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A water line was leaking near a road in Putnam County, causing water to run across a road and freeze. A Putnam County deputy sheriff was called to the scene of an accident at the location of the leak, notified the Highway Department of the icy condition of the road, and left. The deputy did not take steps to alleviate the icy condition or warn the traveling public of the icy condition. After the deputy left, Price encountered the icy condition, lost control of her vehicle, and was injured in an automobile accident. She sued the Sheriff and others, claiming negligence. The Sheriff moved to dismiss, alleging that he owed no duty to alleviate or warn motorists of the condition of the road and that he was immune from suit. The trial court denied that motion and the Sheriff appealed.

On appeal, the Sheriff argued that he was immune because the danger was a temporary condition caused by the weather. The Court disagreed, noting that the complaint alleged that the condition of the road was caused primarily by a leak in a water line owned by the water company and, therefore, was not caused by the weather. The Court then went on to hold that the Sheriff had a duty to warn of the dangerous condition.

The key to this case was, therefore, the way in which it was pled. The Court based its decision, in large part, upon the fact that the complaint did not plead that the water line broke because of the weather. Instead, the complaint contained no allegation concerning the cause of the leak. It would be interesting to see how the case evolves. For instance, if the weather actually caused the leak, how would this fact affect the Court's analysis? However, these questions could all be avoided at this stage in the proceeding because notice pleading does not require that a plaintiff plead these kinds of facts.

Brad A. Catlin
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In Eiteljorg v. Lean, Case No. 49A05-0912-CV-679, the plaintiff and defendants had all been co-defendants in a prior lawsuit. Two of the co-defendants settled and submitted a proposed order dismissing them from the lawsuit to the trial court. The order contained language setting forth a contribution bar and directing entry of final judgment pursuant to Rule 54(B) as to those co-defendants. The remaining co-defendant, Lean, proceeded with his defense to the action and did not challenge the order dismissing his co-defendants. Eventually, Lean settled with the plaintiffs for $1.73 million.

After settling the underlying lawsuit, Lean sued his former co-defendants for contribution. They moved for summary judgment, citing the contribution bar in the dismissal order. The trial court denied their motion and they appealed.

On appeal, the Court concluded that Lean's claim for contribution was barred by the doctrine of issue preclusion.


While the Court sought to limit its holding to the facts of the case, calling those facts "unique," this case serves as an important practice tip. One should always consider correcting any error in a final judgment at the earliest possible moment, so as to prevent the application of res judicata principals to your particular situation. Failure to do so is a calculated risk that can have large adverse side effects.

Brad A. Catlin
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In this case, a pregnant woman was admitted to a hospital in active labor and was being attended to by a midwife, who had provided prenatal care to the woman during her pregnancy. After the woman was admitted to the hospital, the midwife ruptured the "bag of waters." Less than an hour later, a prolapsed umbilical cord was identified and a doctor was called to the hospital in anticipation of having to perform a Cesarean section. Less than an hour after that, the doctor delivered a stillborn infant girl, who could not be resuscitated. It was discovered that the infant died while the mother was in labor and that the fetal heart rate monitor, which had indicated a heart rate, was actually registering Brown's heart rate. An examination of the umbilical cord and placenta revealed "a large thrombus midway in the cord."

The parents filed a complaint against both the hospital and the midwife, claiming wrongful death and negligent infliction of emotional distress. The trial court granted summary judgment to the defendants on all counts, from which the parents appealed.

On appeal, the Court held that parents could state a claim for negligent infliction of emotional distress against the hospital. It first concluded that the parents' claimed emotional damages, directly related to the child's stillbirth, are of the kind and extent normally expected to occur in a reasonable person and are not likely speculative, exaggerated, fictitious, or unforeseeable. The Court then turned to who qualified as a patient under the Medical Malpractice Act. It followed Ind. Patient's Comp. Fund v. Winkle, 863 N.E.2d 1 (Ind. Ct. App. 2007), reh'g denied, trans. denied, which held that a fetus does not qualify as a "patient" under the Act, and then turned to the question of whether the pregnant mother qualified as an “actual victim” of negligence able to assert Parents' claim for negligent infliction of emotional distress under the Act. The Court held that she did.


The Court then held that the Parents may make the same claim against the midwife, even though she elected non-coverage under the Act, because the Act merely dictates procedures by which a claimant may bring a cause of action.


