Under Indiana law, insurance companies must offer uninsured (UM) and underinsured (UIM) insurance coverages to policy holders to provide a minimum level of compensation if they suffer injuries by someone with no insurance (uninsured motorists) or inadequate insurance coverage (underinsured motorists). Ind. Code § 27-7-5-2; Kearschner v. Am. Fam. Mut. Ins. Co., S.I., 192 N.E.3d 946, 954 (Ind. Ct. App. 2022).  The purpose of UM and UIM coverage is to promote the recovery of damages by innocent victims of auto accidents when the at-fault party either has no insurance coverage or limited insurance coverage. See 192 N.E.3d at 954. 

Under Michelle’s State Farm insurance policy, State Farm promised that it would “pay compensatory damages… for bodily injury… an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle,” provided that “the bodily injury… [was]… sustained by an insured… and… caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle as a motor vehicle.” In Michelle’s insurance policy with State Farm, an uninsured motor vehicle was defined as “a land motor vehicle” the “ownership, maintenance, and use of which is… not insured… for liability at the time of the accident,” or which, with respect to bodily injury damages, “the owner and driver of which remain unknown and which causes bodily injury to the insured.”

On appeal, the Indiana Court of Appeals noted that insurance contracts are interpreted the same as any other contract, with courts giving contractual terms their plain and ordinary meaning. While “land motor vehicle” was not defined in the State Farm insurance policy, the parties agreed, as did the Court, that “land motor vehicle” unambiguously means a “motor vehicle” designed to operate on “land.” And there was no apparent dispute that “land” means “the solid part of the surface of the earth,” as defined by Merriam-Webster’s Online Dictionary. However, the parties disputed the meaning of “motor vehicle” and whether “motor vehicle” includes electric scooters. 

State Farm argued for the definition of “motor vehicle” under Indiana’s Motor Vehicle Code, which excludes electric foot scooters. Under the Code, “motor vehicle” means “a vehicle that is self-propelled” and does not include “a farm tractor, an implement of agriculture designed to be operated primarily in a farm field or on farm premises, an electric bicycle, an electric foot scooter, or an electric personal assistive mobility device.” Ind. Code § 9-13-2-105(a). However, the Court of Appeals referenced Merriam-Webster’s Online Dictionary, which defines “motor vehicle” as “an automotive [or self-propelled] vehicle not operated on rails,” the American Heritage Online Dictionary, which defines “motor vehicle” as “[a] self-propelled conveyance with wheels and a motor, such as a car or truck, for use on roads,” and Black’s Law Dictionary, which defines “motor vehicle” as “[a] wheeled conveyance that does not run on rails and is self-propelled, [especially] one powered by an internal-combustion engine, a battery or fuel-cell, or a combination of these.” 

The Court, noting that courts are to interpret insurance policies “from the perspective of an ordinary policyholder of average intelligence,” concluded the general dictionary definitions controlled and the scooter was a “land motor vehicle” under the term’s plain and ordinary meaning. While State Farm also argued that there was a genuine issue of material fact as to whether the scooter was “uninsured,” the Court of Appeals found State Farm waived that issue because it did not raise it in the trial court. Accordingly, the Court of Appeals affirmed the entry of partial summary judgment in Michelle’s favor, entitling her to uninsured coverage from State Farm for the injuries she suffered in the electric scooter crash. 

You can read the full opinion here.

Fergerson was 63 years old and a chronic alcoholic. He also suffered from sciatica. He had a license but used IndyGo buses for transportation. In the morning on the day he was killed, Fergerson relapsed from an 8-day alcohol abstention and was briefly hospitalized for intoxication. He was released later that day. In the evening, after grocery shopping, Fergerson attempted to board an IndyGo bus to go home. One IndyGo bus driver refused to let him board because he had a liquor bottle. Later, another IndyGo bus pulled up to the bus stop. As two passengers exited the bus, Fergerson grabbed his two grocery bags and walked toward the front door of the bus. The bus driver checked his mirror for a “split second” and then pulled away from the curb. The driver did not remember checking his mirrors for proper alignment or having approached the stop in accordance with IndyGo’s policies. When the bus pulled away, Fergerson lost his balance and, with his arm outstretched towards the bus, fell off the curb and onto the road where he was run over by the bus’s rear wheels, causing his death two weeks later. His blood alcohol concentration was over three times the legal limit to drive. 

