Indiana Law Review INDIANA LAW REVIEW VOLUME 20 1987 The Trustees of Indiana University Copyright © 1987 Indiana Laiv Review Volume 20 1987 Editor-in-Chief Gayle Reindl Executive Editors Articles and Production John Joseph Tanner Notes and Topics Richard Allen Kempf Don Anderson Elaine M. Chaney Articles Editors Ronald d'Avis Mary Dreyer Victoria J. Kincke Business Editor Barbara Arnold Harcourt Note and Development Editors Denise Clare Andresen Laura S. Reed Joseph Wayne Foye Carla Cowles van Dongen James C. McKinley James E. Utterback Associate Timothy Shawn Durham Mark Eiler Flexter Paul D. Fredrick John R. Gaskin Thomas R. Haley III Alan D. Hutchinson James D. Johnson Lori F. Kaplan Cheryl Knodle Kathleen Pollock Mills Editors Scott S. Morrisson Lannette J. Moutos Jeffrey James Neal Reed S. Oslan Scot W. Overdorf Nana M. Quay-Smith Marcia Cox Templeton Linda Walker Judy L. Woods Christopher B. Young Editorial Assistant Amy Morrison Grubbs Faculty Advisor Paul J. Galanti MAY 2 21987 I uBmf Periodical Co/lection Volume 20 No. 1 1987 Dedication Gerald L. Bepko 1986 SURVEY OF RECENT DEVELOPMENTS IN INDIANA LAW Contributors to This Issue Susan Burke Mary Beth Claus Debra A. Falender Kenneth J. Falk Donna H. Fisher Joseph M. Forte Paul J. Galanti Steven K. Huffer Andrew W. Hull Donald L. Jackson Lynn Brundage Jongleux Edward A. Keirn J.B. King Walter W. Krieger Kathleen Givens Lucas Roger L. Pardieck Cathleen J. Perry David M. Powlen Edwin J. Simcox Susan Stuart David L. Swider Lawrence P. Wilkins LW REVIHAS Search thousands of law review and bar journal articles effortlessly on WESTLAW! It's like having a staff of experts always at your command. Tb answer your questions on taxation. Business Regulation. Bankruptcy. Securities. And more!ON WESILW! Find relevant articles instantly Search the full text of articles using descriptive words, titles, author's names or any combination. DAVID w. 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Wa.shington, D.C. 20037 Please enter my subscription to the INDIANA LAW REVIEW NAME ADDRESS Enclosed is $ Bill me for _ Mail to: for subscriptions. subscriptions. INDIANA LAW REVIEW INDIANA UNIVERSITY SCHOOL OF LAW -INDIANAPOLIS 735 West New York Street Indianapolis, Indiana 46202 Subscription Rates (one year): Regular, $18.00; Foreign, $21.50; Survey, $10.00; Single Issue, $5.00 Indiana Law Revieiiv Philosophy, Jurisprudence, and Jurisprudential Temperament of Federal Judges Hon. Ruggero J. Aldisert Legal Issues Involved in Private Sector Medical Testing of Job Applicants and Employees Leland B. Cross, Jr. Douglas Craig Haney Indiana's Living Wills and Life-Prolonging Procedures Act: A Reform Proposal Carol Ann Mooney Coming in Volume 20, No. 2, to be available Summer 1987 Price $5.00 Send orders to Indiana Law Review Indiana University School of Law—Indianapolis 735 W. New York Street, Indianapolis, Indiana 46202 The Board of Editors of the Indiana Law Review expresses its appreciation to Professor Thomas Allington for his invaluable production assistance. Indiana Laifv Revieiv Volume 20 1987 Number 1 Copyright © 1987 by the Trustees of Indiana University TABLE OF CONTENTS Dedication—Gerald L. Bepko x I. Administrative Law A. Administrative Adjudication—Revised and Recodified Kathleen Givens Lucas 1 II. Business and Commercial Law A. Developments in Business Association Law Paul J. Galanti 19 B. Article 9 of the Indiana Uniform Commercial C( e in Transition Edward A. Kelrn 61 C. Indiana's Uniform Commercial Code: Recent Developments David M. Powlen Edward A. Keirn 87 D. The Indiana Business Corporation Law: Tool For Flex- ibility, Simplicity and Uniformity ...Edwin J. Simcox 119 III. Civil Procedure A. Amendments Curing Defendant Misnomers Under Trial Rule 15(C): A Bright Line Test of Prejudice for Relation Back? Steven K. Buffer 139 B. Attorney's Fees for Frivolous, Unreasonable or Groundless