RECENT DEVELOPMENTS IN INDIANA TORT LAW PAUL S. KRUSE* LARRY L. M ORRIS AND H EATHER D. BOYLE** JANELLE J. R ASM USSEN *** This A rticle discusses noteworthy case law developments in Indiana tort law during the survey period. It is not intended as a comprehensive or exhaustive overview. I. EVIDENCE A. Reasonable Value of M edical Bills In Patchett v. Lee, the Indiana Suprem e C ourt held payments made by the1 Healthy Indiana Plan (HIP) were probative of reasonable value of medical expenses and, thus, admissible under Stanley v. Walker.2 In this case, Appellee was injured in an automobile accident, sustained numerous injuries, and was billed a total of $87,706.36 for treatment of her injuries. At the time of the accident, Appellee was a member of HIP, a program3 sponsored by the State of Indiana that provided a more affordable healthcare choice to otherwise uninsured individuals throughout Indiana. HIP paid4 Appellee’s m edical providers a total of $12,051.48 in full satisfaction of her medical bills. Appellee brought a negligence action. Prior to a trial on damages,5 6 she filed a motion in limine seeking to prevent admission of testimony regarding payments made by HIP. The trial court granted the motion, concluding evidence7 of the amount HIP paid to reimburse Appellee’s medical providers was inadmissible under the collateral source statute (i.e., the exclusion of accepted8 * Partner, Parr Richey Frandsen Patterson & Kruse LLP 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. ** Larry L. Morris is the Administrator for the Court of Appeals of Indiana. J.D., Indiana University Robert H. McKinney School of Law. Heather D. Boyle is the Deputy Senior Law Clerk for Judge Robert R. Altice of the Court of Appeals of Indiana. J.D., Indiana University Robert H. McKinney School of Law. *** Law Clerk, Parr Richey Frandsen Patterson & Kruse LLP. J.D., 2016, Northeastern University School of Law. 1. 60 N.E.3d 1025 (Ind. 2016). 2. Id. at 1032-33 (citing Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009)). 3. Id. at 1027-28. 4. Id. at 1028. 5. Id. 6. Id. 7. Id. 8. IND. CODE § 34-44-1-2 (2016). http://doi.org/10.18060/4806.1175 1458 INDIANA LAW REVIEW [Vol. 50:1457 reimbursements from government payers) and case law.9 The Indiana Supreme Court, relying on Stanley, concluded “[t]he collateral source statute does not bar evidence of discounted amounts in order to determine the reasonable value of medical services” if insurance is not referenced. T he10 court then discussed whether evidence of reduced amounts representing “payment in full to a medical provider for services rendered . . . is admissible to prove the reasonable value of those services, consistent with the collateral-source statute.”11 The court ultimately held “reduced reimbursements accepted by healthcare providers are relevant, probative evidence of the reasonable value of medical services.”12 The court held Stanley “applies to all accepted reimbursements, regardless of whether they are negotiated or mandated.” The only difference between Stanley13 and Patchett was the identity of the payer. In Stanley, the payer was a private14 insurance company, whereas in Patchett, the payer was H IP, a government program. The difference was of no import; the key consideration was that in the15 end, participating providers accepted “reduced rates in full satisfaction of services rendered.” Thus, the court found “such rates are relevant, probative evidence of16 the reasonable value of medical services.”17 Because no party or friend of the court asked the court to reconsider the holding in Stanley, it adhered to Stanley and took a middle course; it admitted billed charges and accepted amounts, and placed the determination of reasonable value in the hands of the trier of fact.18 In Parkview Hospital, Inc. v. Frost, the Court of Appeals of Indiana held19 when a patient challenges the reasonableness of the amount of hospital charges, the patient is entitled to discovery concerning discounts provided to patients who are covered by government healthcare reimbursem ent plans. In Parkview,20 Appellee was involved in an automobile accident and was treated for his injuries at Appellant’s facilities. Appellee “did not have health insurance at the time he21 sustained his injuries.” Appellant thus filed a hospital lien in the amount of22 $625,117.66, which included all charges for Appellee’s in-patient and skilled 9. Id. 10. Id. at 1029 (quoting Stanley v. Walker, 906 N.E.2d 852, 855 (Ind. 2009)). 11. Id. 12. Id. 13. Id. 14. Id. 15. Id. 16. Id. at 1031. 17. Id. 18. Id. at 1032. 19. 52 N.E.3d 804 (Ind. Ct. App.), trans. denied, 60 N.E.3d 1039 (Ind. 2016). 20. Id. at 810. 21. Id. at 805. 22. Id. at 806. 2017] TORT LAW 1459 nursing care.23 Pursuant to the Indiana Hospital Lien Act (the Act), A ppellee filed a24 declaratory judgment action challenging the “reasonableness of the charges . . . by filing a motion to quash or reduce the claim ” in the court where the lien was perfected. Appellee then served a discovery request on Appellant “requesting25 information about discounts provided to patients who either had private health insurance or who are covered by government healthcare reimbursement programs.” Dissatisfied with Appellant’s response, Appellee filed a motion to26 compel discovery. Appellant requested a stay of discovery and filed a motion27 for partial summary judgment “seeking an order that its chargemaster rates were reasonable as a matter of law.” Appellee maintained that he was entitled to such28 information so that he could challenge the reasonableness of the claimed charges. The trial court agreed that evidence of discounts was relevant to the29 determination of reasonable charges under the Act.30 The court of appeals held because there was a dispute as to whether the chargemaster rates were reasonable, Appellee was entitled to discovery of discounted amounts so that he could challenge Appellant’s prima facie evidence of reasonableness with contradictory evidence.31 In dissent, Judge Najam opined that the supreme court’s decision in Allen v. Clarian Health Partners, Inc., was controlling precedent to the extent it held the32 contract term requiring patients to pay “the account” was a reference to the hospital’s chargemaster rates. In Allen, the supreme court refused to impute a33 “reasonable” price term into the contract.34 B. Risk of Harm Issues In Green v. Robertson, the court of appeals held “if recovery is limited to35 damages for increased risk of harm, the [Patient’s Compensation Fund (PCF)] is entitled to introduce evidence of the patient’s underlying risk of harm to assist the factfinder in determining the appropriate amount of damages.”36 23. Id. 24. See IND. CODE § 32-33-4-1 to -8 (2016). 25. Id. at 806 (quoting IND. CODE § 32-33-4-4(e) (2016)). 26. Id. 27. Id. 28. Id. 29. Id. at 807. 30. Id. at 806. 31. Id. at 810. 32. 980 N.E.2d 306 (Ind. 2012). 33. Parkview Hosp., Inc., 52 N.E.3d at 810 (Najam, J., dissenting). 34. Id. (citing Allen, 980 N.E.2d at 311). 35. 56 N.E.3d 682 (Ind. Ct. App. 2016), trans. denied, 2017 Ind. LEXIS 99 (Ind. Feb. 9, 2017). 36. Id. at 693. 1460 INDIANA LAW REVIEW [Vol. 50:1457 Plaintiff was taken to an emergency room after suffering nausea, weakness, numbness, and “loss of motor function on the left side of his body, drooping on the left side of his face, headache, and difficulty speaking.” Plaintiff was37 diagnosed with nausea and vomiting and released from the hospital. W hen later38 taken to a second hospital, it was determined that Plaintiff had suffered a stroke.39 Evidence presented during the bench trial showed that if patients who are suffering strokes are treated with a clot-busting drug within three hours of onset of the stroke, such treatment may minimize the effects; however, Plaintiff would have suffered from fatigue, stamina issues, and some level of physical deficits even with successful treatment.40 Plaintiff filed a proposed complaint with the Indiana Department of Insurance and eventually reached a settlement agreement with the named defendants, whereby the parties agreed to a structured settlement totaling $250,000. Plaintiff41 then filed a petition for excess damages from the PCF alleging that he experienced post-stroke injuries that were caused by the failure of doctors and staff at the first hospital to adequately assess, evaluate, and treat his neurological condition. The trial court awarded Plaintiff $300,000 in excess damages from42 the PCF “for the aggravation of his condition, the injury associated with the corneal scarring, pain and suffering, and loss of enjoyment of life.” However,43 the court determined Plaintiff should receive only thirty-nine percent of the total cost associated with his injury “because this was the chance of recovery if [the Plaintiff] had properly been treated.” Plaintiff appealed, arguing that the trial44 court erred in awarding him only $300,000 in additional compensation.45 The court of appeals addressed the issue of increased risk of harm as set forth in the Restatement (Second) of Torts § 323 (1965), noting “even if a claim was settled, if recovery is lim ited to damages for increased risk of harm, the PCF is entitled to introduce evidence of the patient’s underlying risk of harm to assist the factfinder in determining the appropriate amount of damages.” Our supreme46 court has held “damages for such a claim are to be measured in proportion to the increased risk, and not by the full extent of the ultimate injury.”47 In light of its findings regarding the effectiveness of the drug, the trial court reduced Plaintiff’s damage award proportionally. The trial court considered48 evidence of the varying degrees of effectiveness of the clot-busting drug, noting 37. Id. at 684. 38. Id. 39. Id. at 685. 40. Id. at 686, 688. 41. Id. at 685. 42. Id. at 685-86. 43. Id. at 694. 44. Id. at 695-96. 45. Id. at 696. 46. Id. at 692-93. 47. Cahoon v. Cummings, 734 N.E.2d 535, 538 (Ind. 2000). 48. Id. at 695-96. 