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Rodney Scott tried Money v. Dan Cristiani Excavating Company in Clark County Superior Court No. 1 in the spring of 2010. Plaintiff was a 35 year old concrete and curbing worker who claimed that a bulldozer operator employed by Cristiani negligently backed over him as he was grade checking. The injury was obvious and permanent – a partial amputation of Plaintiff’s foot. Plaintiff had incurred more than $341,667.00 in economic damages up to the point of trial. Plaintiff also claimed, through expert testimony, more than $310,000.00 in future medical costs. His future lost wage claim, although initially calculated by experts, was not presented to the jury. The primary dispute was about liability and the comparative fault of the parties. Nevertheless, the judge denied our pre-trial motion to bifurcate so both liability and damages were presented to the jury. Frank Burg testified as Plaintiff’s safety expert. Wendell Rust testified for Cristiani. Although initially agreed and planned, Plaintiff’s counsel decided at trial to object to a jury view of the bulldozer and its back-up alarm. The jury returned a comparative fault verdict and assessed 33% fault to Plaintiff and 67% fault to Cristiani. The fault apportionment reduced the gross verdict of $2,341,667.00 to a net verdict of $1,568,917.00. The parties reached a confidential settlement while the appellate process was pending.
Scott Tyler and Chad Smith obtained summary judgment in favor of Westfield Insurance Company in Spurling v. Allstate Property and Casualty Insurance Company and Westfield Insurance Company. Plaintiff, a self-employed individual, was injured in an automobile accident while driving a vehicle owned by his business. At the time of the accident, however, he was not working for that business, but for a separate business which was not insured under the Westfield policy. Plaintiff sought to recover underinsured motorist benefits from Allstate, which issued him a personal auto policy, as well as Westfield, which issued a commercial auto policy covering the business. The Westfield policy was issued solely for the purpose of insuring Plaintiff’s business activities, and was not meant to cover his personal activities, let alone his activities while conducting business for a separately insured business. Further, the Westfield policy required that Plaintiff be operating a covered automobile under the policy, which the vehicle he was driving at the time of the accident was not. It is noteworthy that in Kentucky (where the action was pending), underinsured coverage is generally considered a coverage that runs with the individual insured, and is not connected to any particular vehicle. Despite that general rule, the Court granted summary judgment in Westfield’s favor, finding that Plaintiff’s policy was clearly for business purposes and that the vehicle he was operating at the time of the accident was not covered under the Westfield policy. Tricia Hofmann assisted in analyzing and reconciling the coverage language of the applicable policies, and John Hofmann was instrumental in drafting motions and briefs on various discovery issues related to the summary judgment motion.
Rodney Scott and Tricia Hofmann procured the dismissal of a lawsuit raising property and extracontractual claims in Rainbolt v. Pekin Insurance Company in two phases over the summer of 2010. The case arose out of an earthquake – a surprising and memorable event for all of us in southern Indiana. Plaintiff alleged the earthquake was sufficient to damage the foundation of the house. Engineers concluded that the home’s structural problems were due to its age (circa 1920) and water issues. Pekin denied the claim. Plaintiff responded with a lawsuit alleging breach of contract, bad faith, the intentional infliction of emotional distress and violation of Indiana’s property crime victim act. Plaintiff filed extensive discovery requests, seeking all other earthquake files handled by Pekin, all files handled by the engineering group involved and multiple requests for Pekin’s financials. Multiple discovery motions were pending before the Court. The Court ultimately granted Pekin’s hotly-contested Motion for Partial Summary Judgment, dismissing all three extracontractual claims. This left only the breach of contract claim. Plaintiff petitioned the court to reconsider its ruling, and also sought leave to pursue an interlocutory appeal. Plaintiff ultimately dismissed her suit voluntarily with no recovery on any of her claims.
Rick Bartlett recently helped clients review and revise their estate planning documents in light of recent changes in Federal tax laws. Asset ownership and beneficiary reviews were also part of this process. See the legal update section herein for an overview of these tax law changes.
John Hofmann and Rodney Scott secured a finding of no liability on the part of the defendant hospital in Canter v. Baldwin and Floyd Memorial Hospital. Plaintiff went to the hospital to undergo laparoscopic surgery. She alleged that the doctor perforated her bowel, which was unrecognized for a period of time, and led to peritonitis. Plaintiff went to a medical review panel, raising claims against both the doctor and hospital. With respect to the hospital, she maintained that the nurses failed to recognize and correlate her signs and symptoms to a surgical complication, and failed to timely notify the admitting physician of the plaintiff’s change in condition. The hospital records clearly showed the nursing staff was proactive in observing Plaintiff and notifying the doctor of her changing condition, seeking ongoing instruction from him. In addition, there was no causal relationship between the alleged delays and failure to document and Plaintiff’s alleged injuries. The panel unanimously agreed, finding that there was no evidence to indicate that the doctor or hospital violated the applicable standards of care.
