Simultaneous Death and the Indiana Wrongful Death Statute: Resolving the Ambiguities of the Statute when the Order of Death is Ambiguous

by Jon Noyes (Attorney Profile)
Wilson Kehoe Winingham LLC
2859 N. Meridian St.
Indianapolis, IN 46208
(317) 920-6400
wkw.com

[Editor’s Note: This is the second article Jon Noyes has written for the Indiana Law Review Blog. You can find his first article here.]


Indiana’s adult wrongful death statutes group individuals into two categories:  (1) adults who were married, or possessed dependent next of kin, or both; [1] and (2) adults who were not married and possessed no dependent next of kin. [2].  Which category the decedent falls into determines the measure of damages available. [3].

Under normal circumstances, this does not present a substantial obstacle.  It is usually easy to determine whether or not the decedent was married or possessed dependent next of kin.  This can be as simple as looking at the decedent’s death certificate.  However, what if it is impossible to determine whether the decedent possessed a spouse or dependents at the time of his or her death?  For example, how would a married couple be categorized if they had no dependents and died in a manner that left it impossible to determine who predeceased who?  Can the plaintiff show that the decedent meets the requirement of either?

The answer is no.  As discussed below, if two individuals that would normally be considered adults that were married expire simultaneously or in a manner that makes it impossible to determine who predeceased who, the plain language of the Wrongful Death Statute seems to indicate that it would be impossible to determine which measure of damages apply.  However, under principles of equity, the personal representatives of the decedents should be able to recover damages as if both individuals left surviving spouses. (more…)

The Dreaded Pre-Tender Issue: Indiana Courts Should Reconsider Whether Pre-tender Costs are Recoverable

by Ryan T. Leagre (Attorney Profile) [i]
Associate
Plews Shadley Racher & Braun LLP
1346 N. Delaware St.
Indianapolis, IN 46202-2415
(317) 637-0700
rleagre@psrb.com


The ability of a policyholder to recover pre-tender costs is an evolving area of insurance coverage law. In Dreaded, Inc. v. St. Paul Guardian Insurance Company, the Indiana Supreme Court held that, under the facts of that case, a policyholder could not recover the legal expenses it incurred defending itself from a claim asserted by the Indiana Department of Environmental Management (“IDEM”) prior to giving notice of or tendering the claim to its insurer. [1]. And while Dreaded was limited to the facts of that case, the Indiana Court of Appeals in Travelers Insurance Company v. Maplehurst Farms, Inc. interpreted Dreaded to mean that pre-tender costs are simply not recoverable. [2]. The courts’ decisions in Dreaded and Maplehurst rested, in part, on two grounds: (1) an insurer’s duty to defend its policyholder does not arise until the policyholder provides notice of the claim; [3] and (2) the insurance policy provision requiring a policyholder to give notice of a claim to the insurer is a condition precedent to coverage. [4].

Indiana courts should reconsider the holdings in Dreaded and Maplehurst. [5]. These holdings result in the forfeiture of coverage, which is unfair and disfavored under Indiana law, [6] and ignore the realities of long-tail environmental claims. [7]. To begin, Dreaded’s explanation of the duty to defend is incomplete. An insurer’s duty to defend its policyholder is not triggered by notice of the claim, but rather by the existence of a potentially covered claim. [8](more…)

How Corporate Transactions Can Make Liability Insurance Coverage Disappear

by Lara Langeneckert
Deputy Solicitor General
Office of the Indiana Attorney General
lara.langeneckert@atg.in.gov


Imagine you are a successful widget manufacturer, and you have just expanded your business by purchasing another widget company called Acme. In the sale, you received all of Acme’s corporate assets, including its commercial general liability (“CGL”) insurance policy [1] from Flanders Insurance. You are all set to begin producing more widgets than ever before when a lawsuit stops you in your tracks: Apparently, the day before you bought Acme, an Acme widget exploded and injured three people. Those people are now suing you, Acme’s successor-in-interest, to recover for their personal injuries.

