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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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