Indiana Law Review


Recent Developments in Indiana Tort Law

Timothy C. Caress*
Marie Troendle Greer*

Introduction

This Article surveys the most significant developments in Indiana tort law

from October 1, 2001, through September 30, 2002. The Article has been
confined solely to the review of court decisions, as the legislature did not enact

any legislation that made significant changes affecting tort law during the survey
period.

I. Medical Malpractice

A. Statute ofLimitations

In Shah v. Harris,
1

the Indiana Court ofAppeals considered under what facts

and circumstances Indiana's "occurrence-based" medical malpractice statute of

limitations could be applied as a "discovery-based" statute of limitations. The
facts of this case were undisputed.

2
In July of 1991, Dr. Kirit C. Shah ("Dr.

Shah") diagnosed Stan Harris ("Harris") with multiple sclerosis.
3
Further, Harris

ended his patient-physician relationship on April 12, 1993, when Dr. Shah moved
out of the area.

4
In July 1998, another one of Harris' physicians "allegedly

correctly diagnosed his illness as a vitamin B- 1 2 deficiency, rather than multiple

sclerosis."
5

This diagnosis came approximately seven years after Dr. Shan's
diagnosis, and approximately five years after Harris and Dr. Shah had ended their

patient-physician relationship.
6 On July 24, 2000, Harris and his wife Nancy

Harris (the "Harrises") filed a proposed medical malpractice complaint with the

Indiana Department ofInsurance, and thereafter a complaint with the trial court.
7

Thereafter, Dr. Shah filed a motion for summaryjudgment, which was denied by
the trial court, and an appeal was taken to the Indiana Court of Appeals.

8

On appeal, the court first noted that under the Indiana statute of limitations
for medical malpractice, a malpractice claim "may not be brought against a

* Partner, Cline Farrell Christie Lee & Caress, Indianapolis, Indiana; B.A., 1 991 , Indiana
University; J.D., summa cum laude, 1994, Indiana University School of Law—Indianapolis. The
author wishes to express his gratitude for the significant assistance and contributions provided by

Craig Blanchet and Christopher Dubes in the preparation of this survey article.
* * Associate, Cline Farrell Christie Lee & Caress, Indianapolis, Indiana; B.A., cum laude,

1993, Marian College; J.D., 1997, Southern Illinois University.

1

.

758 N.E.2d 953 (Ind. Ct. App. 2001).

2. Id. at 958.

3. Id.

4. Id.

5. Id.

6. Id.

7. Mat 954.
8. Id



1 304 INDIANA LAW REVIEW [Vol. 36: 1 303

health care provider based upon professional service or health care that was
provided . . . unless the claim is filed within two (2) years after the date of the
alleged act, omission, or neglect

"9
The court further noted that this statute

of limitations had "been upheld as constitutional when applied to all plaintiffs
able to discover the alleged malpractice and injury within two years from the
occurrence."

10 To the contrary, the court explained that, as provided by the
Indiana Supreme Court in Martin v. Rickey and Van Dusen v. Stotts, "under
Article I, Sections 12 and 23 ofthe Indiana Constitution, the two year statute of
limitations applicable to medical malpractice claims is unconstitutional as

applied to plaintiffs . . ., who could not have discovered the injury with
reasonable diligence within the two years of the alleged misconduct." 11

Additionally, the court provided that in order to qualify under the exception to

the "occurrence-based" medical malpractice statute of limitations, a plaintiff

must have had "'no information that, in the exercise of reasonable diligence,

should have led to the discovery of the alleged malpractice and . . . resulting

condition during the statutory period.'"
12

Furthermore, the court considered the

impact ofthe observations made in Boggs v. Tri-State Radiology, Inc., where the
supreme court stated that "medical malpractice plaintiffs will frequently, if not

virtually always, have varying amounts oftime within which to file their claims

before an occurrence-based statute oflimitations expires," but that "as long as the

claim can reasonably be asserted before the statute expires, the only burden

imposed upon the later discovering plaintiffs is that they have less time to make
up their minds to sue."

13

The court then turned to address the present arguments before it under the
guise of Martin, Van Dusen, and Boggs. In doing so, the court of appeals

rejected Dr. Shah's assertion that Martin and Van Dusen were distinguishable
from the facts presented because those cases considered diseases with long

latency periods.
14

Rather, the court stated that it could "find no case law that

would support the restriction ofthe analysis announced in Martin and Van Dusen
to specific types of diseases, nor do we discern any public policy or common
sense reason for doing so."

15

The court went on to synthesize the rulings ofMartin, Van Dusen, and Boggs

by stating that those cases created a "two-stage analysis for the application of

Indiana's two-year, medical malpractice limitation period."
16

First, the court

noted that [i]f a claimant discovers the alleged malpractice and resulting injury,

or possesses information that would lead a reasonably diligent person to such

9. Id. (quoting IND. CODE § 34-18-7-l(b) (1998)).

10. Id. (citing Martin v. Richey, 71 1 N.E.2d 1273, 1278 (Ind. 1999)).

11. Id. at 957 (citing Martin, 71 1 N.E.2d at 1284-85; Van Dusen v. Stotts, 712 N.E.2d 491,

493 (Ind. 1999)).

12. Id. (quoting Van Dusen, 712 N.E.2d at 493).

13. Id. at 958 (quoting Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 697 (Ind. 2000)).

14. Id.

15. Id.

16. Id.



2003] TORT LAW 1305

discovery during the two-year period, then the purely occurrence-based limitation

period is both applicable and constitutional, so long as the claim can reasonably

be asserted before the period expires."
17

Second, the court considered the

plaintiffwho does not discover the alleged malpractice and resulting injury, and
does not possess information that would lead to such discovery through
reasonable diligence.

18
Under this scenario, the court found that the Indiana

Supreme Court intended a second-stage of analysis; namely, a determination of
when a claimant should have discovered the alleged malpractice and resulting
injury.

19
This determination in turn established the date from which the two-year

statute of limitations begins to run.
20

Lastly, the court noted that whether the

medical malpractice statute of limitations is constitutional as applied is to be

determined by the trial court on a case-by-case basis.
21

Turning to the facts before it, the court of appeals determined that "the two-

year statute of limitations began to run at the latest when Dr. Shah and Harris'
physician-patient relationship ended on April 12, 1993."

22
Moreover, the

information available to a reasonably diligent person, did not enable the Harrises

to discover Dr. Shah's alleged malpractice, and Harris' injury, until July 31,
1998.

23 As a result, the discovery-based statute of limitations was applicable,
thus tolling the Harrises' date to file a medical malpractice claim until July 31,

2000, two years from Harris' discovery of his allegedly erroneous diagnosis.
24

Accordingly, the court of appeals affirmed the trial court's order denying Dr.

Shah's motion for summary judgment.25

In Rogers v. Mendel,
26

the court of appeals addressed the application of

Indiana's "occurrence-based" medical malpractice statute of limitations. Dr. L.

Ralph Rogers ("Dr. Rogers") performed a hysterectomy on Maryetta Mendel

("Mendel") on December 9, 1993.
27

At that time, Dr. Rogers removed a tumor

from Mendel, and had a laboratory test performed on the tissue.
28

The tissue
tested positive for carcinoma.

29
However, at subsequent meetings between

Mendel and Dr. Rogers, on December 1 7, 1993 and January 4, 1994, Dr. Rogers
allegedly failed to inform Mendel ofher test results.

30
In January 1995, Mendel

1 7. Id. (citing Boggs, 730 N.E.2d at 697-98; Van Dusen, 7 1 2 N.E.2d at 497-98; Martin, 7 1

1

N.E.2d at 1279-80).

18. Mat 959.
19. Id.

20. Id. (citing Van Dusen, 712 N.E.2d at 497-98; Martin, 71 1 N.E.2d at 1279-80).

21. Id.

22. Id.

23. Id.

24. Id.

25. Id.

26. 758 N.E.2d 946 (Ind. Ct. App. 2001).

27. Mat 947.
28. Id.

29. Id.

30. Mat 947-48.



1306 INDIANA LAW REVIEW [Vol. 36:1303

began suffering from abdominal cramping and visited her family doctor, who
referred Mendel to a colon specialist, through whom she was eventually referred
to an oncologist, Dr. Fox.

31
Dr. Fox informed Mendel that she had metastatic

endometrial cancer and began Mendel on a course ofchemotherapy?2 As a result
of hematologic toxicity, Mendel was forced to discontinue chemotherapy and
was referred to a GYN oncologist , who recommended Taxol treatments.33 In
February of 1996, during attempts to get Medicare reimbursement, Mendel's

daughter requested and received the records of Dr. Rogers, which contained a
December 1993 pathology report that indicated carcinoma in the tumor removed
by Dr. Rogers.

34 On September 1 5, 1996, Mendel died ofprogressive metastatic
endometrial cancer.

35

On December 30, 1996, the Mendels filed their proposed medical
malpractice complaint with the Indiana Department of Insurance.

36 On March
14, 2000, the Medical Review Panel entered a decision in favor ofthe Mendels.

37

The Mendels filed a complaint in the trial court on May 31, 2000.38 Thereafter,
Dr. Rogers filed a motion for summaryjudgment, which was subsequently denied
by the trial court.

39
Dr. Rogers brought an interlocutory appeal.

40

On appeal, the court, as it did in the companion case of Shah v. Harris, 41

first noted that under the Indiana statute of limitations for medical malpractice,

a malpractice claim "may not be brought against a health care provider based
upon professional service or health care that was provided . . . unless the claim
is filed within two (2) years after the date ofthe alleged act, omission, or neglect

. . .
,"42 The court further noted that this statute of limitations had "been upheld

as constitutional when applied to all plaintiffs able to discover the alleged
malpractice and injury within two years from the occurrence."

43 To the contrary,
the court explained that, as provided by the Indiana Supreme Court in Martin and
Van Dusen, "under Article I, Sections 12 and 23 ofthe Indiana Constitution, the

two year statute of limitations applicable to medical malpractice claims is

unconstitutional as applied to plaintiffs . .
.

, who could not have discovered the
injury with reasonable diligence within the two years of the alleged
misconduct."

44
Additionally, the court provided that in order to qualify under the

31. Id. at 948.

32. Id.

33. Id.

34. Id.

35. Id.

36. Id.

37. Id.

38. Id.

39. Id.

40. Id.

41. Id. at 953.

42. Id. at 955 (quoting Ind. Code § 34-18-7-l(b) (1998)).

43. Id. at 954 (citing Martin v. Richey, 71 1 N.E.2d 1273, 1278 (Ind. 1999)).

44. Id at 957 (citing Martin, 711 N.E.2d at 1284-85; Van Dusen v. Stotts, 712 N.E.2d 491,



2003] TORT LAW 1307

exception to the "occurrence-base" medical malpractice statute of limitations,

"'no information that, in the exercise ofreasonable diligence, should have led to

the discovery of the alleged malpractice and ... the resulting condition during

the statutory period.'"
45

Furthermore, the court considered the impact of the

observations made in Boggs, where the supreme court stated that "medical
malpractice plaintiffs will frequently, if not virtually always, have varying

amounts of time within which to file their claims before an occurrence-based

statute of limitations expires[,]" but that "as long as the claim can reasonably be

asserted before the statute expires, the only burden imposed upon the later

discovering plaintiffs is that they have less time to make up their minds to sue."46

The court went on to synthesize the rulings ofMartin, Van Dusen, and Boggs
by stating that those cases created a "two-stage analysis for the application of

Indiana's two-year, medical malpractice limitation period."
47

First, the court held

that [i]f a claimant discovers the alleged malpractice and resulting injury, or

possesses information that would lead a reasonably diligent person to such

discovery during the two-year period, then the purely occurrence-based,

limitation period is both applicable and constitutional, so long as the claim can

reasonably be asserted before the period expires."
48

Second, the court considered

the plaintiffwho does not discover the alleged malpractice and resulting injury,
and does not possess information that would lead to such discovery through

reasonable diligence.
49

Under this scenario, the court found that the Indiana

Supreme Court intended a second-stage of analysis; namely, a determination of

when a claimant should have discovered the alleged malpractice and resulting
injury.

50
Such a determination in turn establishes the date from which the two-

year statute of limitations begins to run.
51

Lastly, the court noted that whether

the medical malpractice statute of limitations is constitutional as applied is to be

determined by the trial court on a case-by-case basis.
52

In hangman v. Milos,53 the Indiana Court of Appeals addressed whether
plaintiffs had timely filed their medical malpractice complaint when such
complaint was filed more than four years after the alleged malpractice. On
February 7, 1993, the plaintiff, Lawrence Langman ("Lawrence"), was injured
at his place of employment when a large piece of steel struck his left leg and
foot.

54
Lawrence was immediately taken to a hospital, where his wound was

493 (Ind. 1999)).

45. Id. (quoting Van Dusen, 712 N.E.2d at 493).

46. Id. at 958 (quoting Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 697 (Ind. 2000)).

47. Id.

48. Id. (citing Boggs, 730 N.E.2d at 697-98; VanDusen, 712 N.E.2d at 497-98; Martin, 711

N.E.2d at 1279-80).

49. Id.

50. Id.

51. Id. (citing Van Dusen, 712 N.E.2d at 497-98; Martin, 71 1 N.E.2d at 1279-80).

52. Id.

53. 765 N.E.2d 227, 229 (Ind. Ct. App. 2002).

54. Id.



1308 INDIANA LAW REVIEW [Vol. 36:1303

cleansed and sutured.
55

Several days later, Lawrence met with Dr. Babcoke, who
ordered Lawrence to physical therapy.

56 On April 23, 1993, Dr. Babcoke
referred Lawrence to Dr. Koscielniak, an orthopedic surgeon.

57
After examining

Lawrence, Dr. Koscielniak "believed that Lawrence's symptoms indicated
Reflex Sympathetic Dystrophy ('RSD')."

58 As a result, Dr. Koscielniak
recommended that Lawrence seek additional treatment, and suggested
"sympathetic block."

59
Dr. Koscielniak referred Lawrence to Dr. Stinson, an

anesthesiologist who conducted a pain clinic.60

On May 8, 1993, Lawrence was admitted to the hospital and underwent an
insertion of an epidural catheter.

61
After receiving the catheter, Lawrence

"reported a pain level of zero," but, his mobility had decreased.
62

"Lawrence

then began physical therapy, at which point he noticed increased pain."
63

Lawrence was administered Valium and again reported a decrease in pain.64

Lawrence was discharged from the hospital three days later.
65

During the summer of 1993, Lawrence also met several times with a Dr.
Javors.

66
In order to diagnose Lawrence, Dr. Javors ordered several diagnostic

tests, including a bone scan, an electromyography ("EMG"), and a magnetic

resonance imaging ("MRI") of Lawrence's foot.
67 On June 11, 1993, following

Dr. Javors' review of these tests, he concluded that Lawrence did in fact suffer

from RSD.68 On September 1, 1993, Dr. Javors gave Lawrence a Permanent
Partial Impairment rating for purposes of worker's compensation.

69 A letter,
dated October 11, 1995, indicated that Lawrence "should be permanently

restricted from climbing ladders, walking on uneven ground, and walking on

beams."
70

After settling his worker's compensation claim in November 1993,
Lawrence did not see Dr. Javors again.

