Recent Hilbrich Blog Entries

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Local Attorney Daniel Vinovich is coming home “I grew up in Crown Point and it has always been my dream to open a location and contribute to my home town.” – Attorney Dan Vinovich Crown Point, IN, April 27, 2016: Hilbrich Cunningham Dobosz Vinovich & Sandoval, LLP, popularly known as the Hilbrich Law Firm is excited to announce the grand opening of their third and newest location at 1857 E. Summit Street in Crown Point. The firm has had offices in Highland and Portage, Indiana, for decades. Hilbrich Law Firm was established in 1952, and is a full-service firm representing clients in many areas of the law. A large portion of the firm’s practice is devoted to personal injury, wrongful death and medical malpractice cases. The law firm also maintains a robust general practice, including civil litigation, elder law, estate planning, probate, real estate as well as corporate work. “Recently we have expanded our practice to tackle sophisticated elder law and provide intellectual property advice,” commented Dan Vinovich, a partner who has practiced with the firm for 25 years. Vinovich grew up and still lives in Crown Point. He attended Crown Point High School, did his undergraduate work at Purdue University, and received his law degree from Indiana University. Attorney Vinovich is very active within the legal community, having served as president of both the Lake County Bar Association and Indiana State Bar Association. “I am excited to spend more time professionally in Crown Point and to help my community with their legal needs,” said Vinovich. The law firm’s expansion to Crown Point tracks the recent changes in local demographics. “Mid to South Lake County is really bustling,” said Vinovich. “For decades our firm has provided legal services to the north part of Lake County, and now we are seeing an increase in cases and clients from Crown Point, St. John, Cedar Lake, Lowell, and Merrillville. The Summit Street location provides better access to clients from those areas.” Hilbrich Law Firm is comprised of six experienced attorneys as well as numerous paralegals and staff. Their collective trial experience is well over 100 years. The attorneys regularly provide seminars to the public in the areas of Estate Planning and Elder Law and make presentations to other Indiana attorneys in the areas of personal injury, wrongful death, medical malpractice and ethics. The law firm can be found online at:

Posted: 4/27/2016

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Megabus Accident Illustrates Need for Higher Standard of Care

News reports of car accidents and roll overs seem to pervade our daily traffic reports. So much so that we often become desensitized to the tragedy and loss so many encounter on the roads each day. As drivers on public roads, we acknowledge and accept the fact that danger may strike and we put trust in our vehicles and our driving abilities to avoid them. But what happens when we are not the ones in control of the vehicle? Take for instance the 56 passengers aboard a Megabus that recently crashed on Interstate 65 near Indianapolis while traveling from Atlanta to Chicago. More than 26 of those passengers were seriously injured when the bus driver hit a stopped car and veered onto the median, where it rolled over onto its side. Some passengers allege that the bus’ windshield wipers were malfunctioning at the time, which led to the crash. Despite the cause, none of the Megabus passengers had any control over the events that occurred or any way of avoiding their resulting injuries. Indiana law recognizes this unique situation and provides special rules for the standard of care that common carriers, such as Megabus, must provide. Under the law, common carriers, such as taxi drivers, bus companies, train operators, and pilots for hire, must provide a very high standard of care, often referred to as strict liability. Under this standard of care, an injured passenger does not need to prove negligence on the part of the common carrier. Instead, he or she need only show that a tort occurred and the common carrier was responsible. This differs greatly from the traditional standard of care that applies to most car accidents and other torts. Under the traditional standard, known as the “reasonable person” standard, in order to prevail in a lawsuit, an injured person must prove that the driver was negligent by failing to act the way a reasonable person in the same situation would have acted. The reasonable person standard of care is much harder to prove than the common carrier standard. The reason behind this special rule for common carriers is illustrated by the recent Megabus accident. Each of the 56 passengers placed their trust in Megabus to provide them safe travel to Chicago. The passengers had no control over whether the bus was maintained or how the bus was operated. They had to rely on Megabus to provide a properly maintained vehicle and competent and safe drivers. Because of this high level of trust placed in Megabus, and other common carriers, the law imposes the higher standard of care. It is good public policy to allow people to trust the company they hired to provide safe transportation and if not, to hold the company strictly liable for any harm caused to its passengers. With the law providing more protections to innocent passengers like those traveling on the Megabus, and with so many people seriously injured, it is no surprise that within days of the accident lawsuits against Megabus were initiated. But even with the higher standard of care, the passengers have a long fight ahead of them. Fortunately, experienced attorneys are accustomed to the strategies and delay tactics of big companies, such as Megabus, and are equipped to combat it. If you or someone you love has been injured in a motor vehicle or common carrier accident, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our experienced personal injury attorneys.

Posted: 11/5/2014

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Jury Awards Woman $270,000 After Tripping at a Garden Supply Store

A Lake County jury recently found in favor of a woman, who sustained soft-tissue injuries as a result of tripping over a defective rubber mat at a local garden supply store and awarded her $270,000 in compensatory damages. On February 28, 2011, while shopping at Alsip Home & Nursery, a lawn and garden supply store located in St. John, Indiana, Barbara Banske tripped on a rubber floor mat the store had placed near its front entrance. As a result of her fall, Ms. Banske sustained soft-tissue injuries and suffered pain from her neck downward on her left side. No bones were fractured or broken as a result of her fall; however, she did receive both physical therapy and naprapathy treatments for her injuries. Naprapathy is a manipulative therapy that focuses on evaluation and treatment of neuro-musculoskeletal conditions, and is often viewed as a derivative of chiropractic and osteopathic care. Alsip Home & Nursery defended the case, claiming that the floor mat was not defective. The store further argued that Ms. Banske’s injuries were the result of her own negligence and carelessness. Despite its contentions that the rubber mat did not pose a hazard, after a two day trial, the jury returned a verdict in favor of Ms. Banske. The jury determined that Alsip Home & Nursery was 90% at fault for the accident and Ms. Bankse was 10% at fault. The jury further determined that Ms. Banske’s total damages totaled $270,000. However, because Indiana, like most states, follows a comparative fault system of liability, Ms. Banske’s award was reduced by ten percent to reflect her share of the blame. The comparative fault system works to allow plaintiffs to recover for their injuries despite their role in causing the accident; however, it limits the total recovery by the plaintiff’s amount of fault thereby preventing plaintiffs from recovering for damages they themselves caused. Consequently, Ms. Banske’s award of $270,000 was reduced by ten percent to reflect her share of the blame bringing her recovery for her injuries to $243,000. As the Banske v. Alsip Home & Nursery case illustrates, even seemingly minor accidents can result in significant liability. As such, if you believe someone or something caused you pain and bodily injuries, it is always in your best interest to consult an attorney before accepting any settlement offers or other offers of compensation, including payment of medical bills. If you or someone you know has been injured due to another’s negligence, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our personal injury attorneys.