This case is interesting for many reasons. First it clarifies both the modified impact rule and the remedies Indiana law provides to parents whose children are stillborn due to the negligence of another. It is also likely that the Court's rationale in support of its judgment will be controversial, particularly the part of the case discussing the legal relationship between a pregnant woman and her unborn child. However, litigators should pay particular attention to a passage in the decision discussing Ind. Patient's Comp. Fund v. Butcher, 863 N.E.2d 11 (Ind. Ct. App. 2007), which highlights the reasons why the Court reached this particular result.

Brad A. Catlin
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Brough had borrowed money to purchase a mobile home from Green Tree's predcessor-in-interest and his contract contained an arbitration clause. Brough defaulted on the contract, declared bankruptcy under Chapter 13 (which was converted to a Chapter 7 proceeding), and his debt to Green Tree was discharged in the bankruptcy proceeding. After the bankruptcy discharge, Green Tree filed suit against Brough, who counterclaimed for a violation of the Fair Credit Reporting Act ("FCRA"). Green Tree asked for the case to be stayed and for the trial court to compel arbitration. The trial court granted Green Tree's request and Brough appealed.

On appeal, Brough argued that the contract as a whole was invalid because it was terminated by his bankruptcy discharge. The Court disagreed, citing cases from Texas (In re Wells Fargo Bank, N.A.) and the Ninth Circuit (Siegel v. Fed. Home Loan Mortgage Corp.), which held that a bankruptcy discharge does not terminate a contract entirely and that provisions providing for arbitration or attorney fees survived bankruptcy.

Brad A. Catlin
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The majority knowingly disagreed with in Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846, 848 (Ind. Ct. App. 2009), which had reached the opposite conclusion. Put simply, the McCabe court found that although the general wrongful death statute and the statute pertaining to the wrongful death of children specifically provided for the award of attorney fees, Indiana Code § 34-23-1-2, the Adult Wrongful Death Statute ("AWDS"), did not and that the Legislature's use of the phrase “include but not limited to” when describing recoverable damages did not expand the class of these damages to include attorney fees.

This case will be of particular attention to attorneys who litigate wrongful death cases, for obvious reasons. However, its lessons are deeper than that. Of particular note is the Court's description of its reasons why it would not harmonize all of the wrongful death statutes.


Thus, Judges Mathias and Bradford deferred to the intent of the legislature despite the fact that they found this result "troubling" and an earlier appellate opinion on the topic made a contrary conclusion. This gives us an insight into the jurisprudence of these judges, which can be used both in arguments to them and to trial courts in Indiana.

Brad A. Catlin
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In Florian, the court was asked to determine, among other things, whether the statute of repose precluded a negligence action against a railroad company, GATX, arising out of an accident at a railroad crossing. The plaintiff collided with a tank car, which was manufactured in 1975 and was painted black. The trial court granted GATX's motion for summary judgment and the plaintiff appealed. The court of appeals affirmed.
The court of appeals addressed various issues, including whether the Federal Railroad Safety Act preempted the plaintiff's claims. However, the issue that will be of greater general interest to Indiana litigators will be the court's application of the the 10-year statute of repose found at Indiana Code § 34-20-3-1. The plaintiff argued that his claim was not barred by this statute, because the tank car had been painted black within 10 years of the accident and that the color of the tank car was a contributing factor to the accident. The Court rejected this argument, holding that a change to a product must "materially alter" the product to avoid the statute of repose. In this case, the tank car was painted black when it was delivered and had been repainted black on multiple occasions, which did not amount to a material alteration of the product.

Those interested in issued of federal preemption will want to read that section of this opinion. However, that section of the opinion will not substantially change the manner in which that issue is litigated in the future. The Court's holding that the statute of repose does not apply if a product is "materially altered," on the other hand, will provide parties with a focus toward which they should build their cases and direct their proof if the statute of repose is an issue in their case.

Brad A. Catlin
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In Pitcher v. Berkley Risk Administrators Co, LLC, Case No. 81A04-0908-CV-458, the plaintiff argued that the case turned on the application of a particular rule allegedly promulgated by the Indiana worker’s compensation rating bureau. The defendant moved for summary judgment and the plaintiff designated a single piece of paper as evidence, which contained the rule and bore a copyright that states "1998 National Council on Compensation Insurances, Inc." The plaintiff admitted that he had been unable to establish that the renewal notice "rule" is, in fact, a law with which the defendant must comply and asked that the Court take judicial notice of the rule. The Court declined.


