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New Law Amends the Insurance Code to ‘Put Kids First’

New Law Amends the Insurance Code to ‘Put Kids First’

            NewHouse Bill 1406 (“HEA 1406”) provides a boost to child support advocates through amendments to the insurance code and expanded powers of the Commissioner of the Indiana Department of Insurance.  HEA 1406 amends I.C. 27-1-15.6-29 and I.C. 27-10-3-20, effective July 1, 2018, to require the Commissioner of Insurance to place the license of an insurance producer, bail agent or recovery agent on “probationary status” when an Order from the Child Support Bureau is received which shows outstanding child support.   The person’s license will be suspended by the Commissioner if notice is not received by the Child Support Bureau under I.C. 31-25-4-32(m) or I.C. 31-25-4-34(g) within twenty (20) days after the date of the notice.  The Commissioner may not reinstate any license placed on probationary status or suspended until the Commissioner receives notice from the Child Support Bureau that the person has addressed the delinquency.  The amended Indiana code 27-1-15.6-29 reads as follows:

  1. IC 31-25-4-32(i) or IC 31-25-4-34(d), the commissioner shall place on probationary status any license issued under this article and held by the person who is the subject of the order. The commissioner shall send the person a notice that does the following:


     (1) States that the person's license has been placed on probationary status.

     (2) States that the person's license will be suspended if the commissioner has not received notice from the bureau under IC 31-25-4-32(m) or IC 31-25-4-34(g) within twenty (20) days after the date of the notice.

     (3) Describes the amount of child support that the person is in arrears.

     (4) Explains the procedures to:


                 (A) pay the person's child support arrearage in full;and

                 (B) establish a payment plan with the bureau to pay the arrearage, which must include an income withholding order under IC 31-16-15-2 or IC 31-16-15-2.5.


(b) If the commissioner has not received notice from the bureau under IC 31-25-4-32(m) or IC 31-25-4-34(g) within twenty (20) days after the date of the notice in subsection (a), the commissioner shall suspend the license issued to the person under this article.


(c) The commissioner may not reinstate any license placed on probationary status or suspended under this section until the commissioner receives a notice from the bureau under IC 31-25-4-32(m) or IC 31-25-4-34(g) that the person has addressed the delinquency.


            In all, this new law expands the power of the Commissioner of the Indiana Department of Insurance and encourages the payment of child support by insurance producers. 



Posted: 9/13/2018

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Indiana Supreme Court Rules that a Shooting Inside a Neighborhood Sports Bar is Not Foreseeable

Imagine attending your neighborhood sports bar on a Friday evening with a couple of friends. All is well until the man sitting nearby gets into an altercation with one of your friends and opens fire. Matters turn worse when you realize you have been shot. Thankfully, you survive the shooting. Most individuals in this situation would want to hold not only the shooter, but the sports bar responsible for their injuries. However, victims of shootings in sports bars may have limited recourses against sports bars according to the Indiana Supreme Court’s recent ruling in Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (2016).

In Goodwin, the plaintiffs were shot by a bar patron who thought one of the plaintiffs made a derogatory remark about the patron’s wife. In turn, the plaintiffs filed suit against the sports bar alleging that the sports bar was negligent in failing to provide security for its patrons; failing to search the patron for weapons and failing to warn the plaintiffs that the patron was armed and dangerous.

“To prevail on a claim of negligence (1) the plaintiff must show a duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care and (3) compensable injury proximately caused by defendant’s breach of duty.” In analyzing whether a defendant owed a duty to the plaintiff, Indiana law states that the court must determine whether the act at issue was foreseeable. Foreseeability in the duty element requires a more general analysis of the broad type of plaintiff and harm involved, without looking to the facts of the actual occurrence. Put another way, the court will determine whether there is a likelihood of harm that will cause a reasonable person to employ safeguards to prevent the harm.

The Indiana Supreme Court found that a sports bar owner does not usually anticipate that a patron might suddenly shoot another patron. The Court indicated that all crimes anywhere are necessarily foreseeable. However, the Court stated that to impose a blanket duty on bar owners to protect their patrons from being shot would make bar owners insurers of their patrons which is against public policy. Such a blanket duty would impose liability on the bar owners even if the proprietors were not negligent. In turn, the Court held that a shooting inside a neighborhood bar is not foreseeable as a matter of law.