Posted: 8/13/2014

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Indiana To Introduce New Guardianship Registry

Indiana will soon be testing out a new statewide registry for guardians and their wards. The registry is the first of its kind in the nation and is being introduced in Indiana to help unify the county courts and improve oversight. Currently, guardianship practices in each county varies widely. Some counties, such as Marian County, have much larger probate court staff enabling it to oversee and manage each guardianship, while many other counties are forced to rely on the guardians themselves, or their attorneys, to file the appropriate updates, inventories, and accountings. One of the goals in the new registry program is to provide the court clerks enough information at a glance that automatic notices can be sent to guardians or their attorneys reminding them of important due dates. This would allow the courts to manage their own caseloads on a more unified basis. Another goal of the new registry is to provide an extra layer of protection for potential and current wards. The registry will compile a database listing the names and contact information for all guardians, the names of their respective wards, and whether the guardianship letters are current. If a hospital, nursing home, financial institution, or even court official, ever has concerns over a guardianship, the registry will allow them to easily confirm who the guardian is and whether the guardianship is still active. The Indiana Adult Guardianship State Task Force hopes to roll out the registry in six to eight test counties beginning as early as January 2014 and will follow its progress throughout the calendar year. If successful, the registry will be introduced state wide and will put Indiana at the top of the nation among states managing guardianship cases. However, the need for guardianship proceedings can often be avoided in the first place by executing a valid power of attorney and durable health care power of attorney. Guardianships, particularly over adults, arise when a loved one becomes incapacitated due to an illness, such as Alzheimers, and is no longer capable of managing their healthcare or financial affairs. Guardianship proceedings enable the courts to give an individual the powers necessary to manage those affairs on behalf of the incapacitated person. However, had that person created durable powers of attorney prior to becoming incapacitated, the time and expense of court proceedings may have been saved and the person could have selected who he or she wanted as manager of his or her affairs. Whether people choose who handle their affairs in case some future event or illness prohibits them from being able to do so themselves, or the courts get involved and appoint the person they think will best assist and protect the ward, it is important that you consult an attorney to make sure your interests, or those of your loved ones, are protected and in compliance with applicable laws. For more information about guardianships or to create your power of attorney, call 877-877-LAW2 (5292) or 219-924-2427 to consult with one of our top guardianship professionals.

Posted: 12/20/2013

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CVS Pharmacy Found Liable for Slip & Fall in the Amount of $455,563

Under Indiana law, an owner or possessor of property owes certain duties of reasonable care to the people who enter upon the property. As such, a property owner can be found liable for the injuries another person sustains on the property due to the owner’s negligence in maintaining the premises. For instance, a jury recently awarded over $455,000 in a judgment against CVS Pharmacy due to a slip and fall accident occurring back in January 2012. A Lake Superior Court recently held a three day jury trial on the lawsuit brought by Connie Kadar and her husband, Gene Kadar, against a Hobart CVS Pharmacy due to injuries Mrs. Kadar sustained when she slipped and fell on some ice on the sidewalk near the entrance to the store. As a result of her fall, Mrs. Kadar suffered injuries to her right leg and fractured her right ankle, which required surgery for the insertion of pins, plates, and screws. The jury heard evidence from both sides, including testimony from CVS employees that they knew that the store’s entryway became slippery when wet or covered with snow. Upon completion of the trial, the jury returned a verdict in favor of Mr. and Mrs. Kadar in the amount of $455,563. It should be noted that in Indiana, the level of care a property owner owes to individuals on his or her property changes depending upon the status of person on the property. For example, because Connie Kadar was invited onto CVS’s property for the benefit of CVS, CVS Pharamcy had a duty to reasonably ensure that its guests were not exposed to unreasonable risks of injury. Because CVS failed to maintain its premises in a safe condition, the jury held CVS liable for its guest’s injuries. However, had Connie trespassed onto the property after the store had closed when she slipped and fell, then CVS’s duty would have changed to only having to refrain from willfully and wantonly causing her injuries. As illustrated by the CVS Pharmacy case, Indiana, like many other states, takes premises liability cases very seriously. After all, it is important to hold individuals who own or possess property and invite others to enter upon it accountable for maintaining the safety of the property for those people, because if the owner fails to do so who else will? If you or someone you know has been injured as a result of the negligence of another person, you may be entitled to damages. Please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our top personal injury attorneys.

Posted: 11/7/2013

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Court Upholds $650,000 Personal Injury Award

The Indiana Court of Appeals recently upheld a jury verdict awarding Nathan Orlando $650,000 for knee injuries he received while working at a landfill. The defendant, MBI, had appealed the award as being excessive and based on insufficient evidence, but the Court disagreed. On October 1, 2008, Nathan Orlando was operating a tipper machine at a landfill when a semi-truck accidentally backed up into the machine causing Nathan to fall and strike the right side of his head and his right knee into the machine. Immediately after the accident, Nathan began complaining of pain in his right knee and had difficulty walking and climbing stairs. Nathan underwent several weeks of physical therapy and medical treatment and was eventually cleared to return to work without restrictions. However, Nathan and his wife both testified that Nathan still experienced pain in his right knee and had difficulty performing his normal daily activities. Nathan testified that because his knee caused him pain and would lock up, he could no longer coach his kid’s sports, could not run and play with his kids like before, could not walk the dog or go on hiking trips with his wife, and still had issues climbing stairs and taking long car rides. Although the semi-truck owner admitted he was entirely at fault, he argued that Nathan’s injuries were not permanent, were caused in part by a pre-existing injury, and that the verdict was based on jury prejudice against his company. MBI pointed to Nathan’s workers compensation lien of $9,602 as a benchmark for what the jury verdict should have resembled. The appellate court, however, in reviewing the testimony of both Nathan and his doctors, determined that it was reasonable for a jury to find that the accident caused Nathan’s injuries and not some prior injury. Although his doctor admitted that some of Nathan’s knee injuries could be either chronic or post-traumatic in nature, Nathan testified that prior to the accident he had never experienced knee pain before. The Court said it was reasonable for a jury to determine that Nathan’s injuries were caused by the accident. The Court also held that the jury award was not excessive or prejudicial because the jury was allowed to consider the nature and extent of Nathan’s injuries, whether they were permanent or temporary, the value of his lost wages, the physical pain he suffered and will suffer in the future, his medical expenses, his potential life expectancy, and his previous medical conditions, if any. Because Nathan was only 31 at the time of the accident and testified as to his current condition and his difficulty with daily activities, the Court said it was reasonable for the jury to find that Nathan would continue to struggle with knee pain for the next forty years or more. As such, $650,000 was not an excessive jury award. As illustrated above, even when a person admits to being at fault for another’s injuries, a complex legal battle can still result as to the extent of those injuries and the amount of damages owed. Often times a jury will determine that an injury is worth much more than what the person at fault claims. As such, it is always in your best interest to consult with an attorney before accepting any money or other offer of compensation for injuries you sustain as a result of someone else’s actions. If you or someone you know has been injured due to another’s negligence, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our top personal injury attorneys.

