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.

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.

The Defendants filed a motion to dismiss Bruski’s complaint under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted. In support, the Defendants argued, among other things, that Terry’s vehicle was not involved in the crash between Bruski’s vehicle and the disabled vehicle, Terry had no duty to warn Bruski of the disabled vehicle, which did not change from its position blocking the same lanes of traffic after Terry hit it, and the FMCSR were not applicable as they were designed to protect motorists from stopped commercial motor vehicles, not other roadway hazards. In response, Bruski argued Terry engaged in “misconduct” by not providing warning, including failing to comply with the FMCSR and Terry contributed to the hazard of the disabled vehicle when Terry struck and moved it. At the hearing, Defendants’ counsel argued, “How is Terry at fault for a collision involving a guy who wrecked himself and a plaintiff who hit the guy that wrecked himself?” Ultimately, the trial court denied the Defendants’ motion to dismiss, and the Defendants appealed.

On appeal the Indiana Court of Appeals analyzed the two potentially applicable theories of liability, a common law duty to warn and negligence per se. The Court noted that while motorists have a general duty to exercise reasonable care with respect to other motorists, they generally do not have any duty to aid or protect other persons, even if they know another person needs assistance. However, there are exceptions to this general rule under both the common law and by statute.

Bruski argued Terry contributed to the roadway hazard giving rise to a common law duty to give an adequate warning as part of Terry’s general duty to exercise reasonable care. Both parties directed the Court to caselaw and Restatement provisions, with Defendants arguing that a duty to warn arises only when one created the hazard or has control of the hazard, that is, there is no common law duty to warn when one only contributes to an existing hazard, especially when one was not negligent in contributing to the hazard. Bruski on the other hand argued that contributing to a hazard when one knows or should know that it presents an unreasonable risk of harm gives rise to liability, that is, Terry had a duty to warn because even if Terry hitting the disabled vehicle was not negligent, the consequence of that act created an unreasonable risk of harm to Bruski with the disabled vehicle moved further into the roadway where Bruski was driving.

Ultimately, as to a common law duty to warn, the Indiana Court of Appeals sided with Bruski. The Court found persuasive a case from the Tennessee Supreme Court, which found motorists have a common law duty to warn other motorists of highway obstructions to which they contributed, regardless of whether their contributions were negligent and regardless of whether other persons have a similar duty to warn. While Bruski’s complaint did not specifically allege that the crash between Terry and the disabled vehicle moved the disabled vehicle so as to increase the hazard of the disabled vehicle (e.g., that the first crash moved the disabled vehicle into two lanes of traffic as opposed to just one), the Court found the facts alleged in Bruski’s complaint sufficiently pled a viable theory under Indiana’s notice pleading that Terry contributed to the hazard and therefore had a common law duty to warn.

Bruski also argued that Terry was negligent per se by failing to comply with the FMCSR, 49 C.F.R. § 392.22(a) and (b), which require activation of hazard warning signal flashers and placement of warning devices when a commercial motor vehicle stops on the highway or on the shoulder of a highway for any reason other than necessary traffic stops. Negligence per se provides a statutory standard of care when the statute was designed to protect (1) the class of persons in which the plaintiff is included and (2) the type of harm that has occurred because of the violation. Defendants argued the provisions of the FMCSR at issue were designed to protect against collisions with commercial motor vehicles, not other roadway hazards, and therefore Terry could not be found negligent per se. The Indiana Court of Appeals, however, noted that a stated purpose of the FMCSR is to ensure that commercial motor vehicles are operated safely, with the Court finding the provisions of the FMCSR at issue protect both operators of commercial motor vehicles and other motorists and the required warnings alert motorists to, not only stopped commercial motor vehicles, but also the area around stopped commercial motor vehicles, which might include hazards that resulted in a commercial motor vehicle stopping, such as a blown tire or debris in the roadway. As such, the Court concluded Bruski was within the class of persons protected by the FMCSR and the regulations were designed to protect the type of collision in this case.

The Indiana Court of Appeals concluded that Bruski’s complaint stated viable theories based upon (1) Terry’s alleged failure to warn after potentially contributing to a road hazard and (2) Terry’s failure to comply with the FMCSR. The Court affirmed the trial court’s denial of the Defendants’ motion to dismiss and remanded the case.

You can read the full opinion here.

In the second lawsuit, the Defendants moved to have Davidson’s case dismissed based upon, among other things, the legal doctrine of issue preclusion, which prevents a party who has previously litigated an issue and lost from relitigating the same issue in a second lawsuit when that issue was necessarily decided in the prior lawsuit by a court of competent jurisdiction. In applying issue preclusion against a party, courts must consider whether the party had a full and fair opportunity to litigate the issue in the first lawsuit and whether it would be unfair under the circumstances for issue preclusion to be used against the party in the second lawsuit. Here, the trial court dismissed Davidson’s second lawsuit with prejudice, the Indiana Court of Appeals reversed finding issue preclusion did not apply, and the Indiana Supreme Court granted transfer.

Ultimately, the Indiana Supreme Court held Davidson’s claims in her second lawsuit were barred by issue preclusion based on its interpretation of Indiana’s Comparative Fault Act. Under the Comparative Fault Act, a trier of fact must consider the fault of all persons who caused or contributed to cause an injury or death and apportion 100% of the damages in the case between parties and nonparties. Nonparties are persons who caused or contributed to cause an alleged injury or death but who have not been joined in a lawsuit as defendants. A defendant may raise a nonparty defense to have fault attributed to a nonparty, thereby lessening any fault attributable to the defendant, and in turn, any judgment that must be paid. However, for fault to be attributed to a nonparty, the Comparative Fault Act requires the nonparty be named in the lawsuit.

