In Martinez v. Smith, Yerano Martinez (“Martinez”) collided with a truck and suffered severe injuries after driving through a stop sign obstructed by an overgrown bush on property owned by Jeffrey Smith (“Smith”). While the bush did not intrude upon the travelled portion of the roadway, it did partially extend into Miami County’s right-of-way, an easement where the stop sign was located. Martinez argued the bush was not “wholly contained” on Smith’s property because it was within Miami County’s right-of-way. Smith argued there was a difference between a public right-of-way, that is, a roadway, and a county right-of-way easement. Based upon Reece, the trial court granted summary judgment in favor of Smith, which the Court of Appeals affirmed. The Indiana Supreme Court had to decide, therefore, what it meant when it referred to the “roadway” in Reece. 

Ultimately, the Indiana Supreme Court held the “Reece rule” encompasses, not only encroachments upon the paved portion of the roadway, but also hazardous conditions obstructing traffic control devices in the public right of way. First, looking at Indiana’s common law and various dictionary and statutory definitions, the Court found the terms “roadway” and “public right of way” are not limited to the paved portion of the roadway. Second, the Court agreed with Martinez that a stop sign, like any traffic control device, is part of the roadway as an integral part of the roadway, without which the roadway simply cannot function. Third, the Court noted that its clarification of the “Reece rule” comes with no additional burden to Indiana landowners; it does not change the bright-line rule established in Reece, but simply “clarifies where, under [the] bright-line rule, the landowner’s responsibility begins and where it ends.” 

The Indiana Supreme Court next applied the clarified “Reece rule” to the facts in this case. Although the parties disputed whether the bush was “wholly contained” on Smith’s property, Smith had admitted that his bush fell within the county right-of-way. Under the Court’s holding clarifying the “Reece rule,” the condition was not therefore “wholly contained” on his property. Reversing the trial court’s decision, the Court concluded that “under Reece, a landowner’s common-law duty to refrain from creating hazardous conditions for passing motorists on adjacent highways encompasses traffic-control devices within the public right-of-way,” and “because the hazardous condition here, by Smith’s own admission, impermissibly encroached into the public right-of-way,” “the trial court erred by granting summary judgment in [Smith’s] favor.”

You can read the full opinion here, along with Justice Molter’s concurring separate opinion in which he discusses a “law-and-economics approach” based on the legally famous Learned Hand formula of balancing the burden of taking precautions against the probability and gravity of harm, and Justice Slaughter’s dissent with separate opinion in which he faults the majority for eschewing common law precedent and relying on irrelevant dictionary definitions and inapposite statutes. 

Areche sued the City of Indianapolis and other defendants for the injuries he suffered in the Indianapolis electric scooter crash. Indianapolis filed a motion to dismiss, which was eventually converted to a motion for summary judgment, based upon an Indianapolis ordinance prohibiting the operation of electric scooters on Indianapolis sidewalks. The Indianapolis ordinance, Indianapolis Revised Code § 441-320.1, provides: “It shall be unlawful for any person to operate an electric foot scooter on (1) A sidewalk, (2) A greenway, or (3) Any pedestrian or multimodal path [which does not include a path set aside for exclusive use of bicycles] that is paved or unpaved in the city.” The City of Indianapolis argued Areche was negligent per se for violating the scooter ordinance and was, therefore, contributorily negligent as a matter of law, thus barring his personal injury claim against Indianapolis.

Negligence arises from (1) a duty owed to the claimant/plaintiff, (2) breach of that duty by a failure to comply with the applicable standard of care, and (3) injury proximately caused by the failure. Negligence per se, which satisfies the second element, breach of duty, is the unexcused violation of a statute or ordinance if the statute or ordinance protects (1) the class of persons in which the claimant is included (2) against the type of harm that has occurred as a result of the violation. Importantly, while comparative fault applies to many Indiana lawsuits, for tort claims against governmental entities in Indiana, the common-law defense of contributory negligence applies, which bars any recovery when claimants have any fault at all.

The trial court granted summary judgment for the City of Indianapolis finding Areche negligent per se for violating the scooter ordinance and thus contributorily negligent as a matter of law, barring his claim. While not denying he violated the ordinance, Areche argued on appeal that (1) he did not owe any duty to himself, (2) he was not part of the class of persons the ordinance was meant to protect, and (3) he did not suffer the type of harm the ordinance was meant to protect.

The Indiana Court of Appeals quickly dispensed with Areche’s first argument. The Court noted that all claimants owe a duty of reasonable care to themselves—if that were not the case, no one could ever be contributorily negligent. As for Areche’s second argument, the Court found the ordinance protected, not only pedestrians, but also scooter operators, based upon the plain language of the ordinance and as a matter of common sense in protecting against foreseeable accidents. Lastly, the Court found the ordinance protected against the type of harm here, that is, a single scooter hitting a pothole (or any other obstacle such as a sign, bench, or stand) in the sidewalk, and not just the risk of harm occasioned by scooter-pedestrian collisions. 

Judge Scheele dissented with a separate opinion. He disagreed the ordinance protected against the type of harm Areche suffered: hitting a large hole with gravel while riding his electric scooter on the sidewalk. He felt the majority interpreted the ordinance too broadly to encompass a type of harm not contemplated by the ordinance. He distinguished foreseeable obstacles, like pedestrians, signs, benches, and stands, from the unforeseeable obstacle presented by the hole. 

You can read the full opinion here.

Barsumian Armiger Injury Lawyers advocates for clients in Indianapolis accident cases, including crashes and accidents involving motorized and electric scooters.

Jennings filed a personal injury lawsuit against Smiley. In discovery, Jennings obtained Smiley’s phone records, which did not show Smiley was talking or texting on her phone. His accident-reconstruction expert downloaded data from Smiley’s vehicle, which also did not show anything of consequence. Jennings then sought access to Smiley’s iPhone to extract data that might show use of the smartphone. Jennings referenced his accident-reconstruction expert’s opinion that Smiley had been “inattentive and/or distracted” and Smiley’s deposition testimony that she had been using a navigation app earlier in the day and had “looked up” just before the accident. Smiley objected to producing her phone and Jennings filed a motion to compel, which the trial court ultimately denied, based upon Smiley’s privacy concerns. A jury trial was held, with the jury finding Jennings 90% at fault and Smiley 10% at fault, which barred Jennings from any recovery under Indiana’s comparative fault scheme since he was more than 50% at fault for the accident.  

On appeal the Indiana Supreme Court first reviewed the competing interests of open access to information and a party’s privacy interests under Indiana’s trial rules. While allowing for liberal discovery, Indiana’s trial rules do provide limitations, including limitations based upon relevance, burden, expense, embarrassment, privilege, and proportionality. Noting that Indiana’s trial rules limit the scope of discovery to matters that are both relevant and proportional, the Court concluded that invasion of privacy is a “burden” to be considered and weighed against the “likely benefit” of discovery. However, unlike privileged information protected from disclosure, privacy concerns are not a per se bar to the discovery of relevant information.

The Court then fashioned a new standard for discovery of smartphone data. First, the party seeking discovery of smartphone data must provide “some evidence” of the smartphone’s use by the person from whom the data is sought at a time when the use could have been a contributing cause. In the Court’s view, this requirement presents “a relatively low burden for the requesting party to overcome.” Second, the party seeking the smartphone data must “describe each item and category with reasonable particularity,” which applies to the subject matter of the information sought (e.g., navigation apps) and the temporal scope of the request (e.g., on the day of the accident). If a party provides “some evidence” of the smartphone’s use when it could have been a contributing cause and sets forth the data sought with “reasonable particularity,” then the trial court can order production of the smartphone data, unless the person from whom it is sought objects, in which case the trial court shall consider all proportionality factors to determine whether the burden or expense of producing the data outweighs its likely benefit under Indiana’s trial rules.

