Anatomy of a Civil Case — Part I

This is the first post in a series we’re calling The Anatomy of a Civil Case.  Some of the conventional wisdom about what how a claim and litigation works is correct, lots more is simply wrong.  Every personal injury case is unique to its specific set of facts, but some things are the same no matter the case.  Our first edition is the Three Ways Insurance Companies Will Fight You.

An insurance company is a for-profit business.  Car, homeowners, renters, medical, fire, doesn’t matter.  Their #1 goal, like any for-profit business, is to make money for their owners.  The only way insurance companies make money is bringing in more in premiums than they pay out in claims (and after paying for all those commercials on TV).  Because their incentives are to avoid paying out on claims if they can.

The first way an insurance company can avoid paying is by denying coverage.  Quite simply, if an insurance company doesn’t provide coverage in a specific case, then they don’t pay a dime.  This is one they obviously prefer.  Their dispute is based on the terms of the insurance contract that most of us never read.  This commonly comes up when it comes to lending your vehicle to someone (the policy might exclude coverage, for example, to someone with a suspended license) or when a family member is not listed on the policy but it is their primary vehicle.  If this becomes an issue, you will almost certainly need the help of an attorney to fight about the contract language.

The second way an insurance company can avoid paying is by denying fault.  With the civil court system in Indiana, we use what’s called a “comparative fault” scheme.  When a jury renders its verdict, it determines the plaintiff’s damages, and then allocates fault which determines how much the plaintiff’s award actually is.  If a verdict is for $100,000 and the fault is 100% against the defendant, the plaintiff gets awarded $100,000.  If the allocation is 90-10 in the plaintiff’s favor, the award is $90,000.  It works like this all the way down to 50-50 (or $50,000 in our example).  If the plaintiff is found to be more than 50% at fault, then they get no award.

If an insurance company finds any way to fight liability and lower their risk of paying on a claim they will.  Even if the adjuster tells you they’ve accepted liability in a phone call, if it ends up in litigation and their attorney can find any reason to try and place fault on the plaintiff, they will.  It’s just another way to add risk.  Sometimes, police investigations are not done as thoroughly as we’d like, and the crash report even puts the plaintiff primarily at fault when they know they did nothing to cause the crash.  In cases like that, an attorney has to use all of their investigative tools to “fix” the liability dispute if the insurance company is going to even be willing to make an offer.

The last way an insurance company can avoid paying is to minimize the injury.  In other words, “you’re not hurt as bad as you think you are.”  This is a tough one for people to take.  They’ve been in a crash, been hurt, gone to the doctor and received treatment, missed work, and still struggle day-to-day with their injuries.  But regardless of everything a plaintiff does, the insurance company only has incentive to minimize it.  Did you wait 2 days to see a doctor?  Must not have been hurt that bad.  Miss a physical therapy appointment?  Didn’t care about getting better.  Get a second or third opinion when you weren’t getting better?  You were doctor shopping.  None of these things are even necessarily true, but if an insurance company can get you or a jury to second guess the seriousness of an injury, they can use that as a reason not to pay.

Cases are often very complex where we have to deal with eye-witnesses, doctors, defendants, and expert testimony.  But at the end of the day, the defense will boil down to one of the three broad topics above.  They are the only bullets in the insurance company gun.  It can be overwhelming to be told by someone you’ve never met that a crash was your fault or your injuries aren’t that bad.  If you ever feel like an insurance company is giving you a raw deal, call an Indiana personal injury attorney like Ladendorf Law and see if we can help.

Watch out for next time when we discuss Part II – Getting Medical Care: Being your own Advocate.

 

Be safe out there!

4.8.2020 – News for Indiana Bikers with “Rider Insurance”

We received a call yesterday from a biker who informed us that Rider Insurance is no more.  So, we had our intrepid law clerk make some calls to get the facts straight so we could share with the biker community.  The person he talked to at Rider Insurance told us that they are now owned by Plymouth Rock Insurance.  Plymouth Rock does not offer insurance to Indiana residents, so if you’re currently with Rider, it looks like your policy will NOT renew when it comes time.

Rider is recommending that those in Indiana insure through Dairyland Insurance and Rider is offering a replacement policy through Dairyland. A nonrenewal notice was/will be sent out to those covered by Rider from Dairyland Insurance.  If you have Rider, be on the lookout for mail from Dairyland, Rider, or Plymouth Rock explaining further.

While Rider may be recommending that you insure yourself through Dairyland, remember that you don’t have to.  You have the right to pick the insurance company of your choice.

What’s most important, though, is that no matter who you choose to insure your bike, you be sure to buy sufficient coverage if the worst should happen.  1 out of 7 drivers in Indiana are uninsured.  Many more only have state minimum coverage of $25,000 of liability coverage.  If you’re hurt in an accident, $25,000 can be exhausted before leaving the Emergency Room.  We highly recommend speaking to your insurance agent to get exact information on your coverages, particularly your uninsured and underinsured motorist coverage.  We hope you never need it, but if you ever would, you’re going to be very thankful that you looked into it to protect yourself and your family.

Call us if you have any questions that we can help with and be safe out there!

An Unspoken Danger from the Coronavirus

The coronavirus, or COVID-19, is sweeping the world.  Hundreds of thousands are sick, thousands have died, and governments across the globe are struggling in their response to stem the tide of infection and flatten the curve of transmission.

Besides the sickness itself, people are scrambling to grasp what the wider impact will be on the local, state, national, and global economies.  In the short term, at the very least, there are likely to be massive layoffs as more and more people stay at home.  Economists are estimating that millions of workers could be laid off in the near future.  Which brings us to an important issue that is woefully unaddressed.  Mis-classification of workers.