2017] TORT LAW 1461 that one study showed “only 39% of patients who receive tPA within three hours of a stroke have minimal or no disability three months later.” An expert opined49 that Plaintiff had a 12.5% chance of having minimal or no disability if timely treated. The court of appeals concluded the trial court’s decision to reduce50 Plaintiff’s award by sixty-one percent (as opposed to 8.5% ) to be within the scope of the evidence. The court of appeals affirmed the trial court’s judgment51 awarding Plaintiff $300,000 from the PCF.52 C. Intervening Cause/Injury In State F arm M utual Automobile Insurance Co. v. Woodgett, the Indiana53 Court of Appeals held evidence of a second collision could not be excluded because it was a possible cause of the plaintiff’s injuries.54 D uring the afternoon of September 20, 2011, motorist W oodgett was rear- ended, causing his vehicle to roll into the back of another vehicle. W oodgett55 was treated for neck pain and a headache on the day of the accident and for “intermittent stress headaches” and neck pain about a month later. After56 undergoing five physical therapy sessions, W oodgett reported that he had slight headaches that came infrequently, and that he was able to engage in recreational activities with no neck pain. In the fall of 2012, W oodgett was involved in a57 second crash, which he described as a minor sideswipe crash that caused no injuries.58 In January 2013, W oodgett saw a neurologist for what he described as two types of headaches he was experiencing, including a daily mild headache and a severe headache three-to-four times a week that could be “unbearable.”59 W oodgett noted that since the September 2011 accident, his mild headaches “gradually got worse.”60 On February 25, 2013, W oodgett filed a complaint for damages against the driver of the vehicle that ran into him on September 20 and against State Farm, pursuant to his uninsured motorist coverage.61 At the outset of the jury trial, W oodgett’s counsel sought a motion in limine to prohibit the defense from discussing the 2012 accident as an intervening 49. Id. at 696-97. 50. Id. at 697. 51. Id. 52. Id. 53. 59 N.E.3d 1090 (Ind. Ct. App. 2016). 54. Id. at 1097. 55. Id. at 1091. 56. Id. at 1091-92. 57. Id. at 1092. 58. Id. 59. Id. 60. Id. 61. Id. 1462 INDIANA LAW REVIEW [Vol. 50:1457 cause. Counsel noted that although W oodgett affirmatively answered that his62 headaches progressively got worse after the 2012 crash, he also explained that the 2012 crash did not cause them to get worse; his headaches had been getting worse for a period of time before that crash, and they kept getting worse thereafter.63 State Farm, directing the trial court’s attention to the standard set forth in Walker v. Cuppett, maintained that given the timing of events in relation to W oodgett’s complained-of injury, the jury would not have to speculate regarding the effect of the second accident. The trial court ultimately granted W oodgett’s64 motion upon its determination that because there was no medical evidence that directly addressed the issue of the injury W oodgett suffered as a result of the second accident, the jury would have been left to speculate as to the injury that the second collision caused.65 State Farm appealed and the court of appeals identified the dispositive issue as whether the trial court abused its discretion in excluding the evidence of the second accident. In reviewing the trial court’s analysis, the court of appeals66 noted that Daub addressed a plaintiff’s burden of proving causation and did not address “the relevancy standard applicable to the admission of evidence a defendant wishes to present in a personal injury action.” The court then noted67 that the appropriate standard, followed in Walker, was that the admissibility of evidence to show the injury complained of is due to some other cause where the present injury and the prior injury are similar and where there is a “logical nexus” is “not probability, but the possibility that a plaintiff’s claimed damages resulted from a condition or event unrelated to the defendant’s negligence.”68 Applying this standard, the court of appeals noted deposition testimony from the neurologist to the effect that post-traumatic migraine headaches could result from “pretty minor trauma,” and it was not until after the second accident that W oodgett sought treatment for daily mild headaches and debilitating headaches several times a week. The court of appeals held the trial court abused its69 discretion in excluding evidence of the second accident because under the facts “a logical nexus exists between the second accident and the migraine headaches sufficient such that the second accident was a possible cause of such headaches.”70 62. Id. 63. Id. 64. Id. at 1092-93 (citing Walker v. Cuppett, 808 N.E.2d 85 (Ind. Ct. App. 2004)). 65. Id. at 1093. The trial court’s decision was based in part on Daub v. Daub, 629 N.E.2d 873 (Ind. Ct. App. 1994). 66. Id. 67. Id. at 1097 (citing Daub, 629 N.E.2d 873). 68. Id. at 1096 (quoting Walker, 808 N.E.2d at 95-96)). 69. Id. at 1097. 70. Id. 2017] TORT LAW 1463 II. PROCEDURE A. Summary Judgment In Siner v. Kindred H ospital Ltd. Partnership d/b/a Kindred Hospital of Indianapolis, the Indiana Supreme Court held where defendants’ designated71 evidence revealed conflicting medical opinions on the element of causation, summary judgment was inappropriate.72 Siner was admitted to the hospital for treatment. A dispute regarding her73 code status arose, so the fam ily arranged for transport to another hospital that would respect their wishes. Siner was transferred to a different hospital, where74 she required immediate treatment for a collapsed lung. It was also determined75 that she was suffering from wounds on her cheeks, overwhelming infection, and septic shock. Siner died twenty days later. Siner’s family filed a medical76 77 malpractice complaint with the Department of Insurance against the first hospital and those who treated Siner (Defendants). The medical review panel issued a78 unanimous opinion “that the evidence supports the conclusion that the defendants failed to comply with the appropriate standard of care, and that their conduct may have been a factor of some resultant damages, but not the death of the patient.”79 Siner’s family filed a complaint with the trial court alleging malpractice “on multiple acts or occurrences,” resulting in “multiple injuries to [Siner’s] nervous system, respiratory system, cardiovascular system, [and] musculoskeletal system.” Defendants moved for summary judgment and designated the review80 panel’s decision in addition to an affidavit from a member of the review panel stating that Defendants did not cause injury to Siner in administering her pulmonary care.81 The court first noted summary judgment determinations are made from the evidence designated to the court. The evidence designated by Defendants related82 only to Plaintiffs’ pulmonary claim s and did not relate to the non-pulmonary claims. The court therefore held summary judgment on the non-pulmonary83 claims was inappropriate.84 71. 51 N.E.3d 1184 (Ind. 2016). 72. Id. at 1190. 73. Id. at 1186. 74. Id. 75. Id. 76. Id. 77. Id. 78. Id. 79. Id. (emphasis added). 80. Id. at 1188. 81. Id. 82. Id. 83. Id. at 1189. 84. Id. 1464 INDIANA LAW REVIEW [Vol. 50:1457 The court also noted that although the medical review panel’s opinion contained no specific facts, the medical conclusions contained therein conflicted with other designated affidavits as to the ultimate issue of causation.85 Specifically, the court referred to expert affidavits indicating that Defendants’ conduct did not injure Siner, which was in conflict with the medical review panel’s conclusion that “their conduct may have been a factor of some resultant dam ages.” Emphasizing summary judgment is inappropriate whenever “a86 conflict of evidence may exist” on a material issue, the court held summary judgment was inappropriate.87 In Hill v. Gephart, the court of appeals held whether a pedestrian who88 violated a statute imposing a duty thereon acted reasonably or was contributorily negligent was a matter for resolution by the trier of fact.89 Hill and his daughter walked to a nearby park along a roadway between their home and the park, which were on the same side of the street. Near dusk, Hill90 and his daughter decided to walk home along the same roadway, with Hill’s daughter walking in front of him. They did not cross the street in order to walk91 against traffic, but rather walked along the right side of the roadway with their backs toward traffic. H ill claimed that he believed this was safer than having to92 cross the street twice in order to get home. Hill was using his phone as he93 walked along the roadside when he was struck by a jail transport vehicle driven by Deputy G ephart. An accident reconstruction specialist could not determine94 Hill’s exact location at the time of impact and ultimately concluded that the primary cause of the accident was the low-light environment and the dark clothes Hill wore at the time. The Hills filed a complaint alleging negligence and95 negligent infliction of emotional distress. The trial court “dismissed the Hills’96 complaint against Deputy Gephart and granted summary judgment in favor of the remaining Defendants.”97 The Hills argued that Defendants’ defense of contributory negligence on behalf of Hill was an issue to be decided by the trier of fact. Hill conceded he98 violated Indiana Code section 9-21-17-14 when he walked on the right side of the 85. Id. 86. Id. at 1186 (emphasis added). 87. Id. at 1190. 88. 54 N.E.3d 402 (Ind. Ct. App. 2016), aff’d on reh’g, 62 N.E.3d 408, trans. denied, 64 N.E.3d 1205 (Ind. 2016). 89. Id. at 407. 90. Id. at 404. 91. Id. 92. Id. 93. Id. at 407. 94. Id. at 404. 95. Id. at 405. 96. Id. 97. Id. 98. Id. at 406. 2017] TORT LAW 1465 roadway, but asserted that such a violation only creates a rebuttable presumption of negligence. In such cases, the person who disobeyed a statute “may excuse99 or justify the violation in a civil action for negligence by sustaining the burden of showing that he did what might be reasonably expected by a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” Although this rule was announced in considering the duty of a driver who100 violated a motor vehicle statute, the court concluded that it should be extended to motor vehicle statutes that impose duties on pedestrians. Hill claimed his101 violation of the statute was justifiably reasonable and was arguably the safer option for him and his daughter because they did not have to cross the street.102 The court held Hill’s assertion in this regard created a genuine issue of material fact as to whether Hill’s conduct was reasonable or if he contributed to his injuries. Thus, summary judgment was inappropriate.103 104 In Sorrells v. Reid-R enner, the court of appeals held summary judgment105 was precluded because there was a genuine issue of material fact as to whether a physician’s alleged negligence was the proximate cause of injuries and damages to the patient.106 Appellant filed a malpractice complaint against her physician, alleging that her physician failed to communicate the results of a blood test that were indicative of her early-stage leukemia. Appellant claimed that this resulted in107 a delay in diagnosis, which, in turn, caused her injury and damages. Appellant’s108 oncologist stated that if Appellant had been timely informed and properly monitored, he would have had “a much better idea of what her disease process was” and explained how the treatment plan may have been different, such that he may have not treated A ppellant with chemotherapy, and A ppellant may have not needed a port. A medical review panel concluded the physician breached the109 standard of care, but opined that such was not a causative factor in any resultant injury or damages.110 Although the medical review panel found in favor of the physician on the issue of causation, expert testimony, when considered in the light most favorable to Appellant, created a genuine issue of fact on the issue of proximate cause, thereby precluding summary judgment.111 99. Id. at 406-07; see Davison v. Williams, 242 N.E.2d 101, 105 (Ind. 1968). 