Posted: 5/19/2017

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The Top 3 Factors Used by Courts to Determine Police Misconduct

     There has been much discussion lately regarding police conduct and what standards apply to officers who use deadly force.  Usually, the media only covers the issue of whether a police officer involved in a shooting will be charged criminally.  However, many police shooting cases result in civil lawsuits against the police officer or the city that employs the officer.  Unlike a criminal case, civil cases seek monetary recovery for an alleged wrong.  Medical bills, pain and suffering and other damages are recoverable.  The decision to file a civil lawsuit will often times come after the police officer or city has been cleared of criminal wrongdoing.  This partly arises because of the more favorable burden of proof that exists in the civil arena that makes it easier to prove alleged officer misconduct or wrongdoing.  Even though the burden of proof in a civil suit might be more favorable for the victim of a police shooting, there still are factors a civil court or jury uses to determine the appropriateness of a police officer’s decision to use deadly force.      

     In the case Graham v. Connor, 490 U.S. 386, (1989), the Supreme Court held that all claims that law enforcement officers used excessive force in the course of an arrest are governed by an "objective reasonableness" standard under the Fourth Amendment. The pertinent inquiry is whether the officer’s actions were objectively reasonable in light of the facts and circumstances presented to the officer, without regard to the officer’s underlying intent or motivation.    Application of the objective reasonableness test requires the Court to consider the facts and circumstances of the particular case at hand, including:  

(1)    the severity of the crime at issue;

(2)    whether the suspect posed an immediate threat to the safety of the officers or others;  and

(3)    whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
     The Graham Court emphasized that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight, and that the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.

     In sum, the Graham factors require that the totality of the circumstances involving the officer’s use of force be reviewed, at least in the civil arena, to determine whether a police officer used excessive force.

Posted: 7/7/2016

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When Animals Attack: Indiana Law & Wild Animal Liability

     Over the last few weeks, the media coverage of wild animal attacks have been quite 
extensive.  Harambe, a 17-year-old male western low land gorilla, was killed by the Cincinnati Zoo in an effort to save the life of a four-year old child who ventured into the gorilla’s cage.  A few weeks later, Walt Disney Co. was placed under severe scrutiny following an alligator attack at its Orlando resort that left a two-year old child dead.  The families involved in these unfortunate situations could sue the zoo and Walt Disney Co. for compensatory and emotional distress damages that arose out of the unexpected wild animal encounter.       

     In Indiana, the Cincinnati Zoo and Walt Disney Co. would be held strictly liable for the 
harm caused by wild animals on their property.  In Indiana, strict liability is the law in wild animal cases.  In the case Irvine v. Rare Feline Breeding Center, Inc., an owner of a 50 acre farm converted the location to an exotic animal display.  The owner maintained zebras, llamas, camels, kangaroos and Siberian tigers.  One night, a visitor of the farm decided to see the tigers.
     The visitor 
approached the wire caging, placed a couple fingers inside the enclosure, and attempted to pet a male tiger. As he was scratching the male tiger, a female tiger made some commotion, which caused the visitor to look away from the male tiger. At that moment, the male tiger pulled the visitor’s arm through the two inch by six inch opening of the wire fence.  The visitor underwent six surgeries during a thirteen day hospital stay.   The visitor filed a complaint against the farm claiming negligence, strict liability, nuisance, and punitive damages.  As a matter of first impression, the Indiana Court of Appeals held that the possessor of a wild animal is generally subject to strict liability for harm done by the animal; however, whether the injured party incurred the risk of his or her injuries, as well as other defenses, may apply.  The Court found that strict liability is appropriately placed:

Upon those who, even with proper care, expose the community to the risk of avery dangerous thing.... The kind of dangerous animal that will subject the keeper to strict liability... must pose some kind of an abnormal risk to the particular community where the animal is kept; hence, the keeper is engaged in an activity that subjects those in the vicinity, including those who come on to his property, to an abnormal risk ... The possessor of a wild animal is strictly liable for physical harm done to the person of another ... if that harm results from a dangerous propensity that is characteristic of wild animals of that class.Thus, strict liability has been imposed on keepers of lions and tigers, bears, elephants, wolves, monkeys, and other similar animals. No member of such aspecies, however domesticated, can ever be regarded as safe, and liability does not rest upon any experience with the particular animal.

     The Court also noted that the visitor’s contributory negligence in subjecting himself to the dangers of a wild animal is a defense to a strict liability claim.  The Court also found that the visitor’s status as an invitee, licensee or trespasser was important to determine the liability of the farm.  The Court discussed evidence that the visitor did not have permission to enter the area where the tiger was located.  The Court also found that evidence demonstrating whether the visitor was intoxicated was important in analyzing the farm owner’s defense to the strict liability claim.