With this new standard, the Court reviewed Jennings’ request in this case. Ultimately, the Court found Jennings’ request lacked the necessary evidentiary support and was too broad. As to the necessary evidentiary support, the Court noted that although Jennings’ accident-reconstruction expert believed Smiley was “inattentive and/or distracted,” the expert admitted that Smiley “could not have seen [Jennings] before the truck passed by him as [Jennings was] waiting on the corner,” and while the expert claimed Smiley must have been distracted, the expert had no explanation for why Jennings similarly did not see Smiley’s vehicle after stepping out from behind the truck. The Court noted the witnesses corroborating Smiley’s claims and the investigating officers having found no evidence of speeding, reckless driving, or distracted driving. The Court discounted Smiley’s statement that she “looked up” prior to the accident, as one of the officers testified people commonly say that as a type of expression. Lastly, the Court noted Smiley testified she had closed the navigation app she had been using, Jennings did not show how he or his expert could show active use of any apps, and with regards to the navigation app, even if it were being used, Jennings could not show how it caused Smiley to be distracted. With regards to the scope of the request, the Court found it overbroad, with no limit on what data was encompassed in the request, and in part unreasonably cumulative or duplicative considering the other evidence in the case. According to the Court, Jennings failed to meet his burden of showing how any benefit of producing Smiley’s smartphone for inspection outweighed Smiley’s privacy interest, and therefore, the trial court did not abuse its discretion in denying his motion to compel.

Justice Molter dissented voicing his disagreement with the Court’s conclusion. He noted, “there is little evidence more relevant than whether a driver was distracted by their cell phone, which is the evidence Jennings sought here.” While the Court found Jennings did not have compelling enough evidence of Smiley using her phone at the time of the accident, Justice Molter noted that that is the whole reason behind discovery—parties do not have to “provide the information they seek before they are permitted to seek it.” He also noted Jennings’ request was not overbroad, as any kind of data showing any kind of phone use would be relevant. Lastly, he noted the request was not duplicative or cumulative, but supplemental, as the phone records showing calls and texts did not show any phone use. Justice Molter believed the benefit of information showing whether Smiley was using her phone outweighed her privacy interests, which could easily have been addressed with a protective order. 

You can read the full opinion and dissent here.

Matthew Cranfill (“Cranfill”), Josephine’s father and the personal representative of Josephine’s estate, sued the INDOT for Josephine’s wrongful death. As applicable here, Cranfill alleged that the INDOT was negligent for failing to reduce the speed limit on the main roadway prior to the collision. While Indiana’s common law provides that governments have a duty to exercise reasonable care to keep streets and sidewalks in a reasonably safe condition for travel, the ITCA provides enumerated instances in which governments have immunity from tort liability. In the trial court, the INDOT moved for summary judgment based upon the ITCA, including, as applicable here, Indiana Code § 34-13-3-3(a)(8), which provides that “a governmental entity… is not liable if a loss results from… [t]he adoption and enforcement of or failure to adopt or enforce… a law (including rules and regulations).” The trial court agreed with the INDOT that the INDOT had immunity that was a complete bar to Cranfill’s claims, and therefore, entered final judgment in favor of the INDOT. Cranfill thereafter appealed to the Indiana Court of Appeals.

On appeal, Cranfill argued the trial court erred in finding the INDOT had immunity. Cranfill relied on the Indiana Supreme Court’s decision in Ladra v. State, a case discussed in one of our prior blogs. In Ladra, the Indiana Supreme Court adopted a new rule removing governmental immunity for the temporary condition of public thoroughfares when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions and has ample opportunity to respond. Here, Cranfill argued the INDOT should not have immunity because it knew about the dangerous condition at the intersection and had ample time to respond. However, the Indiana Court of Appeals noted the rule in Ladra did not apply to the ITCA subsection applicable here, Indiana Code § 34-13-3-3(a)(8). While the INDOT has statutory authority to alter speed limits and despite knowing of the dangerous condition of the intersection with ample time to respond, based upon prior precedent and the plain meaning of Indiana Code § 34-13-3-3(a)(8), the Court found the INDOT was immune for failing to lower the speed limit prior to the collision. The Court held that “[t]he Department’s failure to lower the speed limit on [the roadway] involved the ‘adoption and enforcement of or failure to adopt or enforce’ a rule and/or regulation,” and therefore, under the ITCA, the INDOT was immune from Cranfill’s claims.

You can read the full opinion here.

In Kearschner, Donald Kearschner (Kearschner) injured his shoulder in a car crash while working for Wal-Mart. The at-fault driver had a liability insurance policy with a $50,000 limit. Kearschner had his own insurance coverage with American Family Mutual Insurance Company (AFI), with $100,000 in liability coverage and $100,000 in UIM coverage. Kearschner sued the at-fault driver and AFI. Kearschner settled with the at-fault driver for the at-fault driver’s liability limit of $50,000 and sought an additional $50,000 in UIM coverage from AFI. AFI moved for summary judgment arguing that Kearschner was not entitled to any UIM coverage because, in addition to the $50,000 he received from the at-fault driver, he had also received a net amount of $62,084.52 in worker’s compensation payments, and his UIM policy stated that his UIM limit would be reduced by any payment from an at-fault driver and by any payment made under any worker’s compensation law. The trial court granted AFI’s motion and Kearschner appealed.

Similar to its decision in Craighead, the Indiana Court of Appeals held that the provision of Kearschner’s AFI policy providing a setoff for the $62,084.52 in worker’s compensation payments violated Indiana’s uninsured/UIM statute, specifically Indiana Code § 27-7-5-2 (“the UIM Statute”). The Court noted that the purpose of UIM coverage is to provide an insured with a recovery the insured would have received had the at-fault party carried adequate liability insurance, with the UIM Statute providing a minimum level of compensation. The UIM Statute provides that, absent a written rejection, UIM coverage (1) must be provided “in limits at least equal to the limits of liability specified in the bodily injury liability provisions of an insured’s policy,” and (2) may not be provided in an amount less than $50,000. Ind. Code § 27-7-5-2(a).

In reaching its holding, the Court found the Indiana Supreme Court’s decision in Justice v. Am. Family Mut. Ins. Co. to be instructive. The Court in Justice invalidated an identical policy provision that would have prevented an insured who had been paid $25,000 from an at-fault driver from receiving the statutory minimum of $50,000 in UIM coverage the insured had purchased. Here, AFI argued unsuccessfully that, despite the opinion in Justice, the setoff here did not violate the UIM Statute, as Kearschner had already received the $50,000 minimum set forth in the UIM Statute. AFI’s position was that the UIM Statute allows setoffs from UIM limits for worker’s compensation payments, even if they reduce UIM coverages to zero, so long as an insured receives, either from the at-fault party and/or the UIM carrier, at least the minimum $50,000 set forth in the UIM Statute. However, the Court of Appeals disagreed, noting the UIM Statute sets forth two minimum coverage amounts: the first (applicable here) is the coverage amount equal to an insured’s liability coverage limit (here, $100,000), and the second is the $50,000 minimum, which applies when an insured rejects in writing UIM coverage equal to the insured’s liability coverage. Rejecting AFI’s argument, the Court found AFI’s policy reducing Kearschner’s UIM coverage to zero violated the UIM Statute and reversed and remanded the case for further proceedings.

You can read the full opinion here.

Erie claimed Craighead’s $100,000 UIM coverage should be set off by both the $50,000 liability payment and the $10,000 in MPC payments, thereby making the available UIM coverage $40,000. While recognizing Erie was entitled to a setoff for the $50,000 liability payment, Craighead claimed she was entitled to the remaining $50,000 in UIM coverage with no setoff for the $10,000 MPC payments. After Erie refused to pay the undisputed $40,000 in UIM coverage absent agreement by Craighead to release her claim for the additional $10,000 in coverage, Craighead filed a lawsuit against Erie for both breach of contract and bad faith. After Craighead filed suit, Erie reversed its previous position and paid Craighead the undisputed $40,000 in UIM coverage.

Both parties moved for summary judgment in the trial court. Erie argued it acted in accordance with Indiana law and not in bad faith in enforcing the MPC setoff policy provision. Craighead argued the MPC setoff policy provision violated Indiana law and there was a genuine issue of material fact as to whether Erie acted in bad faith. The trial court denied Erie’s motion for summary judgment but granted Craighead’s motion for partial summary judgment, finding a setoff from Craighead’s UIM coverage for the $10,000 MPC payments was not permissible. Erie appealed.

Under Indiana law, Indiana Code § 27-7-5-2(a) states that automobile insurers must provide uninsured motorist (UM) and UIM coverages unless an insured rejects such coverages in writing, and any UIM coverage cannot be less than $50,000. The UM/UIM law is a “mandatory coverage, full-recovery, remedial statute,” which is legally considered part of every automobile insurance policy. Indiana Code § 27-7-5-5(c) of the UM/UIM law deals with “limitations on coverage,” and provides that the maximum amount payable for bodily injury under UIM coverage is the lesser of (1) the difference between the “amount paid in damages” by the liable party and the per person UIM limit, or (2) the difference between the total amount of damages and the amount paid by the liable party.