Posted: 9/9/2013

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Indiana Increases Annual Medicaid Spending by 37 Million Dollars

Last month, Governor Mike Pence announced that Indiana will increase its Medicaid spending by an additional 37 million dollars per year. The increase is made in an effort to restore services that used to be offered, such as dental and vision coverage for adults enrolled in Medicaid and speech and hearing therapies. This spending increase will also allow the state to raise its rate of reimbursement to hospitals, care centers, nursing homes, and health care providers by two percent. The hope is that the rate increase will offer a better incentive for care centers and health care providers to treat the over 1.1 million Hoosiers currently enrolled in Medicaid. In addition to increasing the amount of state funds allocated to Medicaid spending, Gov. Mike Pence is also in the process of continuing negotiations with the federal government on whether to expand Medicaid coverage to over 400,000 more Hoosiers as part of the new federal health care law. While the federal government establishes general guidelines for Medicaid administration, it is left to the individual states to establish specific eligibility requirements as well as the type and scope of the services provided. Although Gov. Pence wants to see the Medicaid program expanded to help even more people, he has repeatedly rejected any coverage expansions involving the traditional Medicaid program. Instead, Gov. Pence has applied to the U.S. Department of Health and Human Services to allow Indiana to use its own Healthy Indiana Plan as the means for expanding the Medicaid coverage. The proposed Medicaid expansion would cover Indiana residents earning up to 138 percent of the federal poverty level. Currently, Medicaid is only available to those residents whose financial situation can be characterized as low income or very low income and are either 65 years of age or older, pregnant, a parent a dependent child under age 19, or disabled. The eligibility rules vary depending on whether an applicant is married or single, however, generally an applicant is not allowed to have more than $1,500 in his or her name alone. Additional allowances are made for a spouse’s support, an individual’s monthly maintenance and personal needs, utilities, etc. In addition, a married couple may retain ownership of their primary residence, one vehicle, and all personal and household goods without being penalized. The rules and guidelines for Medicaid are very strict and the qualification process is often very complicated. Because of the low income and asset qualifications required to enroll in the Medicaid program, it is often necessary to plan ahead. Giving money and other property away is not always an acceptable means of reducing a person’s assets because gifts are penalized by Medicaid and will disqualify a person from receiving any benefits for a number of months or even years depending on the size of the gifts and how recently they were made. Instead, there are special measures that can be taken to protect much of a person’s assets and still allow him or her to qualify for Medicaid, such as taking advantage of certain annuities and burial trusts. To better understand the Medicaid program, its qualification rules, and how you or a loved one can become eligible, please call 877-877-LAW2 (5292) or 219-924-2427 to speak with one of our elder law attorneys today.

Posted: 8/5/2013

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Estate Planning: Small Updates Now Equals Better Results Later

Life is a mystery. No one knows what will come tomorrow, let alone weeks, months, and even years down the road. Therefore, it is important to have certain estate planning documents in place. Whether it be a health care power of attorney, living will, last will or trust, estate planning documents are the only way to guarantee that your wishes are carried out both in life, if you become incapacitated, and in death. In this regard, estate planning is like insurance, something you hope not to need, but is great to have in case life throws a curve ball. However, as important as it is to create an estate plan that reflects your individual needs and wishes, it is just as important to revisit these documents from time to time to ensure they still accurately reflect those wishes. As time passes, our families and assets change. Property is bought and sold, marriages and deaths occur, children are born or adopted, and situations change. A document created today may not accurately reflect your wishes twenty years from now. Consequently, estate planning is a continuing process that requires the occasional update, which can easily be accomplished by simply amending the already created documents. Failure to make the occasional amendment can have unintended results later. For example, the Indiana Court of Appeals recently decided a case that involved their interpretation of a thirty-six year old will. In 1976, Cora Young created a will that left certain property located in Bloomington to her son, Dennis, upon her death and that the remainder of her property would go to her second husband, Theodore. Years later, on May 2, 2012, Cora sold the Bloomington property. She passed away the following month on June 26, 2012. Unfortunately, her son Dennis passed away before her leaving three children and Cora never made any changes to her will to specifically reference her grandchildren. As a result, when the grandchildren argued that the proceeds from the sale of the Bloomington property should go to them as heirs of Dennis, the Court disagreed. The Court said that because the property was no longer owned by Cora at the time of her Cora death, and no provision was ever specifically made for the grandchildren, the proceeds became part of the estate’s remaining property and so went to Theodore. It is unlikely that Cora Young intended to disinherit her only grandchildren when she passed away, but because she neglected to update her estate planning documents to reflect the major life changes that had occurred since 1976, such as the loss of her son, the birth of her grandchildren, and the sale of the Bloomington property, the Courts were bound by the language in the original document. Like any retirement plan or other forward looking document, it is necessary to reevaluate your estate plan and make the occasional change to ensure that your wishes are accurately reflected based on present day circumstances. To talk to an attorney about updating or creating your estate plan, please call 877-877-LAW2 (5292) or 219-924-2427 to speak with one of our top estate planning professionals.

Posted: 8/1/2013

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Man's Best Friend is Also Man's Big Liability

Dogs are wonderful companion animals. They are loyal, loving creatures that often make great family pets. However, dogs, like any other animal, have natural behaviors and instincts that can be dangerous at times. Even the calmest dog can cause serious and costly injuries. In a recent report issued by State Farm analyzing the number of dog bite claims reported in 2013, Indiana ranked 7th in the country. According to the report, there were 148 dog bite claims in Indiana last year, which resulted in over $2.7 million dollars being paid out. California was the number one ranked stated with 451 dog bite claims totaling $17.1 million dollars. The law in Indiana does not presume that dogs or other domestic animals are dangerous; however, that also does not mean that dogs are always entitled to one “free” bite before an owner can be found negligent for a dog attack. Indiana courts have repeatedly held that dog owners, keepers, and handlers have a duty to keep the dog under reasonable care and control to prevent injuries and bites. Moreover, failure to leash a dog, no matter how calm or domicile, will likely result in the owner being liable for any injuries the dog causes if those injuries were caused because the dog was not on a leash. There is also strict liability for a dog owner if the dog bites a US Postal worker or other government employee regardless of whether the owner was aware of any vicious tendencies in the dog. Although dogs may be man’s best friend, dog bites accounted for more than one-third of all homeowners insurance liability claim dollars paid out last year. This is the result of both rising medical costs and the size of settlements, judgments, and jury awards given to those injured or attacked by a dog. Therefore, as a dog owner it is important to remember to properly supervise and restrain your pet to avoid injuring others. It is also important to remember to be cautious and alert when encountering strange or otherwise agitated dogs so as not to needlessly place yourself in harms way. If you or someone you love have been attacked or otherwise injured by a dog, you may be entitled to damages. For a free consultation with one of our top personal injury attorneys, please call 877-877-LAW2 (5292) or 219-924-2427.

