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Articles Posted in Car Accidents

The Indiana Court of Appeals recently resolved a dispute as to the availability of underinsured coverage in an Indiana motor vehicle accident case. In Catanzarite v. Safeco Ins. Co. of Indiana, the Plaintiff, Christine Catanzarite, suffered severe injuries when another driver, Timothy Smith, turned his vehicle in front of her vehicle, causing a collision. Catanzarite incurred $269,841.32 in medical expenses at Memorial Hospital in South Bend, Indiana. Smith had a $100,000.00 liability insurance policy. Catanzarite had a $100,000.00 underinsured policy with Safeco.

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).

The Indiana Court of Appeals recently issued another decision reversing a trial court for giving a failure-to-mitigate jury instruction in an Indiana car accident case. We had previously written about a similar decision in Humphrey v. Tuck. In this case, Harris v. Jones, the Plaintiff, Marlo Harris, was rear-ended on the interstate by the Defendant, Joe Jones, Jr. Harris filed suit against Jones for compensatory damages for her injuries and punitive damages alleging Jones was intoxicated while driving. She also filed an uninsured/underinsured claim against Allstate.

Harris experienced low back pain following the car crash that continued to worsen. Her treating physician diagnosed her with acute lumbar disk disease with left radiculopathy. He treated her with pain medications and injections and referred her for an MRI to determine the cause of her radicular symptoms. Harris never underwent the MRI test. During the four years prior to trial, Harris continued to experience back pain; however, she did not have any medical treatment.

Prior to trial Jones made a qualified settlement offer to Harris in the amount of $25,000.00. Under Indiana law, qualified settlement offers can be made at any time after a complaint has been filed but not within thirty days of trial. Ind. Code § 34-50-1-2. Qualified settlement offers must resolve all claims and defenses. Ind. Code § 34-50-1-3. They must be in writing, signed by the offeror or the offeror’s attorney with his or her name and address, be designated as a qualified settlement offer, be delivered by registered or certified mail or another method verifying the date of receipt, set forth the complete terms of the proposed settlement, and revoke all prior qualified settlement offers. Ind. Code § 34-50-1-4. If a party does not accept a qualified settlement offer, and a final judgment is less favorable than the terms of the qualified settlement offer, the party that made the qualified settlement offer is entitled to attorney’s fees, costs and expenses, not to exceed $1,000.00. After the jury awarded Harris only $10,000.00, the Court awarded Jones $1,000.00 in fees.

Persons involved in car accidents in Indiana due to no fault of their own have numerous claims for damages that they can pursue against the at-fault parties that caused the collisions. Claimants can pursue claims for wrongful death, physical and permanent injuries, medical costs and other expenses, lost wages, lost time, loss of enjoyment of life, emotional distress, mental anguish, loss of services, support and consortium of a spouse, and property damage. In the recent case of Shield Glob. Partners-G1, LLC v. Forster, the Indiana Court of Appeals addressed the availability of one of those items of damage, diminished value of a vehicle as part of a property damage claim.

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.

“[A]n insured is an insured is an insured is an insured for purposes of an insurer’s duty of good faith and fair dealing,” the Indiana Court of Appeals wrote in its recent decision in Schmidt v. Allstate Prop. & Cas. Ins. Co. In this case, Monika Schmidt was injured in a car accident. She was riding as a passenger in a vehicle being driven by her friend, Deborah Fisher. The driver of the other vehicle was Robert Bromley. Bromley had a Progressive insurance policy with $50,000 per person liability coverage. Fisher had an Allstate insurance policy with $100,000 per person liability coverage and $100,000 in underinsured motorist coverage. Schmidt was an “insured” under the provisions of Fisher’s Allstate policy. Schmidt sued Bromley and Fisher for her injuries. After Allstate refused to tender Fisher’s policy limits for underinsured coverage, Schmidt amended her lawsuit and added an underinsured claim and bad faith claim against Allstate. Ultimately, Schmidt and Allstate settled the underinsured claim and Fisher and Bromley were dismissed from the case.

Allstate filed for summary judgment on Schmidt’s bad faith claim. Under Indiana law, while an injured third party cannot sue an at-fault party’s insurance company for handling the claim in bad faith, there is an implied duty of good faith in all insurance contracts that an insurer will act in good faith with its insured, and insureds can sue their insurers in tort when their insurers act in bad faith in handling their claims. The duty of good faith and fair dealing owed by insurers includes, among other things, the obligation to refrain from making an unfounded refusal to pay policy proceeds, causing an unfounded delay in making payment, deceiving the insured, and exercising an unfair advantage to pressure an insured into a settlement. Here, Allstate argued that an insurer does not owe a duty of good faith and fair dealing to an insured who is not the policyholder.