100. Id. at 407 (quoting Davison, 242 N.E.2d at 105). 101. Id. 102. Id. 103. Id. 104. Id. 105. 49 N.E.3d 647 (Ind. Ct. App. 2016). 106. Id. at 652. 107. Id. at 649. 108. Id. 109. Id. 110. Id. at 648. 111. Id. at 652. 1466 INDIANA LAW REVIEW [Vol. 50:1457 The court of appeals also rejected the physician’s “implication that the only significant inquiry [was] whether the delay in diagnosis affected [Appellant’s] ultimate prognosis or life expectancy.” There was no dispute that it did not.112 113 The court held “merely because the delayed diagnosis did not exacerbate [Appellant]’s disease, that is not to say that it was not the proximate cause of some injury or damages to her” as a result of additional aggressive and expensive medical treatments and procedures that would have been unnecessary had the physician complied with the applicable standard of care.114 In Scripture v. Roberts, the court of appeals held in order to defeat115 summary judgment, a physician’s affidavit must include at least some facts that would support a finding that the physician met the standard of care or that the physician’s conduct did not cause injury or damage to the patient. The court of116 appeals also determined where a party timely filed summary judgment affidavits, albeit inadequate ones, the trial court did not abuse its discretion in refusing to permit the party to cure the deficiency by filing supplement affidavits months later and on the eve of the summary judgment hearing.117 Appellee suffered an injury to her left eye that required a corneal transplant. The injury resulted from the care and treatm ent of several118 physicians. A unanimous medical review panel found the physicians “failed to119 comply with the appropriate standard of care” and their conduct was a causal factor in the damages suffered by Appellee. Appellee filed a complaint and then120 moved for summary judgment, designating as evidence the opinion of the medical review panel. In response to Appellee’s motion for summary judgment, the121 physicians designated as expert evidence their own affidavits. M onths later and122 one day prior to the summary judgment hearing, the physicians sought to supplement their response to summary judgment with their own supplemental affidavits that included facts to support their conclusions. The trial court denied123 their request to supplement and granted summary judgment in favor of Appellee.124 In reviewing the grant of summary judgment, the court of appeals addressed “whether the particular facts alleged in the [physicians’] affidavits were specific 112. Id. 113. Id. 114. Id. 115. 51 N.E.3d 248 (Ind. Ct. App. 2016). 116. Id. at 249. 117. Id. at 255. 118. Id. at 249. 119. Id. 120. Id. 121. Id. at 250. 122. Id. 123. Id. 124. Id. 2017] TORT LAW 1467 enough to raise a genuine issue of material fact.” In their respective affidavits,125 the physicians set out their medical credentials, stated the dates on which they provided care to Appellee, indicated that they were each fam iliar with the treatment provided by the others, acknowledged the appropriate standard of care, and stated a general conclusion that the treatment they individually provided met the applicable standard of care.126 To defeat summary judgm ent, an expert’s affidavits must include at least some factual basis to support the expert’s conclusion. The physicians argued127 that even if their affidavits were self-serving and conclusory, under the standard enunciated by the Indiana Supreme Court in Hughley v. State, their affidavits were sufficient to defeat summary judgment. The court of appeals found128 Hughley inapposite, noting the physicians cited no facts that would support a finding that they met the standard of care or that their conduct did not cause A ppellee’s damages; rather, the physicians “merely restated the denials in their pleadings.” The court held the physicians’ affidavits failed to create a genuine129 issue of material fact.130 The court of appeals also determined the trial court did not abuse its discretion in denying the physicians’ request to supplement their respective affidavits where the physicians timely filed their initial, factually inadequate affidavits, but waited months— until the day before the summary judgment hearing— “to step up their efforts to defeat summary judgment” by filing affidavits that contained additional information that cured the alleged deficiencies.131 In City of Beech Grove v. Beloat, the Indiana Supreme Court held the city132 did not meet its burden on summary judgment to prove it was entitled to discretionary-function immunity for a suit a pedestrian, Beloat, filed after she stepped in a hole in the pavement.133 As Beloat crossed a street in Beech Grove, her foot went into a hole in the pavement and she tripped and broke her leg. The City moved for summary134 judgment, claiming discretionary-function immunity under Indiana Code section 34-13-3-3(7) (2014), and its motion was denied. The court of appeals reversed135 and directed entry of summary judgment for the City. The supreme court136 125. Id. at 251. 126. Id. at 252. 127. Id. at 253. 128. Id. at 254 (citing Hughley v. State, 15 N.E.3d 1000 (Ind. 2014)). 129. Id. 130. Id. 131. Id. at 255. 132. 50 N.E.3d 135 (Ind. 2016). 133. Id. at 143. 134. Id. at 137. 135. Id. 136. Id. 1468 INDIANA LAW REVIEW [Vol. 50:1457 granted transfer.137 Like the court of appeals, the supreme court looked to Peavler v. Board of Commissioners, wherein the court adopted the “planning/operational test” for addressing claims of discretionary-function immunity. The court reiterated that138 the test serves to “insulate[] only those significant policy and political decisions which cannot be assessed by custom ary tort standards. The assessment requires close consideration of the nature of the governmental actions and the decision- making process that was involved.” M erely labeling an activity or omission “as139 planning or operational, without more, is insufficient to determine whether immunity exists.”140 The City designated as evidence the mayor’s affidavit and minutes from meetings of the city council and the Board of W orks and Safety. The supreme141 court noted prior cases that have reiterated “[t]he actions of individual members of a board or commission outside a meeting cannot be substituted for the actions at a duly constituted meeting or for the minutes thereof.” Thus, the court142 discounted the mayor’s affidavit insofar as it was relied upon to demonstrate that the City engaged in a policy determination in this case because the mayor’s comments and actions were not actions of the board. The court determined the143 balance of the designated evidence was also lacking as to the nature of the decision-making process and the project itself. The court therefore concluded144 there was insufficient designated evidence to establish that the City was entitled to assert discretionary-function immunity.145 A. Statute of Repose In M yers v. Crouse-Hinds Division of Cooper Industries, Inc., the Indiana146 Supreme Court declined to reconsider its decision in Allied Signal v. O tt, but147 held Indiana Code section 34-20-3-2 (2014) violates article 1, section 23 of the equal privileges and immunities clause of the Indiana Constitution. As held in148 Covalt v. Carey C anada, Inc., the Indiana Product Liability Act’s statute of149 repose does not apply to cases involving protracted exposure to an inherently150 137. Id. 138. Id. at 138 (citing Peavler v. Bd. of Comm’rs, 528 N.E.2d 40, 45-46 (Ind. 1988)). 139. Id. 140. Id. 141. Id. at 140. 142. Id. 143. Id. 144. Id. 145. Id. 146. 53 N.E.3d 1160 (Ind.), reh’g denied, 53 N.E.3d 1173 (Ind. 2016). 147. 785 N.E.2d 1068 (Ind. 2003). 148. Myers, 53 N.E.3d at 1162, 1167. 149. 543 N.E.2d 382 (Ind. 1989). 150. See IND. CODE § 34-20-3-1, -2 (2016). 2017] TORT LAW 1469 dangerous foreign substance that is visited into the body, such as asbestos.151 Appellants filed complaints alleging damages stemming from asbestos-caused diseases that developed years after exposure to asbestos. The supreme court152 consolidated three appeals that presented the same principal issues relating to application of Indiana’s Product Liability Act’s ten-year statute of repose.153 Appellants first urged the court to reconsider its holding in Ott and adopt the interpretation presented by the Ott dissent. The court declined this request, but154 did address Appellants’ constitutional arguments that the statute of repose violated two provisions of the Indiana Constitution: the right to remedy clause, article 1, section 12, and the equal privileges and immunities clause, article 1, section 23.155 In Ott, the majority considered the applicability of Indiana Code section 34- 20-3-1, which generally applies to product liability claims (section 1), and Indiana Code section 34-20-3-2, which specifically applies to at least som e asbestos liability claims (section 2). The court noted that although product156 liability actions under section 1 have a two-year statute of lim itations and a ten- year statute of repose, asbestos-related actions under section 2 enjoy a different timetable. W hen a product liability action qualifies under section 2, there is no157 firm statute of repose. Rather, a lawsuit must be commenced within two years158 “after the cause of action accrues,” with the accrual date defined as “the date when the injured person knows that the person has an asbestos related disease or injury.” The Ott majority held only those persons who produce asbestos (i.e.,159 “mine[] and s[ell] commercial asbestos”) fall within section 2; all others who sell asbestos-containing products fall within the ambit of section 1.160 In the present case, Appellants brought a different article 1, section 23 claim than was presented in Ott, defining the different classes as asbestos victims injured by defendants who both mined and sold raw asbestos compared to asbestos victims injured by other defendants. The court noted that both classes161 were “identically comprised of asbestos victims.” Applying the standard set162 forth in Collins v Day, the court concluded section 2, by not differentiating between the classes based on any single characteristic of theirs— inherent or otherwise— created disparate treatment in that some asbestos victims fell within section 1, where their claims may be barred by the statute of repose, and other 151. Myers, 53 N.E.3d at 1167 (citing Covalt, 543 N.E.2d at 385). 