71

Lawrence next met with Dr. Milos in October 1 994.
72
At this time, Lawrence

complained of severe pain in his left foot and allegedly informed Dr. Milos of

55. Id.

56. Id.

57. Id.

58. Id.

59. Mat 229-30.
60. Id. at 230.

61. Id.

62. Id.

63. Id.

64. Id.

65. Id.

66. Id.

67. Id.

68. Id.

69. Id.

70. Id.

71. Id.

72. Id.



2003] TORT LAW 1309

being diagnosed with RSD.
73

Dr. Milos prescribed pain medication for

Lawrence, and referred Lawrence for an EMG.74 On November 19, 1994,
following laboratory work, an arthritis profile, and more pain medication, Dr.
Milos decided that Lawrence needed surgery,

75
Dr. Milos referred Lawrence to

Dr. Smith for surgery on his left foot.
76

On December 28, 1 994, Dr. Smith performed surgery on Lawrence's left foot
to remove two bone coalitions.

77
During post-operative visits with Lawrence, Dr.

Milos noted that Lawrence had increased his activity against Dr. Milos' orders.
78

Until March 1995, Dr. Milos' notes further stated that Lawrence "was healing
well with continuous improvement."

79 On March 4, 1995, Lawrence again
reported pain in his left foot.

80 From March through August of 1995, Lawrence
underwent injection therapy, received several referrals from Dr. Milos, and

received numerous prescriptions for pain medicine.
81

In July 1995, one of the doctors to whom Lawrence was referred, Dr.
Kozelka, ordered several additional diagnostic tests for Lawrence.

82
Lawrence

did not follow up with treatments or diagnostic testing with Dr. Kozelka.
83

Dr.

Milos' last encounter with Lawrence was when his office telephoned in a
prescription for pain killers for him on August 7, 1995.

84

Lawrence's subsequent visit to a doctor for his left foot, ankle, and leg, took

place in February 1 998, when he met with Dr. Fedorchak, a podiatrist.85 Dr.
Fedorchak informed Lawrence that the surgery recommended by Dr. Milos, and
performed by Dr. Smith, should not have been done.

86
Dr. Fedorchak referred

Lawrence to Dr. Dallas-Prunskis.
87

Dr. Dallas-Prunskis first met with Lawrence

on February 12, 1998, and noted then that Lawrence was not properly treated for
his RSD.88 Dr. Dallas-Prunskis treated Lawrence until August of 1999.

89

On October 6, 1999, the Langmans filed a proposed complaint with the
Indiana Department of Insurance.

90 The Langmans alleged in part "that Drs.

73. Id.

74. Id.

75. Id.

76. Id. at 231.

77. Id.

78. Id.

79. Id.

80. Id.

81. Id.

82. Id. at 231-32.

83. Id. at 232.

84. Id.

85. Id.

86. Id.

87. Id.

88. Id.

89. Id.

90. Id. at 232-33.



1310 INDIANA LAW REVIEW [Vol. 36:1303

Milos and Smith negligently performed surgery on him, causing his pain to
increase and his RSD to advance."91 On November 28, 2000, Drs. Milos and
Smith filed a joint motion for summary judgment alleging that the "Langmans'
suit was barred by the two-year medical malpractice statute oflimitations."92 On
August 14, 2001, the trial court granted the motion for summary judgment,
finding "that it would be unreasonable to assume that the Langmans were not
aware ofthe underlying disease, the changes in Lawrence's condition, and other

things that would have provided them with adequate notice ofhis potential claim
of malpractice."

93

On appeal, the court of appeals applied the two-stage analysis for
determining the application ofIndiana's two-year medical malpractice limitation

period as addressed in Shah v. Harris and Rogers v. Mendel.
94

Under the facts of Longman, the court held that it was clear that both
Lawrence and his wife were aware of Lawrence's increased pain within months
of his December 1994 surgery.

95
Moreover, the court noted Lawrence's

admission that he felt worse within months of the surgery and his related

communication to Dr. Milos.
96

In summary, the court found that "although

Lawrence's worsened and worsening symptoms would have led a reasonably
diligent person to discover the alleged malpractice and resulting injury, he did

not seek medical assistance for anything related to his left foot, ankle or leg until

February 2, 1998, nearly two and one-half years after his last visit with Dr.

Milos."
97

Therefore, the court held that the facts did not pass the first stage of

the Shaw and Rogers analysis and affirmed the trial court's grant of summary
judgment in favor of Drs. Milos and Smith.

98

In Johnson v. Gupta," the Indiana Court of Appeals addressed whether the

plaintiff had timely filed her medical malpractice complaint when it was filed
approximately four years and four months after the alleged act of malpractice.

In September 1990, Dr. Arjun Gupta performed a hemorrhoidectomy and

mucopexy on the plaintiff, Charlotte Johnson ("Johnson"). 100 Thereafter,
Johnson began experiencing fecal incontinence.

101
Dr. Gupta ("Dr. Gupta")

assured Johnson that the symptoms would disappear.
102

Johnson saw other

91. Id. at 233.

92. Id.

93. Id.

94. Id. at 234 (citing Shah \ . Harris, 758N.E.2d 953 (Ind. Ct. App. 2001); Rogers v Mendel,

758 N.E.2d 946 (Ind. Ct. App. 2001)).

95. Id. at 236.

96. Id.

97. Id. at 235-36.

98. Id. at 236.

99. 762 N.E.2d 1280 (Ind. Ct. App. 2002) (Johnson II).

100. Id.

101. Id.

102. Id.



2003] TORT LAW 1311

doctors to help determine the cause of her incontinence.
103

In 1994, a doctor in

Ohio discovered that her rectum had been severed during her surgery in 1990,
resulting in a complete and total loss of her anal sphincter.

104
Johnson was

informed that the only treatment for this condition was a colostomy. 105

In a previous appeal,
106

the court of appeals affirmed a grant of summary
judgment in favor of Dr. Gupta on the grounds that the "occurrence-based"

statute of limitations in Indiana's Medical Malpractice Act did not violate article

I, section 12, and article 1, section 23 of the Indiana Constitution.
107

After this

decision, Johnson petitioned the Indiana Supreme Court for transfer, and transfer

was granted.
108 On transfer, the supreme court remanded the case to the trial

court for further proceedings consistent with the opinions contained in Van

Dusen109 and Martin,
110

which discussed the constitutionality of the medical

malpractice statute of limitations.
m

On remand, the trial court determined that the "occurrence-based" statute of
limitations was constitutional as applied to Johnson I, and again entered
summary judgment in favor of Dr. Gupta. 112 Johnson appealed that decision. 113

On appeal, the court ofappeals analyzed the case in light ofthe Indiana Supreme
Court's holdings in Van Dusen and Martin.,

114

The court first noted the changes brought about by Van Dusen and Martin,
by quoting the following passage from Van Dusen:

The question ofwhen a plaintiff discovered facts which, in the exercise
of reasonable diligence, should lead to the discovery of the medical

malpractice and resulting injury, is often a question of fact. In general,

however, a plaintiffs lay suspicion that there may have been malpractice
is not sufficient to trigger the two-year period. At the same time, a
plaintiffneed not know with certainty that malpractice caused his injury,
to trigger the running ofthe statutory time period. Moreover, when it is
undisputed that plaintiffs doctor has expressly informed a plaintiff that

he has a specific injury and that there is a reasonable possibility, if not

a probability, that the specific injury was caused by a specific act at a
specific time, then the question may become one of law. Under such
circumstances, generally a plaintiff is deemed to have sufficient facts to

103. Id.

104. Id.

105. Id.

106. 682 N.E.2d 827 (Ind. Ct. App. 1997) (Johnson I).

107. Johnson II, 762 N.E.2d at 1280-81 (citing Ind. CODE § 34-18-7-1).

108. Mat 1281.
109. 712 N.E.2d 491 (Ind. 1999).

110. 711 N.E.2d 1273 (Ind. 1999).

111. Johnson II, 762 N.E.2d at 1 28 1

.

112. Id.

113. Id.

114. Id.



1312 INDIANA LAW REVIEW [Vol. 36:1303

require him to seek promptly any additional medical or legal advice
needed to resolve any remaining uncertainty or confusion he may have
regarding the cause ofhis injury and any legal recourse he may have, and
his unexplained failure to do so should not excuse a failure to timely file
a claim. Thus, in such a case, we conclude that the date on which he
receives such information—that is, information that there is a reasonable
possibility that a specific injury was caused by a specific act at a specific
time—is the date upon which the two-year period begins to run. 115

The court then proceeded to apply such principles to the facts in Johnson's
case.

1 ' 6

The court noted that almost immediately after Johnson's surgery, on
September 11, 1990, she "'knew there was something wrong' and became
incontinent of stool."

117
Moreover, the court found that upon Johnson's visit to

Dr. Gupta's partner, Dr. Piatak, on January 24, 1992, Johnson continued to suffer

from incontinence, and was that day informed by Dr. Piatak that she had no rectal
tone.

118
Yet, Johnson did not again consult with a physician regarding her

incontinence until August or September 1994, when she saw Dr. Streeter. 119

Thereafter, on September 27, 1994, Johnson was informed by Dr. Strong of the
Cleveland Clinic that the laser surgery performed by Dr. Gupta on September 1 1,
1990, had "irreparably severed" her rectal muscles.

120

The court rejected Johnson's contention that she had suffered a "latent
injury" within the meaning of Van Dusen and Martin, holding in part that "Van
Dusen did not, as Johnson implies, establish that the statute of limitations is
tolled until the patient discovers a causal link between the physician's actions

and the patient's injury."
121

Rather, the court explained that "latent injury," as

defined under Van Dusen, was intended "where a patient suffers no discernible
pain or symptoms until several years after the alleged malpractice."

122
Thus, the

court discerned that under Van Dusen and Martin the medical malpractice statute
of limitations "is tolled until the patient experiences symptoms that would cause
a person of reasonable diligence to take action that would lead to the discovery

of the malpractice."
123

Applying this rule of law, the court of appeals held that

"on January 24, 1992, at the latest, Johnson had discovered facts that, in the

exercise of reasonable diligence, should have lead to the discovery of the

malpractice."
124

Accordingly, the court affirmed the trial court's grant of

1 15. Van Dusen v. Stotts, 712 N.E.2d 491, 499 (Ind. 1999) (citation omitted).

116. Johnson II, 762 N.E.2d at 1281.

1 17. Id. (citing Brief for Appellant at 5).

118. Id.

119. Id

120. Id

121. Id. at 1283.

122. Id

123. Id

124. Id.



2003] TORT LAW 1313

summary judgment in favor of Dr. Gupta.
125

In Jacobs v. Manhart™ the court of appeals addressed the application of
Indiana's medical malpractice statute of limitations within the context of

plaintiffs who filed a medical malpractice claim after the running of the
occurrence-based statute of limitations, but prior to the running ofthe discovery-

based statute oflimitations. The plaintiff, Manhart, had a PAP smear in February
of 1 996.

12?
Manhart' s PAP smear indicated severe dysplasia. 128 Shortly after her

diagnosis, Manhart underwent a colposcopy.
129 A month after her colposcopy,

Manhart had a biopsy.
130

Manhart was then instructed to have a follow-up PAP
smear at three months, six months, and one year.

131
Manhart's three month PAP

smear, taken on June 20, 1996, indicated that she still had "marked dysplasia."
132

Manhart' s "doctor explained that such abnormal results were to be expected so

soon after the biopsy. [Manhart] had follow-up PAP smears taken in October
1996, February 1997, and again in November 1997; the results of all three were
reported as normal."

133
In February of 1998, Manhart discovered that she was

pregnant, and on February 1 2, she had a PAP smear pursuant to her obstetrician's
order.

134
The specimen was analyzed by South Bend Medical Foundation, Inc.

("SBMF") and read by Dr. Kristin M. Jacobs ("Jacobs"). 135 Thereafter,
Manhart' s obstetrician received notice that the results of the PAP smear were
normal.

136 On March 11, 1999, approximately eight months after the birth of
twins, Manhart had another "routine examination and PAP smear." 137 Again,
Manhart was told that the results of the PAP smear were normal. 138

In June 1999, Manhart began to experience "breakthrough bleeding."
139

Manhart thought the bleeding was from use ofbirth control pills, so thinking, she
sought and received a different prescription for birth control pills, but the

bleeding continued.
140 On August 24, 1999, an ultrasound revealed that Manhart

had a "large tumor."
141 A subsequent second opinion confirmed the diagnosis of

125. Id.

126. 770 N.E.2d 344 (Ind. Ct. App. 2002).

127. Id. at 346.

128. Id

129. Id.

130. Id.

131. Id.

132. Id. at 347.

133. Id.

134. Id.

135. Id.

136. Id.

137. Id.

138. Id.

139. Id.

140. Id.

141. Id.



1314 INDIANA LAW REVIEW [Vol. 36:1303

cancer and indicated that her cancer was at "Stage III or IV, the highest stage."142

On September 3, 1999, Manhart underwent a radical hysterectomy. 143

In October 1999, at the request of Manhart, a cytotechnologist and family

friend, Nora Clark ("Clark"), reviewed the slides from Manhart's previous PAP
smears.

144
Sometime between Thanksgiving and Christmas of 1999, Clark

informed Manhart ofher opinion that "some ofthe [PAP smear] slides had been
misread."

145
Between Christmas 1999 and the New Year, Clark, at the request

ofManhart, forwarded Manhart's PAP smear slides to a pathologist ("Dr. Clark")
for his review.

146 The pathologist's report, dated April 13, 2000, indicated that
he agreed with some of the readings of Manhart's PAP smear slides, but
disagreed with others.

147

Thereafter, on May 16, 2000, Manhart and her husband (collectively
"plaintiffs") filed their proposed complaint for medical malpractice with the

Indiana Department of Insurance.
148 The plaintiffs subsequently filed their

complaint in the trial court on May 19, 2000, and alleged that SBMF and Jacobs
"failed to comply with the applicable standards of care."149 "On September 20,
2000, SBMF filed a motion for preliminary determination upon the issue ofthe
medical malpractice statute of limitation

" 15° The trial court denied SBMF's
motion for preliminary determination, as well as SBMF's motion to reconsider,
but granted SBMF's motion to certify the trial court's order for interlocutory
appeal.

151

On appeal, the appellate court examined the applicable medical malpractice
statute of limitations and further noted that the Indiana Supreme Court had
construed Indiana's medical malpractice statute of limitation as an "occurrence-

based" statute rather than a "discovery-based" statute.
152

It was undisputed on appeal that the alleged malpractice asserted against
SBMF occurred in February 1998. 153 It was also undisputed that the plaintiffs
did not file their complaint against SBMF until May 2000. 154 Thus, the court
explained that by its terms, Indiana's two-year medical malpractice statute of

limitations barred the plaintiffs claim.
155

The plaintiffs argued that Indiana's

medical malpractice statute of limitations was unconstitutional as applied to

142. Id.

143. Id.

144. Id.

145. Id.

146. Id.

147. Id.

148. Mat 328.
149. Id.

150. Id.

151. Id.

152. Id. at 349 (quoting Martin v. Richey, 711 N.E.2d 1273, 1278 (Ind. 1999)).

153. Id.

154. Id.

155. Id.



2003] TORT LAW 1315

them.
156

In addressing this argument, the court of appeals first noted that "our

occurrence-based malpractice statute of limitation has been upheld as

constitutional on its face under Article 1, Sections 12 and 23 of the Indiana

Constitution."
157

However, the court further recognized "that under some
circumstances, the statute of limitation is unconstitutional as applied to plaintiffs

who, in the exercise of reasonable diligence, could not have discovered the

alleged malpractice within the two-year limitation period."
158

Relying on Martin, Van Dusen, and Boggs, the court noted that the "first

step" to analyzing Manhart's claim was to "determine when the alleged
malpractice occurred and thus, when the two-year statutory period expired." 159

"[T]he next step is to determine the 'discovery date."'
160

Then, the court stated,

that ifthe discovery date falls within the two-year limitation period, a third stage

of analysis is necessary to determine "whether the time which remains of the

limitation period is reasonable rendering the occurrence-based statute of

limitations constitutional as applied."
161

Alternatively, the court ofappeals noted

that if the "discovery date" was found to be after the expiration of the
occurrence-based statute of limitation, then the limitation period would be
unconstitutional as applied to the plaintiffs' claim.

