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Client Outcomes

Each member of our firm – attorneys and staff alike – stayed busy diligently working to represent our clients’ interests in various insurance defense, healthcare law, business transactions, estate planning, and other matters and litigation. The following are some recent highlights.
The Indiana Court of Appeals unanimously affirmed the summary judgment secured by Eric Eberwine for our client related to a golf cart accident at the Chariot Run Golf Course in Harrison, County, Indiana.  Wooten v. Caesars Riverboat Casino, LLC et. al., 63 N.E.3d 1069 (Ind.Ct.App. 2016).  The Plaintiff, David Wooten, and our client, Bernard Chamernik, were invited to participate in a VIP golf scramble sponsored by Caesars at Chariot Run Golf Course.  The invitees were randomly assigned to teams of four, and they were provided with complimentary golf carts.  Shortly after beginning the scramble, Wooten’s cart stopped on the path near a green on the downward slope of a hill.  Wooten was sitting in the cart when it was rear-ended at a low rate of speed by the cart operated by his teammate, Chamernik.  Chamernik, who had never played the course before, was looking for his ball and did not realize Wooten’s cart had stopped on the path.  There was no damage to either golf cart. After EMTs checked him, Wooten continued to play, and his team won first place in the tournament.  Wooten subsequently went to the hospital for injuries allegedly sustained in the golf cart collision, and he filed a Complaint sounding in negligence against Caesars and Chamernik.  Wooten settled with Caesars, and Chamernik filed for summary judgment on the grounds that the conduct of driving a golf cart during a golf scramble fell within the ordinary range of behavior of participants in golf, as interpreted by the Indiana Supreme Court in Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011).  Wooten contended that “crashing a golf cart into another golf cart is not within the range of ordinary behavior,” and he argued that “golf carts are not necessary for playing the game of golf.”  The trial court granted summary judgment to Chamernik.  The Court of Appeals affirmed that “the golf cart has become part and parcel of the modern golf game, with an unremitting presence on the fairway.”  The inclusion of golf carts in the sport is “commonly understood” and while an inexact operation of a cart may somewhat “increase the normal risks attendant to the activities of ordinary life outside the sports arena, it does not render unreasonable the ordinary conduct” within the golf game, on the absence of intent or recklessness.  The Court of Appeals affirmed the trial court’s grant of summary judgment in our client’s favor.
In September 2017, Scott Tyler defended a firm client at trial in a case arising from a Greenwood, Indiana, intersection motor vehicle collision.  Rich v. Gosnell was tried in the Johnson County Superior Court and involved a dispute over which motorist had a green traffic signal.  Following a two-day trial, the jury took just ten minutes to conclude that our client was not at fault for the collision and returned a defense verdict.
In June 2018, Scott Tyler tried Anderson v. Wagoner, involving an Evansville, Indiana rear-end motor vehicle collision.  The plaintiff, a decorated combat veteran of wars in Afghanistan and Iraq, claimed personal injuries, medical expenses, and an over $88,000 income loss due to a delayed deployment to Afghanistan as a defense contractor.  The plaintiff demanded policy limits of $100,000.  The case was tried in the Vanderburgh Superior Court and the jury returned a verdict of $45,000.
On a hot Saturday in July, Scott Waters accompanied Floyd County Circuit Court Judge, J. Terrence Cody, Chair of the Probate Committee of the Indiana Judicial Branch, to Indianapolis to attend a bi-annual meeting of the Probate Review Committee (PRC) of the Indiana State Bar Association’s Probate, Trust & Real Property Section. The PRC is an adjunct committee of volunteers to advise the Section in its support of existing and proposed legislation affecting estate planning, trusts, estates, probate or probate avoidance, succession planning and wealth transfers between families and generations. Scott attended the most recent meeting of the PRC in French Lick at the Section’s annual meeting held in conjunction with the ISBA annual meeting.
On August 1, 2018, Scott Tyler tried Webber v. Kenneth Kuebler Heating & Air Conditioning, Inc. in the Posey County Superior Court.  Plaintiff alleged that our client incorrectly installed an air handling unit which allowed condensation to form and cause extensive damage to the flooring in her home. The outcome turned on the testimony of the experts.  Plaintiff called as a “skilled lay witness” a contractor who removed and re-installed the air handler in plaintiff’s home.  He testified that the condensation was caused by a failure to insulate the air handler in the transition space between the utility room and crawl space.  On cross-examination, however, the contractor importantly admitted that he did not follow his own investigative steps to rule out all possible causes of the moisture damage and would defer to the opinion of a qualified forensic engineer.  We called a mechanical engineer who conducted a forensic investigation and ruled out the air handler as a cause of the water damage.  After hearing all the evidence, the Court allowed the parties to submit proposed findings of fact and conclusions of law.  Natalie Short and Scott Tyler drafted the submission on behalf of our client and, on December 6, 2018, the Court found in favor of our client on all counts.
In August, Scott Waters was appointed to the Board of Directors of the Community Foundation of Southern Indiana, Inc.(CFSI), for a three-year term. Primarily serving the community needs of Floyd and Clark counties, CFSI provides donors with a wide array of choices to fulfill their philanthropic wishes.  As an Estate Planning professional, Scott has been asked by Linda Speed, JD, the President of CFSI, to assist in creating a Professional Advisory Council of professional advisors to donors and prospective donors. CSFI board members are all themselves CSFI donors, evidencing their passion for volunteerism.
