F:\29268 Ind Law Rev 48-4\48 masthead.wpd


RECENT DEVELOPMENTS IN INDIANA TORT LAW

PAUL S. KRUSE*
ROBERT DREW AND LARRY MORRIS**

LORI M. CRAIG***

This Article discusses noteworthy case law developments in tort law in
Indiana during the survey period.  It is not intended as a comprehensive or
exhaustive overview.

I. IMMUNITY

A. Sovereign Immunity
In Veolia Water Indianapolis, LLC v. National Trust Insurance Co.,  the

Indiana Supreme Court held that a for-profit private company operating a public
water utility under a contract with a governmental unit does not have common-
law sovereign immunity.1  

In this case, the Indianapolis Fire Department responded to a restaurant fire
in January, 2010, and its efforts were delayed because several of the nearby fire
hydrants were frozen.2  At the time of the fire, Veolia, a private company, was
responsible for operating the city’s water utility through a management agreement
with the fire department.3  Under this arrangement, Veolia agreed to maintain the
hydrants and license access to the hydrants’ water supply to other companies for
commercial use.4  The insurers of the restaurant brought suit against the city and
Veolia on the theory that the hydrants froze, because the licensed users failed to
properly close the hydrants and that the diminished water supply so hampered the
efforts of the fire department that the restaurant was a total loss.5 

The court first considered whether the city was entitled to immunity.6  While
the city was not entitled to immunity for a discretionary function under Indiana
Code section 34-13-3-3(7), it was entitled to “common law sovereign immunity
on the Insurers’ claim that it failed to provide an adequate supply of water from

* Partner, Parr Richey Obremskey Frandsen & Patterson since 1984 with practice focusing
on a wide range of personal injury matters; including extensive experience handling catastrophic
damage and wrongful death claims involving all types of personal injury liability theories.  J.D.,
cum laude, Indiana University Robert H. McKinney School of Law. 

** Robert Drew is a Bloomington, Indiana attorney who recently retired as Senior Judicial
Clerk for the Hon. John G. Baker of the Indiana Court of Appeals; Larry Morris is the Senior
Judicial Clerk for the Hon. Ezra H. Friedlander of the Indiana Court of Appeals. 

*** Law Clerk, Parr Richey Obremskey Frandsen & Patterson.  J.D. Candidate, 2014, Indiana
University Robert H. McKinney School of Law.

1. Veolia Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 10 (Ind. 2014).
2. Id. at 3.
3. Id.
4. Id. at 3, 4.
5. Id. at 4.
6. Id. at 5.

http://dx.doi.org/10.18060/4806.0048



1506 INDIANA LAW REVIEW [Vol. 48:1505

which to fight the fire.”7  
The court then turned to the question of whether Veolia was entitled to

immunity as an instrumentality of the city.8  The court noted that “Veolia is a
wholly private entity bound to the [c]ity only by contract.”9  The court also
distinguished “this case from the circumstances of Metal Working Lubricants10
and respond[ed] to the increasingly common practice of private, for-profit
companies contracting with a governmental unit to provide services—such as
managing public water utilities—historically undertaken by the governmental
unit.”11  The court indicated that it was most persuaded by the “argument that
granting common law sovereign immunity to a private company—with a
fundamental goal of maximizing profits—invites negligence.”12  The crucial
element was “the nature of the link between the private company and the
governmental unit.”13    

B.  Federal Communications Decency Act
In Miller v. Federal Express Corp., the Indiana Court of Appeals held that the

provider of an interactive computer service is immune from lawsuit under the
Federal Communications Decency Act for allegedly defamatory statements made
by individuals while using its computers.14  

In response to an online news article, commenters posted statements on which
plaintiffs, Mr. and Mrs. Miller, brought claims of defamation and intentional
infliction of emotional distress.15  The plaintiffs were able to identify the internet
protocol (“IP”) addresses of the commenters and amended their complaint to add
the companies associated with the IP addresses on a theory of publication of
defamatory comments.16  One of the companies employed one of the commenters,
who used the company’s Internet access to post the comments using his personal
email account.17  The other IP address was associated with a proxy server and the
commenter remained unidentified.18  The companies asserted that operation of the
federal Communications Decency Act (“CDA”) protected them from liability.19

In determining that the companies did not bear liability for the comments
posted by third parties, the court first analyzed the statutory provisions of the

7. Id. at 8.
8. Id.
9. Id. at 9.

10. 746 N.E.2d 352 (Ind. Ct. App. 2001).
11. Veolia, 3 N.E.3d at 9.
12. Id.
13. Id. at 10.
14. Miller v. Fed. Express Corp., 6 N.E.3d 1006, 1018 (Ind. Ct. App. 2014).
15. Id. at 1009.
16. Id. at 1009-10.
17. Id. at 1010.
18. Id.
19. Id.



2015] TORT LAW 1507

CDA:20  

[F]or a defendant to claim the protection afforded by Section 230 of the
CDA, it must establish three elements:  (1) that the defendant is a
provider or user of an interactive computer service; (2) that the cause of
action treats the defendant as a publisher or speaker of information; and
(3) that the information at issue is provided by another information
content provider.21

The court determined that the companies qualified as providers of an “interactive
computer service” because “[the companies] provide or enable computer access
for multiple users on their respective computer networks to access the Internet by
means of the servers on each network.”22  The court further said that “this is all
that is required under Section 230(c)(1) [of the CDA] to be considered a provider
of an interactive computer service.”23  The cause of action treated defendants as
publishers and the court noted that “[t]he [complaint] seeks to hold [the
companies] liable for what they published.”24  Finally, the comments posted to the
news website (the information at issue) “was provided by another ‘information
content provider,’ which is defined as ‘any person or entity that is responsible, in
whole or in part, for the creation or development of information provided through
the Internet[.]’”25  Accordingly, plaintiffs’ claims were barred by operation of the
CDA and the companies were not liable for the comments posted by use of their
computers and Internet access.26

C.  Privilege
In Estate of Mayer v. Lax, Inc., the Indiana Court of Appeals held that an

attorney who made statements in a counterclaim is protected by absolute privilege
from a subsequent defamation action based upon those statements although this
privilege does not bar a claim of malicious prosecution or abuse of process.27

This case arose from a web of claims and cross-claims, but the critical matter
was that Lax, a real estate development company, initiated proceedings
supplemental to recover from JME, an excavating company, its net judgment
from a jury verdict.28  The attorney for JME (“Mayer”) filed a counterclaim
alleging that Lax had perpetrated fraud and had violated the Indiana RICO Act.29 

20. Id. at 1013.
21. Id. at 1018.
22. Id. at 1017.
23. Id.
24. Id. at 1018 (emphasis omitted).
25. Id. (alteration in original).
26. Id.
27. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 263 (Ind. Ct. App. 2013), trans. denied,

2 N.E.3d 686 (Ind. 2014).
28. Id. at 242-45.
29. Id. at 243.  See generally IND. CODE §§ 35-45-6-1 to -2 (2014).



1508 INDIANA LAW REVIEW [Vol. 48:1505

The counterclaim was dismissed as an impermissible collateral attack on the prior
verdict.30  Mayer then amended the complaint alleging that Lax had conspired to
commit bribery, perjury, obstruction of justice, intimidation, business corruption,
and other violations of the Indiana RICO Act.31  The trial court granted summary
judgment to Lax on these claims on res judicata grounds.32  While the
counterclaims were pending, Lax was in negotiations with a casino.33  Lax
asserted that the negotiations broke off because of the damage to Lax’s reputation
caused by the counterclaims filed by Mayer.34  Lax sued Mayer and Mayer’s firm
for defamation, abuse of process, malicious prosecution, tortious interference
with a contract, and tortious interference with a business relationship.35  Mayer
died and his Estate was substituted.36

First, in Indiana, a “litigant defeated in a tribunal of competent jurisdiction
may not maintain an action for damages against his adversary or adverse
witnesses on the ground the judgment was obtained by false and fraudulent
practices or by false and forced evidence.”37  Second, for the “‘absolute privilege’
to apply, statements made during litigation must be ‘relevant and pertinent to the
litigation or bear some relation thereto.’”38  Finally, “relevancy is not necessarily
measured with respect to the pleadings of an opposing party, but with respect to
a cause of action or defense raised by the party claiming the privilege.”39

II.  PROCEDURE

A.  Small Claims
In Palmer v. Sales, the Indiana Court of Appeals held that a change of judge

request is governed by Trial Rule 76(C)(1).40  
In this case a homeowner brought an action in small claims court against a

driver who lost control of her vehicle and caused damage to the homeowner’s
yard.41  The driver requested a change of judge.42  The court denied the request
as untimely, citing McClure v. Cooper.43  McClure held that a party in small

30. Estate of Mayer, 998 N.E.2d at 244.
31. Id. at 243-44.
32. Id. at 244.
33. Id.
34. Id.
35. Id. at 245.
36. Id.
37. Id. at 247 (citing South Haven Sewer Works, Inc. v. Jones, 757 N.E.2d 1041, 1045 (Ind.

Ct. App. 2001) (quoting Dodd v. Estate of Yanan, 625 N.E.2d 456, 457 (Ind. 1993))).
38. Id. at 248.
39. Id. 
40. Palmer v. Sales, 995 N.E.2d 1073, 1078 (Ind. Ct. App. 2013).
41. Id. at 1075.
42. Id.
43. Id.