Fergerson’s mother, for his estate, filed a wrongful death lawsuit against IndyGo. A Marion County jury returned a jury verdict of $6 million dollars, which was reduced to $700,000 because of a limit on damages against governmental entities under Indiana law. At trial IndyGo argued Fergerson was contributorily negligent as a matter of law, referencing his intoxication and video footage of the incident. The trial court denied both of IndyGo’s motions, a motion for judgment on the evidence pre-verdict and a motion to correct error post-verdict. IndyGo appealed the denial of the post-verdict motion to correct error. A panel of the Indiana Court of Appeals reversed the trial court, with one judge dissenting. The Indiana Supreme Court granted transfer and ultimately affirmed the trial court’s denial of IndyGo’s motion to correct error.

As a preliminary matter, the Indiana Supreme Court first determined that its standard of review was de novo, that is, without deference to the trial court’s decision, as opposed to abuse of discretion, since IndyGo had asserted the jury’s verdict was clearly erroneous as contrary to the evidence. 

Next the Court reviewed whether the evidence supported a reasonable inference that Fergerson was not contributorily negligent, as a finding of contributory negligence as a matter of law is only proper when there exists only one inference to be drawn from the evidence, that of contributory negligence proximately causing the claimed injuries. Under Indiana law, a person is contributorily negligent if they fail to exercise the degree of care that an ordinary, reasonable, and prudent person would exercise for their own protection and safety under similar circumstances. Evidence of intoxication alone is insufficient; there must be evidence that a person’s intoxication proximately caused the person’s injuries. Contributory negligence, that is, fault on behalf of a person injured, however slight, acts as a complete bar to recovery against governmental entities in Indiana.

The Indiana Supreme Court reviewed and dispensed with IndyGo’s two arguments: first, that the video footage showed Fergerson was contributory negligent in reaching out to touch a moving bus, particularly given his intoxication, and two, that Fergerson was contributory negligent for violating Indiana Code § 9-21-17-5, which states “[a] pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard” and Indiana Code § 7.1-5-1-6, which prohibits a person from being intoxicated when using public transportation if the person’s intoxication endangers their own life.

As to IndyGo’s first argument, the Court noted that when the bus pulled away, the video footage did not show Fergerson’s legs and feet, and thus, a single, undisputed account of his conduct at the time of the incident. While noting one could certainly infer negligence finding Fergerson, possibly because of his intoxication or sciatica, lunged for or reached out to touch the moving bus, two other possible inferences also existed: first, that “Fergerson, through no unreasonable action and simply by accident, stumbled and then raised his arm in an involuntary attempt to brace himself as he fell,” and two, that “the bus’s sudden and unexpected momentum caused him to lose his balance as he carefully approached the bus and involuntarily reached out to stop himself from falling.” 

As to Fergerson’s intoxication, the Court noted that negligence cannot be presumed solely because an accident occurs and there was evidence Fergerson had ridden IndyGo buses many times while intoxicated without issue, chronic alcoholics can develop a tolerance to alcohol, and Fergerson’s mother could not say Fergerson “sounded drunk” when she spoke with him that evening. The Court reasoned, “[f]rom this evidence, coupled with the video footage, a reasonable jury could have inferred that Fergerson’s tolerance for alcohol minimized any impairment from his BAC level and thus concluded that his intoxication was not a proximate cause of his injuries.” 

As to IndyGo’s second argument, negligence per se based upon violation of Indiana law, the Court found a reasonable inference could be drawn from the video footage that Fergerson did not suddenly leave the curb by walking or running into the path of the bus under Indiana Code § 9-21-17-5 and, as noted with respect to IndyGo’s first argument, that his intoxication was not a proximate cause of his injuries endangering his own life under Indiana Code § 7.1-5-1-6. 

Finding “multiple, reasonable inferences” that the jury could have reached, the Indiana Supreme Court found IndyGo had not established Fergerson’s contributory negligence as a matter of law and therefore affirmed the trial court’s denial of IndyGo’s motion to correct error. While noting this was a “close case,” the Court recognized that its role is not to “stand in the place of the factfinder.” The Court noted the jury members were attentive, were properly instructed on the law, and found Fergerson was not contributorily negligent. Similarly, the Court noted the trial court and a judge on the Indiana Court of Appeals found Fergerson was not contributorily negligent as a matter of law. 

Justice Slaughter dissented with a separate opinion in which Justice Massa joined.

You can read the full opinion here.

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.