162

When applying the aforementioned process to determine the viability ofthe
plaintiffs' claim, the court ofappeals held that Manhart was "on notice that there
was a reasonable possibility" that her tumor had gone undetected as a result of
SBMF's malpractice upon receiving Dr. Clark's report. 163 In so holding, the
court noted that Manhart "closely monitored her condition, and up until August

24, 1999, when she was diagnosed with cervical cancer, there [was] no evidence
that [she] had any information, which in the exercise of reasonable diligence,

should have led to the discovery of the alleged malpractice and resulting

injury."
164

Moreover, the court, considering the totality of the circumstances,

concluded "that it was a practical impossibility for Ms. Manhart to assert her
claim before the expiration ofthe limitation period and that the rigid application

of the occurrence-based statute would deny her the meaningful opportunity to
pursue her claim."

165
Consequently, the court of appeals determined that the

plaintiffs' medical malpractice claim was not barred by the statute of
limitations.

166

156. Id.

157. Id. (citing Martin, 71 1 N.E.2d at 1279).

158. Id. at 349-50 (quoting Van Dusen v. Scotts, 712 N.E.2d 491, 495 (Ind. 1999)).

159. Id. at 352.

160. Id.

161. Id. (citing Boggs, 730 N.E.2d at 697).

162. Id. at 352 (citing Van Dusen, 712 N.E.2d at 497).

163. Mat 354.
164. Id.

165. Id. at 355.

166. Id.



1316 INDIANA LAW REVIEW [Vol. 36: 1 303

B. Sufficiency ofPhysician 's Affidavit

In Mcintosh v. Cummins,
167

the court ofappeals addressed "whether the trial

court erred in finding a genuine issue of material fact in a motion for summary
judgment supported by a favorable medical review panel opinion and opposed
only by the testimony of a family practitioner."

168
In October 1992, Cummins

fractured his right femur and hip which required Dr. Mcintosh to perform surgery

and insert an intramedullary nail in Cummins' femur and to fixate his hip with
screws.

169
In December 1992, Dr. Mcintosh took an x-ray of Cummins' femur

and the results noted a "paucity of callus formation at the distal femoral

fracture."
170

In January 1993, x-ray results noted an "interval improvement in the

callus formation," and Dr. Mcintosh instructed Cummins to "gradually increase
weight bearing."

171

Cummins was released back to work in April 1993, and, in June 1993,
Cummins "felt something strange in his leg." 172 X-ray results discovered that the
intermedullary nail had broken and a second surgery was required to replace the
nail.

173
After the second surgery, Cummins experienced more pain, and it was

discovered that there was a misalignment which was putting stress on his knee. 174

Cummins proceeded to see another physician and, after his pain had not
subsided, he was referred to another physician who performed a bone graft. 175

In June 1995, "Cummins filed his proposed complaint with the Indiana
Department of Insurance, alleging that Dr. Mcintosh breached the applicable

standard of care by permitting Cummins to return to work and to full weight
bearing without the benefit of x-rays to determine if the bones had properly

healed."
176

"The Medical Review Panel issued its opinion finding that 'the

evidence does not support the conclusion that Defendant, Brent R. Mcintosh,

M.D., failed to meet the applicable standard of care as charged in the

Complaint.'"
177

In May 1999, Cummins brought an action in the trial court and,
in June 1999, Dr. Mcintosh moved for summaryjudgment attaching the Medical
Review Panel opinion in support ofhis argument.

178
Cummins' filed his response

attaching the affidavit of Dr. Norman Glanzman, a family practitioner.
179

Dr.

Glanzman stated in his affidavit that he had an opportunity to treat numerous

167. 759 N.E.2d 1 180 (Ind. Ct. App. 2001)

168. Id. at 1182.

169. Id.

170. Id.

171. Id.

172. Id.

173. Id

174. Id.

175. Id.

176. Id at 1182-83.

177. Mat 1183.
178. Id.

179. Id.



2003] TORT LAW 1317

individuals with fractures and to review their x-rays for adequate healing, and
that he was ofthe opinion that Dr. Mcintosh deviated from the standard of care
in the treatment ofCummins by failing to take an x-ray to determine if sufficient
healing had taken place before releasing Cummins to return to work and to full
weight bearing.

180
The trial court denied Dr. Mcintosh's motion for summary

judgment.

On interlocutory appeal, Dr. Mcintosh contended that "the evidence
Cummins utilized to establish a genuine issue, Dr. Glanzman's affidavit, was
insufficient because Dr. Glanzman failed to state he was familiar with the
applicable standard of care."

181 The court of appeals noted that in a medical
malpractice action, an opposing affidavit submitted to establish that a defendant

doctor breached the applicable standard of care must set forth that the expert is
familiar with the proper standard of care under the same or similar
circumstances, what that standard of care is, and that the defendant's treatment
of the plaintiff fell below the standard.

182

Dr. Glanzman's opposing affidavit stated that he:

1

.

was a licensed medical physician within the State of Indiana ....
2. was the Medical Coordinator of Helix Health which is a multi-

disciplinary health center which specializes in returning individuals with
serious injuries, including bone fractures ....

3. has reviewed the depositions of Mr. Cummins, the defendant, and
reviewed Dr. Mcintosh's medical records for the plaintiff.

4. had an opportunity to treat numerous individuals with fractures and
review their x-rays for adequate healing, and [is] ofthe opinion that Dr.

Mcintosh deviated from the standard of care.
183

The court stated, "although the affidavit does not directly state that Dr. Glanzman
is familiar with the applicable standard of care, it is evident from the content of

the affidavit that Dr. Glanzman's employment and experience made him indeed
familiar with the applicable standard in the treatment of bone fractures and x-

rays."
184

In addition, the court observed that it had previously held that an

affidavit which establishes an expert's credentials, states that the expert has
reviewed the relevant medical records, and sets forth the expert's conclusions

that the defendant violated the standard of care in their treatment, which in turn
caused the complained of injury, is sufficient to demonstrate the existence of a
material fact, thus making summary judgment inappropriate. 185

Dr. Mcintosh also argued that the affidavit was not sufficient because Dr.
Glanzman practiced a completely different specialty than Dr. Mcintosh; Dr.
Glanzman was a family practitioner and Dr. Mcintosh was an orthopedic

180. Id.

181. Id. at 1184.

182. Id. (quoting Lusk v. Swanson, 753 N.E.2d 748, 753 (Ind. Ct. App. 2001)).

183. Id.

184. Id.

185. Id. (quoting Jones v. Minick, 697 N.E.2d 496, 499 (Ind. Ct. App. 1998)).



1318 INDIANA LAW REVIEW [Vol. 36:1303

surgeon.
186

However, the court stated that "there is no requirement that the
expert physician be ofthe same specialty as the defendant doctor." 187 The court
went on to say that "[p]rovided there is at least a generalized and supportable

conclusion by the affiant that he is familiar with the applicable standard of care,

the specific knowledge of an expert witness is neither determinative of the

witness' qualification as an expert nor the admissibility of his opinion into

evidence."
188

Furthermore, "[a] witness' competency is determined by his

knowledge of the subject matter generally, and his knowledge of the specific

subject of inquiry goes to the weight to be accorded his opinion, not its

admissibility."
189 The court concluded, "the fact that Dr. Glanzman is a family

practitioner and not an orthopedic surgeon is not dispositive."
190

Finally, Dr. Mcintosh argued that Dr. Glanzman admitted in his deposition
testimony that he was not familiar with the applicable standard of care, and his
testimony must therefore be excluded.

191
However, Cummins pointed to

deposition testimony where Dr. Glanzman testified that he was an expert in
callus formation, and that he had treated numerous post-fracture patients.

192 The
court noted that "[e]ven if facts are not in dispute, summary judgment is
inappropriate if conflicting inferences arise."

193
In applying this deferential

standard, the court agreed with the trial court and resolved the conflicts in favor

of Cummins as the non-movant. 194

The court concluded that "the trial court properly determined that Dr.
Glanzman's affidavit was sufficient to raise a genuine issue of material fact."

195

II. PREMISES LIABILITY

In Lawson v. Lafayette Home Hospital™ the court of appeals addressed
whether municipal ordinances that require abutting property owners or occupiers

to remove snow and ice from public sidewalks create, as a matter of law, a duty
under which an owner or occupier may be held liable to third party pedestrians.
Lawson slipped and fell on ice on a public sidewalk adjacent to Lafayette Home
Hospital ("Hospital"). The Hospital had shoveled the sidewalk prior to Lawson'

s

fall.
197 Lawson brought suit against the Hospital "alleging that the Hospital's

186. Id.

187. Id. (quoting Snyder v. Cobb, 638 N.E.2d 442, 446 (Ind. Ct. App. 1994)).

188. Id. at 1 185 (quoting Snyder, 638 N.E.2d at 446; see also Aldrich v. Coda, 732 N.E.2d

243, 245 (Ind. Ct. App. 2000)).

1 89. Id. (quoting Snyder, 638 N.E.2d at 446).

190. Id.

191. Id.

192. Id.

193. Id.

194. Id.

195. Id

196. 760 N.E.2d 1 126 (Ind. Ct. App. 2002).

197. Id. at 1128.



2003] TORT LAW 1319

negligence in failing to warn visitors of the dangerous condition or failing to

warn visitors to the Hospital of the dangerous condition was the direct and
proximate result of Lawson's personal injuries."

198
The Hospital moved for

summaryjudgment asserting that it had no duty to keep public sidewalks owned
by the city of Lafayette cleared of ice and snow. The Hospital also alleged that
it did not assume a duty by creating an artificial condition that increased the risk

ofharm to Lawson.
1" Finding that the Hospital owed no duty ofcare to Lawson,

the trial court granted summary judgment in the Hospital's favor. Lawson 's
appeal ensued.

200

On appeal, Lawson argued that the Hospital, by shoveling the sidewalks,
assumed a duty to maintain the public sidewalks adjacent to its building and that

its attempts at snow removal increased the risk ofharm to Lawson.
201

The court
observed that in order for Lawson to prevail in his negligence action, he must
demonstrate that "the Hospital: 1 ) owed him a duty, 2) that the Hospital breached
its duty, and 3) that the breach proximately caused Lawson' s injuries."

202

Moreover, the court noted that "[i]t is well settled in Indiana that an owner or

occupant of property abutting a public street or sidewalk has no duty to clear

those streets and sidewalks of ice and snow. . . . Additionally, municipal

ordinances that require abutting owners or occupiers to remove snow and ice
from public sidewalks do not, as a matter of law, create a duty under which an

owner or occupier can be held liable to third party pedestrians."
203

Despite this

precedent, Lawson maintained that the Hospital assumed a duty.204

The court opined that "[i]n Indiana, persons are held to have assumed a duty
to pedestrians on public sidewalks only when they create artificial conditions that
increase the risk and proximately cause injury to persons using those

sidewalks."
205

The court next noted that Indiana has never recognized the
removal of ice and snow to be an artificially created condition that increased the
risk of harm to pedestrians.

206
Instead, the court asserted that "such efforts to

reduce danger to pedestrians are generally considered desirable and worthy, and

should not be discouraged by holding such persons liable simply because they

endeavor to do so."
207 The court affirmed the judgment of the trial court.

208

In Wellington Green Homeowners ' Association v. Parsons,209 the court of

198. Id.

199. Id.

200. Id.

201. Id. at 1129.

202. Id. (citing Delta Tau Delta v. Johnson, 712 N.E.2d 968, 970-71 (Ind. 1999)).

203. Id. (citing Hirschauer v. C&E Shoe Jobbers, Inc., 436N.E.2d 107, 110-11 (Ind. Ct. App.
1982) (citations omitted) (citing Carroll v. Jobe, 638 N.E.2d 467, 471 (Ind. Ct. App. 1994)).

204. Id.

205. Id. at 1130.

206. Id.

207. Id. (quoting Halkias v. Gary Nat'l Bank, 234 N.E.2d 652, 654 (Ind. App. 1968)).

208. Id.

209. 768 N.E.2d 923 (Ind. Ct. App. 2002).



1320 INDIANA LAW REVIEW [Vol. 36:1303

appeals addressed whether a homeowners' association could be held liable for
injuries to an invitee when they had no notice ofthe hidden defect that caused the
harm. Parsons, a mail carrier, delivered mail to a condominium association
owned by Wellington Green Homeowners' Association.210 Mail receptacles for
residents were clustered in one location known as a "multi-box mailbox."211

Parsons experienced difficulty in opening a multi-box mailbox; ultimately, the

multi-box unit came offthe wall and threw Parsons offbalance.212 Consequently,
Parsons sustained injuries.

213
Parsons brought suit against Wellington Green

Homeowners' Association and Kirkpatrick Management Company (hereinafter
collectively referred to as "homeowners' association"). The jury found the
defendants 80% at fault and awarded Parsons $180,000.00 in damages.214

On appeal, the homeowners' association argued that the trial court erred in
denying their motions for judgment on the evidence.

215
Specifically, the

homeowners' association argued that "even though Parsons was an invitee, they
cannot be held liable, because they had no notice of the hidden defect that

allegedly caused Parsons' injuries."
216

The court began its analysis by noting that the question ofwhether a duty to

exercise care exists is dictated by the relationship ofthe parties and "is an issue

of law within the province of the court."
217

Recognizing that Parsons was an
invitee on the appellants' property, the court looked to the Restatement (Second)

of Torts to define a landowners' duty to an invitee:

A possessor of land is subject to liability for physical harm caused by his
invitees by a condition of the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of

harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or

will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the

danger.
218

The homeowners' association argued that there was no evidence that it had

210. Id. at 924.

211. Id.

212. Id. at 925.

213. Id.

214. Id.

215. Id.

216. Id.

217. Id. at 926 (citing Douglass v. Irvin, 549N.E.2d368, 369 (Ind. 1990)).

218. Id. (citing Restatement (Second) of Torts § 343 (1965)).



2003] TORT LAW 1321

installed or placed the multi-box mailbox on the wall at the condominium.
219

Further, the homeowners' association argued that Parsons failed to show that the
defendants had notice of a hidden defect that they should have warned Parsons

of or taken steps to correct.
220

In its analysis, the court noted that the

homeowners' association had never received any complaints about the security

ofthe multi-box mailboxes such that would have prompted it to test the strength

of the units' attachment to the wall.
221

The court next noted that there was no
evidence that the homeowners' association had installed the multi-box

mailboxes.
222

In sum, "there was no evidence that the Appellants were aware of
how the multi-box mailboxes were attached to the wall, i.e. whether the screws
were attached to the studs, or to the drywall."

