About Ushttp://www.wtshdlaw.com/2010-02-18T13:45:16ZFirm Overviewhttp://www.wtshdlaw.com/site/about/firm-overview.html2010-02-18T13:45:16Z
<div style="border-bottom: rgb(141,46,24) 2px solid; border-left: rgb(141,46,24) 2px solid; padding-bottom: 1px; line-height: 21px; margin: 0px 0px 22px 16px; padding-left: 6px; width: 136px; padding-right: 6px; font-family: Verdana,Arial,Helvetica,sans-serif; background: rgb(241,235,218) 0% 50%; float: right; font-size: 10px; border-top: rgb(141,46,24) 2px solid; font-weight: bold; border-right: rgb(141,46,24) 2px solid; padding-top: 1px; moz-background-clip: -moz-initial; moz-background-origin: -moz-initial; moz-background-inline-policy: -moz-initial">When you need a lawyer, choose a law firm that is big enough to meet your needs and small enough to know your name.</div>
<p>Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC</font>, is a full-service law firm for individuals, small businesses, banks, developers, governmental entities, hospitals, physicians, insurers and their insureds, and other businesses. We serve clients in Southern Indiana and Greater Louisville, Kentucky, in the areas of business, estate planning and administration, real estate, family law, health care and civil litigation.</p>
<p> </p>
<p align="center"> <u>Firm History</u></p>
<p> </p>
<p><br />
<br />
<img style="margin: 0px 22px 0px 0px" alt="Original Building" align="left" width="150" height="100" src="/uploads/3/Image/about-1.jpg" />In 1998, <a href="http://cm3.missiondata.com/site/attorneys/rodney-l-scott.html">Rodney L. Scott</a> and <a href="http://cm3.missiondata.com/site/attorneys/scott-l-tyler.html">Scott L. Tyler</a>, formerly litigation partners in an Indianapolis-based litigation firm, joined an experienced New Albany business attorney. The three formed Ward, Tyler & Scott, a partnership.</p>
<p><br />
<br />
</p>
<p><img style="margin: 0px 0px 0px 11px" border="0" alt="" align="right" width="150" height="100" src="/uploads/3/Image/about-2.jpg" /></p>
<p>Subsequently, in 2003, the firm was restructured as Ward, Tyler, & Scott, <font size="1">LLC</font>. The firm's ownership expanded beyond the three founding partners to include <a href="http://cm3.missiondata.com/site/attorneys/kenneth-g-doane-jr.html">Kenneth G. Doane, Jr.</a>, <a href="http://cm3.missiondata.com/site/attorneys/tricia-kirkby-hofmann.html">Tricia Kirkby Hofmann</a> and <a href="http://cm3.missiondata.com/site/attorneys/j-scott-waters-iv.html">J. Scott Waters</a>, IV. They had previously been with the firm as associates since 1999, 2000 and 2001, respectively.</p>
<p><br />
<img style="margin: 0px 22px 0px 0px" border="0" alt="" align="left" width="150" height="100" src="/uploads/3/Image/about-3.jpg" /> On March 1, 2008, with the departure of the third founding member, Rodney, Scott, Ken, Tricia and Scott reorganized the firm into its current form, Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC</font>. Between them, the firm's five owners have a combined 87 years of experience in the practice of law. Since the firm's founding, it has grown from three attorneys and two support staff to a team of ten attorneys and seven staff members. We believe this growth is attributable to our emphasis on service and client satisfaction.</p>
<p> </p>
<p align="center"><u>Clients Come First</u></p>
<p> </p>
<p><img style="margin: 0px 0px 0px 11px" border="0" alt="" align="right" width="150" height="100" src="/uploads/3/Image/about-4.jpg" /> We provide comprehensive estate planning and administration, real estate, business and family law services for our clients. Attorneys in the firm's litigation section represent clients through trials, mediations, arbitrations and appeals, and handle business disputes, construction cases, personal injury claims, insurance coverage issues, deceptive trade practice claims and other such matters. Our health care section acts as in-house or outside corporate counsel to hospitals, physicians, physician groups, other medical providers and various related healthcare companies.<br />
<br />
<img style="margin: 0px 22px 0px 0px" alt="" align="left" width="150" height="100" src="/uploads/3/Image/about-5.jpg" /></p>
<p>The attorneys and professionals at Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC</font>, are committed to providing their clients with high-quality and client-oriented legal services. We are proud of our reputation in the local community and our ability to keep up to date with developing technology, changes in the law and our clients' growing needs.</p>
<p> </p>
<p>We realize that our clients come first, and we are proud to maintain the highest standards of client confidentiality and professionalism. Please <a href="http://cm3.missiondata.com/site/contact/contact-form.html">contact us</a> today to inquire about services we can provide to you.</p>