2015] TORT LAW 1509

claims proceedings must file a request for a change of judge within three days of
receiving the notice of claim, pursuant to Trial Rule 76(C)(5).44 

In Palmer, the court held that the “practical effect of the McClure rule is to
foreclose the right to request a change of judge.”45  The court also gave special
attention to the aims of small claims proceedings, noting:  

While speedy resolution is one of the aims of small claims proceedings,
they are also meant to be accessible to pro se parties.  While we often tell
pro se parties that ignorance of the law is not an excuse, pro se parties in
a small claims case should be given a reasonable opportunity to discover
what the applicable rules are or to decide to hire an attorney.46

The court also suggested that the Small Claims Rules might benefit from a
specific rule for changes of judge that better balances the aims of speedy
resolution and accommodation of pro se parties.47  The court concluded that
“Trial Rule 76(C)(5) does not apply, and the request for a change of judge was
timely pursuant to Trial Rule 76(C)(1) and should have been granted.”48

B.  Statutes of Limitations
In Moryl v. Ransone, the Indiana Supreme Court held that, for purposes of the

statute of limitations, a proposed medical malpractice complaint is filed when it
is mailed via a private delivery service, as well as United States Postal Service
(“USPS”), so long as it satisfies the statute governing requirements that matters
be sent by registered or certified mail.49

In Moryl, a patient died on April 20, 2007 while under medical care, and
plaintiff sought to bring a medical malpractice action against the healthcare
providers.50  The plaintiff sent  a proposed complaint addressed to the Indiana
Department of Insurance (“IDOI”) on Sunday, April 19, 2009 via FedEx Priority
Overnight.51  The IDOI received and file-stamped the proposed complaint on
Tuesday, April 21, 2009, and both parties agreed that April 21 was “one day after
the expiration of the applicable two-year statute of limitations.”52

The defendant healthcare providers asserted that the plaintiff’s medical
malpractice action was “belatedly commenced because it was sent by commercial
courier rather than mailed by registered or certified mail.”53  The plaintiff

44. McClure v. Cooper, 893 N.E.2d 337, 340 (Ind. Ct. App. 2008).
45. Palmer, 995 N.E.2d at 1078.
46. Id. at 1077.
47. Id. at 1078.
48. Id.
49. Moryl v. Ransone, 4 N.E.3d 1133, 38-39 (Ind. 2014), vacating in part, 987 N.E.2d 1159

(Ind. Ct. App. 2013).
50. Palmer, 995 N.E.2d at 1135.
51. Id.
52. Id.
53. Id.



1510 INDIANA LAW REVIEW [Vol. 48:1505

responded that “whether so mailed or otherwise deposited with a commercial
courier, the date of commencement of the action is the same:  the date of such
mailing or deposit.”54  Two statutes potentially govern the filing of a proposed
complaint for medical malpractice:  Indiana Code sections 1-1-7-1 and 34-18-7-
3(b).55  The court held that “[h]armonizing the uncertainties [between the
statutes], . . . a proposed medical malpractice complaint is filed upon mailing with
a designated private delivery service—as well as the USPS—so long as it satisfies
Indiana Code section 1-1-7-1.”56

In Magic Circle v. Schoolcraft, the Indiana Court of Appeals held that, for
purposes of the statute of limitations, an action against a new party commences
with the date of filing the motion to amend the complaint, even if the motion is
not granted until after the expiration of the limitations period.57

In this case a man was injured in a lawn mowing accident on May 5, 2010
and died three days later.58  On January 16, 2012, the personal representative of
the man’s estate brought a wrongful death action sounding in products liability
and negligence against the manufacturer of the mower.59  The day before the
limitations period expired, the representative moved to amend the claim to add
new defendants and, although the motion was file-stamped that day (May 4,
2012), the trial court did not grant the motion to amend until May 15, 2012.60 
The new defendants challenged the plaintiff’s amended complaint on statute of
limitations grounds.61  

Here, the court acknowledged that, previously, “when faced with
circumstances almost identical to those now before us, a panel of this Court
determined an action against a new defendant should have been dismissed.”62 
The court then declined to follow the previous case.63  Instead, the court adopted
the rule as articulated by the Supreme Court of Vermont in The Children’s Store
v. Cody Enterprises, Inc., that “an action against a new party, brought in through
amendment to a preexisting complaint, is commenced when the motion to amend,
and the new complaint, is filed even though permission to make the amendment
is given at a later date.”64  

In Alldredge v. Good Samaritan, the Indiana Supreme Court held that if a
plaintiff makes the necessary factual showing, the Fraudulent Concealment

54. Id.
55. Id. at 1136; see also IND. CODE § 1-1-7-1 (2014) and IND. CODE § 34-18-7-3(b) (2014).
56. Palmer, 995 N.E.2d at 1138.
57. Magic Circle v. Schoolcraft, 4 N.E.3d 768, 772 (Ind. Ct. App. 2014), adopted by,

Camoplast Crocker, LLC v. Schoolcraft, 12 N.E.3d 251 (Ind. 2014). 
58. Id. at 769.
59. Id.
60. Id.
61. Id.
62. Id. at 770 (citing A.J.’s Auto Sales, Inc. v. Freet, 725 N.E.2d 955 (Ind. Ct. App. 2000),

reh’g denied, trans. denied, 741 N.E.2d 1249 (Ind. 2000)).
63. Id.
64. Id. at 771 (quoting The Children’s Store, 580 A.2d 1206, 1209-11 (Vt. 1990)).



2015] TORT LAW 1511

Statute65 may apply to toll the Wrongful Death Act’s66 two-year filing period.67
Alldredge involved a nursing home patient who was a high fall risk.68  On

November 17, 2009, a nurse from the nursing home called one of the patient’s
daughters and told her the patient had suffered a fall, started vomiting a few hours
later, and was transported to the hospital.69  Nine days later, the patient died as a
result of the head injury she sustained in the alleged fall.70  Nearly three years
later, on November 24, 2009, a former employee of the nursing home visited
another of the patient’s daughters and told her that a fall did not cause the
patient’s head injury, but another resident had attacked the patient and pushed her
to the floor.71  

After exploring Indiana’s Adult Wrongful Death Statute, the court noted that
“a tortfeasor’s fraudulent concealment of his wrong ordinarily will operate to toll
the statute of limitation until the plaintiff discovers the wrong.”72  The court
further said that “when a plaintiff can prove [the Fraudulent Concealment Act]
applies, it effectively moves the date on which the statute of limitation begins to
run forward from the date of the alleged tort to the discovery date.”73  The court
continued, “[f]raud vitiates anything.  Courts will not uphold fraud, or presume
the Legislature intended to do so by allowing one in a confidential relationship
to conceal an injury done another until the statute of limitations has run.”74  Thus,
“the Fraudulent Concealment Statute may apply to toll the Adult Wrongful Death
Act’s two-year filing period.”75    

In Groce v. American Family Insurance Co.,  the Indiana Supreme Court held
that if, in the exercise of ordinary diligence in reviewing their homeowner’s
insurance policy, the insureds could have timely discovered the loss-coverage
limitations, their statute of limitations period began to run no later than the first
policy renewal after the agent’s alleged representations to insured.76  

In this case an insurance company issued a homeowners policy through an
insurance agent to the homeowners.77  In discussing the policy, the agent said
“‘I’m assuming you want replacement cost coverage . . . if anything ever happens

65. IND. CODE § 34-11-5-1 (2014).
66. Id. §§ 34-23-1-0.1 to -2. 
67. Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1264 (Ind. 2014), vacating 982

N.E.2d 378 (Ind. Ct. App. 2013).
68. Id. at 1258.
69. Id.
70. Id.
71. Id.
72. Id. at 1261.
73. Id. at 1262.
74. Id. at 1263 (quoting Guy v. Schuldt, 138 N.E.2d 891, 96-97 (Ind. 1956)) (emphasis in

original).
75. Id. at 1264.
76. Groce v. Am. Family Ins. Co., 5 N.E.3d 1154, 1159 (Ind. 2014).
77. Id. at 1155.



1512 INDIANA LAW REVIEW [Vol. 48:1505

[the residence] will be replaced 100%.’”78  The homeowners agreed to
replacement cost coverage, and the agent said he would “‘get this written up.’”79 
The homeowners believed that the policy would cover the “‘entire cost of
reconstruct[ion] [if the home] was damaged or destroyed by fire.’”80  The home
sustained substantial fire damage and a “dispute arose regarding the amount of
insurance claim benefits payable under the policy.”81  The homeowners brought
suit against the insurance company and the insurance agent.82  The policy
provided that the “insurance company would pay ‘the full cost to repair or replace
the damaged building, without deducting for depreciation, but not exceeding’
repair costs and ‘the limit in this policy.’”83  The court explained that the amount
paid to the homeowners represented the full policy limits rather than an actual
cash value.84  Therefore, the amount the homeowners received was “‘replacement
cost’ coverage, but in an amount capped by the policy limits.”85    

The court then turned to the homeowners’ claim of negligence as to the
agent.86  An insured’s “reasonable reliance upon an agent’s representations can
override an insured’s duty to read the policy.”87  Here, the homeowners’ claim is
not that the agent “made a representation of existing coverage but rather that,
perceiving that [the homeowners] wanted 100% replacement coverage, [the agent
would] ‘get this written up.’”88  The agent’s “alleged comments dealt with his
promise of future activity, and did not constitute any representation about existing
provisions related to coverages or limits in the homeowners policy.”89  Further,
the homeowners “could have discovered that their dwelling loss replacement
coverage did not exceed the applicable policy limits.”90  As a result, the
applicable statute of limitations began to run “no later than the first policy
renewal after the alleged statements of [the agent] to [the homeowner.]”91

In David v. Kleckner, the Indiana Supreme Court held that in order to
determine whether a medical malpractice claim has been commenced within the
applicable statute of limitations, the discovery or trigger date is the point when
a claimant either knows of the malpractice and resulting injury or learns of facts
that in the exercise of reasonable diligence should lead to the discovery of the

78. Id. at 1157.
79. Id. 
80. Id. at 1156.
81. Id.
82. Id.
83. Id. at 1158 (emphasis in original).
84. Id.
85. Id.
86. Id. at 1159.
87. Id. (quoting Filip v. Block, 879 N.E.2d 1076, 1084 (Ind. 2008)).
88. Id.
89. Id.
90. Id.
91. Id.



