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Articles Posted in Truck Accidents

Indiana Court of Appeals Finds No Evidence of Bad Faith in Underinsured Construction Zone Truck Accident Case

Published on: August 10, 2021 | by Barsumian Armiger

The Indiana Court of Appeals recently found in favor of an insurance carrier with regards to its handling of an underinsured claim in a construction zone truck accident case. In Brandell v. Secura Ins., Christopher Brandell (“Brandell”) was working construction on an Indiana interstate adjusting traffic control devices when he was hit by a truck, resulting in severe injuries. Brandell pursued various claims arising from the truck collision, including an underinsured claim against Secura Insurance (“Secura”), which provided underinsured coverage through a commercial auto policy issued to Brandell’s employer. Under Secura’s insurance policy, Brandell had to be “occupying” a covered vehicle, with the policy defining “occupying” as “in, upon, getting in, on, out or off.”

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.

The $0 Whiplash and Mild Concussion “Verdict of Silence”

Published on: February 14, 2021 | by Barsumian Armiger

How does a $1,000,000 verdict in a car-accident-whiplash case become a $250,000 verdict and then ultimately become a $0 judgment? That is the query recently answered by the Seventh Circuit in Spinnenweber v. Laducer.

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.

Indiana’s Good Samaritan Law Protects Truck Driver Rear-Ended by Motorist While Stopped to Provide Assistance to Prior Car Accident

Published on: December 9, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently ruled in favor of Eric McGowen (“McGowen”) in a counterclaim filed by Bradley Montes (“Montes”) for injuries Montes suffered when he rear-ended McGowen’s semi-truck, which was stopped on a county road while McGowen was attempting to assist another motorist who had been involved in a prior car accident. The collision occurred on an early foggy morning in Tippecanoe County, Indiana. McGowen, driving under the speed limit due to poor visibility, stopped in the road when he noticed a heavily damaged truck in a ditch on the side of the road and a man, Ryan Patton (“Patton”), appearing drunk or injured. McGowen stopped in the road, with his brake lights illuminated, rolled down his window, and asked Patton if Patton wanted him to call 911. Patton asked McGowen to call 911. Within fifteen to thirty seconds from McGowen stopping in the road, Montes collided into the rear of McGowen’s semi-truck.

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.

Automobile Insurer Liable in Indiana Case for Hospital Lien Arising Out of Settled Ohio Auto Accident Case For Failing to Comply with Indiana Hospital Lien Act

Published on: October 9, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently held in Parkview Hosp. Inc. v. Am. Family Ins. Co. that a hospital was entitled to judgment as a matter of law on its hospital lien claim against an automobile insurance company that paid settlement funds directly to an injured party pursuant to an Ohio court order due to the insurance company’s failure to comply with the Indiana Hospital Lien Act. After suffering injuries in a car accident in Ohio, Carl Willis (“Willis”) received treatment for his injuries at Parkview Hospital (“Parkview”) in Allen County, Indiana with a balance due of $95,541.88 for the treatment provided at Parkview. Parkview filed a hospital lien in Allen County, Indiana pursuant to the Hospital Lien Act, Ind. Code § 32-33-4-4, and provided notice of such lien to Willis, Willis’ attorney, and American Family Insurance Company (“American Family”). Willis thereafter filed suit in Ohio against the parties responsible for the accident and American Family.

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 Supreme Court Upholds Jury Verdict in Truck Crash Case Finding Some Evidence to Support Trial Court’s Failure to Mitigate Instruction

Published on: September 30, 2020 | by Barsumian Armiger

We previously wrote about an Indiana Court of Appeals case in which the court reversed a trial court’s judgment on a jury verdict of $40,000 for a plaintiff in a truck accident case and remanded the case for a new trial based upon the trial court’s giving of a failure to mitigate jury instruction. In Humphrey v. Tuck, the plaintiff, Patrick Humphrey, suffered swelling of a pre-existing tumor after being sideswiped by a truck and hitting his head, which caused problems with his vision and symptoms of a hormonal imbalance. Humphrey did not follow his doctor’s orders and advice with regards to medication management and an eyeglass prescription. However, the parties disagreed as to whether the defendants had shown such failure increased his harm, and if so, by how much. In a recent opinion, the Indiana Supreme Court found there was sufficient evidence to support a failure to mitigate instruction, thereby vacating the Court of Appeals opinion and affirming the judgment.

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.

It’s the Law: No Holding or Using Phones While Driving in Indiana

Published on: July 25, 2020 | by Barsumian Armiger

As injury lawyers representing victims of car crashes, one of the most common causes of car accidents we see in police reports is that the at-fault driver was texting or reached down to retrieve a dropped phone. These common car crash causes should vanish if drivers follow Indiana’s new hands-free phone law. Indiana Passes Hands Free Phone Law

“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.

Payment of Hospital Lien Does Not Reduce Tortfeasor’s Automobile Bodily Injury Liability Policy Limits for Purposes of Underinsured Motorist Coverage

Published on: May 1, 2020 | by Barsumian Armiger

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).

Recovery of Diminished Value of Truck in Auto Accident Case Approved by Indiana Court of Appeals

Published on: February 24, 2020 | by Barsumian Armiger

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.

Insurers Assume the Risk When Disputing Coverage While Not Defending Their Insureds

Published on: November 14, 2019 | by Barsumian Armiger

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.

New Trial on Damages Required When Failure to Mitigate Instruction Given in Truck Accident Case Without Evidence of Causation Between Failure and Damages Sustained by Plaintiff

Published on: October 30, 2019 | by Barsumian Armiger

The Indiana Court of Appeals recently found a trial court erred when it instructed a jury on the plaintiff’s alleged failure to mitigate damages in an Indiana truck accident case. In Humphrey v. Tuck, the plaintiff filed a lawsuit against a truck driver and a trucking company arising from a trucking collision in which the trailer of the tractor-trailer being driven by the truck driver struck the plaintiff’s vehicle while the plaintiff was driving on the highway. As a result of the impact, the plaintiff hit his head on something inside his car and his windshield cracked. The following day the plaintiff experienced problems with his left eye and removed a sliver of glass from his eye.

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.