Here, the Defendants were neither parties nor named as nonparties in Davidson’s first lawsuit against J Trucking, LLC, and therefore, no fault was attributed to them. As such, although not explicit in the trial court’s judgment in the first lawsuit, the Indiana Supreme Court reasoned the trial court’s judgment necessarily included finding J Trucking, LLC 100% at fault for Davidson’s injuries. The Indiana Supreme Court noted that while the Comparative Fault Act does not apply to tort claims against governmental entities, like the State of Indiana, it nonetheless governs all current actions based on fault brought to recover damages for injury or death to a person (except for cases brought under Indiana’s Medical Malpractice Act). Thus, in mixed-theory cases against non-government and government defendants, the Comparative Fault Act applies to require the trier of fact to apportion fault against all parties and nonparties for full apportionment of fault. Consequently, since 100% of the fault was necessarily attributed to J Trucking, LLC in the first lawsuit, issue preclusion thereby prevented any attribution of fault to Defendants in Davidson’s second lawsuit.

In finding issue preclusion applied to bar Davidson’s claims in her second lawsuit, the Court found that Davidson “really did lose” in her first case because by failing to name the Defendants she lost the ability to obtain an allocation of fault as to the Defendants. Importantly, the Court noted that, in lawsuits brought under the Comparative Fault Act, plaintiffs must name all alleged joint tortfeasors as defendants in one lawsuit or risk being precluded from obtaining a remedy against any unnamed tortfeasors in a subsequent lawsuit. In addition, the Court found Davidson had a full and fair opportunity to litigate against the Defendants in the first lawsuit and it was not unfair to apply issue preclusion to her claims in the second lawsuit. Lastly, the Court found no error in the trial court refusing to treat Defendants’ motions as motions for summary judgment and in dismissing her lawsuit with prejudice against refiling, with no due-process violation.

You can read the full opinion here.

Recently, in Progressive Southeastern Insurance Co. v Brown, the Indiana Supreme Court addressed whether an MCS-90 endorsement applies when a commercial truck crash occurs during an intrastate trip involving the transportation of non-hazardous cargo. In Brown, the commercial truck driver, Bruce Brown, an employee of B&T Bulk, a Mishawaka-based motor carrier out of Mishawaka, Indiana, was driving a truck and empty trailer when his truck crossed the centerline, striking another vehicle killing the driver, Dona Johnson.

Ms. Johnson’s surviving spouse brought a wrongful death case against Brown and B&T on his own behalf and on behalf of his widow’s estate. Progressive Southeastern Insurance Company then filed a separate declaratory judgment case against Johnson, B&T and Brown requesting a declaration from the court that it should not owe any duty to defend or indemnify B&T or Brown, because the insurance policy it had issued did not include the truck and trailer and, although Progressive had provided B&T with an MCS-90 endorsement, the endorsement should not apply. State Farm Mutual Automobile Insurance Company, Johnson’s insurer, intervened in the case and joined with Johnson’s widow and her estate, Brown, and B&T, in arguing that the MCS-90 endorsement should apply binding Progressive to pay any final judgment in the case. The trial court agreed with Progressive that the truck and trailer were not insured autos and that Progressive had no duty to defend or indemnify Brown. However, the trial court found the MCS-90 endorsement applied, which ruling Progressive appealed.

The undisputed evidence of the case was that Brown had been driving the truck and trailer to pick up cement—a non-hazardous property—in Logansport, Indiana, for delivery to South Bend, Indiana, without crossing over any Indiana State lines. If the MCS-90 applied, Progressive would have to pay the judgment, even though the insurance contract with Progressive had been determined to otherwise exclude coverage and Progressive would be left having to seek reimbursement from its insured. The issue for the Court was whether the MCS-90 applied as required under Section 30 of the Motor Carrier Act, 49 U.S.C. § 31139.

Section 30 of the Act provides that the minimum financial responsibility requirements provided by MCS-90 apply to motor carriers transporting property between 1) a place in a State and a place in another State, 2) a place in the same State through a place outside of the State, or 3) a place outside of the United States. The requirements also apply if the carrier is transporting hazardous property.

All parties agreed that Brown was not transporting hazardous property. So, the question was whether Brown was engaged in interstate commerce at the time of the crash. Federal law mandates the MCS-90; thus, the Court looked to federal law to answer the question of whether Brown was engaging in interstate commerce at the time of the crash. The Court noted there are three approaches courts have used to evaluate the interstate character of a trip: 1) the trip specific approach, which narrowly looks at whether the property was being transported on an interstate trip, 2) the shipper’s intent at the time of the shipment which could make an intrastate trip interstate if the goods were being transported to an interstate terminal, or 3) the broad, public-policy approach of whether the policy of the Motor Carrier Act would be advanced by applying the MCS-90.

The Court agreed with those courts that had rejected the broad, public-policy approach to the application of the MCS-90. It then concluded, without specifically choosing a preference for one of the remaining approaches, that the MCS-90 would not be applicable under either of the remaining two approaches. However, the Court noted that despite federal limitations, the question remained as to whether Indiana had created its own regulation governing insurance requirements for motor carriers transporting non-hazardous cargo within Indiana’s borders that would apply the MCS-90.