2015] TORT LAW 1513

malpractice and the resulting injury.92  
In Kleckner, a patient was clinically indicated to undergo an endocervical and

endometrial biopsy.93  The physician performed the endometrial biopsy, but not
the endocervical biopsy.94  The endometrial biopsy was negative for cancer.95 
Over the next several months, the patient began to exhibit additional symptoms
for which she consulted a specialist.96  The specialist identified and diagnosed a
cancerous cervical tumor.97  The patient consulted her physician who advised that
the mass had not been present at the time of the biopsy.98  The patient began
treatments that were ultimately unsuccessful, and the patient died less than two
years after her diagnosis.99  A month or two before she died, her husband began
to wonder how the physician had not found any evidence of cancer.100  He
obtained the physician’s medical records concerning the patient’s treatment and
submitted the records to an attorney for review by medical experts.101  Not until
after the patient’s death did the husband learn that the physician had not
performed the endocervical biopsy.102  Shortly after the patient’s death, the estate
commenced a medical malpractice action by filing a proposed complaint with the
Indiana Department of Insurance.103  The physician moved for summary judgment
based on the two-year statute of limitations.104  The trial court granted the motion,
the court of appeals affirmed, and this appeal followed.105  In its analysis, the
court first noted that:  

[T]he medical malpractice statute of limitations is unconstitutional as
applied when plaintiff did not know or, in the exercise of reasonable
diligence, could not have discovered that she had sustained an injury as
a result of malpractice, because in such a case the statute of limitations
would impose an impossible condition on plaintiff’s access to courts and
ability to pursue an otherwise valid tort claim.106

The court then explored the “discovery opportunity element:  ‘In order for the
date to be triggered, our case law requires that a plaintiff be aware of facts that,
in the exercise of reasonable diligence, should lead to the discovery of the

92. David v. Kleckner, 9 N.E.3d 147, 152-53 (Ind. 2014). 
93. Id. at 149.
94. Id.
95. Id.
96. Id.
97. Id.
98. Id.
99. Id.

100. Id. at 150.
101. Id.
102. Id.
103. Id.
104. Id.
105. Id. at 148.
106. Id. at 150 (quoting Martin v. Richey, 711 N.E.2d 1273, 1284 (Ind. 1999)).  



1514 INDIANA LAW REVIEW [Vol. 48:1505

malpractice and the resulting injury.’”107  The court further explained that
“[d]epending on the individual circumstances of each case, a patient’s learning
of the resulting disease or the onset of resulting symptoms may or may not
constitute the discovery or trigger date.”108    

Here, the patient underwent the biopsy and was informed that there was no
cancer.109  She continued to have symptoms and sought out a specialist.110  When
the specialist identified a cancerous tumor, the patient consulted her physician
who advised that the mass had not been present at the time of the biopsy.111 
“Where the plaintiff knows of an illness or injury, but is assured by professionals
that it is due to some cause other than malpractice, this fact can extend the period
for reasonable discovery.”112  The physician was able to establish that the action
was commenced more than two years after the date of the alleged malpractice, but
the plaintiff was able to show an issue of fact material to a theory that avoids the
defense.113  As a result, the physician was “not entitled to summary judgment on
his defense asserting the medical malpractice statute of limitations.”114

C.  Summary Judgment
In Boyd v. WHTIV, Inc., the Indiana Court of Appeals determined that the

three-day extension of time under Trial Rule 6(E) applies in summary judgment
proceedings.115 

In Boyd, an employee filed a complaint against his employer for damages.116 
The employer filed a motion for summary judgment and served the employee by
U.S. mail.117  Thirty-three days later, the employee sought additional time to
respond to  the employer’s motion.118  The employer objected that the request for
additional time was not made within thirty days and was not timely.119  The trial
court agreed, denied the employee’s motion for extension of time, and granted the
employer’s motion for summary judgment.120  The employee filed a motion to
correct error asserting that the motion for extension was timely because Trial
Rule 6(E) extends the deadline to respond by three days.121  The trial court denied

107. Id.
108. Id. at 153.
109. Id. at 149.
110. Id.
111. Id.
112. Id. at 153 (quoting Herron v. Anigbo, 897 N.E.2d 444, 451 (Ind. 2008)).
113. Id.
114. Id. at 154.
115. Boyd v. WHTIV, Inc., 997 N.E.2d 1108, 1113 (Ind. Ct. App. 2013).
116. Id. at 1109-10.
117. Id. at 1110.
118. Id. 
119. Id.
120. Id.
121. Id.



2015] TORT LAW 1515

the motion and reiterated that the motion for extension of time was untimely.122 
This appeal followed.123  

The court first addressed the question of whether Indiana Trial Rule 6(E)
extends the date by which a non-movant must respond to a motion for summary
judgment or request an extension of time to respond.124  The court reviewed the
text of the rule governing motions for summary judgment, i.e., Trial Rule 56, and
observed that the “response time is not thirty days from the date of the filing of
the motion; rather, it is thirty days from the date of service on the recipient.”125 
The court also observed that the trial rules “specifically provide for additional
time for service by mail.”126  The court further noted that “a review of Indiana
case law reveals that Trial Rule 6(E)’s three-day extension of time is permitted
and calculated into the required response time for summary judgment motions.”127

As part of its analysis, the court considered its prior opinion in DeLage
Landen Financial Services, Inc. v. Community Mental Health Center.128  In that
case, non-movant requested an enlargement of time to respond pursuant to Trial
Rule 6(B)(2), which allows a “trial court to permit an act to be done upon motion
made after the expiration of the time period . . . if the failure to act was the result
of excusable neglect.”129  There, the court determined that Trial Rule 6(B)(2) does
not apply to summary judgment proceedings; however, it did not determine that
no provision of Trial Rule 6 could be applicable to summary judgment
proceedings.130  In fact, a later case, State v. Gonzalez-Vazquez pointed out that
DeLage referred to and relied on Trial Rule 6(E).131  Here, in Boyd, the court was
guided by Gonzalez-Vazquez in determining that “the three-day extension of time
provided by Trial Rule 6(E) applies in the context of [the employee’s] request for
an extension of time to respond to Employer’s motion for summary judgment.”132

In Mitchell v. 10th and the Bypass, LLC,  the Indiana Supreme Court held that
evidence obtained after entry of summary judgment may not form the basis for
vacating that order on grounds that a non-final order is subject to revision at any
time before entry of a final judgment, nor is relief from judgment under the trial
rules limited to final judgments.133 

Here, a property owner sued tenants on claims they were responsible for
environmental contamination while operating their businesses at the property.134 

122. Id.
123. Id.
124. Id.
125. Id.
126. Id. 
127. Id. at 1111.
128. 965 N.E.2d 693 (Ind. Ct. App. 2012).
129. Boyd, 997 N.E.2d at 1111.
130. Id. at 1112.
131. Id. (citing State v. Gonzales-Vazquez, 984 N.E.2d 704 (Ind. Ct. App. 2013)). 
132. Id. at 1112-1113.
133. Mitchell v. 10th and the Bypass, LLC, 3 N.E.3d 967, 968 (Ind. 2014).
134. Id. at 968-69.



1516 INDIANA LAW REVIEW [Vol. 48:1505

Mitchell, an officer of one of the businesses, filed a motion for partial summary
judgment on grounds that “he was not personally liable for [the] damages and that
neither the responsible corporate officer doctrine nor the doctrine of piercing the
corporate veil was applicable.”135  In support of the motion, Mitchell included an
affidavit which alleged that he never dumped chemical waste and that he never
caused or contributed to the release of a hazardous substance.136  Rather than
responding to Mitchell’s motion, the property owner filed its own motion for
partial summary judgment.137  None of the property owner’s designated exhibits
disputed the material substance of Mitchell’s affidavit, and Mitchell’s motion for
partial summary judgment was granted.138  About a year later, the property owner
obtained a statement that cast doubt on the veracity of Mitchell’s affidavit.139  The
property owner then moved to vacate the grant of summary judgment based on
newly discovered inculpatory evidence.140  Mitchell did not dispute the new
allegations, but opposed the motion on grounds that the property owner had not
properly designated or timely submitted the new evidence.141  The trial court
granted the property owner’s motion to vacate, declaring in part that the “‘order
granting partial summary judgment was a non-final order, . . . and therefore is
subject to revision at any time before entry of a final judgment.’”142  The court of
appeals affirmed and this appeal ensued.143  

The court began its analysis by exploring the “interplay between Trial Rule
54(B)—Judgment upon multiple claims or involving multiple parties and Trial
Rule 56—Summary judgment, when new evidence is submitted to the trial court
following entry of partial summary judgment.”144  Starting with Trial Rule 54(B),
the court recognized that it has “long and consistently held a trial court has
inherent power to reconsider, vacate, or modify any previous order so long as the
case has not proceeded to final judgment.”145  In this case, the order granting
partial summary judgment was not final.146  The court then turned to Trial Rule
56 and the procedure governing summary judgment.147  Indiana case law has
established and affirmed a “bright-line rule . . . which precludes the late filing of
responses in opposition to a motion for summary judgment.”148  The court

135. Id. at 969.
136. Id. 
137. Id. 
138. Id.
139. Id. at 970.
140. Id.
141. Id.
142. Id.
143. Id.
144. Id. at 970-971.
145. Id. at 971 (quoting Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160, 1163

(Ind. Ct. App. 1993)).
146. Id.
147. Id.
148. Id. at 972.



2015] TORT LAW 1517

concluded that “[i]n order to harmonize Trial Rule 54(B) and Trial Rule 56(C) we
hold that although a trial court may indeed make material modifications to a non-
final summary judgment order, it must do so based on the timely submitted
materials already before the court when the order was initially entered.”149  

III.  INSURANCE

A.  UIM Coverage Setoff for Workmen’s Compensation Benefits
In Justice v. American Family Insurance Co., the Indiana Supreme Court held

that the phrase “limits of liability of this coverage” in an insurance policy refers
to the policy limit and not to the insured’s total damages.150

In this case an underinsured motorist collided with a city bus.151  The bus
driver was injured as a result of the accident and received workers’ compensation
benefits in the amount of  $77,469.56.152  This total was comprised of payments
to his medical providers for $51,829.81; $18,939.75 in lost wages and disability;
and $6,700 as compensation for his permanent partial impairment.153  The driver
also received policy limits of $25,000 from the underinsured motorist’s insurer.154 
In addition, the bus driver carried his own underinsured motorist policy, which
provided coverage up to $50,000 per person.155  When the bus driver made his
claim under that policy his insurer denied coverage.156  He then sued for breach
of contract arguing he was entitled to the difference between his policy limits and
the policy limits of the underinsured driver which was $25,000.157  The insurer
asserted that it was entitled to a setoff of the workers’ compensation benefits
against the $50,000 policy limit, thus reducing its liability to zero.158  

The court looked at the “limits of liability” section of the driver’s policy and
found that the language unambiguously provided for a set-off against the policy
limit.159  The court noted that “[t]he phrase ‘limits of liability of this coverage’
clearly refers to the $50,000 policy limit, not to [the bus driver’s] total
damages.”160  The court then turned to Indiana’s Uninsured/Underinsured
Motorist Statute,161 which prohibits underinsured motorist coverage in an amount

149. Id. at 973.
150. Justice v. Am. Family Ins. Co., 4 N.E.3d 1171, 1173 (Ind. 2014).
151. Id.
152. Id.
153. Id.
154. Id.
155. Id. at 1173-74.
156. Id. at 1174.
157. Id.
158. Id.
159. Id. at 1176.
160. Id. at 1177.
161. IND. CODE § 27-7-5-2(a) (2014).