Scott Waters recently assisted a local hospital in the acquisition of several medical practices and the employment of over 25 primary care and specialist physicians as part of the hospital’s physician-alignment strategy in preparation for anticipated healthcare reform. One group consists of six physicians and 40 staff members and provides services to nearly 70% of the residents/patients in a neighboring county.
Rodney Scott tried Miller v. Brooks in the Clark County Circuit Court in the fall of 2010. Plaintiff was a 49 year old female who claimed that our 16 year old client pulled out in front of her as he exited a bank parking lot in his Dodge Heavy Duty 4x4. Our client claimed that he was stopped in his lane of travel when the collision occurred. He claimed that Plaintiff was speeding down the road and crossed the center line. Thankfully our client’s father arrived at the scene and took cell phone photos of the debris on the roadway and the positioning of his son’s vehicle. Our client’s father also helped identify an eyewitness who confirmed his son’s account about Plaintiff’s speed. Plaintiff began medical treatment three days after the accident and accumulated approximately $5,000.00 in medical billings. The jury deliberated fault and damages and concluded that Plaintiff was 100% at fault for the accident and injuries. Eric Eberwine assisted greatly in briefing the critical issue about whether the police officer would get to testify about his opinion that the accident was caused by our client. The police officer not only had little experience in that regard, he disregarded the eyewitness testimony and photos. As it turned out, the police officer did not even appear for the trial. We were also able to execute on Defendant’s pre-suit QSO.
Chad Smith and Tricia Hofmann successfully defended an appeal on behalf of American Family Mutual Insurance Company in Wirth v. American Family Mutual Insurance Company, ___ N.E.2d ___, 2011 WL 2150192 (Ind. Ct. App. 2011). Plaintiff was injured in an automobile accident and American Family made payments on his behalf for medical treatment pursuant to the medical payment provisions of Plaintiff’s insurance policy. After settling his claim against the tortfeasor, Plaintiff filed a Declaratory Judgment action requesting the Court declare that American Family had no right to recover its payments from the personal injury settlement as Plaintiff was not made whole by the recovery. Both parties submitted summary judgment motions on the issue; the court denied Plaintiff’s motion and granted American Family’s, holding it was entitled to recover on its lien. Chad Smith did a great job drafting all the summary judgment briefs on behalf of American Family and arguing the motions. Plaintiff appealed, arguing that Indiana is a “make whole state” and that the value received from his settlement was not equal to the actual value of his claim. In support of this argument, Plaintiff proffered an affidavit from an attorney alleging that the personal injury claim was actually worth $8,000, even though Plaintiff had agreed to settle it for $3,500. In a published opinion, the Indiana Court of Appeals affirmed the trial court’s granting of summary judgment. In its holding, the Court of Appeals stated that Plaintiff entered into a negotiated settlement with the tortfeasor that was paid in full. As such, there were no uncollectable losses and he was, in fact, made whole. Further, the Court of Appeals declared that Plaintiff had failed to designate any evidence demonstrating that his settlement, for less than what he believed the true value of the claim was, was reasonable under the circumstances of his case. Therefore, the Court of Appeals held that American Family was entitled to repayment of its subrogation lien for the medical expenses pain on Plaintiff’s behalf. At the time of this publishing, the deadline for Plaintiff to seek review by the Indiana Supreme Court had not lapsed.
Les Merkley, assisted by Gabrielle Paschall, successfully opposed a motion to dismiss filed by the defendant in Waiz v. J.D. Taylor. J.D. Taylor is a Kentucky corporation and is a professional moving business. It contracted with our client to move him from Louisville to Jeffersonville. During the course of the move, some of our client’s property was damaged. J.D. Taylor moved to dismiss the case on the basis Indiana did not have jurisdiction. The Court denied the motion, saying that the defendant submitted to Indiana’s jurisdiction when it agreed to move property to Indiana and, more importantly, J.D. Taylor waited nearly two years to file its motion to dismiss, waiting until after several pre-trial conferences and mediation had taken place to file what is normally a motion filed near the inception of the action.
Rodney Scott tried Hastings Mutual Insurance Company v. Spear Electric, et al. in the Floyd Superior Court No. 1 in February of 2011 after years of discovery and expert witness work undertaken by Tricia Hofmann. Hastings Mutual was pursuing a subrogation claim against Spear Electric, the electrical contractor; Fahrenright, the HVAC contractor; and Robert Lynn Company, the general contractor, for a house fire which it believed was caused by the defective wiring and poor workmanship associated with the wiring for the air conditioner. Hastings Mutual claimed $271,470.01 in damages, along with prejudgment interest. Jim McCann of Keeler-Webb testified for Hastings Mutual that he was sure the fire started in the wiring leading to the air conditioner. Herb Goff of Donan Engineering testified for the Defendants. Herb’s opinion was that the fire was that the cause and origin was best classified as “undetermined” and that the fire science did not support Plaintiff’s theory. Defendants also called the first witness of the fire and the local arson investigator that provided important information about the weather conditions and movement of the fire before it was extinguished. The jury deliberated fault and damages and returned a verdict finding that none of the Defendants were at fault.
