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Spring 2010 Newsletter

Firm Happenings
The firm is pleased to announce the return of Eric Eberwine as a litigation associate. Eric was with the firm from 2003 to 2005, but left for other pursuits. He has returned effective the first of this year, and we are thrilled to have him back. Eric is licensed in both Indiana and Kentucky.
At the same time, we must say farewell to litigation associate George Budd. George and his wife Tammy have, at least for a time, decided to scale back and concentrate on the important aspects of life in their first year of marriage.  He traded his office here for their home on December 31, 2009.  George is not leaving for another firm or other work and certainly not because we asked him to do so.  We will surely miss him and all his contributions.  We wish George and Tammy well.
We also recently welcomed two new additions to our staff. Mary Burch joined the firm in October as a legal assistant. She will be working with Ken Doane, Tricia Hofmann and Sandra HeekeJennifer Frasier has just come on board as a new litigation paralegal, starting in December. We are excited to have both of them with us.
Les Merkley, who practices family law in our firm, is the author of Divorce Law Indiana -- an interactive blog devoted exclusively to divorce and family law.  The site has news, analysis and information on family law issues such as divorce, custody and child support.  It is one of three such blogs in Indiana and the only one south of Indianapolis.  If you want to visit the site, please click here.   Our firm website also features a podcast devoted exclusively to divorce and family law entitled, “Divorce Matters,” which Les hosts. Look for more changes and additions to the family law pages of the website very soon.
Rodney and Lisa Scott are pleased to announce that their daughter Meghan is carrying their first grandchild.  July can’t get here fast enough.  Congratulations to Meghan and Matt. 
Jennifer Brown celebrated her ten-year anniversary with the firm in July. We are lucky to have her. Congratulations on the milestone, Jen!  Teresa Summers is next in line with a big milestone anniversary, as she will have been here for five years in March of 2010.
Floyd County’s Teen Court program has now been operating for nearly a year and a half, and now regularly conducts trials of minors charged with non-violent misdemeanors and status offenses. Scott Tyler and Tricia Hofmann have been working with Teen Court since its inception, presiding over trials and training the student participants. Les Merkley began actively participating in the program in May.
Les Merkley also recently hosted a radio show on Kool 1570am called "Divorce Matters" where he discussed changes in Indiana child support and the impact of social network websites in a divorce.
Rodney and Lisa Scott are happy to announce that their daughter Emma was awarded the Singletary Scholarship from the University of Kentucky.  “Go Big Blue” has suddenly become so much easier for Rodney to say. 
The Executive Board of the Sherman Minton Inns of Court selected Scott Tyler to serve as President for the 2009-2010 year.  The Sherman Minton Inns of Court is a chapter of the American Inns of Court, an organization designed to improve the skills, professionalism and ethics of the bench and bar.  American Inns of Court help lawyers to become more effective advocates and counselors with a keener ethical awareness.  Members learn side-by-side with the most experienced judges and attorneys in their community.  Scott is honored to have been chosen to lead the organization this year.
Jennifer Brown is proud to announce that her daughter, Bayley, was accepted into the National Junior Honor Society at Clarksville Middle School. 
Tricia Hofmann’s daughter, Casey, was invited as a kindergartener to join the chess team at Hayfield Montessori School, and will begin competing against other schools shortly. She can already checkmate her mother in embarrassingly few moves. Her younger sister, Madison, attends full-day preschool at Hayfield, and will likely be able to beat her mother in another year, if that.
Rodney and Lisa Scott proudly announce that their daughter Katie played the lead female actress in the Walden Theatre production of “It Came from Indiana.”  Particularly appropriate title given the miles logged between the Theatre and Sellersburg.
Scott Waters and his wife, Anne, are pleased to report that their daughter, Megan, held a State Department internship with Ambassador Susan Rice at the U.S. Mission to the United Nation during the summer of 2009.  Megan is also married and working on her Masters degree at New York University.
Les Merkley recently joined the Board of Directors for the Clark County Family Health Center.  The center provides health care to the low-income underinsured and uninsured residents of southern Indiana.
Chad Smith and Jennifer Brown won the first ever WTSHD cornhole tournament this summer. We are confident that competition will be fierce for bragging rights in the future.