1518 INDIANA LAW REVIEW [Vol. 48:1505

less than $50,000.162  The driver’s policy limit met the statutory minimum, but the
workers’ compensation setoff provision would operate to reduce the policy limit
to zero.163  The court determined that the purpose of Indiana’s
Uninsured/Underinsured Motorist Statute is to put the driver in a position to
recover the minimum coverage amount.164  The court said that “in light of that
statutory purpose and [case law], we conclude [the bus driver] is entitled to
recover the remaining $25,000.”165  The court further said that “[a]ny policy
provision to the contrary is unlawful and unenforceable.”166  Because the driver
received less than the statutory minimum from the third party, the policy
provision for setoff was unlawful and unenforceable.167

B.  Explicit Policy Exclusions
In Deeter v. Indiana Farmers Mutual Insurance Co., the Indiana Court of

Appeals held that when an insurance company includes an explicit exclusion in
its policy to cover a loss that results from an intentional act by a co-insured, the
court will enforce that exclusion.168

In this case, a husband and wife were co-insureds on a homeowner’s
insurance policy.169 The wife was informed that her husband was having an affair,
and she began “tearing up the house” and ultimately set fire to the home.170  The
wife was charged with arson and later entered a plea agreement wherein she
pleaded guilty to criminal mischief.171  The husband made a claim against the
policy, but the insurer determined the loss was intentional and refused to pay.172 
The relevant exclusion clause stated that the insurer “do[es] not pay for loss
which results from an act committed by or at the direction of an ‘insured’ and
with the intent to cause a loss.”173  The husband asserted that the exclusion clause
was ambiguous and that he was an “innocent co-insured spouse.”174  The court
found no ambiguity in the clause and noted that “[the wife] intentionally set fire
to her home and took criminal responsibility for her actions, placing the
[homeowners] squarely within the policy exclusion.”175  Turning then to the

162. Justice, 4 N.E.3d at 1177-78.
163. Id. at 1179.
164. Id.
165. Id.
166. Id.
167. Id.
168. Deeter v. Ind. Farmers Mut. Ins. Co., 999 N.E.2d 82, 86 (Ind. Ct. App. 2013), trans.

denied, 999 N.E.2d 82 (Ind. 2014).
169. Id. at 84.
170. Id. 
171. Id. 
172. Id. at 84-85.
173. Id. at 84.
174. Id. at 85.
175. Id.



2015] TORT LAW 1519

question of an “innocent co-insured,” the court distinguished the precedent cited
by the husband by noting that those policies had not provided an explicit
exclusion for intentional loss by a co-insured.176  The court explained that “when
an insurance company has included an explicit exclusion in its policy to cover
loss that results from an intentional act by a co-insured, we will respect the
parties’ right to contract and enforce that exclusion.”177  Thus, the insurer “was
within the scope of its contractual rights to deny the [homeowners’] insurance
claim in accordance with the intentional loss exclusion contained in the policy.”178

C.  Groundless Suit
In State Farm Fire & Casualty Co. v. H.H. Niswander, the Indiana Court of

Appeals held that an insurer’s suit is groundless, and a defendant may be awarded
attorney fees, when a claim requires expert testimony and the insurer’s own
experts indicated that no facts would support a claim of negligence, but the
insurer files suit and nevertheless continues to litigate it for two years.179

In this case, an insured parked his vehicle in his attached garage.180  The
vehicle caught fire and the flames “engulfed the garage, destroying its contents,
three other cars, and a portion of the house.”181  When making the claim to his
insurer, the insured stated that the last people to access the engine compartment
were employees of a dealership that had performed an oil change about a week
before the fire.182  Approximately two weeks after the fire, the insurer hired
investigators to determine the cause of the fire.183  The investigators determined
that the fire was an “accidental combustible fluid fire.”184  The investigators
classified the fire as an “accidental fire.”185

Ten months after the insurer received the report, it filed suit against the
dealership alleging that the dealership was “negligent, reckless, and careless in
service, thereby causing the fire”186 and that the property damage was due to the
dealership’s negligence.187  The lawsuit was actively litigated for more than two
years, during which the parties participated in written discovery.188  The insurer
finally supplied the investigative report to the dealership nearly a year after the

176. Id.
177. Id. at 86.
178. Id.
179. State Farm Fire & Cas. Co. v. H.H. Niswander, 7 N.E.3d 295, 300 (Ind. Ct. App. 2014).
180. Id. at 295.
181. Id. at 296.
182. Id. 
183. Id.
184. Id. at 297.
185. Id.
186. Id.
187. Id.
188. Id.



1520 INDIANA LAW REVIEW [Vol. 48:1505

suit was filed.189  In response, the dealership deposed the investigators who
created the report.190  One of the investigators testified that he believed that the
dealership did not cause the fire and that the fire was, in fact, the result of a
manufacturing defect in the valve cover.191  Following the deposition, the
dealership asked the insurer to dismiss the lawsuit with prejudice and to
reimburse the dealership for its legal fees.192  The insurer informed counsel for the
dealership that it was unwilling to pay the legal fees.193  The dealership then filed
a motion to dismiss with requests for the court to impose sanctions and fees on
the insurer.194  The trial court granted the motion to dismiss and ordered the
insurer to pay the dealership’s legal fees.195  The insurer appealed.196  

The court began its analysis by noting that in Indiana litigants typically pay
their own attorney fees, but there is a statutory provision for the recovery of
attorney fees for bringing or continuing frivolous lawsuits.197  It then listed the
three-step process for reviewing an award under that section of the Indiana
Code.198  First, “[the court] review[s] the trial court’s findings of fact for clear
error.”199  Second, “[it] review[s] de novo the trial court’s legal conclusion that
a lawsuit is ‘frivolous, groundless, unreasonable, or asserted in bad faith.’”200 
Third, “‘[it] look[s] to see whether the trial court’s decision to award fees and the
amount of the fees awarded constitute an abuse of discretion.’”201    

Here, the court found no error in the trial court’s finding that, prior to the
filing of the suit, the insurer knew that its experts were of the opinion that the
dealership did not cause the fire.202  It then reviewed the determination that the
insurer’s claim was frivolous and reached the same conclusion as the trial court,
noting that the insurer’s claim required expert testimony, but that the insurer’s
experts drafted a report that showed no facts would support a claim of negligence
against the dealership.203  Finally, the court determined whether the trial court
abused its discretion in awarding attorney fees.204  Here the court said that “only
after [the dealership’s] counsel had prepared for the deposition of [the insurer’s]

189. Id.
190. Id.
191. Id. at 297-98.
192. Id. at 298.
193. Id. 
194. Id. 
195. Id.
196. Id. 
197. Id.; see IND. CODE § 34-52-1-1(b) (2014).  
198. State Farm Fire & Cas. Co., 7 N.E.3d at 299.
199. Id.
200. Id. (citing Alaska Seaboard Partners Ltd. P’ship v. Hood, 949 N.E.2d 1247, 1255 (Ind.

Ct. App. 2011)).
201. Id. (citing Alaska Seaboard Partners Ltd. P’ship, 949 N.E.2d at 1256).
202. Id.
203. Id. at 299-300.
204. Id. at 300.



2015] TORT LAW 1521

experts and traveled to Michigan did [the insurer] concede that the experts did not
blame [the dealership] for the fire.”205  And then [the insurer] allowed the suit to
proceed until the trial court dismissed it.”206  The court found that “[the insurer’s]
lawsuit was groundless and that the trial court did not abuse its discretion in
awarding [the dealership] attorney’s fees.”207

IV.  ATTORNEY FEES

A.  Attorney Fees in Cases Subject to Both the Medical Malpractice Act and
the Adult Wrongful Death Statute

In Indiana Patient’s Compensation Fund v. Holcomb,208 the Indiana Supreme
Court held that the fee cap provision of the Indiana Medical Malpractice Act
(“MMA”) 209 serves only to cap fees a plaintiff’s lawyer may charge his or her
client as to the award the client receives from the Patient’s Compensation Fund
(“the Fund”), but it does not lessen the Fund’s liability to a claimant.210

In this case, a decedent’s estate settled an adult wrongful death medical
malpractice claim against a healthcare provider in an amount that allowed the
estate to pursue excess damages from the Fund.211  The Fund asserted that “in an
action to recover for the wrongful death of an adult, the Fee Cap Provision should
be construed and applied such that the Fund should not be required to pay to a
claimant an amount for attorney fees that exceeds the 15% Fee Cap Provision.”212 
However, “[u]nder the MMA, the Fund must pay all damages in excess of the
initial $250,000 payable from qualified health care providers,” which includes
reasonable attorney’s fees.213  The court noted that “in cases subject to both the
Medical Malpractice Act and the Adult Wrongful Death Statute, attorney fees as
an element of damages are to be included in the overall calculation of
damages.”214  The court also said that “attorney fees payable from the excess
damages recovered from the Fund are limited . . . to 15% of the excess
payment.”215  The purpose of this limitation is not part of the “litigation of a
plaintiff’s claim against the Fund, but rather in the course of resolving the
plaintiff’s attorney’s claim for fees from [the] client.”216

Therefore, the court declined to construe the fee cap provision of the MMA

205. Id. 
206. Id. 
207. Id. 
208. 17 N.E.3d 255 (Ind. 2014).
209. IND. CODE § 34-18-18-1 (2014).
210. Holcomb, 17 N.E.3d at 258.
211. Id. at 255.
212. Id. at 256.
213. Id. 
214. Id. at 257.
215. Id.
216. Id.



