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Justice v. American Family Insurance

Indiana Supreme Court reversed grant of summary judgment to American Family and held that plaintiff is entitled to recover the remaining $25,000 from American Family under the terms of his underinsured motorist policy limit because the set-off using workers’ compensation benefits in his case would reduce the policy below the statutory minimum. The policy explicitly stated that wok comp benefits set-off reduced the limits of liability, and in this case would bring the policy limits below the statutory minimum.

www.in.gov/judiciary/opinions/pdf/03131401mm.pdf.

Medical malpractice complaint deemed filed on date sent via FedEx

The Indiana Supreme Court reversed the Appellate Court’s holding that a medical malpractice complaint could only be deemed filed as of the date of mailing if, and only if, the complaint were sent out via registered or certified mail. This interpretation of Ind. Code § 34-18-7-3(b) excluded delivery services such as FedEx or UPS. Thus, a party filing a medical malpractice complaint via FedEx, as in this case, would have their complaint with the Dept. of Insurance deemed filed on the date of receipt by the DOI rather than the date it was sent out. Here, it meant the filing of the complaint occurred after the statute of limitations expired.

On a petition for rehearing (which was denied without any further opinion), the plaintiff raised for the first time that Ind. Code § 1-1-7-1(a) should control. That statute reads in relevant part:

If a statute enacted by the general assembly or a rule . . . requires that notice or other matter be given or sent by registered mail or certified mail, a person may use: (1) any service of the United States Postal Service [“USPS”] or any service of a designated private delivery service (as defined by the United States Internal Revenue Service) that: (A) tracks the delivery of mail; and (B) requires a signature upon delivery . . . .

Id. (emphasis added in opinion).

Thus, two issues were presented to the Court: 1) could the plaintiff raise this argument for the first time on rehearing, and 2) could the above statute control the application of Ind. Code  § 34-18-7-3(b). The Supreme Court answered both of these questions in the affirmative.

As to the first point, the Court observed: “The crucial factor, however, in determining whether [the plaintiff] may interject what appears to be a new issue into the appeal is whether [the defendant] had unequivocal notice of the existence of the issue and, therefore, had an opportunity to defend against it.” Hochstedler v. St. Joseph Cnty. Solid Waste Mgmt. Dist., 770 N.E.2d 910, 918 (Ind. Ct. App. 2002), trans. denied. The Court found that the issue of whether the complaint was timely filed was clearly conveyed at all levels and so defendants’ objection on this argument was overruled.

On the second, the Court focused on two portions of the statute: 1) that the med mal statute required delivery by registered or certified mail in order to deem a complaint filed; and 2) that the filing of the complaint fell under the “or other matter” provision.

In closing the Court emphasized that its opinion was an elevation of “form over substance” and observed that there really was no difference anyway between filing a complaint via FedEx or UPS overnight and doing so via registered or certified mail.

www.in.gov/judiciary/opinions/pdf/03101401bd.pdf.

County’s decision not to retain highway supervisor was not subject to judicial review

Indiana Supreme Court holds that county’s vote not to retain supervisor and subsequent yay/nay vote to retain different supervisor were ministerial acts, and not quasi-judicial, and thus were not subject to judicial review.

The Court recited the four factors that would render an act judicial or quasi-judicial:

(1) the presence of the parties upon notice; (2) the ascertainment of facts; (3) the determination of the issues; and (4) the rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities. See Lincoln v. Bd. of Comm’rs of Tippecanoe Cnty., 510 N.E.2d 716 (Ind. Ct. App. 1987), abrogated in part on other grounds by McDillon v. N. Ind. Pub. Serv. Co., 841 N.E.2d 1148 (Ind. 2006).

Here, the Court found that there was “not a ‘determination of issues’ nor a ‘rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities.'” under Lincoln and therefore held that the decision was ministerial.

www.in.gov/judiciary/opinions/pdf/03061401bd.pdf.

Mitchell v. 10th and The Bypass, LLC

Evidence obtained after entry of an order granting a motion for partial summary judgment may not form the basis for vacating that order. Relief from judgment under Indiana Trial Rules is not limited to final judgments.

www.in.gov/judiciary/opinions/pdf/02201401rdr.pdf.

Short note on tendering exhibit logs for trial ex parte

Earlier this week, the Indiana Supreme Court  ruled on several issues in the case of Inman v. State. While this was a criminal matter, there was one section directed toward the practice of tendering exhibit logs ex parte which could be applied to civil trial practice as well. 

Despite the fact that the exhibit log was provided to the trial court for convenience and administrative purposes, we suggest the better practice going forward would be for trial courts to refuse to accept exhibits when tendered ex parte, unless the opposing party has been given notice and an opportunity to be heard on the matter.

So, be it a criminal or civil trial, the next time you consider tendering an exhibit log without notice to the other side beforehand (or at the last minute), the opposing side may have a valid objection to prevent the Court from viewing it.

Inman v. State, No. 49S00-1207-LW-000376, __ N.E.2d __ (Ind., Feb. 11, 2014)..

Local fraternity potentially liable for personal injuries from hazing but not national fraternity or university

In today’s decision, the Indiana Supreme Court addressed several questions relating to duty and the safety of college students. The analysis can be broken down as follows:

  1. Wabash College: Wabash College was not liable under a premises liability theory since its tenant, the local fraternity, maintained exclusive control and possession of the premises where the injury occurred. The school’s promulgation of a policy against hazing was insufficient to create an assumed duty as it “did not extend to direct oversight and control of the behavior of individual student members of the local fraternity.” In other words, it discouraged hazing and offered educational outreach but did not police it in such a way that it failed in its undertaking to protect Yost. Finally, the local fraternity was not the agent of Wabash since “mere consent to governance does not equate to agency.”
  2. National Fraternity: the  Fraternity similarly lacked liability on the theories of assumed duty and agency and the reasoning mirrored that which was applied to Wabash.
  3. Local Fraternity: the local fraternity did bear liability because there were sufficient facts to show that the fraternity may have assumed a duty of care of Yost in that it may have assumed supervisory services upon which Yost relied.

www.in.gov/judiciary/opinions/pdf/02131401bd.pdf.

Veolia Water Indianapolis, LLC, et al. v. National Trust Ins. Co.

Indiana Supreme Court case clarifies issues of sovereign immunity with respect to third party contractors. Here, the insurer (NTI) of Texas Roadhouse sued, as subrogee of the restaurant, Veolia, a company managing water for City of Indianapolis. NTI stated that the hydrants were negligently managed and therefore a fire that broke out at Texas Roadhouse resulted in a total loss of the building.

The Indiana Supreme Court held that the City could not claim immunity for discretionary functions under the ITCA since it made no policy decision to enforce the standard of care promulgated in the contract between the City and Veolia (basically, no decision at all is not the same as deciding to do nothing).

The Court then held that common law immunity applies under Campbell v. State, 284 N.E.2d 733 (Ind. 1972) exception to the claims relating to providing adequate fire protection.

Finally, the Court held that Veolia was not entitled to common law immunity since it was a “for-profit private company operating a public utility under contract with a governmental unit” as opposed to a company working at the direction of the government as distinguished in Metal Working Lubricants Co. v. Indianapolis Water Co., 746 N.E.2d 352 (Ind. Ct. App. 2001), where common law immunity did apply to the third party contractor.

www.in.gov/judiciary/opinions/pdf/02061401SHD.pdf.

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