2015 DTCI amicus report

Kite Sr.

By Donald B. Kite Sr.

In 2015, the Defense Trial Counsel of Indiana’s Amicus Committee participated in a number of interesting appeals, two of which are set for oral argument in the near future. The cases DTCI became involved in this year, as in past years, pertain to a variety of issues which are of significant interest to the defense bar.

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to contact the undersigned ([email protected] or 317-697-5046) early on in the appellate process so we can discuss the information which is needed by or will be useful to the Amicus Committee and DTCI’s board in making the decision regarding whether DTCI will participate as amicus in your case. While DTCI does not become involved as amicus in each case in which its involvement is requested, the Amicus Committee carefully considers each request which is submitted and values the opportunity to work with defense counsel throughout the state on the variety of issues which are presented on appeal.

Indiana Supreme Court cases

DTCI participated as amicus this past year (and Indiana’s appellate courts handed down decisions in cases in which DTCI participated as amicus in 2013, 2014 and 2015) in a number of cases. In reverse chronological order, the following decisions were handed down this past year in cases in which DTCI participated as amicus:

A unanimous Indiana Supreme Court on Aug. 27, 2015, held in Frederick v. SCI Propane, 39 N.E.3d 675 (Ind. 2015), a case of first impression written by Justice Mark Massa, that attorney fees are not recoverable under Indiana’s General Wrongful Death Statute when the decedent is survived by a spouse and/or dependents. DTCI’s amicus brief, which was drafted by the undersigned and filed when the case was pending in the Indiana Court of Appeals, argued in part that attorney fees should not be recoverable under the statute because they are not “of the same genre” as damages enumerated in the statute. In Fredrick, Special Judge Robyn Moberly had awarded the decedent’s estate $2.5 million dollars in attorney fees (on a $3.7 million dollar post-verdict settlement). The Indiana Court of Appeals affirmed, finding that attorney fees are recoverable under the statute and that the same are limited to what is owed under the plaintiff’s contingent fee agreement. The Court of Appeals’ decision was ultimately reversed by the Supreme Court.

On June 9, 2015, the Indiana Supreme Court, having earlier granted transfer, handed down its unanimous opinion in Earl v. State Farm, 33 N.E.2d 337 (Ind. 2015). DTCI board member (and Cantrell Strenski & Mehringer LLP partner) Jim Strenski and his partner (and DTCI Insurance Coverage Section chair) Anna Mallon authored DTCI’s amicus brief in this case, which was reportedly a case of first impression regarding the inadmissibility of UIM insurance limits. Reversing the Indiana Court of Appeals’ published decision to the contrary, the Supreme Court, in an opinion written by Justice Massa, held that the trial court had not abused its discretion in admitting evidence of the plaintiff’s $250,000 uninsured motorist coverage limit. Commenting on the positions which were taken by the parties and amicus and fashioning what the court determined would be the appropriate practice going forward, the Indiana Supreme Court declined to accept either the bright-line rule that DTCI and the Insurance Institute of Indiana had suggested or “the opposite bright-line rule” proposed by the Indiana Trial Lawyers Association. Earl v. State Farm, supra, 33 N.E.2d at 340-341.

One month earlier, on May 7, 2015, the Indiana Supreme Court denied transfer in Preferred Professional Insurance v. West, 23 N.E.3d 716 (Ind. Ct. App. 2014), trans. den. 29 N.E.3d 1273 (Ind. 2015), which involved the issue of whether third-party claims may be pursued under the Indiana Medical Malpractice Act (as well as the subsidiary issue of the scope of the definition of “patient” under the act). Amicus briefs in support of the defendant insurers’ position (and petition to transfer) were filed by the Defense Trial Counsel of Indiana (DTCI’s amicus brief was written by the undersigned), the Indiana Hospital Association and the Indiana State Medical Association.

On April 2, 2015, the Indiana Supreme Court denied transfer in Henderson v. Reid Hospital, 17 N.E.3d 311 (Ind. Ct. App. 2014), trans. den. 28 N.E.3d 246 (Ind. 2015), by a vote of 3-2, with Chief Justice Loretta Rush and Justice Massa voting to grant transfer. Henderson involved the issue of whether the 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. DTCI’s amicus brief in support of transfer was filed by Hunt Suedhoff Kalamaros LLP partner (and longtime Amicus Committee member) Philip E. Kalamaros, and his partner Michael G. Getty.