Divorcehttp://www.wtshdlaw.com/2010-02-18T14:22:40ZDivorcehttp://www.wtshdlaw.com/site/divorce/divorce.html2010-02-18T14:22:40Z
<!--<ul>
<li><a href="">Grounds for Divorce</a></li>
<li><a href="">Marital Property</a></li>
<li><a href="">Non-Marital Property</a></li>
<li><a href="">Valuation of Marital Assets</a></li>
<li><a href="">Dissipation of Marital Assets</a></li>
<li><a href="">Division of Retirement Benefits</a></li>
<li><a href="">Marital Debts</a></li>
<li><a href="">Maintenance</a></li>
<li><a href="">Tax Liability</a></li>
<li><a href="">High Conflict Divorce</a></li>
<li><a href="">Uncontested Divorces</a></li>
<li><a href="">What happens after Divorce</a></li>
</ul>-->
<p>In Indiana, a marriage is a three-way contract between the husband, the wife and the State.</p>
<p> </p>
<p>Further, Indiana is basically a "no fault" state, which means that either party can seek a divorce or dissolution of marriage and the Court assesses no "blame" for the failure of the marriage.</p>
<p> </p>
<p>Because "fault" is not a factor in dissolving a marriage, the key issues become:</p>
<ul>
<li>Care, custody and support of the minor children</li>
<li>Restoration of non-marital property (things owned before the marriage, inherited by one of the parties or that were a specific gift to one of the parties)</li>
<li>Division of marital assets (bank accounts, investments, retirement and pension funds, real estate, vehicles, business interests, personal property, etc.)</li>
<li>Assignment of responsibility for the payment of debt.</li>
</ul>
<p> </p>
<hr />
<p>You deserve experienced and knowledgeable divorce attorneys. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the Family Law Atorneys at <a href="http://www.wtshdlaw.com/site/about/firm-overview.html">Waters, Tyler, Scott, Hofmann & Doane, LLC</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Grounds for Divorcehttp://www.wtshdlaw.com/site/divorce/grounds-for-divorce.html2010-02-18T14:24:26Z
<p>"Grounds" for divorce are no longer required as Indiana is a no-fault state. Though we may use the word "divorce," this is not the legal term for the process of ending a marriage.</p>
<p> </p>
<p>The correct terminology is an "action for dissolution of marriage." The people whose marriage is being dissolve are called the "parties." You will be either the Petitioner (the one who files a petition seeking a divorce) or the Respondent (the one who answers or responds to the petition for divorce).</p>
<p> </p>
<p>The Court must conclude that the marriage is "irretrievabley broken with no hope of reconciliation." Also, one of the parties must have resided in Indiana for at least six months and for three months in the county were the divorce is filed.</p>
<p> </p>
<p>Lawyers are ethically required to help people reconcile if possible. However, you should be realistic. Is there a reasonable chance you and your spouse can or will reconcile? Your divorce lawyer really does care about that issue. The bottom line is this: the Court considers most misconduct and blame for the break-up of the marriage to be irrelevant.</p>
<p> </p>
<hr />
<p>If you are thinking about divorce, our attorneys can help you find the solutions. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law attorneys of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane</a> -- (812) 949-1114. Weekend and evening appointments are available; major credit cards accepted.</p>
<p> </p> Marital Propertyhttp://www.wtshdlaw.com/site/divorce/marital-property.html2010-02-18T14:25:31Z
<p>Indiana law requires the Court to divide the marital property in just and fair proportions. It most cases, this will mean equally. The spouse that stayed at home and cared for the house and children is usually deemed to have contributed just as much to the marriage and marital assets as the spouse whose name appears on the weekly paycheck.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>What is marital property?</strong></span><strong> </strong></span></h4>
<p><img alt="" align="left" width="163" height="109" src="/uploads/3/Image/House.jpg" />In order for the Court to make an equitable division of your marital property, it must first know what constitutes the marital property.</p>
<p> </p>
<p>Marital property is defined as all of the property (houses, cars, stocks, cash, etc.) which you and your spouse have purchased or obtained during your marriage. It is very important that you list all of the property of which you are aware or even suspect exists.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>Be sure to include all property</strong></span></span></h4>