On appeal, the Indiana Court of Appeals reviewed prior court decisions relied upon by the trial court in granting summary judgment in favor of Allstate, including Cain v. Griffin, which the Court distinguished on the basis that it involved a third-party beneficiary claim for medical payments coverage as opposed to a claim by an additional insured. The Court also reviewed the duty analysis under Webb v. Jarvis, which provides that courts should balance the following three factors in determining the existence of duty: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.

The Indiana Court of Appeals recently reversed a trial court’s dismissal of an Indiana automobile accident case in which the injured motorist was alleged not to have complied with the notice provisions of Indiana’s Claims Against Public Schools Act (“CAPSA”). In Smith v. Franklin Twp. Cmty. Sch. Corp., Benjamin Smith (“Smith”) was injured when his vehicle collided with a school bus owned and operated by the Franklin Township School Corporation (“the School”). A few months after the accident, Smith provided notice of his tort claim to the School in accordance with the Indiana Tort Claims Act (“ITCA”). A year and a half after the accident, Indiana’s legislature enacted CAPSA which provides notice requirements in all civil actions or administrative proceedings against public schools. After Smith filed a lawsuit against the School, and after the applicable statute of limitations had run, the trial court granted the School’s motion to dismiss Smith’s complaint without prejudice on the basis that he had failed to comply with CAPSA.

The ITCA governs tort claims against governmental entities or public employees. Under the ITCA, a claim against the state of Indiana is barred unless notice of the claim is filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs. Ind. Code § 34-13-3-6. Claims against political subdivisions, for example cities or counties, must be filed with the governing body of the political subdivision and the Indiana political subdivision risk management commission within one hundred eighty (180) days after the loss. Ind. Code § 34-13-3-8. To comply with the notice provision of the ITCA, a claimant must describe “in a short and plain statement the facts on which the claim is based,” including the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10.

CAPSA was enacted on July 1, 2018 and provides that claimants may not initiate a civil action or administrative proceeding against a public school “unless the individual or entity submits a written notice to the public school and the governing body… that notifies the public school and the governing body… of the alleged violation of law and indicates a proposed remedy.” Ind. Code § 34-13-3.5-4. The proposed remedy must provide “a specific request for relief” and “[a]llow the public school to offer [the claimant] the relief requested,” to which the public school must respond within fifteen (15) days after the notice is submitted, before the claimant can initiate a civil action or administrative proceeding. Ind. Code §§ 34-13-3.5-5, 34-13-3.5-6. If a claimant does not provide the required notice under CAPSA, the action “shall [be] dismiss[ed]… without prejudice.”

Personal injury lawyers must often navigate complex and confusing insurance policies that might be available to compensate their injured clients. Insurance policy types may include general liability, professional liability, medical payment, health insurance, and in a recent truck accident case decided by the Indiana Court of Appeals, an MCS-90 Endorsement.  An MCS-90 is known to truck-accident attorneys as a federally-mandated endorsement to an insurance policy that ensures federally-regulated motor carriers will meet their public financial responsibility obligation in the event of a breach of the terms of the policy by the insured motor carrier.  This has been described by at least one court as “suretyship by the insurance carrier to protect the public.”

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.

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In Tyus v. Indianapolis Power & Light, the Indiana Court of Appeals held that the Indiana Utility Regulatory Commission (IURC) acted unlawfully and unreasonably in granting Indianapolis Power & Light (IPL) immunity from personal injury and property damage caused to noncustomers, by IPL’s own negligence, and in conjunction with an interruption of IPL service. Consequently, the Court reinstated dismissed negligence claims arising out of a tragic automobile crash with catastrophic injuries.

In March of 2016, IPL filed a tariff (2016 Tariff) with the IURC that provided a release from liability for injuries to third persons resulting from an interruption of service or supply of electricity absent “willful default or neglect.” The IURC approved the 2016 Tariff. During a storm less than a month later, IPL-operated traffic signals went dark in an Indianapolis intersection. Eight hours later, the signals were still down despite numerous complaints. That night, a mother and her three minor sons were t-boned in the dark intersection. In this tragic motor vehicle crash, the mother suffered severe fractures and orthopedic injuries and two of the children suffered severe brain injuries, while another suffered bodily injuries and emotional damage from witnessing the crash and his family’s condition.

