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In this case, Willaims was arrested for possessing controlled substances. The existence of a valid prescription is a defense to such a charge, but the man could not remember his prescription information. Pursuant to a statute, the Indiana Board of Pharmacy maintained a computerized database that contains information that is required by law to be transmitted by controlled substance prescription dispensers, which includes the information Williams required. Williams sent a subpoena and request for documents to the Board for a copy of "any and all" of his prescription records. The Board moved to quash the subpoena, arguing that a statute prevented it from disclosing this information to Williams. The trial court granted that motion and Williams appealed.

On appeal, the Court recognized that the information requested by Williams was confidential under I.C. 35-48-7-11.1. That statute described circumstances under which the information could be provided to certain persons, but the patient is not one of the people authorized by statute to receive that information. The Court refused to be strictly bound by this statutory language.


Therefore, the Court concluded that the trial court erred when it quashed the subpoena.

It will not be often that a litigant will prevail despite the fact that the plain reading of a statute is contrary to his position. Thus, we should not hope that we will encounter such a situation often in our practices. However, we should keep in mind that the Court of Appeals can be swayed by practical argument from the strict application of apparent law.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In this case, the FCC investigated AT&T after AT&T had voluntarily reported to the FCC that it might have overcharged the Government for services it provided. At the conclusion of that investigation, the FCC and AT&T entered into a consent agreement. Several months later, a trade association representing some of AT&T's competitors filed a FOIA request for "[a]ll pleadings and correspondence" on the AT&T investigation. Exemption 7(C) within FOIA exempts the disclosure of "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). The FCC concluded that this exemption could not apply to AT&T, but the Third Circuit reversed, holding that Exemption 7(C) extends to the "personal privacy" of corporations, since "the root from which the statutory word [personal] . . . is derived" is the defined term "person."

The United States Supreme Court disagreed with the Third Circuit.


Because the term "personal" is not ordinarily used to describe the "correspondence,
influence, or tragedies of" corporations, courts should be wary of applying that term to corporations. The Court then looked to the use of the term "personal" in the context of the surrounding language and the statute as a whole and found no support for the idea that the term "personal" should be applied to corporations.


Many portions of the Indiana Code define the word "person," but use the undefined word "personal." Counsel are well served to look into whether there is some reason to make this difference clear in their cases.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In the motor vehicle accident that led to this case, four people were in a car that was hit by another person. They sued the tortfeasor and their insurer (Grange), seeking underinsured motorist benefits. The tortfeasor's insurance policy had a per person liability limit of $25,000 and a per accident liability limit of $50,000. The tortfeasor's insurer paid its per accident limits, which was divided among the various accident victims. One passenger, Hannah, received $5,100, which did not fully compensate her. Grange's UIM policy limits were $50,000 per person and $50,000 per accident, so Grange moved for summary judgment. All of the plaintiffs but Hannah dismissed their claims with prejudice and Hannah responded to the motion for summary judgment. The trial court concluded that it must look to the per accident limits and, therefore, found that the tortfeasor was not underinsured.

On appeal, the Court described the relevant statutes and case law and concluded that the key to determining whether to use the per person or per accident policy limits when determining whether a tortfeasor is underinsured is the number of claimants.


Finally, the Court looked to whether I.C. § 27-7-5-2(a) mandates UIM coverage limit of
$50,000 per person. A prior decision by a different panel of the Court had concluded that it did not in Progressive Halcyon Ins. Co. v. Petty, 883
N.E.2d 854 (Ind. Ct. App. 2008), trans. denied. However, the panel made clear that it could ignore that decision because it did not take the statutory history of I.C. § 27-7-5-2(a) when reaching its conclusion.


The statutory history was one of expanding the availability of uninsured and underinsured motorist coverage and convinced the Court of "an intent by our Legislature to give insureds the opportunity for full compensation for injuries inflicted by financially irresponsible motorists." Thus, the Court disagreed with Petty and held that the mandatory per person limits for underinsured coverage is $50,000.