223

Finally, the court observed that a landowner's duty of care is a known or
should have known standard.224 Finding that the record was devoid of any
evidence that the homeowners' association knew or should have known about the
defect that allegedly caused Parsons' injuries, the court observed that there was

"a complete failure ofproofon at least one essential element ofParsons' case."
225

Accordingly, the court concluded that the trial court erred in denying the

appellants' motions for judgment on the evidence.
226

III. Wrongful Death

In Bolin v. Wingert,
22?

the Indiana Supreme Court addressed an issue of first

impression under Indiana's Child Wrongful Death Statute: "[w]hether an eight-

to ten-week-old fetus fits the definition of 'child.'"
228

In their complaint, the

Bolins alleged that Wingert caused Mrs. Bolin's miscarriage and requested

compensation for the wrongful death of their unborn child.
229

In response,

Wingert moved for partial summary judgment, alleging that the Child Wrongful
Death Statute did not provide for such a recovery.

230
The trial court granted the

motion. The Bolins appealed, and the court ofappeals held "that the term 'child'
was not expressly defined by the legislature. In relying upon Britt v. Sears,

231
the

court held that only 'an unborn viable child' had a claim under the Wrongful

219. Id. at 926.

220. Id.

221. Id. at 928.

222. Id.

223. Id.

224. Id. at 929 (citing Burrell v. Meads, 569 N.E.2d 637, 640 (Ind. 1991)).

225. Id.

226. Id.

227. 764 N.E.2d 201 (Ind. 2002).

228. Mat 203.
229. Id.

230. Id

23 1 . 277 N.E.2d 20 (Ind. App. 1 972).



1322 INDIANA LAW REVIEW [Vol. 36: 1303

Death Statute."
232 The court of appeals affirmed the trial court's grant ofpartial

summaryjudgment because the Bolins had not produced any evidence that their
unborn child was "capable of independent life."

233

In an opinion by ChiefJustice Shepard, the supreme court concluded that an

eight- to ten-week-old fetus did not fit into the definition of 'child' in Indiana's

Child Wrongful Death Statue.
234

In reaching this conclusion, the supreme court

looked at the Child Wrongful Death Statute which states, "An action may be
maintained under this section against the person whose wrongful act or omission
caused the injury or death of a child."

235 The Child Wrongful Death Statute
defines child: "As used in this section, 'child' means an unmarried individual
without dependents who is: ( 1 ) less than twenty (20) years ofage; or (2) less than
twenty-three (23) years of age and is enrolled in an institution of higher

education or in a vocational school or program."
236

The statute allows parents to
recover damages for the loss ofthe child's services, love, and companionship, as
well as expenses such as hospital bills and funeral costs resulting from the child's

death.
237

In interpreting who will fall within the statute's provisions, the supreme court
recognized that courts have generally resolved this question in one offour ways:

(1) permit recovery only for the death of children "born alive," (2) permit

recovery only for the death of "viable" unborn children, (3) permit recovery for

the death of unborn children that are "quick," and (4) permit recovery for the

death of any unborn child.
238

The supreme court noted that ten states adhere to the "born alive" rule which
requires that the injured child be born alive before recovery is permitted.

239 The
predominant rule, the rule followed by more than thirty states, is the viability
rule. "A fetus is viable when it is 'so far formed and developed that ifthen born
it would be capable of living.'"

240
The "quick" standard is followed only by

Georgia and states that "[a] child is considered 'quick' when the fetus 'is able to
move in its mother's womb.'"241 The supreme court noted that West Virginia was
the only state that allowed recovery for non-viable fetuses without express

language from the legislature that "unborn children" are included in the state's

wrongful death statute.
242

After considering these four options, the supreme court focused on the

express language ofIndiana's Child Wrongful Death Statute. The supreme court

232. 764N.E.2dat203.

233. Id.

234. Id.

235. Id. at 204 (citing IND. CODE ANN. § 34-M-8(b) (West 1996)).

236. Id. (citing Ind. Code Ann. § 34-l-l-8(a) (West 1996)).

237. Id. (citing Ind. Code Ann. § 34-l-l-8(e) (West 1996)).

238. Id. at 205.

239. Id.

240. Id

241. Id.

242. Id.



2003] TORT LAW 1323

observed that the "definition in the statute contains four concepts: an (1)

unmarried, (2) individual, (3)without dependents, (4) who is less than twenty
years of age."

243
In analyzing these four concepts, the supreme court went on to

say that the first three concepts tend to indicate the legislature contemplated that

only living children would fall within the definition of 'child.' 'Unmarried' and

'without dependents' involve activities in which only living persons engage.

While very young children cannot marry or have dependents, the vocabulary

suggests a desire to define persons who have been born. It would strain this
rather express language to read 'unmarried individual without dependents' to

encompass an unborn child. . . ."
244

In addition, the supreme court looked at other statutes where the legislature

had provided protection for unborn children, such as Indiana Code section 35-42-
1-6 which deals with the termination of a human pregnancy and Indiana Code
section 35-46-5-1 which deals with the trafficking fetal tissue.

245 "From these
statutes, the supreme court felt it was apparent that the legislature knows how to
protect unborn children."

246

The supreme court stated:

The express language ofthe statute and the fact that it is to be narrowly

construed lead us to conclude that the legislature intended that only

children born alive fall under Indiana's Child Wrongful Death Statute.

The legislature can certainly expand the scope of protection under the

Child Wrongful Death Statute if it so chooses.
247

The court went on to say that "[t]he exclusion of unborn children from Indiana's

Child Wrongful Death Statute does not mean that negligently injured expectant
mothers have no recourse."

248
The supreme court quoted the Missouri Supreme

Court, which said, "[T]he mother has her own action for negligently inflicted
injury, in which the circumstances of her pregnancy and miscarriage may be
brought out and considered as part of the intangible damages."

249

In Goleski v. Fritz,
250

the Indiana Supreme Court addressed whether

derivative claims under the Medical Malpractice Act survive a spouse's death

and whether a claim for a deceased patient's medical expenses survive and pass

on to their estate.
251

Lawrence Vetter was treated by defendant physicians and

subsequently died the following day.
252

Dorothy Vetter, Lawrence's wife, filed

243. Id. at 206.

244. Id.

245. Mat 207.
246. Id.

247. Id.

248. Id.

249. Id. (quoting Rambo v. Lawson, 799 S.W.2d 62, 63 (Mo. 1990), superseded by statute as

stated in Connor v. Monkem Co., 898 S.W.2d 89 (Mo. 1995)).
250. 768 N.E.2d 889 (Ind. 2002).

251. Id.

252. Mat 890.



1324 INDIANA LAW REVIEW [Vol. 36:1303

a claim with the Indiana Department of Insurance seeking damages from the
hospital and the physicians for lost "financial support, love, affections, kindness,

attention and companionship" as well as reasonable funeral, burial, and medical
expenses.

253
Dorothy died before the claim review process was completed and

Nadine Goleski, the couple's daughter, was appointed as personal representative
ofDorothy's estate.

254 An amended malpractice claim was filed, contending that
Dorothy's claim survived Dorothy's death and passed to Dorothy's estate.

255

The trial court granted summary judgment for the defendants, holding that
Goleski could not maintain an action under any ofthe three theories.

256
The court

said that Goleski had no cause under the Wrongful Death Act because she was
not the personal representative of Lawrence's estate.

257
The court further noted

that Goleski could not claim under the Medical Malpractice Act because she was
not Lawrence's "representative" as that term appears in the statute.

258
Finally,

the trial court said that the Survival Statute did not help Goleski because she was
not the personal representative of Lawrence's estate and was not alleging that
something other than the defendant's negligence caused Lawrence's death.

259

The court of appeals affirmed the decision.
260

On transfer, the Indiana Supreme Court held that since a personal
representative was not timely appointed within the two-year period, there was not
an action under the Wrongful Death Statute.

261
Further, the supreme court also

held that "claims made by a patient's 'representative' under the Medical
Malpractice Act survive the death of the representative and pass to the

representative's estate."
262

Finally, the supreme court held that "[derivative

claims for medical malpractice such as a claim by a spouse for loss ofconsortium

generally survive the death of the claimant under the Survival Statute."
263

In Estate of Sears v. Griffin,
264

the Indiana Supreme Court addressed the
issue of whether there was a genuine issue of material fact in a motion for
summary judgment that the sister, Elizabeth, was dependent on her deceased
brother, Evan.

265
The Defendant's, Griffin, automobile struck Evan as he was

installing a traffic counting strip in a roadway and he died from the resulting head

injuries.
266

Evan's parents signed a release discharging Griffin from all claims

253. Id

254. Id.

255. Id

256. Id

257. Id.

258. Id.

259. Id.

260. Id

261. Id. at 890-91.

262. Id. at 889-90.

263. Id. at 890.

264. 771 N.E.2dl 136 (Ind. 2002).

265. Mat 1137.
266. Id.



2003] TORT LAW 1325

arising from the accident in exchange for the limit on Griffin's liability insurance

policy.
267

After signing the release, Evan's mother sued Griffin as administratrix

of Evan's estate and as next friend of her daughter, Elizabeth, who was twelve
when the release was signed.

268
"Griffin moved for dismissal of the claims,

arguing that the Sears were entitled to only one remedy, which they had received,

and that Elizabeth could only make a claim through Evan's estate."269

The trial court granted Griffin's motion to dismiss all the claims.
270

Treating

the ruling as a grant of summary judgment, the court of appeals reversed on the
wrongful death claims and Judge Baker concluded that he would affirm the trial

court on all claims.
271 The supreme court held that the estate's survival claim had

no merit because Evan undisputedly died ofthe injuries suffered when struck by
Griffin's car, and the statute requires the person to die from causes other than

those personal injuries sustained in the wrongful act or omission.
272

Furthermore,

the supreme court held that only a personal representative can bring an action

under the Wrongful Death Statute and that Evan's mother as next friend to

Elizabeth lacked standing to bring such a claim.
273

In analyzing the wrongful death claims, the supreme court did note that "the

question whether Elizabeth qualified as a dependent is important in evaluating

the estate's wrongful death claim because the determination of which statute

applies (Wrongful Death Statute or Child Wrongful Death Statute) turns on

whether Evan died 'without dependents.'"
274

"The person claiming dependence

must, however, 'show a need or necessity for support . . . coupled with the

contribution to such support by the deceased."
275

"Pecuniary loss is the

foundation of the wrongful death action. This loss can be determined in part

from the assistance that the decedent would have provided through money,
services or other material benefits."

276
Concerning this loss, the court stated,

"Although the record is not yet developed, it would be quite unusual for a twelve-

year-old with both parents living to be dependent on her teen-age sibling for

services and/or financial support that the parents could not or would not provide

in that sibling's absence."
277

The court then began to define the parameter ofservices, stating that services
must go beyond merely helping other family members, even those who have
relied on such assistance.

278
Further, "[t]he support must also be more than just

267. Id.

268. Id.

269. Id.

270. Id.

271. Id.

272. Id. (emphasis added by court).

273. Id. at 1138.

274. Id. at 1138-39.

275. Id. at 1 139 (quoting N.Y. Cent. R. Co. v. Johnson, 127 N.E.2d 603, 607 (Ind. 1955)).

276. Id. (quoting Luider v. Skaggs, 693 N.E.2d 593, 596-97 (Ind. Ct. App. 1998)).

277. Id.

278. Id. (citing Chamberlain v. Parks, 692 N.E.2d 1380, 1381, 1384-85 (Ind. Ct. App. 1998).



1326 INDIANA LAW REVIEW [Vol. 36:1303

a service or benefit to which the claimed dependent had become accustomed."279

The court also was unable to find any cases establishing dependency for purposes
ofthe Wrongful Death Statute based purely on emotional support, or on financial

support and/or services that parents were capable of providing and would be
obligated to provide in the absence of deceased sibling.

280 The court stated that
"[u]nless more than this is proven on remand, Evan died without legal
dependents and recovery for his wrongful death lies under the Child Wrongful

Death Statute, not the Wrongful Death Statute."
281

The Indiana Supreme Court reversed on the estate's wrongful death claim
and remanded for a determination of whether Elizabeth was Evan's legal
dependent.

IV. Underinsured Motorist

In Corr v. American Family Insurance?*
2
the Indiana Supreme Court

addressed whether a vehicle is an underinsured motor vehicle pursuant to section

27-7-5-4(b) ofthe Indiana Code if the amount actually available for payment to
the insured from the tortfeasor's bodily injury liability policies is less than the

policy limits ofthe insured's underinsured motorist coverage. The Corrs' fifteen-

year-old daughter, Janel, was killed in a single-vehicle accident in which several
other people were injured. The owner ofthe vehicle, Balderas, had two separate

policies in effect. Each policy had $ 1 00,000 per person, $300,000 per occurrence

limits.
283

Pursuant to mediation, the parties to the lawsuit agreed that "JanePs

parents, who were divorced, would each receive $57,500."284

The Corrs each had insurance policies through American Family Insurance
("AFI") that provided underinsured motorist coverage ("UIM") with limits of

$ 1 00,000 per person and $300,000 per occurrence.
285 The Corrs maintained that

since all that was available was $57,500, the responsible party was

The Court found these services [helping mother in and out of chairs, driving her to

doctor appointments, carrying groceries, helping with lawn care and snow removal, and

other household tasks] not sufficiently "tangible and material" to establish the parent's

dependence; they "amounted to no more than gifts, donations and acts of generosity

expected of a son to whom free housing, most of his board, gasoline money and
automobile insurance was provided."

Id.

279. Id. (citing Wolf v. Boren, 685 N.E.2d 86, 87 (Ind. Ct. App. 1997) ("Although '[i]n

general a general sense, [decedent's] family was depending on [decedent] to provide his vacation

home as a family retreat,' the Court declined to extend coverage ofthe Wrongful Death Statute that

far.")).

280. Id. at 1140.

281. Id.

282. 767 N.E.2d 535 (Ind. 2002).

283. Id. at 537.

284. Id.

285. Id.



2003] TORT LAW 1327

underinsured.
286 AFI argued that since the responsible party's coverage was

identical to the claimants, Balderas' vehicle was not underinsured.287

Accordingly, AFI denied the parents' claims for Janel's death under each party's
respective UIM coverage.288

The Corrs sued AFI and the trial court granted summaryjudgment in AFI's
favor "on the ground that the Balderas van was not underinsured."289 The trial
court's decision was affirmed by the court of appeals.

290

On transfer, the supreme court first reviewed the statutory definition of
underinsured motor vehicle. Section 27-7-5-4(b) ofthe Indiana Code provides:

For the purpose of this chapter, the term underinsured motor vehicle,

subject to the terms and conditions ofsuch coverage, includes an insured

motor vehicle where the limits of coverage available for payment to the

insured under all bodily injury liability policies covering persons liable

to the insured are less than the limits for the insured's underinsured

motorist coverage at the time of the accident, but does not include an

uninsured motor vehicle as defined in subsection (a).
291

AFI argued that the statute requires a

comparison of the $600,000 per accident bodily injury liability limits

provided by the two Balderas policies to the $300,000 per accident UIM
limit under either James' or Pamela's policy. Under this comparison,

AFI contends that the van was not underinsured because the aggregate
limits of Balderas' bodily injury liability coverage exceeded the limit of

either James or Pamela Corr's UIM coverage.292

In other words, AFI posited that the proper consideration was ofthe per accident
limits rather than the per person limits. In rejecting this proposal, the court stated

that "if a limits-to-limits comparison is to be employed, where only one insured

is injured in an accident, the appropriate limits to compare to determine if a

vehicle is underinsured are the per person limit ofthe tortfeasor's liability policy

and the per person limit ofthe insured's UIM policy."293 The court arrived at this
conclusion based upon section 27-7-5-5(c) ofthe Indiana Code, which states that

the "maximum amount payable for bodily injury under [UIM] coverage is the
lesser of: (1) the difference between: (A) the amount paid in damages to the
insured by [the tortfeasor] and (B) the per person limit of [UIM] coverage [held
by the insured,] or (2) the difference between: (A) the total amount of damages

286. Id. at 539.

287. Id. at 538.

288. Id. at 537.

289. Id.

290. Id.

291. Id. at 538 (citing Ind. CODE § 27-7-5-4(b) (1998))
292. Id.

293. Id.



1 328 INDIANA LAW REVIEW [Vol. 36: 1 303

incurred by the insured; and (B) the amount paid by the tortfeasor."294

The court next observed that the mediation determined that Balderas'
mother's policy was an excess policy above and beyond Balderas' father's
policy; thus, the aggregate per person coverage under both policies was
$200,000.

