Dollens: 2022 DTCI amicus activity in Indiana appellate courts

This year, the Defense Trial Counsel of Indiana participated as amicus in a variety of issues of significant interest to the defense bar. Although DTCI is unable to become involved in every case in which its participation is requested, the Amicus Committee and the board of directors carefully consider each request and welcome the chance to work with defense counsel across the state on important issues of Indiana law before Indiana’s appellate courts.

Davidson v. State of Indiana

In the matter of Davidson v. State of Indiana, 21A-CT-1516, DTCI participated as amicus in support of appellees/defendants’ petition to transfer to the Indiana Supreme Court. Appellees/defendants sought transfer of the Court of Appeals of Indiana’s decision concluding that Indiana’s prohibition against “claim splitting” and its doctrine of nonmutual defensive collateral estoppel do not prevent a plaintiff from filing suit against one set of defendants (the negligent driver and the driver’s employer), obtaining a judgment for all damages sustained in the automobile accident, and subsequently filing a second lawsuit for the same damages against other known defendants (the owner of the road and road construction entities). In DTCI’s amicus brief, authored by Crystal G. Rowe of Kightlinger & Gray LLP, DTCI argued that the court should grant review and clarify that plaintiffs may not split their claims against known defendants in cases involving the same accident, injuries and damages, because to do so would run afoul of Indiana’s strong public policy supporting the doctrine of nonmutual defensive collateral estoppel and the related prohibition against the splitting of claims. The court granted DTCI permission to appear as amicus in this matter on June 6. The Indiana Supreme Court granted transfer on Sept. 15, and conducted oral argument on Nov. 15. See Cause No. 22S-CT-318. The case remains pending.

Kearschner v. American Family Insurance Co.

In the matter of Kearschner v. American Family Insurance Co., 21A-CT-1888, DTCI participated as amicus in support of the appellee’s/defendant’s brief. Jenny R. Buchheit and Alexandria H. Pittman, both of Ice Miller LLP, authored the amicus brief on behalf of DTCI. In this uninsured motorist case, the plaintiff contracted for $100,000 of UIM coverage with the insured-defendant. After being injured in a car accident, the plaintiff received $50,000 from the tortfeasor and $62,084.52 in workers’ compensation payments for a total of $112,084.52. Because of the setoff provisions in his insurance policy, the trial court found the plaintiff was not entitled to further recovery from the insured-defendant. The plaintiff appealed, seeking an additional $50,000 from the insured-defendant.

In its amicus brief, DTCI argued that given the purpose of Indiana Code § 27-7-5-2 and under directly applicable case law (Justice v. American Family Mutual Insurance Co., 4 N.E.3d 1171 (Ind. 2014)), the trial court correctly concluded the plaintiff was not entitled to underinsured coverage from the insured-defendant. DTCI argued that outcome was consistent with the language of the insured-defendant’s policy, Indiana’s uninsured/underinsured motorist statute, caselaw interpreting the same, the intent of the General Assembly, and public policy in preventing double recovery and the freedom to contract. The court granted DTCI leave to appear as amicus on Jan. 27.

On July 13, the Court of Appeals issued its opinion, reversing the grant of summary judgment. Kearschner v. Americam Family Mutual Insurance Co., S.I., 2022 WL 2709480 (Ind. Ct. App. July 13, 2022). The court agreed that the language of the UIM policy provision unambiguously provided that any workers’ compensation payment would reduce the plaintiff’s UIM liability limit but held that application of such provision is contrary to the UIM statute. The court emphasized that the UIM policy provision attempting to reduce the plaintiff’s UIM policy limit to zero based on the payment of any workers’ compensation benefits provided less coverage than the UIM statute required and was inconsistent with the view that the UIM statute is a full recovery, remedial statute. Consequently, the court concluded “this specific policy provision is unlawful and unenforceable” and, “depending on his damages, (the plaintiff) is entitled to the difference between his UIM policy limit of $100,000 and the $50,000 he had received from Tortfeasor’s insurer.”

Appellee/defendant filed a Petition to Transfer on Aug. 26. The case has been fully briefed to the Indiana Supreme Court and remains pending.

Thanks to DTCI Amicus Committee members, brief authors and the board

DTCI and its Amicus Committee appreciate and thank attorneys, and their firms/companies, who devote their time and talents to drafting requests for amicus involvement and authoring amicus briefs on behalf of DTCI. I extend a sincere thanks to the members of the DTCI Amicus Committee who have given so much of their time and expertise to ensure that the voice of the Indiana defense bar is heard in Indiana’s appellate courts: Jenny Buchheit, Ice Miller; Phil Kalamaros, attorney/mediator/consultant; Keith Mundrick, Amundsen Davis LLC; Bob Palmer, May Oberfell Lorber; Peter Pogue, Schultz & Pogue LLP; Crystal Rowe, Kightlinger & Gray; and Cathleen Shrader, Barrett McNagny LLP.

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to send the request as early in the appellate process as possible to [email protected] or 317-399-2815. The DTCI Amicus Committee and the board of directors welcome and endeavor to carefully consider each request.•

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Lucy Dollens, a commercial litigator and appellate practitioner, is a partner in the Indianapolis office of Quarles & Brady, chairs the DTCI Amicus Committee and serves on DTCI’s board of directors. Opinions expressed are those of the author.