Posted: 8/1/2013

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Hospital's Mistake Results in 2 Million Dollar Verdict for Patient

Visiting a doctor is something we all must do from time to time. It is inevitable that at some point we will get sick or injured. It is at that time when we put our health and trust in our medical professionals. Unfortunately, however, our doctors and hospitals can make mistakes. Luckily, not all mistakes immediately affect our health. Sometimes, those mistakes only increase the chances of future problems. Yet, even in those instances where a mistake causes no immediate injury, a negligence case can be won. For example, a trial court in Indiana recently decided a case involving the accidental overdosing of a nine year old girl. Back in 2003, Charlotte Ford took her daughter, Nicole, to the doctor because she was having problems swallowing. Her doctor suspected Nicole may have a thyroid problem and so ordered Nicole have a thyroid uptake study at the local hospital. The study involved the administration of a radioactive tracer called Iodine-131. Nicole was supposed to take the Iodine in pill form, but due to her difficulty swallowing, she was unable to do so. Instead, the hospital’s radiology technician ordered the pharmacy to send up a liquid version of the tracer. However, the technician mistakenly ordered a quantity of the Iodine that was 100 times greater than the originally prescribed dose. As a result, Nicole drank 100 times more of radioactive Iodine than was medically necessary. Although Nicole suffered no immediate injuries, doctors determined that Nicole was at a significantly higher risk of developing thyroid cancer during her lifetime. Consequently, Nicole would require annual thyroid ultrasounds and other frequent tests for the rest of her life. In addition, she was guaranteed to develop thyroid nodules, which she later did, and there was a thirty to fifty percent chance those nodules would become cancerous at some point in her future. Nicole’s mother filed a lawsuit against the hospital on a theory of negligence and increased risk of harm. The hospital defended on the theory that it could not be held responsible for something Nicole had not yet suffered from or developed. In the hospital’s opinion, since Nicole did not actually have thyroid cancer, it could not be responsible for an alleged increased risk of her possibly getting cancer. The jury in Nicole’s case disagreed and ultimately awarded Nicole $2,000,000. The jury’s award in Nicole’s case illustrates just how much we, as a society, trust our doctors and technicians to properly diagnose and treat us and how upset we are when they mishandle our care. While not every instance of medical negligence results in such a large jury award, Nicole’s case shows that even the increased risk of future medical problems is sometimes enough to win in a medical negligence case. If you or a loved one have been mistreated or misdiagnosed by your doctor, you may be entitled to damages. Please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our firm’s top medical malpractice attorneys.

Posted: 6/17/2013

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Nursing Home Cannot Benefit From Concealing Cause of Death

Often times it becomes necessary to entrust the care of a loved one to those employees and professionals of residential living and nursing homes. Unfortunately, however, mistakes and accidents can happen, often affecting the health and safety of those loved ones. Therefore, it is critical that we continually advocate on behalf of our loved ones to ensure their care and treatment are provided for properly. The recent case of Alldredge v. Good Samaritan Home illustrates why it is important to monitor the care a loved one receives while in a nursing home. The Alldredge case was filed on behalf of Venita Hargis, a resident of a nursing home owned and operated by The Good Samaritan Home, Inc. On November 17, 2006, a nurse employee of Good Samaritan told Venita’s family that she had fallen at the nursing home and had been taken to the hospital due to vomiting episodes occurring several hours after the fall. Venita’s family believed the nurse’s story about the fall because Venita had a prior history of falling during one of her mini-stroke episodes. On November 26, 2006, Venita died as a result of the head injury she received in the fall. Nearly 3 years after Venita’s death, on November 24, 2009, a former Good Samaritan employee contacted Venita’s family and informed them that Venita’s head injury was not the result of a simple fall but instead occurred after Venita had been attacked and pushed to the ground by another resident of the nursing home. Acting on this new information, Venita’s family decided to pursue a wrongful death claim against Good Samaritan and twenty three months after learning the truth regarding Venita’s fall, her family filed suit. Good Samaritan argued that the case should be dismissed because Indiana’s Wrongful Death Act requires cases to be brought within two years of the date of death. Venita’s family argued that the Fraudulent Concealment Statute should be applied to provide for a new full two years to file a claim from the date the concealment is discovered. The trial court agreed with Venita’s family that the Fraudulent Concealment Statute should apply; however, the court disagreed that a new two year time period for filing should be applied. On appeal, the Indiana Court of Appeals held that the Fraudulent Concealment Statute does apply to the Wrongful Death Act because it would be unjust for a defendant to take advantage of his or her own misconduct. The Court went on to find that when a defendant fraudulently conceals the existence of a wrongful death action beyond the two year deadline, the decedent’s personal representative shall be allowed to bring the action within two years from the date the concealment is discovered, or should have been discovered. As a result, Venita’s family was allowed to bring their claims against Good Samaritan. The Alldredge case shows how important it is to question and confirm what health care providers say in order to ensure that the information is correct and reflects the best possible treatment. It also illustrates the importance of acting quickly if a mistake does occur in order to avoid having any potential lawsuit dismissed as not being timely. If you or a loved one were injured by a health care provider for which compensation may be owed, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our top personal injury attorneys.

