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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 have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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