Oukbu and Dhillon were both independent contractors/truck drivers. Neither of them had been to the fulfillment center before and neither were given instructions on how to access the facility’s premises. Amazon only gave them an address and a delivery time. Both Oukbu and Dhillon were injured in the early morning while it was still dark. The fulfillment center had three entrances along the county road. When approaching from the west, as Oukbu and Dhillon both did, the first two entrances had “no truck” signs. The third entrance was for deliveries, but it was 500 feet east of the facility. Oukbu and Dhillon both exited their trucks after passing the second “no truck” sign. Amazon had no signage at the first two entrances informing truck drivers where to go, and truck drivers were often seen getting out of their trucks in the same location. In fact, an Amazon employee told the police that “these lost truck drivers get out of their trucks at this spot every day.”

Oukbu and his wife and the estate of Dhillon filed lawsuits against Amazon. They alleged Amazon was negligent in its maintenance, design, and control of the fulfillment center’s entrances, including the layout and lack of lighting and signage at the entrances, which they claimed created a hazardous condition to business invitees such as Oukbu and Dhillon. Amazon filed motions for judgment on the pleadings, arguing that Amazon did not owe Oukbu and Dhillon any duty of care and that any negligence by Amazon was not the proximate cause of their injuries. The trial court granted Amazon’s motions, finding Amazon had no duty with respect to the negligent acts of someone over whom Amazon had no control and when the injury occurred off Amazon’s premises.

In negligence cases, claimants must prove (1) a duty owed by the defendant, (2) breach of that duty by the defendant, and (3) damages proximately caused by the defendant’s breach of duty. Premise liability is generally based upon control, and landowners are generally not liable to their invitees for the acts of third parties over whom they have no control and when the injuries occur off the premises. However, landowners may be liable for injuries off their premises when those areas have dangerous conditions created by their use of those areas, when invitees reasonably believe landowners control the areas, and when landowners know invitees customarily use the areas in connection with the invitation. Also, landowners may be liable when they use their premises in a way that affects the risk of foreseeable injuries off the premises.

On appeal, Amazon argued that the Indiana Supreme Court’s decision in Reece v. Tyson Fresh Meats, 173 N.E.3d 1031 (Ind. 2021), which we blogged about here, supported it having no duty to Oukbu and Kaur. However, the Indiana Court of Appeals noted that Reece was specifically limited to “visual obstructions” and did not involve duties owed to business invitees, and therefore, the Court found it inapplicable. Rather, the Court likened Amazon’s duty to that found in Lutheran Hosp. of Ind., Inc. v. Blaser, 634 N.E.2d 864 (Ind. Ct. App. 1994), a case in which the Indiana Court of Appeals found a hospital liable for a claimant’s injuries caused by the hospital’s funneling of pedestrian and vehicular traffic in an “exit” parking lot driveway often mistaken and used as an entrance. The Court also referenced Restatement (Third) of Torts, § 54 (2012) (Section 54), which provides in part that “[a] possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.”

Here, the Indiana Court of Appeals found the allegations made by Oukbu and Kaur were sufficient to show Amazon owed a duty of reasonable care and Amazon’s conduct created a dangerous condition making passage on the abutting road unsafe. The Court referenced the allegations that Amazon controlled how delivery drivers entered the premises; created an artificial hazard, i.e., the “no trucks” signage, on the premises; knew or should have known truck drivers trying to enter the fulfillment center were confused about how to do so and were stopping and exiting their trucks because of the layout, signage, and lighting of the facility’s entrances; used its premises in a manner that harbored a dangerous condition off its premises affecting the risk of injuries to others; and did not provide instructions to truck drivers. Accordingly, the Court reversed the trial court and remanded the case for further proceedings.

Judge Mathias concurred, writing separately to request the Indiana Supreme Court adopt the Restatement (Third) of Torts, § 54 (2012) to resolve the issues in these cases.

You can read the opinion in Oukbu here.

You can read the opinion in Kaur 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.

Pioneer appealed and argued on appeal that the trial court erred by denying its motion for summary judgment. Pioneer argued it neither owned nor controlled the sidewalk where Jones fell. Pioneer argued the property owner was the exclusive owner of the sidewalk with ultimate responsibility for keeping it clear of snow and ice. Pioneer pointed to the fact that the property owner had contracted with a snow and ice removal contractor to clear snow and ice from the sidewalk.