Posted: 6/12/2013

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Court Rules Oral Notice is Insufficient Under the Probate Code

Often, when someone passes away, the property they leave behind creates an estate, which needs to be approved by the Court before it can be distributed. This process is called probate and Indiana has a number of statutes and rules to help fairly administer the estate and to protect the personal administrators, heirs, creditors, and other interested persons. One such statute requires that creditors of the deceased receive notice when the probate estate has been opened so that they have a fair opportunity to ensure their claim is paid before all of the assets are distributed amongst the heirs of the deceased. In a recent court decision, the Court of Appeals determined that notice under the statute must be actual written notice in order to fulfill the statutory requirements. The statute requiring notice specially states that “notice may be served by mail or by any other means reasonably calculated to ensure actual receipt of the notice by a creditor.” In reliance on this, when Samuel Tolley passed away, his personal representative’s attorney called First Merchants Bank to notify them that probate pleadings had been filed to open administration of the estate. In response to the phone call, First Merchants Bank faxed a letter to the personal representative detailing Tolley’s customer information and noting the date of death. Notice of administration of the estate was published, per statute, in December 2010 and January 2011, but First Merchants never received written notice from Tolley’s estate. As a result, First Merchants filed two claims against the estate in July 2011. Tolley’s personal representative argued that the claims should be dismissed because they were not filed in a timely manner. The bank argued that they never received actual notice and therefore their claims were properly filed. The trial court ruled in favor of Tolley’s estate and denied the claims as being untimely because First Merchants was told that Tolley died and that an estate was being opened. On appeal, the Court reversed the trial judge’s decision stating that the bare minimum of Due Process required actual written notice under the Probate statute. The Court stated that even though First Merchants had actual notice of Tolley’s death, the phone call did not meet the requirements of informing the bank of the time period for filing a claim. As a result, the banks claims against the estate were allowed. The Tolley case demonstrates the challenges that can arise in the probate process and the importance of planning ahead to chose the best possible personal representative to handle such challenges. In fact, taking a little time now to plan for the future can save your loved ones from the added stresses that come from handling an unorganized estate. Furthermore, an estate planning attorney can guide you through the steps to ensure the estate you leave behind never has to go through the tedious process of probate. For more information on preparing your estate plan or to determine the plan that is right for you, please call 877-877-LAW2 (5292) or 219-924-2427 to consult with one of our top estate planning attorneys.

Posted: 6/12/2013

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Indiana's "Death Tax" Dies

The Indiana legislature recently voted to repeal the state’s Inheritance Tax, also known as the “Death Tax.” The inheritance tax had originally been slated to gradually terminate by the year 2022; however, lawmakers decided to forgo the long phase-out process and instead ended inheritance taxes in Indiana in one brisk stroke. In addition, lawmakers made the death tax repeal retroactive to the first of the year. Consequently, no inheritances after December 31, 2012 are subject to a state death tax. That said, it is still important to consider the proper value of any inherited assets as of the date of death in order to allow beneficiaries subject to federal capital gains taxes and other federal tax liabilities to do tax planning. Moreover, large estates worth over five million dollars still need to be concerned about federal estate taxes. However, for most Hoosiers, the repeal of the death tax is good news. Under the old inheritance tax, individuals were taxed at different rates depending upon their relationship to the decedent. Now with there being no state inheritance taxes individuals are free to plan their final wishes more according to what they want rather than what will save their estate the most state inheritance taxes. Family friends, neighbors, cousins, nieces and nephews, children, grandparents, and even individuals providing special care or support to a decedent can now inherit on equal terms. It is still very important to plan for the inevitable through estate planning. Probate can be a very expensive, stressful, and time consuming process that can easily be avoided by creating a trust or through other estate documents and planning. Documents such as a living will and power of attorney can prove invaluable later in life should you become seriously ill or incapacitated. As such, estate planning documents do more than avoid taxes. They help ensure that your wishes are provided for by the people you trust most, not just in death, but in life as well should you no longer be capable of doing so yourself. To get your estate plan in order, please call 877-877-LAW2 (5292) or 219-924-2427 to speak with one of our top estate planning attorneys.

Posted: 6/3/2013

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A Conditioned Settlement Must Be Reflected in the Release to Take Effect

A release is a special type of contract that generally gives one party an agreed upon amount of money in exchange for a promise not to file any lawsuits against another person or group of people. Releases help facilitate the orderly settlement of disputes and are highly favored by the courts. Releases serve as a means of settling a case by forever barring further claims or lawsuits. Because of this finality, individuals entering into a release must exercise caution to ensure they fully understand the terms of the release, which person or persons are specifically bound by the contract, and what matters the release covers. Courts look to the standard rules of contract law when interpreting a release, so if the language of the release is clear and unambiguous, the courts will look only to the document itself for answers and will not entertain any outside evidence as to what the parties may have actually intended. For example, in the recent case of Haub v. Eldridge, the Indiana Court of Appeals found that the language of a release agreement was clear and therefore, the plaintiff was bound by the terms of the release, which prevented her from bringing a negligence action against her former contractor. In this case, the plaintiff agreed to sign a release in exchange for $3,500 from her contractor’s insurance company for rupturing a gas line while doing work for the plaintiff. The plaintiff specifically stated in a separate letter to the insurance company that she would accept the settlement for the damages insured by the policy provided she could still pursue a claim against the contractor for other damages and for negligently performed work that was not covered under his insurance policy. Even though the Plaintiff stipulated her acceptance of the settlement on the condition that she was still able to pursue additional claims for negligence and breach of contract, she signed the release agreement without first making sure it reflected those stipulations. As a result, the Court dismissed her lawsuit against the contractor because the release clearly stated that she released and forever discharged the contractor from any and all claims, however arising, up to the date of the release. As the Haub case illustrates, failure to properly read and understand the terms of a release agreement could cost you the opportunity to pursue further claims for damages against an individual or group. Since the release in Haub was clear as to who was covered, what claims were covered, and what the agreed terms were, there was no reason for the court to consider her previously sent letter conditioning her agreement to sign the release on her ability to pursue additional claims against the contractor. The lesson Haub teaches is that it is critically important to not only carefully read all settlement contracts before signing them, but to consult an attorney to make sure all of your interests are properly reflected within the contract, because once signed, both you and the courts are bound to its terms. If you or a loved one were involved in an accident for which compensation may be owed, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our top personal injury attorneys before signing any release agreements.

Posted: 3/26/2013

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Court Settles Confusion Over Prejudgment Interest

In recognition of the lost value of money, Indiana, like most states, enacted a statute awarding prejudgment interest at a rate of at least 6% per year if certain conditions are met. The Tort Prejudgment Interest Statute was enacted to encourage settlement of civil actions. Under the statute, if a plaintiff makes a qualified settlement offer within one year of filing the claim in court and the defendant fails to make a qualified settlement offer, then the court is allowed to award interest on the amount awarded by the court as a result of defendant’s delay in resolving the matter. Although the statute has been in effect for quite some time, there has been some confusion over whether or not the statute replaces the old standard for determining prejudgment interest or whether the statute merely supplements the old standard. In the recent case of Kosarko v. Padula, 979 N.E.2d 144 (Ind. 2012), the Indiana Supreme Court finally put an end to the confusion by ruling that the Tort Prejudgment Interest Statute overrules and supplants the old common law standard governing availability of prejudgment interest. In that case, Kosarko was injured in a car accident and filed suit against the driver of the other vehicle. Kosarko offered to settle the case for $100,000, but the defendant never responded. Two years later, the case went before a jury, which ultimately found in favor of Kosarko and awarded her $210,000. Kosarko then asked that prejudgment interest be awarded in the amount of $79,627, but the trial court denied her request saying that she failed to meet the requirements under the old standard. The court of appeals reversed, agreeing with Kosarko that she should be awarded prejudgment interest based on the statute. Upon review, the Supreme Court agreed with the court of appeals and held that the statute creates conditions for an award of prejudgment interest and authorizes the court to award the interest as part of a judgment without making any reference to the old standard. Therefore, the statute was intended to replace the old common law standard for determining prejudgment interest. As both the case and the statute illustrate, settlement of civil lawsuits is highly encouraged. The courts recognize that it is unfair for a defendant to drag out the proceedings and delay when a plaintiff receives the damages he or she is entitled to. If you or a loved one have been injured by the negligent or wrongful act of another and believe you are entitled to damages, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our top personal injury attorneys.

