2014 DTCI Amicus Report

In 2014, the Defense Trial Counsel of Indiana’s Amicus Committee participated in a number of interesting appeals, several of which have not yet been decided. The cases DTCI became involved in this year addressed a variety of evidentiary and other issues that are of interest to the defense bar.

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to contact me so we can discuss the information that is useful to the amicus committee and board of directors in making the decision regarding participation as amicus. While DTCI does not become involved as amicus in every case in which its involvement is requested, the amicus committee carefully considers each request that is submitted and values the opportunity to work with defense counsel throughout the state on the variety of issues that are presented on appeal.

Indiana Supreme Court cases

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DTCI participated as amicus this past year in a number of cases involving issues which are of interest to the defense bar. By way of example, DTCI board member and Cantrell Strenski & Mehringer LLP partner Jim Strenski, and Jim’s partner and DTCI Insurance Coverage Section chair Anna Mallon, authored DTCI’s amicus brief in Earl v. State Farm, which is reportedly a case of first impression regarding the inadmissibility of UIM insurance limits. After DTCI’s brief was filed, Jim and Anna went the extra mile by providing additional valuable assistance to defense counsel Rodney L. Scott, of Waters Tyler Hofman Scott LLC, as he prepared for his recent argument before the Indiana Supreme Court. While the Supreme Court granted transfer before the argument, the court has not yet issued a decision.

DTCI also recently filed an amicus brief in support of a defendant’s petition to transfer in Henderson v. Reid Hospital, which involves an interesting premises liability issue. Specifically, the issue in Henderson is whether Indiana courts have adopted, or should adopt, the so-called Connecticut Rule, under which landowners owe a duty of care to keep common areas safe from natural accumulations of snow and ice but must be given a reasonable time after a storm or other causative event has ceased to remove snow and ice. The brief was authored by long-time DTCI amicus committee member and Hunt Suedhoff Kalamaros LLP partner Philip E. Kalamaros, and his partner Michael G. Getty.

Indiana Court of Appeals cases

In 2013, DTCI filed an amicus brief in the Indiana Court of Appeals in Frederick v. SCI Propane, a wrongful death case in which the trial court awarded the decedent’s estate $2.5 million in attorney fees on a $3.7 million settlement reached post-verdict. The decedent was survived by a spouse and minor child. On appeal, defense counsel Kent M. Frandsen, of Parr Richey Obremskey Frandsen & Patterson, argued, among other things, that the General Wrongful Death Statute, Indiana Code § 34-23-1-1, allows attorney fees only when there is no surviving spouse or dependent. In 2013, I authored DTCI’s amicus brief arguing that attorney fees are not recoverable under Indiana’s General Wrongful Death Statute because the section of the statute that is applicable where a decedent leaves a surviving spouse or dependent does not expressly mention attorney fees, and attorney fees are not “of the same genre” as the recoverable damages, which are specifically listed in the statute.

While the Indiana Court of Appeals ruled in favor of the plaintiffs in the SCI Propane matter on the issue of recoverability of attorney fees, finding that the plaintiffs’ attorney fees were recoverable under the statute, the court went on to find that the fees are limited to what is owed under the plaintiff’s contingent fee agreement. All concerned sought further review. Although the plaintiffs’ rehearing petition on the question of attorney fees being limited by the contingency fee agreement was recently denied, the plaintiff will likely file a petition to transfer. The defendant will likely seek transfer on the question of the recoverability of fees under the statute. What makes this case different from other wrongful death cases is that this is the first case in which the Indiana courts have decided that fees are recoverable under the General Wrongful Death Statute despite the decedent being survived by his spouse and dependent child. An opinion will, of course, be forthcoming.

In October 2014, DTCI amicus committee member and Kightlinger & Gray partner Crystal G. Rowe authored and filed an amicus brief on DTCI’s behalf in Walnut Creek Nursery, Inc. v. Banske. Walnut Creek involves the interesting issue of whether an individual who practices naprapathy, which is a field not recognized by Indiana’s licensing statutes or the statutes of most other states, may qualify as an expert witness under Rule 702 of the Indiana Rules of Evidence, allowing the naprapath to render his opinion regarding medical causation. As of this writing, an opinion has not yet been issued.

Thanks to committee members, brief writers, and the board

The amicus committee sincerely appreciates and thanks the attorneys who authored amicus briefs and who worked with the attorneys for the parties that DTCI as an organization supported. The committee also very much appreciates the DTCI board of directors and its members’ continued support.

I personally want to thank the other members of the committee for their diligence and commitment to the committee’s work. The current members of the amicus committee are Vice Chairperson Lucy Dollens (Quarles & Brady); Michele Bryant (Kahn Dees Donovan & Kahn); Michael Dugan (Dugan & Voland); Daniel Glavin (O’Neill McFadden & Willett); Edward Harney (Hume Smith Geddes Green & Simmons); Phil Kalamaros (Hunt Suedhoff Kalamaros), Peter H. Pogue (Schultz & Pogue), Crystal Rowe (Kightlinger & Gray), and Donald B. Kite, Sr. (Wuertz Law Office).•

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Donald B. Kite Sr., Of Counsel with The Wuertz Law Office, LLC in Indianapolis, is the chair of DTCI’s amicus committee.