On appeal, Erie argued that the UM/UIM law only prevented a setoff from the minimum $50,000 required for UIM coverage, whereas Craighead argued it is the amount of UIM coverage purchased, i.e., the limit, that cannot be set off, not the statutory minimum. Agreeing with Craighead, the Indiana Court of Appeals noted that Indiana Code § 27-7-5-5(c) provides the starting point for calculating the maximum amount payable under UIM coverage as the per person UIM limit, not the statutory minimum, and that the $50,000 amount in Indiana Code § 27-7-5-2(a) is only the statutory minimum of UIM coverage that must be provided and nothing more. The Court further found, while distinguishing prior cases, that MPC payments do not qualify as an “amount paid in damages” under Indiana Code § 27-7-5-5(c), as they are no-fault payments independent of any wrongdoing. Accordingly, the Court found that Erie’s policy provision allowing the UIM coverage to be set off by MPC payments violated Indiana Code § 27-7-5-5(c).

As to Craighead’s bad faith claim, Erie argued it reasonably relied on the MPC setoff provision in its policy and did not exert an unfair advantage over Craighead by initially refusing to provide the undisputed $40,000 in UIM coverage. Under Indiana law, insurers have a duty to deal with their insureds in good faith, which includes refraining from causing an unfounded delay, making an unfounded refusal to pay policy proceeds, exercising an unfair advantage to pressure an insured into settlement, and deceiving an insured. A good faith dispute as to the value of a claim and even poor judgement and negligence do not rise to the level of bad faith; rather, there must be a showing of conscious wrongdoing. Based upon the facts in the case, the Court found at least one genuine issue of material fact, namely, whether Erie acted in bad faith by refusing to pay the undisputed $40,000 in UIM coverage for around a year while conditioning payment on Craighead releasing her claim as to the disputed $10,000 in UIM coverage.

You can read the full opinion here.

On remand after the first appeal the trial court ordered American Family to pay Parkview the full amount of Parkview’s hospital lien, $95,541.88, and Parkview’s attorney’s fees. After American Family filed a motion to correct error, the trial court ordered that Parkview was not entitled to its attorney’s fees; however, the trial court ordered that Parkview was entitled to the full amount of its hospital lien despite American Family’s request that its liability be limited to $50,000.00, which was the Ohio plaintiffs’ underinsured policy limits. Parkview appealed raising three issues: (1) whether Parkview I required the trial court to enter judgment for Parkview on its original request for damages and attorney’s fees; (2) whether American Family forfeited its challenges to Parkview’s damages by raising those challenges under Indiana Trial Rule 59 on remand; and (3) whether Parkview was entitled to its attorney’s fees under the Hospital Lien Act. American Family cross-appealed raising just one issue, whether it was required to pay Parkview the full amount of Parkview’s lien, $95,541.88, or the $50,000.00 limit of its underinsured policy with its insured.

In Parkview II the Indiana Court of Appeals ultimately concluded that the amount of Parkview’s damages and whether it was entitled to attorney’s fees was not decided in Parkview I, American Family did not forfeit its right to challenge the trial court’s award of damages and attorney’s fees under Indiana Trial Rule 59, Parkview was not entitled to attorney’s fees under Indiana’s Hospital Lien Act, and American Family’s responsibility for damages was limited to $50,000.00.

First, Parkview argued on appeal when the Court in Parkview I found Parkview was “entitled to judgment as a matter of law” on its motion for summary judgment that meant Parkview was entitled to all the relief it requested in its motion for summary judgment. However, the Court noted Parkview’s motion for summary judgment raised two issues, one, whether Parkview had a valid lien, and two, the amount of Parkview’s damages. Reviewing its decision in Parkview I, the Court in Parkview II found that Parkview I only addressed the first issue. While Parkview argued alternatively that the doctrines of res judicata and law of the case applied, the Court disagreed. The Court also noted that the trial court had not made any findings as to damages, and therefore the Court could not have, in the first instance, made those findings on appeal in Parkview I.

Second, the Court disagreed with Parkview’s claim that American Family had forfeited its right to challenge the trial court’s award of damages and Parkview’s entitlement to attorney’s fees by raising those issues under Indiana Trial Rule 59 on remand. Indiana Trial Rule 59(A) provides two mandatory circumstances in which a motion to correct error is a prerequisite for appeal: (1) newly discovered material evidence, and (2) a claim that a jury verdict is excessive or inadequate. However, as noted by the Court, while providing mandatory situations in which a motion to correct error must be filed, Indiana Trial Rule 59 does not foreclose parties from raising other issues by way of a motion to correct error. Therefore, the trial court did not err in allowing American Family to raise its challenges to the trial court’s order by way of a motion to correct error.

Third, the Court found Parkview was not entitled to an award of attorney’s fees. The Court noted that Indiana follows the “American Rule” as to attorney’s fees under which parties are responsible for their own attorney’s fees absent a contrary agreement between the parties, a statute, or another rule providing for the payment of attorney’s fees by another party. The Court noted that Parkview had not really argued, and there was no evidence that, American Family had pursued any claim or defense that was frivolous, unreasonable, or groundless, or that American Family had otherwise litigated in bad faith, so as to support an award of attorney’s fees under Indiana Code § 34-52-1-1. The Court also found that Indiana’s Hospital Lien Act does not provide for attorney’s fees, and therefore, the trial court did not err in denying Parkview’s claim for attorney’s fees.

Lastly, on American Family’s cross appeal, the Court found that American Family’s responsibility to Parkview was limited to its underinsured exposure of $50,000.00. The Court determined that the Hospital Lien Act’s provision that “[t]he release or settlement of a claim with a patient by a person claimed to be liable for the damages incurred by the patient… without obtaining a release of the lien… entitles the lienholder to damages for the reasonable cost of the hospital care,” Ind. Code § 32-33-4-6(b), did not apply to American Family as the underinsured carrier. Rather, that provision only applies to a third-party tortfeasor or the tortfeasor’s insurance carrier. Since American Family insured the patient, and not “a person claimed to be liable for the damages incurred by the patient,” American Family’s exposure was limited to its insured’s policy limits. The Court reasoned that American Family’s failure to comply with the Act did not place Parkview in a better position than it would have been in had American Family complied with the Act.

Accordingly, the Court affirmed the trial court as to the trial court’s consideration of damages and attorney’s fees and its denial of Parkview’s request for attorney’s fees, reversed the trial court as to American Family’s responsibility for damages under the Act, and remanded the case with instructions for the trial court to award Parkview $50,000.00 plus prejudgment interest.

You can read the full opinion here.

Henthorn testified that prior to the accident she was feeling fine and in good health, but at the time of the accident she suddenly and unexpectedly felt light-headed, flushed, and dizzy and thereafter lost consciousness. She testified when she regained consciousness, she was in her stopped vehicle adjacent to a telephone pole. She testified she did not recall the crash. Henthorn’s doctor, who had treated Henthorn for her OTC deficiency for many years, testified that he believed Henthorn suffered a sudden change in mental status with loss of consciousness prior to the collision that resulted from an unforeseen elevation in her blood ammonia levels due to her OTC deficiency, which caused Henthorn to become incapacitated just before losing control of her car and crashing.

Patrick filed a response to Henthorn’s motion for summary judgment designating the affidavits from Henthorn and her doctor, Henthorn’s deposition, and the accident report. Patrick argued Henthorn’s deposition testimony conflicted with her affidavit and her doctor’s affidavit when she testified in her deposition that she had not experienced lightheadedness or loss of consciousness in the past ten years. Patrick also raised discrepancies as to her testimony about how she felt prior to the accident and her version of the accident. After a hearing, the trial court granted summary judgment in Henthorn’s favor, finding no inconsistencies in the designated evidence, or at most immaterial inconsistencies, and that Henthorn’s sudden physical incapacity was not foreseeable.

To win in a car accident case in Indiana based upon negligence, a claimant must show (1) a duty of care by the defendant driver, (2) breach of that duty of care, and (3) injuries resulting from the breach of the defendant’s duty. In this case, there was no dispute that Henthorn owed Patrick a duty of reasonable care in the operation of her vehicle and that Patrick suffered injuries because of the collision. The only dispute was whether Henthorn breached her duty of reasonable care.