Posted: 2/26/2013

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Indiana Guest Statute Provides Limited Protection from Liability

Everyone at some point ends up driving a close family member around town, whether it is simply to the grocery store or on a long family road trip. No one ever anticipates that something will go wrong. But what if it does? Indiana has a guest statute that provides protection to owners and operators of motor vehicles from liability to certain family members for injuries which occur while being driven. Under the guest statute, a vehicle owner or operator’s parents, spouses, children, stepchildren, and siblings as well as hitchhikers are prevented from recovering damages from the owner or operator for injuries sustained while being transported without payment in or upon the motor vehicle. The Indiana Supreme Court has recently reviewed the Indiana Guest Statute in the recent case of Clark, Jr. v. Clark, Sr., 971 N.E.2d 58 (Ind. 2012). In that case, Clark Jr. was a passenger in car driven by his father, Clark Sr. Upon reaching their destination, Clark Jr. exited the car and walked several feet in front of the car to help guide his father into the parking space. Clark Jr. raised his hand to signal his father to stop, but Clark Sr. accidentally hit the accelerator rather than the brake causing Clark Jr. to become pinned between his father’s car and the vehicle directly in front of it. Clark Jr. suffered severe leg injuries as a result of the accident and sued Clark Sr. for damages. Clark Sr. asserted that the Indiana Guest Statute applied to prevent Clark Jr. from recovering any damages. The Supreme Court, however, held that based on the unambiguous language of the guest statute, a designated family member or hitchhiker must be “in or upon” the vehicle at the time the injury is sustained before the statute will apply to bar any recovery. The fact that Clark Jr. was outside of the vehicle when he was injured prevented application of the guest statute. Consequently the Court determined that Clark Jr. was allowed to sue his father for damages. As this case illustrates, a car wreck is not the only way a person can be injured by a motor vehicle. Indiana recognizes that injuries sustained from cars can happen to any one and at any time and therefore provides some protection to owners and operators from lawsuits from immediate family members who happen to be in the car at the time of the accident. However, this protection is limited in scope and application. To determine if you or a loved one were injured as a result of a motor vehicle for which damages may be recovered, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our top personal injury attorneys.

Posted: 2/6/2013

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Doctors' Settlement Removes Issue of Liability in Medical Malpractice Case

Indiana medical malpractice claims are governed by the Medical Malpractice Act. The Act caps a patient’s recovery at $1,250,000 but limits the liability of a qualified health care provider to the first $250,000. Consequently, if a patient’s damages exceed $250,000 a patient may try to recover excess damages from the Patient Compensation Fund (PCF). However, this two-step system may not be as tedious as it sounds. The Indiana Supreme Court recently stated that for purposes of determining excess damages, a court shall consider the liability of the health care provider as “admitted and established” if a patient obtains a judgment against or settles with a health care provider. In Robertson v. B.O., the parents of B.O. sued the doctors who attended B.O.’s birth for failing to adequately monitor his condition during labor and failing to respond to signs of fecal distress which they claimed caused B.O.’s cerebral palsy consisting of spastic diplegia. Shortly before trial, the doctors settled the case for a sum which still allowed B.O. to seek excess damages from the PCF. The PCF wanted to introduce 5 expert witnesses to the court to testify that either B.O. did not have cerebral palsy or that the attending doctors did not cause the cerebral palsy. However, the Court did not allow the PCF to introduce such evidence because the Court determined that when the doctors settled with B.O., the issue as to their liability for his injury was admitted and established and thus could not be argued by the PCF. The only thing the PCF could argue was the issue of how much B.O. was entitled to recover as a result of the medical negligence. The Robertson Court held that the PCF may only introduce evidence relating to the determination of a patient’s damages and may not introduce evidence relating to issues of liability except in the very limited instance of increased risk of harm cases. An increased risk of harm case is when a patient’s illness or injury already results in a probability of dying greater than 50 percent prior to any medical negligence on the part of the health care provider. The Robertson case, however, was not an increased risk of harm case but rather a standard medical malpractice case – i.e. if the doctors had not acted negligently, the patient’s injury would not have occurred. Consequently, the PCF could not introduce its expert testimony. If you or a loved one were injured as a result of the negligent act of a medical provider, you may be entitled to damages. For a free consultation with one of our top attorneys please call 877-877-LAW2 (5292) or 219-924-2427.

Posted: 1/7/2013

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Estate Planning for the Digital Age

Common estate planning tools such as wills and trusts have long been used as a means of transferring your property upon your death. But what happens to your online accounts and other valuable digital property? The rise of social media, internet banking, and other online industries are raising new questions regarding what to do with all of those accounts after a person dies. Indiana is one of just five states to have adopted a “Digital Estate” law, which provides for the handling of electronically stored documents of a deceased individual. The law essentially states that the custodian of such documents is any person who stores the information or documents of another person electronically. The law also states that a custodian of electronically stored documents must provide those documents to the representative of an estate upon the representative’s request and receipt of a death certificate. One challenge arising out of the Digital Estate law is what happens if a representative is unaware that such documents exist. In that case, a decedent risks having his or her accounts and other potentially valuable digital property forgotten and lost in their entirety. Another difficulty in dealing with electronically stored property is that most websites and online accounts are password protected. The best way to address these challenges is to specifically mention your online accounts and other valuable digital property in a written instrument attached to your estate planning documents. Leaving specific directions to your personal representative on what your wishes are for your blogs, social media pages, online bill pay, or other revenue generating accounts along with web addresses, usernames, and passwords is the most advisable method of disposing digital property. As technology continues to advance and the internet becomes a more prevalent part of everyday life, the issues of passing on digital property will become even more important. So whether your property is physical or digital, large or small, an estate planning attorney can help you create the best plan for ensuring your property and your loved ones are taken care of after you are gone. For a free consultation with our top estate planning attorneys, call 877-877-LAW2 (5292) or 219-924-2427.