A bad situation, to be sure, but you’re not too worried. After all, you have Acme’s CGL policy, so Flanders has to defend and indemnify you against this lawsuit, right? To give a classic lawyer answer: it depends [2]—mostly upon what jurisdiction you happen to be in. And if you are in Indiana, you are probably out of luck. This Article discusses the development of the law in this area, with a specific focus on Indiana. Specifically, this Article addresses two ways corporate policyholders can protect themselves both before and after a sale. (more…)

Testimony of Professor of Law Robert Katz on Indiana RFRA

by Robert A. Katz
Professor of Law (Faculty Profile)
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 349
530 W. New York Street
Indianapolis, IN 46202-3225

[Editor’s Note: This article departs from the typical format and citation style of the Indiana Law Review Blog in the interest of providing commentary on the passage of Senate Bill 101, commonly referred to as the “Religious Freedom Restoration Act,” or RFRA. This article consists of abbreviated remarks presented by the author to the House Judiciary Committee of the Indiana General Assembly on March 16, 2015, 10 days before the bill was signed into law by Indiana Governor Mike Pence.]


Good day. My name is Robert Katz. I am a professor of law at Indiana University Robert H. McKinney School of Law where I teach First Amendment law and law and religion. My research focuses on the tension between religious freedom and anti-discrimination law. It is one of my most profound concerns as a citizen, a parent, and a member of the Jewish community.

The freedom of religion is one of our most fundamental rights as Americans. Yet, also precious to us as citizens are our civil rights and, most relevantly here, our right to be free from discrimination.

As I understand it, this bill has two main goals. (more…)

Separating Myths from Reality: Four Arguments for Raising the Minimum Wage

by Fran Quigley
Clinical Professor of Law (Faculty Profile)
Health and Human Rights Clinic
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 111N
530 W. New York Street
Indianapolis, IN 46202-3225


Proposals to raise the U.S. minimum wage have attracted a great deal of attention in the last several years.  At the federal level, President Obama and many members of Congress have expressed support, via the Fair Minimum Wage Act, for an increase in the U.S. minimum wage. [1]. The legislation calls for an increase to $10.10 per hour for most workers, compared to the current minimum of $7.25 per hour. [2].  The bill also would increase the bottom level of pay for tipped workers from $2.13 per hour to 70% of the hourly worker minimum, and index both hourly and tipped worker wage levels for inflation. [3].

The federal bill has not passed, but twenty-nine states and the District of Columbia have all raised their minimum wage above the federal level. [4].  At least 140 individual communities have passed living wage ordinances, which raise salaries above the federal or state minimums. [5].  Bills proposing an increase in Indiana’s minimum wage, currently set to mirror the federal level, [6] failed to get a hearing in the 2015 session of the Indiana General Assembly. [7].

The minimum wage debate has often been characterized by misstatements of facts and forecasts that are not supported by evidence.  In an effort to separate the myths from the reality, here are four arguments for raising the minimum wage: (more…)

Myths and Realities of GMO Labeling Initiatives

by Drake T. Land
J.D. Candidate, 2015, Indiana University Robert H. McKinney School of Law
Indiana International & Comparative Law Review: Executive Articles Development Editor
B.S., 2007, Ball State University; Muncie, Indiana
dtland@umail.iu.edu
Twitter (@draketland)
LinkedIn

Editor’s note: Mr. Land’s article was selected from submissions in the Indiana Law Review‘s first writing competition.


Following the introduction of Genetically Modified Organisms (“GMOs”) into the food market in 1994, [1] consumer groups and multiple legislative bodies have fought to restrict their sale and label GMOs differently than traditionally developed foods. [2].  This push to restrict the sale, or label, of GMOs is born of the fear that GMOs will have unforeseen consequences to human health and/or the environment. [3].  These fears have been shown to be unrealized after twenty years of market availability [4] and, although restrictions on the sale of GMOs and mandatory labeling is the law in most European countries, [5] labeling initiatives have not achieved the same success in the United States’ federal and state governments. [6].  The European Union “has probably the strictest GMO regulations in the world though these derive rather from political considerations, rather than being based upon scientific principles.” [7].  Unlike the European Union (“the EU”), the United States Constitution explicitly “promote[s] the progress of science,” [8] and under this framework the United States has provided more protection to the development and retail of GMOs.

