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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

ADVERTISEMENT