152. Id. 153. Id. at 1162. 154. Id. (citing Allied Signal v. Ott, 785 N.E.2d 1068 (Ind. 2003)). 155. Id. at 1164. 156. Id. at 1165. 157. Id. 158. Id. 159. Id. at 1163 n.4 (quoting IND. CODE § 34-20-3-2 (a) and (b) (2016)). 160. Id. at 1163. 161. Id. at 1164. 162. Id. at 1165. 1470 INDIANA LAW REVIEW [Vol. 50:1457 asbestos victims fell within section 2, where no statute of repose applies. The163 court further concluded although the two classes of asbestos victims are similarly situated, only one of them is completely exempted from the statute of repose.164 The court held the unequal treatment of asbestos victims under section 2 of the Indiana Product Liability Act violates article 1, section 23; therefore, the court invalidated section 2.165 The court then turned to the application of section 1, looked to the analysis of the Ott majority, and the interpretation by the court in Covalt. Because166 Covalt interpreted section 1 standing alone, and that section does indeed now stand alone following this decision, the court restored Covalt’s precedential value as to its holding that “our statute of repose [is] inapplicable to cases involving protracted exposure to an inherently dangerous foreign substance which is visited into the body.”167 III. A GENCY A. Respondeat Superior In Knighten v. East Chicago Housing Authority, the Indiana Supreme Court168 reiterated that the scope of an employee’s duties and responsibilities, and whether the employee’s “act was done ‘to an appreciable extent, to further his employer’s business,’” presents a question of fact to be determined by the factfinder.169 The East Chicago Housing Authority operated a federal housing complex in East Chicago, and contracted with Davis Security Services, LLC to provide security services for said complex in 2009-2011. In 2008, Davis Security hired170 Donnell Caldwell as a security guard. In mid-2010, Caldwell was assigned to171 work in the guard shack and monitor traffic coming into the housing complex.172 Stacy Knighten, with whom Caldwell had once been romantically involved and who lived in the housing complex, encountered Caldwell while he was working security; the two became involved in a heated argument during which they ventured several yards away from Caldwell’s post in the guard shack. After173 damaging the entrance gate to the complex, and some time later, Knighten began walking away from Caldwell, but “Caldwell drew his handgun and fired a shot striking Knighten in the back”; this “gunshot injury left Knighten paralyzed from 163. Id. (citing Collins v Day, 644 N.E.2d 72, 80 (Ind. 1994)). 164. Id. at 1166. 165. Id. at 1168. 166. Id. 167. Id. at 1167 (quoting Covalt v. Carey Canada, Inc., 543 N.E.2d 382, 385 (Ind. 1989)). 168. 45 N.E.3d 788 (Ind. 2015). 169. Id. at 794. 170. Id. at 790. 171. Id. 172. Id. 173. Id. 2017] TORT LAW 1471 the waist down.”174 Knighten filed a complaint for damages against the Housing Authority, Davis Security, and Caldwell and further alleged liability on behalf of the Housing Authority and Davis Security for negligent hiring and supervision. Summary175 judgment was granted in favor of the H ousing Authority and Davis Security on all claims; Knighten appealed only the grant of summary judgment in favor of Davis Security.176 Knighten’s claim against Davis Security was premised upon the doctrine of respondeat superior, under which an employer can be held liable “for the wrongful acts of [its] employee which are committed within the scope of employment.” “[I]n order for an employee’s act to fall ‘within the scope of177 employment,’ the injurious act must be incidental to the conduct authorized or it must, to an appreciable extent, further the employer’s business.” If the178 employee’s conduct occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer, then the employee’s conduct is not within the scope of employment.179 Davis Security asserted that Caldwell’s sole duty was to monitor traffic.180 The court noted “tension— if not outright conflict” between this assertion and the fact that C aldwell was also armed with a gun, indicating potentially more duties. The court also noted conflicting evidence that the Housing Authority’s181 contract with Davis Security required D avis Security to have an armed employee at the guard shack, while Schmidt’s supervisor testified by way of deposition that Schmidt was instructed that he should not be armed. The court stated:182 If, as Davis Security alleges, it prohibited Caldwell from possessing a handgun while serving as a security guard then that fact would certainly undermine the notion that he used his handgun in furtherance of his employer’s business. On the other hand if Caldwell [was] required to be armed on duty, then the use of his firearm could very well have been necessary.183 The court also considered evidence regarding Caldwell’s location at the time of the shooting, i.e., away from the guard shack, and noted that resolution of the disputed facts may also tip the scales in favor of one party or the other. Based184 on the foregoing considerations, the court held: 174. Id. 175. Id. 176. Id. at 791. 177. Id. 178. Id. at 792. 179. Id. 180. Id. 181. Id. 182. Id. at 793. 183. Id. 184. Id. at 793-94. 1472 INDIANA LAW REVIEW [Vol. 50:1457 In the end, the scope and extent of Caldwell’s duties and responsibilities as an employee of Davis Security, and whether in discharging his weapon Caldwell engaged in conduct consistent with his duties and responsibilities, and thus whether this act was done “to an appreciable extent, to further his employer’s business[,]” are matters that cannot be resolved by summary disposition.185 In Robbins v. Trustees of Indiana University, the court of appeals held an186 employer was not vicariously liable under the respondeat superior doctrine where the employee nurse acted for personal purposes, and the negligent hiring claim failed where the harm to the patient was not reasonably foreseeable.187 In her application for a job with the Indiana University School of M edicine, DeBow noted her employment history, as well as a prior conviction for misdemeanor battery. DeBow also read and signed a Commitment to188 Confidentiality Agreement as part of the application process, wherein she agreed to keep medical records confidential and not to disclose them for “personal, unauthorized, unethical, or illegal reason[s].” Following additional independent189 screening measures, DeBow was offered a position providing health care services and provided with credentials to access two electronic medical records systems.190 DeBow accessed Robbins’s medical records and those of Robbins’s children for no legitimate business reason and posted the information on an Internet blog.191 W hen confronted, DeBow admitted she had posted confidential information and that her motive was revenge. DeBow pled guilty to a federal felony charge192 related to the disclosure of confidential information.193 Robbins filed a complaint alleging that the defendants were vicariously liable for DeBow’s actions, “who allegedly comm itted the torts of invasion of privacy by the public disclosure of private facts and intentional infliction of emotional distress,” or, alternatively, that the defendants were liable for negligently hiring D eB ow. The trial court granted the defendants’ motion for summary194 judgment.195 The court of appeals held where the agreement setting forth the relationship between the defendants did not give the defendants “an equal right to direct and govern any undertaking and [did] not provide for the sharing of profits,” the defendants were “not in a joint venture for the purpose of a finding of vicarious 185. Id. at 794 (internal citations omitted). 186. 45 N.E.3d 1 (Ind. Ct. App. 2015). 187. Id. at 7, 12. 188. Id. at 4. 189. Id. 190. Id. at 4-5. 191. Id. at 5. 192. Id. 193. Id. 194. Id. 195. Id. 2017] TORT LAW 1473 liability.” The court also noted that simply issuing a username and password196 to access the records system did not give rise to an agency relationship between defendants and DeBow.197 Although DeBow accessed Robbins’s medical records while at work, DeB ow’s admission that she did so for personal reasons and not in conjunction with her employment, her admission that she was motivated by revenge, and the fact that she had read and signed a confidentiality agreement weighed in favor of the conclusion that her actions were not sufficiently associated with her em ployment duties to fall within the scope of her employment. Summary198 judgment was therefore properly granted.199 T he court also rejected Robbins’s negligent-hiring claim. The designated200 evidence established that DeBow’s employment did not put her in contact with Robbins, DeBow was not authorized to access R obbins’s electronic medical records when Robbins was not a patient of the department where DeBow worked, DeBow’s conduct was not a recurring event, and there were no prior reports that DeBow had engaged in sim ilar conduct. Based on this evidence, the court201 concluded Robbins was not a reasonably foreseeable victim.202 B. Duty of Physician Overseeing a CPA In Collip v. Ratts, the court of appeals held licensed physicians who203 undertake the responsibility to oversee the prescribing practices of nurse practitioners owe a duty to the nurse practitioners’ patients to fulfill their contractual obligations with reasonable care, and the physician’s duty existed even though the physician had never treated the patient.204 “Under Indiana law, a nurse practitioner cannot prescribe legend drugs without a collaborative practice agreement [(CPA)] with a licensed physician.”205 Here, Physician entered into such an agreement with Nurse Practitioner, wherein Physician was to collaborate with and oversee Nurse Practitioner’s prescriptive practices. Physician admitted that he never complied with the term of the CPA206 requiring him to review at least five percent of the charts of Nurse Practitioner’s patient, but that he had become concerned about the amount of narcotics she was prescribing. One of Nurse Practitioner’s patients died as a result of mixed drug207 196. Id. at 7. 197. Id. 198. Id. at 10. 199. Id. at 11. 200. Id. at 12. 201. Id. 202. Id. 203. 49 N.E.3d 607 (Ind. Ct. App. 2015). 204. Id. at 610. 