The Court found Indiana’s legislature had adopted federal regulations governing minimum motor carrier financial responsibility under Indiana Code § 8-2.1-24-18(a). Section 18(a) requires all intrastate motor carriers to comply with the minimum financial responsibility requirements under 49 C.F.R. § 387.3(b) if they are transporting hazardous property. But, the Court concluded the requirements do not apply if they are transporting non-hazardous property in spite of at least one prior Indiana Court of Appeals decision suggesting otherwise, Sandberg Trucking, Inc. v. Johnson. In Sandberg, the Court of Appeals reasoned it would be “absurd” to hold that Indiana’s legislature had incorporated the federal regulations, making them applicable to intrastate travel, while adopting a regulation that nullified the entire adoption. The Supreme Court overruled the Sandberg decision to the extent the opinion would require it to read each provision of the regulation and decide when to replace “interstate” with “intrastate.” Consequently, the Court reversed the trial court’s judgment that the MCS-90 endorsement applied. You can read the decision here.

Secura denied Brandell underinsured coverage positing he was not insured under the policy, as he was not occupying a vehicle at the time of the collision. The police report from the collision identified Brandell as a pedestrian. The worker’s compensation first report of injury indicated Brandell was adjusting traffic control devices in a work zone when he was struck. Brandell took issue with Secura’s underinsured coverage determination and provided Secura with notice that Brandell was operating a covered auto with another employee as a passenger. Brandell was driving the company vehicle between traffic barrels, stopping, moving the barrels, and then getting back into the vehicle to drive forward a short distance to move the next barrels before he was struck by the truck. After receiving this information, Secura retained counsel to investigate coverage, but before any additional determination was made, Brandell filed a lawsuit against Secura for underinsured coverage (which Sescura eventually provided in accepting and settling the claim) and for bad faith arising from Secura’s handling of Brandell’s underinsured claim. Secura filed a motion for summary judgment as to Brandell’s bad faith claim, which the trial court granted, and Brandell appealed.

In Indiana all insurance companies must act in good faith with their insureds. To prove bad faith by an insurance company, an insured plaintiff must show the insurer (1) made an unfounded refusal to pay policy proceeds, (2) caused an unfounded delay in making payment, (3) deceived the insured, or (4) exercised an unfair advantage over the insured to pressure the insured into settling a claim. Proving negligence or bad judgment will not suffice; there must be a showing of conscious wrongdoing. In order to prove bad faith, a plaintiff must show by clear and convincing evidence that an insurance carrier had knowledge that there was no legitimate basis for denying liability.

Here, Brandell argued Secura acted in bad faith in failing to immediately disclose all coverages to Brandell prior to Brandell inquiring about underinsured coverage (Secura did open an underinsured claim when Brandell inquired about underinsured coverage), in initially denying Brandell’s underinsured claim “without diligent investigation,” and in handling Brandell’s claim.

As to Secura’s bad-faith failure to disclose, the Indiana Court of Appeals noted prior precedent that insurers have no duty to inform insureds of coverage that may not even exist, and in this case, there was no chain of events or “deceptive fact pattern” giving rise to a material issue of fact as to whether Secura acted in bad faith by not disclosing the underinsured coverage prior to Brandell’s inquiry as to such coverage. As to Secura’s bad-faith denial of coverage, the Court found that at the time of Secura’s initial denials it did not appear Brandell was occupying a vehicle at the time of the collision so as to afford him coverage, with Secura having advanced a rational basis for its denial along with legal caselaw support. As to Secura’s bad-faith claim handling, the Court of Appeals noted the Indiana Supreme Court has not yet expressly recognized a claim for “bad faith claim-handling,” but in any case, nothing in the record evidenced “an unfounded refusal to pay policy proceeds” on behalf of Secura. Therefore, the Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Secura on Brandell’s bad faith claims.

You can read the full opinion here.

Spinnenweber was driving a minivan on I-94 in Indiana when he was rear-ended by a truck driven by Laducer. Spinnenweber refused medical care at the scene and only five days later sought care at an urgent care center for pain in his neck and possible ringing in the ears, which is also commonly known as tinnitus. Three months later Spinnenweber reported to his doctor that he was suffering tinnitus and short-term memory loss. Spinnenweber ultimately treated with seventeen medical providers.

Spinnenweber sued Laducer and Laducer’s employer. At trial, Spinnenweber did not seek damages for anything but physical injuries, waiving any request for medical expenses or lost wages or psychiatric, mental, or emotional injuries. The Defendants conceded responsibility for causing the crash.

None of Spinnenweber’s seventeen providers testified at trial. Instead, Spinnenweber and his friends and family testified and he called the Defendant’s medical expert, Dr. Peter Carney, by his recorded deposition testimony.

As for Spinnenweber’s injuries, Dr. Carney testified he had suffered whiplash but did not relate the tinnitus to the crash. Further, while Dr. Carney noted it was “possible” Spinnenweber had suffered a mild concussion, he testified he was certain it was not serious and that any objective testing suggesting a brain injury could not be tied to any particular injury or occurrence.

In his closing arguments, Spinnenweber’s counsel argued that “[t]he purpose of tort law, or negligence law, is to deter bad conduct so it doesn’t repeat.” The jury entered a verdict in Spinnenweber’s favor in the amount of $1,000,000.

