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2012 DTCI Amicus Report

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DTCI-Kite-Donald-SrIn 2012, the Defense Trial Counsel of Indiana’s Amicus Committee participated, or is participating, in four interesting appeals, each involving support for parties seeking transfer to the Indiana Supreme Court. In two of the cases (Kosarko and Santelli) transfer was granted, in one (Colussi) transfer was denied. At this writing the Supreme Court has not yet issued an order regarding transfer in the remaining case (Amburgey). The cases that DTCI became involved in this year have addressed a variety of issues including qualified settlement offers and prejudgment interest, expert testimony in attorney malpractice cases, and the naming of criminal assailants as nonparties in premises liability cases.


Indiana Supreme Court Cases:

Kosarko v. Padula, 960 N.E.2d 810 (Ind. Ct. App. 2011). The Court of Appeals’ decision addressed qualified settlement offers and prejudgment interest. A divided panel held that the trial court had abused its discretion in denying the plaintiff’s motion for prejudgment interest. DTCI member Robert Parker authored DTCI’s amicus brief supporting the defendant’s petition to transfer. On June 4, 2012, the Indiana Supreme Court granted transfer. On Dec. 12, 2012, the court handed down its opinion rejecting the defendant and DTCI’s argument that the Tort Prejudgment Interest Statute and the common law Roper standard are complimentary. The court instead held that the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute. Writing for the court, Chief Justice Brent Dickson reasoned that on remand the trial court “should consider the objectives of the statute: to encourage settlement, to incentivize expeditious resolution of disputes, and to compensate the plaintiff for the lost time value arising from unreasonable delay.”

In re Estate of Lee (Finnerty v. Colussi), 954 N.E.2d 1042 (Ind. Ct. App. 2011). The Court of Appeals’ decision addressed the requirement that a putative expert’s opinion in an attorney malpractice case must precisely describe and rely upon the applicable standard of care rather than the expert’s personal opinion regarding preferred practices. Including DTCI’s amicus brief, which was authored by DTCI member Donald B. Kite Sr., a total of three separate amicus briefs were submitted in support of the petition to transfer. On May 3, 2012, the Indiana Supreme Court, by a vote of 3-2, denied transfer.

Santelli v. Rahmatullah and Super 8 Motel, 966 N.E.2d 661 (Ind. Ct. App. 2012). This case pertains to the issue of whether, in a premises liability case in which the victim is murdered, the premises owner can name the criminal assailant as a nonparty. On March 29, 2012, the Indiana Court of Appeals handed down its unanimous opinion in favor of the plaintiffs, adopting the Restatement (Third) of Torts § 14 (2000) and concluding that because Santelli’s death arose from the killer’s intentional act(s) and the premises owner’s negligent act(s), the negligent premises owner must therefore be held joint and severally liable. The Court of Appeals ordered a new trial on the allocation of fault at which time the jury should be instructed on the “very duty” doctrine (which issue was raised during closing argument). After rehearing was denied, defense counsel filed a petition to transfer. DTCI member Lucy Dollens of Frost Brown Todd, who submitted an amicus brief when the case was pending in the Indiana Court of Appeals, submitted a new amicus brief in support of the petition to transfer. DTCI’s amicus brief was adopted by the Insurance Institute of Indiana and the Indiana Hotel and Lodging Association. On Dec. 10, 2012, the Indiana Supreme Court notified the parties of its intent to hold oral argument on Feb. 14, 2012. By separate order, the Supreme Court has granted transfer, vacating the Court of Appeals’ opinion.

Amburgey v. Columbus Regional Hospital, 976 N.E.2d 709 (Ind. Ct. App. 2012). In Amburgey, the Court of Appeals held that a plaintiff is not required to name an independent physician as a party in a case that is brought against a hospital where the suit is based upon the independent physician’s allegedly negligent acts or omissions. DTCI’s amicus brief in support of the defendant hospital’s petition to transfer, which was authored by DTCI member R. Thomas Bodkin, was filed on Dec. 7, 2012. A decision regarding the petition to transfer will, of course, be forthcoming.

Many thanks to DTCI’s brief writers, DTCI board, Jim Johnson, and to the Amicus Committee’s members

The Amicus Committee appreciates the efforts and thanks the attorneys and firms that authored briefs in these cases and that worked with the attorneys for the parties that DTCI supported. Although gratifying, work on amicus briefs is both challenging and time consuming. The Amicus Committee also sincerely thanks DTCI’s board for its continued support of the committee’s important work.

Jim Johnson, of Rudolph Fine Porter & Johnson, Evansville, has left the Amicus Committee after being a member of the committee and the committee’s chair for several years. The Amicus Committee thanks Jim for his leadership and hard work through the years.

As chair of the Amicus Committee, I particularly want to thank the other members of the committee for their diligence and their commitment to the committee’s work. The hard-working and talented current members of the Amicus Committee are Michele Bryant (Bamberger Foreman Oswald & Hahn); Lucy Dollens (Frost Brown Todd); Michael Dugan (Dugan & Voland); Daniel Glavin (O’Neill McFadden & Willett); Phil Kalamaros (Hunt Suedhoff Kalamaros), Edward Harney (Hume Smith Geddes Green & Simmons), and Crystal Rowe (Kightlinger & Gray).•

__________

Donald B. Kite Sr., a member of DTCI and its Amicus Committee for several years, is the committee’s current chair. The opinions expressed are those of the author.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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