The Court's method of reasoning (concentrating more on the statutory history than the language of the statute) to determine legislative intent is interesting and could be of use in certain situations. Because of the explicit disagreement between this case and Petty that this decision creates concerning the mandatory limits of UIM coverage, it is likely that the Indiana Supreme Court will grant transfer to resolve this issue.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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The National Childhood Vaccine Injury Act established a no-fault compensation program for people injured by childhood vaccines. Congress included a section that preempted certain state law claims as part of that Act. 42 U.S.C. § 300aa–22(b)(1) states as follows:


The majority and dissent disagreed over how this statute should be interpreted. The majority concluded that the statute clearly excluded defective design claims.


The dissent argued that the majority's interpretation made the phrase "if the injury or death resulted from side effects that were unavoidable" superfluous. It, therefore, tried to give that phrase some meaning.


The majority acknowledged that its interpretation of the statute rendered the "if" clause superfluous, but held that this didn't matter.


The Court's statement that statutory language can be read as superfluous if ignoring that language does not change the interpretation of the statute is a canon of statutory construction that I have never heard of before. I can think of creative ways that this could be used in cases involving the interpretation of either statutes or contracts and suggest that you add this principle to your arsenal of statutory construction tools.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In this case, Demming was interested in purchasing two properties in Bloomington, Indiana, as part of her investment strategy. She asked Underwood, a realtor, to ask the realtor managing the properties (Costley) whether they were for sale. After being told that the properties weren't for sale, Demming and Underwood "strategized" together on how Demming could acquire the properties, and Underwood offered to contact Costley every few months to inquire about the properties' availability. Over the next few years, Underwood contacted Costley on Demming's behalf regarding the properties "every four of five months." Additionally, in May, August, and October 2006, Underwood contacted Costley to inquire into the availability of the properties after Demming specifically instructed her to do so. While Underwood was not compensated for these services, it was discussed and understood that Underwood would be paid a real estate commission, at closing, in the customary amount of seven percent of the sales price. Unbeknownst to Demming, Underwood became interested in purchasing the properties for herself after she acquired a neighboring property in May 2006.

In February 2007, Demming again instructed Underwood to call Costley and inquire into the availability of the properties for purchase. Costley responded that she would contact the properties' owner, but she expressed doubt as to whether the owner would be willing to sell. The next day, Underwood told Demming that the Properties were not for sale. Demming instructed Underwood to "stay on it" because she believed that the owner would be willing to sell in the near future.

A few days later, Costley contacted the owner, who instructed her to request that anyone interested in purchasing the properties tender a written offer. When Costley informed Underwood that the owner was willing to entertain an offer, Underwood did not relay this information to Demming. Instead, Underwood and a partner tendered their own written offer to purchase the properties and eventually purchased the properties.

Demming sued Underwood for breach of fiduciary duty and constructive fraud and asked the court to impose a constructive trust compelling Underwood and her partner to convey title of the properties to Demming. Underwood moved for summary judgment and the trial court granted that motion, finding that no agency relationship existed between Demming and Underwood as a matter of law. Demming appealed.

On appeal, the Court first addressed whether Underwood was Demming's agent under the common law. It held that the facts supported an inference that Underwood agreed to act as Demming's agent, which created a genuine issue of material fact precluding entry of summary judgment. It held that a principal "need not exercise complete control over every aspect of the agent‟s activities within the scope of the agency" and that "it was enough that Demming instructed Underwood to make contact with Costley." The Court then turned to the question of whether Underwood had breached the duties she owed Demming.


"This is not to suggest that the agency relationship between Demming and Underwood would continue indefinitely until Demming acquired the Properties." But that relationship lasted at least as long as the time within Underwood purchased the properties. "Underwood clearly would have breached the fiduciary duties arising out of that relationship by purchasing the Properties for herself without informing Demming that Mrs. Morris was entertaining offers." Therefore, the trial court erred in granting summary judgment to Underwood.