<p>It is expensive and time consuming to return to the Court after the divorce to attempt to get the Court to divide property you forgot to include the first time around. The best mindset to have when it comes to marital property is, "If I don't list it, I'll lose it!"</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>Create an inventory of marital property</strong></span></span></h4>
<p>Your attorney cannot possibly know about every single piece of furniture, bank account, CD and IRA you and your spouse have acquired during the course of your marriage unless you tell him or her.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>What is the property worth?</strong></span></span></h4>
<p>Used personal property has far more value to the person in possession of it than its value at a public auction, in an appraisal or assigned by the Court. The Court must use fair market value (FMV), or what a willing buyer would give a willing seller. It is very close to the value at an auction or yard sale.</p>
<p> </p>
<p>You and your spouse will always do well to divide your marital possession and decide ultimate ownership of personal property, especially items like used furniture, appliances, TVs and stereos. Such property must be appraised if there is no agreement, and this can be expensive. It is not unusual for parties to be dissatisfied with the values assigned by the Court-appointed appraisers. </p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>Must Haves</strong></span></span></h4>
<p>You may have to decide if you are willing to pay lawyers' fees to fight for a piece of property. If you and your spouse can agree on a comprehensive list of tangible personal property, but seemed stalled on a method to ascertain equitable distribution, you might want to consider the "Personal Auction" technique. Flip a coin to see who goes first and then alternate making choices until all the items are assigned.</p>
<p> </p>
<hr />
<p>Considering divorce? We are committed to protecting your interests. With so much at stake in your divorce you need experienced and knowledgeable attorneys. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointmens available; major credit cards accepted.</p>
<p> </p> Non-Marital Propertyhttp://www.wtshdlaw.com/site/divorce/non-marital-property.html2010-02-18T14:26:16Z
<p>The law in Indiana presumes that all the property that a married couple own is their "marital property," that is, both own the property. It does not matter who owns legal title.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>What is non-marital property?</strong></span></span><span style="font-size: medium"> </span></h4>
<p>But the Court will allow you or your spouse to attempt to overcome this presumption. Examples of non-marital property can include cars, boats, motorcycles, houses, real estate, cabins, farms, bank accounts, stocks, certificates of deposit and businesses owned by you or in which you had an interest before your marriage. The Court must assign non-marital property before preceeding with the balance of the divorce case. </p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>How do you protect your non-marital property? </strong></span></span></h4>
<p>Old titles to your car, credit card receipts, cancelled checks, deeds, wills, and similiar documents are what is needed if your divorce attorney is going to trace property to you and convince the Court it should be yours and not your spouse's.</p>
<p> </p>
<p>Not having these documents does not mean you will not be able to get your property back, it may just make it more difficult. It can get really tricky when you had property of some kind before you got married and then sold the property and mixed the money you got from that sale with money you earned during the marriage to buy something else.</p>
<p> </p>
<p>With proper documentation, your divorce lawyer may be able to get the value of your non-marital contribution to the purchase of the property back for you. This scenario frequently happens when two people sell their respective homes they lived in before the marriage and take the proceeds to buy a new home.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Prepare an inventory of your non-marital property</strong></span></span></h4>
<p>Completion of a Non-Marital Inventory is extremely important. This your opportunity to state a claim on all things you owned before your marriage and that were given to you as gifts as well as property inherited by you and bought with money you obtained through of any of these sources.</p>
<p> </p>
<p>Remember, however, that many of the items you claim to be non-marital will require proof that you obtained them before the marriage, as a gift exclusively to you, as an inheritance or purhcased with funds from one of those sources.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Inheritance and gifts </strong></span></span></h4>