Litigation Andrew W. Hull 151 IV. Evidence A. Indiana's Statutory Provisions for Alternative Testimony in Child Sex Abuse Cases: Is It Live or Is It Memorex? Susan Burke 161 B. Evidentiary Use of Other Crime Evidence: A Survey of Recent Trends in Criminal Procedure Susan Stuart 183 Volume 20 Winter 1987 Number 1 The INDIANA LAW REVIEW (ISSN 0090-4198) is the property of Indiana University and is published quarterly by the Indiana University School of Law—Indianapolis, which assumes complete editorial responsibility thereof. Subscription rates: one year $18.00; foreign $21.50. Please notify us one month in advance of any change in address and include both old and new addresses with zip codes to ensure delivery of all issues. Send all correspondence to Editorial Assistant, Indiana Law Review, Indiana University School of Law—Indianapolis, 735 West New York Street, Indianapolis, Indiana 46202. Publication office: 735 West New York Street, Indianapolis, Indiana 46202. Second class postage paid at Indianapolis, Indiana 46201. POSTMASTER: Send address changes to INDIANA LAW REVIEW, 735 West New York Street, Indianapolis, Indiana 46202. V. Family Law A. Family Law: Equitable Distribution and Proper Valua- tion of Marital Property Mary Beth Claus Cathleen J. Perry 211 VL Insurance Law A. Developments in Insurance Law: Agents' and Brokers' Liability Donna H. Fisher 23 1 VIL Labor Law A. Developments in Employment Discrimination Law Lynn Brundage Jongleux 243 B. Recent NLRB Developments ....... .David L. Swider 259 VIIL Professional Responsibility and Liability A. Developments in Professional Liability Law .Donald L. Jackson 281 IX. Property and Estates A. Claims By and Against Decedents' Estates Debra A. Falender 289 B. Developments in Property Law .... Walter W. Krieger 305 X. Public Welfare and Social Security A. Recent Developments Under the Social Security Act Kenneth J. Falk 345 XL Taxation A. Some Very Significant Developments in Indiana Taxation J.B. King 361 XII. Torts and Products Liability A. The Disappearing Rights of Plaintiffs Under a Legal Disability Roger L. Pardieck 385 B. A Multi-Perspective Critique of Indiana's Legislative Abrogation of the Collateral Source Rule Lawrence P. Wilkins 399 XIII. Workmen's Compensation A. New Developments in Workmen's Compensation Law: Accident Defined and New Thoughts on Crediting Joseph M. Forte 437 Indiana l^a^v Revieiv Volume 20 1987 Editor-in-Chief Gayle Reindl Executive Editors Articles and Production Notes and Topics John Joseph Tanner Richard Allen Kempf Articles Editors Don Anderson Ronald d'Avis Elaine M. Chaney Mary Dreyer Victoria J. Kincke Business Editor Barbara Arnold Harcourt Note and Development Editors Denise Clare Andresen Laura S. Reed Joseph Wayne Foye Carla Cowles van Dongen James C. McKinley James E. Utterback Associate Editors Timothy Shawn Durham Scott S. Morrisson Mark Eiler Flexter Lannette J. Moutos Paul D. Fredrick Jeffrey James Neal John R. Gaskin Reed S. Oslan Thomas R. Haley III Scot W. Overdorf Alan D. Hutchinson Nana M. Quay-Smith James D. Johnson Marcia Cox Templeton Lori F. Kaplan Linda Walker Cheryl Knodle Judy L. Woods Kathleen Pollock Mills Christopher B. Young Editorial Assistant Amy Morrison Grubbs Faculty Advisor Paul J. Galanti Indiana University School of Law—Indianapolis 1986-87 ADMINISTRATIVE OFFICERS AND FACULTY Administrative Officers John W. Ryan, Ph.D., President of the University Gerald L. Bepko, L.L.M., Vice-President Jeffrey W. Grove, J.D., Acting Dean James F. Bindley, J.D., Assistant Dean for Administration G. Kent Frandsen, J.D., Associate Dean for Student Affairs James W. Torke, J.D., Associate Dean for Academic Affairs Faculty Thomas B. Allington, Professor. B.S., University of Nebraska, 1964; J.D., 1966; LL.M., New York University, 1971. Edward P. Archer, Professor. B.M.E., Rensselaer Polytechnic Institute, 1958; J.D., Georgetown University, 