Henthorn argued before the trial court and on appeal that she could not be found to have acted unreasonably when she lost consciousness prior to the collision and she did not act unreasonably when deciding to drive the day of the collision because her OTC deficiency was controlled, she felt fine the day of the collision, and she had no restrictions in place as to her ability to drive. Henthorn’s claimed “sudden medical emergency” is different than Indiana’s well-established sudden emergency doctrine, where the question was not whether Henthorn responded reasonably to an emergency situation, but whether Henthorn should have driven in the first place. However, Patrick argued on appeal that the issue in the case was whether Henthorn actually suffered a medical emergency, not whether Henthorn should have driven prior to the accident. Patrick argued Henthorn’s alleged inconsistent statements raised a genuine issue of material fact.

The Court of Appeals, however, disagreed with Patrick’s characterizations of Henthorn’s deposition testimony. The Court found that when Henthorn testified in her deposition that she had not had episodes from her OTC deficiency in the past ten years, she meant she had not had episodes from her OTC deficiency in the past ten years prior to the collision. The Court found Henthorn’s deposition testimony as to her past medical history did not create a genuine issue of material fact as to whether she suffered a medical emergency at the time of the collision. The Court found the designated evidence, including Henthorn’s affidavit, her doctor’s affidavit, and her deposition testimony demonstrated she suffered a medical emergency immediately prior to the accident, and Patrick presented no contradicting evidence. Furthermore, the Court found Patrick designated no evidence showing her medical emergency was reasonably foreseeable. Therefore, the Court of Appeals held the trial court did not err in granting summary judgment in Henthorn’s favor.

You can read the full opinion here.

In the same blog, we also wrote about the Indiana Court of Appeals opinion in Staat v. Indiana Dep’t of Transp., in which Chad Staat and Julie Statt (collectively the “Staats”) filed a personal injury lawsuit against INDOT arising from injuries Chad sustained when his vehicle hydroplaned on accumulated, pooling, or puddled water on I-74, left the roadway, and collided with a tree. In Staat, as in Ladra, the trial court granted summary judgment in favor of INDOT finding INDOT immune from liability for a temporary condition resulting from weather under the ITCA. However, in Staat, unlike in Ladra, the Court of Appeals reversed, finding there was a genuine issue of material fact as to whether the roadway condition was temporary so as to entitle INDOT to immunity, and INDOT had not otherwise negated its duty as a matter of law.

The Indiana Supreme Court granted transfer in Ladra and in a divided opinion modified its rule in Catt and reversed the trial court’s grant of summary judgment in favor of INDOT on the issue of immunity. The Court’s opinion first reviewed the common-law origins of sovereign immunity, the abrogation of such by Indiana courts, and legislative codification of governmental immunity in the ITCA; second, it analyzed and modified the rule in Catt; third, it discussed why legislative acquiescence and stare decisis do not forbid the Court’s modification of the rule in Catt, with discussion of policy arguments advanced by INDOT; and last, it analyzed the Court’s new rule as to the facts in Ladra, finding a genuine issue of material fact under the Court’s new rule. Under the Court’s new rule, “when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions, and when it has ample opportunity to respond, immunity does not apply simply because the defect manifests during inclement weather.”

The Court in Ladra reasoned that the question as framed in Catt as to whether a condition was “temporary” encompassed only the particular condition causing injury, and thus, by preventing courts from considering the government’s prior negligence in the design or maintenance of a thoroughfare, the rule in Catt effectively granted blanket immunity to the government whenever there was inclement weather, despite the government’s long-standing duty to exercise reasonable care to keep roadways reasonably safe. The Court believed the rule in Catt effectively sanctioned negligent government conduct. The Court reasoned that the ITCA provides immunity when injuries result from a “temporary condition of a public thoroughfare… that results from weather,” but not from government negligence “along with a temporary condition of a public thoroughfare… that results from weather.” While acknowledging that the Court’s new rule effectively merges liability and immunity inquiries with negligence factoring into the analysis, the Court noted that immunity does not apply when a condition or defect in a roadway is “not caused by weather.” As to the facts in Ladra, the Court found they showed that the condition of the roadway resulted from a known problem with the highway drainage system which INDOT had ample time to correct.

On the same day the Indiana Supreme Court issued its opinion in Ladra, the Court also issued an opinion in Staat, in which it, unlike in Ladra, affirmed the trial court’s grant of summary judgment on the issue of immunity. The Court distinguished the cases as Ladra turning on a question of causation, whereas Staat turned on a question of whether the weather condition was “temporary.” The Court noted that immunity under the ITCA as to temporary weather conditions requires two things: the injuries result from a condition (1) that is “temporary” and (2) that is “caused by weather.” In Staat, the Court found the government had established the weather-induced condition continued to worsen at the time of the accident, with the government’s “period of reasonable response,” which extends at least until the condition is stabilized and responses completed, not having expired. Noting the Court’s decision in Ladra, the Court in Staat found no evidence that prior government conduct contributed to or caused the accident. There was an ongoing storm causing flooded roadway conditions, not just a single large puddle, and low visibility, establishing the weather condition had not stabilized. The Staats, in turn, did not put forth any evidence that the road condition had stabilized. As such, the Court found the road condition was “temporary,” and it was the result of weather, not prior government conduct as in Ladra. Therefore, the Court affirmed the trial court’s entry of summary judgment in favor of INDOT on immunity.

You can read the Indiana Supreme Court’s opinion in Ladra here.

You can read the Indiana Supreme Court’s opinion in Staat here.

The Indiana Supreme Court granted transfer in Reece and adopted a bright-line rule: landowners owe a duty to passing motorists on adjacent highways not to create hazardous conditions that visit themselves upon the roadway; but when a land use or condition that may impose a visual obstruction is wholly contained on a landowner’s property, there is no duty to the traveling public. Reece v. Tyson Fresh Meats, Inc., 173 N.E.3d 1031, 1034, 1041 (Ind. 2021).

In adopting this bright-line rule, the Indiana Supreme Court surveyed numerous prior landowner negligence cases. Factors noted in the prior cases included harms caused by conditions contained on land and those intruding upon the roadway, natural versus artificial conditions, and population density. As to its bright-line rule, the Court specifically noted that Indiana’s state and local legislatures could enact laws imposing different duties on landowners. The Court also noted that its decision did not apply to situations where a motorist comes in contact with a condition wholly contained on the land.

In applying the bright-line rule to the facts in Reece, the Indiana Supreme Court affirmed the trial court’s grant of summary judgment for Tyson. In Reece, it was undisputed that the tall grass on Tyson’s property was wholly contained to the property and did not intrude upon the roadway. Thus, Tyson did not owe a duty to motorists traveling on the adjacent highway.

Justices Goff and David concurred in the result but with a separate opinion. They did not support the Court’s adoption of a bright-line rule that denies recovery to all travelers injured due to obstructed views from conditions wholly contained on a landowner’s property. In their view, the Court’s rule will prevent trial court judges from exercising discretion. They also noted a concern as to the potential for a patchwork of local ordinances resulting in less predictability. Justices Goff and David would have preferred a standard providing for a duty to refrain from creating visual obstacles that unreasonably imperil the users of adjacent public roadways, even if from conditions wholly confined to the property. However, they nonetheless concurred because there was no evidence in Reece establishing that the tall grass unreasonably imperiled travelers on the roadway.

You can read the full opinion here.

The parties thereafter engaged in some discovery, including defense counsel taking Jones’ deposition. However, discovery responses on behalf of Pumphrey were delayed because defense counsel was unable to locate Pumphrey. Almost two years after the collision, an associate with defense counsel’s firm discovered that Pumphrey was employed at a different Domino’s store. The associate spoke with Pumphrey and obtained his new contact information, which was different than what defense counsel had been using. Other than defense counsel’s initial contact with Pumphrey, Pumphrey had not received any of defense counsel’s other communications. When the associate spoke and subsequently met with Pumphrey, Pumphrey disputed the police report, supplied the contact information of a potential witness, assisted the associate in providing discovery responses, and indicated he was still treating as a result of injuries he sustained in the collision and wanted to assert a claim for his own personal injuries from the accident.

