Business, Commercial & Corporate Law

Indiana’s New Commercial Courts: Waiting for Work

by Allison Skimehorn, 2L Note Candidate

j16_4152Business courts may have gotten their start over 220 years ago in United States, but they are brand new to Indiana. The Indiana’s Commercial Court Pilot Project began just this June, with jurisdictions that span over the entire state. Tyler Moorhead’s article poignantly lists some of the great advantages these courts can provide, such as efficiency, common law predictability and their progressive use of technology. However, since the June 1st start date, it appears that cases on commercial court dockets have been slow to take off.  For example, the Lake, Floyd and Vanderburgh branches have not had a single filing as of September 28, 2016. Dave Stafford, Commercial court cases increase; dockets now accessible online, The Indiana Lawyer (September 28, 2016), http://www.theindianalawyer.com/commercial-court-cases-increase-dockets-now-accessible-online/PARAMS/article/41568 [https://perma.cc/VR7S-GKWF].  This absence maybe due to the fact that the court will only take cases filed after June 1st of this year and, of course, that the court is still very new.  As of now, the commercial court does remain voluntary, allowing a party to opt out of it within 30 days. However, this may change if the three year pilot is renewed indefinitely. This would eventually help those slower counties get a hold of more cases for their docket.

Another interesting part of Moorhead’s article discusses the court’s embrace of new technology. From e-discovery to litigant video conferencing, it is apparent that commercial courts are ready to take the dive into the modern era. Utilizing technology, while maintaining judicial integrity, helps lend a hand to shortening complex contract and tort claims dramatically. The article references a study that found that complex contract claims can be handled at an average of 1,138 days more quickly than their civil court counterparts.  The slow trickle of cases into the Indiana Commercial Court docket could possibly elicit a much faster turnaround time than similar complex cases in an already behind and strapped civil court system.

With the clear benefit of efficiency and technological flexibility, it’s quite a surprise that the Commercial Court Pilot Project has not been completely inundated with work. However, the project is still very new to Indiana, and will likely grow in popularity once these benefits are more clearly realized.  This specialized court has been around for 220 years, and spread to twenty-seven states due to its effectiveness, but sometimes things just take time. To learn more about this topic, check out Tyler Moorhead’s note in this issue of the Indiana Law Review. Moorhead, Tyler, Business Courts: Their Advantages, Implementation Strategies, and Indiana’s Pursuit of Its Own, 50 Ind. L. Rev. 397 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p397.pdf).

Union-Based Bidding Restrictions: Unresolved Issues

by Charles B. Daugherty
Easter & Cavosie
10455 N. College Ave.
Indianapolis, IN 46280
(317) 574-0828
cdaugherty@easterandcavosie.com
http://www.easterandcavosie.com/charles-b-daugherty

For centuries, public entities have employed competitive bidding to form construction contracts for public projects. Public entities often prefer competitive sealed bidding because it promotes both the lowest and best price, and fair and open competition among all citizens. Indeed, the Indiana General Assembly enacted Indiana’s competitive bidding statute “to safeguard the public against fraud, favoritism, graft, extravagance, improvidence and corruption, and to insure honest competition for the best work or supplies at the lowest reasonable cost.” [1] That said, the competitive bidding system has faults. Owners sometimes use pre-bid arrangements and procedures to address perceived flaws in the competitive bidding process. Labor issues have been the subject of such pre-bid arrangements and procedures.

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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…)

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…)

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…)