If you are an employee (meaning you get a W-2 each year at tax time) and you lose your job through no fault of your own, you will be eligible for unemployment benefits.  In Indiana, that means you can receive 47% of your weekly wage up to a maximum of $390 weekly.

But what if you don’t get a W-2?  That means you are classified as an “independent contractor.”  As an independent contractor you are NOT covered by unemployment insurance.  Additionally, you typically don’t get any benefits; you’re not covered by Worker’s Compensation laws and your employer doesn’t contribute a portion of your FICA (a/k/a “payroll”) taxes.  When an independent contractor is laid off, they’re on their own.

How many workers are mis-classified?  In 2011, there were estimates that 3.4 million workers were mis-classified as independent contractors.  With the growth of the American economy since then, that number is almost certainly much higher today.

Why are workers mis-classified?  Frankly….greed.  Employers can save a great deal of money by avoiding payroll taxes, benefits, and insurance premiums.

What does it matter?  From our practice, we see this most often in the context of Work Comp.  The work comp system has been in place for over 100 years and it comes with a very specific trade-off for employees/employers.  For the employees, if they are hurt on the job in the course and scope of their employment, they are entitled to have their medical bills paid as well as wage loss benefits.  Even if the accident is their fault.  For the employers, they have to pay medical bills for an on the job accident, but they are immune from a lawsuit.

See, in the common law, if you get hurt because someone else is negligent, you can file a lawsuit for compensation.  That’s what we do at Ladendorf Law every day.  But this would apply to the negligence of a co-worker or even of an employer.  So the trade-off is basically guaranteed benefits, but generally a lower benefit amount than someone would otherwise be entitled to.

Who mis-classifies?  To be clear, it happens in all sectors of the economy.  Where we tend to see it most often is in the construction and commercial trucking fields.  This is what we typically see in a situation where a worker is injured by the negligence of a co-worker.  We make a claim against the employer (remember, they’re not immune from suit if it’s an independent contractor).  The employer’s insurance company hires an attorney who proceeds to attempt to get the court to rule that the employee was actually an employee the whole time so the case should be dismissed because the employer is immune.  Indiana case law even supports this.  An employer can fail to pay benefits by mis-classifying, and then cut the employee loose with no recourse when it gets bad.  Oh, and I don’t want to forget to mention that just because they argue that they’re an employee in a negligence claim it doesn’t mean they volunteer to start paying work comp benefits for that.  Whether it’s with us prosecuting negligence cases, or with a work comp attorney trying to get benefits, workers are often left holding the bag.

How do I determine how I should be classified?  The IRS uses a 20-factor test in deciding whether an individual is an employee or an independent contractor for the purposes of employment or workers compensation law. Click HERE to learn more about the IRS test.  In summary, it really seems to come down to “control.”  Is the employer driving a company truck, wear a company uniform, only work for the company, the company sets the hours, and the company provide the tools?  Yeah, probably an employee.  There’s lots of legal gray area depending on the factors, but I hope you get the gist.

The problem of mis-classification of workers can lead to horrible outcomes for workers.  They pass every test for employment and are clearly “employees” under the legal definition, but their employers try to save money on unemployment insurance, Work Comp insurance, and benefits paid.  And, sadly, when something goes wrong, whether it’s a layoff or a workplace injury, the worker is on their own in what can be very desperate times.

The coronavirus is and will continue to be a major disruption on our way of life for the foreseeable future.  We sincerely hope, though, that certain failures of the system that negatively impact workers when times are the worst are not forgotten when the times are good.

Be safe out there.

Kobe Bryant Crash Lawsuit

It recently made the news that Vanessa Bryant, the widow of Kobe Bryant, has filed a lawsuit against the company that operated the helicopter that Kobe Bryant, his daughter, and seven others were killed in on January 26, 2020.

The Crash

Kobe Bryant had been known to take helicopters as opposed to driving due to Los Angeles traffic. On this particular day, Kobe was taking the helicopter to his daughter’s game with a few of her teammates, their parents, and coaches. The crash is still under investigation but reports suggest it happened as a result of pilot error while flying in heavy fog. In the midst of it all, most were wondering why the pilot, Ara Zobayan, chose to fly in those conditions.

According to CNN the fog was so dense that the LAPD had decided to ground its helicopters. So, why was Ara Zobayan flying? According to reports, the pilot received Special Visual Flight Rules (SVFR) clearance. SVFR clearance allows a pilot to fly in weather conditions worse than those allowed for regular visual flight rules. The investigation is continuing in efforts to find what mistakes were made that led to nine people losing their lives.

Why Bring a Lawsuit?

There is a conventional wisdom that people make claims or file lawsuits because they’re greedy for money. In our experience, nothing could be further from the truth. Aside from medical bills & lost time at work, people with serious injuries often face a lifetime’s worth of medical challenges. A settlement compensating someone for injuries caused by another’s negligence is their one opportunity to try and help them work through the physical and financial challenges that come with being seriously hurt.

But then you have people like the Bryants. Considering Kobe’s career in the NBA, his family is almost certainly not in need of money in the way that others who have not been so successful are. It’s hard to fathom that she sees this case as a get-rich-quick scheme because, frankly, she’s already there. If I had to guess, she is most likely making this claim to make a difference.

Unsafe Toys

There is a long history of tort cases causing individual businesses, and even whole industries, to make changes to promote consumer safety. For example, in 2005 a 2-year-old boy in Virginia died after eating small magnets that had fallen out of a broken Magnetix toy. His parents thought he had a stomach bug, when he actually had a string of magnets and blocking his intestine, leading to his death. They resorted to the civil justice system after nothing was being done by the manufacturer and after more kids got hurt in similar incidents. The result? Changes being made by the manufacturer and the Consumer Product Safety Commission to implement new safety standard tests before toys with magnets can be put on the shelves.