Under Indiana law, to recover damages in a slip and fall negligence case, a plaintiff must show 1) the defendant owed a duty to the plaintiff, 2) the defendant breached that duty, and 3) the plaintiff’s injury was proximately caused by the defendant’s breach of duty. Landowners and possessors of land owe persons they invite onto their premises a duty to exercise reasonable care for their protection while they are on the premises. An inviter is subject to liability for physical harm caused to its invitees by a condition on land if it (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

Here, Pioneer argued the duty of landlords/possessors to invitees did not apply because it neither owned nor controlled the sidewalk where Jones fell. There is precedent in Indiana that tenants cannot be held to have a duty to safely maintain areas for which they have not assumed responsibility and over which a landlord has specifically retained control, including common areas like sidewalks. However, the Court disagreed with Pioneer’s position in this case and held as a matter of law that, as the business entity that invited Jones onto the property, Pioneer owed some duty of care to Jones as an invitee. In the Court’s opinion, the fact that Pioneer did not own the property and the property owner, as opposed to Pioneer, had contracted for snow and ice removal services did not summarily relieve Pioneer of liability. The Court noted the duty of an invitor to exercise reasonable care for the safety of invitees is an active and continuing one, and that parties cannot contract their way out of their duty to exercise reasonable care with respect to third parties. The Court of Appeals accordingly affirmed the judgment of the trial court in favor of Jones.

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.

The second obstacle to punitive damages is that federal law prohibits “grossly excessive” punishment of wrongdoers as unconstitutional for violating an individual’s substantive due process rights. Recognizing that there are many different degrees of wrongful conduct, the U.S. Supreme Court placed no arbitrary limit on punitive damages in the case of BMW of North America, Inc. v. Gore, but reversed an award of 1000x compensatory damages. Later, in State Farm v. Campbell, the Court noted that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Luckily for State Farm, this meant the reversal of an award of $145 million in punitive damages where compensatory damages had been $1 million.

Indiana law provides wrongdoers in Indiana with even more protection than that provided by the U.S. Supreme Court. Indiana places an arbitrary cap on any punitive damages award of the greater of $50,000 or three times the compensatory damages awarded. Thus, even though Indiana victims of wrongful conduct would be helping victims of violent crime and sexual assault by maintaining a claim for punitive damages, Indiana believes three is the magic number when compensatory damages exceed $50,000.

The third obstacle on punitive damages is that Indiana courts have declared that presenting evidence showing only that a wrongdoer had a “heedless disregard of the consequences” of his actions is legally insufficient to support an award of punitive damages. Punitive damages are only proper upon a showing of “willful and wanton conduct” meaning “an intentional act done with reckless disregard of the natural and probable consequences of injury.” Even then, this proof must be established by “clear and convincing evidence” not the usual “preponderance of the evidence” standard applicable to a compensatory damages award.

There is no Indiana case answering the question presented of whether a habitually texting driver who crashes into and injures an innocent victim can be properly hit with a punitive damages award. The best way to answer the question is to look for a close cousin of a case. Davidson v. Bailey provides some guidance. In Davidson, the Indiana Court of Appeals upheld an award of punitive damages against a car’s owner when she allowed her intoxicated boyfriend to drive it, causing a crash and injuries. The Court found persuasive that the girlfriend had spent several hours with her boyfriend who was found to have a .248% BAC and had displayed obvious signs of intoxication, including slurred speech, an odor of alcohol, and bloodshot eyes. Additionally, the girlfriend had been trained by a previous job to spot signs of intoxication.

Very few of us can innocently claim we are not aware of the dangers of texting and driving. Every day area drivers glide over center lines into our lanes, glance down repeatedly and run up on our bumpers, and remain stopped in front of us at green lights until we honk. Drivers addicted and unable to break these habits do so at their own risk of paying a punitive damages award out of their paycheck when they inevitably strike an innocent victim.

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However, absent exceptional circumstances, the law also restricts police from confiscating cell phones and determining if the driver had been using it. Police cannot use the law to confiscate a phone and keep it as evidence or to extract or download information from the phone.

Although criminal enforcement of anti-texting laws is rare, when a car crash occurs as a result of texting, there may be civil remedies available to deter such conduct. Punitive damages developed under the law as a means of deterring particularly bad conduct.

Indiana does not allow insurance to cover a punitive damages award. So, in theory, the deterrent effect of a punitive damages award should be very effective. The wrongdoer against whom punitive damages are awarded has to pay for these damages out of his own pocket. Thus, a texting driver with a history of being cited for texting while driving or causing texting-induced crashes could theoretically face a punitive damage claim, which might make the reckless driver think twice. But, in practice, ironically, the injured and their attorneys are actually deterred from seeking punitive damages by the letter of the law passed by Indiana’s legislators.