1522 INDIANA LAW REVIEW [Vol. 48:1505

so as to reduce the Fund’s liability to a plaintiff Adult Wrongful Death Statute
claimant because that provision serves only to cap fees a plaintiff’s lawyer may
charge his or her client as to the award the client receives from the Fund, but it
does not lessen the Fund’s liability to a claimant.217

B.  Attorney Fees Under Indiana’s General Wrongful Death Statute
In SCI Propane, LLC v. Frederick, the Indiana Court of Appeals held that the

omnibus provision of the General Wrongful Death Statute (“GWDS”) permits
recovery of reasonable attorney fees for dependents who survive decedents.218

This matter arose after a lengthy and complex litigation.219  The appeal was
limited to the question of the propriety of an award of attorney fees to the estate
and the calculation of such an award.220  In the beginning of its analysis, the court
looked to the text of the GWDS and noted that it is divided into two parts.221  The
first part addresses decedents survived by dependents while the second part
addresses decedents who are without any dependents.222  The second part
explicitly lists attorney fees, but the first part does not.223  The court held that the
omnibus provision of the GWDS is “ambiguous with respect to whether attorney
fees are recoverable, because it provides that recoverable damages are not limited
to those the statute delineates.”224  After looking to prior cases and finding none
of them directly on point, the court held that “attorney fees are recoverable under
the first part of the GWDS for multiple reasons, including that:  (1) attorney fees
are the ‘type’ of damages contemplated by the statute; (2) such a conclusion
comports with our principles of statutory construction; and (3) the Legislature has
‘acquiesced’ to the recoverability of attorney fees.”225  

Having determined that attorney fees are recoverable, the court then
addressed the calculation of such fees.226  Citing Butler v. Indiana Department of
Insurance,227 SCI Propane argued that the “Estate should only be able to recover
the amount it would have actually had to pay for attorney fees, which was
governed by the contingent fee agreement.”228  The court agreed and noted that
“an award of attorney fees under the GWDS is compensatory in nature.”229

Because attorney fee awards are compensatory in nature and the trial

217. Id. at 258. 
218. SCI Propane, LLC v. Frederick, 15 N.E.3d 1015, 1023 (Ind. Ct. App. 2014).
219. Id. at 1018-21.
220. Id. at 1018.
221. Id. at 1022-24.
222. Id.
223. Id. at 1023.
224. Id. 
225. Id. at 1025.
226. Id. at 1027.
227. 904 N.E.2d 198 (Ind. 2009).
228. Frederick, 15 N.E.3d at 1028.
229. Id.



2015] TORT LAW 1523

court’s award placed the Estate in a better position than it would have
been under the contingent fee agreement, we conclude that the trial court
abused its discretion in calculating attorney fees.  Instead, the trial court
should have based its award on the amount that the Estate had actually
lost as a result of its claim, which is equal to the amount it owed its
counsel under that agreement.230

The court also affirmed a reduction of recovery due to non-party fault and
denied the estate’s request for appellate attorney fees.231

V.  NEGLIGENCE

A.  Assumption of Risk
In South Shore Baseball, LLC v. DeJesus, the Indiana Supreme Court held

that a baseball facility is not liable for injuries received by a fan as a result of a
foul ball flying into the stands where the fan admitted she had seen foul balls
enter the stands at the ballpark before, and that she was aware there was a chance
that the ball could come her way based upon the positioning of the protective
netting.232  

In this case a spectator attended a baseball game and sat in a section of the
stadium without protective netting.233  A foul ball struck her  and she suffered
multiple fractures of facial bones and permanent blindness in her left eye.234  She
brought claims in premises liability and in negligence.235  

The Indiana Supreme Court determined that South Shore was entitled to
summary judgment.236  Notably, the court declined to adopt a special limited-duty
rule for baseball stadiums and franchises; the so-called Baseball Rule.237  Pursuant
to this rule, “a ballpark operator that ‘provides screening behind home plate
sufficient to meet ordinary demand for protected seating has fulfilled its duty with
respect to screening and cannot be subjected to liability for injuries resulting to
a spectator by an object leaving the playing field.’”238  The court declined to adopt
this rule, concluding that this was within the purview of the state legislature, and
should not be enacted by the judiciary.239

Nevertheless, the court found in favor of South Shore on the plaintiff’s
premises liability claim on grounds that there was no genuine issue of fact

230. Id. at 1028-29.
231. Id. at 1029.
232. S. Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, 911 (Ind. 2014).
233. Id. at 905.
234. Id.
235. Id.
236. Id.
237. Id. at 904.
238. Id. at 907 (citing Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 225 (Mich. Ct. App.

2001)).
239. Id. at 909.



1524 INDIANA LAW REVIEW [Vol. 48:1505

concerning the second element of such a claim, i.e., that South Shore should have
expected that the plaintiff would not discover or realize the danger of sitting
where she sat in the ballpark or that she would fail to protect herself against it.240 
The court cited evidence that “South Shore notified [the spectator] of the danger
of foul balls by printing a warning on her ticket, posting a [warning] sign in the
aisle near her seat, and making an announcement over the loudspeaker before the
beginning of the game.”241

South Shore was also entitled to summary judgment on the plaintiff’s
negligence claim.242  That claim alleged that South Shore assumed a duty of care
to protect the spectator  from foul balls by erecting protective netting in the
stadium.243  The court held that, “[a]ssuming without deciding that South Shore
undertook such a duty,”244 the plaintiff failed to allege an increased risk of harm,
nor could she establish reliance.245  According to the court, “[the] undisputed
evidence show[ed] that [the plaintiff] was not relying on the netting to protect her
from the danger of foul balls,” because she admitted knowing that when she was
in her seat, there could be a chance that a foul ball could come her way.246

B.  Contributory Negligence
In Whitmore v. South Bend Public Transportation Corp., in a lawsuit against

a governmental entity under the Indiana Tort Claims Act, the Indiana Court of
Appeals reversed a grant of summary judgment in favor of the entity because the
court questioned the wisdom of determining as a matter of law that an individual
was contributorily negligent when he was not the first aggressor in an altercation,
but simply failed to walk away from an individual who was violently disposed.247

After attending a football game with friends and consuming several alcoholic
beverages, a passenger  boarded a TRANSPO bus.248  TRANSPO is a government
entity.249  The passenger was under the influence of alcohol and the bus was
crowded.250  While walking down the aisle, the passenger tripped but did not fall
and determined that another passenger, a commuter who had stretched his legs
into the aisle, tripped him.251  The passenger sat near his friends and next to the

240. Id. at 910.
241. Id.
242. Id. at 907.
243. Id. at 905.
244. Id. at 911. 
245. Id.
246. Id. 
247. Whitmore v. South Bend Pub. Transp. Corp., 7 N.E.3d 994, 995 (Ind. Ct. App.), trans.

denied, 12 N.E.3d 878 (Ind. 2014).
248. Id.
249. Id. at 996.
250. Id. at 995.
251. Id. 



2015] TORT LAW 1525

commuter.252  The passenger and the commuter began “‘verbally kind of bashing
each other and the situation escalated very quickly.’” 253  The passenger turned to
his friends and the commuter stood up and punched the passenger.254  A friend of
the passenger intervened and the commuter placed the friend in a choke hold.255 
The passenger attempted to separate his friend from the commuter, but the
commuter’s girlfriend intervened and pushed the passenger.256  The commuter
struck the passenger in the eye and broke the passenger’s orbital bones.257  The
commuter and his girlfriend fled the bus.258  

The passenger sued TRANSPO for failing to provide a safe environment for
its invitees.259  TRANSPO, as a government entity, defended on the doctrines of
contributory negligence and incurred risk.260  The trial court granted summary
judgment in favor of TRANSPO and this appeal followed.261

The court first analyzed whether the passenger was contributorily
negligent.262  When a plaintiff brings a tort claim against a governmental entity,
that entity may use the common law defense of contributory negligence.263 
Therefore, the court said that “if a plaintiff is negligent to even a small degree and
that negligence proximately contributes to his claimed damages, contributory
negligence will operate as a complete bar to his action . . . .”264  The court further
said that “contributory negligence is the failure of a person to exercise for his own
safety that degree of care and caution which an ordinary, reasonable, and prudent
person in a similar situation would exercise.”265  Whether a plaintiff was
contributorily negligent is generally a question of fact rather than a question of
law and inappropriate for summary judgment unless the facts are “undisputed and
only a single inference can be drawn therefrom.”266  The court then questioned
“the wisdom of determining as a matter of law that an individual is contributorily
negligent when he is not the first aggressor in an altercation, but simply fails to
meekly walk away from an individual that is violently disposed.”267  The court
concluded “that a question of material fact exist[ed] as to whether or not [the

252. Id. at 996.
253. Id.
254. Id. 
255. Id. 
256. Id.
257. Id. 
258. Id.
259. Id.
260. Id. 
261. Id.
262. Id. at 997.
263. Id.
264. Id.
265. Id.
266. Id.
267. Id.



1526 INDIANA LAW REVIEW [Vol. 48:1505

passenger’s] actions constituted contributory negligence.”268
The court then turned to incurrence of risk.269  TRANSPO argued that the

passenger incurred “the risk of his injuries because [he] knew or should have
known that his words and actions risked provoking a physical altercation and
serious physical injury.”270  The court said that “[i]ncurred risk is a defense to a
claim of negligence, separate and distinct from the defense of contributory
negligence.”271  An incurred risk must be voluntary and “requires much more than
the general awareness of a potential for mishap.  [It] contemplates acceptance of
a specific risk of which the plaintiff has actual knowledge . . . .”272  While the trial
court determined that Passenger incurred the risk of his injuries, it looked to only
a portion of the circumstances surrounding the incident.273  The appellate court
then held that it could not “say that one, as a matter of law, incurs the risk of
assault when he defends himself.”274  Therefore, whether the passenger incurred
the risk of assault was a question of fact and inappropriate for summary
judgment.275  

VI.  PUNITIVE DAMAGES

A.  State Intervention in Action
In Weinberger v. Estate of Barnes,276 the Indiana Court of Appeals held that

Indiana’s punitive damages statute277 does not grant the state the power to
intervene in otherwise private litigation at any stage in the proceedings.278

After a jury in a medical malpractice action returned a verdict against the
defendant in the amount of $3 million in compensatory damages and $10 million
in punitive damages, the court reduced the judgment to $1.25 million in
compensatory damages and $9 million dollars in punitive damages.279  Both
parties filed notices of appeal but then engaged in mediation and reached a
settlement agreement.280  The plaintiff then moved to dismiss the appeal because
the matter had been “amicably resolved and settled.”281  The state then moved to

268. Id. at 998. 
269. Id. 
270. Id. 
271. Id. (citing Power v. Brodie, 460 N.E.2d 1241, 1243 (Ind. Ct. App. 1984)). 
272. Id. (citing Richardson v. Marrell’s Inc., 539 N.E.2d 485, 487 (Ind. Ct. App. 1989)

(emphasis in original)).  
273. Id.
274. Id.
275. Id.
276. 2 N.E.3d 43 (Ind. Ct. App. 2013), trans. denied, 8 N.E.3d 202 (Ind. 2014). 
277. See IND. CODE § 34-51-3-6 (2014).
278. Barnes, 2 N.E.3d at 50. 
279. Id. at 44. 
280. Id. 
281. Id. at 45 (internal quotation marks omitted). 