Posted: 6/24/2016

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3 Reasons Why Small Claims Court Might Be Your Best Option

     Most people think that the legal system is for the rich. This belief has led many people to underutilize a very important legal tool – the Small Claims Court. When people think of Small Claims Court, images of a snarling Judge Judy often come to mind. To the contrary, Small Claims Courts are much different than what you see on TV. Here are 3 main reasons why Small Claims Court might be a useful option to solving your legal problem.
     In Indiana, filing a case in Small Claims Court is proper when your damages do not exceed $6,000. Small Claims Courts are intended to dispose of claims when the damages are not great. This makes small claims courts ideal for resolving landlord/tenant disputes or low damage claims for defective goods or services.

     In Indiana, a small claim action can be brought with relative ease without the use of a lawyer. A person may appear pro se (without a lawyer) in any small claims proceeding. A sole proprietor or partnership may appear by a designated full-time employee of the business in the presentation or defense of claims arising out of the business, if the claim does not exceed one thousand five hundred dollars ($1,500.00).  Claims exceeding one thousand five hundred dollars ($1,500.00) must either be defended or presented by counsel or pro se by the sole proprietor or a partner. All corporate entities, Limited Liability Companies (LLC's), and Limited Liability Partnerships (LLP's) may appear by a designated full-time employee of the corporate entity in the presentation or defense of claims arising out of the business if the claim does not exceed one thousand five hundred dollars ($1,500.00). However, claims exceeding one thousand five hundred dollars ($1,500.00) must be defended or presented by counsel. A party need only file an unverified notice of claim that contains a brief statement of the nature and amount of the claim. In most cases, the clerk’s office will assist you in filling out the notice of claim. By not hiring a lawyer, you avoid legal fees.    

     Due to the number of jury trials requested by litigants, the court dockets in most states are backlogged. Most cases twist and turn their way through the court system for years. This delay can be costly and mentally taxing. Indiana Small Claims Court do not have jury trials unless you request one. Also, if the defendant makes a jury trial request within ten (10) days after receiving your notice of claim, a jury trial may be granted. Most of the time, the parties in Small Claims Court choose to waive their rights to jury trials, which leads to speedy resolution of claims. Most Small Claims cases are resolved within six (6) months.

     In short, you do not have to be rich to utilize the legal system to solve your problems. Small Claims Court is a perfect tool to resolve minor problems in a cost efficient manner.  

Posted: 3/27/2015

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5 Key Steps That Will Help When You Have Been Sued

     You receive a summons and complaint. Oh no, you’ve been sued! You begin to panic. What do you do now? Here are 5 key steps that should help you in such a situation.

     1. DO NOT IGNORE the summons and complaint! Once you have been served with a summons and complaint, you have twenty (20) days to file a response to the complaint with the court. In most instances, an extension can be requested, but you should check the rules of the jurisdiction in which the matter is filed to determine how to request an extension. Any request for an extension should be requested in writing and filed before the initial twenty (20) day response period has expired. If a response is not filed within the allotted time period, you may be defaulted and have a judgment entered against you.

     2. If you have insurance that may cover the dispute, let your insurance company know immediately. Your insurance policy should have information on how to contact the company to alert the carrier of any lawsuits or claims filed against you. If you are not sure, your insurance agent should be able to help you report the matter to your insurance carrier. If you do not let the carrier know as soon as possible, you may risk being denied coverage for the dispute.

     3. Consider retaining an attorney. If the dispute is covered by insurance, your insurance carrier may provide an attorney for you, according to the terms of your insurance policy. The attorney can file a response or request an extension to file a response on your behalf. Remember time is of the essence, so whether you retain a lawyer on your own or your insurance company provides one for you, contact the lawyer immediately.

     4. Gather any documentation related to the dispute in the complaint. Any documentation you have may be helpful in defending the lawsuit filed against you. Provide this documentation to your insurance company or lawyer.

     5. If there are any court dates in the summons and complaint, make your insurance company or attorney aware of those dates. If you do not retain counsel or report the matter to your insurance company, make sure you attend the court dates to avoid default or risk having a bench warrant issued for your failure to appear.

     Being sued may seem scary, but following these 5 key steps can alleviate some of the fears associated with being involved in a lawsuit.

Posted: 2/4/2015

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