Indiana Injury Lawyers Blog

Determining fault in accidents involving general aviation disasters is often quite complex, requiring legal representation by attorneys who understand the world of aviation. Part of that complexity lies in the fact that the plaintiff is most often the family member of someone who may have died or been seriously injured in that crash -- an accident in which the pilot himself may not have survived. Part of that complexity also lies in the myriad of factors that may have led to the accident.

The most common of these involve piloting issues in which the flight was not planned properly (or prepared at all), a lack of fuel, stalling of the aircraft and/or a failure on the part of the pilot to handle a specific maneuver. Whether the pilot was current in his licensing and had proper medical clearance should also be examined.

General aviation usually involves smaller aircraft which do not have data or voice recording equipment installed. This requires an investigation in to what happened before the aircraft crashed. Data can be gathered from voice communications with air traffic control and by obtaining air traffic control's record of the aircraft's radar path (NTAP data). Collecting this data soon after a crash is crucial in piecing together the puzzle of what caused the crash. Voice and NTAP data is retained for a limited period of time. Thus, it is crucial that a potential plaintiff expediently seek legal counsel skilled in obtaining this evidence. The NTSB data can also be helpful in finding the cause of a crash. However, qualified aviation counsel we advise against relying solely on the NTSB to find all causes related to a general aviation disaster.

Weather is another leading cause of aviation crashes. The National Center for Climatic Data (NCDC) archives weather data and is a valuable tool for analyzing what role weather played in an aircraft crash. Weather data is used to determine if the pilot or air traffic controller should have used alternative routes to avoid dangerous conditions.

Mechanical defects in the aircraft can also lead to crashes. A detailed examination of aircraft wreckage is key to understanding if a problem existed with an aircraft engine or airframe prior to the crash. Such a wreckage inspection if conducted with trained forensic aviation experts and and can take a considerable amount of time to find and examine potential defects. Because resources helpful in determining fault can disappear if not requested early on, the most important thing a potential aviation plaintiff can do is seek qualified counsel as soon as possible.

It's hard to believe the holidays are upon us once again. For some party hosts that means popping the top on a bottle of bubbly or spicing up the eggnog. The end of the year is a time to celebrate for many reasons, but what happens when you let your guests get too jolly? The party host could find themselves dealing with an unwanted hangover.

Individuals and employers hosting parties can be held liable in cases where a guest or third party is injured in an accident related to the alcohol consumed at the party. Hosts could be held liable for items such as vehicle repair costs, lost time from work, medical bills and even wrongful death.

Indiana law specifically states that it is unlawful for a person to provide alcoholic beverages to another person who is intoxicated if the person knows that the other person is intoxicated. Further, a person who furnishes an alcoholic beverage to a person is also liable for damages in a civil action if the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished and this is a proximate cause of death, injury or damage to a third party.

Unlike Dram Shop laws, which targets the commercial sale of alcohol, Social Host laws focus on those in control of residential places where minors and guests could consume alcohol. Thus, homeowners, landlords and tenants are all at risk. If you plan on hosting a party this holiday season, please read the list of tips provided below.

• Limit guests to those you know


• Provide food and non-alcoholic beverages for guests


• Arrange transportation or overnight accommodations for guests


• Review your insurance policy before the event to ensure proper liability coverage


• Stay alert. Always remember your responsibilities as host


• Arrange activities that don't require alcohol


• Do not encourage excessive drinking by guests


• Stop serving guests who are visibly intoxicated

The term waiver/release agreement is often used as though the mere mention of such removes all responsibility for injury or disability. In reality, how waiver agreements are written and applied is significantly more complex. In Indiana such agreements can be enforced, but you might be surprised at when they are or are not effective.

