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Over a year and a half ago we wrote about the Indiana Court of Appeals decision in Parkview Hosp. Inc. v. Am. Family Ins. Co. (“Parkview I”) in which the Court held that Parkview Hospital (“Parkview”) was entitled to summary judgment on its hospital lien claim against American Family Insurance Company (“American Family”) after American Family violated the Indiana Hospital Lien Act, Ind. Code § 32-33-4-4, by paying settlement funds directly to Ohio plaintiffs in a car accident personal injury matter pursuant to an Ohio court order without having obtained a release of Parkview’s hospital lien. Recently, the Indiana Court of Appeals issued another opinion in Parkview Hosp. Inc. v. Am. Family Ins. Co. (“Parkview II”) in a second appeal of the matter.

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

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

The Indiana Court of Appeals recently revived a parents’ case filed against a public school for mental anguish their seven-year-old son experienced when he was incorrectly directed to walk home from school instead of riding the school bus home. In Hopkins v. Indianapolis Pub. Sch., Casey Hopkins and Terry Yarbrough (the Parents), filed a lawsuit on behalf of their son, DeShawn Yarbrough (DeShawn), against Indianapolis Public Schools d/b/a Ralph Waldo Emerson School 58 (the School). On DeShawn’s second day of first grade at the School, DeShawn, who had a blue tag attached to his school bag indicating he was a bus rider, got in line to go home on the school bus, as he had done the previous day. However, he was directed by a teacher to leave the line and wait with other children who would be walking home. DeShawn had never walked to or from the school and his house was around 1.2 miles from the school. He did not know how to get home and ended up walking over a mile in the wrong direction during which time he was approached by a homeless man in an alley, he was chased by dogs, and he had to cross a busy road at rush hour. Ultimately, a stranger helped DeShawn and contacted the school, the police, and his mom.

The Parents sued the school claiming the School failed to exercise reasonable care and supervision for DeShawn’s safety. The School filed a motion for summary judgment in court arguing it was entitled to immunity as a governmental entity under the Indiana Tort Claims Act (ITCA), which provides “[a] governmental entity… is not liable if a loss results from… [t]he adoption and enforcement of or a failure to adopt or enforce… in the case of a public school… a policy.” Ind. Code § 34-13-3-3(a)(8)(B). After a hearing, the trial court granted the School’s motion for summary judgment finding the School was immune from liability under the ITCA.

The Parents appealed and on appeal argued the School was not entitled to immunity under Indiana Code § 34-13-3-3(a)(8)(B) because what happened to their son did not result from the School’s failure to properly enforce a school policy. While the Court of Appeals noted some question as to the meaning of “policy” under the ITCA, the Court ultimately concluded the Parents’ claim did not arise from the School’s failure to “enforce” its dismissal procedures, and therefore the School was not entitled to the “enforcement” immunity under the ITCA. The Court reviewed prior precedent defining enforcement under the ITCA as “compelling or attempting to compel the obedience of another to laws, rules or regulations, and the sanctioning or attempt to sanction a violation thereof,” such as a school deciding to suspend, expel, or impose discipline on students. Here, the Court ruled public schools are not entitled to immunity when they are sued concerning their own compliance, or failure to comply, with laws, regulations, or their own policies, and since the Parents were alleging the School itself failed to comply with its own dismissal procedures, as opposed to the School failing to compel DeShawn’s obedience to its dismissal procedures, the trial court erred in granting summary judgment under Indiana Code § 34-13-3-3(a)(8)(B) of the ITCA.

In a matter of first impression, the Indiana Court of Appeals recently reviewed the applicability of Indiana’s Bystander Rule for emotional distress damages arising from a home gas explosion and fire. In Ceres Sols. Coop., Inc. v. Estate of Bradley, Ceres Solutions Cooperative, Inc. (“Ceres”) negligently failed to check for gas leaks in refilling a propane tank at Kenneth Bradley’s (“Bradley”) home. Bradley lived in the home with his wife Kathy and son Eric. In the early morning after the refill, while Bradley was at work, Eric turned on a lamp next to his bed, which caused an explosion, surrounding him in a ball of fire. Part of the home’s roof collapsed and there was rubble and fires around the home. Eric was severely burned but escaped. Kathy was killed.