2015] TORT LAW 1527

intervene and the court preliminarily granted the motion.282  The question before
the court on appeal was whether the lower court properly permitted the state to
intervene.283  

As part of a comprehensive tort-reform package, Indiana’s legislature passed
a split-recovery statute,284 which provided that, “[w]hen a punitive damage award
is paid, the party against whom the judgment was entered shall pay the punitive
damage award to the clerk of the court where the action is pending” and that the
clerk of the court shall pay out twenty-five percent to the person to whom the
damages were awarded and seventy-five percent to the treasurer of the state.285 
The court noted that the question would be resolved by recourse to statutory
interpretation.286  The court observed that the “statute does not provide for the
entry of judgment in the state’s favor or that the state becomes a party or
judgment creditor at the time the verdict is announced, nor does it specifically
provide for intervention by the State.”287  In fact, until such time as the award is
actually paid, the state’s interest is best described as “a mere expectancy.”288 
Looking to the legislative history surrounding the split-recovery statute, the court
observed that “the overarching goal of the split-recovery statute is to protect
defendants from excessive punitive damage awards.”289  The court continued: 
“[a]lthough the split-recovery statute has the effect of redirecting a portion of any
punitive damages award into public coffers, we cannot conclude that the General
Assembly’s goal was to use punitive damage awards as a new revenue source.”290 
In addition, “Indiana strongly favors settlement agreements.”291  The court
concluded that the statute “does not permit the State to become a party to
otherwise private litigation at any stage of the proceedings.”292

B.  Recovery from the Estate of a Deceased Tortfeasor
In Estate of Mayer v. Lax, Inc., the Indiana Court of Appeals held that a

plaintiff may not recover punitive damages from the estate of a deceased
tortfeasor.293  

282. Id. 
283. Id.
284. See H.E.A. 1741, 109th Gen. Assemb., 1st Reg. Sess. (Ind. 1995) (partially codified in

IND. CODE § 34-51-3-6 (2014)).
285. Barnes, 2 N.E.3d at 47 (quoting IND. CODE § 34-51-3-6 (2014)).
286. Id. at 46. 
287. Id. at 47.
288. Id. at 48.
289. Id. at 49.
290. Id.
291. Id. (quoting Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind. 2003) (internal quotation

marks omitted)). 
292. Barnes, 2 N.E.3d at 50. 
293. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 263 (Ind. Ct. App. 2013), trans. denied,

2 N.E.3d 686 (Ind. 2014).



1528 INDIANA LAW REVIEW [Vol. 48:1505

This case arose from a web of claims and cross-claims, but the critical matter
was that Lax, a real estate development company, initiated proceedings
supplemental to recover its net judgment from a jury verdict from JME, an
excavating company.294  The attorney for JME (“Mayer”) filed a counterclaim
alleging that Lax had perpetrated fraud and had violated the Indiana RICO Act.295 
The court dismissed the counterclaim as an impermissible collateral attack on the
prior verdict.296  Mayer then amended the complaint, alleging that Lax had
conspired to commit bribery, perjury, obstruction of justice, intimidation,
business corruption, and other violations of the Indiana RICO Act.297  The trial
court granted summary judgment to Lax on these claims on the grounds of res
judicata.298  While the counterclaims were pending, Lax was in construction
negotiations with a casino.299  Lax asserted that the negotiations broke off because
of the damage to Lax’s reputation caused by the counterclaims filed by Mayer.300 
Lax sued Mayer and Mayer’s firm for defamation, abuse of process, malicious
prosecution, tortious interference with a contract, and tortious interference with
a business relationship.301  Mayer subsequently died and his estate was
substituted.302

The Indiana Supreme Court has previously ruled on the issue of whether a
plaintiff can recover punitive damages from a deceased tortfeasor’s estate in
Crabtree ex rel. Kemp v. Estate of Crabtree.303  The court of appeals noted that
in Crabtree, the Indiana Supreme Court held that “Indiana law does not permit
recovery of punitive damages from the estate of a deceased tortfeasor.”304  The
court therefore affirmed that there is a general rule that punitive damages are not
recoverable from the estate of a deceased tortfeasor.305

C.  Limitations
In Andrews v. Mor/Ryde International, Inc.,306 the Indiana Supreme Court

held that treble damages under the Sales Representatives Act307 are not subject to
the Punitive Damages Act.308

294. Id. at 243-44.  See generally IND. CODE §§ 35-45-6-1 to -2 (2014). 
295. Estate of Mayer, 998 N.E.2d at 243. 
296. Id. 
297. Id. at 243-44.
298. Id. at 244. 
299. Id. 
300. Id. 
301. Id. at 245. 
302. Id. 
303. 837 N.E.2d 135 (Ind. 2005).  
304. Estate of Mayer, 998 N.E.2d at 258 (quoting Crabtree, 837 N.E.2d at 139). 
305. Id. at 259.
306. 10 N.E.3d 502 (Ind. 2014), reh’g denied.  
307. IND. CODE §§ 24-4-7-0.1 to -8 (2014). 
308. Andrews, 10 N.E.3d at 506.  See generally IND. CODE §§ 34-51-3-0.2 to -6 (2014). 



2015] TORT LAW 1529

In this case, after a vendor terminated an independent commissioned sales
representative’s contract, the sales representative sued the vendor for unpaid
commissions.309  One count of the complaint sought recovery under the Indiana
Sales Representative Act, or Indiana Code section 24-4-7.310  The statute states
that a principal who in bad faith fails to pay all accrued commissions within
fourteen days of terminating the relationship “shall be liable, in a civil action
brought by the sales representative, for exemplary damages in an amount no more
than three (3) times the sum of the commissions owed to the sales
representative.”311  The vendor argued that the exemplary damages under the act
are subject to Indiana’s statutory restrictions on awards of punitive damages
because “‘exemplary’ and ‘punitive’ are often used interchangeably.”312

The court began its analysis by noting that, “[s]ince punitive damages are a
creation of common law, limiting (or even prohibiting) their recoverability is
within the Legislature’s discretion.”313  The court went on to say that:

By contrast, other causes of action and corresponding remedies are
purely the Legislature’s own creation. . . . While the Punitive Damages
Act was enacted to drastically restrict recovery in light of perceived
abuses at common law generally, the Sales Representative Act’s treble-
damage provisions at issue here . . . were enacted to increase recovery
from what the common law would otherwise permit.314

The court thought “it highly unlikely that the Legislature would expand a remedy
with one hand (the Sales Representative Act or the Crime Victims Relief Act),
while restricting it with the other (the Punitive Damages Act).”315  

The court also observed “a substantive distinction between statutory treble
damages under the Sales Representative Act and common-law punitive damages[,
because a] claim for unpaid commissions sounds in contract,” but Indiana
typically does not allow punitive damages in contract cases absent an independent
tort or a special relationship between the parties.316  The “Sales Representative
Act deviates from those common-law principles by permitting treble damages for
a principal’s ‘bad faith’ failure to pay commissions within the specified time.”317

Finally, the court stated that the legislature had the opportunity to abolish the
“distinction between common law and statutory punitive damages as part of the
major 1995 amendments to Punitive Damages Act, but it chose not to do so.”318 
Thus, while “Indiana significantly restricts recovery of common-law punitive

309. Id. at 503. 
310. See id. at 503-04; see also IND. CODE § 24-4-7-5 (2014). 
311. IND. CODE § 24-4-7-5(b) (2014). 
312. Andrews, 10 N.E.3d at 504.
313. Id. at 505 (citing Cheatham v. Pohle, 789 N.E.2d 467, 471-72 (Ind. 2003)). 
314. Id. (emphasis in original).
315. Id.
316. Id.
317. Id. at 505-06.
318. Id. at 506.



1530 INDIANA LAW REVIEW [Vol. 48:1505

damages . . . those restrictions do not reach . . . mandatory ‘exemplary damage’
awards under the Indiana Sales Representative Act.”319

VII.  AGENCY

A.  Termination of an Action Following Death of an Agent
In Estate of Mayer v. Lax, Inc., the Indiana Court of Appeals held that the

termination of a cause of action against an alleged agent-tortfeasor following the
agent’s death does not require termination of the cause of action against the
agent’s principal.320
  As discussed above, this case arose from a web of claims and cross-claims,
but primarily involving an action in which Lax, a real estate development
company, initiated proceedings supplemental to recover a money judgment
following a favorable jury verdict from JME, an excavating company.321  The
attorney for JME (“Mayer”) filed a counterclaim alleging that Lax had
perpetrated fraud and had violated the Indiana RICO Act.322  The court dismissed
the counterclaim as an impermissible collateral attack on the prior verdict.323 
Mayer then amended the complaint alleging that Lax had conspired to commit
bribery, perjury, obstruction of justice, intimidation, business corruption, and
other violations of the Indiana RICO Act.324  The trial court granted summary
judgment to Lax on these claims on res judicata grounds.325  While the
counterclaims were pending, Lax was in negotiations with a casino.326  Lax
asserted that these negotiations broke off because of damage to Lax’s reputation
caused by the counterclaims filed by Mayer.327  Lax sued Mayer and Mayer’s firm
for defamation, abuse of process, malicious prosecution, tortious interference
with a contract, and tortious interference with a business relationship.328  Mayer
died and his Estate was substituted.329    

Beginning its analysis, the court stated that the law is unclear on “whether the
death of an agent and subsequent barring of a cause of action because of that
death also bars a cause of action against the principal.”330  The court noted the
general rule that where “a servant or agent is released of liability, no liability can

319. Id. at 503 (emphasis omitted). 
320. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238 (Ind. Ct. App. 2013), trans. denied, 2

N.E.3d 686 (Ind. 2014). 
321. Id. at 243-44.
322. Id. at 243; see IND. CODE §§ 35-45-6-1 to -2 (2014).
323. Estate of Mayer, 998 N.E.2d at 243.
324. Id. at 243-44.  See generally IND. CODE §§ 35-45-6-1 to -2 (2014).
325. Estate of Mayer, 998 N.E.2d at 244.
326. Id. 
327. Id. 
328. Id. at 245. 
329. Id. 
330. Id. at 252.