After providing discovery responses on behalf of Pumphrey, defense counsel obtained authority from Domino’s to represent Pumphrey in his individual counterclaim. One year and nine months after Jones filed her complaint, and right before the statute of limitations, defense counsel filed a motion to amend Pumphrey’s answer to assert the counterclaim. Prior to the trial court ruling on Pumphrey’s motion to amend and with the statute of limitations looming, defense counsel went ahead and filed the counterclaim, to which Jones objected. After the trial court denied the motion to amend but before Pumphrey received notice of the denial, Pumphrey filed a reply to Jones’ objection. Pumphrey then requested the trial court reconsider its order, but the trial court again denied the motion to amend. Pumphrey thereafter appealed to the Indiana Court of Appeals.

Indiana Trial Rule 13(A) governs compulsory counterclaims and requires a defendant having a counterclaim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim to assert the counterclaim in the defendant’s answer. Indiana Trial Rule 13(F) provides that when a defendant fails to properly assert a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the defendant may seek permission from the court to assert the counterclaim by amendment. Under Indiana Trial Rule 15(A) dealing with amendments to pleadings, belated amendments to pleadings such as an answer are allowed with permission of the trial court, and permission is to be given when justice so requires. In determining whether justice requires a court to allow an amendment, trial courts should consider factors such as undue delay, bad faith, dilatory motive on part of the movant, and prejudice to the non-movant. A trial court’s decision to allow or disallow belated counterclaims is reviewed for an abuse of discretion.

On appeal, the Indiana Court of Appeals recognized that denying Pumphrey the ability to file his compulsory counterclaim would in effect bar his claim from ever being heard. The Court further noted that discovery was still ongoing in the case, Pumphrey had not been personally involved in the litigation, Pumphrey was not involved in the retention of defense counsel or in responding to Jones’ complaint, Pumphrey had been dealing with his injuries from the accident, a domestic breakup, and a bankruptcy, Pumphrey had not provided his side of the story, once located Pumphrey immediately and fully complied with defense counsel, and defense counsel promptly filed the motion to amend and counterclaim upon locating Pumphrey and hearing his story.

Based upon these facts, the Court of Appeals found Pumphrey had not acted with bad faith or dilatory motive, and furthermore, found that despite any delay caused by allowing Pumphrey’s counterclaim, Jones would not suffer undue prejudice, with the Court noting, in particular, Jones was going to have to litigate her comparative fault for the collision in any case. The Court, therefore, concluded that the trial court abused its discretion in denying Pumphrey’s motion to amend to assert his counterclaim because “justice require[d]” the granting of the motion. The Court directed the trial court to permit the amendment on remand. Judge Kirsch of the Indiana Court of Appeals dissented from the majority because he believed the majority was reweighing the evidence and substituting its judgment for the trial court, which he believed did not abuse its discretion.

You can read the full opinion here.

At the time of the appeal in this case, Angell was the sole remaining defendant. To succeed in their claim against Angell, the Poppes were required to prove (1) Angell owed them a duty of care, (2) Angell breached that duty, and (3) Angell’s breach proximately caused their injuries. Whether a duty exists is a question of law for the court to decide, and absent a duty, there can be no breach and therefore no liability. Angell moved for summary judgment in court arguing that it owed the Poppes no duty and therefore was entitled to judgment as a matter of law. After a hearing, the trial court entered summary judgment in favor of Angell, and the Poppes appealed.

To decide whether Angell owed the Poppes a duty, the Indiana Court of Appeals was first required to decide whether to apply the landowner liability analytical framework in Burrell v. Meads (based upon Restatement (Second) of Torts Section 343) that applies when injuries result from a condition on land, or the analytical framework in Goodwin v. Yeakle’s Sports Bar & Grill, Inc. that applies when injuries result from the criminal acts of a third person. The Burrell analysis provides that a landowner is responsible for injuries to invitees resulting from a condition on land but only if the landowner knew, or should have known, of the condition and that it involved an unreasonable danger of harm, if the landowner should have expected its invitees would not realize the danger or protect themselves against it, and if the landowner failed to exercise reasonable care to protect its invitees. The Goodwin foreseeability analysis of duty in the case of criminal acts of third parties causing injuries focuses on the “broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence,” and turns on “whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.”

Here, the Court of Appeals agreed with Angell that the Goodwin analysis applied because the Poppes were injured, not as a result of a condition on land, but as a result of the criminal acts of a third party, the intoxicated truck driver. Applying the Goodwin analysis, the Court found the broad type of plaintiff was a grocery store patron and the broad type of harm was “a random intoxicated driver losing control of his vehicle and striking a patron,” and Angell could not have known or reasonably foreseen the Poppes would be struck by an intoxicated driver in the store parking lot. The Court held Angell had no duty to protect the Poppes from the random criminal acts of an intoxicated driver, and therefore, affirmed the judgment of the trial court in favor of Angell dismissing the Poppes’ personal injury claims against it.

You can read the full opinion here.

Daniel Gladstone (“Gladstone”) filed a lawsuit against Christina Carli (“Carli”) and his own insurance company, West Bend Mutual Insurance Company (“West Bend”), seeking damages for injuries he sustained, including a Colles fracture, in an automobile accident with Carli. Carli paid her automobile liability policy limits of $50,000.00 and was dismissed from the case. Gladstone sought damages from West Bend under his underinsured insurance coverage, which had a policy limit of $250,000.00. Gladstone’s medical bills were $14,000.00 but had been reduced to just under $2,000.00. The trial court allowed West Bend to introduce evidence of Gladstone’s reduced medical bills at trial, over Gladstone’s objection and despite the fact that Gladstone was not seeking medical expenses in the case, and the jury returned a verdict of $0.00 for Gladstone.

Gladstone appealed the trial court’s decision admitting his medical bills into evidence. Under Indiana law, a trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion resulting in prejudicial error, which is very deferential to trial courts. A party seeking reversal of a trial court’s evidentiary ruling must show the trial court’s decision was clearly against the logic and effect of the facts and circumstances, or that the trial court misinterpreted the law.

Indiana Evidence Rule 401 provides that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Ind. R. Evid. 401. “Irrelevant evidence is not admissible.” Ind. R. Evid. 402. Under Indiana Evidence Rule 403, a court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Ind. R. Evid. 403.

Gladstone argued the trial court abused its discretion when it admitted his medical bills at the trial of his car accident case because his medical bills were irrelevant to the question of his pain and suffering and he was not claiming them as damages, and even if they were relevant, any probative value was substantially outweighed by the danger of unfair prejudice or misleading the jury. It is common, for instance, for attorneys, insurance companies, judges and juries, wisely or not, to use objective medical bills as an anchor or multiplier or reference point for calculating subjective damages like pain and suffering. Here, because Gladstone’s reduced medical bills were so low, he wanted to have them excluded as evidence because they might tend to bring down any jury award. West Bend argued that medical bills are generally relevant to the question of pain and suffering, and in this case, their probative value was not substantially outweighed by the danger of unfair prejudice or misleading the jury.

In a matter of first impression in Indiana, the Indiana Court of Appeals refused to adopt any bright line rule that evidence of medical bills is irrelevant in all cases in which they are not sought as damages. The Court opined that “[c]ommon sense and experience dictate that a more serious injury generally brings with it greater medical expenses as well as greater pain and suffering.” The Court found Gladstone’s low medical bills “tend[ed] to establish that he has not experienced extensive pain and suffering from his injuries” and that Gladstone was free to, and did, counter that argument with other evidence. As to Gladstone’s argument that the probative value of the medical bills was substantially outweighed by the danger of unfair prejudice or misleading the jury, the Court noted that exclusion of evidence on this basis under Indiana Evidence Rule 403 is an extraordinary tool to be used sparingly and found Gladstone had failed to establish the danger of unfair prejudice or misleading the jury substantially outweighed the relevance of his medical bills.

Ultimately, under the facts of this case, the Court found that the trial court did not abuse its discretion in admitting evidence of Gladstone’s medical bills into evidence. The Court also found that, even if it was error for the trial court to admit the medical bills, Gladstone could not show any prejudicial error because he could not establish the jury found him entitled to no compensation for his pain and suffering, as the jury heard during trial that he had already received $50,000.00 from Carli. Furthermore, the Court found that Gladstone had waived any error on appeal with regards to evidence of settlement negotiations presented at trial by not seeking an admonition or mistrial and that he waived any error with regards to evidence of insurance payments in his medical bills because he failed to make a specific objection with regards to collateral source evidence.

You can read the full opinion here.