205. Id. 206. Id. 207. Id. 1474 INDIANA LAW REVIEW [Vol. 50:1457 interaction. The mother of the deceased filed a complaint against Physician,208 Nurse Practitioner, and Nurse Practitioner’s practice. Cross-motions for partial209 summary judgment between decedent’s mother and Physician were considered by the trial court. The trial court entered partial summary judgment in favor of210 decedent’s mother.211 On interlocutory appeal, the court of appeals determined the case should be considered under general tort principles, and looked to Webb v. Jarvis in considering whether the physician “had a legal duty to a third party to whom he had not provided any medical treatment.” The court noted that Physician212 voluntarily entered into a contract with Nurse Practitioner to provide oversight of prescriptive services and the “gravamen of such a contract is the protection of the nurse practitioner’s patients.” Thus, despite the lack of privity between the213 parties, the court held this evidence weighed in favor of finding the existence of a duty.214 W ith regard to the foreseeability of harm, the court noted the statutory requirement that “nurse practitioners may prescribe legend drugs only when under the supervision of a physician” and the clear im plication was that this requirem ent was enacted to “ensure the safety of the patients of nurse practitioners.” The court thus held it was “eminently foreseeable” that a215 physician’s failure to perform his or her oversight duties could result in a nurse practitioner’s patient being harmed. The court also held a multitude of public216 policy reasons weigh in favor of imposing a duty on the overseeing physician.217 In so holding, the court noted that a contrary conclusion would permit physicians to “put their proverbial blinders on,” and would provide them with no incentive to oversee a nurse practitioner’s work in a responsible manner.218 The court also addressed Physician’s argument that he owed no duty to Nurse Practitioner’s patient pursuant to section 324A of the Restatem ent (Second) of Torts. The court rejected this argum ent, noting that because Physician219 voluntarily entered the CPA, expressly agreed to direct and oversee N urse Practitioner in her practice, and was paid for his services, section 324A did not shield Physician from owing a duty to Nurse Practitioner’s patients.220 208. Id. at 611. 209. Id. 210. Id. 211. Id. 212. Id. at 612 (citing Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991)). 213. Id. 214. Id. 215. Id. at 613. 216. Id. 217. Id. 218. Id. at 614. 219. Id. at 615-16. 220. Id. at 616. 2017] TORT LAW 1475 C. Joint Employers In Hall v. Dallman Contractors, LLC, the court of appeals held that where221 an employer was a third-tier subsidiary of the same parent corporation under which another entity was also a subsidiary, the employer and entity were joint employers for purposes of the exclusive remedy provision of the W orker’s Compensation Act (the Act).222 Appellant was injured when, on her way into work, she “tripped and fell over the snow-covered legs of a construction sign.” Appellant then received223 worker’s compensation benefits. Appellant subsequently filed a negligence224 action against several other entities. The entity responsible for physical225 building maintenance (Entity), including snow and ice removal, filed a motion for summary judgment, contending that Appellant’s “claim against it was barred under the exclusive remedy provision of the Act.” T he trial court granted226 Entity’s motion. The court of appeals reversed, concluding there was a genuine227 issue of material fact as to whether Entity was a joint employer of Appellant.228 T hereafter, Entity filed a second motion for summary judgment, and, in support thereof, designated evidence that it claimed established Entity and Appellant’s employer were subsidiaries of the same parent company; therefore, they were joint employers of Appellant. The trial court agreed and granted229 summary judgment in favor of E ntity because Appellant’s sole and exclusive remedy against a joint employer was the worker’s compensation for which she had already received benefits.230 On appeal, the court considered the definition of “employer” under the Act as amended in 2000 and 2001 so as to provide “[a] parent corporation and its subsidiaries shall each be considered joint employers of the corporation’s, the parent’s, or the subsidiaries’ em ployees for purposes of IC 22-3-2-6 [exclusive remedies] and IC 22-3-3-31 [joint service].” Prior to the foregoing231 amendments, the definition of employer did not include a parent or subsidiary but, rather, permitted an injured employee to pursue a legal claim against any “other person than the employer.” The court found the amendments to the232 definition of employer overruled prior cases holding the injured employee could seek recovery from the parent corporation of the injured employee’s employer, 221. 51 N.E.3d 261, 267 (Ind. Ct. App. 2016). 222. Id. 223. Id. at 263. 224. Id. 225. Id. 226. Id. 227. Id. 228. Id. 229. Id. 230. Id. 231. Id. at 264-65. 232. Id. at 264. 1476 INDIANA LAW REVIEW [Vol. 50:1457 even where compensation was had under the Act from the employer.233 In considering the corporate structure, the court identified Appellant’s em ployer as a third-tier subsidiary of the same parent corporation under which Entity was also a subsidiary. Because Entity was a subsidiary of the same234 parent corporation, Entity was a joint employer pursuant to the Act’s definition of employer. Therefore, the court concluded Appellant’s action against Entity235 was barred by the exclusive remedy provision of the Act.236 IV. N EGLIGENCE A. Bystander Rule In Clifton v. M cCammack, the Indiana Supreme Court reviewed the237 bystander rule and perceived no need to discard or expand upon precedent; therefore, the bystander rule continues to provide recovery for negligent infliction of emotional distress (NEID) if a claimant can establish sufficient “direct involvement,” which requires that the claimant “demonstrate that the scene viewed was essentially as it was at the time of the incident, that the victim was in essentially the same condition as immediately following the incident, and that the claimant was not informed of the incident before coming upon the scene.”238 Clifton and his son Darryl lived in the same residence and were very close.239 One morning, Darryl left their home on his moped and was struck shortly thereafter by M cCammack’s vehicle. W itnesses moved Darryl’s body to the240 pavement, where resuscitation efforts were unsuccessful, and he died from his injuries. A pproximately thirty minutes after the accident occurred, Clifton was241 watching television when he saw a news report of a fatal accident involving a moped. Although the news segment did not provide any pictures or video,242 Clifton had a “very bad feeling” Darryl was involved. Clifton drove to the243 scene of the accident where, from a distance of twenty to twenty-five feet, he could see “Darryl’s moped near the front wheel of M cCammack’s car and a body on the ground covered with a white sheet.” Clifton could not see any blood or244 signs of injury, but recognized the shoes sticking out from under the sheet as 233. Id. at 265. 234. Id. at 267. 235. Id. 236. Id. 237. 43 N.E.3d 213 (Ind. 2015). 238. Id. at 214-15. 239. Id. at 215. 240. Id. 241. Id. 242. Id. 243. Id. 244. Id. 2017] TORT LAW 1477 Darryl’s. Clifton approached a police officer, who took Clifton to a nearby245 restaurant before confirming that the victim was in fact Darryl; Clifton did not witness the removal of Darryl’s body.246 Clifton sued M cCammack for negligent infliction of emotional distress.247 The parties filed competing motions for summary judgment, and the trial court granted M cCammack’s. Clifton appealed. The court of appeals reversed the248 249 trial court, directed entry of summary judgment in favor of Clifton, and remanded for a trial on damages.250 On transfer, the supreme court took this opportunity to consider whether Indiana should part from precedent with regard to permitting recovery for NIED. The court reviewed the history of the bystander rule in Indiana, and251 examined approaches taken in several jurisdictions. The court ultimately252 concluded the requirements crafted to pursue a successful bystander claim in Indiana, along with the fact that those requirements are to be determined as a matter of law, “appropriately address the various public policy concerns this particular tort implicates.” In other words, the court concluded that Indiana’s253 rule “strikes the appropriate balance between allowing authentic claims to proceed while also curbing the real issues of open-ended liability, fraudulent claims, and the ubiquity of this type of injury.”254 In a fairly straightforward analysis, the court determ ined C lifton was not entitled to recover under this theory. In so holding, the court noted that before255 Clifton arrived on the scene, both the scene and Darryl’s body had materially changed from the way they appeared immediately after the accident; “Clifton did not experience the ‘uninterrupted flow of events’ following the collision” (i.e., before there were significant changes to the scene and Darryl’s body), and Clifton learned indirectly of the incident before arriving at the scene. The court’s256 analysis led it to conclude Clifton did not satisfy the elements of the bystander rule, and therefore was not entitled to recovery of emotional distress damages.257 245. Id. 246. Id. 247. Id. 248. Id. at 215-16. 249. Id. at 216. 250. Id. 251. Id. 252. Id. at 216-19. 253. Id. at 220. 254. Id. 255. Id. at 220-23. 256. Id. at 222. 257. Id. at 223. 1478 INDIANA LAW REVIEW [Vol. 50:1457 B. Premises Liability In Schneider v. Paragon Realty, LLC, the court of appeals held a property258 management company that contracts with a landowner to perform certain administrative services and to maintain the physical integrity of the common areas used by invitees does not have or assume a duty to protect patrons leaving a bar from dangers associated with getting in a car with an intoxicated driver.259 Between 6:00 PM and 10:00 PM , Plaintiff consumed five vodka drinks at home before going with a friend to a local bar. Over the course of four hours260 at the bar, Plaintiff consum ed three beers and three shots of whiskey, and her friend also consumed alcoholic beverages. Plaintiff left the bar in her friend’s261 vehicle, and her friend was driving. Plaintiff’s friend “lost control of the car262 and crashed into a ditch.” Plaintiff sustained serious injuries as a result of the263 crash, and was rendered paraplegic.264 Plaintiff filed a complaint against, among others, Paragon, the property manager hired by the property owner. The trial court granted Paragon’s motion265 for summary judgment. The court noted this was “an unusual premises liability266 case in that Paragon [was] not a landowner,” but rather a property management company hired by the landowner. The question was thus whether Paragon was267 in control of the premises when the accident occurred. The court looked to the268 property management agreement, which defined Paragon’s role as a limited agent of the property owner whose duty was to maintain “the physical integrity of the common areas used by invitees.” This duty did not include a “duty to ‘police’269 the parking lot or any obligation to invitees beyond the physical maintenance of the property.” The court therefore held Paragon was entitled to summary270 judgment.271 C. Comparative Fault Act In Shelton v. Kroger Ltd. Partnership I, the court of appeals held a272 258. 