MARINA CHERICE ALLEN J.D., 2020, and Health Law Certificate, 2020, Indiana University Robert H. McKinney School of Law; […]
MATTHEW D. REED J.D., 2020, Indiana University Robert H. McKinney School of Law; B.A. 2017, Olivet Nazarene University—Bourbonnais, […]
ANNIE HILLS J.D., MAY 2020, Indiana University Robert H. McKinney School of Law. An organ isn’t the only […]
MICHAEL CONKLIN, Powell Endowed Professor of Business Law, Angelo State University – San Angelo, Texas Anti-mass-incarceration advocates are […]
JOHN MILLIKAN J.D. Candidate, 2019, Indiana University Robert H. McKinney School of Law; B.A. 2009, Anderson University. In […]
There is convincing evidence that persons in nursing homes, even persons with dementia in its later stages, benefit physically, mentally, and emotionally from close contact with loved ones, including conversation, touch, hugs and embraces, kissing, and sex. Nevertheless, nursing homes often discourage ongoing intimate relationships because of logistical, financial, and other considerations.
At its core, public health is concerned with promoting and protecting the health of populations. However, public health has often times been used to subvert the very same goals it is designed to achieve.
Questions abound, but judicial assignment of a bad faith claim may provide a remedy to the injured third party when the tortfeasor is unwilling or unable to assign his or her rights and claims against an insurer.
[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;  and (2) adults who were not married and possessed no dependent next of kin. . Which category the decedent falls into determines the measure of damages available. .
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.
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. . 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. . 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;  and (2) the insurance policy provision requiring a policyholder to give notice of a claim to the insurer is a condition precedent to coverage. .
Indiana courts should reconsider the holdings in Dreaded and Maplehurst. . These holdings result in the forfeiture of coverage, which is unfair and disfavored under Indiana law,  and ignore the realities of long-tail environmental claims. . 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. .