Rodney and Lisa Scott are also proud to announce that their daughter Mackenna was recently invited by Northside Christian Church to attend a leadership retreat for Junior High students. 
Scott and Anne Waters’ daughters, Mallery, Michelle and Molly, are busy with various work and educational endeavors. Mallery is employed at a natural health practitioner’s office and enjoys living in downtown New Albany.  Michelle attends Moody Bible Institute in downtown Chicago.  Molly is a sophomore at New Albany High School.
Les Merkley was interviewed by – an online parenting website – about the concept of “bird nesting.”  It refers to a child custody arrangement where the divorced parents, rather than the children, move in and out of the marital residence.
The firm continues to be an active participant in the “Talk to a Lawyer” program, sponsored by Legal Volunteers, an Indiana non-profit organization that organizes pro bono legal services.   All five partners – Scott Waters, Scott Tyler, Rodney Scott, Tricia Hofmann and Ken Doane – actively participate in this valuable program. For those unfamiliar with it, Talk to a Lawyer is a monthly phone bank staffed by attorneys who make referrals and answer simple legal questions on a pro bono basis. The firm has been active with this program since its inception. 
Last, but not least, WTSHD is on facebook! If you are a regular on that site, please become our fan. We’d love to have you!
Client Outcomes
Rodney Scott tried Delaney v. Heady and Weiss in Floyd County Circuit Court.  Plaintiff was an 81 year-old, decorated veteran who saw significant combat in Europe and Asia during World War II.  He was also the innocent victim of the accident.  He had accumulated more than $140,000.00 in medical billings as a result of femur and ankle fractures, surgeries and nursing home care.  He also needed continued care due to the non-fusion of the ankle.  The jury deliberated fault between the two drivers, and ultimately assessed 60% of the total fault to Rodney’s 16 year-old driver.  The jury determined, thanks to the evidence of amounts paid to satisfy the extensive billings, that Plaintiff’s recoverable damages was $185,000.00.  While Rodney was not happy with the fault assessment against his client, he learned a lot about handling the “amounts billed” dispute before a Judge and Jury.  Tricia Woods assisted greatly at the trial and in solving the “billed” vs. “paid” puzzle during trial. 
Scott Tyler and Tricia Hofmann secured the voluntary dismissal of a mortgagee’s claim in a fire loss case.  In Country Acreage v. Progressive, a mortgagee sought to recover its outstanding note balance after the insured premises was destroyed by fire.  Investigators determined that the fire was incendiary and was started by someone with a key to the premises, but all keys were accounted for by the homeowners.  Progressive first secured a declaratory judgment against the homeowners which found the loss was attributable to their intentional conduct.  Next, Progressive filed a Motion for Summary Judgment against the mortgagee.  Based on the language of the policy, the mortgagee’s claim was derivative of the homeowners,’ and their intentional or fraudulent conduct was binding on the mortgagee.  After reviewing Progressive’s Motion for Summary Judgment, the mortgagee conceded to the entry of Judgment on behalf of Progressive.
Rodney Scott participated in the trial defense of Miller v. Southern Indiana Anesthesiology Consultants, Inc. in Floyd County Circuit Court along with co-counsel, Tracey Prewitt.  Plaintiff had a severe reaction to anesthesia during an epidural block.  He suffered from paralysis of the legs, bowel and bladder.  He had to undergo significant rehabilitation.  He was still experiencing symptoms and significant limitations at the time of the trial.  Liability – not damages – was contested on the theory that it was a known but rare complication of the procedure and not the result of negligence.  The proceedings were emotionally charged.  The jury ultimately returned a defense verdict for the doctor and group.  It is currently on appeal.
Rodney Scott and Chad Smith tried Rice v. Hancock in Clark County Superior I.  Plaintiff was a pedestrian in a gas station parking lot and claimed that our client backed into him, causing injuries and damages.  Plaintiff claimed medical bills and losses in the range of $7,000.00.  We defended the case on liability, arguing that our client acted reasonably under the circumstances and that, if anything, the accident was caused by Plaintiff’s actions.  The jury returned a defense verdict for our client.