<p>For example, if you inherited your father's farm three years ago (before or after your marriage), you may need your father's Will to prove it was an inheritance. On the other hand, if your mother gave you a family heirloom such as her mother's china, you will need your mother or someone else knowledgeable about the circumstances to testify that it was a gift to you and you alone, perhaps with the understanding that you would pass it on to your daughter when she married.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Value of non-marital property </strong></span></span></h4>
<p>Finally, as you begin to list the non-marital property you are claiming, you must attempt to give each item a value. The value should take into consideration each item's age and condition. Unfortuantely, the Court cannot translate your sentimental attachment to Aunt Becky's rocking chair into money unless it is a true antique. Its true worth is probably what you could sell it for at a public auction or yard sale.</p>
<p> </p>
<hr />
<p>You deserve a divorce attorney who cares about your case. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Valuation of Marital Assetshttp://www.wtshdlaw.com/site/divorce/valuation-of-marital-assets.html2010-02-18T14:26:59Z
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>What is fair market value?</strong></span></span></h4>
<p>Accurately determining what is the fair market value (FMV) of any and all items of a couple's personal, real, tangible or intangible property is essential to representing a client in a complex divorce case.</p>
<p> </p>
<p>FMV can be simply defined as "the price an item would sell for on the open market." This often means what an item could sell for at a public auction or yard sale. It does not mean its purchase price or replacement cost.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Valuation of Real Estate</strong></span></span></h4>
<p>In simple divorce cases, the parties may be able to agree on the value of major assets, such as the house. For example, if the house was appraised in the past year or so for a refinancing, the parties may well agree to use that value for their residence.</p>
<p> </p>
<p>However, professional appraisal of real estate (residence, farm, rental property, commerical property, vacant land, etc.) is commonly required in divorce cases.</p>
<p> </p>
<p>Sometimes it is necessary to ascertain what was the value of a piece of real estate at the time of the marriage (particularly if it was owned by one party prior to the marriage) and to measure that against its value today. Occassionally, one spouse will have invested a significant amount of "sweat equity" into real estate which had been owned by the other spouse prior to marriage. The increase in the property's value will be a key issue in the division of this asset.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Valuation of Personal Property</strong></span></span></h4>
<p>The IRS defines "personal property" as "property of any kind except real property. It may be tangible, having physical existence, or intangible, having no physical existence, such as copyrights, patents, or securities."</p>
<p> </p>
<p>Other assets which may require appraisal would include furniture, tools, jewelry, household furnishings, appliances, linens, books, collectibles, automobiles, boats, trailers, sporting equipment, motorcycles, computers, etc. In that case, a personal property appraiser would be hired by one or both parties to inventory and value every item found in either of the parties' homes. This process is somewhat expensive, but is often required in divorce cases where the parties are unable to agree on how to divide these items equitably.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Other kinds of property</strong></span></span></h4>
<p>Business interests, professional practices (doctors, lawyers, accoutants, etc.), stock, stock options, investment real estate, copyrights, inventions, etc. are important examples of other types of property which may require appraisal or valuation by an expert.</p>
<p> </p>
<hr />
<p>If you are considering divorce, we can help guide you through the complex issues in your case. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the divorce attorneys of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Dissipation of Marital Assetshttp://www.wtshdlaw.com/site/divorce/dissipation-of-marital-assets.html2010-02-18T14:27:43Z
<p>If one party intentionally dissipates (which means "to waste", to "expend on useless or profitless activity", "to use or consume an asset thoughtlessly or carelessly") marital assets, the other party may be able to seek compensation for that loss.</p>
<p> </p>
<p>If a spouse installs a paramour in a new home, provides the paramour with a car, pays the paramour's bills, travels with the paramour on vacations, etc., then the injured spouse can file an action against the other for dissipating the parties' marital assets.</p>