2015] TORT LAW 1531

be imputed to the principal,” but this rule seems to result from a finding that the
principal is only vicariously liable to the extent that the agent is liable.331  The
court then explored the scant case law available and determined that “termination
of an action because of an alleged agent-tortfeasor’s death is not the same as a
judgment on the merits or an exoneration of the agent’s conduct, which would
flow to the principal, but is instead a form of personal immunity from suit, which
is not transferable to others.”332  The court then concluded that “a procedural
defense to an action that is personal to an agent, and not based on the merits of
the action, does not preclude proceeding with a cause of action against the
principal under a respondeat superior theory.”333    

B.  Vicarious Liability
In Smith v. Delta Tau Delta, Inc., the Indiana Supreme Court determined that

as a matter of law that, although a national fraternity furthers joint aspirational
goals by encouraging individual members’ good behavior, and by offering
informational resources, organizational guidance, common tradition, and its
brand, the local fraternity’s everyday management and supervision of activities
and conduct of its residents is not undertaken at the direction and control of the
national fraternity; therefore, the national fraternity was not liable for the acts of
the local chapter.334 

Parents of a pledge who died of acute alcohol ingestion brought various
claims in negligence against the national fraternity the young man was
pledging.335  The national fraternity moved for summary judgment as to (1)
whether it had “assumed a duty to protect freshmen pledges from hazing and the
dangers of excessive alcohol consumption”; and (2) “whether the local fraternity
was the agent of the national fraternity thereby subjecting [the national fraternity]
to vicarious liability for the actions of the officers and representatives of the local
chapter with respect to claims of negligence per se for hazing and furnishing
alcohol to a minor.”336    

As to whether the national fraternity had liability for breach of an assumed
duty, the court first turned to its recent decision in Yost v. Wabash College,337
“which presented factual similarities and related questions of law.”338  There, the
court held that “[a] duty of care may arise where one party assumes such a duty
. . . [but] without actual assumption of the undertaking there can be no correlative

331. Id. (quoting Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 883, 887 (Ind. Ct.
App. 2004). 

332. Id. at 254. 
333. Id. at 254-55.
334. Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 164-65 (Ind. 2014).  
335. Id. at 157.
336. Id. at 159.
337. 3 N.E.3d 509 (Ind. 2014).
338. Delta Tau Delta, 9 N.E.3d at 157, 160. 



1532 INDIANA LAW REVIEW [Vol. 48:1505

legal duty to perform the undertaking carefully.”339  Here, the national fraternity
did not dispute that it was involved with the local chapter, but asserted that it
“‘lacked any direct oversight and control of the individual fraternity members’
[and] . . . ‘did not assume any duty related to their actions.’”340  The court held:

There is no evidence that the national fraternity assumed any duty of
preventative, direct supervision and control of the behaviors of its local
chapter members . . . .  [T]he national fraternity’s conduct did not
demonstrate any assumption of a duty directly to supervise and control
the actions of the local fraternity and its members.  The national
fraternity did not have a duty to insure the safety of the freshman pledges
at the local fraternity.341

As to whether the national fraternity was vicariously liable for the negligence
of the local fraternity and its officers, the court turned to its discussion of agency
from Yost and restated that “for the liability of an agent to be imputed to a
principal, an agency relationship must exist, and an essential element of that
relationship is that the agent must ‘act on the principal’s behalf.’”342  Here, the
court held that the national fraternity possessed only remedial enforcement
powers and that the “national fraternity’s role in imposing post-conduct sanctions
does not establish the right to control for purposes of creating an agency
relationship.”343  Further, “[l]ocal officers are expected to abide by the
aspirational goals promulgated by the national fraternity, but are never given the
authority to act on behalf of the national fraternity.”344  The court then concluded:

[A]n agency relationship does not exist between the national fraternity
and the local fraternity or its members.  Although subject to remedial
sanctions, in their choice of conduct and behavior, the local fraternity and
its members were not acting on behalf of the national fraternity and were
not subject to its control.345

VIII.  ASSORTED OTHER MATTERS

A.  Dram Shop
In Pierson v. Service America Corp., the Indiana Court of Appeals held that

in a dram shop action against vendors of alcoholic beverages at Lucas Oil
Stadium, a plaintiff need not identify the person who served alcohol to the

339. Id. at 160 (quoting Yost, 3 N.E.3d at 517).
340. Id. at 161.
341. Id. at 163.
342. Id. at 164.
343. Id.
344. Id.
345. Id. at 164-65.



2015] TORT LAW 1533

intoxicated driver in order to survive summary judgment.346  
In this case, an intoxicated driver had attended a pre-game tailgate party, the

game, and a post-game tailgate party, all at Lucas Oil Stadium, consuming
alcoholic beverages at each.347  He later drove his vehicle into two twelve-year-
old girls, killing one of the girls and injuring the other.348  Their families brought
suit against the vendor of alcoholic beverages at the stadium, alleging that the
vendor had “‘negligently failed to train, instruct, monitor, and restrict the sale of
alcoholic beverages to visibly intoxicated patrons.’”349  One is to “refrain from
serving alcohol to a person he or she knows to be visibly intoxicated.”350  The
vendor moved for summary judgment asserting that because the families could
not prove which, if any, of the vendor’s designees served alcohol to the driver
when the designee knew the driver was visibly intoxicated.351  The court restated
that the “‘Dram Shop Act represents a legislative judgment and the declared
public policy of this state that providers of alcoholic beverages should be liable
for the reasonably foreseeable consequences of knowingly serving visibly
intoxicated persons.’”352  A research scientist working backwards from the blood
alcohol content at the time of the blood draw opined that the driver “had more
likely than not been intoxicated and exhibit[ed] visible signs of intoxication when
he purchased alcohol inside the stadium.”353  This was enough to raise a question
of material fact and render the matter inappropriate for summary judgment: 
“How much alcohol [the driver] imbibed at each point of consumption, whether
he was intoxicated [inside the stadium], and whether or not he would have
appeared visibly intoxicated, is not resolved by reference to undisputed facts.”354

The court then turned to prior cases.355  In the first case discussed, the court
held that “the fact that the tavern served even one beer to a person who shortly
thereafter was in a state of serious intoxication gives rise to a question of fact
whether the intoxicated motorist was visibly intoxicated at the time he was
served.”356  In the second case, the court held that “a reasonable inference could
be drawn that the [vendor] had actual knowledge of [the patron’s] intoxication at
the time he was served and therefore, the trial court did not err by denying the
[vendor’s] motion for summary judgment.”357  The court then determined that

346. Pierson v. Serv. Am. Corp., 9 N.E.3d 712, 720 (Ind. Ct. App. 2014), trans. denied, 16
N.E.3d 980 (Ind. 2014).

347. Id. at 714. 
348. Id.
349. Id.
350. Id. at 716.
351. Id. at 714.
352. Id. at 716.
353. Id. at 718.
354. Id.
355. Id. at 719.  
356. Id. (citing Ward v. D&A Enters. of Clark Cnty., Inc., 714 N.E.2d 728, 730 (Ind. Ct. App.

1999)).  
357. Id. (citing Vanderhoek v. Willy, 728 N.E.2d 213, 217 (Ind. Ct. App. 2000)).  



1534 INDIANA LAW REVIEW [Vol. 48:1505

here, “there [was] likewise a genuine issue of material fact as to whether [an
agent of the vendor] served [the driver] even a single drink with actual knowledge
of his visible intoxication.”358    

Before concluding, the court addressed a public policy concern, stating that
if the court were to accept that “no liability can ensue because no particular server
to [the driver] has been identified, such would circumvent the public policy
associated with the Dram Shop Act.”359  The court further noted that “[i]n
comparison to a neighborhood bar owner employing a few servers, a provider of
alcoholic beverages using hundreds of volunteers to sell alcohol to thousands of
patrons in a stadium may well seem ideally situated to lessen liability although
the potential consequences are greatly increased.”360  The court concluded that
this must not have been the intent of the legislature.361  Finally, the court decided
that the fact-finder, not the court, must determine whether the vendor “knowingly
provided one more alcoholic beverage to a visibly intoxicated patron.”362

B.  Deception/Fraud
In Kesling v. Hubler Nissan, Inc., the Indiana Supreme Court held that “[a]n

auto dealership’s advertisement of an inexpensive used car as a ‘Sporty Car at a
Great Value Price,’ is textbook puffery.”363  It was “not actionable as deception
or fraud, because a reasonable buyer could not take it as a warranty about the
car’s performance or safety characteristics.”364  

In this case, in response to an advertisement for a “Sporty Car at a Great
Value Price,” a buyer went to a car dealership and asked to see and test-drive the
car.365  Although the car had to be jump-started before it could be driven and it
idled roughly, the buyer purchased the car and “signed an acknowledgement that
the car was sold ‘AS IS – NO WARRANTY.’”366  When the buyer asked the
salesperson about the rough idle, the salesperson advised that the car needed a
tune-up because “‘it had been sitting for a while.’”367  In truth, the car had not
been sitting long because the car dealership had accepted it on a trade only a
couple of weeks earlier.368  Immediately after making the purchase, the buyer took
the car for two inspections each of which showed extensive problems with the car
“well beyond needing a tune-up.”369  The buyer also received an expert inspection

358. Id.
359. Id. at 720.  
360. Id.
361. Id. 
362. Id.
363. Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 329 (Ind. 2013).
364. Id.
365. Id. at 330.
366. Id.
367. Id.
368. Id.
369. Id.