295
Although the amount ofJames Corr's UIM coverage was in dispute,

the court did not consider this issue.
296

Instead, the court noted that the amount
actually recovered by James and Pamela Corr was $57,500 each, or a total of
$1 1 5,000.

297
Therefore, the court concluded that "the issue is whether we are to

compare the Balderas policy limits ($200,000) or the amount recovered

($57,500) to the amount of each Corr's UIM coverage."298

AFI urged the court to follow the holding in an Indiana opinion that looked
to Colorado case law in deducing that a policy limits to policy limits comparison

was mandated in Indiana.
299

The Corrs, however, submitted that the appropriate
comparison is

between the amount of each Corr's UIM coverage and the amount of
coverage limits actually "available for payment" to each Corr from

Balderas' coverage. Under that comparison, the Corrs argue, the van is
underinsured because the amount available for payment to each Corr

($57,500) is less than the limit of each Corr's UIM coverage ($100,000
for Pamela, and either $100,000 or $250,000 for James).

300

In its consideration of the parties' positions, the court first rejected AFI's

contention that the reasoning in Allstate v. Sanders was instructive.
301 The

Colorado statute relied upon in Sanders was not the same as Indiana's UIM
statute.

302
Unlike the Colorado statute in Sanders, "Indiana's UIM statute does

not express [a] clear preference for a limits-to-limits comparison" but instead

"turns on the amount of the 'coverage limits available for payment to the
insured.'"

303

The court next noted that a cardinal rule ofstatutory construction in Indiana:

"[w]ords and phrases shall be taken in their plain, or ordinary and usual,

sense."
304

Accordingly, the court determined the phrase "available for payment

to the insured" meant money that is "present or ready for immediate use by the
insured, not amounts potentially accessible. Under this view, the amount

294. Ind. Code § 27-7-5-5(e) (2002).

295. Corr, 767N.E.2d at 538.

296. Id.

297. Id.

298. Id.

299. Id. (citing Allstate v. Sanders, 644 N.E.2d 884 (Ind. Ct. App. 1994) (citing Leetz v.

Arnica Mut. Ins. Co., 839 P.2d 511 (Colo. Ct. App. 1992)).

300. Id. at 538-39.

301. Id. at 539.

302. Id.

303. Id.

304. Id. (citing IND. CODE § l-l-4-l(l)(2000)).



2003] TORT LAW 1329

'available' is the $57,500 each Corr actually recovered, not the $200,000

theoretically available from the Balderas. Moreover, if the term 'available for

payment' did not achieve this result, it would apparently be wholly surplusage,
contrary to standard principles of statutory construction."

305

In reversing the trial court, Justice Boehm noted that "[o]ur holding today is
also congruent with the underlying purpose of UIM coverage, which broadly
stated is to give the insured the recovery he or she would have received if the
underinsured motorist had maintained an adequate policy of liability

insurance."
306

Further, the court opined that AFI's position "leads to the

anomalous result that when multiple people are injured in an accident, an injured
party is in a better position ifthe driver responsible for the accident is not insured

at all than if he or she has insurance."
307

Finally, the court rejected AFI's argument that the language of its policy

mandates a limits-to-limits comparison based on the fact that Indiana does not

permit insurers to offer less coverage than the law requires.
308 By unanimous

opinion, the supreme court found that the Balderas' van was underinsured;
therefore, the trial court erred in granting summary judgment in AFI's favor.309

V. Damages

A. Punitive Damages

In Cheatham v. Pohle,
310

the court of appeals considered whether the

allotment of 75% of punitive damage awards to the State of Indiana's victim
compensation fund, pursuant to section 34-51-3-6 of the Indiana Code, is an

unconstitutional taking ofthe prevailing party's property under the United States

and Indiana Constitutions. The court also addressed whether the same statute
violates article 1, section 21 of the Indiana Constitution because it is an

unconstitutional demand on the prevailing party's attorney without just
compensation.

Doris Cheatham sued her former husband, Michael Pohle, for invasion of
privacy and intentional infliction of emotional distress after he posted nude
photographs of her in various public places.

3 n A jury awarded Cheatham
$100,000 in compensatory damages and $100,000 in punitive damages.

312

305. Id. at 540 (citing State ex rel Hatcher v. Lake Superior Court, 500 N.E.2d 737, 740 (Ind.

1986); Ind. Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 339 (Ind. 1994)

(mere surplusage unacceptable according to ordinary canons of statutory construction)).

306. Id. (citing Lee R. Russ & Thomas F. Segella, Couch on Insurance 3d § 171:2
(1995)).

307. Id. (quoting Corr v. Shultz, 743 N.E.2d 1 194, 1 197 (Ind. Ct. App. 2001)).

308. Id. (citing Corr, 743 N.E.2d at 1 199).

309. Mat 541.
3 1 0. 764 N.E.2d 272 (Ind. Ct. App. 2002).

311. Id. at 274.

312. Id.



1330 INDIANA LAW REVIEW [Vol. 36:1303

The statute that permits the State to take 75% of Cheatham's punitive
damage award, reads, in relevant part, as follows:

(a) [W]hen ajudgment that includes a punitive damage award is entered
in a civil action, the party against whom the judgment was entered shall
pay the punitive damage award to the clerk ofthe court where the action
is pending.

(b) Upon receiving the payment described in subsection (a), the clerk of
the court shall:

(1

)

pay the person to whom punitive damages were awarded twenty-five
percent (25%) of the punitive damage award; and

(2) pay the remaining seventy-five percent (75%) ofthe punitive damage
award to the treasurer of state, who shall deposit the funds into the
violent crime victims compensation fund.

313

Cheatham asserted that the State's collection of 75% of her punitive damages
award was an "unconstitutional taking under the Fourteenth Amendment ofthe
United States Constitution and Article 1, Section 21 of the Indiana

Constitution."
314 The court observed that courts in several states have found no

vested property right in punitive damage awards. "Moreover, it is well settled
law in Indiana that there is no entitlement to punitive damages .... That being
the case, we decline to hold that the State's appropriation of a portion of a
judgment creditor's punitive damages is an unconstitutional 'taking.'"

315

The court next addressed Cheatham's argument that the State's right "to

collect 75% of her punitive damage award, without a corresponding obligation
to pay any attorney's fees, unconstitutionally demands the services of her
attorney withoutjust compensation."

316 Cheatham contended that section 34-5 1 -

3-6 of the Indiana Code conflicts with article 1, section 21 of the Indiana
Constitution, which provides that "[n]o person's particular services shall be

demanded, without just compensation . . . ,"
317

The court stated that Cheatham must meet a three part test in order to prevail
on her particular services claim.

318
Specifically, based on the test set forth by the

Indiana Supreme Court in Bayh v. Sonnenburg 319 Cheatham must demonstrate
that her attorney "(1) performed particular services, (2) on the State's demand,

(3) without just compensation."
320

313. Ind. Code §34-51-3-6 (2002).

314. Cheatham, 764 N.E.2d at 276.

315. Id. at 277 (citing Durham ex. rel. Estate of Wade v. U-Haul Int'l, 745 N.E.2d 755, 764

(Ind. 2001)).

316. Id.

317. Ind. Const, art. I, § 2 1

.

318. Cheatham, 764 N.E.2d at 277-78.

319. 573 N.E.2d 398 (Ind. 1991).

320. Cheatham, 764 N.E.2d at 278. (citing Sonnenburg, 573 N.E.2d at 41 1).



2003] TORT LAW 1331

First, the court looked to Sonnenburg to determine whether the Cheatham's
attorney's services were "particular" as contemplated by article 1, section 21

.

321

The proper query to determine whether services are "particular" is "(1) whether
the services [have] been historically compensated; and (2) whether the service

was something required of a party as an individual, in contradistinction to what
is required, generally, of all citizens."

322 The court found that "at least since
1853, our supreme court has recognized that attorneys have a right to be

compensated for services different from those that are required of ordinary

citizens .... We conclude, and it is well settled, that attorneys perform
'particular services' within the meaning of Article 1, Section 21."

323

The court next examined the question of whether Cheatham's attorney
performed services "on demand" from the State.

324
The court observed that

"[t]he essence of a demand, as opposed to a mere request, for one's services

encompasses 'the use or threatened use of physical force or legal process which

creates in the citizen a reasonable belief that he is not free to refuse the

request.'"
325

Because the State effectively compels attorneys to forfeit their right

to collect fees on 75% ofa punitive damage award pursuant to section 34-51-3-6
of the Indiana Code, the court deduced that Cheatham's lawyer "provided legal

services on demand from the State."
326

"In other words, this statute presents a

threat of legal process against all attorneys who fail to surrender to the State their
right to collect fees and costs from 75% of a punitive damage award."327

Finally, the court considered the final prong of the Sonnenburg analysis to

ascertain whether section 34-51-3-6 of the Indiana Code mandates withholding
just compensation from attorneys who win punitive damage awards for their
clients.

328 The court noted that the constitutional question is whether the statute

"allows the State to exploit an attorney's particular legal services without paying

for them."
329 The court further observed that "[a]s drafted, the statute not only

forces the winning party to surrender 75% of its award, but prevents that party's
attorney from recovering fees and costs from that portion of the award while

allowing the State to benefit from successful legal representation without having

to pay any renumeration or expenses."
330

Continuing, the court stated

the statute as written presents an interesting ethical dilemma for
attorneys. If the State is not required to pay the prevailing party's

attorney's fees, as it relates to the State's share ofthe punitive damages

321. Id. (citing Sonnenburg, 573 N.E.2d at 413-14).

322. Id.

323. Id.

324. Id.

325. Id. at 279 (citing Sonnenburg, 573 N.E.2d at 417).

326. Id.

327. Id.

328. Id. at 279-80.

329. Mat 280.
330. Mat 280-82.



1332 INDIANA LAW REVIEW [Vol. 36:1303

award, what incentive to attorneys have to then seek such damages for
their clients, even in cases where punitive damages might be
warranted?

331

The court surmised that Cheatham demonstrated that her attorney was notjustly
compensated under the statute; accordingly, the third prong of the Sonnenburg

test was met.332 As such, the court held that "Indiana Code Section 34-51-3-6
violates Article 1, Section 21 of the Indiana Constitution and is void on its face

as matter of law to the extent that it requires attorneys to perform, upon demand
from the State, particular services without just compensation."

333

B. Negligent Infliction ofEmotional Distress

In Blackwell v. Dykes FuneralHomes, Inc.,
334

the court ofappeals addressed

the scope ofthe impact rule as it applies to claims for the negligent infliction of

emotional distress. After Phil Blackwell's suicide, his family arranged for him
to be cremated by Dykes Funeral Home and entombed by Graceland Cemetery's
Chapel of Peace in a glass niche. Several years after Phil Blackwell's urn was
entombed, his parents learned that his remains were not in the glass niche and

were, in fact, lost. The Blackwells brought suit against Dykes and Graceland for
breach ofcontract and intention and negligent infliction ofemotional distress.

335

The trial court granted the defendants' motions for summaryjudgment on the
intentional and negligent infliction of emotional distress claims. The trial court

also granted summary judgment in favor of the defendants on the plaintiffs'
request for punitive damages on their breach of contract claim. On appeal, the
Blackwells asserted that the trial court erred when it granted summaryjudgment
in favor of the defendants on the Blackwells' claim for negligent infliction of

emotional distress.
336

In addressing the Blackwells' appeal, the court examined the erosion ofthe

traditional impact rule in Indiana throughout the last decade. Specifically, the

court discussed Indiana's modified impact rule as applied by the Indiana

Supreme Court in the Shuamber, Groves and Bader opinions.
337 The court

recognized that, under the modified impact rule, Indiana allows claims for

negligent infliction ofemotional distress resulting from a physical injury that has

occurred to another person.
338 The court noted:

331. Id. at281n.8.

332. Id. at 282.

333. Id.

334. 771 N.E.2d 692 (Ind. Ct. App. 2002).

335. Id. at 694.

336. 7<*at695.

337. See id. at 695-96 (citing Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991); Groves

v. Taylor, 729 N.E.2d 569 (Ind. 2000); Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000)).

338. See id. at 696 (citing Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991); Groves v.

Taylor, 729 N.E.2d 569 (Ind. 2000); Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000)).



2003] TORT LAW 1333

[T]he Blackwells, as bystanders, claim that they suffered emotional

distress that resulted from the alleged negligent conduct that involved a
close relative's remains. . . . While there was no physical impact, the
Blackwells have alleged serious emotional trauma and it is ofa kind that
a reasonable person would experience.

In our view, this is the type ofclaim . . . where the plaintiff is sufficiently

and directly involved in the incident giving rise to the emotional trauma.

. . . We are satisfied that the evidence designated to the trial court in this
case is such that the alleged mental anguish suffered by the Blackwells
is not likely speculative, exaggerated, fictitious, or unforeseeable. . . .

Provided they can prevail on their negligence claim, we see no reason
why the Blackwells should not be able to claim damages for emotional
distress.

339

Accordingly, the court found that the trial court erred in granting summary
judgment in Dykes' favor. However, the court affirmed the trial court's grant of
summary judgment in Graceland's favor based upon the court's finding that the
Blackwells failed to provide any evidence demonstrating that Graceland ever

took possession of the urn.
340

C. Zero Verdict

In Neher v. Hobbs,
341

the Indiana Supreme Court considered whether, in a

matter where liability is admitted or clear, a case may be remanded for a new trial
solely on the issue of damages. At the trial of this personal injury case, the jury

returned a verdict in favor ofplaintiff/husband Gary Hobbs but awarded him zero
damages.

342
Thejury found for the defendant on Mrs. Hobbs' loss ofconsortium

claim. The trial court granted the plaintiffs' motion to correct errors and ordered

a new trial.343 The court of appeals reversed the trial court and ordered the
verdict reinstated.

344

On transfer, the supreme court considered Neher' s position that "the trial
court failed to supply sufficient findings of fact pursuant to Indiana Trial Rule

59(J)(7)" and abused its discretion as the "thirteenth juror."
345

Additionally, the

court considered a cross-appeal by the plaintiffs asserting that the trial court erred

in failing to limit the new trial to the issue of damages only.346

With regard to Neher' s argument that the trial court failed to comply with

339. Id. at 697 (citation omitted).

340. See id.

341. 760 N.E.2d 602 (Ind. 2002).