55 N.E.3d 374 (Ind. Ct. App. 2016), reh’g denied; No. 32A01-1511-CT-1858, 2016 Ind. App. LEXIS 275 (Ind. Ct. App. July 25, 2016), trans. denied, 62 N.E.3d 1202 (Ind. 2016). 259. Id. at 380. 260. Id. at 375. 261. Id. 262. Id. 263. Id. 264. Id. 265. Id. at 376 n.2. 266. Id. at 377. 267. Id. at 378. 268. Id. at 379. 269. Id. 270. Id. at 379-80. 271. Id. at 380. 272. 58 N.E.3d 229 (Ind. Ct. App.), trans. denied, 64 N.E.3d 1205 (Ind. 2016). 2017] TORT LAW 1479 pharmacy that is not a qualified healthcare provider is not exempted from the application of the Comparative Fault Act.273 Decedent’s estate filed a proposed complaint with the Indiana Department of Insurance (IDI), alleging decedent’s death was a result of medical complications that arose after taking a prescribed m edication. The estate named several274 defendants, including the K roger pharmacy that dispensed the prescription medication. After receiving notice that the pharmacy was not a qualified health275 provider subject to the M edical M alpractice Act (M M A), the decedent’s estate filed a wrongful death action in the trial court. After other named defendants276 settled with the decedent’s estate, the pharmacy was granted leave to amend its answer to assert a non-party defense against the named defendants who settled their claims and were dismissed from the action. The trial court subsequently277 granted the pharmacy’s partial summary judgment motion, concluding the pharmacy was entitled to a credit or set-off for the settlements reached by the other named defendants.278 The court noted that “[u]nder Indiana’s comparative fault scheme, a named defendant may assert a ‘nonparty’ defense, seeking to attribute fault to a nonparty rather than to the defendant.” The Comparative Fault Act expressly exempts279 actions brought against a qualified health care provider. The court held because280 the IDI determined the pharmacy was not a qualified health care provider under the M M A, the pharmacy was likewise not a health care provider exempted from the Comparative Fault Act. The pharmacy was thereby not entitled to a credit281 or set-off with regard to settlements reached with other named defendants. The282 pharmacy’s only option to limit its liability was through its asserted non-party defense. The trial court’s summary judgment ruling was therefore reversed.283 284 D. Duty of Drivers to Avoid Injuries to Other M otorists In J.B. Hunt Transport, Inc. v. Guardianship of Zak, the court of appeals285 held the extent of a driver’s duty to use ordinary care to avoid injuries to other motorists and to whom such duty is owed are issues “heavily laden with factual 273. Id. at 235. 274. Id. at 230. 275. Id. 276. Id. 277. Id. 278. Id. at 231-32. 279. Id. at 232 (citing IND. CODE § 34-51-2-14 (2016)). 280. Id. at 235; see IND. CODE § 34-51-2-1(b)(1) (2016). 281. Shelton, 58 N.E.3d at 235. 282. Id. 283. Id. 284. Id. 285. 58 N.E.3d 956 (Ind. Ct. App.), trans. denied, 64 N.E.3d 1207 (Ind. 2016). 1480 INDIANA LAW REVIEW [Vol. 50:1457 questions that must be answered by a jury.”286 W hile traveling in snowy conditions and driving at seventy miles per hour in the left lane of an interstate, the driver lost control of the semi he was driving for J.B. Hunt, and he ended up jackknifed and disabled in the median. The driver287 did not activate his flashers or use any other visible warning sign, such as triangle reflectors, to indicate the location of the sem i in the median, nor did J.B. Hunt instruct him to do so. An hour later, a vehicle in which Zak was a passenger288 slid off the same part of the interstate and struck the semi in the median. As a289 result of the accident, Zak sustained permanent, serious brain damage.290 Following the accident, J.B. Hunt reviewed the accident and issued a report indicating its conclusion that the first accident was preventable; and therefore, terminated the driver’s employment.291 Zak’s guardians (Appellee) filed a negligence action against the driver and J.B. Hunt (Appellants); the jury returned a verdict in favor of Appellee. During292 a third trial, the issues of liability and damages were tried together. Appellants293 argued they were unjustly prejudiced because the tragic and sympathetic nature of Zak’s injuries played on the jury’s sympathies as it considered the issue of liability. The trial court found Appellants did not offer persuasive argument on294 the issue of liability and expressed its “confidence in the ability of a jury to ably decide the separate question of liability in accordance with the court’s instructions.” The court of appeals approved the trial court’s reasoning.295 296 The court of appeals also determined the trial court properly denied Appellants’ motion for summary judgment and motion for directed verdict based on Appellants’ claim that Appellee failed to establish duty and proximate cause as a matter of law. W ith regard to the issue of duty, Appellants argued Zak was297 not a motorist to whom a duty was owed because the vehicle she was in was an hour away at the time of the semi’s initial accident. Appellants also argued they298 owed no duty to Zak because J.B . Hunt’s driver and Zak were not using a common highway simultaneously. The court refused to create a bright-line rule299 to whom a driver owes a general duty of reasonable care and left the factual 286. Id. at 971-72. 287. Id. at 961. 288. Id. 289. Id. at 962. 290. Id. 291. Id. 292. Id. at 963. 293. Id. 294. Id. 295. Id. at 964. 296. Id. 297. Id. at 972. 298. Id. at 971. 299. Id. 2017] TORT LAW 1481 questions and issues regarding probable cause for the jury to decide.300 The court of appeals also rejected Appellants’ challenge to the sufficiency of the evidence, concluding from the evidence presented, a reasonable jury could have determined Appellants breached their duty of care owed to Zak, and their negligent actions proximately caused her injuries.301 V. INSURANCE A. Negligent Procurement In Schmidt v. Indiana Insurance Co., the Indiana Supreme Court held to302 defeat a negligent procurement claim, evidence must exclude the possibility that other types of insurance coverage for the property could have been obtained and issued.303 Schmidt contacted an insurance agency (Agents) to obtain insurance on property that was “vacant, uninhabitable, undergoing renovation, and intended for rent.” Agents submitted an application for fire insurance on the dwelling,304 but did not disclose the vacancy, condemnation, renovation, or rental status of the property. The insurance company issued a policy on the property based upon305 the application. After a fire destroyed the property, “[T]he insurance company306 denied coverage and exercised its right to rescind the policy” on the basis that it “contained material misrepresentations and false statements about the property.” Schmidt filed a complaint against Agents and the insurance307 company. The trial court granted summary judgment in favor of all defendants;308 Schmidt appealed. The supreme court granted transfer to review Agents’309 summary judgment motion, but affirmed the court of appeals’ grant of summary judgment in the insurance company’s favor.310 Schmidt claimed Agents were negligent in relating the contents of the application for the dwelling fire policy. T he court noted that even though311 Schmidt did not specifically state a claim for negligent procurement in his com plaint, he raised such a claim in response to Agents’ motion for summary judgment, and Agents did not challenge the propriety thereof. Schmidt again312 300. Id. at 972. 301. Id. at 973. 302. 45 N.E.3d 781 (Ind. 2015). 303. Id. at 788. 304. Id. at 783-84. 305. Id. at 784. 306. Id. 307. Id. 308. Id. 309. Id. 310. Id. 311. Id. at 786-87. 312. Id. at 786. 1482 INDIANA LAW REVIEW [Vol. 50:1457 raised the negligent-procurement claim in his appellant’s brief and Agents impliedly consented to litigation of the issue by responding thereto. The court313 thus determined Schmidt had sufficiently asserted a theory of liability based on negligent procurement of insurance.314 Regarding Schmidt’s first claim, the supreme court held summary judgment was appropriate because Schm idt failed to rebut Agents’ evidence showing that Schmidt “suffered no damage because, even if the insurance application had fully disclosed the accurate condition and usage of the property, no dwelling fire policy would have been issued.” Because Schmidt did not designate evidence to the315 contrary, there was no genuine issue of fact regarding proximate causation.316 The court then considered Schmidt’s negligent-procurement claim. “To317 succeed at trial on [a] claim [of] negligent procurement, the plaintiff [must] dem onstrate (1) a duty defendants owed him, (2) a breach of that duty by the defendants, and (3) an injury to him proximately caused by the breach.”318 R egarding this claim, the supreme court held summary judgm ent was inappropriate because the agent “failed to exclude the possibility that other types of fire insurance coverage for the property could have been obtained and issued.”319 B. Conflicting Limitation and Requirement to Get Limits In State Farm M utual Automobile Insurance Co. v. Jakubowicz, the Indiana320 Supreme Court held that where an automobile insurance policy’s three-year limitation period was in direct conflict with a requirement to exhaust liability coverage limits, the policy was ambiguous and should be construed in the insured’s favor.321 The insureds were involved in an automobile accident and suffered substantial injuries. They filed suit against the other driver “seeking damages322 for medical and property dam age payments.” Nearly two and one-half years323 after the accident, they put their own insurer on notice that they would likely pursue an underinsured motorist (UIM ) claim. M ore than three years after the324 accident, the insureds sought leave to amend their complaint to add a U IM claim 313. Id. 314. Id. 315. Id. at 787. 