1962; LL.M., 1964. James F. Bailey, III., Associate Professor and Director of Law Library. A.B., University of Michigan, 1961; J.D., 1964; M.A.L.S., 1970. James F. Bindley, Assistant Dean for Administration and Director of Placement & Develop- ment, B.A., Loyola University, 1969; J.D., University of Kentucky, 1972. Paul N. Cox, Professor. B.S., Utah State University, 1971; J.D., University of Utah, 1974; LL.M., University of Virginia, 1980. Clyde Harrison Crockett, Professor. A.B., University of Texas, 1962; J.D., 1965; LL.M., University of London (The London School of Economics and Political Science), 1972. Debra a. Falender, Professor. A.B., Mount Holyoke College, 1970; J.D., Indiana Univer- sity, 1975. G. K.B^T:VRA^YysB^ , Associate Deanfor Student Affairs andAssociate Professor. B.S., Bradley University, 1950; J.D., Indiana University, 1965. David A. Funk, Professor. A.B., College of Wooster, 1949; J.D., Case Western Reserve Univer- sity, 1951; M.A., The Ohio State University 1968; LL.M., Case Western Reserve Univer- sity, 1972; LL.M., Columbia University, 1973. Paul J. Galanti, Professor. A.B., Bowdoin College, 1960; J.D., University of Chicago, 1963. Helen P. Garfield, Professor. B.S.J., Northwestern University, 1945; J. D., University ofCol- orado, 1967. Harold Greenberg, Associate Professor. A.B., Temple University, 1959; J.D., University of Pennsylvania, 1962. Jeffrey W. Grove, Acting Dean. A.B., Juniata College, 1965; J.D., George Washington University, 1969. William F. Harvey, CarlM. Gray Professor ofLaw. A. B., University ofMissouri, 1954; J. D., Georgetown University, 1959; LL.M., 1961. W. William Hodes, Professor. A.B., Harvard College 1966; J.D., Rutgers Newark, 1969. Lawrence A. Jegen, III., Thomas F. Sheehan Professor of Tax Law and Policy, 1982. A.B., Beloit College, 1956; J.D., The University of Michigan 1959; M.B.A., 1960, LL.M., New York University, 1963. Henry C. Karlson, Professor. A.B., University of Illinois, 1965; J.D., 1968; LL.M., 1977. William Andrew Kerr, Professor. A.B., West Virginia University, 1955. J.D., 1957, LL.M., Harvard University, 1958; B.D., Duke University, 1968. Eleanor D. Kinney, Assistant Professor. A.B., Duke University, 1969; M.A., University of Chicago, 1970; J.D., Duke University, 1973. Walter W. Krieger, Associate Professor. A.B., Bellarmine College, 1959; J.D., University of Louisville, 1962; LL.M., George Washington University, 1969. David P. Leonard, Associate Professor. B.A., University of California at San Diego, 1974; J.D., UCLA School of Law, 1977. Robin Paul Malloy, Assistant Professor. B.S., Purdue University, 1971; J.D., University of Florida, 1980; LL.M., University of Illinois, 1983. William E. Marsh, Professor. B.S., University of Nebraska, 1965; J.D., 1958. SusANAH M. Mead, Associate Professor. B.A., Smith College, 1969; J.D., Indiana University, 1976. Mary H. Mitchell, Associate Professor. A.B., Butler University, 1975; J.D., Cornell Law School, 1978. David R. Papke, Associate Professor. A.B., Harvard College, 1969; J.D., Yale Law School, 1973; M.A. in American Studies, Yale University, 1973; M. Phil., in American Studies, The University of Michigan, 1980; Ph.D., 1983. Ronald W. Polston, Professor. B.S., Eastern Illinois University, 1953; LL.B., University of Illinois, 1958. Kenneth M. Stroud, Professor. A.B., Indiana University, 1958; J.D., 1961 . James W. Torke, Acting Associate Dean. B.S., University of Wisconsin, 1963; J.D., 1968. Joe a. Tucker, Assistant Professor, B.A., Houston, 1977; J.D., University of Texas, 1981. James Patrick White, Professor ofLaw. A.B., University of Iowa, 1953; J.D., 1956; LL.M., George Washington University, 1959. Lawrence P. Wilkins, Professor. B.A., The Ohio State University, 1968; J.D., Capital Univer- sity Law School, 1973; LL.M., University of Texas School of Law, 1974. Mary Wolf, Visiting Assistant Professor ofLaw, B.A., Saint Xavier College, 1969; J. D., Univer- sity of Iowa College of Law, 1974. Harold R. Woodard, Professorial Lecturer. B.S., Harvard University, 1933; J.D., 1936. Emeriti Agnes P. Barrett, Associate Professor Emeritus. B.S., Indiana University, 1942; J.D., 1964. Cleon H. Foust, Professor Emeritus. A.B., Wabash College, 1928; J.D., University ofArizona, 1933. John S. Grimes, Professor of Jurisprudence Emeritus. A.B., Indiana University. 