In other words, a plaintiff is under an obligation to establish the existence of a duty and cannot hope that a court will create one from whole cloth. Moreover, if you can't find a particular legal authority that you believe exists, you cannot hope that the court will find it for you. Always build your record and never rely on the magnanimity of the court.

Brad A. Catlin
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The complaint explained the process as follows:


The Court distinguished this situation from that in Lesher v. Baltimore Football Club, 496 N.E.2d 785, 789 (Ind. Ct. App. 1986), vacated in part on other grounds, 512 N.E.2d 156 (Ind. 1987), which held that held that a distribution scheme for season tickets to Indianapolis Colts games did not constitute an unlawful lottery. The Court held that the additional “service fee” or “handling fee” of six to ten dollars per ticket or entry was consideration that was not present in Lesher for a prize (scarce tickets) not present in Lesher.


This decision is significant because it promises to be a landmark decision demarcating illegal lotteries from legal ticket distribution schemes. It may have a large impact on Indiana in particular, given the fact that the NCAA is headquartered in Indianapolis.

However, the decision may be used beyond these limited circumstances. For example, one section of the opinion discusses the equitable doctrine of in pari delicto and holds that this doctrine does not apply (in the context of a 12(b)(6) motion) if the complaint does not state or imply a mutual arrangement to violate the law. This is notable, since a defendant could argue that a plaintiff has the burden of pleading the lack of a mutual arrangement to violate the law in order to satisfy federal pleading standards. Thus, this decision may be helpful to the plaintiffs' bar when arguing the adequacy of their pleadings.

Brad A. Catlin
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Fromme sought records from Crisis Connection as discovery in a criminal case. Crisis Connection cited the victim-advocate privilege, characterized the privilege as "absolute," and refused to provide the requested records. The trial court ordered that Crisis Connection submit its records for an in camera inspection and Crisis Connection appealed from that order.

On appeal, the Court held that the privilege applied to Crisis Connection's records, but disagreed with Crisis Connection's characterization of that privilege as "absolute," noting that the privilege can be waived and that certain information must be disclosed to comply with abuse-reporting laws. It then considered the constitutional implications of applying the privilege to a criminal defendant seeking discovery in a criminal case under the confrontation and compulsory process clauses of the Sixth Amendment and the due process clause of the Fourteenth Amendment. The Court held the three-step analysis for determining whether information is discoverable in a criminal case outlined in In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998), applied to Crisis Connection's claim of privilege under Indiana Code § 35-37-6-9.


The Court's ultimate resolution of the constitutional question will resonate beyond the strict application of the victim-advocate privilege when a criminal defendant seeks privileged information because the Court's rationale and language on this issue are not limited to that specific privilege. However, this decision also informs how the victim-advocate privilege will be applied outside of this limited scope and provides insight into the methods that courts will use in order to construe a "clumsily drafted" statute in pari materia, so that all of its sections make sense and are in accordance with the rest of the Indiana Code.

Brad A. Catlin
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Davidson was an attorney who was disbarred for neglecting his clients and embarked on a multi-state crime spree involving numerous bank robberies in several states. He was insured by the Bar Plan under claims made policy. Davidson's former clients filed legal malpractice actions against him, but Davidson was unable to receive demands from his former clients and failed to notify his carrier of these claims, because he was running from the law as a result of the multi-state crime spree he had commenced upon abandoning his law practice.

Davidson's former clients notified the Bar Plan of their claims and it intervened in their lawsuits, arguing that it was not obligated to cover their claims because Davidson failed to provide notice and assist in the investigation of the claims. The trial court granted the Bar Plan's motion for summary judgment, relying upon Paint Shuttle, Inc. v. Continental Casualty Co., 733 N.E.2d 513 (Ind. Ct. App. 2000). In Paint Shuttle, the Court held that a law firm that did not provide notice of a claim under a claims made policy until nearly two years after the expiration of the policy provided untimely notice and was, therefore, not covered by the policy.

The Court of Appeals reversed the trial court's decision because the Bar Plan "received actual written notice of the claims within the policy period."


This decision should be instructive to Indiana litigators -- and not merely because it involves malpractice insurance. The Court looked to the purpose of a notice requirement and held that actual notice is sufficient to invoke coverage, even if the policy provisions indicate that notice should come from a certain source. This indicates a pragmatic, rather than rules-based, approach to these types of issues, which could apply to both cases involving the sufficiency of notice to an insurance carrier and other provisions within insurance contracts.

Brad A. Catlin
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