2015] TORT LAW 1535

for litigation:370  

The expert’s report revealed a loose tie rod and misrouted accessory belt,
either of which . . . could cause loss of steering control.  Moreover, the
engine had a fuel-return line that had been blocked off, leaked fuel, and
could cause the car to catch fire while driving.  And because there was
not provision for connecting the blocked-off line to the other systems of
the car—and other signs, including poorly spliced wiring—the original
engine had apparently been replaced with one from a different [model of
the same make of car].371

The expert stated that “each of these three problems made the car unsafe to
operate, and would have been obvious to anyone who would have inspected or
serviced the car at a dealership.”372

The buyer ultimately brought two claims against the car dealership for
deceptive claims.  One claim was civil and the other was quasi-criminal, but “the
issue of ‘puffing’ [was] dispositive of both.”373  The court noted that, “‘statements
of the seller’s opinion, not made as a representation of fact . . . are simply puffing
which does not create an express warranty.’”374  The court went on to state that
“[w]hether a car is ‘sporty’ is a subjective assertion of opinion [and] . . . we
believe the term refers to a car’s styling or design, not its drivability.”375  It made
a similar analysis of the claim, “great value price”:  “Reasonable buyers . . .
cannot take seriously an assurance that the price is a . . . ‘Great Value.’”376  The
terms are mere puffery, which is opinion, and cannot be a representation of fact
or deceptive.377  

As to the buyer’s claim of fraud at common law based on the salesperson’s
assertion that the car needed just a tune-up, the court held that there was evidence
supporting the inference that the “salesperson knew his statements to be false, but
made them anyway with intent to deceive [the buyer].”378  The court also found
that the record showed “a genuine issue of fact as to [the buyer’s] reliance on the
salesperson’s statements.”379  While the puffery in the advertisement was mere
opinion and could not be the basis of deception or fraud claims, the statement of
fact made by the salesperson may be the basis of a fraud claim “when a seller
gives [such a statement] as a knowingly incomplete answer to a buyer’s specific

370. Id.
371. Id. at 330-31. 
372. Id. at 331.
373. Id. at 332.
374. Id. at 333 (citing Martin Rispens & Son v. Hall Farms, Inc., 621 N.E.2d 1078, 1082 (Ind.

1993)) (internal emphasis and punctuation omitted).  
375. Id. 
376. Id.
377. Id.
378. Id. at 336.
379. Id.



1536 INDIANA LAW REVIEW [Vol. 48:1505

question.”380  

C.  Confidential Materials—No Public Access
In Angelopoulos v. Angelopoulos, the Indiana Court of Appeals held that

although the trial court issued a protective order regarding deposition materials,
those materials were not automatically confidential under Indiana Administrative
Rule 9(g)(1)(c).381  

This case arose from an inheritance dispute between two brothers, Theodore
and Constantinos, whose father died intestate.382  In the course of litigation, the
parties agreed to treat certain designated materials as confidential and restrict
disclosure of those materials only to the parties, the court, counsel, experts, and
deponents or witnesses.383  During a deposition, Theodore refused to answer
certain questions, and Theodore’s counsel designated much of it as
confidential.384  Constantinos then filed a request for a hearing “to determine
whether the deposition warranted protection from public access.”385  The trial
court ordered Theodore to appear for a second deposition to answer the
previously unanswered questions.386  It also found that the “agreed-to protective
order operated to protect the depositions from public access.”387  Ultimately,
Constantinos filed the second deposition with the trial court in support of his
response to Theodore’s motion to dismiss.388  The motion to dismiss was granted,
and Constantinos argued in his appeal that “the trial court erred in concluding that
the matters marked by Theodore as confidential were still excluded from public
access even though Constantinos had filed them in court.”389

The court began its analysis by reviewing Indiana Administrative Rule 9 and
a prior similar case, Travelers Casualty & Surety Co. v. U.S. Filter Corp.390  In
Travelers, the parties entered a “‘Confidentiality Stipulation and Order’ that
provided a framework under which information shared by the parties could be
deemed confidential.”391  The Travelers court held that materials tendered to a
court by litigants “‘stand on a very different footing.’”392  There is not an
automatic exclusion of such materials, but a mechanism provided in

380. Id.
381. Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 701-02 (Ind. Ct. App. 2013), trans. denied,

7 N.E.3d 992 (Ind. 2014).
382. Id. at 692.
383. Id. at 694.
384. Id. at 695.
385. Id. at 698.
386. Id.
387. Id. at 698-99.
388. Id. at 699.
389. Id.
390. Id. (citing Travelers Cas. & Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 114 (Ind. 2008)).
391. Id. (citing Travelers, 895 N.E.2d at 115).  
392. Id. 



2015] TORT LAW 1537

Administrative Rule 9(H) that “‘provides a process by which any person affected
by the release of information may ask the court to exclude it from public access,
requires a public hearing before the trial court can grant such exclusion, and lists
the grounds on which the court can do so.’”393  Therefore, even where “a trial
court has ordered certain materials to be deemed confidential for purposes of
discovery, these materials will still be subject to public access unless the trial
court complies with Administrative Rule 9(H).”394  Here, because the trial court
presumed an “automatic” exclusion of the materials, it did not ensure compliance
with Administrative Rule 9(H) and the matter was remanded with instructions to
hold a “hearing at which the burden will be on Theodore to demonstrate by clear
and convincing evidence to prove how public access to these [materials] will
create a significant risk of substantial harm to him pursuant to Administrative
Rule 9(H).”395

D.  Sanctions
In In re Mental Health Actions for A.S., the Indiana Supreme Court held that

a person who makes false statements in an application for emergency detention
cannot be held in indirect civil contempt when she does not resist, hinder, or
delay execution of a lawful process or court order.396  The court also held that
such an act is not within trial court’s inherent power to impose sanctions.397

In this case a nurse’s co-worker (“Complainant”), who was also a nurse,
completed an application to have the nurse placed on a seventy-two hour
emergency detention.398  The warrant was issued and the nurse was taken into
custody the same day.399  The judge who had issued the order “later grew
skeptical as to the truth of the allegations set forth in the application.”400  The
judge issued Complainant “a citation and order to appear and show cause why she
should not be ‘held in contempt for willfully hindering and delaying or
disobeying lawful process of this court and directly making false and inaccurate
statements.”401  Complainant moved to dismiss the citation “arguing that there
was no statutory basis to hold her in contempt and that the Indiana Code provides
immunity for persons who initiate such emergency detention actions without
malice, bad faith, or negligence.”402  The trial court found Complainant in indirect
civil contempt and issued several sanctions, including the hospital bills the nurse
incurred as a result of the detention, the nurse’s attorney fees, and an additional

393. Id. at 699-700.
394. Id. at 700.
395. Id. at 701.
396. In re Mental Health Actions for A.S., 9 N.E.3d 129, 132-33 (Ind. 2014). 
397. Id. at 133.
398. Id. at 130.
399. Id. at 131.
400. Id. at 130.
401. Id. at 131.
402. Id.



1538 INDIANA LAW REVIEW [Vol. 48:1505

fine.403  This appeal ensued after the Indiana Supreme Court granted transfer.404
The Indiana Supreme Court first looked to the definition of contempt and the

types of contempt recognized in Indiana’s jurisprudence.405  Contempt of court
generally “‘involves disobedience of a court which undermines the court’s
authority, justice, and dignity.’”406  Direct contempt involves “acts which are
committed in the presence of the court or in such close proximity to it so as to
disrupt its proceedings while in session.”407  Indirect contempt involves “acts
‘committed outside the presence of the court which nevertheless tend to interrupt,
obstruct, embarrass or prevent the due administration of justice.’”408  Also, while
contemptuous conduct is generally categorized as either civil or criminal, a
contempt proceeding is technically neither.409  The court said that “[c]riminal
contempt actions are punitive and are carried out in response to ‘an act directed
against the dignity and authority of the court which obstructs the administration
of justice and which tends to bring the court into disrepute or disrespect.’”410 
Civil contempt proceedings arise “from a violation of a court order which results
in a proceeding for the benefit of the aggrieved party.”411  The court further said
that “[h]ere, the trial court found [Complainant] to be in indirect civil
contempt.”412  While “[t]here are several potential statutory bases for such a
finding . . . the trial court expressly found [Complainant] in indirect contempt.”413 
This was “pursuant to [a provision which] . . . provides that ‘a person who
willfully resists, hinders, or delays the execution of any lawful process, or order
of any court of record is guilty of an indirect contempt of court.’”414  Because
Complainant’s behavior initiated the proceedings, she could not have resisted,
hindered, or delayed the proceedings.415  The trial court, thus, exceeded its
“statutory authority in finding [Complainant] in indirect contempt and its
judgment to that effect is reversed.”416

The court next turned to the propriety of the sanctions imposed by the trial
court.417  It specifically noted that courts have an inherent power to impose
sanctions for the purpose of enforcing “‘obedience to its lawful orders against
parties who have been subjected properly to its jurisdiction in the first

403. Id.
404. Id.
405. Id. at 131-32.
406. Id. at 131.
407. Id. at 132.
408. Id. (internal punctuation omitted).
409. Id.
410. Id. (internal punctuation omitted).
411. Id.
412. Id.
413. Id.
414. Id.
415. Id.
416. Id. at 132-33.
417. Id. at 133.



2015] TORT LAW 1539

instance.’”418  The court then analogized Complainant to a “911 caller who
reports a person on the street acting dangerously.”419  If the call is later revealed
to be false, the State could pursue a charge of false reporting.420  The charged
individual might seek redress in tort, but “in such a circumstance it is not the trial
court’s role within our system of justice to independently investigate the validity
of reports that initiate legal proceedings, compel witnesses to appear before it,
and mete out punishment when it finds those reports to be unsubstantiated.”421

The court then concluded:  

The inherent power of the judiciary to impose sanctions, while flexible
and significant, begins and ends with the courtroom and the judicial
process.  Thus, because we conclude that the trial court here lacked
authority for the contempt finding, and because [Complainant] otherwise
committed no misconduct once the legal proceedings were initiated, she
is outside the trial court’s inherent power to impose sanctions.422

418. Id.
419. Id.
420. Id. at 134.
421. Id.
422. Id.