Defective Tires

Similarly, in the late 90s and early 00s, there was a rash of defective Firestone tires on Ford Explorers that failed while driving, killing hundreds and seriously injuring who knows how many more. There was a recall, but it was civil litigation that revealed that Ford knew about the tire issue that could lead to rollover accidents but that Ford tried to hide that evidence. If not for the civil action, it’s possible that nothing would ever have been done to hold Ford to its responsibility for selling a safe product and, importantly, to get an unsafe product off of shelves when it found out about a major safety issue.

The history of tort law is full of examples like these where individuals made a claim or filed a lawsuit and fought against giant corporations to make changes to safety. There is a chance that Mrs. Bryant may not win this case, but even with a loss it could inspire a change in policy. Helicopter pilots may think twice before asking to fly in dangerous weather conditions and SVFR clearance may tend to err on the side of caution as opposed to letting experienced pilots test their limits.

A major principle of tort law is to try and put people back in the position they were before their injury. This is generally a fiction though. There’s no time machine available to go back and tell a pilot not to fly in conditions or to take a drunk driver’s keys. Sometimes, the best Plaintiff’s can hope for is that a claim or a lawsuit causes enough financial trouble for a defendant (or raises the possibility of financial trouble for an industry) that better safety practices are put into place to protect others from suffering the same kinds of harm that the plaintiff has.

Be safe out there.

Slips & Falls on Snow and Ice

Of all the personal injury clients we represent in Indiana, car and motorcycle accidents are the most common.  But this is Indiana after all, so winter time slips and falls due to snow and ice also happen all the time.  It’s been a mild winter in the Indianapolis area so far, but what happens if someone slips on your icy front sidewalk?  What if you slip on ice at the entrance to your local big box retailer?

Falls at homes

In Indiana there is no state law requiring you to shovel your sidewalks, however many counties and cities have implemented ordinances that require occupants of a home or business clear their sidewalks. Marion County, for example, has this kind of ordinance. It requires that snow be cleared off by 7 p.m. if the snow has stopped falling, or 9 a.m. the following day if the snow stops after 7 p.m. The penalty for failing to shovel the sidewalk is a $50 ticket.

Beyond a duty created by a law, homeowners still have some duty to keep their sidewalks in a generally safe condition.  Whether or not an occupant of a home shovels their sidewalk, if someone slips and falls there could be a case against that occupant, but it’s not as easy to prove liability as one might think. One issue that plaintiffs run into if they slip is that a landowner is not expected to remedy an unknown hazard.  Think of the example of when you shovel your sidewalk but then ice develops after you’ve done it.  A classic case of plausible deniability. It would be very difficult for a person who slipped and fell on black ice to prove that the landowner who shoveled the side walk knew the black ice was there.  The other issue comes down to whether the homeowner acted reasonably for the conditions.  If they run the snow blower & spread salt, they could have a good defense even if ice still developed because they could argue that they acted reasonably.

Falls at businesses

A business is more likely to be held liable for slip and falls on snow and ice.  Businesses have the highest standard of care they are supposed to provide to their customers and they generally have policies in place to address property hazards like snow & ice. There are, however, a couple of ways a business could escape liability. First, they could claim that they didn’t know about the icy/snowy conditions. Indiana courts have held that a landowner must have actual or constructive notice of the presence of snow or ice and a reasonable opportunity to clean it up. If a business is notified of snow and ice accumulating at the entrance of their store, that would be actual notice. If an employee looks outside and sees snow and ice falling from the sky that could constitute constructive notice that there will be slippery conditions at the entrance.

Once there is notice, a business has a reasonable amount of time to clean it. What is a reasonable amount of time? It depends on the circumstances. If it is really coming down should they wait until the snow ceases? One Indiana Appellate Court said no. A reasonable amount of time would likely be promptly cleaning up the snow and ice. On the other hand, it would be unreasonable in most circumstances to wait two or three days to clean it up. The business owner should also provide sufficient warning to visitors about the icy conditions.

The last hurdle that Plaintiff’s face is their own knowledge of the conditions.  Could you recover for seeing ice and getting hurt while intentionally running and sliding across it? Probably not. In that instance you should have a reasonable awareness for what conditions you may encounter.  What makes it difficult in places with a climate like Indiana’s, is that there is a general awareness that snow & ice happen in the winter.  That’s why it is important to contact an attorney to assess your premises liability case to give you an unbiased opinion about whether the available facts would support a claim.

In conclusion, if you are an occupant of a home, you have no statutory duty under Indiana law to shovel the snow, but your county may have ordinances requiring you to do so. If you are a victim of an unshoveled sidewalk, you could have a good case against the occupant of the property depending on the circumstances. Your chances may increase if the unshoveled property is a business, but you still have to have evidence that the business knew or should have known of the slick area. Regardless, if you do slip and fall this winter you need to consult an attorney to learn your rights because you should not be responsible for paying for someone else’s negligence.

Be safe out there.

Car Crashes and Reckless Homicide

On January 5, 2020 a semi driver, Matthew Small, was driving a his semi-tractor and trailer on I-65 on the northwest suburbs of Indianapolis when he struck a line of stopped traffic.  According to Small, he was talking on the phone using a hands free device and drinking coffee and he was not aware of the stopped cars until the crash had already begun.  The crash tragically injured several motorists and killed three young people, including a very young child. As a result of the crash and the deaths, the Boone County Prosecutor’s has charged Small with three counts of Reckless Homicide.

Sadly, we’re all too familiar with this exact series of events.  As car accident attorneys in Indianapolis, we see it a lot actually.  What we don’t see very often is an at-fault driver being charged with Reckless Homicide for causing needless injury and death.