All currently grown crops have been developed through genetic modification. [9].  “By selectively breeding plants and animals with the most desirable traits, our predecessors transformed organisms’ genomes, turning a scraggly grass into plump-kerneled corn, for example.” [10].  Following Mendel’s discovery of the inheritance of genetic traits, farmers and scientists alike have been using selective breeding and hybridization to alter food crops to make them more reliable and marketable. [11].  “Today, there are virtually no food products in supermarkets that have not been improved in some manner by selective breeding.” [12]. (more…)

The Best of Both Worlds: A Solution to Indiana’s Appointment of Counsel Funding Problem

by Burnell K. Grimes, Jr.
J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law
B.A., 2013, Indiana University – Bloomington; Bloomington, Indiana
bukgrime@indiana.edu
LinkedIn

Editor’s note: Mr. Grimes’s article was selected as the winner of the Indiana Law Review‘s first writing competition. You can read more about it here.


The Indiana State Legislature has established a statutory rule allowing a court to appoint an attorney to represent an indigent person in civil matters, upon application by the litigant. [1].  In Sholes v. Sholes, the Indiana Supreme Court held that (1) Indiana Code section 34-10-1-2 requires appointment of counsel for civil indigent litigants, and (2) the appointed counsel must be compensated. [2].  However, the Court did not specifically decide who would be responsible for compensating those attorneys who are appointed as counsel to indigent citizens. [3].  While the Court suggests that the county courts use their authority to require payment as part of the functions of the court’s administrative duties, this has placed a significant burden on courts that are already constrained by tight county budgets. [4].

While there are many possible solutions to the funding problem associated with civil legal aid in Indiana, there is a need to establish one funding source responsible for all civil legal aid matters. [5].  This article will discuss one possible solution to the funding problem for civil legal aid in Indiana, with a specific focus on the Indiana Civil Legal Aid Fund and the Indiana Pro Bono Commission.  These funds may be used to address the funding and participation shortage for both civil indigent litigants and pro bono efforts and legal aid projects in Indiana. (more…)

Congratulations to the Vol. 49 Editorial Board!

The Indiana Law Review is pleased to announce the following members have been selected for its editorial board of Volume 49. We look forward to their leadership and contributions to legal scholarship throughout the 2015-16 academic year. Congratulations!

Alexandria Hanauer, Editor in Chief
C. Addison Bradford, Executive Managing Editor
Elizabeth Little, Executive Notes Editor
Kathleen Fennessy, Executive Articles Editor
Aaron Tuley, Executive Articles Editor
Mitchell Osterday, Senior Executive Editor
Alexandra Blackwell, Symposium Editor
Sarah Hurdle, Executive Technology Editor

Note Development Editors:
Evan Carr
J. Michael Deweese
Drew Kirages
Johanna O’Connell
Jason Rauch
Emily Schmale

Articles Editors:
Kaitlyn Collyer
Jordan Lorenzo
Brad Murphy
Ellen Pactor
Christi Rever

The State of the Internet: Keyword Advertising

by Caitlin R. Brandon (Attorney Profile)
Associate, Intellectual Property
Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, IN 46204
(317) 231-7550
LinkedIn


Keyword advertising is not a new phenomenon.  Some believe that various forms of keyword advertising have been around since as early as 1996. [1].  Generally defined as a “form of advertising on the Internet in which a business pays to have an advertisement [for] a website appear on [a consumer’s] computer screen when [the consumer] uses a particular word or phrase to search for information on the internet,” [2] keyword advertisements play a very important role in the marketing and advertising of many businesses. (more…)

Congratulations to Burnell Grimes, Winner of the First Indiana Law Review Blog Writing Competition!

In an effort to promote student involvement in the Indiana Law Review Blog, the Indiana Law Review held a writing competition open to all IU McKinney law students during the 2014 fall academic semester. After reviewing submissions to the contest, the article authored by Burnell Grimes, a second year law student at IU McKinney, was selected as the best submission.

His article titled “The Best of Both Worlds: A Solution to Indiana’s Appointment of Counsel Funding Problem” will be published on the Indiana Law Review Blog in the coming months. Check back later to read about his proposed solution to improve the efficiency and efficacy of the legal aid and pro bono programs for Indiana’s indigent populations.