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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