Arthur R. Baxter, Jr. -- Indiana Attorney At Law

Indiana Supreme Court Monthly Wrap Up
May, 2006





In Ellenwine v. Fairley, the the court offered guidance for the narrow circumstance where a child patient who is the victim of medical malpractice prior to the child’s sixth birthday then dies prior to the child’s eighth birthday. (1) If the death was caused by the medical malpractice, (a) the malpractice claim terminates at the child’s death under Ind. Code 34-9-3-1(a)(6); and (b) any wrongful death claim must be filed within the first to expire of either the Medical Malpractice Act’s limitation period (i.e., the child’s eighth birthday) or the Child Wrongful Death Act’s limitations period (two years from the date of death). (2) If the death was from a cause other than the medical malpractice, both (a) the malpractice claim and (b) any wrongful death claim must be filed within the first to expire either of the MMA limitations period (the child’s eighth birthday) or of the CWDA limitations period (two years from date of death).

In DePuy, Inc. v. Farmer, a worker at a manufacturing plant, on his way to clocking out, brushed his time card against a co-worker and greeted the co-worker. In response, the co-worker yelled at the worker and bent him over a machine, severely injuring him. The worker sued the co-worker and eventually settled against the co-worker for $3,000.00. The worker also pursued a workers compensation claim. The employer moved to dismiss the workers compensation claim on the basis that the worker was injured as a result of horseplay. The Indiana Supreme Court disagreed with the employer and noted that horseplay is a defense only when the worker seeking benefits engages in the horseplay, not when the worker is the innocent victim of a co-worker’s horseplay.

The court in DePuy also held that the $3,000.00 settlement was no bar to the worker’s claim for continued workers compensation benefits. Under Ind. Code 22-3-2-13[1], if the injured employee gets a judgment or settles with a third party, the liability of the employer to pay “further compensation” under the workers compensation act terminates, and the employee must reimburse the employer. Under Ind. Code 22-3-2-13[3], if an employee gets a final judgment “other than by agreement” for less than his worker’s compensation benefits, the employee can assign that to the employer and proceed to collect benefits. Under Ind. Code 22-3-2-13[9], “[n]o release or settlement of claim for damages . . . shall be valid without the written consent” of the employer. The Supreme Court first noted that these provisions barring workers compensation benefits come into play as to “third party” tort claims but not claims against a fellow employee or co-worker. Secondly, the Court held that the employer was entitled to equitable subrogation rights which permitted an offset on future workers compensation benefits after taking into account the cost to the employee for attorney fees in the action against the fellow employee. Additionally, the employer was free to pursue the fellow employee because the employer was not a party to the $3,000.00 settlement. The Court was careful to limit its holding to “fellow employees” and situations where the recovered amount fell short of the anticipated payout of the workers compensation claim.

In Northern Indiana Public Service Company v. Bloom, the the court held that a self insured entity owed a duty to its permissive users of its vehicles to disclose to the users the limitations on self-insurance coverage.

In Hammer v. Lewis, a husband was killed in a fatal auto accident. Five days later, after making funeral arrangements, the surviving spouse filed a petition with the trial court for appointment as special administrator. The surviving spouse then learned that the ex-wife of her deceased husband had beaten her to the courthouse and had managed the day before to get an order appointing the ex-wife as special administrator. The surviving spouse objected, and the trial court, after conducting a hearing, replaced the ex-wife with the surviving spouse, noting that the court always has the right to review its orders. The ex-wife appealed on the grounds that the trial court failed to follow the requirements of Ind. Code 29-1-10-6 which lists various reasons for removal of special administrators. The Indiana Supreme Court sided with the surviving spouse and held that the trial court was merely reconsidering its prior ruling and not operating under I.C. 29-1-10-6. The Supreme Court recognized the common law right of the trial court to exercise discretion in changing its orders. Because the ex-wife acted while the surviving spouse was making funeral arrangements, and because the trial court acted quickly before any action was taken by the ex-wife, the supreme court found there was no abuse of discretion and the court affirmed the trial court.

In Midtown Chiropractic, Inc. v. Illinois Farmers Insurance, the court continued its long-standing prohibition of the assignment of personal injury actions and refused the attempt of a chiropractor to obtain an assignment of the proceeds of a personal injury case.

BACK TO ARTICLES