Indiana Injury Lawyers Blog

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.

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" »

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" »

A recent Indiana Supreme Court opinion has clarified the role of an injured party's ability to express opinions about their injury and what a defense medical expert can say about the medical treatment received in an Indiana personal injury case. In Sibbing v. Cave, 2010 WL 744928 (Ind.) the plaintiff, Mrs. Cave, brought suit after she was injured in a motor vehicle collision with the defendant, Mr. Sibbing. Mr. Sibbing admitted liability but argued that Mrs. Cave's injuries were not caused by the crash. The trial court entered judgment for the plaintiff, Mrs. Cave. The defendant, Mr. Sibbing, appealed, arguing that the trial court erred by allowing Mrs. Cave to give her own opinion on the cause of her pain. Mr. Sibbing also argued that the trial court erred by excluding his hired medical expert to testify that the plaintiff really didn't need all the medical treatment she received.

The Indiana Supreme Court found that Mrs. Cave's own opinion as to the cause of her pain qualified as permissible testimony by a lay witness pursuant to Indiana Rule of Evidence 701. Upon direct examination, Mrs. Cave was asked what she believed was causing her pain. She replied that her lower back pain was due to a bulging disk. The defendant objected under Indiana Rule of Evidence 803(4) and 702. The Court, however, found that the Mrs. Cave could describe what she believed to be causing her pain, even if it does include aspects of medical diagnosis.

Continue reading "Indiana Supreme Court Opinion Clarifies the Limitations of Lay Witness and Expert Testimony" »

In Indiana auto accident or large truck accident litigation the potential for a traffic ticket to be admitted into evidence at trial is truly a double edged sword. Evidence of a traffic violation issued against the plaintiff, or lack of a ticket to a defendant, which reaches the jury can destroy your client's credibility and ultimately his or her case. Conversely, getting the judge to let in a traffic violation against the defendant in a hotly disputed liability case can tip the scales in a plaintiff's favor. In order to tackle this issue, consider the following two scenarios.

The presentation of your injured plaintiff's case to the jury has gone well. Your client made a good impression, a witness described a horrendous collision, the doctors described the injury with a clearly understandable precision. Then, the defense calls a police officer to the stand and aks him if he gave out any traffic tickets related to the accident, and the answer is "yes, I cited Mr. Plaintiff for failure to yield." Although you know your client pleaded nolo contendre to the ticket, you can feel the wind go out of your sails as you look at the jury and realize the negative impact a traffic citation has made. While you try to save the day on cross, the jury has already made up their mind that police officers don't give out tickets unless a person broke the law. To them a police officer's testimony about a ticket is the gospel, to you it is the kiss of death for your case.

Continue reading "Traffic Tickets: Admissible Evidence in Personal Injury Litigation?" »

Accidents involving semi trucks can involve legal issues which are quite different from traffic accidents which involve small vehicles and private individuals.

An accident between a large truck and a passenger car is more likely to inflict serious damage such as brain and spinal cord injuries. Such injuries can be extremely costly to the victim and involve extensive recovery and rehabilitation. Currently federal insurance regulations require a far higher level of coverage for an interstate commercial vehicle than state regulations require for passenger cars.

Continue reading "Truck Accidents in Indiana" »

Indiana wrongful death attorneys were pleased to hear of a unanimous ruling in favor of the plaintiff on November 30th in the case of Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes II. With the recent ruling the Indiana State Supreme Court affirmed a lower court's ruling in favor of the family of a boy who died during basketball practice.

Under Indiana law contributory negligence can serve as a complete bar to recovery in a tort claims act case. If a defendant is a medical provider or government institution (as in this case), a finding of contributory negligence on the part of the plaintiff could prevent any and all recovery of damages. However, because the Supreme Court affirmed the rebuttable presumption for a minor, Kodi was found free of negligence. The appellate court ruling was overturned and the original trial court's ruling was affirmed, allowing the Pipes family to recover damages.

Yasmin and YAZ are two varieties of combination type birth control pills (BCP) produced by Bayer Healthcare. Yasmin was approved for sale in the US by the FDA in 2001 while YAZ was approved in 2006. Both YAZ and Yasmin contain 3 mg of drospirenone, a progestin, which is combined with 30 mcg of ethinyl estradiol in Yasmin and 20 mcg of this estrogen in YAZ. The estrogen component of these BCPs has been in common use since the 1970s. Drospirenone is a relatively new fourth generation progestin which has been shown to have an anti mineralocorticoid effect. This effect leads to diuresis, (increased urination) while retaining potassium which can lead to elevated serum potassium levels (hyperkalemia). It is suspected that this progestin is the cause of a notable increase in certain adverse effects which include death, arrhythmias, venous and arterial blood clots, gallbladder disease, pancreatitis, liver or kidney failure, dehydration and hypertension. The serious cardiovascular side effect are markedly increased in those who smoke and with advancing age particularly beyond age 35.