Bradley filed a lawsuit against Ceres which included a claim for his emotional distress. Typically, to recover emotional distress damages in Indiana, under Indiana’s Modified Impact Rule, a claimant must suffer a direct impact by another’s negligence and by virtue of that involvement suffer an emotional trauma serious in nature and of a kind and extent normally expected to occur in a reasonable person. However, Indiana has also adopted the Bystander Rule, which is an exception to the Modified Impact Rule, that allows emotional distress damages when a claimant establishes a direct involvement with the incident. To recover emotional distress damages under Indiana’s Bystander Rule, courts consider as a matter of law three factors: (1) the severity of the victim’s injury (serious injury or death to a victim), (2) the relationship of the plaintiff to the victim (a close familial relationship with the victim), and (3) the circumstances surrounding the claimant’s discovery of the victim’s injury (direct observation of the incident or its immediate “gruesome aftermath,” rather than learning of the incident by indirect means). To satisfy the third factor, (A) the bystander claimant must come on the scene at or immediately following the incident, (B) the claimant must not have been informed of the incident before coming on the scene, and (C) the scene and victim must be in essentially the same condition as immediately following the incident.

Here, about three hours after the explosion, Bradley was driving home from work when he came upon a roadblock, around three-quarters of a mile from his home. He could see flames coming from his home. He asked the lady at the roadblock, who was a local volunteer firefighter’s wife, whether his wife made it out of the house, but she did not know, she had no radio, and she had not been provided any information as to what was occurring. Bradley drove to his home and saw “big and steady” flames. Bradley saw his son Eric on a gurney with a blanket on and visible burn injuries to his face. Eric told Bradley he did not know where Kathy was, and although firefighters continued to search for her, the flames got bigger every time they dug, so they had to wait. The firefighters eventually found Kathy and made Bradley leave the scene so they could remove her.

We previously wrote on the Indiana Court of Appeals opinion in K.G. by Next Friend Ruch v. Smith in which the Indiana Court of Appeals held that Melody Ruch (“Ruch”) could not recover damages for emotional distress arising from the sexual abuse of her child. Ruch’s disabled child was sexually abused by a school instructional assistant who later plead guilty to child molesting. Ruch filed a lawsuit against Morgan Smith (“Smith”), the assistant, the school, and the Metropolitan School District of Pike Township (collectively “School Defendants”). The School Defendants moved for summary judgment arguing that Ruch could not recover for her emotional distress under Indiana’s traditional impact rule, the modified impact rule, or the bystander rule.

Indiana’s traditional impact rule requires a plaintiff prove (1) an impact on the plaintiff, (2) which causes physical injury to the plaintiff, and (3) which physical injury, in turn, causes the emotional distress. The modified impact rule requires a plaintiff prove a direct impact, and because of that direct involvement an emotional trauma serious enough to affect a reasonable person, without regard to whether the emotional distress arises out of or accompanies any physical injury to the plaintiff. Indiana’s bystander rule requires a plaintiff prove (1) serious injury or death to a victim, (2) a close familial relationship with the victim, and (3) direct observation of the incident or its immediate “gruesome aftermath,” rather than learning of the incident by indirect means.

The trial court granted the School Defendants’ motion for summary judgment, and on appeal the Indiana Court of Appeals affirmed, finding Ruch’s claim for emotional distress did not fall within any of the appliable rules. The Indiana Supreme Court, however, granted transfer and adopted a new rule: when a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child’s parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian’s emotional health. To satisfy the rule, a plaintiff must show (1) that the tortfeasor had a duty of care to the parent or guardian; (2) that there is irrefutable certainty of the act’s commission; (3) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (4) that the abuse severely impacted the parent or guardian’s emotional health. Irrefutable certainty under the Court’s new rule requires an admission to the abuse by the caretaker to a person of authority, a finding of abuse by a judge, or the caretaker’s conviction for the abuse.

The Indiana Supreme Court recently reversed the Indiana Court of Appeals’ denial of a medical malpractice claimant’s request to amend her complaint to allege a violation of 42 U.S.C. § 1395dd, a federal law also known as the Emergency Medical Treatment and Labor Act (“EMTALA”). The claimant, Betty Miller, had sued various health-care providers under medical malpractice theories claiming her mentally ill grandson, Zachary Miller, should not have been released from Community Howard Regional Health Hospital’s (“Community Howard”) emergency room after he had arrived at Community Howard’s emergency room requesting admission for his mental illness and dangerous propensities. She later sought to amend her complaint to include an EMTALA claim.