316. Id. at 787-88. 317. Id. at 788. 318. Id. at 785. 319. Id. at 788. 320. 56 N.E.3d 617 (Ind. 2016). 321. Id. at 618. 322. Id. 323. Id. 324. Id. 2017] TORT LAW 1483 against their insurer. The trial court denied the insurer’s motion for summary325 judgment, but the court of appeals reversed, directing entry of summary judgment in favor of the insurer.326 The insured’s automobile insurance policy specified that a UIM claim must be brought within three years of the accident and also required that the insured must fully comply with all provisions of the policy prior to bringing such suit, including exhaustion of the tortfeasor’s policy limits. However, in this case, the327 insured could not both exhaust the torfeasor’s policy limits and file a UIM suit within the three-year limitation period. On transfer, the supreme court328 determined the insurer’s policy provisions were in “direct conflict” and the policy made no exceptions or carve-outs that permitted an insured to file suit before exhausting policy limits. The policy was therefore deemed ambiguous and, as329 such, was construed in favor of the insured. The supreme court held the insurer330 was not entitled to summary judgment.331 C. M alpractice and Disclosure In Bar Plan M utual Insurance Co. v. Likes Law Office, LLC, the court of332 appeals held coverage for an attorney’s alleged malpractice was precluded by the exclusionary provision given the attorney’s failure to disclose probable legal malpractice action in his renewal application.333 Attorney Likes represented a personal injury client against Becker. During334 the pendency of the proceedings, Likes delayed responding to discovery requests. Likes finally submitted responses to the discovery requests one day335 before a court-ordered deadline. Opposing counsel filed a motion for sanctions336 claiming that dismissal of the cause was in order because Likes had provided false and misleading answers to interrogatories and deliberately concealed evidence. Likes did not respond to the motion. A fter a hearing, the court337 338 granted the motion and dismissed the action on M arch 16, 2010. On M arch 29,339 325. Id. 326. Id. at 619. 327. Id. at 620. 328. Id. at 623. 329. Id. at 622. 330. Id. at 623. 331. Id. 332. 44 N.E.3d 1279 (Ind. Ct. App. 2015). 333. Id. at 1292. 334. Id. at 1283. 335. Id. 336. Id. 337. Id. 338. Id. 339. Id. 1484 INDIANA LAW REVIEW [Vol. 50:1457 2011, the court of appeals reversed the trial court’s decision. The losing party340 pursued transfer to the Indiana Supreme Court on April 28, 2011. Likes341 responded to the transfer petition on M ay 17, 2011. On January 18, 2012, the342 supreme court reversed the court of appeals and affirmed the trial court’s decision to dismiss the action.343 Likes was insured under several professional liability insurance policies issued by the bar plan (Bar Plan). Likes submitted a renewal application on344 November 14, 2011. The policy was effective from December 1, 2011 through345 December 1, 2012. Likes did not identify any possible claims against him in his346 renewal application. On November 2, 2012, Likes’ personal injury client filed347 a complaint against Likes for legal malpractice based on the dismissal of the client’s negligence claim. Likes notified Bar Plan of the action, but Bar Plan348 denied coverage and indemnification on the ground that Likes failed to notify it of his potential liability as soon as there was a reasonable basis to believe he had committed acts or omissions that could give rise to a malpractice claim, as required under the policy.349 The court of appeals concluded “Likes was put on notice that Becker was [seeking] an affirmance of the trial court’s dismissal of [the] cause” when the petition for transfer to the supreme court was filed on April 28, 2011.350 Accordingly, when Likes signed his renewal application on November 14, 2011, he “knew or reasonably should have known” of a probable malpractice claim.351 VI. M ISCELLANEOUS A. Defamation In Wartell v. Lee, the court of appeals held although arguably defamatory,352 statements that are generalizations about character, not objectively verifiable, and do not impute misconduct are not defamatory per se.353 Lee, a local businessman, wrote a private letter expressing his concerns about 340. Id. 341. Id. 342. Id. 343. Id. 344. Id. 345. Id. 346. Id. 347. Id. at 1284. 348. Id. at 1283. 349. Id. at 1284. 350. Id. at 1288. 351. Id. 352. 47 N.E.3d 381 (Ind. Ct. App. 2015), trans. denied, 46 N.E.3d 447 (Ind. 2016). 353. Id. at 387-88. 2017] TORT LAW 1485 the request to extend W artell’s term as Chancellor for IPFW . Lee’s letter354 included the following statements, which W artell claims establish defamation per se: “[W artell’s] word not always serving as his bond.” “Too often, with persons in a variety of capacities in a variety of situations, he has broken faith.” “Lack of integrity.” “How can IPFW be the leading force it should be in our community and among our small area universities when too frequently its chancellor’s character is at issue.” “In the past couple of year [sic] it has become clear that significant financial support from foundations and area business will be hard to come by while [W artell] remains as chancellor.” “[W ]e deserve a chancellor with impeccable integrity, the willingness to cooperate with other area universities, and the esteem to inspire complete trust from our business community.”355 In the court’s discussion, it described: “For a statement to be actionable [as defamation per se], it must be clear that it contains objectively verifiable fact regarding the plaintiff. If the speaker is m erely expressing his subjective view, interpretation, or theory, then the statement is not actionable.” M eyer v. Beta Tau House Corp., 31 N.E.3d 501, 515 (Ind. Ct. App. 2015) (emphasis added) (citing Hamilton v. Prewett, 860 N.E.2d 1234, 1243 (Ind. Ct. App. 2007). "In an action for defamation per se, the words used must have defamatory imputation on their face. The circumstances in which the statements were made have no bearing on whether the statements constitute defamation per se." Big Wheel Restaurants, Inc. v. Bronstein, 158 Ind. App. 422, 302 N.E.2d 876, 879 (Ind. Ct. App. 1973) (emphasis added).356 The court determined that Lee’s statements were “vague and not objectively verifiable without referring to extrinsic evidence.” M oreover, the words used357 were not defamatory on their face. Although Lee’s statements were arguably358 defamatory, the court held “the vagueness with which they are stated prevents them from imputing misconduct and rising to the level of defamation per se.”359 In Ali v. Alliance Home H ealth C are, LLC, the court of appeals held: (1)360 a defamation claim fails if specificity is lacking; (2) statements to law361 354. Id. at 383. 355. Id. at 384. 356. Id. at 385. 357. Id. at 387. 358. Id. 359. Id. 360. 53 N.E.3d 420 (Ind. Ct. App. 2016). 361. Id. at 428. 1486 INDIANA LAW REVIEW [Vol. 50:1457 enforcement concerning thefts are subject to the qualified privilege exception to defamation; (3) statements to an insurance company fall under the common-362 interest qualified privilege exception; (4) communications with the Indiana363 State Department of Health and Department of W orkforce Development are expressly protected by statute; and (5) an investigator’s statements that are not364 false are not defamatory.365 Appellant was employed by Alliance as a certified nurse’s aide (CNA) and a certified home health aide (CHHA). One of Alliance’s patients and his wife366 discovered several pieces of jewelry were missing from their home; one of the pieces of missing jewelry was subsequently found in the possession of another patient, who claimed the item of jewelry had replaced a piece of his jewelry that had itself disappeared. An investigation revealed Appellant was the only367 Alliance employee who had worked for both patients during the timeframe pinpointed for the thefts, and Appellant’s employment was therefore term inated. W hen Alliance was asked to provide a reason for Appellant’s368 termination for purposes of unemployment benefits, Alliance responded that the reason was theft. A lliance also contacted the Indiana State Department of369 Health (ISDH) regarding its theft investigation. Following an evidentiary370 hearing, ISDH concluded Appellant had m isappropriated the jewelry from Alliance’s patients and, as a result, revoked her healthcare certifications.371 Appellant “filed a civil action against [Alliance and others (Appellees)], alleging defamation, malicious prosecution, false imprisonment . . . vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress.” The trial court granted summary judgment in favor of all372 Appellees.373 W ith regard to her defamation claim, the court of appeals noted Appellant failed to sufficiently identify which statements were allegedly defamatory; and, although Appellant made several attempts to supplement her argument with specific examples, her claim was still deficient. The court concluded Appellees’374 statements to law enforcement concerning Appellant’s connection to the thefts were subject to the qualified privilege exception, which provides that “communications made to law enforcement to report criminal activity are 362. Id. at 429. 363. Id. 364. Id. at 430. 365. Id. at 431. 366. Id. at 425-26. 367. Id. at 426. 368. Id. 369. Id. 370. Id. 371. Id. 372. Id. at 427. 373. Id. 374. Id. at 428. 2017] TORT LAW 1487 qualifiedly privileged.”375 The court concluded Appellees’ correspondence with its insurance agent were protected by the common-interest qualified privilege because “communication between Alliance and its insurer was a good faith attempt to discern whether the insurer would cover its client’s loss, an issue of common interest to both insurer and insured.” The court also concluded the communications with ISDH and the376 Department of W orkforce D evelopment were expressly protected by statute, and Appellant did not establish that Appellees had ill will or lacked belief in the truth of the findings contained in their report to ISDH. W ith regard to statements377 made by a private investigator hired by Alliance to look into the thefts, the court found such statements were not defamatory because they were not false, and he was “simply reporting” the evidence that led him to his conclusion that Appellant was the perpetrator.378 The court concluded Appellant’s malicious prosecution claim failed because it was the “prosecutor, not Appellees, [who] initiated the [criminal] action” based upon the police investigation that gave rise to a determination of probable cause. Appellant’s false-imprisonment claim is premised upon her assertion379 that she never would have been arrested if Appellees had not provided false information; the court concluded the prosecutor acted on evidence gathered by law enforcement in determining that “probable cause existed to charge [Appellant] with theft,” and Appellant failed to present evidence indicating a malicious or fraudulent motive to rebut the finding of probable cause.380 The court concluded summary judgment was proper on Appellant’s claim of intentional infliction of emotional distress, finding as a matter of law that the manner in which the investigation was handled was reasonable, and the conduct of those involved was not outrageous. Finally, the court held Alliance could not381 be vicariously liable for the private investigator’s conduct because the investigator was not an employee of Alliance.382 B. Wrongful Death In Hoker Trucking, LLC v. R obbins, the court of appeals held under383 Indiana’s General W rongful Death Statute (GW DS), if a decedent is survived384 by a spouse or dependent(s), attorneys’ fees do not qualify as compensatory 375. Id. at 429. 