342. Id. at 604.

343. Id.

344. Id.

345. Id.

346. Id.



1334 INDIANA LAW REVIEW [Vol. 36: 1303

Trial Rule 59(J)(7), the court countered that "[w]hen, as here, a trial court grants

a new trial on grounds that the verdict is clearly erroneous rather than because
it is against the weight of the evidence, the findings need not set forth the

supporting and opposing evidence."
347

Further, the court noted:

In the present case, the trial court's findings provide adequate

explanation as to why the trial court ordered a new trial rather than
entering a judgment on the evidence. The court did not take issue with
the jury's determination that the defendant was at fault for the collision,
but only with the jury's failure to award damages to plaintiff Gregory
Hobbs and to award a judgment for plaintiff Emma Hobbs. While
finding that these aspects of the jury's verdicts clearly erroneous as

contrary to the evidence, the trial court could not, on this basis,

affirmatively determine the proper amount ofdamages and enter a final
judgment accordingly. From the trial court's findings, it is clear why it
ordered a new trial rather than entering ajudgment on the evidence. We
therefore reject the defendant's claims that the trial court's findings

failed to comply with the procedural requirements ofTrial Rule 59(J).
348

The court next addressed Neher's contention that the trial court abused its
discretion as a thirteenth juror in setting aside the jury's verdict.

349
Noting that

"[a] trial court's authority to act under the 'thirteenthjuror' principle refers to its

power to grant a new trial if it determines that the verdict is 'against the weight
of the evidence' pursuant to Trial Rule 59," the court again recognized that the

trial court's "new trial order was not based upon its weighing ofthe evidence but
upon its finding that the verdicts were clearly erroneous as contrary to the

evidence."
350

Relying upon the parties' stipulation to Mr. Hobbs' medical
expenses and compensation for his partial permanent impairment (PPI) rating at

trial, along with comments made by defense counsel in his closing argument, the
court deduced that Neher admitted Hobbs sustained medical expenses and
impairment as a result of the auto accident.

351
Therefore, the court determined

that the trial court did not abuse its discretion when it ordered a new trial upon
its finding that the jury's verdict was clearly erroneous.352

Finally, the court agreed with Hobbs that, pursuant to Trial Rule 59(J), the
new trial should be limited to two issues: "(a) the amount of damages to be
awarded to plaintiff Gregory D. Hobbs, and (b) whether the plaintiff Emma J.
Hobbs is entitled to a judgment in her favor and, if so, the amount of any

347. Id. at 606 (citing IND. T.R. 59(J); State v. Kleman, 503 N.E.2d 895, 896 (Ind. 1 987); Karl

v. Stein, 749 N.E.2d 71, 78 (Ind. Ct. App. 2001); Keith v. Mendus, 661 N.E.2d 26, 32 (Ind. Ct.

App. 1 996)) (emphasis supplied by the court).

348. Id.

349. See id. at 606-07.

350. Id. at 607 (citing State v. Kleman, 503 N.E.2d 895, 896 (Ind. 1987)).

351. See id.

352. See id. at 607-08.



2003] TORT LAW 1335

damages."
353

In Russell v. Neumann-Steadman?
SA
the court of appeals addressed the trial

court's role in granting additur in an instance where there is a plaintiff-favorable

verdict and evidence of damages, yet the jury has failed to award damages.

Russell's vehicle rear-ended Neumann-Steadman ("Steadman") while the
vehicles were in line at a car wash.

355
Steadman incurred $2100 in medical

expenses.
356

"At trial, Russell admitted that she was at fault for the collision, and that
Steadman could not have avoided it."

357
Steadman's physician testified that her

injuries were caused by the accident and Russell failed to call a medical expert

to refute this testimony.
358

Despite the evidence presented at trial and its finding

in favor of Steadman, the jury awarded zero damages to Steadman.
359

Steadman

then filed a Motion to Correct Error and Request for Additur.
360 The trial court

found the jury's award to be inadequate because there was undisputed evidence

of Steadman's medical expenses.
361

However, the trial court not only awarded

$2100 for medical expenses, it "also awarded an additional $4200, presumably

for pain and suffering."
362

The court ofappeals noted that Trial Rule 59(J) "empowers the trial court to
enter a final judgment fixing damages only when the evidence on the amount of
damages is clear and unrebutted."

363
Moreover, "[djamage awards for pain and

suffering are particularly within the province ofthejury because they involve the

weighing ofevidence and credibility ofwitnesses."
364

Here, the court ofappeals

found that the trial court's award of $4200 above and beyond the amount of

undisputed medical expenses, presumably for pain and suffering, invaded the

jury's province.
365

Hence, the court held that the trial court abused its discretion.

Accordingly, the court reversed the trial court's judgment and remanded the

matter for a new trial on the issue of damages.366

353. Id. at 608.

354. 759 N.E.2d 234 (Ind. Ct. App. 2001).

355. See id. at 236.

356. See id. at 238.

357. Id. at 236.

358. See id. at 237.

359. See id. at 236.

360. Id.

361. Id.

362. Id. at 238.

363. Id. (quoting Sherman v. Kluba, 734 N.E.2d 701, 704 (Ind. Ct. App. 2000), trans, denied

(quoting Amos v. Keplinger, 397 N.E.2d 1010, 101 1 (Ind. App. 1979))).
364. Id. (citing Ritter v. Stanton, 745 N.E.2d 828, 845 (Ind. Ct. App. 2001)).

365. See id.

366. Id.



1336 INDIANA LAW REVIEW [Vol. 36:1303

VI. Statute of Limitations

In Ray-Hayes v. Heinamann
367

the Indiana Supreme Court, in a per curiam
decision, addressed "whether a civil action is timely commenced if the plaintiff
files a complaint within the applicable statute of limitations but does not tender

the summons to the clerk within that statutory period."368 In resolving this issue,
the supreme court was also resolving a conflict between the court of appeals
opinion in this case,

369
and the opinion in Fort Wayne International Airport v.

Wilburn.
370

In Wilburn, the court of appeals held that the complaint was not timely
commenced where the plaintifftendered the complaint and filing fee to the clerk
within the proper statute of limitations, but did not tender the summons to the
clerk until after the statute of limitations had expired.

371
The court in Wilburn

followed the language in Boostrom v. Bach 312 which stated that the statute of
limitations continues to run, and is not tolled, where a plaintiff failed to send the

filing fee with the complaint which the clerk refused to file.
373

The court
described its result in Boostrom as "consistent with the modern notion that the
commencement ofan action occurs when the plaintiffpresents the clerk with the
documents necessary for commencement of suit."374

On the other hand, the court of appeals reached the opposite conclusion in
Ray-Hayes I.

315
In that case, the plaintiffamended her complaint within the two-

year statutory period but failed to tender summonses until more than four months
after the two-year statutory period.

376 The trial court dismissed the claims against
the defendant, Nissan.

377 The court of appeals held that "because the plaintiff
filed her amended complaint within the statute oflimitations, she commenced her
claims against Nissan timely and dismissal was error."

378

In a narrow 3-2 majority, the Indiana Supreme Court held that the summons
are required to be tendered within the statute of limitations period.

379
The court

also said that "[requiring that the summons be tendered within the statute of
limitations is also good policy because it promotes prompt, formal notice to

defendants that a lawsuit has been filed."
380

Moreover, the supreme court stated

367. 760 N.E.2d 172 (Ind. 2002) (Ray-Hayes II).

368. Id. at 173.

369. 743 N.E.2d 777 (Ind. Ct. App. 2001) (Ray-Hayes I).

370. 723 N.E.2d 967 (Ind. Ct. App. 2000).

371. See id.

372. 622 N.E.2d 175 (Ind. 1993), cert, denied, 513 U.S. 928 (1994).

373. Ray-Hayes II, 760 N.E.2d at 173 (quoting Boostrom, 622 N.E.2d at 175).

374. Id at 1 73-74 (quoting Boostrom, 622 N.E.2d at 1 77).

375. Id at 174.

376. See id

377. See id

378. Id

379. Id.

380. Id



2003] TORT LAW 1337

that its approval of Wilburn coincided with recent amendments to the Indiana
Trial Rules.

381
Indiana Trial Rule 3 became effective April 1, 2002, and states:

A civil action is commenced by filing with the court a complaint or such
equivalent pleading or document as may be specified by statute, by
payment ofthe prescribed filing fee or filing waiving the filing fee, and,
where service of process is required, by furnishing to the clerk as many
copies of the complaint and summons as are necessary.

382

The Indiana Supreme Court vacated the court of appeals opinion in Ray-Hayes
/and affirmed the trial court's dismissal of the claims against Nissan.

In Ray-Hayes v. Heinamann™ the Indiana Supreme Court revisited the case
and addressed the issue of whether to apply the previous decision only

prospectively.
384

In Bayh v. Sonnenburg,3 *5 the Indiana Supreme Court followed
"the three-prong test employed by the United States Supreme Court to determine

when to follow the unusual course ofapplying a decision prospectively."386 The
first prong states that "the decision must establish a new principle of law, either
by overruling clear past precedent on which litigants may have relied, or by
deciding an issue of first impression whose resolution was not clearly
foreshadowed."

387 The second prong requires the court to "look at the purpose

and effect of the rule, and whether retrospective operation will further or retard

its operation."
388 The final prong requires the court to "weigh the inequity

imposed by retroactive application."
389

Concerning the first prong, the supreme court noted that "[sjeveral judges on

the court ofappeals shared the view that service ofthe summons was not needed
to toll the statute of limitations, and [that] it [was] regrettable that former Trial

Rule 3 did not explicitly refer to the summons."
390

Further, the supreme court's

mention of the summons in Boostrom came in a footnote.
391

Under these

circumstances, the supreme court thought "the resolution of this issue was
arguably a surprise" and was not "clearly foreshadowed."

392
In regards to the

second prong, the supreme court considered it only "marginally relevant."
393

The
supreme court believed the third prong warranted giving relief to Ray-Hayes

because the "[dismissal of her complaint as a result of her understanding ofthe

381. See id.

382. Id. at 174-75.

383. 768 N.E.2d 899 (Ind. 2002) (Ray-Hayes III).

384. Id. at 900.

385. 573 N.E.2d 398 (Ind. 1991).

386. Ray-Hayes III, 768 N.E.2d at 900.

387. Id.

388. Id.

389. Id.

390. Mat 901.
391. Id.

392. Id.

393. Id.



1338 INDIANA LAW REVIEW [Vol. 36:1303

rule, which was shared by some respected authorities on Indiana law, [was] a
particularly harsh result."

394
The supreme court said:

Prospective application in this case [was] a product of its very specific

circumstances: the diversity of opinion among legal experts as to the
proper application of [Indiana] Trial Rule 3 when Ray-Hayes' complaint
was filed, that retrospective application of[their] decision to Ray-Hayes'
case [would] not further that holding's operation, the harsh result of

dismissal, and the apparent lack ofprejudice to the opposing parties from

delay in the services of summonses.
395

The Indiana Supreme Court granted Ray-Hayes' petition for rehearing, vacated
the trial court's dismissal of her action against Nissan for failure to tender

summonses before the statute of limitations expired, and remanded for further
proceedings, "including an opportunity for the defendants to renew their motions

to dismiss if they can establish a material detriment in the presentation of their

case or otherwise occurring as a result ofthe delay in issuance of summons and
notification to them that a claim had been asserted."

396

In Young v. Tri-Etch, Inc.,
291

the court of appeals addressed the issue of
"whether the trial court erred in determining that a liability limitation in the

service contract between Tri-Etch and Muncie Liquors applied to the estate's

claim against Tri-Etch."
398

Muncie Liquors purchased a security system and

contracted for alarm monitoring services from Tri-Etch.
399

Tri-Etch provided an

additional service which was that ifthe store's alarm was not set within a certain
amount oftime after the usual closing time, Tri-Etch would call the store, notify

the general manager, and then call the police.
400 On August 12, 1997, the store

was robbed and the employee was kidnapped, severely beaten, and left tied to a
tree in a nearby park.

401
Tri-Etch, based on its additional service, did not contact

the general manager until 3:00 AM, on August 13, 1997, which led the estate to
file its complaint on August 6, 1999, because Tri-Etch failed to notify the store

ofthe alarm not being set by 12:30 AM.402 Tri-Etch filed a motion for summary
judgment that requested the court enter judgment in its favor for the reason that

under the terms of the service contract between Muncie Liquors and Tri-Etch,
any action against Tri-Etch must have been brought within one year of the

incident giving rise to the cause of action.
403

The trial court's decision was based on the opinion in Orkin Exterminating

394. Id.

395. Id.

396. Id. at 901-02.

397. 767 N.E.2d 1029 (Ind. Ct. App. 2002) (Young I).

398. See id. at 1030.

399. See id.

400. Id. at 1030-31.

401. Id.

402. Id. at 1030-31.

403. Id. at 1031.



2003] TORT LAW 1339

Co. v. Walters,
404

where that court noted that "Indiana law recognizes that

Walters [the plaintiff] had an option of suing in tort or in contract for the

negligent performance ofa contractual duty Walters' suit based in tort does

not change the fact that Orkin's duty to Walters is based on the contract.

Moreover, bringing a suit in tort does not allow Walters to avoid the limitation

of liability clause in the contract."
405

The rationale for Orkin court's rule came from Better FoodMarkets, Inc. v.
American District Telegraph Co. :

406
"Although an action in tort may sometimes

be brought for the negligent breach of a contractual duty, . . . still the nature of

the duty owed and the consequences of its breach must be determined by
reference to the contract which created that duty."

407

The estate asserted that "no private contract can be effective in extinguishing
or limiting [a party's] legal liabilities to third persons."

408 The estate cited to
CSXTransportation, Inc. v. Kirby 409 where the court noted that "'a party may not
contract against his own negligence' . . . [so] CSX could not contract away the
duty of reasonable care which it owed the Kirbys."

410

The court of appeals noted that neither Orkin nor CSX Transportation
directly addressed the issue of whether contract liability limits apply to third

parties suing in tort, but that the holding in Orkin was instructive.
411 The court

held that "whether the estate brings its claim in contract or tort, it cannot escape

the liability limitations in the service contract."
412 The court also found it

unnecessary to determine whether a separate oral contract existed because its

genesis in the relationship was established by the written contract.
413

The court

of appeals affirmed the trial court's grant of summary judgment for Tri-Etch.
414

In Young v. Tri-Etch, Inc.
415

the court of appeals revisited the case which

was before the court on a petition for rehearing. The estate made two arguments:

(1) Morris v. McDonald's Corp.,
416 was binding precedent that conflicted with

the court's decision in Young I; and (2) the summaryjudgment for Tri-Etch was
contrary to public policy.

417
The court of appeals restated that "Tri-Etch would

404. 466 N.E.2d 55 (Ind. Ct. App. 1984), trans, denied, abrogated on other grounds in

Mitchell v. Mitchell, 695 N.E.2d 920, 922 (Ind. 1998).

405. Orkin, 466 N.E.2d at 58 (citation omitted)).

406. 253 P.2d 10, 15-16 (Cal. 1953).

407. Orkin, 466 N.E.2d at 58 (citation omitted)).

408. Id. at 1034.

409. 687 N.E.2d 61 1 (Ind. Ct. App. 1997).

410. Id. at 615 (quoting Freigy v. Gargaro Co., 60 N.E.2d 288, 292 (Ind. 1945) (citations

omitted)).