The Defendants requested the court reduce the verdict (remittitur) or grant them a new trial, arguing the verdict was unsupported by the evidence and grossly excessive. The trial court granted the motion and gave Spinnenweber the option of accepting a judgment reducing the verdict to $250,000 or a new trial. Spinnenweber, through his counsel, declined to accept the reduced verdict. Then Spinnenweber’s counsel advised the court he would be withdrawing and Spinnenweber would be proceeding pro se.

The court set the matter for a jury trial, but the parties waived the jury trial demand. At the one-day bench trial, Spinnenweber “presented no evidence and requested an award of $0 in damages, which he described as a ‘verdict of silence.’” The Defendants moved for judgment in their favor, which the Court granted. Spinnenweber, represented by counsel, appealed the district court’s award granting Defendants’ motion for remittitur or a new trial.

First, in reviewing the trial court’s granting of the Defendants’ motion, the Seventh Circuit found that there was no evidence to “show that the crash could have caused Spinnenweber’s other alleged injuries such as internal brain trauma and tinnitus. Those were subjective injuries because Spinnenweber perceived them, but they were not directly observable by his doctors.” Because the cause of unobservable injuries presented a “complicated medical question,” it would have been conjecture or speculation for the jury to conclude Spinnenweber suffered those injuries on account of the car crash. Consequently, the Seventh Circuit found that the trial court was correct to conclude the only two injuries at issue had been “whiplash and a mild concussion.”

Second, the Court addressed the issue of whether there was sufficient evidence to support a verdict for $1,000,000 in damages. The Seventh Circuit noted that although juries are given “wide latitude” to award damages, this does not equate to “unlimited discretion.” Noting that Spinnenweber had not sought any medical expenses, lost wages, or damages for emotional harm, the Seventh Circuit concluded that the jury must have nonetheless awarded damages for all of Spinnenweber’s injuries, rather than his whiplash and a mild concussion. It suggested that this may have been tied to his counsel’s argument that the purpose of tort law was to deter bad conduct, so it does not repeat. Consequently, the Court found the trial court’s offer to Spinnenweber of the choice of a reduced verdict or a new trial was not an abuse of discretion.

Even then, the Court noted, Spinnenweber did not have to seek $0 in his second trial. But, by doing so, he “was hoisted with his own petard” by seeking a $0 “verdict of silence.” The Court’s opinion can be read here.

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.

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.

Smith’s auto insurer offered Catanzarite Smith’s liability insurance limits of $100,000.00. Memorial Hospital asserted a hospital lien for the medical bills incurred by Catanzarite, which it subsequently reduced to $25,000.00. A perfected hospital lien gives a hospital a direct right to insurance proceeds which are paid to the patient by an at-fault party. Catanzarite filed a motion for declaratory judgment against Safeco, upon which she filed a motion for summary judgment, seeking a determination that Smith, as a result of Memorial Hospital’s hospital lien, was an underinsured driver and Catanzarite was entitled to $25,000.00 in underinsured coverage.

Underinsured motorist coverage ensures an insured person receives the recovery he or she would have received if the at-fault driver had carried adequate insurance; it helps protect persons against inadequately insured negligent motorists. Under Indiana law, an underinsured motor vehicle is an “insured motor vehicle where the limits of coverage available for payment to the insured under all bodily injury liability policies covering persons liable to the insured are less than the limits for the insured’s underinsured motorist coverage at the time of the accident…” Ind. Code § 27-7-5-4(b).

Catanzarite argued that the actual amount payable to her from Smith, after payment of the hospital lien, would be $25,000.00 less than her underinsured policy limit, thereby entitling her to collect the same from Safeco. The trial court granted summary judgment for Safeco, finding that Smith’s insurer’s payment of the hospital lien did not reduce Smith’s liability policy limit so as to make him underinsured with regards to the collision. On appeal, Safeco argued that Catanzarite was not entitled to underinsured coverage because (1) Smith’s liability insurance policy limits were equal to Catanzarite’s underinsured policy limits and (2) the hospital lien did not reduce Smith’s liability insurance policy limit so as to allow Catanzarite to collect under her underinsured policy.

In rejecting Safeco’s first argument, the Indiana Court of Appeals reviewed prior Indiana Supreme Court precedent, which provides that a limits-to-limits comparison is not the appropriate approach to determine whether a vehicle is underinsured. Rather, one must compare the amount received from the tortfeasor’s policy with the per-person underinsured limits, with the term “available for payment” under Indiana Code § 27-7-5-4(b) construed as “money present or ready for immediate use by the insured, not amounts potentially accessible.” However, as to Safeco’s second argument, the Court found that Smith’s entire $100,000.00 liability policy limit was actually available for Catanzarite’s immediate use and benefit, even though $25,000.00 was not actually passing through her hands, but being used to pay the hospital lien, for which she was responsible. Since payment of the hospital lien did not reduce the actual amount Catanzarite received from Smith, the Court held that Smith had adequate liability insurance coverage, that is, was not an underinsured motorist, and Catanzarite was not entitled to collect underinsured benefits from Safeco.

You can read the full opinion here.