In her short time at the firm, Natalie Short has already achieved two great successes.  Natalie tried and attained judgment for the defense in two small claims cases, Imel v. Schroder and Jester v. HollowaySchroder involved a straightforward motor vehicle accident with clear liability defenses, and the Court was persuaded that our client was not liable for the accident.  Holloway was more unusual—involving an accident between a motor vehicle and a stray cow.  At issue was the legal question, “Since cows are judgment proof, who is legally liable for damage caused by escaped livestock?”  As it turns out, Indiana law is clear on this.  Natalie argued that, because the farmer took reasonable care in confining the livestock, he could not be liable for the herd’s defiance of its reasonable restraints.  The Court agreed and issued judgment for our client.
Eric Eberwine secured summary judgment in a Kentucky action, Ramos v. Time Warner and A.M. Contracting Company.  Our client, A.M. Contracting (“A.M.”), was working as an independent contractor for Time Warner while performing repairs to a fiber optic cable.  The repairs required the excavation of a section of sidewalk.  The excavation was marked with a safety cone.  Plaintiff Ramos, who was seventeen years old, failed to see the excavation or the orange cone and stepped into the hole.  Pursuant to KRS 413.170, Ramos had a year from her eighteenth birthday to commence an action related to the incident.  Prior to filing suit, Ramos’ counsel contacted A.M.’s insurer and presented a settlement demand for injuries allegedly sustained in the incident.  She ultimately filed a timely complaint against Time Warner, but not A.M. Contracting.  Shortly after the complaint was filed, A.M.’s insurer denied liability for the incident.  Seven months later, Ramos amended her complaint to add A.M. as a defendant.   A.M. moved for summary judgment on the grounds that the amended complaint naming A.M. was clearly outside the one-year statute of limitation period imposed by KRS 413.140 and KRS 413.170.  A.M. also argued that the amended complaint did not relate back pursuant to the strict requirements of CR 15.03.  Finding no evidence of constructive notice through Time Warner or any mistake in A.M.’s identity, the Jefferson Circuit Court granted summary judgment in favor of A.M. Contracting.    
Tricia Hofmann, with the invaluable assistance of brief-writer Natalie Short, prevailed on a motion for summary judgment in UFCC v. Service General Corporation.  The Daviess Circuit Court agreed with Tricia and Natalie's argument that the business auto insurance policy at issue did not provide coverage for a single-vehicle accident because the vehicle involved in the accident did not qualify as an “insured auto” under the policy.  UFCC had no duty to defend or indemnify Service General for the claims brought against it.
In October 2018, Scott Tyler tried Brockett v. Nickell, which arose from a Madison, Indiana rear-end motor vehicle collision. The plaintiff claimed a permanent soft-tissue neck injury and had incurred $42,000 in medical expenses.  No pre-accident history of neck treatment or complaints were discovered prior to trial. Plaintiff’s treating chiropractor and primary care physician testified that plaintiff sustained neck bulges due to the accident, which were identified on an MRI scan.  Orthopedist John Chambers testified that the disc bulges were degenerative and not caused by the collision.  Plaintiff demanded $90,000 prior to trial.  The case was tried over two days in the Jefferson Circuit Court.  After twenty minutes of deliberation, the jury awarded plaintiff $2,364.
Scott Tyler's peers nominated him for membership in the Federation of Defense & Corporate Counsel (FDCC), an organization composed of recognized leaders in the legal community who have achieved professional distinction.
Rodney Scott and Tricia Hofmann prevailed on an appeal before the Indiana Supreme Court in Sedam v. 2JR Pizza Enterprises, LLC, et al.  While delivering a pizza, Pizza Hut’s employee was involved in an accident with a scooter operated by Hamblin.  Hamblin subsequently was struck by another motorist and ultimately passed away.  Pizza Hut and the employee both agreed that the employee was in the course and scope of her employment at the time of the accident, and that Pizza Hut would be vicariously liable for any liability assessed to its employee.  Hamblin’s estate sued both drivers for negligence and Pizza Hut for vicarious liability.  It later amended its Complaint to include negligent hiring, training and/or supervision claims against Pizza Hut.  We filed a motion for partial summary judgment as to the amended allegations on the basis that, by admitting that the employee was within the course and scope of her employment and thus establishing vicarious liability, Pizza Hut could not also be liable for these additional, independent torts. 
The trial court agreed and granted our motion for partial summary judgment, dismissing the negligent hiring, training and supervision claims.  The Court of Appeals reversed, holding that the estate could pursue both theories because the claims were separate torts under Indiana's Comparative Fault Act and, therefore, Pizza Hut would essentially be on the verdict form for apportionment of fault twice.
The Supreme Court reversed the Court of Appeals, reinstating the trial court’s ruling.  It agreed with our reliance on Indiana state and federal opinions which have held that – absent special circumstances – an employer’s admission of course and scope precludes negligent hiring, training and supervision claims as a matter of law.  As no special circumstances were being claimed, introduction of evidence about hiring, training and supervision would only serve to prejudice Pizza Hut.  The Supreme Court reinstated the trial court's determination that the negligent hiring, training and supervision claims were precluded under Indiana law.