The plaintiff in Catt was injured when his vehicle slid and crashed into a ditch in Knox County caused by a washed-out culvert following a rainstorm the night before. The culvert had washed out many times prior to Catt’s car accident and had been repaired. The plaintiff alleged Knox County had negligently inspected, designed or maintained the roadway. However, the Indiana Supreme Court held Knox County, despite any negligence, was immune from liability under section 34-13-3-3(3) of the Indiana Tort Claims Act, which provides “[a] governmental entity… is not liable if a loss results from… [t]he temporary condition of a public thoroughfare… that results from weather.” Ind. Code § 34-13-3-3(3). The Court framed the question as whether the washed-out culvert was due to weather and whether Knox County had the opportunity to repair the washed-out culvert and failed to do so (i.e., whether it was temporary versus permanent), regardless of any prior negligent inspection, design or maintenance or the frequency with which the culvert may have washed out on prior occasions. Since the washed-out culvert was caused by weather, Knox County had not received notice that it had washed out on this occasion prior to the collision, and Knox County was busy repairing other washed-out culverts and had previously repaired this one, the Court found the washed-out culvert was caused by weather and was a temporary condition.

In subsequent cases based on Catt, the Indiana Supreme Court has further explained that governmental immunity for temporary conditions resulting from weather applies during the “window of reasonable response” to the road condition. That window lasts until the condition stabilizes. That is, if the condition continues to worsen or is still evolving, the condition has not stabilized and is therefore deemed temporary, and the government is immune.

The Indiana Court of Appeals reviewed Catt in the recent case of Ladra v. State, 2021 WL 325849 (Ind. Ct. App. Jan. 27, 2021). In this case, Tracy Ladra (“Ladra”) filed a lawsuit against the State of Indiana and the State of Indiana Department of Transportation (collectively “INDOT”) after she sustained injuries when her car hydroplaned as a result of flooding on I-94 in Portage, Indiana. The flooding occurred due to a clogged drainage system that caused consistent flooding in the area with an officer stating he had previously contacted the state highway maintenance crew between 10-15 times to unclog the drains. Ladra alleged INDOT was negligent for failing to provide warnings and failing to have proper drainage and properly maintain the drains. The INDOT filed a motion for summary judgment, which the trial court granted, finding INDOT was immune.

On appeal Ladra argued that INDOT was not entitled to immunity because her collision was caused as a result of the clogged drainage system and not the flooded roadway, or at least that the flooded roadway was not the sole cause of the accident. The Indiana Court of Appeals disagreed finding the flooded roadway was the direct result of the clogged drainage system and there was no evidence that the clogged drainage system was not the result of rain and collecting debris during the rain.

Ladra also argued that the clogging of the drainage system was not a temporary condition, but rather the permanent condition of the clogged drainage system that caused flooding whenever it rained. The Court of Appeals, however, discussing and relying on Catt, noted that factors such as poor inspection, design or maintenance or the frequency of prior events were irrelevant to the question of whether a condition was temporary or permanent. And because there was no evidence the weather had stabilized or the INDOT had an opportunity to respond, having no notice of the flooding before the accident, the Court found the facts in Ladra fell within the scope of Catt and the flooded roadway was a temporary condition providing the INDOT with immunity.

In so holding, the Court of Appeals stated that Catt had created circular reasoning whereby unaddressed defects in roadways that only cause issues during weather events are irrelevant to whether the issues arising therefrom are deemed temporary or permanent. In other words, under Catt, governments are entitled to immunity even for negligently failing to address a known defect in a roadway so long as the defect only materializes during a weather event. The Court in Ladra stated that Catt removed its ability to consider INDOT’s knowledge of the frequency of prior events in determining whether the condition was temporary or whether the accident was actually the result of the weather or the failure to address a condition prior to the weather event. According to the Court of Appeals, Catt “not only allows for the State to be negligent, it encourages it” and “gives the State no incentive to attempt to implement remedial or preventative measures…”

A few days after deciding Ladra, the Indiana Court of Appeals issued a decision in a similar case, Staat v. Indiana Dep’t of Transp., 2021 WL 325670 (Ind. Ct. App. Jan. 28, 2021). In this case, Chad Staat and Julie Statt (collectively “Staats”) filed a lawsuit against the INDOT arising from injuries Chad sustained when his vehicle hydroplaned on accumulated, pooling, or puddled water on I-74, left the roadway, and collided with a tree. As in Ladra, the trial court granted the INDOT’s motion for summary judgment based upon immunity for a temporary condition resulting from weather. However, unlike Ladra, the Court of Appeals in Staat found that the INDOT had not designated evidence showing that the collision resulted from a temporary condition.

The INDOT argued the accumulated water on I-74 was due to an ongoing rainfall, which had gotten worse immediately prior to the collision and which had created a condition that had not stabilized. Although it had been raining the night before the collision and was raining at the time of the collision, the Staats argued that despite ongoing rain, the INDOT had not shown the accumulated, pooled, or puddled condition of I-74 had not in fact stabilized, noting when puddles fill up, they cannot continue to fill up and eventually stabilize and then dissipate. The Court agreed with the Staats, finding a reasonable inference that any accumulated, pooled, or puddled water had reached its maximum capacity, and the INDOT had failed to show whether the roadway condition had stabilized one way or the other. Thus, the Court found a genuine issue of material fact as to whether the condition was temporary so as to entitle the INDOT to immunity. The Court also found the INDOT had not negated breach of its duty as a matter of law due to it having received no notice of the accumulated, pooled, or puddled water, as the question is not just whether the INDOT knew of the water, but also whether the INDOT should have known of the water.

In so holding, the Court of Appeals in Staat also voiced its concern with the analytical framework set forth in Catt. The Court noted its agreement with Ladra that Catt allows and encourages negligence taking away any incentive for remedial or preventative measures to address dangerous conditions that only manifest during weather events. Fortunately, while the Court in Staat was bound by the precedent in Catt, it was able to reach a more reasoned result than in Ladra.

You can read the opinion in Ladra here.

You can read the opinion in Staat here.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger. Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle. Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat. Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop. It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

Jeffrey Cutchin, as personal representative of his wife and daughter’s estates, followed Indiana’s procedural requirement of filing a proposed complaint with the Indiana Department of Insurance alleging medical malpractice against the prescribing physician and clinic, as well as filing a malpractice claim in the United States District Court for the Southern District of Indiana, naming the prescribing physician and clinic anonymously. Cutchin alleged the provider breached the standard of care by failing to warn Watson of the dangers of operating a vehicle while under the influence of the prescribed medications, failing to screen her for the cognitive impairment caused while taking the medications, failing to adjust the medications to address potential muscle control issues, and by failing to ask the Indiana BMV to assess Watson’s driving ability. Cutchin subsequently amended his federal court complaint to request a declaration concerning the application of the Indiana Medical Malpractice Act (“MMA”) to his claim.

At the time of the alleged malpractice, the Act capped recoverable damages at $1.25 million, with the physician responsible for procuring $250,000 of coverage and paying a surcharge to the Patient’s Compensation Fund (“Fund”), which Fund may be accessed after collection of damages above the physician’s $250,000 exposure. The Fund intervened in the federal district court case, taking the position that the Act did not apply and that the Fund should not have to pay any excess damages.

Before the district court ruled on the applicability of the Act, the district court convened a settlement conference at which the Fund was represented. At the conference, the physician and Cutchin reached a settlement wherein the physician agreed to pay the maximum $250,000 for which he would have been responsible under the Act. Although the Fund did not contribute to the settlement, all parties, including the Fund, executed a memorandum of agreement “which acknowledge the settlement, called for termination of the medical review panel proceedings as to the Physician and Clinic…and noted Cutchin was reserving his right to pursue excess damages from the Fund.”

After the Physician and Clinic were dismissed from the case, Cutchin filed a petition for excess damages from the Fund in the still-pending district court matter. The parties then filed briefs addressing the Fund’s contention that the MMA did not apply. The district court rejected Cutchin’s argument that the settlement between the physician and Fund precluded the Fund from contesting applicability of the Act. And the court found that neither Cutchin, Claudine, nor Adelaide satisfied the definition of “patients” of the physician and clinic under the MMA. Thus, Cutchin was barred from seeking excess damages from the Fund.