EMTALA was enacted by Congress to deter hospitals from the practice “dumping” indigent patients. EMTALA provides that a hospital emergency department must screen individuals for “emergency medical condition[s]” and either stabilize the condition or transfer the patient as permitted under the law. However, relevant to the issue presented, any legal claim under the law must be brought no more than two years after the date of the violation.

Federal law can preempt state law either implicitly or explicitly when provisions of the federal and state laws are at odds. EMTALA contains an express preemption provision which provides that “this section does not preempt any State or local law requirement, except to the extent that requirement directly conflicts with a requirement of this section.” 42 U.S.C. § 1395dd(f). A year before Miller, in Williams v. Inglis, the Indiana Court of Appeals had held that EMTALA’s two-year statute of limitations preempted Indiana Trial Rule 15(C)’s provision allowing amendments to timely-filed complaints to relate back to the time the complaint was filed. In, other words, in Williams, the Court of Appeals had held that because EMTALA provided a claim had to be filed within two years after the violation, this conflicted with the otherwise liberal right to amend a complaint under Indiana law and refused to allow an amendment to relate back to add an EMTALA claim after the two years. And, the Indiana Supreme Court had refused to consider Williams’ request for review, so the Court of Appeals had simply followed its past precedent in Miller to deny the same request. Luckily for Miller, unlike in Williams, the Indiana Supreme Court agreed to accept her appeal of the issue in her petition to transfer.

The Indiana Court of Appeals recently found in favor of a grocery store landlord in a premise liability claim for personal injuries arising out of a vehicle-pedestrian collision in a grocery store parking lot. In Poppe v. Angell Enterprises, Inc., Paul Poppe and Susan Poppe were struck by an intoxicated driver and injured as they exited a grocery store. When they exited the store, the Poppes walked through a marked crosswalk to reach their vehicle, which was parked in a handicapped parking spot. As they were walking, they saw a quickly approaching truck and tried to run to get out of the way; however, the truck pinned them against their vehicle. Angell Enterprises, Inc. (“Angell”) was the landlord of the grocery store and responsible for maintaining the grocery store parking lot. In their injury lawsuit filed against Angell and other parties, the Poppes alleged that Angell was liable in part for their injuries by the condition of the parking lot in “the funneling of pedestrian and vehicular traffic” into the crosswalk without “protective features” such as “bollards,” which are protective posts often used in areas with vehicular and pedestrian traffic.

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

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

The Indiana Court of Appeals recently reviewed whether under Indiana law the mother of a disabled child who was sexually abused by a school instructional assistant could bring a claim for the emotional distress she experienced as a result of her child’s sexual abuse. In K.G. by Next Friend Ruch v. Smith, Melody Ruch (“Ruch”) filed a lawsuit individually and on behalf of her daughter, K.G., arising out of sexual abuse of K.G. by Morgan Smith (“Smith”), an instructional assistant at New Augusta North Public Academy. New Augusta North Public Academy and the Metropolitan School District of Pike Township (the “School Defendants”) filed a motion for summary judgment on the individual claims brought by Ruch, including her emotional distress claim. After the trial court granted the School Defendants’ motion, Ruch appealed.

Indiana law allows for the recovery of damages for mental distress or emotional trauma under the traditional impact rule, the modified impact rule, and the bystander rule. Under the traditional impact rule, a plaintiff can recover if the plaintiff can prove (1) an impact on the plaintiff, (2) which causes physical injury to the plaintiff, and (3) which physical injury, in turn, causes the emotional distress. Under the modified impact rule, a plaintiff can recover if the plaintiff suffers a direct impact by another’s negligence, and by reason of that direct involvement suffers an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, without regard to whether the emotional distress arises out of or accompanies any physical injury to the plaintiff. Under the bystander rule, a plaintiff can recover if he or she actually witnessed or came on the scene soon after the death or severe injury of a loved one, with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild or sibling, caused by a defendant’s wrongful conduct, even if he or she was not directly impacted.