Scott Tyler and Chad Smith tried Jordan Miller v. Westfield Insurance Company in Louisville, Kentucky, Jefferson Circuit Court, Division 4.  Plaintiff was a 23 year-old passenger in a vehicle that was rear-ended.  After Plaintiff recovered from the tortfeasor, he sought underinsured motorists coverage from Westfield.  As a passenger in the vehicle, Plaintiff had no fault for the accident, and it was tried on damages only.  Plaintiff sought approximately $13,000.00 in past medical services, $40,000.00 in pain and suffering and future medical services.  After Plaintiff’s presentation of evidence, Scott and Chad secured a directed verdict as to Plaintiff’s future medical services claim.  The jury deliberated for slightly more than an hour before returning a verdict awarding Plaintiff his medical expenses and $1,000.00 in pain and suffering.  After a set-off of $10,000.00 for Westfield’s PIP payments, the total verdict was $3,783.10, which was less than the $4,000.00 Offer of Judgment tendered prior to trial. 
Tricia Hofmann procured the voluntary dismissal of Myers v. Thompson, a personal injury lawsuit filed in Floyd Circuit Court. In that action, plaintiff amassed over $88,000.00 in medical billings which she attributed to the accident with our client. The firm amassed substantial pre-accident medical records of the plaintiff, many of which pointedly contradicted her sworn deposition testimony. These discrepancies were detailed in a lengthy letter to plaintiff’s counsel, in which we expressly denied any causal relationship between the accident and injuries. In response, counsel withdrew his representation of the plaintiff. A short time later, plaintiff elected to voluntarily dismiss her lawsuit in its entirety, with no compensation whatsoever for her alleged injuries.
Rodney Scott tried Baer v. Lawson in Washington County Circuit Court.  Plaintiff was a 14 year-old passenger in a vehicle being driven by a non-party.  The non-party was a 16 year-old, unlicensed operator.  The non-party turned left in front of our client.  Plaintiff and non-party, however, claimed that our client was traveling too fast for the conditions, was operating with a handicapped placard hanging from the mirror and failed to keep a proper lookout.  Plaintiff, however, could recover if even 1% of fault was attributed to our client.  Plaintiff claimed post-concussive headaches, significant limitations and medical bills of around $14,000.00.  The jury returned a general verdict for the defense and did not allocate any fault between the non-party and our client.  The non-party defense, however, added an unusual dimension to the trial.
Chad Smith secured an involuntary dismissal in Murray v. Lights in the Vanderburgh Superior Court. In the brief and hearing on our Motion to Dismiss, Chad argued that the court lacked subject matter jurisdiction over the matter, and also argued that a worker’s compensation claim constituted Plaintiff’s sole remedy for injuries allegedly sustained by the acts of a co-worker. 
Rodney Scott tried Hendrix v. Olymco in Clark Circuit Court.  Plaintiff was a 41 year-old male passenger in a vehicle being driven by an Olymco employee.  He claimed that he suffered injuries to his neck and back that required three separate surgeries and left him with permanent restrictions.  He also claimed to have suffered from major depression as a result of the resulting limitations and disabilities.  In addition to treating doctors, Plaintiff called Dr. David Changaris live as a trial witness.  He also called Linda Jones from Vocational Economics, Inc. to testify about his reduced worklife expectancy in light of his limitations and future wage claim.  Between past medicals and wages of more than$200,000.00 and future lost wages and medicals of another $850,000.00, Plaintiff blackboarded more than $1,050,000.00 in special damages for the jury.  This included, among other things, a workers’ compensation lien of more than $195,000.00.  Liability was admitted but causation was disputed heavily in light of the Plaintiff’s history of degenerative disc disease.  The jury returned a verdict in the amount of $350,000.00 against Olymco and the driver.  Post-trial motions have been filed and are still pending.  Tricia Woods assisted greatly before and during the trial.   
Legal Updates
Expert Testimony Issues
Cox and Tube City, LLC v. Matthews, 901 N.E.2d 14 (Ind. Ct. App. 2009).
Plaintiff, Matthews, sustained catastrophic injuries while working at a steel mill when Cox, an employee of Tube City, struck Matthews with a front loader.  Matthews sued both Cox and Tube City.  At trial, Matthews presented expert testimony regarding his future lost earning capacity, which totaled between $656,412.00 and $821,056.00 according to Dr. Gamboa, a vocational rehabilitation expert from Louisville.  After an unfavorable verdict, Tube City appealed. It argued that Dr. Gamboa’s testimony was admitted in error, as it was not based upon reliable medical testimony.