Rick Bartlett assisted a client by helping to draft a complicated post-nuptial agreement. The agreement successfully balanced the client’s desires to care for a second spouse while also providing for the client’s adult children from a first marriage. This is becoming a recurring and sensitive subject that should be addressed early and often.
Tricia Hofmann secured summary judgment on behalf of the Defendant in Klump v. State Farm Mutual Automobile Insurance Company. This case involved a tragic auto accident in which Mr. Klump was struck and killed by an uninsured motorist in Ohio as he stood on a roadway assisting with the aftermath of a separate accident. He left behind a wife and two teenage sons. The Klumps were Indiana residents, their vehicles were garaged in Indiana, and the auto policy was issued in Indiana. Under Indiana law, it was clear that the Klump family’s recovery would be limited to the per-person UM limits of $100,000. However, the Klump family maintained that they were entitled to the benefit of Ohio law, which recognized separate causes of action for the decedent and his heirs at law. Under Ohio law, they theorized that they would be entitled to the $300,000 per-occurrence limit. The trial court agreed with Defendant’s argument that Indiana law applied, limiting the family’s recovery to the per-person limits.
Scott Waters recently gave a presentation to the Board of Trustees of Floyd Memorial Hospital and Health Services entitled, “County Hospital Law, Open Door & Records Laws & Medical Staff/Peer Review.”
Chad Smith and Rodney Scott tried McKnight v. Southeastern Installation in the Washington Circuit Court in March of 2011. Plaintiff was a maintenance man for Frank Miller Lumber – a non party to whom the jury could assess fault. Plaintiff fell/stepped into a boiling water trough located in a wood steamer while working. He suffered serious burn injuries to both legs and incurred significant damages. Chad Smith successfully convinced the Court to bifurcate the trial so that liability and damages could be tried separately to the jury. Indeed, there were serious questions about the liability, if any, of Southeastern Installation. Southeastern Installation had sold architectural drawings and plans for the steamer unity, sold the components of the steamer unit and did construction of the steamer unit from the floor up. Frank Miller Lumber, however, operated as the General Contractor for the project and hired Temple Construction to do the concrete work and form the troughs. There was significant dispute about who was supposed to have made sure that grating was in place before the steamer unit was put into service. Wendell Rust – an OSHA Safety Expert – testified for Southeastern Installation that the responsibility for grating was Frank Miller Lumber’s. Additionally, there was significant dispute about whether Plaintiff exercised reasonable care for his own safety under the circumstances. The jury deliberated fault and issued a general verdict that found that Southeastern Installation was not at fault.
Tricia Hofmann, with invaluable assistance from Sandy Heeke and Gabrielle Paschall, successfully secured partial summary judgment in an errors-and-omissions claim, limiting plaintiff’s possible recovery to the amount of limits under his insurance policy. In Braughton v. Thomas and ANPAC, plaintiff and his wife secured homeowners coverage through their agent. The policy provided, among other coverages, $21,470 in “other structures” coverage. Subsequently, Plaintiff began manufacturing candles in a shed located on his property. He alleged that, during a subsequent visit to the property, the agent became aware of the candlemaking operation, and told Plaintiff he would have coverage. A fire later destroyed the outbuilding and its contents. The policy excluded “other structures” coverage when Plaintiff was conducting business operations on the premises. Plaintiff sued the agent and ANPAC under various theories, including negligence and misrepresentation. He alleged that he is entitled to be compensated for over $197,000, which he states is the value of the outbuilding. On behalf of Thomas, we filed a Motion for Partial Summary Judgment, seeking dismissal of the negligence claim on the basis that there was no “special relationship” between Plaintiff and his agent which would have triggered a duty to advise on the adequacy of coverage. We also sought a declaration from the court that Plaintiff’s recovery, if any, would be capped to the amount of his “other structures” coverage limits. At the summary judgment hearing, Plaintiff adjusted his negligence theory, and the court entered an Order denying our Motion. We filed a Motion to Reconsider, which was granted over Plaintiff’s objection. Gabrielle Paschall did an excellent job researching the issues and drafting the various motions and briefs. Sandy Heeke has been instrumental to the defense of this case and all discovery to date, and in planning for trial which is presently set for this autumn.