1929; J.D., 1931. Melvin C. Poland, Cleon H. Foust Professor ofLaw Emeritus, B.S. Kansas State University, 1940; LL.B., Washburn University, 1949; LL.M., The University of Michigan, 1950. R. Bruce Townsend, Cleon H. Foust Professor of Law Emeritus, A.B., Coe College, 1938; J.D., University of Iowa, 1940. Legal Writing Instructors Jeffrey Been, A.B., Wabash College, 1981; J.D., Indiana University, 1984. Michael Mullett, Lecturer. B.A., University of Michigan, 1966; M.A., 1973; J.D., Indiana University, 1982. Vickie Renfrow, Lecturer. B.A., University of Northern Iowa, 1970; M.A., 1971; Ph.D., Indiana University, Bloomington, 1976; J.D., Indiana University, Bloomington, 1981. Joan Ruhtenberg, Lecturer. B.A., Mississippi University for Women, 1959; J.D., Indiana University, 1980. Law Library Staff Terri Lea Hardin, Affiliate Librarian, B.A., Indiana University, 1982; M.L.S., 1983. Mary P. Hudson, Assistant Librarian, B.A., Ball State, 1969; M.L.S., Indiana Universtiy, 1973. Wendell E. Johnting, Technical Services Librarian. A.B., Taylor University, 1974; M.L.S., Indiana University, 1975. Constance Matts, Associate Librarian. B.A., 1973, Case Western Reserve University; M.S.L.S., 1974, Case Western Reserve University; M.A.I.R., 1976, Creighton University. KiyoshiOtsv, Assistant Librarian, Parkland College, A.A., 1976; A. B., University ofIllinois, 1980; M.S., 1982; C.A.S., 1983. .^V^'^ . \^ ^^^~ ^•4^ '-4K %-%J *7^^ V tX^. *, 9 *i Gerald L. Bepko DEDICATION I am honored to have been asked to comment on the significance of Gerald Bepko's appointment to the position of Vice President of Indiana University-Purdue University at Indianapolis. His selection to this post is a source of great enthusiasm and deep satisfaction for all who sense the importance of this excellent university. Two days after being asked to write this dedication, I came across an ancient dispute resolution technique, the shadows of which sometimes reappear during heated moments in federal court. The information came to me while I was helping our sixth-grader review for a test in social studies. It seems that the early Eskimos, who were indeed wise in prizing self-control while simultaneously allowing the world to ventilate, developed a process referred to as "name-caUing." When two people were in dispute, the tribe set up a contest in which the two faced off and were encouraged to be as foul-mouthed to one another as was humanly possible. (Imagine the partisan cheering on the sidelines!) This barrage of abuse went on until the crucial, telhng mo- ment: when one of the participants finally grew red-hot and lost his temper. The price of such loss of self-control was vanquishment: the one who lost control lost the contest. This dedication assignment and that piece of historical information miraculously coincided, allowing me to find a beginning for this assess- ment of Jerry's unique gifts, which hold so much promise for the Univer- sity. I'll begin by observing that Jerry would have been a good Eskimo. In all my experience, I have never known him to lose his temper. That capacity will probably prove to be more significant in terms of his ultimate success as a university administrator than anything else. Jerry's ability to undergo great provocation without losing either perspective or control is related to a number of other aspects in his character. There is, first of all, a twinkle in him, a droll, self-effacing wit that is wonderfully easy and