New Indiana Supreme Court Decisions

By: J. Richard Moore
BleekeDillonCrandall

A month ago, on June 29, 2011, the Indiana Supreme Court handed down three decisions which collectively held that under Indiana’s Adult Wrongful Death Statute, the estate of a deceased adult without a surviving spouse or dependents may recover attorney fees and “loss of services,” even though such damages are not explicitly authorized under the statute. Indiana’s General Wrongful Death Statute is intended to restore the pecuniary loss to the spouse and dependents of a person whose death is the result of tortious activity. The Adult Wrongful Death Statute was enacted to provide some means of recovery to the estate of a person who had no surviving spouse or dependents (such as a very young or a very old adult). The only damages specifically authorized under the Adult Wrongful Death Statute were final medical and burial expenses, and loss of love, society and companionship to the deceased person’s survivors. The latter category is capped at $300,000.

Leaving aside whether the Indiana Supreme Court “got it right” (notably, the Chief Justice wrote vocal dissents in each case, in which one other justice joined), this change in wrongful death recovery in Indiana directly impacts our firm’s medical and long-term care clients. The addition of attorney fees particularly broadens the scope of exposure in such cases, which frequently involve elderly and infirm patients without dependents or surviving spouses. While qualified providers’ exposure remains capped at $250,000 under Indiana’s medical malpractice statutes, this change in the law will likely increase the pressure on malpractice insurers and self-insured providers to settle for the limit of exposure. In addition, the change increases the overall exposure of the Patient’s Compensation Fund administered by the Indiana Department of Insurance.

A question that remains under the new jurisprudence is whether attorney fees and loss of services are subject to the $300,000 cap in the Adult Wrongful Death Statute. The Court’s legal reasoning for its holdings encompassed both the clause that provides for recovery which is not subject to the cap (final medical and burial expenses) and the clause which provides recovery limited to $300,000 (loss of love, society and companionship). It remains to be seen how these decisions will be implemented in practice. BleekeDillonCrandall lawyers will be monitoring these developments in our cases and in the trial and appellate courts.

Resurrection of Criminal Sentencing Reform

By: Christopher Simpkins
BleekeDillonCrandall

Eric Bradner of the Evansville Courier & Press ran a detailed story this morning regarding two of Indiana’s most well-respected state senators, Sen. Richard Bray (Martinsville) and Sen. Brent Steele (Bedford), who are attempting to resurrect the failed criminal sentencing reform effort of last session.

Among other things, criminal sentencing reform has been a top priority for Governor Daniels in his last term in office. However, as of last session, both his and other legislators’ attempts at passing such sweeping reform ended in failure at the Statehouse. Not to be deterred, Eric Bradner confirms that Sen. Bray and Sen. Steele, both of whom head out-of-session study committees, will resurrect the effort in the upcoming legislative session.

The case for reform should again be compelling due to the immense overcrowding in Indiana prisons. Without meaningful reform, the State faces a choice of either building new prisons, which is tough to build into any budget, let alone a budget during an economic recession, or releasing convicted inmates earlier than scheduled. Neither option seems appetizing for legislators looking at re-election.

We will be sure to keep an eye on the reform efforts in the upcoming session. Passing any piece of legislation is a complicated process, especially sweeping reforms of the criminal code.

Keeping a Diary

By: Kristen Halliden
BleekeDillonCrandall

If you are involved in any type of divorce or custody proceeding involving children – keep a diary. The diary should include attempts to contact the other parent and the dates and times that parenting time was exercised or not exercised. The diary should also note any issues that may arise that need to be addressed in negotiations or by the judge.

Use a monthly or weekly calendar and keep the diary in one spot and make sure it is updated consistently. Keeping this sort of log will help in future negotiations and hearings when the issue of custody and parenting time is addressed. Trusting to your memory in these types of situations won’t work (especially when emotions are involved!). Write it down in black and white so that you can refresh your memory at a later date and time.