The Court next addressed Underwood's statutory duties to Demming. It noted the relative paucity of cases interpreting I.C. Chapter 25-34.1-10, which governs real estate agency relationships, noted ambiguities in that Chapter, and concluded that Underwood could have been agent under those statutes.


The relationship between Demming and Underwood in this case could qualify as an agency relationship because "the statutory definition of real estate transaction contains no requirement that the real estate at issue be listed for sale, and it is not our prerogative to engraft such a requirement into the statute. Thus, the fact that the Properties were not listed for sale at the time Underwood contacted Costley does not necessarily preclude a conclusion that Underwood was Demming's agent under the Agency Chapter." Similarly, the statutes did not require "that an individual compensate a licensee for his or her services in order to qualify as a client." Thus, "the trial court erred when it concluded as a matter of law that no statutory agency relationship existed between Demming and Underwood."

When the Court addressed the issue of whether Underwood breached her statutory duties, it noted "that statutory real estate agency relationships are not perennial." Nevertheless, it could not conclude that the agency relationship had terminated prior to Underwood's purchase of the properties for the same reasons it rejected a similar argument related to the common law duties, described above. Underwood argued that nothing in the statute prevented her from purchasing the properties and because the plain meaning of the statute does not prohibit the practice, it must necessarily permit it. The Court "strongly" disagreed.


Underwood argued that she could not be found liable for constructive fraud because the fifth element of a claim for constructive fraud is "the gaining of an advantage by the party to be charged at the expense of the complaining party" and no real estate transaction took place between Demming and Underwood. The Court again disagreed.


Finally, Underwood's partner argued that he could not be found vicariously liable for Underwood's breach of fiduciary duty and constructive fraud. The Court disagreed, because there was evidence that the partnership was formed before Underwood tendered the first offer to purchase.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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The plaintiffs in this case were restaurant employees who brought wage and hour claims against their employer under both the FLSA and state law. The plaintiffs moved for conditional approval of a federal collective action under 29 U.S.C. § 216(b), which authorizes employees to act together to seek redress for violations of the statute's minimum wage and maximum hour provisions. A collective action allows potential plaintiffs the opportunity to opt into the action. At the same time, the plaintiffs sought certification under Rule 23(b)(3) of three different classes alleging state-law claims, all of which would have been opt-out classes. The district court found a "clear incompatibility between the 'opt out' nature of a Rule 23 action and the 'opt in' nature of a Section 216 action," which automatically meant that the class action device was not a superior mechanism for resolving the plaintiffs' state-law claims. It, therefore, permitted the collective action to proceed, but denied class certification.

On appeal, the Court concluded that there is no categorical rule against certifying a Rule 23(b)(3) state-law class action in a proceeding that also includes a collective action brought under the FLSA.


The district court recognized that allowing the two types of actions to proceed together would mean that some of the people included as part of the state-law classes (those who did nothing) would be excluded from the FLSA collective action. It then apparently determined that this outcome would undermine the intention of Congress expressed in the FLSA.


While reaching this conclusion, the Court criticized the district court for suggesting that it might treat combined actions that are first filed in a state court and then removed to federal court differently from comparable cases that originate in federal court.


Finally, the Court made one point that litigators should remember when preparing for any oral argument. At one point, the employer argued that having an opt-in and opt-out notice sent to the same set of employees carries too high a potential for confusing notice to potential group members.


While the Court noted the "commendable concern for [the] employees' interests" by their employer, it did not find the possibility of this confusion to be dispositive.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In 2002, Monsanto entered into a contract with DuPont and, pursuant to that contract, any disputes between the parties were to be resolved by arbitration in New York City. In May 2009, Monsanto demanded arbitration and the arbitration panel issued a subpoena duces tecum to Beck's, ordering Beck's to appear at a preliminary hearing, in Indiana, before one of the panel members and to produce business records relating to Monsanto's arbitration claim. Beck's refused to comply with the subpoena, arguing that the FAA required Monsanto to seek enforcement of its nonparty subpoena in "the United States district court for the district" in which the arbitration panel was sitting, the Southern District of New York. Monsanto then filed a petition to assist in the Hamilton Superior Court, pursuant to Indiana Trial Rule 28(E), to compel Beck's to comply with the subpoena. The trial court agreed with Monsanto and ordered Beck's to comply with the arbitration panel's subpoena.

