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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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