Rodney Scott and Tricia Hofmann persuaded a trial court to permit the introduction of evidence about suspicious referrals between a plaintiff’s attorney, referral service and treating providers in Carlton v. Motorists Mutual Insurance Company. A husband and wife were riding together in their vehicle when they were struck by an uninsured motorist. On their way home from the emergency room, they called a heavily-advertised 1-800 referral service that they had seen on television. That same night, they received a return phone call from the Louisville office of an equally-heavily-advertised personal injury law firm. The law firm, in turn, instructed the couple on where to secure their medical treatment. All-in-all, husband and wife incurred lengthy courses of chiropractic treatment at a location 90 minutes away from their home but right up the street from the law firm, and both ultimately underwent spinal surgeries from a surgeon in Florida. The law firm advanced their air fare, hotel bills and limo service for the two separate week-long Florida trips. Their medical bills ultimately exceeded $76,000 and $72,000 respectively, and none of the bills (except for the emergency room bill, which was incurred prior to retention of counsel) were submitted to their health insurers. Our firm has learned of a handful of other cases in which plaintiffs called the 1-800 referral service, were sent to the same law firm, and subsequently treated at the same doctors. Several of them also were flown for surgeries in Florida. It has been discovered that the 1-800 referral service and many of the medical and chiropractic treatment centers were owned by a Florida chiropractor. The Carltons’ attorney filed a motion in limine, seeking to exclude all reference to the referral web, the Florida man, or any associated facts. After some thorough briefing and a contested hearing, the court agreed with Motorists’ position and ruled that all the evidence is relevant to the issue of the bias of the treating doctors and, therefore, admissible at trial. The case is set for trial in the summer of 2012.
Les Merkley recently helped a client settle a divorce that involved the allocation of closely-held businesses. One of the settlements included the sale and transfer of the family business and other real estate. The other involved the valuation of a professional practice. More importantly, both cases involved the existence of a closely-held business requiring the hiring of outside financial experts to determine its value as a marital asset.
Scott Waters recently traveled to Boston to attend the Annual Meeting of the American Health Lawyers Association, the nation’s largest group of health lawyers working in the healthcare industry. Scott has been a member of the AHLA since 1985 and served on the board of directors from 1986 to 1993.
Chad Smith achieved summary judgment for the insurer in State Farm Mutual Automobile Insurance Company v. Hicks. This case had a long and convoluted history. After State Farm’s insured reported her vehicle stolen, the company investigated the claim and paid the insured for her losses. As part of that process, the insured transferred title on the stolen vehicle to State Farm. Several years later, State Farm was contacted by Defendant, who had apparently purchased the vehicle from the Louisville Police Impound Lot, unaware that it was stolen. When Defendant attempted to title the vehicle, he learned that State Farm was the legal owner. Defendant contacted State Farm and demanded it transfer title to him due to his purchase from the impound lot. In turn, State Farm demanded return of the vehicle as it was the legal owner. When Defendant refused, State Farm filed suit to recover its vehicle. Normally, a police sale transfers valid ownership to the buyer so long as the mandatory statutory safeguards of notice to the potential prior owners are given. In this case, Chad was able to demonstrate that no notice was ever provided to State Farm prior to the purported sale. Absent the required notice, State Farm could not be divested of its right to recover its vehicle. As such, the Court ordered Defendant to return the vehicle to State Farm as it was the legal owner of the vehicle and entitled to immediate possession thereof.
Rodney Scott tried Jones v. Townsend in Clark Superior Court No. 2 in May of 2011. Plaintiff was a 56 year old female who claimed that our client pulled out in front of her without stopping at a stop sign and without yielding to her right of way on the superior road. Defendant claimed, to the contrary, that he double-stopped and only entered the intersection after assuring himself that there was no traffic coming from plaintiff’s alleged path of travel and after being waived out by a bus driver going the opposite direction of the superior road. Plaintiff claimed she had significant pain at the scene and told everyone that fact. The police report indicated otherwise. In any event, she went from the scene to her house and then to the VA Hospital emergency room for treatment. She ultimately underwent drug therapy, physical therapy, injection therapy for neck and shoulder injuries and an arthoscopic knee surgery to repair a meniscal tear. All of her treatment occurred at the VA Hospital. Medical causation and treatment was testified to by Arrabella Bowens, M.D. – Plaintiff’s primary care doctor only. No specialists testified on her behalf. She was never billed for her medical services and she never paid for any of her medical services. The VA aggressively claimed a lien of almost $41,000.00 for the services rendered. Tricia Hofmann had to undertake a lot of federal research to deal with the lien issue in light of the Indiana Supreme Court’s opinion in Stanley v. Walker. Suffice it to say that there are Supremacy Clause issues, controlling federal regulations and extensive federal case law that are anything but clear when such liens are asserted and lots of questions about the procedures necessary to recover and/or avoid them. A $40,000.00 QSO was tendered well before trial. The trial deliberated fault and damages and returned a verdict in favor of Defendant.
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