July 19, 2010
On July 19, 2010, the Indiana Court of Appeals issued a memorandum decision, uncitable as authority under
App. R. 65(D), that reminds attorneys to build their record, including hard-to-find sources of legal authority.
less..
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.
Our research into Indiana’s annotated statutes, case law, and administrative code does not indicate that any such law exists. While we are presumed to know the law, see, e.g., Apple v. Apple, 149 Ind. App. 529, 274 N.E.2d 402, 410 (1971), our knowledge is not without limits. And, ultimately, it is Pitcher’s burden to demonstrate reversible error on appeal. Without any verification that Continental was legally bound by the alleged renewal notice rule, we agree with the trial court that whether Continental sent a renewal proposal or non-renewal notice is immaterial and, therefore, hold that the trial court did not err when it entered summary judgment in favor of Continental.
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.
Lessons:
- A plaintiff is under an obligation to establish the existence of a duty, and if that requires providing the court with a particular item of law, then the plaintiff must do so.
- Never rely on a court's ability to find a legal precedent that you cannot.
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