51-2-19. UPDATE: On 7/30/12 the Supreme Court denied transfer in a three to one decision with Chief Justice Dickson voting to grant transfer.
The committee approved Robertson v. B.O., 944 N.E.2d 409 (Ind. Ct. App. 2011), (49 S04-1111-CT-00671) for amicus assistance. In this case, B.O. claimed to have suffered injuries at birth as a consequence of the negligence of Lutheran Hospital. Lutheran agreed to settle for the amount necessary to access the Patient’s Compensation Fund, and a petition for excess damages was filed. While the claim for excess damages was pending, the Fund argued that it was entitled to introduce evidence that B.O. did not suffer an injury at birth. B.O. argued that because the underlying claim with Lutheran was settled, the Fund was prohibited from contesting liability orcausation in accordance with I.C. 34-18-15-3. The Fund countered that such evidence should be admissible to go to the issue of the proper measure of damages, if any, to which B.O. was entitled. Although this case did not involve proportional damages under a Section 323 claim, the Court of Appeals relied upon the recent decision by the Indiana Supreme Court in Atterholt v. Herbst, 902N.E.2d 220 (Ind. 2009). In that case, the Supreme Court held that in a petition for excess damages in a Section 323 claim, the Fund may introduce evidence of the claimant's preexisting risk of harm if it is relevant to establish the amount of damages, even if it is also relevant to liability issues that are foreclosed by the judgment or settlement. Based upon Herbst, the Court of Appeals held that “[Although] Lutheran's liability and proximate causation are deemed established by the underlying settlement with B.O., the extent of the excess damages is still before us and contested by the Fund. UPDATE: On 10/31/12, Supreme Court issued opinion holding that PCF is prohibited from disputing causation in settlements unless it does so via Herbst which is limited to Mayhue type cases (loss of chance). Steve Langer and Tara Worthley authored the amicus brief.
The committee has approved Santelli v. Rahmatullah, (49S04-1212-CT-00667) for amicus assistance. The case involves the question of whether a defendant in a negligent security case may name the criminal perpetrator as a nonparty when the protection against criminal acts was the “very duty” for which the security company was employed. The “very duty doctrine” existed at common law and is recognized by the Restatement (Third) of Torts, but it is an issue of first impression whether the doctrine survived the enactment of the Comparative Fault Act. On March 29, 2012 the Court of Appeals reversed the trial court and held that the "very duty doctrine" survived adoption of comparative fault in Indiana and was not abrogated by the Act. The trial court must instruct the jury on the "very duty doctrine". Further, the Appellate Court adopted Re-statment of (Third) of Torts Section 14 which stands for the proposition that where one negilgent defendent breaches a duty to prevent the foreseeable intentional conduct of another defendant, the joint and several liability rule as a component of the "very duty doctine" is appropriate to carry out the goal of adequately compensating the injured party. UPDATE: Petition to transfer granted; judgement of trial court affirmed on 8/28/13.Bill Winingham authored the amicus brief.
The committee has approved Taele v. State Farm, 936 N.E.2d 306 (Ind. Ct. App. 2010), for amicus assistance. The case involves a NIED UIM claim asserted by parents who watched their child get killed in a motor vehicle traveling behind them. The trial court ruled that the State Farm policy did not cover NIED claims because the parents did not sustain a direct impact. The Court of Appeals affirmed. UPDATE: Transfer denied 5/26/11. Mark Scott authored the amicus brief.
2009 and 2010 ITLA Amicus Briefs and Activity
New Cases Briefed in 2010
1. Indiana Patient’s Compensation Fund v. Brown, 949 N.E.2d 822 (Ind. 2011)
a. Authors: Nicholas F. Baker and Robert W. Johnson
b. Issues: Recovery of attorney’s fees in AWD cases
c. Status: Transfer granted. Attorney fees, litigation expenses and loss of services, a picuinary loss, are all recoverable under ADWS.
2. Howard Regional Health System v. Gordon, 925 N.E.2d 453 (Ind. Ct. App. 2010)
a. Authors: Steven L. Langer and Tara M. Worthley
b. Issues: Spoliation in medical malpractice cases
c. Status: Transfer granted, opinion issued August 10, 2011. Court declined to recognize cause of action for first party spoliation in the medical malpractice context
Amicus Cases Decided in 2009-2010
1. Rockford Mutual Ins. Co. v. Pirtle, 911 N.E.2d 60 (Ind. Ct. App. 2009)
a. Authors: Stephen L. Williams
b. Issues: Recovery of incidental damages in insurance claim
without bad faith
c. Outcome: Transfer denied and such damages are recoverable
2. Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009)
a. Authors: Mark A. Scott
b. Issues: Allowing evidence of collateral source write-offs
c. Outcome: Evidence is allowed if insurance not referenced
3. Butler v. Indiana Dept. of Insurance, 904 N.E.2d 198 (Ind. 2009)
a. Authors: Susan W. Rempert and Mark A. Scott
b. Issues: Allowing evidence of collateral source write-offs
c. Outcome: Only amount paid recoverable in AWD cases
4. Smith v. Champion Trucking, 925 N.E.2d 362 (Ind. 2010)
a. Authors: Trevor J. Crossen and Stephen M. Wagner
b. Issues: Whether worker’s nominal PI settlement precluded
further worker’s compensation benefits
c. Outcome: Employee’s right to further benefits is cut off unless
employee gets employer’s consent to settle PI claim
5. Kovach v. Midwest, 913 N.E.2d 193 (Ind. 2009)
a. Authors: William E. Winingham and Christopher G.
b. Issues: Whether the PLA subsumes UCC claims for breach
of implied warranties of merchantability and fitness
c. Outcome: The Court decided the case on causation grounds
6. TRW Safety Systems, Inc. v. Moore, 936 N.E.2d 201 (Ind. 2010)
a. Authors: Thomas C. Doehrman
b. Issues: Burden of proof in crashworthiness cases
c. Outcome: Court of Appeals’ decision reversed, previous
burden of proof for crashworthiness cases restored
7. Brown-Day v. Allstate, 915 N.E.2d 548 (Ind. Ct. App. 2009)
a. Authors: James R. Fisher
b. Issues: Whether UIM carrier has the right to substitute the
tortfeasor’s name as the party in interest
c. Outcome: Court of Appeals rejected Allstate’s argument, and
the Supreme Court denied transfer
Identifying State Farm Litigation Counsel in Voir Dire
Submitted by: Tom Doehrman
Nicholas C. Deets and Frederick R. Hovde, Barnette v. Clark
Kenneth J. Allen, Rice v. Kenny Industrial Services
Susan W. Rempert and Mark A. Scott, Butler v. Indiana Department of Insurance
Click Here to View ITLA's Amicus Brief, Butler v. Dept. of Insurance
Click Here to view IN Supreme Court's Butler v. Dept. of Insurance Opinion
William E. Winingham, Kovach v. Alpharma
August 2007-August 2008 Tort Law Update
By: ITLA Member, Mark A. Scott
W. Russell Sipes, DAP, Inc. v. Akaiwa
Stephen L. Williams, Ho v. Frye
David V. Scott, Rowland v. Shelton
Mark A. Scott, Stanley v. Walker
Click Here to view IN Supreme Court's Stanley v. Walker Opinion
Thomas F. Macke, State Farm v. Jackupko