Indiana (and federal) law places several obstacles in the path of those seeking to punish wrongful conduct. First, Indiana law deters such claims by statutorily awarding 75% of all punitive damages awarded at trial to a “Victim’s Compensation Fund” and not the injured party. So, if an injured party were to prove punitive damages and a jury awards $10,000 to punish the wrongdoer, Indiana collects $7500, leaving the remainder to the victim of the wrongful conduct, out of which she must pay any attorney fees and costs associated with pursuing and proving the claim. Indiana has declared the statute (Indiana Code 34-51-3) allowing for this result constitutional. Although disincentivizing a plaintiff from bringing a punitive damages claim by taking three quarters of the verdict that would not exist without their and their attorney’s efforts is controversial, the Fund serves a noble purpose by helping compensate victims of violence, including sexual assault, by paying out grants of up to $15,000 to a successful applicant. According to Indiana Criminal Justice Institute’s 2015 Annual Report, payments of $6 million dollars were paid out in 2015 and $7.5 million the year prior.

Part 2 of this article will be published next week. If you or a loved one has been injured by a distracted driver, it would be wise to consult with an attorney while information and materials can still be preserved and before any statute of limitations has barred the claim. Follow us on social media at the links provided and receive a link to this and other articles as they are published.

Though southwestern Indiana has dodged snow so far, temperatures are falling and icy conditions increasing. Wintry conditions inevitably lead to slips and falls, some of which will lead to serious head, neck and back injuries, broken bones, and muscle and ligament tears, strains and sprains.For many who slip and fall, their first emotion is embarrassment and their first instinct is to blame themselves. Also, many premises owners will be quick to claim they cannot be at fault for folks who venture out into wintry conditions and happen to slip and fall. Accordingly, for many guests and premises owners alike there is a perception that a premises owner will not be liable when a guest does slip and fall in wintry conditions. Reaching such a conclusion without consideration of Indiana law and surrounding circumstances could be costly.

Indiana law on the hazards presented by the natural accumulation of snow and ice is clear:

a landlord does have a duty of reasonable care that the common ways and areas, or areas over which he has reserved control, are reasonably fit and that hazards created through a natural accumulation of ice and snow are not beyond the purview of that duty.

Absent a business or homeowner gating their premises and posting no-trespassing signs, they have a duty to protect foreseeable visitors from harm. For more than 40 years Indiana has recognized a broad duty:

The occupier must not only use care not to injure the visitor by negligent activities, and warn him of latent dangers of which the occupier knows, but he must also inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it results in a dangerous condition.

The foregoing does not suggest premises owners are strictly liable to someone who slips and falls and suffers an injury on their property. However, the inquiry will be fact-sensitive and Indiana’s law of modified comparative fault will apply. This means that if a jury does not find the guest 51% or more at fault under the circumstances, the guest will be entitled to recover if they prove to a jury’s satisfaction that their injuries were caused by the fall. If a premises owner in fact contributed to conditions leading to an unnatural accumulation of snow and ice, the chance of the premises owner escaping significant liability is slim.

Some common scenarios that can be resolved by civil suits include slip-and-fall cases and negligent security cases. These kinds of accidents can result in devastating injuries, particularly to individuals who already have health issues. In addition, medical negligence and medical malpractice are also commonly cited in personal injury lawsuits.

Some personal injury suits may involve companies or entities who acted negligently. This can include incidents of product liability, such as when a company manufactures a dangerous product that results in injuries to consumers. Construction site accidents resulting from third-party negligence can also warrant personal injury suits when injured workers or bystanders sustain serious injuries.

Fortunately for Indiana residents who have sustained personal injuries or suffered the losses of loved ones, help is available. At Barsumian Armiger, we have extensive experienced helping clients through the personal injury claims process, and we can help you as well. If you are interested in learning more about your legal options for pursuing compensation, you can visit our website, where you will find more information, or you can schedule an initial consultation at our conveniently located law office.

The young man was outside of a house on a Thursday night where he was trying to help his brother. They were getting a pickup truck off of a tow truck and were on the edge of the driveway. A car came along and hit the man. His brother, who was volunteer firefighter, attempted to save the man, but those attempts proved to be futile.

The man who hit the fire department intern was transported to a hospital for injuries he received in the crash. Investigators have said there is no reason at this point to believe impairment was a cause of the accident. A fire chief speaking about the accident pointed to the narrow roads and high speeds when discussing how this unfortunate turn of events affected one of their own.

As an investigation unfolds, factors such as speed or any other causes discovered may play a role in what legal options the family of the young man may have as they try to move forward from such a tragedy. In cases where a wrongful death claim in an Indiana civil court are appropriate, those claims can be challenging for families dealing with such an untimely or emotional loss. However, a successful claim can help families overcome the financial strain often caused by an accident that takes the life of a loved one so suddenly.

Source: wishtv.com, “Fire department in mourning after intern is fatally hit by a car“, Jeff Wagner, March 4, 2016