In this case, Ruch conceded she could not recover emotional distress damages under the traditional impact rule, the modified impact rule, or the bystander rule, as she was not touched by Smith and did not witness the sexual abuse. However, Ruch argued that Indiana should adopt another rule providing for recovery in cases in which the wrongful conduct would never be witnessed, such as sexual abuse, which occurs in secret. Ruch argued Indiana should allow for recovery when “(1) the genuineness of a claim is beyond question, (2) the facts present a unique and rare occurrence, and (3) the tort would never happen with a witness present.” Unfortunately, the Indiana Court of Appeals rejected Ruch’s invitation to expand the parameters of recoveries for emotional distress damages. The Court also held the Article I, Section 12 of the Indiana Constitution did not require recognition of such claims if not otherwise recognized by law.

Governmental entities in Indiana have a duty to exercise reasonable care to keep roadways and sidewalks reasonably safe for travel. However, governmental entities also enjoy immunity under certain circumstances. In two recent cases dealing with governmental immunity for losses caused by temporary conditions of roadways resulting from weather, the Indiana Court of Appeals has questioned and raised concerns with the Indiana Supreme Court’s analytical framework set forth in the 2002 decision of Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E. 2d 1 (Ind. 2002).

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

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

Barsumian-Armiger-Personal-Injury-Medical-Malpractice-Indiana-Super-Lawyers-1-300x157

Super Lawyers rates Indiana attorneys on a yearly basis in more than 70 different practice areas, including personal injury and medical malpractice.  Following its completion of a peer review process, together with a patented evaluation process, the organization determines the lawyers in Indiana it will include on its Super Lawyers and Rising Stars list and announces those named online and in its Super Lawyers Magazine.  Super Lawyers rates attorneys nationwide among their peers for their respective states and areas of practice.

This year marks Barsumian’s fourth consecutive selection as a Super Lawyer in the field of personal injury.  Super Lawyers recognizes no more than 5 percent of the attorneys in Indiana.  Barsumian was previously selected as a Rising Star on four occasions.  Armiger, recognized for the area of medical malpractice, has now been selected to the Rising Star list on five occasions.  The Rising Stars designation recognizes attorneys 40 years old or younger and represents only 2.5 percent of the attorneys in Indiana.

Barsumian and Armiger are proud of this recognition and look forward to continuing to serve their clients in the Indianapolis and Evansville area in the areas of personal injury, medical malpractice, and wrongful death.

Unlike Indiana, Kentucky has a statute, the Unfair Claims Settlement Practices Act (“UCSPA”), KRS 304.12-230, that expressly allows for bad-faith claims to be brought against liability insurers for unfair claims settlement practices.  However, so-called captive insurers have taken the position that they are excluded from the law.  The Kentucky Supreme Court recently addressed the issue in Merritt v. Catholic Health Initiatives, Inc.

Harold Merritt alleged that Dr. Anthony Smith, an employee of KentuckyOne Health, was responsible for medical negligence in the deaths of his wife, Kimberly, and infant son.  During her pregnancy, Kimberly developed placenta previa, a condition wherein the baby’s placenta partially or totally covers the mother’s cervix, which can cause severe bleeding during pregnancy and delivery.  Although the high-risk obstetrician to whom Dr. Smith referred Kimberly recommended a caesarian section no later than at thirty-seven weeks gestation, Dr. Smith examined her at thirty-seven weeks and scheduled an appointment one week later.  Shortly thereafter Kimberly was found unresponsive at home and died shortly after being transported to the hospital by EMS.  The couple’s child was delivered by post-mortem caesarian section, but only survived a few hours, suffering seizures during that time.

In his medical malpractice complaint, Merritt named Catholic Health, an entity that sponsors KentuckyOne Health and its affiliates, and First Initiatives, a foreign, wholly-owned subsidiary of Catholic, which provided self-insurance coverage to Catholic, its affiliates and employees including KentuckyOne Health and Dr. Smith.  First Initiatives provided coverage and Catholic paid assessments to First Initiatives, although Catholic’s affiliates did not pay for the coverage.  Merrit included a claim that First Initiatives violated the UCSPA, KRS 304.12-230, by engaging in bad faith settlement negotiations.

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