Cutchin appealed the decision to the Seventh Circuit Court of Appeals. The Seventh Circuit examined Indiana law and found conflicting decisions as to both issues ruled upon by the district court. First, as to the question of whether a settlement with a medical provider bars the Fund from challenging the applicability of the Act, Cutchin argued that once a claimant has established an underlying limits settlement and is pursuing excess damages, the MMA specifically provides that “the court shall consider the liability of the health car provider as admitted and established.” The Fund argued that Indiana cases have recognized that claimants must first pass a threshold inquiry of whether the subject matter of the claim constituted medical malpractice in the first instance under the MMA. The Seventh Circuit noted Indiana decisions dismissing past claims against the Fund when the physicians who settled the case were determined not to have qualified as providers under the MMA for failing to pay the requisite surcharge (Wisniewski v. Bennett, 716 N.E.2d 892 (Ind. 1999)) and when the subject matter of the claim—for example, sexual molestation of a patient by a hospital technician or a patient’s loss of enjoyment of life for being imprisoned for killing for people when he was released from the hospital—did not “sound in malpractice” (Murphy v. Mortell, 684 N.E.2d 1185 (Ind.Ct.App. 1997) and (Rimert v. Mortell, 680 N.E.2d 867 (Ind.Ct.App. 1997)). However, the Court found language in decisions elsewhere, including Dillon v. Glover, 597 N.E.2d 971 (Ind.Ct.App. 1992), which had been followed by Rimert, suggesting to the Court that Glover had decided “by the express terms of the MMA, the Fund’s liability was established by the settlement with the physician; the matter of proximate cause could therefore not be litigated by the Fund.”

The Court noted it could understand how under these decisions the Fund could believe it could still raise the issue of applicability of the MMA, while at the same time noting that “there is no real doubt that Cutchin’s claim is one founded in malpractice…the Physician was providing medical care to Watson, Cutchin’s claim arises from that care and challenges the propriety of the Physician’s acts and omissions in providing that care, and in order to assess whether the Physician breached his professional obligations to Watson, a factfinder would necessarily have to reference the medical standard of care prevailing in the local community.” The Court further noted that “Indiana recognizes a physician does have a duty to warn and monitor his patient as to the side effects of prescribed medications that may foreseeably endanger not only the patient, but third parties.”

Having determined that clarification was needed as to the effect of the underlying settlement in stopping a threshold challenge by the Fund, the Court then noted some confusion under Indiana decisions as to who constitutes a “patient” under the MMA. Notably, the MMA definition of patient “includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.” Cutchin noted he falls within this broad definition of a patient and that “it would be ironic if the result of this case would be to limit the recovery of one who was actually treated by a provider (like Watson) while allowing unlimited recovery by third parties injured as a result of the same treatment (like C[l]audine and Adelaide).” The Court again found that although Indiana cases addressed the question of a physician’s duty to third parties and who constitutes a patient under the MMA, “they do not supply a clear answer as to whether Cutchin may pursue relief under the MMA.”

Judge Ilana Rovner’s opinion in Cutchin thoroughly navigates several Indiana cases which she ultimately and quite understandably deemed simply too conflicting to reconcile. In certifying the questions, Judge Rovner notes that questions are “likely to recur” as an accident caused by side effects from a prescription medication is “hardly unusual.” Moreover, she notes it will be quite helpful to third-party claimants, healthcare providers, and their insurers, as well as the “bench, bar, and citizenry of Indiana” to have correct answers to the certified questions. Indeed, it will be, and we look forward to discussing the Indiana Supreme Court’s ultimate opinion on these issues.

McGowen filed a motion for summary judgment asking the trial court to find that he was shielded from liability under Indiana’s Good Samaritan Law (“GSL”), Indiana Code § 34-30-12-1. The GSL states in pertinent part that “a person who comes upon the scene of an emergency or accident… and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person; except for acts or omissions amounting to gross negligence or willful or wanton misconduct.” Ind. Code § 34-30-12-1(b). The trial court found that McGowen was rendering emergency care when the collision occurred but there was a genuine issue of material fact for the jury as to whether his stopping in the road was grossly negligent or willful or wanton misconduct. McGowen and Montes both appealed.

Montes argued on appeal that McGowen was not rendering “emergency care” and there was no emergency at the time of the collision. As a matter of first impression, the Indiana Court of Appeals held that stopping and asking if a person who has been in an accident needs help is “emergency care,” reasoning that “emergency care” as outlined in the statutory language of the GSL encompasses actions other than direct medical treatment or first aid and includes an “act or failure to act to provide or arrange for further medical treatment or care for the injured person.” Ind. Code § 34-30-12-1(b)(2). As to whether an emergency existed, the Court relied upon previous precedent defining an “accident” as a “sudden calamitous event,” and held that McGowen coming upon the scene of an accident with a potentially injured person qualified as an emergency under the GSL.

McGowen argued on appeal that the trial court, while correct in finding the GSL applied, erred in finding an issue of fact as to whether he was grossly negligent or had engaged in willful or wanton misconduct. Gross negligence has been defined as a conscious, voluntary act or omission in reckless disregard of the consequences to another party. Willful and wanton misconduct arises when a person has knowledge of impending danger or consciousness of a course of misconduct calculated to result in probable injury and is indifferent to the consequences of his conduct. Montes argued McGowen’s actions of not pulling off the roadway, not activating his hazard lights, and violating various traffic regulations constituted gross negligence or willful or wanton misconduct. The Court of Appeals disagreed and found as a matter of law that McGowen’s conduct did not rise to either standard. McGowen was driving slowly before the collision, stopped with his brake lights on, and checked his side mirrors for traffic behind him with the collision occurring within seconds of him stopping in the road. The Court found McGowen’s actions were at worse mere negligence and without a reckless disregard or indifference to the consequences of his conduct.

The Court of Appeals affirmed in part, reversed in part, and remanded the case to the trial court with instructions to enter summary judgment in favor of McGowen against Montes.

You can read the full opinion here.

To prove negligence in Indiana, a plaintiff must show the defendant owed a duty to the plaintiff, the defendant breached that duty, and the breach proximately caused injuries to the plaintiff. Whether one party owes another party a duty is generally a question of law for the court to decide. If there is no duty owed by the defendant, there can be no breach and therefore no negligence. Although Moistner certainly owed Reece a duty under the rules of the road applicable to motorists, whether a landowner owes a motorist operating a vehicle on a public roadway presents an interesting question for auto accident attorneys and the courts.

Under well-established Indiana law, a landowner owes a duty to the traveling public to exercise reasonable care in the use of his property so as not to interfere with the safety of public travelers on adjacent roadways. Courts have, for instance, found a duty of care on behalf of a railroad when its employees started a fire that caused smoke to blow over a nearby road obstructing the view of motorists, on behalf of a manufacturing plant that created a congestion of vehicles exiting the plant resulting in a collision, and on behalf of a landowner whose tree fell on a roadway. However, there is generally no liability for harm caused outside land by a natural condition on the land, except for unreasonable risks of harm from trees in urban areas, and even with respect to artificial conditions, there is no liability except for the creation of hazardous conditions that intrude upon a roadway. Thus, there is no duty where the activity is wholly contained on a landowner’s property.

Here, the Court of Appeals found the alleged dangerous condition created by the tall grass on Tyson’s property was confined to the property, and therefore, Tyson owed no duty to travelers as a result of the grass growth. The Court also rejected Reece’s argument that Tyson assumed a duty of care, which can occur when one is negligent in undertaking to perform services for another because one of Tyson’s employees had mowed the grass for many years prior to retiring, which occurred two years before the incident. The Court noted there was no evidence the employee’s mowing was for motorists and in any case, the employee had ceased mowing when he retired and therefore was not undertaking to provide any services in the two years prior to the incident. Lastly, the Court rejected Reece’s argument that the trial court erred in two evidentiary rulings excluding an interrogatory response from Moister that was duplicative of other evidence and a part of Reece’s expert’s affidavit that was speculative given the testimony of a single eyewitness.

You can read the full opinion here.

The Ohio trial court granted a motion to join Parkview as a party plaintiff in the Ohio action, ordering Parkview to appear or otherwise waive its rights. Parkview disputed that the Ohio court had subject matter jurisdiction over its claim and did not appear in the action. After settling the claim, Willis filed a motion to enforce the settlement agreement, which the Ohio trial court granted, ordering American Family to pay Willis $50,000.00 and ordering Willis to execute a hold harmless agreement with respect to any remaining valid liens. Parkview was not notified of the motion to enforce settlement agreement or order. The Ohio case was thereafter dismissed with prejudice.