411. Young I, 767 N.E.2d at 1034.

412. Id.

413. Mat 1035.
414. Id.

415. 773 N.E.2d 298 (Ind. Ct. App. 2002) (Young II).

416. 650 N.E.2d 1219 (Ind. Ct. App. 1995).

417. KoM/2£//,773N.E.2dat299.



1 340 INDIANA LAW REVIEW [Vol. 36: 1 303

have had no relationship with Young at all were it not for the service contract
between Muncie Liquors and Tri-Etch. Thus, the liability limitations in the
contract are controlling over Young's claim against Tri-Etch."

418
In addition, the

court stated that they did "not need to reach the question ofthe existence ofduty

in this case because any duty that might exist would arise out of the service
contract and would thus be bound by contract terms."

419
The court of appeals

affirmed its previous opinion in full.
420

However, on November 13, 2002,
transfer was granted according to Indiana Rule of Appellate Procedure 58(a)421

which vacates the court of appeals opinion.
422

VII. Bad Faith

In Stoehr v. Yost,
423

the court of appeals addressed whether the trial court

abused its discretion in sanctioning State Farm for acting in bad faith during the
mediation process.

424
In April 1999, Stoehr' s counsel sent a letter to Yost's

counsel stating that a mediation would be required before trial under the local

rules of court. Because of scheduling issues, the parties failed to perform a

timely mediation. Stoehr moved the court for a continuance, which was
granted.

425 Upon arrival at the scheduled mediation, Stoehr' s counsel told the
mediator that "based on the facts of the case he did not believe his client was
liable, and therefore, he did not intend to offer the Yosts any money."

426
"While

Stoehr' s counsel expressed a willingness to go forward with the mediation and

possibly change his position depending on what the Yosts had to say, counsel for

the Yosts elected to terminate the mediation upon learning that State Farm would
not be making a settlement offer."

427

The Yosts filed a Petition for Fees and Costs, claiming that "State Farm acted
in bad faith by failing to authorize Stoehr' s counsel to settle the case."

428 The
petition was granted, but the sanctions award was delayed until an evidentiary
hearing.

429
In the meantime, the case went to trial and ended in a verdict for the

defendant.
430

During the evidentiary hearing, "Stoehr' s counsel requested that

the trial court reconsider its prior ruling on the Yosts' petition."
431 The trial court

418. Id.

419. Id. at 300.

420. Id.

421. IND. R. App. P. 58(a).

422. 783 N.E.2d 702 (Ind. 2002).

423. 765 N.E.2d 684 (Ind. Ct. App. 2002).

424. Id. at 685.

425. Id. at 686.

426. Id.

427. Id.

428. Id.

429. Id.

430. Id.

431. Id.



2003] TORT LAW 1341

granted a hearing de novo where it "found that State Farm had acted in bad faith
and ordered Stoehr to pay for the Yosts' costs and attorney's fees."

432
Stoehr

appealed the trial court's ruling.
433

On appeal, Stoehr asserted "that the trial court abused its discretion by
sanctioning State Farm for meditating in bad faith when the Yosts failed to
provide the trial court with evidence that State Farm engaged in conscious
wrongdoing for dishonest purposes or that State Farm proposed mediation with
surreptitious or malevolent intent."

434
Conversely, the Yosts maintained that

State Farm's "conduct in inducing the Yosts to mediate, when it had no intention
of participating, was bad faith."

435
Initially, the court of appeals observed that

a trial court, not present at the mediation, is unlikely to appreciate all

that took place there and, as a result, may not understand whether the
parties mediated in "good faith." Moreover, a trial court that equates

"good faith" with the fact or amount of settlement offers, or with the
success of the parties in reaching resolution, may fail to recognize that
sometimes mediation exposes that a case is not "about money," but

rather, is about issues not neatly resolved in a formal legal setting.
436

Next the court noted that in State v. Carter™ the court ofappeals previously
defined "bad faith" in the context ofa mediation as follows: "Bad faith amounts

to more than bad judgment or negligence; 'rather it implies the conscious doing

ofwrong because ofdishonest purpose or moral obliquity. ... It contemplates a
state ofmind affirmatively operating with furtive design or ill will.'"

438
Further,

in response to the Yosts' assertion that State Farm should have objected to
mediation, the court found paragraph four of the trial court's order instructive:

Settlement of the whole case is not the only goal of mediation;

"agreement" is another goal, whether it be a factual stipulation, an

agreement to forego jury trial in favor of binding arbitration, an

identification ofissues, a reduction ofmisunderstandings, a clarification

of priorities, or a location of points ofagreement. Thus, even where the

odds of resolution are slim, mediation can be beneficial because other

goals might be achieved.
439

The court of appeals concluded that "because mediation is not all 'about
money,' . . . State Farm's behavior in suggesting that a mediation be scheduled

in accordance with local rules" did not amount to bad faith.
440

The court of

432. Id.

433. Id.

434. Mat 686-87.
435. Mat 687.
436. Id. (quoting Gray v. Eggert, 635 N.W.2d 667, 671 (Wis. Ct. App. 2001)).

437. 658 N.E.2d 618 (Ind. Ct. App. 1995).

438. Stoehr, 765 N.E.2d at 687-88 (quoting Carter, 658 N.E.2d at 621).

439. Id. at 688 (quoting Carter, 658 N.E.2d at 623).

440. Mat 689.



1342 INDIANA LAW REVIEW [Vol. 36:1303

appeals noted that State Farm's counsel was willing to listen to what the other
side had to say, and depending on what was said, might have been willing to give
an offer at that time.

441 The court also concluded that State Farm did have
someone present at the mediation with settlement authority because a claims
adjuster was present and was in a position to advise State Farm to change its
position and settle the matter.

442
Further, the court found that an attorney is not

required "to notify an opposing party of its intention to not offer any dollar

amount to settle a case prior to mediation."
443

Based on the above findings that

State Farm did not act with dishonest purpose or moral obliquity, the court of
appeals reversed the judgment of the trial court.

444

In Allstate Insurance Co. v. Hammond,445 the court ofappeals addressed the
following two issues:

1. whether the trial court should have granted [Allstate's] motion to

correct error, which sought to reduce the jury's $160,000 judgment

against it to $51,000, the stipulated amount of uninsured motorist

and medical expenses coverage under Hammond's policy; and,

2. whether the trial court erred by instructing the jury that it was to
assess damages against Allstate without regard to the policy
limits.

446

Hammond was rear-ended by an uninsured motorist while stopped at an
intersection. Allstate and Hammond were unable to agree as to the extent of
Hammond's injuries. Hammond sued Allstate alleging that she was its insured
at the time of the accident and that the other motorist was uninsured.

447
The

parties stipulated that "Hammond's policy with Allstate provided uninsured
motorist coverage of $50,000, plus $1,000 in medical expenses coverage."

448

After closing arguments, the following instruction was given to the jury despite

Allstate's objection:

You are instructed that the policy of insurance between Sharon
Hammond and Allstate Insurance Company provided uninsured motorist
benefits with a policy limit of $51,000. In assessing damages for the

injury suffered by Sharon Hammond, you are to fairly value that injury
based on these instructions without regard to the policy limits that were

in effect at the time of this collision.
449

441. Id

442. Id

443. Id

444. Id at 690.

445. 759 N.E.2d 1 162 (Ind. Ct. App. 2001).

446. Mat 1164-65.
447. Id

448. Id

449. Id



2003] TORT LAW 1343

The jury returned and the trial court entered a judgment for Hammond.
Allstate motioned to correct error, "asserting that it could not be held liable for

any amount in excess of the policy limits, $51,000."
450

The motion was denied
and Allstate appealed.

In its appeal, Allstate relied on Town & Country Mutual Insurance Co. v.
Hunter,

451
which states "an insurer providing uninsured motorist coverage is

liable to its insured for damages caused by the uninsured motorist, but only up
to the limits provided for in the insurance policy."

452
The court concluded that

Hunter "accurately reflects the general law in Indiana and controls the outcome
of this case."

453

The court observed that

this case was never tried as a tort action alleging Allstate breached its
duty to Hammond of good faith and fair dealing. The complaint made
no mention ofthat type of breach Thejury was not instructed on the
requirements of bad faith. . . . The evidence at trial focused entirely on
the nature and extent ofHammond's injuries and the extent ofher ability
to work.

454

Moreover, the court noted that "Hammond cites no authority to support her
assertion that the mere fact the jury returned a verdict in excess of the policy

limits is 'prima facie evidence of bad faith."'
455

In finding that the action was
one claiming breach of contract, the court of appeals stated that "the measure of

damages in a contract action is limited to those actually suffered as a result ofthe

breach which are reasonably assumed to have been within the contemplation of
the parties at the time the contract wasformed"

456
The court held that

In a first-party action by an insured to collect uninsured motorist benefits

from his or her insurer, the amount of recoverable damages cannot

exceed the limits provided for in the insurance policy in effect at the

time of the accident, in the absence of any claim or evidence that the

insurer breached its duty of good faith and fair dealing to its insured.
457

Having chosen not to pay for a higher amount of uninsured motorist

coverage, the court opined that Hammond "cannot now seek to effectively
increase her policy limits via a lawsuit in which no evidence of bad faith or

450. Id.

451. 472 N.E.2d 1265 (Ind. Ct. App. 1985).

452. Hammond, 759 N.E.2d at 1 166 (citing Hunter, All N.E.2d at 1270).

453. Id.

454. Id.

455. Id.

456. Id. at 1166-67 (quoting Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind. 1993)

(emphasis added)).

457. Mat 1167.



1344 INDIANA LAW REVIEW [Vol. 36:1303

unfair dealing on the part of Allstate was introduced."
458

Hammond further challenges to Allstate' s reliance on the uninsured motorist
coverage limits in the policy.

459
Specifically, Hammond asserted that (1 ) Allstate

acted in bad faith by using in-house counsel because of the prohibition against

representing two adverse clients; (2) Allstate violated public policy in its
handling of uninsured motorist claims; and (3) Allstate' s policy was ambiguous
and "should be read as waiving the stated policy limits if the insurer and insured

failed to settle a claim and the case is tried in a court."
460

The court rejected
Hammond's challenges, concluding that "the trial court misinterpreted the law
when it denied Allstate's motion to correct error."

461
It thus abused its discretion

in permitting a jury verdict to stand when it exceeded the allowable limit of
recoverable damages as provided in Hammond's policy. The court further noted
that there was no trial evidence or argument that Allstate had acted in bad
faith.

462

With regard to the propriety of the jury instruction that directed the jury to
disregard the limits of the uninsured policy limits, the court noted that when
determining whether error resulted from the giving of an instruction, a three-

prong test is to be followed: "( 1 ) whether the tendered instruction correctly states

the law; (2) whether there is evidence in the record to support giving the

instruction; and (3) whether the substance ofthe instruction is covered by other

instructions that are given."
463

Further, "[a] jury instruction that misstates the

law will serve as grounds for reversal unless the Court on appeal finds that the

error was harmless."
464

Having held that the amount of Hammond's recoverable damages cannot
exceed the policy limits, the disputed jury instruction was a misstatement ofthe

law; thereby, Allstate was prejudiced.
465 The court found that the trial court

erroneously instructed the jury as to the amount of permissible damages,
466

and

the court reversed and remanded with instructions to reduce thejudgment against

Allstate to $5 1,000.
467

VIII. Acceptance Rule

In Becker v. Kreilein,
46* the Indiana Supreme Court addressed whether the

458. Id.

459. Id.

460. Id. at 1167-68.

461. Mat 1169.
462. Id.

463. Id. (citing King v. Clark, 709 N.E.2d 1043, 1046 (Ind. Ct. App. 1999).

464. Id. (citing Liberty Mut. Ins. Co. v. Blakesley, 568 N.E.2d 1052, 1058 (Ind. Ct. App.

1991).

465. Mat 1169-70.
466. Id. at 1170.

467. Id.

468. 770N.E.2d 315 (Ind. 2002).



2003] TORT LAW 1345

owner ofproperty was liable to a third party for injuries sustained due to the acts
of an independent contractor. Mr. and Mrs. Kreilein hired Krueger, a plumber,

to install a sewer line at their home. Failing to realize that the Kreileins' old

sewer line served as the conduit for the next-door neighbors' sewage, Krueger

disconnected the Kreiliens' old line from both the Kreileins' home and from the
main sewer line and left it uncapped. Consequently, the neighbors' sewage

seeped up into the Kreileins' back yard and flowed downhill into the Beckers'

basement. The Beckers sued the Kreileins and Krueger, alleging that their house
had been "condemned as uninhabitable and that they had suffered life-
threatening, permanent injury and other loss from exposure to raw sewage."

469

The trial court granted summary judgment in favor of all defendants; however,
the court of appeals reversed in a split decision.

470

On transfer, the court first recognized that "Indiana's long-standing general
rule is that principals are not vicariously liable for the negligence of their

independent contractors."
471

In addressing whether Krueger was an independent
contractor, the court noted that while the question of whether "someone is an
employee or an independent contractor is generally a question for the trier of

fact," a court may decide the issue "if the significant underlying facts are
undisputed."

472 The Beckers contended that because "Krueger recommended the
easiest, most cost efficient manner in which the work might be done, but the
Kreileins made the ultimate decision" that Krueger was an employee of the
Kreileins.

473
In rejecting this argument, the court held that, as a matter of law,

Krueger was not the Kreileins' employee.
474

Next, the court noted that "Indiana recognizes five exceptions to the general

rule ofnon-liability ofa principal for an independent contractor's negligence."
475

The exceptions are:

(1) where the contract requires the performance of intrinsically

dangerous work; (2) where the principal is by law or contract charged

with performing the specific duty; (3) where the act will create a

nuisance; (4) where the act to be performed will probably cause injury

to others unless due precaution is taken; and (5) where the act to be

performed is illegal.
476

At the outset of its analysis, the court noted that the only exception that was
applicable to the Beckers' cause of action was exception number four.

477 The
court noted that "[a]s to the fourth exception, the proper inquiry is whether, as

469. Id. at 317.

470. Id. (referencing Becker v. Kreilein, 754 N.E.2d 939 (Ind. Ct. App. 2001)).

471

.

Id. (citing Bagley v. Insight Communications Co., 658 N.E.2d 584, 586 (Ind. 1995)).

472. Id. at 318 (citing Moberly v. Day, 757 N.E.2d 1007 (Ind. 2001)).

473

.

Id. (Brief for Appellant at 1 7).

474. Id.

475. Id.

476. Id. (citing Bagley, 658 N.E.2d at 586).

477. Id.



1346 INDIANA LAW REVIEW [Vol. 36:1303

a matter of law, the principal should have foreseen a danger that was
'substantially similar to the accident that produced the complained-ofinjury.'"

478

Therefore, the proper inquiry was "whether the Kreileins should have foreseen
that, absent due precaution by Krueger in installing their new sewer line, [the
neighbors'] sewage would seep into their yard and be washed downhill to
contaminate the Beckers' property. The court concluded that the record did not
support the inference that the Kreileins should have expected this outcome;

hence, the fourth exception was inapplicable.
479

Finding that none of the five exceptions to the general rule that a principal

will not be liable for the acts ofan independent contractor was applicable to the
facts at issue, the court held that the trial court was correct in granting summary
judgment in favor of the Kreileins.