The case arose out of an automobile collision between Lindsay Forster and Lance Ingersoll in Bloomington, Indiana. Forster rear-ended Ingersoll, and as a result of the collision, Ingersoll’s Chevy Silverado pickup truck was damaged. The truck was repaired for a cost of $6,852.55. Shield Global Partners-G1, LLC (“Shield”), which held an assignment of any claims for any diminished value, sought reimbursement for the diminished value of the truck, despite the repairs that had been satisfactorily performed. Shield presented an in-house appraisal that the truck had a fair market value of $36,550 before the collision, according to the National Automobile Dealers Association, and that after the collision, despite the repairs, its fair market value was $32,529.50, for a diminished value of $4,020.45. Shield also presented a second appraisal from an auto appraiser who estimated that the diminished value of the truck amounted to $7,400.00.

Shield filed suit against Forster for the diminished value of the truck. A bench trial was held. The trial court denied Shield’s claim for the diminished value of the truck. The trial court found that Shield’s diminished value claim amounted to a claim for “stigma of defect” damage, which per the trial court, Indiana law does not per se recognize without permanent damage. The trial court also found that Shield had failed to present sufficient evidence to support its claim of diminished value. The trial court, therefore, found the repair costs to be an adequate measure of damages.

On appeal, the Indiana Court of Appeals analyzed the applicable law in situations where there is an item of personal property that is damaged, but not destroyed. Under Indiana law, the measure of damages is the reduction in fair market value caused by the negligence of the at-fault party. Such can be proved in three ways: 1) evidence of fair market value before and after the causative event, 2) evidence of the cost of repair where the repair will restore the property to its fair market value before the causative event, and 3) a combination of evidence of the cost of repair and evidence of the fair market value before the event and after the repair when the repair alone does not restore the property to its fair market value before the event.

The Indiana Court of Appeals agreed with Shield’s argument that, based upon applicable law, damages for the diminished value of the property are recoverable whenever property has a decreased fair market value despite adequate repairs and despite there being no permanent damage. As noted by the Court, the cost of repairs to property is only an adequate measure of damages when the repairs restore the property to its fair market value before the damage. In so holding, the Court noted the economic reality that property that has been damaged and repaired often has less value than similar property that has never been damaged. The Court further held that the trial court erred when it concluded that Shield had failed to prove that the repairs to the truck did not restore it to its fair market value before the accident.

You can read the full opinion here.

In Prime Insurance Co. v. Wright, a motorist injured in a truck accident filed a state-court lawsuit against multiple defendants, including the at-fault truck driver and multiple trucking companies. One of the insured trucking companies, Riteway Trucking, Inc., did not cooperate with Prime Insurance and did not appear or present any defense. Choosing not to defend Riteway, Prime also filed a separate federal court declaratory judgment action seeking a declaration that it had no duty to defend or indemnify Riteway or any of the defendants. The injured motorist then moved for default judgment against Riteway and other defendants on both liability and damages. Prime was next granted permission to intervene in the state-court lawsuit. The state court then entered a default judgment in favor of the injured motorist against the trucking companies, including Riteway, in the amount of $400,000. Prime filed an answer and sought to set aside the default judgment and to obtain discovery in the state-court action. The state court denied the motion to engage in discovery but stayed the state court action pending the federal court action.

The federal court entered an order that Prime did not owe any duty to defend or indemnify Riteway, because Riteway had failed to meet its obligations under its insurance policy with the insurance carrier. However, the insurance policy also contained an MCS-90 Endorsement, which was separate from and in addition to the liability policy issued to Riteway. Under Federal law, motor carriers must maintain proof of financial responsibility, and an MCS-90 Endorsement is in effect a guarantee by an insurance company to protect the public where a federal motor carrier is responsible for an accident causing personal injury to a member of the public. The federal court ordered that Riteway would be liable for any payments the insurance carrier made under the MCS-90 Endorsement under the policy.

After the federal court’s decision, the state court denied Prime’s motion to set aside the default judgment against Riteway. Prime appealed and argued on appeal that the trial court abused its discretion by denying its motion to set aside the default judgment. The Indiana Trial Rules state a trial court may grant a request for relief from a default judgment under Indiana Trial Rule 60(B) for, among other things, (1) mistake, surprise, or excusable neglect, or (8) any [other] reason justifying relief from the operation of the judgment.

The Indiana Court of Appeals reasoned Prime’s interest in the underlying state-court lawsuit was at the “crux” of the issue. Prime issued a liability policy to Riteway and further issued an MCS-90 Endorsement. Prime did not defend Riteway and planned to contest whether the MCS-90 Endorsement applied under the facts of this case. As to intervention under Indiana law, such is warranted only if the intervening party demonstrates (1) an interest in the subject of the action, (2) disposition of the action may as a practical matter impede the protection of that interest, and (3) representation of the interest by existing parties is inadequate. The Court reasoned Prime’s continuing interest in the underlying matter was subject to further legal determination and therefore contingent.

The Indiana Court of Appeals concluded that Prime’s interest did not warrant reversing the default judgment entered against Riteway. The Court stated that “[Prime] cannot both deny its obligation to its insured and, at the same time, seek to litigate questions relating to liability and damages.” Such would grant the insurance carrier “a second bite at the apple in its attempt to escape a potential future obligation.”

Truck accident lawyers and insurance companies alike would do well to pay attention to the Court’s warning when considering litigation strategy in their next injury case. You can read the opinion here.