On appeal, the Court held that Section 7 of the FAA is unambiguous: to enforce an arbitration panel's subpoena against a nonparty, the party seeking enforcement must file its petition "in the United States district court for the district" where the arbitration panel, or a majority of its members, is sitting. Although an arbitration panel has relatively broad power to issue a subpoena, "the authority of an arbitration panel to issue a nonparty subpoena is not equivalent to the authority to enforce that subpoena." Because Section 7 is clear, "the attempt to use an Indiana trial rule when a federal forum is unavailable frustrates Congress' intent to limit these petitions to the federal courts."


In this decision, the Court stuck strictly to the language of the statute and resisted Monsanto's many and varied attempts to avoid this strict statutory construction. The Court's statement in the above-quoted section that the statute is the beginning and end of the analysis will surely be attractive to those attempting to construe statutes strictly.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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In this case, a homeowner sold a home to a buyer. However, the buyer did not buy the property directly; rather, he purchased it using a living trust. A dispute arose concerning whether the seller had made misrepresentations about the residence and the buyers eventually brought suit. The parties filed cross-motions for summary judgment and the trial court granted the seller's motion. The buyers appealed.

At issue was whether I.C. Chapter 32-21-5 applied to the sale. I.C. § 32-21-5-1(b)(9) states that this Chapter does not apply to "[t]ransfers to a living trust." The buyer argued that this language clearly exempted this sale from the Act. The seller argued that this could be illogical. The Court found this language ambiguous -- arguably because the parties disagreed over its interpretation.


The Court concluded that interpreting the transfer to a living trust exception to include
transfers to a living trust that is not related to the seller would be contrary to the purpose of the statute to allow parties to avoid its requirements.


The Court then looked to the facts of the case and concluded that there was evidence of neither fraud nor mutual mistake.

The manner in which the Court decided the issue regarding statutory construction will be of use to litigants arguing that any particular statute is ambiguous. It found the language ambiguous either because the parties disagreed over its application or because it agreed with the seller that an application of the statute's plain language would lead to an illogical result. Either of these rationales is better for the party arguing in favor of a statute's ambiguity.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Gray spent a long day at the Sandstone bar. He ate lunch and drank alcohol throughout the day. There is a dispute as to precisely how much alcohol Gray consumed, but Gray bought drinks for himself and friends, and friends bought drinks for Gray. It is undisputed, however, that Gray continued to consume alcohol until the bar closed at approximately 1:00 a.m. the following morning. The bartender on duty that night was Gray's girlfriend. After leaving the bar, Gray decided to drive his motorcycle. As he went through an intersection, Gray struck a curb and lost control of his motorcycle. Gray wrecked the motorcycle and was injured as a result, but there were no other injuries or damages to any third party.

Gray sued Sandstone under the Dram Shop Act and Sandstone moved for summary judgment because Gray was voluntarily intoxicated. The trial court granted that motion, concluding that Gray’s voluntary intoxication precluded any recovery. Gray appealed.

On appeal, the Court held that the statute was clear:


While's fault would still need to be allocated under the comparative fault act, the trial court improperly granted summary judgment to the bar.

In this opinion, the Court spoke at length about the trial court's public policy concerns if the law allowed people who were voluntarily intoxicated to bring claims based on their intoxication. Despite these concerns, the Court held that the statutory language was clear. This decision makes it nearly impossible for a Dram Shop Act defendant to win on summary judgment based on the voluntary intoxication of the plaintiff.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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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
Price Waicukauski & Riley, LLC
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