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2018 DTCI Amicus Activity: Summary of key cases

November 28, 2018
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By Lucy Dollens

This year, the Defense Trial Counsel of Indiana has participated as amicus in a variety of issues of significant interest to the defense bar. Although DTCI is unable to become involved in every case in which its participation is requested, the Amicus Committee and the Board of Directors carefully consider each request and welcome the chance to work with defense counsel across the state on important issues of Indiana law before Indiana’s appellate courts.

Campbell Hausfeld/Scott Fetzer Co. v. Johnson

Brief written by Julia Blackwell Gelinas, Maggie L. Smith and Robert B. Thornburg, Frost Brown Todd LLC

This case involves the misuse defense under Indiana’s Product Liability Act.

In this case, the Indiana Court of Appeals adopted the minority position that misuse is not a complete defense under the IPLA but is instead considered along with all other fault in the case under the comparative fault scheme. In its amicus brief filed before the Indiana Supreme Court, DTCI argued the Court of Appeals’ ruling is contrary to the act itself and conflicts with existing law. DTCI emphasized that Indiana courts have already recognized that two of the three statutory defenses set out under the IPLA (incurred risk and product alteration/modification) remain complete bars to liability even after the adoption of comparative fault, and to conclude the third statutory defense (misuse) is not a complete bar would be incongruous.

The Indiana Supreme Court issued its ruling on Nov. 1, 2018, holding that misuse serves as a complete defense for the manufacturer but must be proven. Campbell Hausfeld/Scott Fetzer Co. v. Johnson, 2018 WL 5725280 (Ind. Nov. 1, 2018). The court concluded that under the facts of this case, plaintiff’s misuse (failing to follow safety instructions in three ways) could not have been reasonably expected by the manufacturer; therefore, the defense of misuse barred plaintiff from recovering.

IBM v. State of Indiana, acting on behalf of Indiana Family & Social Services Administration

Brief written by Jim Johnson, Jackson Kelly PLLC

In this case, DTCI submitted an amicus brief in support of the State of Indiana addressing the issue of post-judgment interest awarded where the final judgment with the application of setoffs was not determined until five years after a 2012 ruling. In 2009, the state terminated IBM for allegedly breaching a $1.3 billion contract regarding FSSA’s delivery of welfare services. In 2012, the trial court (Dreyer, J.) entered judgment disposing of all claims that IBM and the state asserted against each other, denying the state’s claims and awarding $62.5 million to IBM. The Indiana Supreme Court reversed, holding the state was entitled to judgment on its claims; remanding to calculate the state’s damages, and; directing the trial court to offset IBM’s damages ($49.5 million of which were upheld) in entering final judgment. On remand, the trial court (Welch, J.) calculated state damages to be $128 million; offset IBM’s damages, and; entered a net judgment of approximately $78.2 million in favor of the state. The trial court rejected IBM’s claim to “post-judgment interest,” dating to Judge Dreyer’s 2012 ruling on IBM’s $49.5 million damages offset. The Court of Appeals affirmed the damages award and judgment for the state but reversed the denial of interest and, instead, held that Indiana Code § 34-13-1-6 entitled IBM to “post-judgment interest” on the $49.5 million from Judge Dreyer’s 2012 award. DTCI submitted an amicus brief on Nov. 13, 2018, in support of the state’s petition to transfer, arguing that the award of post-judgment damages should be decided uniformly with neutral principles and based on how the rulings actually functioned in this complex case. The case has not yet been fully briefed before the Indiana Supreme Court.

Noel v. Indiana University Health

Brief written by Robert J. Palmer, May Oberfell Lorber

In this case, the trial court addressed Indiana’s preferred venue rules, relying upon the Indiana Supreme Court’s decision in American Family Insurance Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind. 2006), which held that the principal office of a foreign corporation under Indiana Trial Rule 75(A)(4) is the county in which the resident agent is located. In its amicus brief, DTCI argued that this conclusion is no longer supported by legal grounds and, consequently, the location of the resident agent should no longer be considered a county of preferred venue. Indiana’s Legislature elected to enact as a new statute (I.C. § 23-0.5-4-12) a version of the Uniform Law Commission’s Model Registered Agents Act, which affirmatively states the location of the resident agent is not a basis for venue. DTCI argued that this adoption reflects current realities in the business world that registered agents are now commonly business entities that have no connection with a foreign or domestic corporation other than accepting service of process.

