IN justices grant transfer in 2 cases, deny case that split COA over new double jeopardy rules

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The Indiana Supreme Court bench. (IL file photo)

Indiana Supreme Court justices granted transfer to two cases last week, including one involving a woman who sued a Red Lobster restaurant for negligence after tripping on an unmarked elevated portion of the restaurant’s floor.

In that case, Red Lobster Restaurants LLC, v. Abigail Fricke, 23S-CT-304, seafood restaurant group Red Lobster could not net a reversal from the Court of Appeals of Indiana on a ruling denying its motion for summary judgment.

In May 2017, Abigail Fricke filed a Chapter 13 petition for bankruptcy with the U.S. Bankruptcy Court for the Southern District of Indiana.

Two years later, in December 2019, Fricke visited a Red Lobster restaurant in Indianapolis and tripped on an unmarked elevated portion of the floor. The following August, she sued for negligence.

In response to an interrogatory, Fricke answered “no” when she was asked if she had ever been party to a civil, criminal or bankruptcy action.

Red Lobster filed a motion for summary judgment in May 2021, asserting Fricke was judicially estopped and lacked standing due to her bankruptcy action.

In response to Red Lobster’s motion for summary judgment, Fricke explained that she didn’t intend to mislead by not disclosing her bankruptcy case. She included an affidavit, which Red Lobster attempted to strike for being contradictory to her previous sworn interrogatory answers.

After a hearing, the Marion Superior Court denied both Red Lobster’s motion to strike and its motion for summary judgment.

Red Lobster appealed.

The COA affirmed the trial court’s denials, rejecting Red Lobster’s arguments that the trial court abused its discretion when it denied the motion to strike Fricke’s affidavit and that the trial court erred when it denied the restaurant’s motion for summary judgment.

The appellate court also ruled Fricke had standing because she sustained a direct injury.

“Fricke was also under an obligation to advise the trustee upon the resolution of her claim and to not dispose of any funds without first obtaining the consent of the trustee,” Judge Melissa May wrote. “Thus, had Fricke’s bankruptcy petition not been dismissed, any recovery would have been available to satisfy her creditors. The trial court properly rejected Red Lobster’s argument that Fricke lacked standing.”

Oral arguments have been scheduled in the Red Lobster case for 10 a.m. on Thursday, Dec. 14, in the Supreme Court courtroom at the Indiana Statehouse.

Justices also granted transfer to a case involving a medical malpractice action filed against a pediatrician and the hospital where he worked after he was convicted of multiple felony sex crimes involving minors.

In Indiana Department of Insurance, et. al. v. Jane Doe, et. al., 23S-CT-306, a split Court of Appeals reversed a lower court decision and ruled that the Indiana Patient’s Compensation Fund is entitled to summary judgment in a medical malpractice case because, among other reasons, an underlying act of medical malpractice is a necessary predicate to a medical credentialing malpractice claim.

Jane Doe and John Doe I reached a settlement with the hospital in an amount sufficient to permit them to petition for excess damages from the Patient’s Compensation Fund. The Doe’s son, John Doe II, was one of several male teenage patients that was the victim of sex crimes committed by Jonathan Cavins, a pediatrician.

The Does filed and action for additional compensation from the fund, and the hospital and Cavins intervened.

The Department of Insurance and the fund moved for summary judgment, asserting the Does’ claims fell outside the scope of the Medical Malpractice Act.

The Boone Circuit Court denied the motion, and the department and fund appealed.

The COA addressed several questions on appeal, including whether the Does satisfied the statutory prerequisites for access to the Patient’s Compensation Fund.

The Does argued the substance of their claim against the hospital constituted medical malpractice because the credentialing of a doctor is directly related to the provision of health care. The hospital agreed with the Does and further argued that any underlying tort caused by negligent credentialing should suffice, regardless of whether it constitutes medical malpractice.

But the COA did not agree with the hospital’s view that any tort will do, that a negligent credentialing claim is a freestanding claim, and that it doesn’t make a difference whether the underlying claim sounds in medical negligence.

“This is an argument that finds no support in our case law; rather, the case law is clear that an underlying act of medical malpractice is the predicate and condition precedent for a negligent credentialing claim,” the COA ruled.

Oral arguments in that case are scheduled for 10 a.m. on Thursday, Jan. 18, 2024, also in the court’s Statehouse courtroom.

Justices denied transfer to 17 cases for the week ending Nov. 3, including one involving Steven Ray Hessler, who was sentenced to an aggregate 650-year prison sentence for 19 charges related to rape and home invasion.

A split Court of Appeals of Indiana affirmed Hessler’s convictions in June.

The COA found that Hessler was correct that, at the time he committed his crimes, Indiana’s double jeopardy clause prohibited the enhancement of an offense based on the same injury that established another offense for which the defendant had already been punished.

But the Indiana Supreme Court significantly altered the test for double jeopardy in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020), Judge Peter Foley wrote. Wadle, in particular, replaced the common law double jeopardy rules, including the common law rule upon which Hessler relied.

Judge Nancy Vaidik dissented on that point, writing separately that the state didn’t charge Hessler until more than 30 years after his crimes — the same day the Supreme Court decided Wadle. She said she was “firmly convinced” that Hessler is entitled to the benefit of the double jeopardy law that was in effect at the time of his crimes.

All justices concurred in all denials except for Chief Justice Loretta Rush, who voted to grant transfer to Patrick Atkins v. State of Indiana, 23-CR-659.

Rush and Justice Christopher Goff also voted to grant transfer to Manuel Trejo v. State of Indiana, 22A-CR-2667.

The full list of transfer decisions is available online.

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