In Indiana a waiver must contain language stating that the establishment is not being held responsible for its own negligence. Without that language specifying that the company is being released for its own negligence, an injured individual can still go forward with a case if the person was injured due to lack of care on the part of the establishment. A case our law firm recently settled for an injured person dealt with a waiver signed by our client at a climbing facility. He was then injured when a bolt hanger came out of the wall, causing him to fall. He had signed a waiver, but it did not say he was releasing the climbing facility for its negligence. The case was settled successfully for the injured person at mediation.

Even in the most carefully worded document, a waiver cannot release the establishment from gross negligence, or willful and wanton misconduct---a more extreme form of misconduct in which the establishment has specific knowledge that someone may very well get hurt. Or, in simpler terms, negligence is about carelessness, while willful and wanton misconduct is about recklessness.

Racing events are typical of situations where participants usually have to sign a waiver before being allowed to race or participate. An example of a case in which a person who signed a waiver still was able to obtain compensation for injuries was a case our law firm handled years ago, in which a race team member was hurt when a racetrack employee was driving a vehicle the wrong way down pit lane. We contended that such conduct was gross negligence, worse than just regular negligence, and the waiver should not be effective to foreclose a case being brought. We were successful in settling the case before trial for the injured man.

Different states have different ways of analyzing waiver/release agreements, so any effort to evaluate the ramifications of such a waiver/release must focus on the law of the state in question. Such agreements can be valid, but it depends on the wording of the agreement, the conduct in question, and the law of the state.

All motor vehicle accidents are not the same. And nowhere is this more true than when it comes to those accidents involving motorcycles. Further, the nuances of motorcycle accidents often have a direct impact on the kind of case that may evolve, how it is litigated, and the verdict and results ultimately obtained.

Part of the reason for these differences stem from public perceptions (and often misconceptions) about motorcycles and the people who ride them. Because of their portrayal in pop culture, motorcycles are often associated with speed and at times, even reckless driving. In addition, in an effort to justify their own actions, defendants will often claim that they "did not see" a motorcycle. Thus, should a case go to litigation, pre conceived notions of motorcycles and the ready excuses their smaller size may elicit, can create significant jury selection implications

Second, motorcycle accidents tend to cause injuries that are more likely to be of the "life-altering" variety. The complexity of such cases is further exacerbated by whether or not the cyclist was or was not wearing appropriate headgear. And more subtle injuries can often go undetected.

Third, because motorcycle insurance is harder to obtain, the complexities of a specific plan can be more difficult to decipher and have serious consequences for how financial damages are calculated or awarded.

Finally, the "data" left behind in motorcycle accidents tends to be quite subtle. This is because there are usually fewer points of impact than in the typical automobile collision and hence, less physical evidence.

So what is the individual involved in a motorcycle accident supposed to do? Most important is to work with an attorney who truly understands motorcycles and motorcycle accidents. This requires an understanding of the passion of the motorcyclist. It also means having a grasp as to how potential jurors will view both the individual as well as the activity of motorcycle driving/riding.

In addition, the injury attorney should be readily familiar with the kinds of injuries that can occur as a result of a motorcycle accident. He or she should be observant for signs of changes in memory function, balance, coordination and fine motor skills. The presence of a concussion is always a possibility and it is important that ligament injuries do not get overlooked. An evaluation by the right orthopedic specialist is absolutely essential.

Ultimately, the motorcyclist may be best served by the attorney who not only knows the law, but who can also advocate enthusiastically on his behalf.

At Wilson Kehoe Winingham, prospective clients sometimes ask us whether it might make more sense for them to handle a particular matter themselves versus hiring an attorney. This is a valid question, the answer to which is dependent on a number of variables including the complexity of the case, the severity of the injuries, the size of the financial award sought, and the willingness of the individual to wade through a maze of issues with which they may not be familiar. Contrary to public perceptions, for some cases, most personal injury attorneys will suggest that a matter may best be handled by the individual themselves or by another attorney better suited to address their particular concern.

That being said, in most cases, it is usually not the wisest course to file a lawsuit alleging injury on one's own. It may be tempting for some to seek recourse by themselves, but nowhere is the adage "penny wise, pound foolish," more apropos than in such situations.

