Indiana Law Review C . c^ Review Periodical CAlleci'on Volume 22 No. 1 1989 1989 SURVEY OF RECENT DEVELOPMENTS IN INDIANA LAW Contributors to This Issue David M. Berry Donald Clementson-Mohr Jeffrey A. Cooke Leland B. Cross, Jr. Ronald d'Avis Francina a. Dlouhy Robert A. Fanning Monica Foster Norman T. Funk Paul J. Galanti Harold Greenberg Douglas Craig Haney William Hurst Walter W. Krieger John R. Maley Jerald L. Miller Gale M. Phelps Richard Pitts Peter M. Racher Martin E. Risacher Michael Rosiello Thomas R. Ruge Michael G. Ruppert Larry J. Stroble Susan Stuart John R. Talley John C. Trimble Ronald V. Weisenberger LW REVIEM 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! DALE A CHRIST ESQ ^^^ rcWant artlcfes instantly. 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INDIANA LAW REVIEW INDIANA UNIVERSITY SCHOOL OF LAW -INDIANAPOLIS 735 West New York Street Indianapolis, Indiana 46202 Subscription Rates (one year): Regular, $22; Foreign, $25; Survey, $15; Single Issue, $7 Indiana Laifv Reviei^ Volume 22 1989 Number 1 Copyright © 1989 by the Trustees of Indiana University TABLE OF CONTENTS Dedication—G. Kent Frandsen i I. Administrative Law A. McClanahan v. Remington Freight Lines, Inc. : Making a Mountain Out of a Molehill Richard Pitts Susan Stuart 1 II. Business and Commercial Law A. Indiana Revised Uniform Limited Partnership Act Paul J. Galanti 27 B. The Indiana Motor Vehicle Protection Act of 1988: The Real Thing for Sweetening the Lemon or Merely a Weak Artifical Sweetener? Harold Greenberg 57 III. Civil Procedure A. Developments in Federal Civil Practice Affecting Indiana Practitioners: Survey of Supreme Court, Seventh Circuit, and Indiana District Court Opinions John R. Maley 103 B. Discoverability of Privileged Physician-Patient and Peer Review Communications: Not What the Doctor Ordered Peter M. Racher 151 IV. Criminal Law A. Recent Developments Affecting the Criminal Procedure in Indiana Monica Foster 163 V. Evidence A. Survey of Recent Developments in the Indiana Law of Evidence Norman T. Funk 181 VI. Family Law A. The New Indiana Child Support Guidelines Gale M. Phelps Jerald L. Miller 203 VII. Insurance Law A. Insurance Law John C. Trimble 229 VIII. Labor Law A. Developments in Indiana Employment Law Leland B. Cross, Jr. Douglas Craig Haney 249 IX. Products Liability A. Survey of Indiana Products Liability Cases: 1987-88 Michael Rosiello Ronald V. Weisenberger 263 X. Professional Responsibility and Liability A. Frivolous, Unreasonable or Groundless Ligitation: What Shall the Standard Be for Awarding Attorney's Fees? Donald Clementson-Mohr Jeffrey A. Cooke 299 B. Professional Responsibility Martin E. Risacher 313 XL Property and Estates A. Indiana's New Guardianship Code: A New Emphasis on Alternative Forms of Protection. . .David M. Berry 335 B. Survey of Indiana Property Law Walter W. Krieger 369 XII. Public Welfare and Social Security A. Developments in Social Security Law Michael G. Ruppert 401 XIII. Tax Law A. Selected Current Topics in Indiana Taxation Francina A. Dlouhy 419 B. Current Issues Affecting Indiana Tax Policy Larry J. Stroble Ronald d'Avis 449 XIV. Tort Law A. The Dram Shop: Closing Pandora's BoxWilliam Hurst 487 B. A Survey of Indiana Tort Law .... Michael Rosiello John R. Talley 503 C. Medical Malpractice Thomas R. Ruge 535 XV. Worker's Compensation A. Worker's Compensation Robert A. Fanning 553 Volume 22 1989 Number 1 The INDIANA LAW REVIEW (ISSN 0090^198) is the property of Indiana University and is published quarterly by the Indiana University School of Law—Indianapdis, which assumes complete editorial responsibility thereof. Subscription rates: one year $22; foreign $25. 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, Inndiana 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. Indiana La^v Revieiv Volume 22 1989 Editor-in-Chief Robert G. Solloway Executive Editors Articles and Production Notes and Topics Carol Kirk Katharine Liell Polito Articles Editors Rebecca S. Bowman Madonna F. McGrath Debra Linn Burns Peggy J. Naile Cynthia Pearson Purvis Business Editor and Survey Coordinator Robert Davis Note Development Editors Bruce J. Alvarado Catherine A. Kling Douglas E. Cressler Olivia A. Napariu Karen Glasser Deane Douglas K. Norman Associate Editors Rene F. Barnard Kisti L. Good Carolyn A. Bielefeld Barbara E. Lollar Raymond Charles Bowyer Karen R. McClure Thomas A. Brodnik Deborah B. Noah Gary L. Chapman Paul F. Reidy L.S. John Ciecimirski Mara J. Snyder Jane A. B. Eppink Clare M. Sproule Brian S. Fennerty Darlene M. Stephens E. Scott Treadway Editorial Assistant Amy Morrison Grubbs Faculty Advisor Paul J. Galanti