wonderfully understated. But there is also in that wit a certain quickness, like the flash of gold discreetly hid- den, which signifies a mind ready to communicate fully and efficiently without trekking through endless details. Jerry is not only humorous, he is also fully alert, and it is that alertness which informs his political in- stincts so adroitly and enables him to foster collegiality among the faculty and cooperation in the community. He perceives and knows how to merge and mobilize various factions, and he knows instinctively how to manuever XI this already great institution, whose leadership he has assumed, toward even more noble accomplishment. Jerry's abilities don't end with his adeptness at mobilizing people and at tapping into their potentialities for the good of the University. He re- mains, on a personal basis, both sensitive and loyal. While he is very good at getting people to help the University, he is also a genuinely nice person. His upbeat, contagious enthusiasm makes you want to sign on to help. People wound up wanting to give their services to the Indianapolis Law School because they wanted to do right by Dean Bepko. I know, because I have many times myself been the subject of his appeals to speak, to do seminars and committee work and so forth. But even when you're being enlisted in such projects, Jerry has a masterful touch: first, he does not exploit those who would help; second, he does not push willing helpers into areas in which they have no legitimate background or business; and third, he senses when he might be coming to the well once too often; he is careful not to cross that fine line beyoild which he risks asking too much. At a time when the fortunes of the Indianapolis campus and the city of Indianapolis are closely intertwined, and when the University can pro- fit richly by drawing upon civic expertise and leadership throughout In- dianapolis, this level of prudent regard for individuals is essential. It pro- mises to the University that inestimable gift: lasting goodwill. In canvassing Jerry's extraordinary fitness for his new appointment, I must mention another trait which I think stands at the center of his ability to mobilize people: his personal modesty. Jerry is not a flashy man, and the lights of his ego are toned down enough to let others do most of the shining. And just as human beings almost instinctively attack and seek to bring down the flashy egotist, so they are moved in some inner way to augment and assist the soul who is modest. Jerry's modesty draws people to him, and through him, to the University, and ail this gives him great potential to serve the cause of education. Many of the characteristics which we see so clearly in Jerry — his easy self-control, his sensitivity to others, his prudence, modesty, and self- effacing wit — are each traits which point in a certain direction. They add up to a superior sense of human balance which we sometimes call detachment, and which leads a human being to levels of objectivity and clarity that, when possessed by persons in public life, serve everyone's interest. One final word: Some will not be aware that in his past, Jerry Bepko was for a time an FBI agent. I suppose there are a few who would find in that a flaw, undervaluing the high sense of justice that motivates most, though, of course, not all, agents. As for myself having been a United States Attorney and an assistant United States Attorney and having put together many cases with a variety of agents, I have come to know that Xll the best agents exemplily that same persistence, discretion, loyalty, and balance that are Jerry's mark as well. I have always thought I would Uke to have had the opportunity to try a case with Jerry on my side. In the larger sense, I know now that I have gotten my wish. The Honorable Sarah Evans Barker Judge, United States District Court Indianapohs Xlll