Parkview then filed a complaint in Allen County, Indiana against Willis and American Family. Default judgment was entered against Willis. American Family and Parkview filed motions for summary judgment. American Family argued Parkview’s claim was barred based upon the proceedings in Ohio. Parkview argued that American Family violated the Hospital Lien Act. The trial court denied American Family’s motion finding the Ohio court did not have subject matter jurisdiction over Parkview’s hospital lien claim. The trial court also denied Parkview’s motion finding there existed a genuine issue of material fact as to whether American Family was justified in complying with the Ohio trial court’s order requiring it to pay the settlement proceeds to Willis.

Indiana’s Hospital Lien Act serves to ensure hospitals are compensated for their services and to provide notice of a hospital’s right to recover directly from a settlement or judgment. To perfect a hospital lien, the hospital must file the lien in the office of the recorder of the county in which the hospital is located within 90 days after a person is discharged from the hospital and no later than the date of a final settlement, compromise or resolution, and provide notice of the lien to each person claimed to be liable, to the attorney representing the patient, and to the department of insurance. Ind. Code § 32-33-4-4. A hospital lien is not applicable to certain persons, including those covered by worker’s compensation laws and Medicare, or claims for medical payments coverage, is inferior to any attorney’s lien, must first be reduced by benefits to which the patient is entitled under health insurance and reflect a credit for insurance payments and adjustments, and must be reduced on a pro-rata basis to ensure the patient receives at least 20% of the full settlement or compromise. Ind. Code § 32-33-4-3. Most importantly to this case, a person contesting a hospital lien may do so by filing a motion to quash or reduce the claim in the circuit court, superior court, or probate court in which the lien was perfected, Ind. Code § 32-33-4-4(e), and a hospital lienholder is entitled to damages for the reasonable cost of the hospital’s treatment if a person claimed to be liable for damages enters into a release or settlement with the patient after the lien has been filed and without first obtaining a release of the hospital lien, Ind. Code § 32-33-4-6.

There was no dispute in this case that Parkview properly perfected its lien pursuant to the Hospital Lien Act and that American Family paid the settlement proceeds to Willis without first satisfying Parkview’s hospital lien. While American Family noted that hospitals are required under the Hospital Lien Act to enter in writing their intention to hold a lien in the docket where a judgment is entered, Ind. Code § 32-33-4-1, the Court of Appeals found this section inapplicable as the Ohio case was dismissed with no judgment entered. Therefore, the two issues before the Court were whether the Ohio court’s orders were entitled to full faith and credit by the Indiana trial court, and whether justification was a defense to American Family’s failure to follow the Hospital Lien Act.

The United States Constitution requires state courts give full faith and credit to the public acts, records, and judicial proceedings of every other state. U.S. Const. art. IV, § 1. However, out-of-state judgments can be collaterally attacked based upon the lack of personal or subject matter jurisdiction, such that full faith and credit is not required, so long as the issue of jurisdiction was not fully and fairly litigated and finally decided in the first state. Here, while not arguing that the Ohio trial court had subject matter jurisdiction, as the Hospital Lien Act required any dispute of the hospital lien be raised in the circuit, superior or probate court in which the lien was filed, American Family argued subject matter jurisdiction was fully and fairly litigated in the Ohio court.

The Indiana Court of Appeals disagreed that subject matter jurisdiction had been fully and fairly considered and finally decided by the Ohio court, noting that Willis and American Family were aware of Parkview’s subject matter jurisdiction concerns, Parkview did not participate in the Ohio proceedings, and there was no indication the Ohio court considered Parkview’s subject matter jurisdiction concerns and the controlling provisions of the Hospital Lien Act. Therefore, the Court found the Ohio court’s orders were not entitled to full faith and credit and were void with no effect.

As to justification as a defense, the Indiana Court of Appeals disagreed with the Indiana trial court that a genuine issue of material fact existed, and instead considered the issue as a legal one. Based upon its decision that the Ohio court orders were void with no effect, the Court of Appeals found that such orders could not therefore provide a basis for justification as to American Family’s failure to comply with the Hospital Lien Act. The Court found Parkview’s lien was properly perfected, the lien was not contested by American Family in Allen County, and American Family paid the settlement proceeds without first satisfying Parkview’s hospital lien in violation of the Hospital Lien Act. The Court accordingly affirmed the Indiana trial court’s denial of American Family’s motion for summary judgment but reversed the trial court’s denial of Parkview’s motion for summary judgment and remanded the case for further proceedings consistent with the opinion.

You can read the full opinion here.

When reviewing the appropriateness of an instruction, reviewing courts consider whether (1) the instruction correctly states the law, (2) the instruction is supported by evidence in the record, and (3) the instruction’s substance is covered by another instruction. The first consideration is a legal question reviewed without giving any deference to the trial court, whereas the second and third considerations are reviewed for an abuse of discretion. To prove a failure to mitigate, a defendant must prove by a preponderance of the evidence that (1) the plaintiff did not exercise reasonable care in mitigating post-injury damages, and (2) the failure to exercise reasonable care caused the plaintiff to suffer harm not attributable to the defendant’s negligence. When a plaintiff fails to follow medical advice aggravating his injuries, a defendant must show such failure caused discrete, identifiable harm arising from that failure and not attributable to the defendant. Courts consider whether the defendant has produced enough evidence of causation to warrant an instruction. Expert opinion is often, but not always, required, with courts considering whether the medical issue is within the common experience, observation, or knowledge of a layman.

The Court of Appeals reversed the trial court and remanded for a new trial finding the evidence insufficient to support a failure to mitigate jury instruction. The Indiana Supreme Court, however, disagreed, noting under Indiana law to warrant the giving of an instruction a defending party need only show some evidence—a “scintilla”—of each element of the underlying claim or defense. Here, the trucking crash plaintiff Humphrey conceded the existence of evidence showing he had failed to exercise reasonable care to mitigate his post-injury damages; the only question, therefore, was whether there was some evidence that his conduct caused him to suffer harm beyond that attributable to the defendants. As to the second element of failure to mitigate, the Indiana Supreme Court noted that the issue is not only whether Humphrey’s failure to follow his doctor’s orders increased his harm, but also whether it prolonged the suffering he attributed to the defendants’ negligence in any discrete, measurable way, without the defendants having to put forth a specific numerical value as to the plaintiff’s increased or prolonged harm in showing “quantifiable” harm. Defendants argued that Humphrey’s failure to mitigate his damages either aggravated his injuries or prolonged them.

In reviewing the record, the Indiana Supreme Court noted there was evidence that Humphrey did not initially take prescribed medicine for his hormonal imbalance, the medication helped when he eventually took it, he then stopped taking it because of side effects but did not immediately follow up as directed to find an alternative medicine for his hormonal imbalance, and that despite vision problems, he did not fill an eyeglass prescription. Based on this evidence, the Indiana Supreme Court concluded that a reasonable jury could conclude that Humphrey’s continuing symptoms constituted identifiable harm attributable to his failure and not the defendants’ negligence. The Court vacated the Court of Appeals’ opinion and affirmed the trial court’s judgment finding no abuse of discretion in the trial court giving a failure to mitigate instruction.

You can read the full opinion here.

“Do not hold or use your phone while driving in Indiana” is the new law in Indiana as of July 1, 2020. Under the law, a person operating a motor vehicle in Indiana may no longer hold or use their phone while driving unless that person has hands free or voice operated technology or is calling 911 to report a bona fide emergency. The new law, which went into effect July 1, 2020 and which can be found in Indiana Code § 9-21-8-59, provides as follows:

(a) Except as provided in subsections (b) and (c), a person may not hold or use a telecommunications device while operating a moving motor vehicle. (b) A telecommunications device may be used in conjunction with hands free or voice operated technology. (c) A telecommunications device may be used or held to call 911 to report a bona fide emergency. (d) A police officer may not, without the consent of the person: (1) confiscate a telecommunications device for the purpose of determining compliance with this section; (2) confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section; or (3) extract or otherwise download information from a telecommunications device for a violation of this section unless: (A) the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime; (B) the information is extracted or otherwise downloaded under a valid search warrant; or (C) otherwise authorized by law. (e) The bureau may not assess points under the point system for a violation of this section occurring before July 1, 2021.

According to the recent statistics from the National Highway Traffic Safety Administration, more than 2,800 persons were killed, and 400,000 people injured, in 2018 alone due to distracted driving. Barsumian Armiger applauds the efforts of Indiana’s government to try and help save lives from distracted driving in Indiana.