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2012 DTCI Amicus Report

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Indiana Lawyer Focus

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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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