So, we wanted to take this opportunity to dive into what exactly reckless homicide is, how it is proven, and some examples of conduct that Indiana courts have said was and was not reckless homicide involving car crashes.

The most common kind of personal injury cases involve injuries arising from a car accident. Very rarely are those accidents also pursued criminally, absent the person causing the accident being intoxicated. Most of the time the at-fault driver is considered negligent, which means they didn’t treat the situation with the due care it deserved.  Common examples of this are following too closely, speeding, or running a red light.  The statute for reckless homicide, however, requires that the at-fault individual acted recklessly, not just negligently.

In Whitaker v. State a semi driver was convicted of reckless homicide in Gibson County, Indiana. Whitaker was following too closely and collided with the rear end of a vehicle, causing a crash that killed the other driver. The Indiana Court of Appeals reversed his conviction of reckless homicide because there was no evidence that his conduct rose to the level of recklessness.  Negligent?  Absolutely.  But the court took the time to note that the Indiana legislature has not created the crimes of “negligent homicide” or “vehicular homicide.”  It takes something more to rise to the level of reckless homicide.

Reckless conduct as set out by the Indiana Code states that:  “A person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” In Whitaker did the driver know that he was following too closely? Did he know that driving over five miles over the speed limit might result in the death of another driver?  And even if he did, was it so inherently dangerous that it could have supported a criminal conviction for reckless homicide?  The Indiana Court of Appeals apparently believed that it would not.

The second prong of recklessness involves “a substantial deviation from acceptable standards of conduct.” The Indiana Driver’s Manual states that it is a good idea to follow other cars at a distance of two to three seconds. Is this rule followed with prudence during rush hour? Not that we see. Traffic would be more backed up than it already is if every driver followed this general rule. It could be said that an acceptable standard of conduct is two to three seconds behind another vehicle, but is 1.5 seconds in stop and go traffic a substantial deviation? Probably not.  Is 1.5 seconds at 70 mph on I-465 a substantial deviation?  Could be, but there aren’t any bright lines here.

The Court in Whitaker also noted that proof that an accident arose out of inadvertence, lack of attention, forgetfulness, of from an error of judgement will not support a charge of reckless homicide. Below are some examples of these cases where reckless homicide did not stick:

  • attempting to pass another vehicle when the defendant’s view was obstructed, in violation of the reckless driving statute
  • driving through a light that freshly turned red when the driver is unable to stop in time
  • rear-ending a vehicle absent a showing that the driver knew he was following too closely and continued driving too closely anyway

It certainly is possible to convict an at-fault driver for reckless homicide, however.  Here are a few instances where the court ruled in favor of reckless homicide:

  • driving while intoxicated and substantially across the centerline for an extended period of time
  • a police officer driving through a flashing yellow light at 100 miles per hour without his lights or siren activated
  • driving 50 miles per hour down a narrow residential street with a 30 mile per hour speed limit and cars parked on both sides, while another person was standing on a running board, holding onto the driver’s side mirror
  • operating a vehicle on a very dark highway during the early morning hours without headlights
  • consuming alcohol and later driving around a corner at approximately 100 miles per hour
  • driving “erratically” and forty to fifty miles per hour where speed limit was thirty-five but snow and ice made twenty miles per hour the maximum safe speed
  • intentionally crossing the centerline for the purpose of greeting a friend according to a local custom

Tragic events similar to the one that took place on Sunday January 5, happen all the time, especially with semis. Big truck accidents often lead to big injuries and wrongful death.  Drivers need to be prudent and defensive. Always maintain a safe following distance.  And ALWAYS, ALWAYS, ALWAYS be on the lookout, especially when in a traffic backup on the highway, and.

Be safe out there.

Santa Claus is coming to town (and he’s suing if he falls off your roof)

It is almost time. The children have been counting down the days since Thanksgiving (a couple of our attorneys’ wives have been counting down since Halloween). There is something in the air, but what if the unthinkable happens—Santa Claus is injured while delivering gifts to your home. There are a few questions you may want to consider in case Santa files a formal complaint against you. Would liability coverage go to work? Does it matter where on your property he fell? What if he got milk poisoning?

Would your insurance cover him?

Homeowners insurance is perhaps the most essential form of financial and personal property coverage, as the majority of most people’s assets are tied up in your home. Well, as with most things in the legal world, the answer is not black and white. Was Santa trespassing? Was he invited into your home? Did you know the milk had gone bad? Did your children set a trap to try to catch Santa for giving them coal last year?

The law defines someone as a trespasser if they enter and remain on the real property of another wrongfully or without the owner’s or possessor’s authority or consent. In the case of Santa, there are likely few circumstances when he would be considered a trespasser. Most people want Santa to deliver the goods. However, say Mr. Claus falls off the roof trying to drop off a load of coal to Ebenezer Scrooge or the Grinch, neither of them wanting the big man near their homes. It is likely that Santa will have to pay for his injuries himself since he did not get Scrooge’s or the Grinch’s consent to enter their property. However, there is one instance where the property owners could still be responsible for St. Nick’s injuries.

The Known Trespasser Law.

A landowner has to duty to look out for a trespasser, but once a trespasser has been discovered, the landowner owes the trespasser a duty of reasonable care not to increase his peril.  In other words, no Santa traps. Say every year Santa comes and every year the Grinch leaves him a note telling him he is not welcome on his mountain, so this year on Christmas Eve the Grinch and Scrooge meet up to carry out a plan to finish Santa off once and for all. They decide to water the roof so that when Jolly Old St. Nick hops off his sleigh he will slide off the roof and fall down Mt. Crumpit. That is a big no-no. Just because someone is trespassing on your land does not mean you can do whatever you want to them to get them off your property. Now if the Grinch and Scrooge put a sign on the roof warning the trespasser (Santa) of the slippery condition and telling him not to land there, and Santa lands there nonetheless, they may be able to get out of that pickle.