Putting together a case against another for negligence, medical malpractice, wrongful death, an automobile accident, a slip or fall, etc., is difficult. And it is difficult primarily because the world of insurance is complex. In a situation where an individual has been harmed or suffered because of the actions of another, all medical bills related to these injuries must be documented. Repayment of these medical bills must also be negotiated with the health care providers. Personal injury attorneys are adept at analyzing such documents and uncovering ways to reduce the amounts that must be repaid.

Secondly, with all of the different types of insurance packages and bundles available, individuals are often surprised to discover that they or the defendant actually has more coverage than they may have realized. Personal injury attorneys are able to analyze insurance policies and look for additional layers of coverage.

In many cases, individuals often find it difficult to make a settlement demand to an insurance company. They may not know that the law allows for compensation of more than just medical bills. They may possibly be able to receive awards for lost wages as a result of any injuries sustained. Similarly, compensation may be awarded for the pain and suffering the individual has had to endure. Whether they have lost wages or suffered emotionally and/or physically is however only one part of the equation. A second, equally important question is how one puts a financial value on these variables. An experienced PI attorney will know the criteria for establishing the need for these kinds of compensation as well as what the level of the financial award should be.

Further, it is not enough to assess what the cost of medical treatment has been or is currently. What about the future? As a result of his or her injuries, will the individual need to receive future medical care? Will they need to visit a physical therapist once a week for the rest of their lives? Will they be limited in their future earning capacity or suffer from enduring physical and/or emotional trauma? And again, how does one place a value on these?

Aside from insurance matters, determining the relative level of fault in a case is also of critical concern. If the person injured is partially to blame for his or her injury, they can only hope to receive that percentage of the financial damages that correlates to the percentage the defendant is to blame. For example, if a jury finds that the defendant is two-thirds to blame for an accident, the plaintiff can only hope to recover two-thirds of the total damages. And in Indiana, if the plaintiff is responsible for more than 50% of the accident, they are entitled to exactly nothing. Hence, before one takes on one's own case, one must ask with whom the best chance of proving the relative responsibilities for the accident rests - - with themselves, or with an experienced attorney.

The practice of personal injury law is not just about proving fault or the level of that fault, but also ensuring that the injured individual is justly compensated for his or her injuries. It's about making sure that the future financial, physical and emotional costs of those injuries are held to a minimum, whether or not that means taking on the defendant, his insurance carriers or even the carrier of the plaintiff; and whether or not it means doing so through settlement, mediation or jury trial.

Because of the complexities of all these matters, it is usually best to seek out someone qualified to look out for your best interest. It's a big and important responsibility, and one that an individual should usually not face alone. Wilson Kehoe and Winingham helps relieve this tremendous burden that individuals face after suffering an injury or losing a loved one.

Indiana's new "Texting while Driving" law went into effect July 1 and with it comes a new slate of "do's," "don'ts," and potential penalties for hitting those little buttons on your Qwerty keyboard while (supposedly) you are also keeping your hands on the steering wheel.

Actually, that's an overstatement, because the new law applies only to texting while driving. Technically, it does not apply to dialing a telephone number or playing a game. Unlike in some other states, it also does not include any kind of regulations regarding speaking on the phone while driving.

What it does do, is provide you with the "opportunity" to pay up to a $500 fine if you are caught texting while driving. This is applicable whether or not you have been stopped for this infraction or for any other. However, the officer is not permitted to confiscate the phone.

Perhaps more importantly, it is far less clear how this new legislation will affect those lawsuits involving "texting" drivers. Although the new law is part of a nationwide movement to prohibit distractions, certain violations of statute have not been permitted as evidence of negligence, such as a failure to wear a seat belt. However, evidence of a driver being distracted usually is permitted. The courts will likely permit evidence of violating the "no texting" law in the event the one who is texting is involved in an accident.