The plaintiff thereafter sought and received medical treatment from numerous providers, including an ophthalmologist, optometrist, neurosurgeon, and endocrinologist. During his treatment, an MRI revealed a pre-existing tumor on the plaintiff’s pituitary gland, which was secreting prolactin and causing high prolactin levels. The plaintiff’s neurosurgeon opined that the plaintiff had pituitary apoplexy, which he described as an abrupt sudden event that occurs spontaneously in many cases of large pituitary tumors but which can be associated with trauma. After the plaintiff’s neurosurgeon removed the tumor, the plaintiff’s endocrinologist prescribed a medication, bromocriptine, to help lower his prolactin level. While the plaintiff did not always take the medication as prescribed because he could not afford it and it made him ill, he did take it consistently for a period of at least six months, and as a result, his prolactin levels decreased significantly. His endocrinologist eventually advised him to stop taking the medication altogether. The plaintiff’s optometrist also prescribed eyeglasses, but the plaintiff never got them.

The trucking company argued at trial that the plaintiff failed to mitigate his damages because he did not take the bromocriptine as prescribed and did not get the eyeglasses as prescribed. Failure to mitigate damages is an affirmative defense that can reduce the amount of a plaintiff’s damages when the plaintiff’s conduct aggravates or increases the plaintiff’s injuries. In order to prove a failure to mitigate damages, a defendant must prove (1) the plaintiff failed to exercise reasonable care to mitigate his post-injury damages, and (2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct. A defendant’s burden of proof includes proof of causation, namely, that the plaintiff’s unreasonable post-injury conduct increased the plaintiff’s harm, and if so, by how much.

The trial court instructed the jury on the plaintiff’s alleged failure to mitigate damages, over the plaintiff’s objection. The jury thereafter returned a general verdict in favor of the plaintiff, but only in the amount of $40,000.00. The plaintiff appealed arguing the trial court erred in giving the instruction. When appellate courts review trial court decisions to give or refrain from giving jury instructions, appellate courts consider whether the instruction correctly states the law, whether the evidence supports giving the instruction, and whether the substance of the instruction is covered by other instructions. Here, the plaintiff argued that the trial court erred by giving the failure to mitigate instruction because the trucking company had failed to present sufficient evidence showing that any failure to mitigate damages caused the plaintiff to suffer an identifiable item of harm not attributable to the trucking company’s negligent conduct and failed to prove how much harm or what specific item of harm was caused as a result of the failure to mitigate.

The Court of Appeals agreed with the plaintiff and reversed and remanded the case for a new trial. In reviewing the record and the parties’ arguments, the Court of Appeals found no evidence that the plaintiff’s failure to take his medication exactly as prescribed caused a continuance of his symptoms, exacerbated his symptoms in any way, or otherwise increased his harm, and if so, by how much. The Court also found that the trucking company failed to prove that the plaintiff’s failure to get eyeglasses caused the plaintiff any discrete harm. Since an erroneous jury instruction merits reversal if it could have formed the basis of a jury’s verdict, and because the jury award in this case was a general verdict, the court reversed and remanded for a new trial on damages only.

You can read the full opinion here.

An Indiana Officer’s Standard Crash Report must be completed by the investigating police officer when a car accident causes an injury or death or property damage greater than $1000. The most significant portions of the crash report for personal injury cases are the check-the-box section on contributing circumstances and the section where the officer is to provide a narrative/diagram of the incident.

The check-the-box section on contributing circumstances includes a variety of options for the investigating officer to list for the “Primary Cause” and for the other vehicle(s) involved. Options for the officer include such human factors as alcoholic beverages, illegal drugs, prescription drugs, unsafe speed, failure to yield, disregarding a signal, improper turning, using a cell phone, passenger distraction and pedestrian’s actions. Options also include mechanical factors such as brake failure, accelerator failure, tire failure, and tow hitch failure. Finally, the options include environmental factors such as glare, roadway surface, severe crosswinds, roadway construction, an animal or object in the roadway, utility work, or the view was obstructed. The primary cause is the officer’s strongest suspicion as to what caused the accident. Contributing factors are other issues that may have caused or contributed to the accident.

The narrative/diagram requirement of the report gives the officer a chance to explain the matter in more detail. Here the officer often lists the basis for the check-box conclusions, such as witness observations, skid-marks, gouge marks, damage, or other available information, assuming the officer was not an eyewitness, which does happen on occasion.

Although a police report stating that the other driver was the “primary cause” can go a long way to persuading a liability insurer or trucking company that their insured or driver will ultimately be found to be at fault in a legal case, it does not end the question as an evidentiary matter in a legal case. When it comes to an actual fault determination in a legal case, there is no check-the-box approach. The Indiana Code defines fault much more generally as follows:

IC 34-6-2-45 “Fault”

(a) “Fault”, for purposes of IC 34-20, means an act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term includes the following: (1) Unreasonable failure to avoid an injury or to mitigate damages. (2) A finding under IC 34-20-2 (or IC 33-1-1.5-3 before its repeal) that a person is subject to liability for physical harm caused by a product, notwithstanding the lack of negligence or willful, wanton, or reckless conduct by the manufacturer or seller. (b) “Fault”, for purposes of IC 34-51-2, includes any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.

Comparing the detailed options available to the police officer investigating a motor vehicle injury and the more general notions of legal “fault” leads many to wonder whether the officer’s more detailed findings in the report can simply be placed before the court or jury in the form of an exhibit. Indiana law, embodied by the hearsay doctrine, generally prohibits admission of the police report itself in most cases for the reason that, unless the officer was a witness to the accident, the officer’s conclusions were most likely based upon the statements of others.

