ILNews

2013 DTCI amicus report

Back to TopCommentsE-mailPrintBookmark and Share

DTCI-Kite-Donald-SrIn 2013, the Defense Trial Counsel of Indiana’s Amicus Committee participated in a number of interesting appeals. The cases DTCI became involved in this year addressed a variety of issues, including the naming of criminal assailants as nonparties in premises liability cases; naming an independent physician as a party in a case which is brought against a hospital where the suit is based upon the independent physician’s allegedly negligent acts or omissions; and the issue of whether Indiana’s General Wrongful Death Statute, Indiana Code § 34-23-1-1, allows attorney fees when there is/are no surviving spouse or dependents.

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to contact me. While DTCI does not become involved as amicus in each case in which its involvement is requested, the Amicus Committee carefully considers each request and values the opportunity to work with defense counsel throughout Indiana on the variety of issues which are presented on appeal.

Indiana Supreme Court cases

DTCI participated as amicus this past year in Santelli v. Rahmatullah and Super 8 Motel, 993 N.E.2d 167 (Ind. 2013), a very important case in which the defense bar ultimately prevailed. Santelli, which involved the “very duty doctrine” and the question of joint and several liability, pertained to the issue of whether, in a premises liability case in which the victim was murdered, the premises owner could name the criminal assailant as a nonparty. Frost Brown Todd’s Lucy Dollens, co-recipient of this year’s DTCI Defense Lawyer of the Year Award (and a valued member of the Amicus Committee), authored two briefs in this case: both the amicus brief which was filed in the Indiana Court of Appeals and the brief in support of the petition to transfer which was filed in the Indiana Supreme Court. Among other things, DTCI argued in is briefing that the Court of Appeals’ decision, were it to stand, would thrust upon defendants, who or which were the least responsible or culpable, the responsibility for far more than their share of the damages which are awarded at trial. The case was orally argued on Valentine’s Day. On Aug. 28, 2013, the Indiana Supreme Court handed down its opinion agreeing with the position taken by DTCI. The Indiana Supreme Court unanimously held, among other things, that the Indiana Comparative Fault Act does not preclude the allocation of fault between negligent and intentional tortfeasors.

DTCI also chose to participate as amicus in Amburgey v. Columbus Regional Hospital, 976 N.E.2d 709 (Ind. Ct. App. 2012). In Amburgey, the Indiana Court of Appeals had held that a plaintiff is not required to name an independent physician as a party in a case which is brought against a hospital where the suit is based upon the independent physician’s allegedly negligent acts or omissions. DTCI member R. Thomas Bodkin, a former president and diplomat of the Defense Trial Counsel of Indiana, filed an amicus brief in support of the defendant hospital’s petition to transfer. On March 14, 2013, the Indiana Supreme Court denied the petition to transfer which DTCI supported. While DTCI did not ultimately prevail in Amburgey, the Amicus Committee thanks attorney Bodkin for his dedication and his hard work.

Indiana Court of Appeals cases

DTCI also filed an amicus brief this year in the Indiana Court of Appeals in Frederick v. SCI Propane, a wrongful-death case in which the trial court awarded the decedent’s estate $2.5 million dollars in attorney fees (on a $3.7 million dollar settlement reached post-verdict). The decedent was survived by a spouse and minor child. On appeal, defense counsel Kent M. Frandsen (Parr Richey Obremskey Frandsen & Patterson) argued, among other things, that the General Wrongful Death Statute, Indiana Code § 34-23-1-1, only allows attorney fees when there is no surviving spouse or dependent. I authored DTCI’s amicus brief arguing that attorney fees are not recoverable under Indiana’s General Wrongful Death Statute because the section of the statute that is applicable where a decedent leaves a surviving spouse or dependent does not expressly mention attorney fees and attorney fees are not “of the same genre” as the recoverable damages which are specifically listed in the statute.

Thanks to committee members, brief writers and the board

The Amicus Committee appreciates and thanks the attorneys who author amicus briefs and who worked with the attorneys for the parties which DTCI as an organization supported. The committee very much appreciates the DTCI board of directors and its members’ continued support.

I personally want to thank the other members of the committee for their diligence and commitment to the committee’s work. The current members of the Amicus Committee are Michele Bryant (Kahn Dees Donovan & Kahn); Lucy Dollens (Frost Brown Todd); Michael Dugan (Dugan & Voland); Daniel Glavin (O’Neill McFadden & Willett); Edward Harney (Hume Smith Geddes Green & Simmons); Phil Kalamaros (Hunt Suedhoff Kalamaros); Peter H. Pogue (Schultz & Pogue), a long-time member of DTCI who has authored a number of amicus briefs in the past, who I am pleased to report joined the Amicus Committee this year; Crystal Rowe (Kightlinger & Gray), and Donald B. Kite Sr. (Wuertz Law Office).

Donald B. Kite Sr., of counsel with The Wuertz Law Office LLC in Indianapolis, is the chair of DTCI’s Amicus Committee. The opinions expressed are those of the author.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  2. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

  3. The US has 5% of the world's population and 25% of the world's prisoners. Far too many people are sentenced for far too many years in prison. Many of the federal prisoners are sentenced for marijuana violations. Marijuana is safer than alcohol.

  4. My daughter was married less than a week and her new hubbys picture was on tv for drugs and now I havent't seen my granddaughters since st patricks day. when my daughter left her marriage from her childrens Father she lived with me with my grand daughters and that was ok but I called her on the new hubby who is in jail and said didn't want this around my grandkids not unreasonable request and I get shut out for her mistake

  5. From the perspective of a practicing attorney, it sounds like this masters degree in law for non-attorneys will be useless to anyone who gets it. "However, Ted Waggoner, chair of the ISBA’s Legal Education Conclave, sees the potential for the degree program to actually help attorneys do their jobs better. He pointed to his practice at Peterson Waggoner & Perkins LLP in Rochester and how some clients ask their attorneys to do work, such as filling out insurance forms, that they could do themselves. Waggoner believes the individuals with the legal master’s degrees could do the routine, mundane business thus freeing the lawyers to do the substantive legal work." That is simply insulting to suggest that someone with a masters degree would work in a role that is subpar to even an administrative assistant. Even someone with just a certificate or associate's degree in paralegal studies would be overqualified to sit around helping clients fill out forms. Anyone who has a business background that they think would be enhanced by having a legal background will just go to law school, or get an MBA (which typically includes a business law class that gives a generic, broad overview of legal concepts). No business-savvy person would ever seriously consider this ridiculous master of law for non-lawyers degree. It reeks of desperation. The only people I see getting it are the ones who did not get into law school, who see the degree as something to add to their transcript in hopes of getting into a JD program down the road.

ADVERTISEMENT