Indiana law generally assumes that the driver of a motor vehicle has an obligation to follow the state's traffic laws and when a safety statute is enacted, a violation of that law constitutes negligence per se. In the event of an accident, this makes the plaintiff's burden much easier if the other driver was texting at or just prior to the accident. On the other hand, if it was the plaintiff who was texting, his ability to place the fault on the other driver is significantly reduced.

Regardless however of whether or not a driver involved in an accident was texting, a jury must still determine the cause of that accident. As a comparative fault state, a plaintiff may obtain any percentage of the damages awarded consistent with their determination of what percentage of fault each driver bears--but only if the jury determines that he or she is less than 50% at fault.

So what does all this mean? It means that at the least, getting caught texting while driving can result in a significant financial penalty and the possibility of heightened insurance rates. At the worst, texting while driving is likely to be an important variable in determining the degree of responsibility in an automobile accident.

Having an automobile accident in Indiana can become a significant financial burden for an injured person. This burden can be compounded when the at-fault party does not have insurance or does not have an insurance policy sufficient to cover damages. Under Indiana law all drivers are required to have what is known as 25/50/10 coverage, meaning a minimum coverage of $25,000 for each person for bodily injury, minimum liability limit of $50,000 for each accident, and a minimum of $10,000 in coverage for property damage. However, despite these laws, there are still cars on the road who are either uninsured or under insured. Therefore, in order to promote opportunity for innocent individuals to recover for damages in the event of an accident with another driver who is not properly insured, Indiana requires that auto insurance providers to provide their customers uninsured and under insured motorist coverage, for either a single premium or for separate premiums, in limits at least equal to the limits of liability specified in the bodily injury liability provisions of an insured's policy. If the insured chooses not to purchase this coverage, the law requires that he must explicitly reject or waive the coverage in writing. The court has previously interpreted the UM/UIM statute to require an offer, not merely the accessibility to coverage. The law also specifies that for under insured motorist coverage, the coverage must be made available in limits not less than $50,000 and providers may not sell or provide any under insured motorist coverage less than that. Furthermore, at the insured's option, the bodily injury liability limit may be required to be equal to the under insured motorist coverage. Any policies issued after 1995 may offer uninsured or under insured motorist coverage in an amount greater than the limits of liability in the bodily injury and property damage liability provisions of an insurers' policy.

There is a significant difference between an uninsured and under insured vehicle. An uninsured motor vehicle means a motor vehicle without liability insurance or one that doesn't have the required 25/50/10 coverage or any similar requirements applicable under the law of another state. However, an uninsured motor vehicle can also be an insured motor vehicle where the liability insurer of the vehicle is unable to make payments within the 25/50/10 limits because of insolvency of the insurance company within two years of the accident. In a hit-and-run case the driver would be considered an "uninsured" motorist as well. On the other hand, an under insured motor vehicle is 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 under insured motorist coverage at the time of the accident.

Continue reading "Uninsured & Underinsured Insurance Coverage in Indiana" »

Liable v. Guilty

See Part 1 of this article

Before the Trial

In the upcoming part 2 of this article published next week we will look at liability vs. guilt, standards of proof and the function of the jury.

Wilson Kehoe Winingham partner Bill Winingham was recently elected to the Indiana Judicial Nominating and Judicial Qualifications commission. The seven-member commission appoints judges to the state's appellate courts and handles cases of judicial misconduct among other duties.

Congratulations Bill!

Arbitration and mediation are two related methods of Alternative Dispute Resolution (ADR) that are all too often confused in Indiana injury law. Alternative Dispute Resolution involves methods of resolving disputes outside of the court system. By resolving disputes short of litigation, parties can save the excess time and money associated with a lengthy trial. While both mediation and arbitration serve similar goals, they each have their own advantages and disadvantages and a particular method should be chosen based on the specific needs and wants of the parties.