The Court of Appeals issued its ruling on Nov. 7, 2018, holding that I.C. § 23-0.5-4-12 conflicts with T.R. 75(A)(4) as interpreted by the Indiana Supreme Court in American Family Ins. Co. and that the statute is, therefore, a nullity. Indiana University Health S. Indiana Physicians, Inc. v. Noel, 2018 WL 5813083 (Ind. Ct. App. Nov. 7, 2018). The court found preferred venue lies in the county where the registered agent of the defendant is located. The court further emphasized: “If the Indiana corporate community is dissatisfied with the Court’s interpretation of the rule, recourse lies with the Indiana Supreme Court Committee on Rules of Practice and Procedure, not the legislature.” Id. at 7.

Certa v. Steak ‘n Shake, Inc.

Brief written by Lucy R. Dollens and Jacob V. Bradley, Quarles & Brady

In this case, the plaintiff was injured when he was struck by a motor vehicle operated by a drunk patron outside the premises at the conclusion of a physical altercation inside the restaurant. The trial court granted summary judgment to the defendant-premises owner, finding the patron’s actions were not foreseeable as a matter of law. Following the Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016), foreseeability test, the trial court determined no duty was owed by the premises owner to protect the plaintiff from the drunk patron. In its amicus brief, DTCI argued the Goodwin foreseeability test should be upheld, and that under its application, it is not foreseeable that the plaintiff would be struck by a drunk driver.

The court of appeals issued its opinion on May 29, 2018, reversing the grant of summary judgment. Certa v. Steak ‘n Shake Operations Inc., 102 N.E.3d 336 (Ind. Ct. App. 2018), trans. denied. The court found that identifying the broad type of plaintiff as “a restaurant patron” and the broad type of harm as “injury caused by a third-party criminal attack” constituted too narrow an inquiry. Instead, the court explained the restaurant’s knowledge of the heated altercation that occurred before the injury should be another consideration in the broad plaintiff/injury analysis. The Court of Appeals determined this knowledge gave rise to a duty to protect the plaintiff. Finding a duty existed, the Court of Appeals then determined the elements of breach and proximate cause should be decided by the trier of fact.

D.H. v. Whipple

Brief written by Lucy R. Dollens and Jacob V. Bradley, Quarles & Brady

In D.H. v. Whipple, the trial court followed the Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016), foreseeability test (to determine whether a duty is owed) and entered summary judgment in favor of the defendant by finding no duty was owed by a grandmother/co-owner of the premises to protect her granddaughter from the unforeseeable criminal act of the co-owner/grandfather molesting a minor. In its amicus brief, DTCI argued the Goodwin foreseeability test should be upheld, and that under its application, it is not foreseeable that a minor child left with a family member for babysitting (broad class of plaintiff) will be the victim of molestation (broad type of harm). Plaintiff and the Indiana Trial Lawyers Association advocated for the rejection of the Goodwin test and the adoption of a combination specific imminent harm and prior similar incident test to determine whether a criminal act is foreseeable for a duty to be owed by the premises owner.

The Court of Appeals issued its opinion on May 29, 2018, and while it reversed summary judgment, it did so on the basis that genuine issues of material fact exist. D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119 (Ind. Ct. App. 2018). As to the duty element, the Court of Appeals recited controlling precedent that a court does not determine the existence of a duty when the element of duty has already been declared or articulated, but it found questions of material fact existed as to whether the grandmother/co-owner: (1) possessed a duty of care as a person to whom the care of the child was entrusted, or; (2) assumed a duty of care.

Thanks to Amicus Committeemembers, brief authors and board

DTCI and the Amicus Committee appreciate and thank attorneys (and their firms) who devote their time and talents to voting on participation, authoring amicus briefs and working with attorneys for the parties DTCI supports on appeal. Additionally, I want to particularly thank the members of the DTCI Amicus Committee who have given so much of their time and expertise to ensure that the voice of the Indiana defense bar is heard in Indiana’s appellate courts: Jenny R. Buchheit (Ice Miller), Phil Kalamaros (Hunt Suedhoff Kalamaros), Keith Mundrick (Cantrell Strenski & Mehringer), Jaime Oss (Huelat & Mack); Bob Palmer (May Oberell Lorber), Peter H. Pogue (Schultz & Pogue); Crystal Rowe (Kightlinger & Gray); and Nabeela Virjee.

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to send the request as early on in the appellate process as possible to committee chairwoman Lucy Dollens (lucy.dollens@quarles.com or 317-399-2815). The DTCI Amicus Committee and the Board of Directors welcome and endeavor to carefully consider each request.•

Lucy Dollens is a partner at Quarles & Brady LLP and chairs the DTCI Amicus Committee. Opinions expressed are those of the author.

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