480
With regard to the Beckers' recourse

against the plumber, the court agreed with the court ofappeals that there existed

genuine issues of material fact as to "whether Krueger left the sewer line in a

dangerously defective or imminently dangerous condition."
481

Thus, the court

summarily affirmed the court of appeals ruling to reverse the trial court's grant

of summary judgment in favor of Krueger.482

In Peters v. Forster?*
3
the court ofappeals examined whether an independent

contractor who performs work in knowing or negligent violation of applicable
building codes owes a duty to third parties injured as a result of the defective
condition where the work has been completed and accepted by the owner or
general contractor.

The Hamms, both in poor health, purchased a pre-built ramp to allow access
to their home. Forster, the Hamms' landlord and an independent contractor,
charged the Hamms seventy-five dollars to have two of his employees transport
and install the ramp at the Hamms' residence. Forster later testified that,
although he was unfamiliar with the applicable building codes, he was aware that
the ramp was too steep and did not comply with the applicable building codes for
handicapped ramps. He also stated that he was unaware that the ramp would be
used as a handicapped or wheelchair ramp.

The year following the ramp's installation, Peters delivered a meal to the

Hamm's home. Upon exiting the home, he was injured when he slipped on the
ramp and fell. Peters filed suit against the Hamms and later added Forster as a
party defendant.

484 The Hamms were dismissed from the case after settlement.485

Finding that Forster owed no duty of care to Peters, the trial court granted

478. Id. (quoting Carie v. PSI Energy, Inc., 715 N.E.2d 853, 857 (Ind. 1999)).

479. Id.

480. Id.

481. Id. at 319.

482. Id.

483. 770 N.E.2d 414 (Ind. Ct. App. 2002), reh 'g denied, 2002 Ind. App. LEXIS 1333 (Ind.

Ct. App. July 31, 2002), trans, granted and vacated by 2003 Ind. LEXIS 13 (Ind. Jan. 16, 2003).

484. Id.

485. Id.



2003] TORT LAW 1347

summary judgment in Forster's favor.486

On appeal, the court noted that to succeed in their negligence claim, the
Peters must prove that (1) a duty was owed to them by Forster; (2) Forster
breached that duty; and (3) their injuries were proximately caused by Forster's

breach.
487

Relying upon Indiana's long-standing rule that independent

contractors do not owe a duty of care to third parties after an owner accepts a
contractor's work, Forster argued that he owed no duty to the Peters upon the
Hamms' acceptance of his work.488 Further, "evidence of [an] independent
contractor's mere negligence is insufficient to impose liability against the
contractor after acceptance of the work by the general contractor or owner."489

The court next observed that several factors may be considered in
determining whether the Hamms accepted Forster's work. These factors include
whether "(1) the owner or its agent reasserted physical control over the premises

or instrumentality; (2) the work was actually completed; (3) the owner expressly
communicated an acceptance or release of liability; or (4) the owner's actions

permit a reasonable inference that the work was accepted."
490 The court noted

that the rule relieving the contractor of liability once his work has been accepted
is rooted in the premise that the owner, having control of the premises, is

generally in the best position to prevent harm to third parties.
491

The court determined that Forster actually completed the work and the
Hamms reasserted physical control over their premises.492 The court noted that
"[although there is evidence that Mrs. Hamm did not expressly communicate an
acceptance, the reasonable inference to be drawn from the evidence before us is

that the work was in fact accepted."
493

Having established that acceptance occurred, the court next addressed
whether any of the exceptions to the acceptance rule were applicable under the

circumstances.
494

Despite the general rule that a contractor owes no duty to third
parties once an owner accepts the contractor's work, a contractor may be liable
where the work was left "in a condition that was dangerously defective,
inherently dangerous or imminently dangerous such that it created a risk of

imminent personal injury."
495

The court further noted that if "the thing sold or

486. Id.

487. Id. at 417 (citing Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind. Ct. App. 1994)).

488. Id. (citing Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 170 (Ind. 1996)(citing

Daugherty v. Herzog, 44 N.E. 457 (1896))).

489. Id. (citing U-Haul Intn'l Inc. v. Mike Madrid Co., 734 N.E.2d 1048, 1052 (Ind. Ct. App.

2000)).

490. Id. (citing U-Haul, Int 7, 734 N.E.2d at 1052) (quoting Blake, 674 N.E.2d at 171).

491. Id. (citing Kostidis v. Gen. Cinema Corp., 754 N.E.2d 563, 568 (Ind. Ct. App. 2001)

(citing Blake, 674 N.E.2d at 171)).

492. Id. at 4 19.

493. Id.

494. Id.

495. Id. at 418 (citing U-Haul, Int 7, 734 N.E.2d at 1052 (quoting Hill v. Rieth-Riley Constr.

Co., 670 N.E.2d 940, 944-45 (Ind. Ct. App. 1996))).



1 348 INDIANA LAW REVIEW [Vol. 36: 1 303

constructed be not imminently dangerous to human life, but may become such by
reason of some concealed defect, then a liability may arise against such vendor
or constructor if he knew of the defect and fraudulently concealed it."496

Ultimately, the court reversed the trial court finding that latent defects

existed in the ramp due to its failure to comply with applicable building codes.497

The court opined that Forster installed a ramp, the quality of which did not
comply with the building codes, and which created a dangerous condition that
was not easily ascertainable by the Hamms. The latent defects, which were not
discoverable by the Hamms reasonable inspection, revealed themselves after
installation of the ramp. Forster, as the independent contractor, was in a better
position to prevent the harm given his experience and expertise. Independent
contractors should not be immune when they knowingly or negligently violate
building codes. Accordingly, the court reversed the trial court's grant of

summary judgment in favor of Forster and remand for further proceedings.498

IX. Jury Instructions

In Wal-Mart Stores, Inc. v. Wright,
499

the Indiana Supreme Court addressed
the propriety of a jury instruction that instructed the jury to consider violations

of Wal-Mart policies in deciding whether Wal-Mart was negligent. The
instruction at issue further stated that such violations were evidence tending to

show the degree of care that Wal-Mart itself recognized as ordinary care.500

Wright sued Wal-Mart alleging negligence in the maintenance, care and

inspection of its property after she slipped in a puddle of water at a Wal-Mart

store.
501 At trial, the parties stipulated to the admissibility ofmultiple Wal-Mart

employee documents collated as a "Store Manual."
502

At the conclusion of the

trial, Wright tendered the following instruction:

There was in effect at the time of the Plaintiffs injury a store manual
and safety handbook prepared by the Defendant, Wal-Mart Stores, Inc.,

and issued to Wal-Mart Stores, Inc., employees. You may consider the
violation of any rules, policies, practices and procedures contained in

these manuals and safety handbook along with all of the other evidence

and the court' s instructions in deciding whether Wal-Mart was negligent.

The violation of its rules, policies, practices and procedures are a proper
item ofevidence tending to show the degree ofcare recognized by Wal-

496. Id. (citing Nat'l Steel Erection v. Hinkle, 541 N.E.2d 288, 292 (Ind. Ct. App. 1989)

(quoting Holland Furnace Co. v. Nauracaj, 14 N.E.2d 339, 342 (1938); Snider v. Bob Heinlin

Concrete Constr. Co., 506 N.E.2d 77, 81 (Ind. Ct. App. 1987)).

497. /</. at419.

498. Id. at 419-20.

499. 774 N.E.2d 891 (Ind. 2002).

500. Id.

501. Id. at 892.

502. Id.



2003] TORT LAW 1349

Mart as ordinary care under the conditions specified in its rules, policies,
practices and procedures.

503

Wal-Mart objected to the instruction asserting that a party should not be
penalized for setting standards for itself that exceed ordinary care. Wal-Mart
further argued that ordinary care is decided by the jury.

504
The trial court

overruled Wal-Mart's objection and the plaintiffs tendered instruction became
final.

505 The jury found in Wright's favor and "assessed Wright's total damages
at $600,000, reduced to $420,000 by 30% comparative fault attributed to
Wright."

506 The court of appeals affirmed the trial court's decision "holding the
challenged [second] paragraph of the instruction was proper because it 'did not
require the jury to find that ordinary care, as recognized by Wal-Mart, was the
standard to which Wal-Mart would be held' . . . and because the trial court had
not 'instructed the jury that reasonable or ordinary care was anything other than
that of a reasonably, careful and ordinarily prudent person.'"

507

On transfer, the Indiana Supreme Court initially noted that since Wal-Mart
was challenging the second paragraph ofthe instruction as an incorrect statement
of the law, the proper standard of appellate review was de novo.

508
The court

considered Wal-Mart's argument that the second paragraph of the instruction

invited the jury to apply Wal-Mart's subjective view of the standard of care as

set forth in its Store Manual, "rather than an objective standard of ordinary

care."
509

Wright countered that the instruction's language did not convert the

objective standard to a subjective standard; instead, Wright asserted that the

second paragraph "simply allows jurors to consider Wal-Mart's subjective view

of ordinary care as some evidence of what was in fact ordinary care."
510

The supreme court opined that Wal-Mart was correct in its assertion that its
rules and policies "may exceed its view of what is required by ordinary care in
a given situation."

511
The supreme court also noted that "[t]he law has long

recognized that failure to follow a party's precautionary steps or procedures is

not necessarily failure to exercise ordinary care."
512

Furthermore, the supreme

court agreed with Wal-Mart's position that the instruction, as worded, "invites

jurors to apply Wal-Mart's subjective view—as evidenced by the
Manual—rather than an objective standard of ordinary care."513

503. Id. at 893.

504. Id.

505. Id.

506. Id.

507. Id. (quoting Wal-Mart Stores, Inc. v. Wright, 754 N.E.2d 1013, 1018 (Ind. Ct. App.

2001)).

508. Id. at 893-94 (citing Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998)).

509. Id. at 894.

510. Id.

511. Id.

512. Id. (citing 57A Am. Jur. 2d Negligence § 187 at 239 (1998)).
513. Id. at 895.



1350 INDIANA LAW REVIEW [Vol. 36:1303

By unanimous opinion, the Indiana Supreme Court reversed the trial court
judgment and remanded the case for a new trial based upon the court's
conclusion that "the second paragraph of Final Instruction 17 was an improper
invitation to deviate from the accepted objective standard of ordinary care and

therefore incorrectly stated the law."
514

X. Setoffs

In R.L. McCoy, Inc. v. Jack,
515

the Indiana Supreme Court addressed whether
a non-settling defendant was entitled to a credit for amounts paid by nonparty
defendants who settled with the plaintiffprior to trial. Michael Jack was severely
injured while he was attempting to pass another vehicle in a construction zone.
In addition to suing the State of Indiana, Jack sued the construction project's

contractor, R.L. McCoy, Inc. ("McCoy") and a subcontractor. Prior to trial, the
Jacks entered into a "loan receipt" agreement with McCoy in which they released
McCoy from the suit in exchange for $1 .5 million.516 In relevant part, the loan
agreement read as follows:

7. The parties acknowledge that to the extent an as yet unquantified

portion of the Settlement Payment would otherwise constitute a credit,

setoff, or partial satisfaction to the benefit of any other defendant if it

were not a loan, that as yet unquantified sum is a loan. Accordingly, to
the extent that:

a. The settlement payment exceeds a final non-party verdict

(total damagessuffered by the plaintiffs multiplied by the

percentage at fault, if any, on the part of McCoy (against
McCoy)

AND

b. Ifsuch excess ofthe settlement payment over the amount of

the non-party verdict against McCoy would otherwise
operate to reduce the amount which S.E. Johnson, Inc., the

Indiana Department of Transportation, or the State of

Indiana or any other defendant against whom a final jury
verdict is rendered is obligated to pay as a result ofthe final

verdict in said action, after all appeals have either been

abandoned or exhausted, if it were not a loan,

THEN the amount of the excess which would otherwise reduce the
amount another defendant is obligated by a verdict to pay if the excess

514. Id.

5 1 5. 772 N.E.2d 987 (Ind. 2002).

516. Id.



2003] TORT LAW 1351

were not considered a loan, must be repaid by Jack to McCoy.517

The Jacks proceeded to trial against the State and the subcontractor. The
subcontractor asserted a nonparty defense against McCoy pursuant to the
Comparative Fault Act.

518 Thejury returned a verdict of$5.4 million, but found
McCoy only ten percent at fault and the subcontractor fifteen percent at fault.519

The subcontractor, therefore, was ordered to pay fifteen percent of$5.4 million,
or $810,000.

520
The subcontractor then moved for a set-off of $960,000, the

amount that McCoy's loan receipt agreement exceeded his $540,000 obligation
under thejury's fault allocation.

521 McCoy then moved to enforce the repayment
provisions of the loan and requested that the Jacks repay McCoy the same
$960,000.

522 The trial court denied both motions.
523 The same panel ofthe court

of appeals affirmed the denial of the subcontractor's motion but reversed the

denial of McCoy's motion.524 The court of appeals "concluded that McCoy's
$960,000 excess payment would have been a credit against Johnson's liability if

payment by McCoy to the Jacks were not a loan."525 The Jacks requested
transfer.

526

On transfer, the court first recognized that in the pre-comparative fault era
"credits . . .were a tool to avoid overcompensation of plaintiffs . . . [and] were a

tool to avoid a single defendant bearing too much responsibility for the plaintiffs
damages."

527 The court opined that Indiana's comparative fault system rectified
these issues by replacing joint and several liability with several liability.

528

Further, the defendants were allowed to assert a nonparty defense; thereby,
defendants were permitted to prove the negligence of the absent tortfeasor.

529

The subcontractor asserted a nonparty defense against McCoy and the jury
apportioned fault accordingly.

530
Hence, the court determined that if the

subcontractor were entitled to a $960,000 credit, the subcontractor's "liability

would have been eliminated despite its being found at greater fault than McCoy.
Thus, elimination ofcredit requires the comparative fault defendant to pay for its

517. Id.

518. Id. (citing IND. CODE § 34-51-2-14 (1999)).

519. Id.

520. Id.

521. Id. at 988-89.

522. Id. at 989.

523. Id

524. Id.

525. Id.

526. Id.

527. Id. (citing Mendenhall v. Skinner & Broa
2000)).

528. Mat 989-90.
529. Id. at 990.

530. Id. at 988.



1352 INDIANA LAW REVIEW [Vol. 36:1303

own share, but no more."531

The court next noted that the plaintiffs were not overcompensated because
a "settlement payment normally incorporates an assessment of the exposure to
liability" and includes "the parties' desires to avoid the expense and effort of

litigation and the tactical effect of eliminating a defendant and its counsel from

trial."
532

Accordingly, the court expanded its holding in Mendenhall v.
Broadbent & Skinner Co.533 In Mendenhall, the Indiana Supreme Court held that
since the adoption ofcomparative fault, credits were no longer warranted where
the remaining defendant at trial did not assert a nonparty defense against a

settling party.
534

In expanding on Mendenhall, the court found that the settlement

agreement between the Jacks and McCoy had no bearing on the subcontractor's
liability as assessed by the jury.

535
The court observed that "[u]nlike a joint and

several liability regime, no other defendant is liable for that claim, and none has

a claim to benefit from its overvaluation by the settling defendant or
undervaluation by the plaintiffas compared to thejury's assessment."

536
Finally,

the court concluded that, pursuant to the wording ofthe loan receipt agreement,

McCoy was not entitled to repayment by the Jacks ofthe $960,000 that exceeded
the jury's assessment of McCoy's liability.537

531. Mat 990.
532. Id.

533. 728 N.E.2d 140 (Ind. 2000).

534. Id.

535. R.L. McCoy, 772 N.E.2d at 991

536. Id.

537. Id.