Posted: 12/13/2012

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Softball Player's Injuries Barred by Release Agreement

As any athlete knows, participation in a sport or activity poses risks to one’s health and safety. Because of this, many organizations require participants to sign contracts containing exculpatory agreements. These agreements essentially release the organization, or other entity, from liability for any injury or claim of damage. When it comes to sports, unless the contract lists specific instances of negligence for which the organization cannot be found liable, the contract is presumed to be limited to injuries incurred while participating in the course of the game. In the recent case Wabash County Young Men’s Christian Association, Inc. v. Taylor M. Thompson, the court held that the YMCA, as owners of a softball field, could not be held liable for the injuries Taylor Thompson sustained when she slid into second base because she signed a release form waiving liability for injuries incurred while playing softball. Taylor argued that her injuries were the result of the base being permanently fixed in position; thereby, making it overly rigid and a clear safety hazard. However, because the actual action of sliding into second base, regardless of its rigidity, is an activity inherent in the game of softball, the exculpatory agreement in the release form waived the YMCA of all liability. Had her injuries been the result of some hidden danger on the field, however, the court said that the release would not have applied and Taylor would have had a claim against the YMCA. This case illustrates that, while all sports come with inherent risks, an exculpatory agreement may not always apply to waive liability for injuries due to unforeseen hazards or the negligence of others. To determine whether you or loved one were injured by the negligence of another for which compensation may be owed, please call 877-877-LAW2 (5292) or 219-924-2427 for a free consultation with one of our top personal injury attorneys.

Posted: 11/27/2012

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Distracted Driving on the Rise

Despite increasingly strict laws and enforcement, distracted driving is on the rise in Indiana and across the nation. It seems that each incident becomes increasingly strange and unbelievable – and distracted driving is not limited to the much publicized use of cellphones and texting while driving. That was certainly the case recently in Evansville when a distracted driver crashed head-on into an ambulance, overturning the ambulance. The driver, Michael W. Burris Jr., drove his Ford pickup truck directly into the ambulance, which fortunately did not contain a patient at the time. Burris himself, as well as the two medical emergency workers who were inside the ambulance, were hospitalized for treatment. After treatment, Burris was taken to jail. Burris, a perpetrator of distracted driving, was not using a cellphone or texting at the time of the incident. Instead, he became distracted after seeing an acquaintance outside the local Dairy Mart. He then drifted out of his lane and struck the ambulance. This incident simply highlights how common it is for drivers to allow their attention to wander from the road, for any number of reasons. Public awareness campaigns combating the problem have thus become increasingly important. For example, NBC33, Fort Wayne CW, and other partners such as the Girl Scouts are working together to promote their “Eyes Forward” awareness program. The program involves advertisements focused on the dangers of texting while driving, pledges and wristbands to inspire and challenge young drivers, and visits to local schools to display wrecked vehicles and demonstrate the use of the jaws of life. These programs can only do so much, however. Until drivers begin to take their responsibility seriously, and focus on the road and the task at hand, private attorneys will be needed to obtain compensation and justice for their victims. For a free consultation with our top personal injury attorneys, call 877•877•LAW2 (5292) or 219•924•2427.

Posted: 11/7/2012

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Apparent Agency Alows Indiana Medical Malpractice Lawsuits Against Hospitals

When a patient is injured or killed by negligent doctors, nurses, and staff while admitted at the hospital, one of the many questions the victim and her family ask is “who is responsible?” If the victim must take legal action to obtain compensation for what occurred, it is natural to wonder whether that lawsuit should be against the doctors, the hospital, or both. At times, although it was the doctors who caused the injury or death, it makes the most sense (for practical, personal, or financial reasons) to sue the hospital itself. But what happens when it is revealed that the doctors who provided negligent care were not actually employed by the hospital, but were independent contractors? Fortunately, under Indiana law the hospital can still be held responsible for their actions through two complementary theories known as respondeat superior and apparent agency. Respondeat superior is a legal term which means that an employer, such as a hospital, can be held legally responsible for the negligent actions of its employees. Apparent agency, another legal term, means that even when someone is not actually employed, if the victim reasonably believes that he was employed, the apparent employer such as the hospital can still be held legally responsible. The Indiana Court of Appeals reaffirmed that both these doctrines apply to medical malpractice actions this month in Columbus Regional Hospital v. Clyde Amburgey, Individually and as Executor of the Estate of Moreen Amburgey, 03A01-1110-CT-450. The court went so far as to state that unless a hospital affirmatively discloses that the doctors and staff providing care are not employed by the hospital, the doctrines will generally apply and the hospital can be held legally responsible for their actions. In the Columbus Regional Hospital decision, the Indiana Court of Appeals also affirmed that the doctors themselves need not be sued in order for the hospital to be held responsible. Indeed, the court held that even if an affirmative defense, such as the statute of limitations, would bar an action against the doctors, this does not provide a defense in a suit against the hospital based on the doctors’ actions and the doctrines of respondeat superior and apparent agency. For a free consultation with our top personal injury attorneys, call 877•877•LAW2 (5292) or 219•924•2427.

Posted: 9/28/2012

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Medical Malpractice Strikes Even During Simple, Routine Procedures

Medical malpractice can often be complicated, involving procedures, failures, and problems that most people struggle to understand. At other times, however, it is quite simple – and thus perhaps even more egregious. Take, for example, the recent verdict involving an Indiana resident and a local medical center. In late 2000, the patient went to the surgery and medical center for pre-surgery lab work, including a blood draw. The center assigned a woman to draw blood from the patient’s left arm. The employee, before coming to the United States, was a physician in Egypt. It is not clear whether, in that capacity, she had any training or experience in drawing blood. Since coming to the United States, however, she had not obtained any medical license or training – either as a physician or a registered nurse. Despite these facts, the employee was tasked with drawing the patient’s blood. The patient gave blood on a regular basis and, according to the evidence presented in the case, had visible veins near the surface of his arms. The employee, however, dug the needle unnecessarily deep in the patient’s arm, striking his medial nerve and causing nerve damage. The patient was left with complex regional pain syndrome, a permanent condition. The patient will spend the rest of his life with pain and difficulty fully using his left arm. The jury awarded the patient $2.5 million to compensate him for his injuries. The parties then stipulated to a reduced judgment of $1.25 million. The reduction was because, in some situations, Indiana has a limit of recovery in medical malpractice cases of $1.25 million. This case demonstrates that even the simplest medical procedures, when performed negligently or by those who are not qualified, can lead to extensive damage and lifelong consequences. If you continue to suffer pain or damage after even a very simple procedure such as a blood draw, you may be the victim of medical malpractice – and you, like the patient in this case, may be entitled to compensation. Talk to a qualified personal injury attorney about your unique circumstances. An experienced medical malpractice attorney can help you to determine whether medical malpractice was to blame for your injuries, and whether you should seek compensation through the legal system. For a free consultation with our top personal injury attorneys, call 877•877•LAW2 (5292) or 219•924•2427.

