by Michael Heavilon, 2L Note Candidate Earlier this year marked the fifth anniversary of the disastrous stage collapse […]
[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. .
by Lara Langeneckert
Deputy Solicitor General
Office of the Indiana Attorney General
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  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 —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.
On November 14, 2014, the Indiana Court of Appeals upheld a $1.44 million jury verdict against Walgreen Company (“Walgreen”) for a pharmacist’s breach of privacy obligations. . The opinion began, “[i]n this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend.” . That brief summary of the case’s fact pattern provides the foundation of what ultimately led to a large jury verdict against Walgreen, derived solely from the acts of its employee.
Register Now at: http://mckinneylaw.iu.edu/events/current.cfm?eid=239
September 23, 2014 Symposium (Click Here for additional information)
LIABILITY, RIGHTS AND REMEDIES IN TOXIC TORTS:
Local, National and International Responses in the Age of Globalization
This Conference will address local, national and international responses to Toxic Torts via robust presentations and discussions. The first panel, Toxic Torts Liability features four prominent speakers in the field. They will examine the latest development in torts law in the United States and abroad. The second panel, Environmental Justice Responses to Toxic Torts will focus on the various forms of responses from scholars and community organizations in addressing the impact of toxic torts. The third panel, Human Rights Responses to Toxic Torts will broaden the conference with discussion on various projects organized at various levels to address the international human rights dimension.