376. Id. at 430. 377. Id. at 430-31. 378. Id. at 431. 379. Id. at 432. 380. Id. at 432-33. 381. Id. at 434. 382. Id. 383. 43 N.E.3d 677 (Ind. Ct. App.), modified on reh’g, 49 N.E.3d 191 (Ind. Ct. App. 2015), trans. denied, 50 N.E.3d 146 (Ind. 2016). 384. See IND. CODE § 34-23-1-1 (2016). 1488 INDIANA LAW REVIEW [Vol. 50:1457 damages and are thus not recoverable; the estate ultimately bears the burden for payment thereof.385 Robbins’s husband was involved in a motor vehicle accident with a tractor- trailer operated by an employee of Hoker Trucking. Robbins’s husband died386 from the injuries suffered in the accident. Just short of two years after the387 accident, Robbins, as her husband’s surviving spouse, filed a wrongful death action against Hoker Trucking. The matter proceeded to trial and concluded388 with a jury verdict in favor of Robbins. Thereafter, Robbins filed a request for389 compensable damages comprising attorneys’ fees and prejudgment interest under the GW DS. The trial court awarded Robbins attorneys’ fees of $2,400,000 and390 prejudgment interest on the jury verdict in the amount of $622,028.11. Hoker391 Trucking appealed.392 T he court of appeals cited the Indiana Supreme Court’s decision in SC I Propane, LLC v. Frederick, in which the Indiana Supreme Court construed the393 language of the GW DS narrowly and concluded in cases where the “decedent is survived by a spouse and/or dependents,” attorneys’ fees do not qualify as damages under the GW DS. The court of appeals reasoned that in such cases,394 attorneys’ fees do not “evolve from a deprivation to a survivor.” This is in395 contrast to a second defined category under the GW DS, i.e., decedents who are not survived by a widow or dependents, wherein the “estate is expressly entitled to recover reasonable attorneys’ fees in ‘prosecuting or comprom ising the action.’” The court reversed the trial court’s order granting Robbins attorneys’396 fees and prejudgment interest.397 On rehearing, the court clarified that the trial court ordered prejudgment interest on the jury verdict only and not on the award of attorneys’ fees. The398 court therefore looked to the prejudgment interest statutes and concluded the399 trial court was permitted, but not required, to grant prejudgment interest on the verdict. After considering the circumstances, the court held the trial court did400 385. Hoker Trucking, 43 N.E.3d at 679. 386. Id. at 678. 387. Id. 388. Id. 389. Id. 390. Id. 391. Id. 392. Id. 393. 39 N.E.3d 675 (Ind. 2015). 394. Hoker Trucking, 43 N.E.3d at 678 (citing SCI Propane, 39 N.E.3d at 681). 395. Id. at 679 (quoting SCI Propane, 39 N.E.3d at 680). 396. Id. at 679 (quoting IND. CODE § 34-23-1-1 (2016)). 397. Id. at 680. 398. Hoker Trucking, LLC v. Robbins, 49 N.E.3d 191, 192 (Ind. Ct. App. 2015), trans. denied, 50 N.E.3d 146 (Ind. 2016). 399. See IND. CODE §§ 34-51-4 to -7 (2016). 400. Hoker Trucking, 49 N.E.3d at 192. 2017] TORT LAW 1489 not abuse its discretion in awarding prejudgment interest on the jury’s verdict and therefore modified its previous decision accordingly.401 In Lomax v. M ichael, the court of appeals held genuine issues of material402 fact existed regarding whether Appellant was a dependent next of kin as required to recover pecuniary damages related to his uncle’s death.403 Decedent was Appellant’s uncle and last living relative on his father’s side of the family. D ecedent had lived with Appellant on and off since Appellant404 was a child and began living with A ppellant on a full-time basis approximately five years before his death. During this time, Decedent contributed financially405 to the household and helped maintain the home. Appellant described his406 relationship with decedent as that of a father and son. Decedent died from407 injuries sustained when the bicycle he was riding was struck by a motorist.408 Appellant “filed a wrongful death action in both an individual capacity and on behalf of the Estate.” Appellant alleged that he was decedent’s “dependent next409 of kin” for purposes of the GW DS.410 The court of appeals noted that a dependent next of kin need not be totally dependent and that the decedent need not have been under a legal obligation to support the next of kin. In light of the evidence that the decedent “regularly411 contributed a significant portion of his m onthly government benefits” to cover household expenses and that such amount was “significant in terms of the costs associated with maintaining [the] household,” the court held questions of fact existed whether Appellant was a dependent next of kin.412 C. Indemnification In In re Indiana State Fair Litigation, the Indiana Supreme Court held413 indemnification, especially when retroactive, cannot be implied from a course of dealing when it is not expressed by clear and unequivocal contract language.414 Over the course of ten years, the parties followed a standard routine whereby M id-America Sound, the provider of equipment and services for concerts, would 401. Id. at 193. 402. 45 N.E.3d 467 (Ind. Ct. App. 2015). 403. Id. at 471. 404. Id. at 468. 405. Id. 406. Id. 407. Id. 408. Id. 409. Id. at 469. 410. Id. 411. Id. at 470-71. 412. Id. at 471. 413. Mid-America Sound Corp. v. Ind. State Fair Comm’n (In re Ind. State Fair Litigation), 49 N.E.3d 545 (Ind. 2016). 414. Id. at 546. 1490 INDIANA LAW REVIEW [Vol. 50:1457 submit a blank voucher form with invoices attached after the conclusion of the fair, and the State Fair Com mission would then verify the invoices and sign the voucher to authorize payment. A fter tragedy struck during a concert at the415 grandstand stage in August 2011, the victims and their families filed lawsuits against numerous defendants. In December 2011, while the lawsuits were still416 pending, M id-America sent the Commission a two-sided invoice for the lease of equipment and services along with a single-sided voucher form. The invoice417 and voucher form covered, in part, the equipment and services that were being provided at the time of the August 2011 accident. M id-America later filed a418 “third-party lawsuit against the Commission, claiming that two sentences located on the back of the December 2011 invoice entitled it to [retroactive] indemnification for its own negligence in relation to the August 2011 [incident].”419 The supreme court noted that Indiana law requires “clear and unequivocal” language in indemnification provisions and that such language is to be strictly construed. The court further observed that retroactive indemnification420 provisions are particularly disfavored. It was undisputed that the indemnity421 language contained in the invoice and voucher form did not expressly extend to losses prior to the invoice date. Nonetheless, M id-America argued that its422 course of dealing with the Commission established such an agreement. T he423 supreme court held because indemnity provisions must be expressed unambiguously— especially when retroactive— they may not be inferred from a course of dealing.424 D. Crime Victim Relief Act In Staggs v. Buxbaum, the court of appeals held liability under the Crime425 Victim Relief Act (CVRA) is examined under a preponderance of the evidence426 standard.427 Staggs completed a Seller’s Residential Real Estate Disclosure Form in which she made material fraudulent misrepresentations about the septic system and 415. Id. at 547. 416. Id. 417. Id. 418. Id. 419. Id. 420. Id. at 548-49. 421. Id. at 550. 422. Id. at 551. 423. Id. at 552. 424. Id. at 554. 425. 60 N.E.3d 238 (Ind. Ct. App.), trans. denied, 62 N.E.3d 1201 (Ind. 2016). 426. IND. CODE § 34-24-3-0.2 to -4 (2016). 427. Staggs, 60 N.E.3d at 246. 2017] TORT LAW 1491 moisture in the basement. Buxbaum purchased the property based in part on428 Staggs’ representations and soon thereafter discovered that there was no septic system and that the basem ent leaked. Buxbaum expended substantial monies429 to remedy the problems and then filed a complaint against Staggs for fraudulent misrepresentation. The trial court found Staggs was liable for fraudulent430 misrepresentation and also awarded Buxbaum treble damages pursuant to the CVRA. In a previous appeal involving these same facts, the court of appeals431 in an unpublished opinion reversed the trial court’s award of treble dam ages432 because the trial court did not make a specific finding of criminal culpability required by Wysocki v. Johnson, which held “[a]n actual criminal conviction433 is not required for recovery [under the CVRA]” to support an award of treble damages. “[A] claimant merely must prove each element of the underlying434 crime by a preponderance of the evidence.”435 On remand in Staggs, the trial court reconsidered the evidence and concluded, by a preponderance of the evidence, Staggs did act in a heinous and criminally culpable manner when she completed her sales disclosure form and made material misrepresentations. Pursuant to the CVRA, the trial court entered an award for436 treble damages in favor of B uxbaum. Staggs appealed, arguing the damages437 award should have been made under a clear and convincing standard, not by a preponderance of the evidence. In the appeal upon remand, the court of appeals438 found no merit to Staggs’s claim, concluding the Indiana Supreme Court’s statem ents in W ysocki made clear that CVRA liability is examined under a preponderance of the evidence standard.439 428. Id. at 240. 429. Id. 430. Id. 431. Id. at 241. 432. Staggs v. Buxbaum, 29 N.E.3d 820, No. 47A01-1406-PL-254, 2015 Ind. App. LEXIS 194 (Ind. Ct. App. Feb. 25, 2015). 433. 18 N.E.3d 600 (Ind. 2014). 434. Id. at 606. 435. Id. 436. 60 N.E.3d at 244. 437. Id. at 248. 438. Id. at 245. 439. Id. at 245-46.