Posted: 4/12/2012

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Sugarland Litigation Typical of Personal Injury Suits

No one will soon forget the Indiana State Fair collapse of 2011. Now, as the litigation over the injuries suffered moves forward, the key question has become: who is responsible?

The litigation arises from the collapse, during high winds, of a stage at the Fair just before country superstars Sugarland were set to perform. Seven people were killed, and dozens more injured.

Recently, a group of victims filed suit against Sugarland, alleging that their negligence in failing to cancel the show led to the victims’ injuries. The families of four of the deceased, as well as numerous injured, are plaintiffs in the suit. The suit also names the concert’s promoters, as well as the builders of the stage itself. The victims allege that the various defendants failed to assess and keep track of the weather, and failed to evacuate the area when it became clear that conditions were dangerous.

Although much more sensational and highly-publicized than the average civil lawsuit, the Sugarland case provides a classic example of the aftermath of an injury: the victims wait while the various responsible parties argue over whom should bear true responsibility.

Sugarland has now responded to the suit. Sugarland asserts that it was not involved in the building of the stage (done by Mid-America Sound Corp.) – and emphasized that the stage was constructed for multiple events at the fair. Sugarland also asserts that it was not the band’s responsibility to cancel the concert due to bad weather, but the responsibility of Fair officials.

In depositions, however, employees of the Indiana State Fair have repeatedly stated that Sugarland was asked to cancel the concert, but declined.

Unfortunately, the Sugarland litigation is typical of cases where multiple parties share some responsibility for a victim’s injuries. Whether fault is shared by a superstar, state fair officials, and construction workers, or by a doctor, a nurse, and a hospital, the strategy is often the same: defendants point fingers at one another in the hope of avoiding liability themselves.

Fortunately, experienced personal injury lawyers are accumstomed to this strategy, and well-equipped to combat it. An experienced attorney can overcome this defense strategy to help victims obtain justice, and the recovery they deserve.

For a free consultation with our top personal injury attorneys, call 877•877•LAW2 (5292) or 219•924•2427.

Posted: 3/2/2012

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Indiana Supreme Court Reviews Underinsured Motorist Coverage

The recovery of those injured by underinsured motorists in Indiana may be about to change. This is because the Indiana Supreme Court will soon rule on the appeal in Lakes v. Grange Mut. Cas. Co., 944 N.E.2d 509, 519 (Ind. Ct. App. 2011).

The case centers, naturally, on an automobile accident. Plaintiff Hannah Lakes and her family were injured, and sought to recover from the negligent driver who injured them. They also filed suit against Grange Mutual Casualty Company, the insurer of Hannah Lakes’ parents, seeking underinsured motorist coverage. After the negligent driver's insurance policy paid out its policy limits, all those injured except Hannah dismissed their legal claims. The only remaining claims in the lawsuit were thus Hannah's claims against Grange Mutual for underinsured motorist coverage.

The trial court held that there was no underinsured motorist coverage available. The court noted that multiple people were injured in the accident, and thus found that when the available per-person limits under the negligent driver's policy for each accident were combined, they reached the appropriate per-accident limit. The trial court held that it was irrelevant that all but one claimant had dismissed his claims, as each was still a victim and, in some sense, a potential claimant.

The Court of Appeals reversed, however, and held that there was underinsured coverage of $50,000 available under Indiana Code Section 27-7-5-2(a). The Court of Appeals found that because there was only one remaining claimant, the per-person limits of absent victims could not be aggregated to reach the per-accident limits. The Court of Appeals further held that the legislative history of Indiana’s uninsured and underinsured motorist law “manifests an intent by our Legislature to give insureds the opportunity for full compensation for injuries inflicted by financially irresponsible motorists.”

In deciding Lakes, the Court of Appeals noted that it had created a conflict with another panel opinion, Progressive Halcyon Ins. Co. v. Petty, 883 N.E.2d 854 (Ind. Ct. App. 2008). The Progressive court held that under Indiana law, the per-person mandatory limit for underinsured motorist coverage was $25,000, not $50,000. The court's reasoning was based on three factors: 1) a desire to avoid internal inconsistencies in Indiana's underinsured motorist law; 2) a desire to prevent insureds from colluding together to gain greater recovery; and 3) a belief that, despite its status as a full-recovery statute, Indiana's underinsured motorist law was not designed to provide full recovery to all victims.

Perhaps due to this conflict, the Indiana Supreme Court took the case and heard oral arguments in October, but has not yet ruled. Our Indiana personal injury attorneys eagerly await the forthcoming decision. The Indiana Supreme Court’s ruling will provide clarity in the area of underinsured motorist coverage. We also hope that the ruling will secure full recovery for the victims of negligent, but underinsured, drivers.

If you or a loved one have been injured by an underinsured driver, call 877•877•LAW2 (5292) or 219•924•2427 for a free consultation with our top personal injury attorneys.

Posted: 2/3/2012

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Indiana Reacts to New Federal Distracted Driving Recommendations

The National Transportation Safety Board, part of the federal government, recently revised its distracted driving recommendations, calling for a federal, nationwide ban on cell phones and text messaging while driving. The ban would apply to all drivers and all vehicles, with an exception for emergencies only.

This change comes in the face of increased use of cell phones in Indiana and across the nation. The NTSB estimates that during the day around 13.5 million American drivers are using hand-held phones at all times. Indeed, 3,092 deaths in the last year were definitively connected to distracted driving – and experts believe that the actual annual deaths are far higher.

Indiana law currently bans texting while driving, including typing, sending, and reading text messages. The penalties, however, are light compared to the risks: while texting while driving results in fatalities, the maximum fine is $500.

Some Indiana State lawmakers have already reacted to the NTSB’s new recommendation. Notably, State Senator Travis Holdman, the sponsor of Indiana’s current distracted driving law, told the press that the new NTSB recommendation was unsurprising. He believes, however, that although the recommendation is sound, state lawmakers – not federal – should enact such laws.

Indeed, the Indiana State Senate has already tried to toughen Indiana’s laws. Last year, it considered legislation banning all use of handheld devices while driving. The law failed to pass the General Assembly.

Our attorneys are experienced at representing the victims of distracted driving, and their families. We know all too well the devastation caused by distracted driving, and we applaud the new NTSB recommendations. We encourage our Indiana lawmakers to continue their efforts to bring Indiana’s distracted driving laws in line with the NTSB’s proposals, and to make Indiana safer for all.

If you or a loved one were injured by a distracted driver, call 877•877•LAW2 (5292) or 219•924•2427 for a free consultation with our top personal injury attorneys.

Posted: 1/3/2012

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