Specifically, Tube City objected to Dr. Gamboa’s testimony stating that there was no competent medical evidence to establish Matthews’ decreased work expectancy, and, therefore, Dr. Gamboa’s testimony was merely speculation.  The Court found, based upon Dr. Gamboa’s testimony, that he relied upon information provided by Matthews’s medical doctors, who had previously testified.  As such, the Court concluded that Dr. Gamboa’s opinion was based upon evidence admitted earlier in the trial.  Tube City, for the first time on appeal, claimed that Dr. Gamboa’s  testimony was not admissible under Indiana Evidence Rule 702(b).  The Court stated that Tube City’s objection was limited in its scope, and that the admissibility under IRE 702(b) had not been raised at the trial court, and therefore, was waived.  The Court further noted that Tube City’s vocational expert relied on similar methodology as Dr. Gamboa, and that Tube City could not now complain that the methodology was unreliable.   Clearly, any Rule 702/Daubert objections to such testimony must be made before trial to be preserved.
ACV and Replacement Cost Issues and Caps on Contractual Recoveries
Rockford Mutual Insurance Company v. Pirtle, 911 N.E.2d 60 (Ind. Ct. App. 2009).
This suit stemmed from a fire to a historic building in Terre Haute, Indiana, owned by Plaintiff and insured by Defendant.  Plaintiff obtained a mortgage on the property in the amount of $140,250.00.  Defendant insured the property for replacement coverage up to $193,000.00 for the building and $8,000.00 for personal property. 
After the fire, Rockford had an independent adjuster inspect the building, and the adjuster estimated the damage to the building at $79,907.49.  Rockford offered $80,000.00 to settle Plaintiff’s claim, which was rejected as it was insufficient to satisfy the mortgage or repair the building.  As neither party could agree on the actual cash value payment, Plaintiff did not complete repairs to the property, and Rockford accordingly refused to pay Plaintiff under his replacement cost coverage.  At this point, Plaintiff filed suit for breach of contract and bad faith.  The bad faith claim was soon dismissed when Rockford paid $86,146.66 for the building’s actual cash value, which finally occurred over six months after the fire.  The claim then proceeded to trial on the breach of contract claim. 
A jury ultimately awarded Plaintiff $124,149.55 under the insurance policy and $406,136.58 in consequential damages.  Rockford filed a Motion to Correct Errors, stating that repairing the building was a condition precedent to receiving replacement cost coverage under the policy, and that consequential damages could not be awarded as they were in excess of the policy limits.  The Court, in rejecting both of Rockford’s arguments stated that while repairing is in fact a condition precedent to replacement cost coverage, compliance with the condition was excused by the insurer’s actions in failing to advance the necessary funds to rebuild under the actual cash value coverage of the policy.  The Court declared that Rockford’s actions, in refusing to pay the actual cash value in a timely fashion, prohibited Plaintiff from beginning his repairs, and, therefore, the requirement was excused.  As such, had Rockford made a more timely payment of the actual cash value coverage, the result would likely have been different. 
As to Rockford’s argument that the consequential damages, in excess of the policy limits, the Court definitively stated that Rockford was liable for the consequential damages, not as a result of its contractual obligations, but, instead, for its breach of contract.  As such, the policy limits did not restrict the damages recoverable by Plaintiff.
“Bodily Injury” and Bodily Touching Requirement
Bush and Bush v. State Farm Mutual Automobile Insurance Company, 905 N.E.2d 1003 (Ind. 2009).
Bush’s 56 year-old son was killed as a passenger in a single-vehicle accident caused by the negligence of an uninsured driver.  The son had no insurance coverage for the vehicle or accident.  The deceased’s parents were insured under a policy with State Farm that included uninsured coverage, and they brought suit against State Farm.  State Farm denied coverage, claiming that no “insured” had sustained a “bodily injury” as required by the policy.  The trial court sustained State Farm’s motion for summary judgment, which was later overturned by the Court of Appeals.  The Supreme Court, in an issue of first impression, overturned the Court of Appeals and reinstated the summary judgment order in favor of State Farm.
The Supreme Court found that State Farm’s policy language did not violate the terms or spirit of the Uninsured Motorist Statute (I.C. 27-7-5-2), and, further, that its definition of bodily injury was not ambiguous.  Essentially, the parents argued that “bodily injury” could include emotional distress sustained by persons who did not sustain bodily injury, which would allow their claim to go forward.  However, the Court noted that Indiana case law is clear that “bodily injury” includes emotional distress only if it arises from a bodily touching.  As neither parent could satisfy the bodily touching requirement, their claim for uninsured coverage failed. 
For more in-depth analysis, please see our spring, 2007, newsletter, archived on this site, which provided an overview of this issue and reviewed a cluster of 2006-2007 cases addressing the effect of emotional distress and the physical touching requirement.