Hearsay is an evidentiary doctrine that provides that a statement not made by the person testifying which is offered for the truth of the statement is not admissible unless it falls under an exception to the hearsay rule. One such exception is for public records. However, even though a police report is a public record, the exception itself provides that “investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case” are not excepted from the hearsay rule. Some offering police reports into evidence in a case have argued that the report is yet admissible for the reason it involves a “routine, ministerial, objective nonevaluative matter.” The Indiana Court of Appeals rejected this argument in the 2014 case of Averitt Express, Inc. v. State of Indiana. The Averitt Court also rejected the argument that the officer’s affidavit opinion about the cause of the accident was admissible as an opinion of a skilled witness for the reason that a skilled witness opinion may not be based upon “information received from others or a hypothetical question.” As such, and as explained more thoroughly by the concurring opinion in Averitt, when an officer develops an opinion only from a post-accident investigation into the statements of others and is not otherwise qualified as an expert witness, the officer’s opinion as to causation will not be admissible.

In conclusion, a police report may be a likely indicator of how a case may play out in court. However, if a dispute arises over the conclusions in the report itself, there will be plenty of legal legwork to perform to prove up the case.

The IPLA subjects a manufacturer of “a product or a component part of a product,” I.C. § 34-6-2-77, to liability for physical harm caused by a manufacturer placing “into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer,” I.C. § 34-20-2-1. A product is defective under the IPLA if it is defectively designed, if it has a manufacturing flaw, or if it lacks adequate warnings about dangers associated with its use.

Rickey Brewer was a construction foreman killed when a semi driver backed up a semi with an integrated PACCAR glider kit, did not see Rickey, and pinned him against a trailer, killing him. His widow and his estate asserted an IPLA claim against PACCAR. The claim asserted PACCAR’s glider kit was defectively designed because it lacked certain safety features to reduce the danger inherent in its forty-foot blind spot. (If you drive a vehicle with a rear camera and sensors, you can probably attest to the peace of mind and safety such devices add to our everyday life). Here, because a design-defect claim is based in negligence, Brewer would need to be able to prove at trial that (1) PACCAR owed a duty to Rickey; (2) PACCAR breached that duty; and (3) the breach proximately caused an injury to Rickey. The only element at issue in the case was duty—whether PACCAR lacked a duty, as a matter of law, to install certain safety features.

The Court noted the IPLA does not differentiate between a final manufacturer and a component-part manufacturer. Both are “manufacturers” for purposes of the IPLA, so both have a duty “to design … products which are reasonably fit and safe for the purpose for which they are intended,”

Prior Indiana product liability case law established that a component-part manufacturer has no duty under the IPLA to include safety features when three conditions are met: (1) the end product has multiple anticipated configurations, (2) the end manufacturer determines which configuration the product takes, and (3) the different anticipated configurations prevent the component-part manufacturer from reasonably knowing whether and how safety features should be included with the part.

The Court in Brewer found the designated evidence indisputably demonstrated that PACCAR’s sleeper-cab glider kit has one reasonably foreseeable use—to be combined with an engine, transmission, and exhaust system into an over-the-road semi. There was also no reasonable dispute that an over-the-road semi with a sleeper cab was, at some point, going to be used in reverse, and that the glider kit—both as supplied and as integrated—had a forty-foot blind spot. So, unlike the prior cases finding no duty, in Brewer the multiple, anticipated end configurations did not leave the component-part manufacturer without a duty, as a matter of law, to include safety features necessary to adequately abate inherent dangers.

The Supreme Court reversed and remanded for further proceedings, holding that whether PACCAR owed the decedent a duty to include the features was a question for the trier of fact. Brewer demonstrates the potentially complex factual and legal issues that may arise out of a workplace injury or death. Such workplace or construction site injuries and deaths may give rise to a viable product liability claim. Pursuing such claims may help deter unsafe practices, prevent future tragedies, and provide justice for those injured or killed. Read the opinion here.

In Indiana, a plaintiff must establish three elements to prove negligence on behalf of a defendant: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by failing to comply with the applicable standard of care; and (3) a compensable injury proximately caused by the breach of that duty. Under Indiana law, individuals must conform their conduct to that of a reasonable person under like circumstances. Summary judgment is appropriate when the defendant negates at least one of the elements of the plaintiff’s claim. While the element of breach is usually a question for the jury, where the relevant facts are undisputed and lead only to a single inference or conclusion, the court may determine as a matter of law whether the defendant breached a duty.

The defendant estate in this case claimed it was entitled to summary judgment on the element of breach because the vehicle driver could not be found to have acted unreasonably in causing the collision when he suffered a heart attack and was rendered unconscious. The plaintiff passenger argued that the defendant driver was negligent for driving in the first place given his medical condition. While the vehicle driver had recently suffered a prior heart attack and undergone treatment related to his heart condition, at the time of the collision, he had been cleared to drive by his medical providers. Based upon this evidence, the Court found that the passenger plaintiff failed to create a genuine issue of material fact as to whether the defendant driver’s sudden physical incapacity was reasonably foreseeable, so as to hold him negligent for driving in the first place.

