Tort Law

Justice Dickson and the Development of Indiana Civil Tort Law

by Nate Moyer, 2L Note Candidate

Last spring, Justice Brent Dickson retired from the Indiana Supreme Court. [http://wishtv.com/2016/04/29/justice-dickson-hailed-for-his-civility-grace-at-retirement/]. Justice Dickson served Indiana for thirty years, and his retirement will mark the end for Professional Photoone of Indiana’s longest Supreme Court tenures. Governor Robert Orr appointed Justice Dickson to Indiana’s highest court in 1986. Since that time, Justice Dickson has contributed an extensive amount of legal opinions. Further, from 2012 to 2014, Dickson presided over the Court as Chief Justice. [http://www.in.gov/judiciary/4047.htm]. He was then stepped-down from Chief Justice, a position that is now held by Chief Justice Loretta H. Rush.

Justice Dickson was viewed as a pragmatic and wise judge who valued the citizen’s right to a fair and open trial. As a send-off for the esteemed Justice, Roger Pardieck, Karen Davis and Maggie Smith’s article in the Indiana Law Review examines Dickson’s methodology and legal analysis for civil suits. Justice Dickson’s Civil Tort Law Jurisprudence, 50 Ind. L. Rev. 103 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p103.pdf). The article analyzes Dickson’s opinions in the landmark decisions of Jarboe v. Landmark Community Newspapers of Indiana, and Myers v. Crouse-Hinds Division of Cooper Industries. In Jarboe v. Landmark Community Newspapers of Indiana, the Justice’s opinion focused on how summary judgment may hastily deny a person’s day in court. In Myers v. Crouse-Hinds Division of Cooper Industries, the Justice respected the doctrine of stare decisis, despite his own misgivings. Dickson’s jurisprudence did not always carry the day, however, and therefore this article also covers his dissents in Allied Signal v. Ott, and McIntosh v. Melroe. The purpose of this is to demonstrate how Justice Dickson would strictly adhere to not only his own principles, but also the Indiana Constitution.

Prior to being appointed to the Indiana Supreme Court, Justice Dickson was an attorney working in private practice. Justice Dickson graduated from the Indiana University School of Law in Indianapolis in 1968. After his retirement, Dickson intends to still assist with court administration, although he will hear no cases. [http://www.theindianalawyer.com/justice-brent-dickson-announces-retirement/PARAMS/article/38676]. This past June, Governor Mike Pence appointed Geoffery G. Slaughter to Indiana’s highest court as Dickson’s successor. Indiana Supreme Court Justices are required to retire by the age of seventy-five.

Sovereign Immunity Across Borders: How the United States Could Learn from Indiana Following the Justice Against Sponsors of Terrorism Act

by Michael Heavilon, 2L Note Candidate

Earlier this year marked the fifth anniversary of the disastrous stage collapse during the Sugarland concert at the Indiana State Fair. Evan West, The Collapse, Indianapolis Monthly (August 1, 2012), http://www.indianapolismonthly.com/longform/the-collapse/ [http://permc.cc/499S-AXP9]. While those victims still recount the horrific experience, Indiana learned an important lesson in the limits of sovereign immunity in the ensuing litigation. Although Indiana passed the Indiana Tort Claims Act (“ITCA”), an Indiana Court of Appeals rheavilonuled that this did not apply to purposefully contracted indemnification clauses See In re Ind. State Fair Litig., 28 N.E. 3d 333 (Ind. Ct. App. 2015), vacated, 49 N.E.3d 545 (Ind. 2016).

While some argued that this undermined the purpose of the ITCA by allowing the State to be subject to liability (especially in a dissent by Chief Judge Vaidik), Indiana Law Review Note Writer Tyler Jones argued that this may not be the end of the world in his Note Paradise Lost: Contracting Away Immunity under the Indiana Tort Claims Act. Although exposing Indiana to more potential claims, Jones writes that all is not lost if the State still has some form of immunity.

Earlier this year also marked another important anniversary of a United States tragedy. Shortly after the fifteenth anniversary of the September 11th attacks, the issue of sovereign immunity returns in the form of federal legislation.

Overriding a veto by President Barack Obama, the House of Representatives has voted to pass the Justice Against Sponsors of Terrorism Act (JASTA), allowing families of the victims of the 9/11 attacks to bring claims against Saudi Arabia. Scott Horsley & Ailsa Chang, Congress Overrides Obama’s Veto On Sept. 11 Lawsuit Bill, NPR (September 28, 2016), http://www.npr.org/2016/09/28/495709481/sept-11-lawsuits-vote-today-could-be-first-reversal-of-an-obama-veto [https://perma.cc/S2DH-89WU]. Critics of the bill claim that this could be a disaster, opening the opportunity for other countries to pass similar laws and expose the United States to liability from people bringing suit around the world in their home court. See, Jim Ash, Legal Expert: Overriding ‘Sovereign Immunity’ Bad Idea, WFSU (September 29, 2016), http://news.wfsu.org/post/legal-expert-overriding-sovereign-immunity-bad-idea [https://perma.cc/8DE5-DMV4]. This could require the United States to expend resources defending itself from those bringing suit around the world.

With some states, including Indiana, now exposed to more liability claims, the United States could examine how limiting immunity from liability has affected the State’s activities and what resources it has expended as a result. While the United States would not have the control over what types of claims others could bring against it, certain states limitation of sovereign immunity could provide an important lesson to the United States as it proceeds with potential claims for various tort claims.

An important issue addressed by Jones is the fact Indiana still retains some form of immunity through the ITCA. What could happen to the United States if all immunity were lost? Tyler Jones note is available in this issue of the Indiana Law Review. Jones, Tyler, Paradise Lost: Contracting Away Immunity Under the Indiana Tort Claims Act, 50 Ind. L. Rev. 369 (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p369.pdf)

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…)

Suddenly, Employers are Exposed to Large Jury Verdicts for their Employees’ HIPAA Violations

Hannah Kaufman Joseph (Attorney Profile)
Marc A. Menkveld (Attorney Profile)
Katz & Korin, P.C.
334 N. Senate Avenue
Indianapolis, IN 46204
More info on the firm’s Blog, Facebook, and Twitter

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. [1]. 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.” [2]. 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.

(more…)

Toxic Tort Symposium Details

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. (more…)