In 2016, under a contract with Indianapolis, IPL agreed to supply equipment and electricity to the City’s traffic signals, including those at the intersection where the crash occurred. After the crash, the family, who were not IPL customers, brought claims alleging IPL was negligent in several respects including for failing to timely and properly restore power to the intersection.

Before we meet with a prospective client about their potential car accident injury case or truck accident injury case, we will have already obtained and reviewed the crash report.  We will then go through the crash report with them and identify whether the officer determined anyone was the primary cause of the accident and whether there were any contributing factors. Sometimes the investigating officer has made a definitive decision as to the primary cause. Other times we find the officer was unable to determine what was the primary cause of the accident and has provided an “either or” type answer. Ultimately, we are asked what will the insurance company or trucking company do with the officer’s findings? Unfortunately, like many answers in the law, it depends.

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 Indiana Court of Appeals recently issued an opinion on whether a trial court properly instructed a jury in a rear-end automobile accident case in Indiana. In Torrence v. Gamble, 124 N.E.3d 1249, 1250 (Ind. Ct. App. 2019), the defendant rear-ended the plaintiff as the plaintiff was stopped waiting for oncoming traffic to clear before making a left-handed turn. After the collision, the plaintiff filed a lawsuit against the defendant for the substantial damage to her vehicle and for personal injuries she suffered in the collision. The defendant denied liability and asserted the plaintiff had comparative fault in causing the collision, namely, that the plaintiff’s brake lights were not illuminated, and her left turn signal was off.

Under Indiana’s Comparative Fault Act, which follows a modified comparative fault approach, a personal injury claimant is barred from recovery if the claimant’s fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages. Ind. Code § 34-51-2-6. In other words, if the fault of the claimant is greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the defendant or defendants. Ind. Code §§ 34-51-2-7, 34-51-2-8. If the plaintiff’s fault is not greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the plaintiff. Id.

Indiana’s Comparative Fault Act provides that a court shall instruct a jury to determine its verdict taking into account the percentage of fault of the claimant/plaintiff, of the defendant/defendants, and of any person who is a nonparty. Id. The Act further provides that the trial court shall provide the jury with forms of verdicts that require only the disclosure of the percentage of fault of each party and nonparty and the amount of the verdict against each defendant. Ind. Code § 34-51-2-11.

The Indiana Supreme Court recently issued an opinion in a car accident case in which the question before the Court was whether a party may use evidence of an expert witness’s professional disciplinary history to challenge the expert’s credibility. In Tunstall v. Manning, 124 N.E.3d 1193, 1195 (Ind. 2019), the plaintiff filed a lawsuit against a defendant driver that had rear-ended the plaintiff at a stop sign, causing injuries to the plaintiff. One of the plaintiff’s treating physicians diagnosed the plaintiff with a 28% whole body impairment.

Leading up to the jury trial, counsel for the defendant inquired about the plaintiff’s physician’s past professional discipline and the reasons underlying the physician’s past discipline. While the physician admitted his medical license had previously been on probation, he refused to answer questions about the reasons underlying his past discipline. When the defendant filed a motion in court to compel the plaintiff’s physician to answer questions about his past discipline, the trial court denied the motion, reasoning that the physician’s professional disciplinary history was not relevant because his medical license was in good standing. At trial, the defendant was unable to use the physician’s licensure probation and the reasons underlying the physician’s past discipline to impeach the physician’s testimony, which was the sole medical testimony offered by the plaintiff, based upon the trial court excluding any evidence of the plaintiff’s physician’s past licensure probation and the reasons for his past professional discipline.

After an Indiana jury returned a verdict in favor of the plaintiff, the defendant appealed, arguing the trial court abused its discretion by disallowing evidence of the plaintiff’s physician’s licensure probation and the reasons underlying his professional discipline. In personal injury cases in which there are competing expert opinions as to the seriousness of a person’s injuries, expert testimony can be particularly important in affecting the amount of any jury verdict in favor of the plaintiff. Once the foundation for an expert’s opinions has been established, the accuracy, consistency, and credibility of the expert’s opinions can be challenged by the parties. The question in this case was whether the plaintiff’s physician’s expert opinions could be attacked by evidence of his professional disciplinary history.

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