Indiana University School of Law—Indianapolis 1988-89 ADMINISTRATIVE OFFICERS AND FACULTY Administrative Officers Thomas M. Ehrlich, LL.B., President of the University Gerald L. Bepko, LL.M., Vice-President Norman Lefstein, LL.B., Dean James F. Bindley, J.D., Assistant Dean for Administration Debra a. Falender, J.D., Acting Assistant Dean of Administration Lawrence P. Wilkins, LL.M., 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., Gerogetown University, 1962; LL.M., 1964. James F. Bailey, III., Professor and Director of Law Library. A.B., University of Michigan, 1961; J.D., 1964; M.A.L.S., 1970. Gerald L. Bepko, Vice President and Professor. B.S., Northern Illinois University, 1962; J.D., IIT/Chicago-Kent College of Law, 1965; LL.M., Yale University, 1972. 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, 1972; 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 University, 1975. David A. Funk, Professor. A.B., College of Wooster, 1949; J.D., Case Western Reserve University, 1951; M.A., The Ohio State University 1968; LL.M., Case Western Reserve University, 1972; LL.M., Columbia University, 1973. Paltl J. Galanti, Professor. A.B., Bowdoin College, 1960; J.D., University of Chicago, 1963. Helen P. Garfeeld, Professor. B.S.J. , Northwestern University, 1945; J.D., University of Colorado, 1967. Harold Greenberg, Associate Professor. A.B., Temple University, 1959; J.D., University of Pennsylvania, 1962. Jeffrey W. Grove, Professor. A.B., Juniata College, 1965; J.D., George Washington Univer- sity, 1969. William F. Harvey, Carl M. Gray Professor of Law. A.B., University of Missouri, 1954; J.D., Georgetown University, 1959; LL.M., 1961. Paul T. Hayden, Assistant Professor. B.A., Yale University, 1979; J.D., University of California, Los Angeles, 1984. W. WiLLLVM HoDES, Profcssor. A.B., Harvard College, 1966; J.D., Rugters Newark, 1969. Lawrence A. Jegen, IIL, 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., Harvard 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; D.B., Duke University, 1968. Eleanor D. Kinney, Assistant Professor. A.B., Duke Universty, 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. Norman Lefstein,v Dean and Professor. LL.B., University of Illinois, 1961; LL.M., Georgetown University, 1964. David P. Leonard, Professor. B.A., University of California at San Diego, 1974; J.D., UCLA School of Law, 1977. WiLLLy^ 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; Ph.D., in American Studies, The University of Michigan, 1984. Ronald W. Voi^stoh, 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, Professor. 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. Welkins, Professor. B.A., The Ohio State University, 1968; J.D., Capital University Law School, 1973; LL.M., University of Texas School of Law, 1974. Mary Wolf, Assistant Professor. B.A., Saint Xavier College, 1969; J.D., University of Iowa College of Law, 1974. 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 of Arizona, 1933. John S. Grimes, Professor of Jurisprudence Emeritus. A.B., Indiana University. 1929; J.D., 1931. Melvin C. Poland, Cleon H Foust Professor of Law 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 Cynthla. Adams, B.A., Indiana State University, 1976; B.A., Kentucky Wesleyan College, 1977; J.D., Indiana University, 1983. Robert L. Ellis, B.A., Ohio State University, 1971; J.D., Antioch School of Law, 1981. 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, Director of Legal Writing. B.A., Mississippi University Women, 1959; J.D., Indiana University, 1980. Law Library Staff Mary P. Hudson, Assistant Librarian, B.A., Ball State, 1979; M.L.S., Indiana University, 1973. Wendell F. Johnting, Technical Services Librarian, A.B., Taylor University, 1974; M.L.S., Indiana University, 1975. IOyoski Otsu, Assistant Librarian, Parkland College, A.A., 1976; A.B., University of Illinois, 1980; M.S., 1982; C.A.S., 1983. Terri L. Ross, Assistant Librarian, B.A., Indiana University, 1982; M.L.S., 1983. Merlin P. Whiteman, Readers' Services Librarian, B.A., Hope College, 1973; M.L.S., In- diana University, 1974; J.D., 1982. Dedication G. Kent Frandsen 1927-1988 Associate Dean for Student Affairs and Associate Professor of Law Indiana University School of Law—Indianapolis G. Kent Frandsen, Associate Dean for Student Affairs and Associate Professor of Law at Indiana University School of Law—Indianapolis, died November 16, 1988, at his home in Lebanon. The sudden illness that took his hfe felled a central figure in the modem history of the legal profes- sion in this state. In 1965, Kent began his career as legal educator and law school ad- ministrator by