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Justices issue 4 opinions tackling prejudgment interest

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In four opinions dealing with the award of prejudgment interest under the Tort Prejudgment Interest Statute, the Indiana Supreme Court found, among other things Wednesday, that the TPIS applies to an action by an insured against an insurer to recover benefits under the insured’s underinsured motorist policy.

In Kathy Inman v. State Farm Mutual Automobile Insurance Company, 41S01-1108-CT-515, Chief Justice Brent Dickson wrote, “we hold that the TPIS does apply to UIM coverage disputes because they are properly considered ‘civil actions arising out of tortious conduct’ as required by Indiana Code Section 34-51-4-1. We also hold that, because prejudgment interest is a collateral litigation expense, it can be awarded in excess of an insured's UIM policy limits.”

Kathy Inman was involved in an automobile accident with Nicholas Shinnamon and settled with his insurer for the maximum of his liability policy. She sought an additional $50,000 from her insurer, State Farm, under her UIM policy, which State Farm denied. She then offered to settle her claim pursuant to I.C. 34-51-4-6. State Farm didn’t respond. She was awarded the $50,000 by the trial court, but the judge denied her request for prejudgment interest.

The justices upheld the trial court’s decision, which stated only “Request for interest denied.” The TPIS permits the court to award prejudgment interest but does not require it be awarded, Dickson noted. The justices found no basis to conclude the trial court abused its discretion.

In Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased,  45S03-1206-CT-310; and Hassan Alsheik v. Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased, 45S04-1212-CT-675, the Supreme Court reversed the lower courts’ decisions to deny Margaret Kosarko and Alice Guerrero prejudgment interest. Kosarko was involved in an automobile accident with Daniel Herndobler and offered to settle the lawsuit, but no response was made by the defendant. Guerrero sued Dr. Hassan Alsheik for medical malpractice – and won at the trial court – following the death of her infant son after surgery.

In Kosarko, the justices held that the TPIS abrogates and supplants the common law prejudgment interest rules in cases covered by the statute and that Kosarko’s motion for interest should have been evaluated as provided in the TPIS. They sent the case to the trial court for reconsideration of the motion accordingly. Dickson noted that the trial court has broad discretion to determine whether to award the prejudgment interest and how to calculate it.

In Guerrero, the justices reversed the denial of prejudgment interest based upon a defective settlement letter. The high court found Guerrero’s letter did comply with I.C. 34-51-4-6, but it is up to the trial court as to whether it will award her prejudgment interest.

Finally, in Jacqueline Wisner, M.D. and The South Bend Clinic, L.L.P. v. Archie L. Laney, 71S03-1201-CT-7, the Supreme Court affirmed the denial of Archie Laney’s motion for prejudgment interest after a jury awarded her $1.75 million on a negligence lawsuit filed against Dr. Jacqueline Wisner and The South Bend Clinic. Laney’s letter did not meet the requirements for awarding prejudgment interest.

The justices also discussed the behavior of the parties’ counsel as the defendants argued that Laney’s counsel’s behavior was so unprofessional and permeated the entire trial as to prejudice it enough to warrant a mistrial.

“There were excessive objections by both counsel, over eighty by the defendant’s counsel and over thirty by plaintiff’s counsel. While objections are clearly permitted if made in good faith and on sound substantive grounds, repeated objections despite adverse rulings already made by the trial court are not appropriate. However, far more problematic for the trial judge in this case was the unnecessary sparring and outright contemptuous conduct of each attorney directed toward the other,” Justice Steven David wrote. “The record reveals at least five instances where the trial court judge had to admonish the attorneys about their behavior.”

He chastised both attorneys for acting in a manner unbecoming of the profession, writing, “The duty to zealously represent our clients is not a license to be unprofessional.”

The justices found the trial court did not abuse its discretion in denying the defendants’ request for a new trial as the conduct of the attorneys did not prevent the jury from rendering a fair and just verdict.

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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