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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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