The Grinch and Scrooge are two atypical examples. Most people want Santa to come visit their homes. Therefore he would likely be considered an invitee. The law defines an invitee as a person who comes onto another’s property, premises or business establishment upon invitation. The duty owed to an invitee is the highest legal level of care. That duty is the duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by unreasonable risk that the invitee may not discover on his or her own. While a slippery roof is something Santa can probably foresee, hot ashes in your fireplace may not be. In that case, the property own/possessor may want to put a sign somewhere that Santa will notice informing him of the hot coals.

What about spoiled milk?

Santa has to know there is some risk drinking milk that has been sitting out for 8-10 hours. According to dairygood.org, milk can start to grow bacteria if left out for two hours. Are you negligent for not watching the Santa tracker so that you can leave milk so that it was not become spoiled? Or should Santa just know that when he drinks the milk there is the inherent risk that it may be spoiled? There are persuasive arguments for both sides so just to be safe I would write down the time the milk was left out and a waiver of all liability should the big man get sick from drinking the milk.

So let’s say that last year a little boy, we’ll just call him Kolten, kicked the Mall Claus for not delivering on a little brother so he ended up on the naughty list. This year Kolten wants to catch the fat man and hold him hostage until he gets his little brother. Kolten, with the help of his older brother Austin decide to put a bear trap in front of the fire place, and if that were not enough, they leave out spoiled milk so that Santa will at least need a new outfit for next year if the bear trap doesn’t work. Well in this case Austin and Kolten would be opening themselves up to numerous liabilities. Battery, assault, false imprisonment (if they catch Mr. Claus), and poisoning (not to mention the criminal charges that will likely result). In this case, Santa could recover a lot more than just for his injuries. He could recover punitive damages, which are damages designed to punish the party in the wrong for their wrong doing. Homeowners insurance will not cover this conduct. Kolten and Austin’s parents will likely be on the hook for all of this.  Luckily for them though, Indiana law caps a parents’ liability at $5,000 of actual damages

Most everyone loves when Santa Claus comes to town, but whether you want him there or not, you could be liable for injuries he sustains while on your premises. As your Indianapolis Injury Attorneys, we just want to make sure you have the knowledge available to protect yourself from a nasty lawsuit.  For your convenience we have attached a liability waiver form to sit on the chimney before he drops in or to mail out with next year’s wish list so that you can help protect yourself from an elf process server.

Merry Christmas & Happy Holidays from your Ladendorf Law family.  Stay frosty friends!

 

 

Waiver of Liability and Assumption of Risk Agreement

Use of Premises

Waiver:

In consideration of my use of the premises of ____________________________, I for myself, my heirs, personal representatives, elves, or assigns, do hereby release, waiver, discharge, and covenant not to sue ________________, or anyone else presiding in the household for injuries caused by slipping and falling, burns as a result of the fire place, or any other injuries, including intentional injuries, by the person listed above or anyone else presiding in the home.

Waiver:

I, Saint Nick aka Kris Kringle aka Santa Claus aka Pere Noel aka Father Christmas, understand that the milk and cookies left out at __:__ pm/am, were fit for human consumption when so placed. The expiration date on the milk carton was established as _________________, 20__. I have been advised that bacteria may start to grow in milk if left out for more than two (2) hours. My signature and acknowledgement below constitutes a waiver to sue or otherwise make a claim for damages if I should become sick as a result of consuming the aforementioned milk and/or cookies.

 

__________________________                                                   __________________________

Saint Nicholas                                                                                                 Time and Date Consumed

a/k/a Kris Kringle

a/k/a Santa Claus

a/k/a Pere Noel

a/k/a Father Christmas

 

4 Thanksgiving Liabilities You Should Know About

Thanksgiving is a time of love and family.  Where we can all express what we’re thankful for.  But we deal with personal injury claims for a living.  So Thanksgiving is also a minefield of civil law dangers where you could be liable for, or the victim of, horrific circumstances.  So without further ado, here is our list of 4 Thanksgiving Liabilities that you should know about.

 

#4 — Turkey Fryers

‘Twas the night before Thanksgiving, when all through the house,

Not a creature was stirring, not even a mouse;

The turkey was placed, frozen, in the sink to thaw

In hopes that this year’s bird would leave the family in awe

 Father was nestled all snug in his bed,

While visions of praise danced in his head.

And Mamma in her kerchief, and the kid in their cap,

Had already settled in for a long fall nap.

When out in the garage there arose such a clatter,

Mom sprang from her bed to see what was the matter.

Away to the window she flew like the flash,

Tore open the shutters and threw up the sash.

And the garage was on fire.

 

Turkey frying can be a dangerous game. According to the National Fire Protection Association, an estimated $15 million in property damage, 60 injuries, and five deaths can be attributed to the use of a turkey fryer. Why does this happen? Sometimes the oil can be too hot or the turkey too frozen. Luckily in most cases, standard Homeowners Insurance policy will cover your house. It could subject you to liability if the fire causes your neighbor’s house to burn or the unthinkable happens and someone loses their life.

This year, if you are frying a turkey make sure the oil is the correct temperature (varies depending on type of oil) and that your bird is thawed before dropping it into the oil.

 

#3 — Dram Shop/Social Host

At many a Thanksgiving dinner there will be alcohol served, but this can open the host of the dinner up to liability. Let’s say a guest shows up to your family function. You have a pretty good amount of alcohol there and the guest decided to help himself.  It soon becomes clear that your guest is inebriated.  But the pumpkin spice Jell-O Shots won’t take themselves, so you pass them around. As the night winds down and people start leaving the guest decides that he will drive himself home. On the way, the guest causes a serious car accident and the person they hit is seriously injured.

