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Split COA reverses trial court in personal injury case

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Two Indiana Court of Appeals judges reversed a trial court’s denial of a woman’s motion for prejudgment interest in a case stemming from a car crash.

In Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased, No. 45A03-1012-CT-668, Margaret Kosarko and Daniel Herndobler were in an auto accident. Herndobler died while Kosarko’s case against him was still pending. Kosarko served William Padula – the administrator of Herndobler’s estate – with a settlement offer in 2008 in the amount of $100,000. Padula did not accept the offer.

The case was presented to a jury, which returned a verdict in favor of Kosarko in the amount of $210,000. Subsequently, Kosarko filed a motion for prejudgment interest. After a hearing, the trial court denied Kosarko’s motion, concluding that her damages, as determined by the jury in this case, were not ascertainable within a time frame that justified granting her motion for prejudgment interest.

The COA held that prejudgment interest is allowable when the damages are capable of being determined by reference to some known standard, such as fair market value. The appellate court found no indication that Kosarko’s increased medical expenses were unnecessary, fraudulent or unrelated to the automobile accident, nor did it find evidence that Kosarko unduly delayed the surgery that caused the largest increase in her medical costs. It therefore reversed, holding Kosarko is entitled to $79,627.40 in prejudgment interest.

Judge Melissa May dissented, holding that the majority concluded that “Padula had ample opportunity to evaluate the known dollar cost of the dispute and consider settlement” in the year that elapsed between March 2009, when Padula learned of Kosarko’s back surgery, and the March 2010 trial. But May wrote that the majority did not explain how that conclusion is relevant to whether Kosarko’s damages were ascertainable during the 30 days in 2008 when Kosarko’s Qualified Settlement Offer was valid. May wrote that she would affirm the trial court’s denial of Kosarko’s motion.

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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.

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  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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