The Indiana Court of Appeals declined to formally adopt or recognize a specific doctrine or defense of “sudden medical emergency” or “sudden loss of consciousness,” in cases where individuals are alleged to have caused a personal injury through negligence, as in the Court’s view, general negligence principals were sufficient to decide the issues in this case. The Court differentiated the “sudden emergency doctrine,” which Indiana has adopted, not as an affirmative defense, but as a definition of the conduct expected of reasonable persons in emergency situations.

Under the “sudden emergency doctrine,” a person confronted with sudden or unexpected circumstances calling for immediate action are not expected to exercise the same judgment of one acting under normal circumstances. To take advantage of the “sudden emergency doctrine,” a defendant must not have created or brought about the emergency through the defendant’s own negligence, the danger confronting the defendant must appear so imminent as to leave no time for deliberation, and the defendant’s apprehension of the danger must itself be reasonable.

The issue in this case was different than those under the “sudden emergency doctrine” because the issue in this case was not whether the defendant responded reasonably to an emergency situation, but rather whether a reasonable person in the defendant’s position would have changed his or her conduct before the medical emergency occurred based on his or her knowledge of the danger. Thus, just because your vehicle has been struck by another through no fault of your own, does not always mean you will be able to recover from the party who caused the car accident to occur through their loss of control over their vehicle if it was a result of a sudden medical emergency they had no reason to anticipate.

Read the full Indiana Court of Appeals opinion in Denson v. Estate of Delmer Dillard and Indiana Farmers Mutual Insurance Company here.

Ten months after an Indiana jury found in favor of the passenger and against the driver of the semi tractor-trailer and the trucking company he was working for at the time of the trucking accident, the passenger requested prejudgment interest on the $32,500,000.00 jury award. The driver of the semi tractor-trailer and the trucking company appealed the trial court’s order of pre-judgement interest arguing that the guardianship of the injured passenger had failed to comply with Indiana’s Tort Prejudgment Interest Statute (TPIS), as set forth in Indiana Code section 34-51-4-6, and that the request for prejudgment interest was untimely. The Court of Appeals affirmed the judgment.

Prejudgment interest is allowed under Indiana law as an additional element of damages to achieve full compensation for the prevailing party at trial. The truck driver and trucking company argued that the guardianship of the injured passenger did not comply with the TPIS because it did not make an offer of settlement within one year of filing the lawsuit and the settlement offer that was eventually made did not allow the truck driver and trucking company sixty (60) days to pay the amount of the settlement offer. In affirming the trial court on these issues, the Indiana Court of Appeals noted that the statute is not meant to serve as a trap for the wary but is meant to put a party on notice of a claim and encourage settlement. The Indiana Court of Appeals found that the trial court acted within its discretion in determining that the guardianship’s settlement offer satisfied the statute because the guardianship had established good cause for the delay in tendering its settlement offer due to critical documents being withheld by the truck driver and trucking company during discovery, and because the settlement offer included time-limiting language.

As for the issue raised by the truck driver and the trucking company concerning the timeliness of the request for prejudgment interest, the Indiana Court of Appeals noted that the TPIS does not provide a time limit for filing a request for prejudgment interest. Additionally, the truck driver and trucking company, who were appealing the jury trial award during the 10-month period after the judgment, established no harm as a result of the guardianship’s delay in submitting its request.

Barsumian Armiger is a full-service personal injury and medical malpractice law firm with offices in Newburgh, Indiana, Evansville, Indiana and Fishers, Indiana, serving the greater Evansville and Indianapolis areas. Barsumian Armiger and its injury lawyers handle cases arising from car accidents, truck accidents, motorcycle accidents, defective products, premise liability, nursing home negligence, and medical malpractice.

Under Indiana law, the amount of an automobile insurer’s subrogation claim for medical expenses paid on behalf of an injured party is diminished in the same proportion as a personal injury claimant’s recovery is diminished by comparative fault, or by reason of the uncollectability of the full value of the claim for personal injuries or death resulting from limited liability insurance. Ind. Code § 34-51-2-19. The amount of the automobile insurer’s subrogation claim is also reduced by a pro-rata share of the claimant’s attorney’s fees and litigation expenses. Id.

In this case, the personal injury lawsuit against the at-fault party was settled in the client’s favor. The client’s attorney and the automobile insurer were unable to reach an agreement as to the reimbursement amount due the automobile insurer from the personal injury settlement. More than two (2) years after the Indiana attorney and the automobile insurer reached an impasse and communication ceased between them concerning the medical payments subrogation lien, the automobile insurer filed a lawsuit in state court in Indiana against the Indiana attorney. While the trial court initially found in favor of the automobile insurer, the Indiana attorney appealed the decision, and the Indiana Court of Appeals reversed the decision of the trial court, finding in favor of the Indiana attorney based upon a two (2) year statute of limitations for breach of fiduciary duty.

You can read the full Indiana Court of Appeals decision here:

https://www.in.gov/judiciary/opinions/pdf/08281801jgb.pdf.

Barsumian Armiger is a full-service personal injury and medical malpractice law firm with offices in Newburgh, Indiana, Evansville, Indiana and Fishers, Indiana, serving the greater Evansville and Indianapolis areas. Barsumian Armiger and its injury lawyers handle cases arising from car accidents, truck accidents, motorcycle accidents, defective products, premise liability, nursing home negligence, and medical malpractice. You can reach Barsumian Armiger by visiting its website at www.barsumianlaw.com or by calling (812) 490-0820.