The Dram Shop Act made it so that businesses who sell alcohol can be held liable if a patron at their bar or restaurant is overserved, drives home, and injures someone. The same principles can also apply to hosts of social events, such as Thanksgiving dinner. Drinking and driving is NEVER a good idea and every year thousands of people die as a result of drunk driving. If you see something, say something. Do not let an intoxicated person get behind the wheel. It is not only the right thing to do, but you could be held liable for whatever part you played in the drunk driver’s actions (or at least in him getting drunk in the first place). I encourage people to have a plan before drinking and to stick to that plan.  **Editor’s note: as long as the “plan” is NOT to get drunk and drive.  That’s a very bad plan.**

 

#2 — Food Poisoning

 

Last year’s Christmas dinner with the family was a mess. You didn’t get your work bonus, you stapled yourself to the gutter while hanging Christmas lights, and you had to deal with Cousin Eddie emptying his RV sewage out into the storm sewer. You finally sit down to eat and the turkey Cousin Catherine cooked was way overdone. She felt horrible and blamed it on Cousin Eddie. This year for Thanksgiving she wants to redeem herself. She begged and begged you to allow her to bring the Turkey. You gave in.

In an effort to not make the same mistake as she did on Christmas, she purchases a turkey that has already been cooked from a local truck stop. The turkey tastes great, the whole family is relieved and praising Cousin Catherine, but a short while later the bathrooms are taking some serious abuse from the whole family. Catherine admits to the family that she has purchased her turkey already cooked. Is the truck stop liable for the injuries suffered by the family?

When it comes to food preparation the person making a claim for the undercooked food alleges that the cook was negligent in the food preparation. Here, the family must prove that the truck stop failed to prepare and serve its turkey in a manner that was safe for human consumption and that as a result of eating such turkey, the family sustained injuries and damages.

Food poisoning can ruin the Holidays and be dangerous to your health.  Whether you’re buying food from a restaurant, or making it yourself, make sure you’ve got your bird up to a safe temperature and don’t undercook that oyster stuffing.  That’s something your whole family will be thankful for.

 

#1 — Fights


Some things just go together.  Turkey & Stuffing.  Mashed Potatoes & Gravy.  Thanksgiving & family fights.  Sometimes Thanksgiving dinners can get out of hand. Maybe your mother and your father do not like your significant other or do not necessarily agree with your decision to go into the lucrative business of selling premium snapchats. Mix some roast turkey with a little bit of Wild Turkey and you could have a Thanksgiving like the one above.

Obviously, a fist fight could result in some criminal charges.  Battery or disorderly conduct come to mind.  But, depending on the facts, fighters could make claims against each other for physical injuries.  Grandma could even make a claim for the property damage caused when the fracas broke out.

What’s important to know, is you’re not going to have insurance to cover damages caused in a fist fight.  So if your cousin is arguing politics with you and you break his face with a punch.  You could be on the hook for hundreds of thousands of dollars of medical bills if they get badly hurt.

So no matter how tempting it might be to settle differences with a little fisticuffs, you should settle these differences like family…..ya know, but trying to get grandma to write them out of the will.

 

So that’s our list of 4 Thanksgiving Liabilities.  Happy Thanksgiving to all of our friends & family out there.  Be thankful for all of your blessings and be safe out there!

 

Game of Thrones — Personal Injury Review

Disclaimer:  We are not attorneys licensed to practice law
in any of the Seven Kingdoms or Essos.

Spoiler Warning:  This blog post will contain spoilers for the first 7 seasons of Game of Thrones.  The night is dark and full of spoilers.

Game of Thrones is a phenomenon.  It’s a landmark series that has separated itself from other shows and grown its audience throughout its run on HBO.  Normal people may watch the show and ask themselves “Who will sit upon the Iron Throne?” or “Who is Azor Ahai?”  But I am a nerd.  And I ask myself what is the tort law system like in King’s Landing?  Lord knows there are plenty of people suffering injuries & wrongful death in a World of Ice and Fire.  So let’s dive into some specific examples of Game of Thrones injuries and see what would happen in the real world.

Situation #1
 – Jaime Lannister pushing Bran Stark from the window

Photo Credit – HBO

Game of Thrones shrugged off convention in the pilot
episode.  Young Bran Stark climbs a tower
at his castle and catches the Queen in throes of passion with her twin brother
(who is also one of the Kingsguard, the Westerosi equivalent of the Secret
Service).  The twins are rightfully
concerned about the repercussions of their tryst being discovered, so Jaime
Lannister casually shoves Bran out of the tower window.  Bran survives with no memory (at least at the
time, but that’s a long story), but he becomes paraplegic as a result of the
fall.

Does Bran have a
claim against Jaime?
 

Yes and no. 

He definitely suffered a serious injury because of Jaime’s actions and that is legally recoverable.  But It was an intentional act and insurance contracts typically do not cover intentional torts.  And it’s doubtful that there even is some kind of insurance policy for what happened anyway. 

So Bran would be stuck in a situation where he would have to sue Jaime personally to try and get Jaime’s assets.  Now even though a Lannister always pays his debts, how much money does Jaime have?  His family is the richest on the continent, but does he have actual assets in his name or does his dad just send him an allowance?  Because it matters.  Bran could secure a judgment of millions of gold dragons but unless Jaime has the cash, the judgment is only worth the paper its printed on unless there is insurance money or assets that can be readily gotten to.  If Jaime doesn’t have assets, he could just declare bankruptcy and discharge the debt without paying a dime. 

We run into similar situations often where clients are catastrophically injured, but there is limited or no insurance coverage available.  It doesn’t make sense to spend the money it takes to go to trial and get an uncollectable judgment.