On the other hand, arbitration is much more like a trial where the disputing parties hire an attorney or retired judge to hear and decide the case. Most arbitration is "binding" which means the decision made by the arbitrator is legally enforceable in the same manner as a judgment of a court. This is the most distinguishing factor between arbitration and mediation in which the mediator simply discusses settlement options and assists the parties into coming to a voluntary agreement. In Indiana, Arbitration is governed by the Uniform Arbitration Act which is codified under Ind. Code 34-57-2-1. Because arbitration is more similar to an actual trial, the Uniform Arbitration Act is much more detailed then the Indiana code governing mediation practices.

Continue reading "Arbitration vs. Mediation in Indiana Injury Law" »

The successful plaintiff of an Indiana personal injury lawsuit is entitled to damages in a sum that reasonably compensates the plaintiff for bodily injuries, pain and suffering, any past, present, or future expenses reasonably necessary in the course of the plaintiff's medical treatment, and all financial losses suffered, or to be suffered, as a result of the injury. A personal injury plaintiff may typically recover damages for:

• Past or future pain and suffering
The damages recoverable for physical pain and mental suffering resulting from the defendant's actions are variable and depend upon specific facts of each case.

Continue reading "Recoverable Damages for Personal Injury Plaintiffs in Indiana" »

In a personal injury case, most plaintiffs are seeking damages to compensate them for an injury caused by another party. For example, in a simple car crash an injured driver might seek money from the negligent driver to pay for his medical bills, lost wages and pain and suffering. These monetary awards are called compensatory damages as they compensate the injured party for the harm they suffered.

However, with the growing support in the tort reform movement, many jurisdictions have shied away from awarding excess punitive damages and have even placed caps or limits on the amount of punitive damage awards. Like many states, Indiana has adopted its own punitive damage statute that limits both the amount of punitive damages that can be awarded and the amount the plaintiff can receive from the judgment.

Continue reading "Punitive Damage Awards in Indiana" »

When an Indiana insurer fails to pay a claim on a policy, the policy holder has two possible legal remedies: a contract claim and a tort claim. The principle distinction between the two is that, as a matter of public policy, punitive damages are only available in tort claims. Therefore, if an insurer wrongly denies coverage and violates an insurance contract, a breach of contract claim will only allow recovery up to the face value of the policy. However, an Indiana plaintiff can also sue under an insurance bad faith claim and recover, through both compensatory and punitive damages, an amount larger than the original face value of the policy (depending on the egregiousness of the insurer's conduct).

The concept of the insurance tort claim arises out of the implied duty of good faith and fair dealing that is recognized in all insurance policies in almost every US jurisdiction. Indiana first recognized an insurer's duty to act in good faith in the 1993 Indiana Supreme Court ruling in Erie Insurance Co. V. Hickman by Smith. Since this ruling, Indiana has been in a constant state of defining and redefining the limits of the bad faith tort claim.

Continue reading "Insurance Bad Faith Claims in Indiana" »

In the wake of over 1,000 lawsuits filed by women who claim to have suffered serious injuries from the effects of birth control pills Yaz and Yasmin, German manufacturer Bayer has updated labelling information on those products regarding the risks of their use. The new information, which was recently approved by the FDA in April, highlights the risk of thromboembolism (blood clots migrating through the venous or arterial system and causing occlusion) in women using Yasmin compared to those in women using oral contraceptives containing other progestins.

A progestin is a steroid hormone used to produce the effect of the female hormone progesterone. Different birth control pills may use different progestins to produce the contraceptive effect. A recent study conducted in the Netherlands, which compared the effects of a variety of oral contraceptives in a population of over 1500 women and was published in the British Medical Journal highlights an increased risk of venous thrombosis for women using all types of birth control compared to women who use no contraception, but observed a 6.3-fold increased risk of thrombosis in women using newer contraceptives composed of the fourth-generation progestin called drospirenone, which is used in Yasmin. Other contraceptives which use the earlier-generation progestin levonorgestrel noticed a smaller increase in risk (3.8-fold).

Continue reading "Bayer updates label warnings for Yaz, Yasmin birth control pills" »