accepting an appointment as Assistant to the Dean and Associate Professor of Law at the Indiana University School of Law — Indianapolis Division. Over the twenty-three years of his service in those capacities, his commitment to the mission of the School of Law remained total and steadfast. That commitment involved him in a great variety of tasks but all of his efforts were informed by his primary duty to serve students. Known by thousands of students over the years simply as ''The Dean," he directed recruitment, admissions, registration, financial aid, counselling, and placement. For a brief stint, he served as Acting Dean of the School of Law to ease the transition between two of the seven Deans he served. He especially enjoyed his function as Marshal at the annual Commencement exercises and took great pride in leading the pro- cession of faculty and students at the School of Law Hooding Ceremony. Each year at these proceedings, as Kent read the roll of graduates, he bestowed on one surprised student the new middle name of ''Cardozo," as much a public tribute to the student as to the great judge of that name. Kent taught courses in Insurance Law and Professional Responsibility and his students were quick to recognize his classroom talents. In 1969, they awarded him the student prize for outstanding teaching, the "Black Cane," the first time that award was conferred. He took great interest in students as individuals and his door was always open to them. Although the entrants sometimes knew they might not like the Dean's advice, they could always be confident that it was honest, unequivocal, and from the heart. His student showed their affection for him by renaming the annual School of Law golf tournament in his honor. He returned their affection in many ways—from witnessing their swearing-in ceremonies to helping them out of his own pocket, from conferring sometimes blustery advice to bragging about their bar exam performances. His reputation as a stalwart of the School of Law rests upon his unswerving, uncomplicated, passionate, humane desire to help his charges realize their ambitions. The fires of his life burned brightest when the odds against success for the student were highest. Many are the tributes from successful attorneys around the state who acknowledge that Dean Frandsen was instrumental in creating or preserving opportunities for them when they thought their cause was lost. The high regard his professional colleagues and former students held for him was evidenced in 1983 when he was honored as the Law School's Distinguished Alumnus. In 1984, the graduating class honored him by creating a permanent scholarship fund in his name. That fund will stand as a prominent and lasting tribute to Kent and to the work he most enjoyed. He served the School of Law in many other capacities as well. He was the representative for the School on the Law School Admissions Coun- cil and was a member of the Indianapolis Bar Association Committee on Liaison with Law Schools. He has even been seen on several occasions sorting the mail for the Law Faculty on days when the staff were observing a University holiday. In many other ways, Kent quietly and without notice served his fellow human beings. Kent Frandsen' s service to the University, the state, and the profession extended well beyond the walls of the School of Law. He annually served on University student recruitment and retention committees, financial aid, scholarship, and fellowship committees, and the Student Advisory Council. He participated as author and lecturer in many continuing legal education seminars, often banging away at a typewriter in his two-fingered style, after hours, doing the notes and manuscripts. In 1970, he was appointed by the Governor to the Indiana Criminal Law Study Commission, where he chaired the subsection on Organized Crime which formulated three proposals enacted into law by the General Assembly in 1980. He also chaired the Medical and Legal Committee of the Marion County Medical Society and the Indianapolis Bar Association. In 1969, while on leave from the University, he served as Chief Staff Counsel in the office of the In- diana Attorney General. From 1970 to 1980, he served as a City Judge in Lebanon in his spare time. His life marked the dimensions of a happy chapter in the development of the School of Law which spanned three decades. His death marks the passage of what must be known, when the history of the School of Law is written, as The Frandsen Era. Lawrence P. Wilkins Associate Dean for Academic Affairs and Professor of Law Jeffrey W. Grove Professor of Law James W. Torke Professor of Law 11