Does Bran have a
claim against the government?

Possibly, but you would have to get creative. 

The biggest benefit to Bran of making a claim against the government is that there is potentially another party with a duty to pay for Jaime’s wrongful acts.  If Bran were to make a claim against the kingdom for what Jaime did, it would be subject to the Indiana Tort Claim Act.  The downside there is that the ITCA limits government liability to $700,000 in damages. 

The biggest thing Bran would have to prove in making a claim against the government is that Jaime was acting in the course and scope of his employment as a Kingsguard member, otherwise he’s acting as a private citizen and the claim would fail.  On one hand (no pun intended), he was at that particular castle traveling with the King and his job IS to protect the royal family.  So his choice to push Bran from the window to protect the lives of the queen and her children might fall into the category of acting in the course of his employment.  On the other hand, it’d be hard to imagine that a discreet lovemaking session with the Queen is in his job description.   

Bran may also have a separate theory against the
government.  Instead of framing the issue
as a wrongful act resulting in personal injury, he could also wrap in a federal
civil rights violation for Jaime’s use of excessive force.  He would still have to prove that Jaime was
acting as an agent of the government when he pushed Bran.  The damages calculations are different with
civil rights violations too, because you’re not claiming the value of the
physical injury, you’re claiming the value of the violation of your
constitutionally protected rights.

How long does Bran
have to make a claim?

Generally speaking, the statute of limitations on a civil
case is two years.  It does get extended
if the person is a minor, like Bran, and the two year clock doesn’t start
moving until his 18th name day. 
So Bran will have until he is 20 years old to either settle the claim or
file suit.

Situation #2Where’d you find this doctor?

Photo Credit -HBO

Back again to Season 1.  Dany’s husband, Khal Drogo, gets wounded in the shoulder when he’s killing one of his men who started talking a little too familiar with the boss.  The wound gets infected, so Dany enlists the services of a woman who had just been captured by their army who claimed to be able to heal him.  She used some, let’s call them “unconventional” methods of healing, and I’m pretty sure the Khal turned septic. 

Dany made a last ditch deal with this healer, Mirri Maz Duur, when she again promised that she could save Drogo.  She failed, kinda.  Mirri put him through a blood magic ceremony, slitting a horse’s throat spraying everything inside of their tent.  I said it was unconventional.  Drogo survived but was left in a comatose state.  Writer’s Note:  What Mirri Maz Duur did was intentional, but for the sake of discussion we’re going to act like she actually did mean to save him.

What is medical
malpractice?

It’s a breach of the standard of care, it’s not a bad
outcome.  Medical procedures have some
inherent risks associated with them. 
Even a routine surgery can be fatal if the patient, for example, has a
bad reaction to the anesthesia.  It
doesn’t necessarily mean that it was malpractice.  Another example would be being nicked by a
scalpel and bleeding out during hear surgery. 
It’s a tragedy, but not necessarily malpractice.  If the surgeon on the other hand was using a
dirty hunting knife to do the surgery, you’d be on to something that rises to
malpractice.

Is there a claim for
medical malpractice here?

Um, yeah.  I’m not
sure where Westeros stands on knowledge of infectious diseases, but I’m pretty
sure they understand that horse blood is not an effective antibiotic.

How would a medical
malpractice claim play out?

First, Dany would have to make a claim with the Indiana
Department of Insurance explaining the medical negligence.  If the provider is NOT covered by the
Medical Malpractice Act, then it proceeds into litigation like any other
case.  If the provider is covered, the
claim continues on the process.  After
doing discovery, they’d empanel a medical review panel consisting of three
maesters to review both sides’ submissions and the panel would determine
whether (1) malpractice occurred and (2) if so, did the malpractice cause
injury.  The panel opinion isn’t binding
on the determination of the case, but it can come up and be presented to the
jury.

If there’s no informal settlement, then the case would go
into general litigation.  When it comes
to settlement times, there is a hard cap on medical malpractice cases.  Currently, the cap on damages is $1.65
Million, rising to $1.8 Million in July of 2019.  The provider is responsible for up to the
initial $400k (increasing to $500k in 2019) and the remainder has to be sought
through the Indiana Patient’s Compensation Fund which is funded by annual
surcharges paid by all qualified health care providers.  It’s good for providers by limiting their
liability.  It’s equally bad for those
who suffer serious damages due to medical negligence where even a case where
they receive the full cap on damages is not enough to pay for their past and
future medical care or in cases where a loved one passes away due to medical
negligence.

Situation #3 –
What about Bronn?

Photo Credit – HBO

Bronn has been one of the breakout characters on the
show.  He’s a mercenary, called a
sellsword, who has been hired by a succession of Lannisters from Season 1 to
present.  Basically, he’s a hired
bodyguard/killer.  And he hasn’t died up
to S8 Ep. 3, so he’s at least proficient at what he does.  So what happens if he gets thrown from his
horse on his way to Dorne?  Does he get
work comp?  What if has a few too many
ales on the way and side swipes someone on the Kingsroad?  Does the crown get sued?  Will he ever get his castle?  The streets are talking…..

What’s his employment
status?

The threshold question in a case where someone gets hurt or
hurts someone else when on the job is whether they are an employee or
independent contractor.  An employee gets
work comp if he gets injured while acting in the course and scope of
employment.  Doesn’t matter if it’s his
fault or not.  Similarly, if an employee
is acting in the course and scope of employment, their employee is liable for
injuries caused by their employee’s negligent acts.  For independent contractors, they’re on their
own.  Work comp laws don’t apply to them
if they get hurt, and absent some specific language that could be in their
contract, they’re responsible if they hurt someone else. 