Indiana Court of Appeals cases

On Feb. 19, 2015, Indiana Court of Appeals Senior Judge John Sharpnack authored an opinion in Walnut Creek Nursery, Inc. v. Barbara Banske, 26 N.E.3d 648 (Ind. Ct. App. 2015), concluding that during trial defense counsel had not preserved for appellate review the issue of whether the trial court should have excluded a naprapath’s testimony. The court expressly indicated, as regards the issue which was addressed in DTCI’s amicus brief, that it was “sav[ing] the resolution of the limitations on the testimony of a naprapath for another day.” Transfer was not sought. DTCI Amicus Committee member (and Kightlinger & Gray partner) Crystal G. Rowe authored and filed DTCI’s amicus brief on the merits.

Upcoming oral arguments in cases in which DTCI has filed an amicus brief

The Indiana Court of Appeals will hold oral argument at 1 p.m. Dec. 9 in Sharpsville Community Ambulance, Inc. v. Gilbert. In July of this year, the undersigned filed DTCI’s amicus brief in support of the position taken by defense counsel Paul Fulkerson and Jarryd Anglin, both of the Indianapolis law firm Skiles DeTrude. The central issue is whether the Indiana Tort Claims Act (as amended) and the Indiana Supreme Court’s holding in Ayres v. Indian Heights Volunteer Fire Dept., Inc., 493 N.E.2d 1235 (Ind. 1986), apply to privately owned ambulance companies which provide emergency services. DTCI has taken the position that the provision of ambulance services relating to 911 calls fulfills an important governmental function entitling such ambulance services or companies to the protection of the Indiana Tort Claims Act.

The Indiana Supreme Court will hold oral argument at 10:05 a.m. Dec. 10 in April Goodwin, Tiffany Randolph, and Javon Washington v. Yeakle’s Sports Bar and Grill, Inc., 28 N.E.3d 310 (Ind. Ct. App. 2015), trans. granted (Ind. 2015). Goodwin involves the accidental shooting of three individuals at Yeakle’s Bar in Marion and the Indiana Court of Appeals’ reversal of the trial court’s grant of summary judgment in favor of the defense on the issue of duty. Lucy Dollens, partner, and Jacob Bradley, associate, both of Quarles & Brady LLP in Indianapolis, drafted and filed DTCI’s amicus brief in support of the defendant’s petition to transfer. The case involves the issue of foreseeability in the context of a landowner’s duty to protect against criminal conduct which occurs on the landowner’s property.

Thanks to committee members, brief writers and the board

The Amicus Committee appreciates and thanks the attorneys (and their firms) who devote their time and talents to the process of authoring amicus briefs and to working with the attorneys for the parties which DTCI supports. Additionally, the undersigned wishes to thank the other members of the committee for their diligence and continued commitment to our work. DTCI’s Amicus Committee presently consists of the following individuals: Vice Chairperson Lucy R. Dollens (Quarles & Brady); member Michele S. Bryant (Wooden & McLaughlin); member Michael P. Dugan (Dugan & Voland); member Daniel W. Glavin (O’Neill McFadden & Willett); member Edward F. Harney Jr. (Hume Smith Geddes Green & Simmons); member Phil Kalamaros (Hunt Suedhoff Kalamaros), member Peter H. Pogue (Schultz & Pogue), member Crystal Rowe (Kightlinger & Gray), and yours truly.

As their current terms are expiring, Amicus Committee members Daniel W. Glavin (of Schererville) and Edward F. Harney Jr. (Indianapolis) will be “retiring” from the committee at the conclusion of the present year. Dan has been a member of the committee since its beginning in the mid-1990s, and Ed has been a member since May 2011. Both gentlemen have given generously of their time and both have contributed significantly to the Amicus Committee’s discussions and recommendations over the years. We appreciate Dan and Ed’s many contributions and wish them well.•

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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. Any opinions expressed in this article are those of the author.