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2013 DTCI amicus report

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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.

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  1. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  2. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  3. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

  4. If our State Government would sue for their rights to grow HEMP like Kentucky did we would not have these issues. AND for your INFORMATION many medical items are also made from HEMP. FOOD, FUEL,FIBER,TEXTILES and MEDICINE are all uses for this plant. South Bend was built on Hemp. Our states antiquated fear of cannabis is embarrassing on the world stage. We really need to lead the way rather than follow. Some day.. we will have freedom in Indiana. And I for one will continue to educate the good folks of this state to the beauty and wonder of this magnificent plant.

  5. Put aside all the marijuana concerns, we are talking about food and fiber uses here. The federal impediments to hemp cultivation are totally ridiculous. Preposterous. Biggest hemp cultivators are China and Europe. We get most of ours from Canada. Hemp is as versatile as any crop ever including corn and soy. It's good the governor laid the way for this, regrettable the buffoons in DC stand in the way. A statutory relic of the failed "war on drugs"

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