Courts use a 20 factor test to determine whether an
individual is an employee or contractor. 
No particular factor is dispositive, but they all get to the general
question of how much control does the employer have over the employee.  Does the employer withhold taxes?  1099 or W2? Provide benefits?  Do they drive a company vehicle or wear a
company uniform?  Who sets the
hours?  Are they paid by the job or a
regular salary?  Can they subcontract the
job or are they required to do it?  Who
provides the tools of the trade?  How
much expertise is involved?

From everything we’ve seen with Bronn, the evidence points
to classic independent contractor.  He
can walk away any time he wants.  Even
though he’s been a fixture serving the Lannister’s for 8 seasons, he did turn
down Tyrion’s offer to fight for him at his trial by combat against Ser Gregor
Clegane.  He fights with the Lannister
army, but wears his own armor.  Even when
he commanded the City Watch, he didn’t wear the uniform.  His job takes a great deal of expertise and I
can’t imagine he’s getting a W2 at tax time. 
In fact it seems like he just gets paid haphazardly with sacks of gold
(not bad work if you can find it). 
Admittedly, he’s probably not free to subcontract out his killing for
hire, but that’s the big knock against the independent contractor designation.

What happens to Bronn
if there’s a claim?

Assuming that he’s an independent contractor, if Bronn gets
sued, it’s going to be up to him to defend himself.  Luckily, Westeros has trials by combat and so
he’s got fairly effective defense, so to speak.

If Bronn gets hurt because of some other person’s actions,
he wouldn’t qualify for work comp and would have to seek compensation from the
at-fault party on his own.

The crown may get sued for something Bronn does, but they
would most likely move for, basically, a dismissal of the case against them by
seeking a legal determination from the judge that Bronn is an independent
contractor and they’re not liable for any damages he caused.

Summary

These are just three examples of how tort law would play
into the Game of Thrones universe.  There
are plenty of other examples on the show like Did Littlefinger cause Sansa
Negligent Infliction of Emotional Distress by Giving her to the Bolton’s?  What happens if you get bitten by one of Dany’s
dragons?  Could Tyrion make a claim for
defamation for what was said during his trial in King’s Landing?  Could Jaqen H’ghar be properly served notice
of a lawsuit if a Man is No One?

We’ll how Season 8 plays out and maybe revisit these
questions and more in the future.

Be safe out there,

Matt Bigler

Ladendorf Law

BISARD SENTENCING

The news broke over the last week that David Bisard was released from prison to start serving probation. Many in the Central Indiana biker community and the community overall have expressed outrage that Bisard could be released after serving only 3 ½ years of an announced 16 year sentence.  I want to take the chance to try to show how this happened and let you know how you can make sure your voice is heard.

First, in 2014 the Indiana Legislature re-wrote the criminal code for the state. Notably, the old system of felonies graded by letter (4 levels from D to A) was replaced by a number system (6-1).  Bisard was sentenced under the old system for his convictions for:

1: Operating a Vehicle with a BAC greater than 0.15 Causing Death – Class B Felony

2: Operating a Vehicle with a BAC greater than 0.08 Causing Serious Bodily Injury – Class D Felony

3: Operating a Vehicle with a BAC greater than 0.08 Causing Serious Bodily Injury – Class D Felony

For a Class B Felony, the penalty range was 6-20.  A Class D Felony ranged between 1-3 years.  So the maximum possible penalty Bisard, or anyone else facing the same charges, could have received on paper was 26 total years.  He also could have gotten as low as 6 years.  Bisard’s actual sentence was:

Class B Felony: 13 total years.  10 years in prison.  3 years suspended to probation.

Class D Felony: 1 ½ total years.  1 ½ totals years in prison

Class D Felony: 1 ½ total years.  1 ½ totals years in prison

TOTAL Sentence: 16 total years.  13 years in prison.  3 years suspended to probation

So how does someone sentenced to 13 years in prison get out in 3 ½? First is good time credit.  When he was sentenced, an inmate received one day of good time credit for each day served.  So when he was sentenced to 13 total years in prison, it effectively was a 6 ½ year prison term.  Second, Bisard also received jail credit days for the time he was in custody awaiting trial.  Additionally, he received his associates degree while in prison and was given the benefit of another time cut.  Good Time Credit and time cuts happen every day because of the system that was and is in place.  Most of us are just generally unaware of it unless it happens with a defendant that has harmed us or one of our loved ones.

What’s Broken?

There are a number of issues with the sentencing laws for this crime. For example, with the rewrite of the criminal code the maximum actual number of years for what Bisard did is now 8 years instead of 10.  Also, with the rewrite, there is never a mandatory executed sentence for a drunk driving causing death unless there is also a hit & run component.

The definition of “Serious Bodily Injury” also deserves to be looked at by the legislature. As it is written, serious bodily injury covers everything from a broken arm to putting someone in a coma.  In either case, there are no enhancements beyond the 1-3 year penalty range for the degree of injury or level of intoxication.  This is more pronounced now because the equivalent charge has a 1 – 2 ½ year penalty range with the same 50% credit time system.

The civil law system also has disadvantages in a case like this. Because Bisard was working as an IMPD officer at the time of the crash, any claim for compensation by those injured by him is subject to the Indiana Tort Claims Act (click HERE for a video with more information on the ITCA).  So whether someone has passed away or suffered lifelong and debilitating injuries, the most the government can be required to pay to compensate is $700,000 per person.  At first blush this sounds like a great deal of money, unless you’ve seen the medical bills that come along with catastrophic injury.

How to be Heard

The problems with the David Bisard sentencing are not unique to him. Victims, and their families, all over the state have this happen to them every day.  The only people who can make changes to the criminal and civil laws that allowed this situation to happen are the legislators at the Indiana General Assembly.  Click HERE to find your legislator and let your voice be heard.

Matthew S. Bigler, Esq.

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