Featured Trial Report


Caption:      Tammy, Ryan and Kayla Cobb v. Bryan Scott Goodwin

Cause Number:   

Hon. J. Terrence Cody

Motorists Mutual Insurance Company

Claim Representative:  
Tami Burgoyne

Damages Awarded:  
None - Defense  Verdict

Incurred Medicals:  

Trial Attorneys: 
Tricia Kirkby Hofmann and George A. Budd


This case arose out of a pedestrian-vehicular accident that took place on February 13, 2007, on Elm Street, in a residential neighborhood one block behind our law firm offices.  Kayla Cobb was twelve years old at the time, and was visiting a friend's home.  Her mother called her cell phone to tell her that she was on her way to pick her up so they could go home and have dinner.  Indeed, dinner was ready and waiting on the table.  It was dark outside and raining, and there were no street lights illuminating the street.
Kayla’s mother, Tammy Cobb, stopped her car in the traffic lane on the opposite side of the street.  It is undisputed that Kayla walked between two cars parallel parked on the side of Elm Street.  She had no umbrella or hood.  Seeing a car approach from the left, she let it pass.  Then, believing it was safe, she started to cross Elm Street to where her mother’s car was stopped.
Our client, Scott Goodwin, was traveling east bound on Elm Street.  Suddenly, he observed Kayla directly in front of his truck.  He attempted to brake, but was unable to avoid Kayla.  She struck the grill and hood of the truck and sustained a broken nose and soft tissue injuries.
Kayla’s mother and her sister, who was also in the car, alleged before trial that Scott was driving too quickly, and that he did not have his lights on.  Scott disputed both these contentions, as did an independent witness who was certain that the headlights were on.  During trial, for the first time, Kayla and her family contended that Scott was left of center when he hit Kayla.  This allegation was rebutted by Scott, the witnesses and the investigating officer.
Scott Goodwin alleged that both Kayla Cobb and Tammy Cobb bore fault for the accident.  The Court refused to give an instruction on Tammy Cobb’s fault, only allowing the jury to apportion fault between Kayla and Scott.  On August 28, 2009, after four days of trial, the jury entered a defense verdict on behalf of Scott Goodwin, finding that Kayla Cobb’s actions of darting out in the rainy darkness from between two parked cars was the cause of her injury.  A consistent judgment was entered, and the Cobbs elected not to appeal the verdict.