<p> </p>
<p>If a spouse gambles or drinks away such assets or if a spouse spends marital assets in the pursuit of a drug addiction, the injured spouse can also seek remedies through the Court for dissiptation.</p>
<p> </p>
<p>Giving away, discarding or destroying marital assets can also be considered dissipation.</p>
<p> </p>
<hr />
<p>Considering divorce? You deserve an experienced attorney to represent you. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact </a>the family law attorneys of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Division of Retirement Benefitshttp://www.wtshdlaw.com/site/divorce/division-of-retirement-benefits.html2010-02-18T14:28:29Z
<p><img alt="" align="right" width="114" height="145" src="/uploads/3/Image/stock.jpg" />Aside from equity in the parties' home, the biggest asset many divorcing couples have are their retirement benefits.</p>
<p> </p>
<p>If a person has been working at Ford, GE, etc. for 20 years, he or she will likely have accumulated a fairly sizeable amount of money in their pension, retirement plan, defined benefit plan, employee stock ownership plan (ESOP), defined contribution plan, savings and security plan, 401(k), annuity, etc.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>How much of the retirement is marital</strong></span><span style="font-size: medium"><strong>?</strong></span></span></h4>
<p>Marriage during all or part of the employee's tenure likely will make some or all of these retirement funds marital in nature. Portions of the funds may be non-marital. Our family law attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane, LLC </a>can explain to you what portion, if any, of your retirement or your spouse's retirement should be considered as marital.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>Are retirement benefits exempt?</strong></span></span></h4>
<p>Certain retirement benefits may be exempt from division as a marital asset. Again, our family law attorneys can discuss this with you in greater detail.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>How are the retirement benefits distributed?</strong></span></span></h4>
<p>After settlement is reached or a decision is obtained from the Court, it may be necessary for one of the parties' attorneys to draft a Qualified Domestic Relations Order (QDRO), which must be approved by the opposing party, then by the employer's Retirement Plan Administrator and finally, submitted to the Court for approval as an official order. A certified copy of the QDRO then needs to be delivered to the Plan Administrator for implementation and distribution of the benefits to the other party.</p>
<p> </p>
<p>Properly drafting a QDRO is a very tricky task and should only be undertaken by a fully qualified family law attorney. The QDRO usually cannot be finalized until after the Court grants the divorce and dissolves the marriage.</p>
<p> </p>
<hr />
<p>You deserve a divorce attorney with the knowledge and experience to protect your interests. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Marital Debtshttp://www.wtshdlaw.com/site/divorce/marital-debts.html2010-02-18T14:29:13Z
<p>In Indiana it is presumed that all marital debt belongs equally (50/50) to each spouse. Marital debt is those bills that were incurred during the marriage.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>How are the debts divided?</strong></span></span></h4>
<p>The debt on the car or the house goes with whoever gets the vehicle or the residence. Remaining debts are usually divided as equally as possible. As you would expect, the spouse with the greater income often ends up with more debt.</p>
<p> </p>
<p>Very simply, if you want or need debts assigned, you must provide the documentation to support your request.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Limit or prevent additonal debt</strong></span></span></h4>
<p>A temporary order to limit the accumulation of new credit cards and debts should be seriously consider once the divorce is filed.</p>
<p> </p>
<p>In some divorce cases, it may be very appropriate for your lawyer to immediately notify creditors about your divorce proceedings. Even if the debts are assigned, there may be important actions to ensure their actual payment and your protection from collection and further indebtedness.</p>
<p> </p>
<hr />
<p>Our divorce attorneys have answers to your questions. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law section of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Maintenancehttp://www.wtshdlaw.com/site/divorce/maintenance.html2010-02-18T14:29:56Z
<p>Maintenance is "spousal support" paid by one spouse to another (formerly and commonly known in some states as "alimony").</p>
<p> </p>
<p>You must clearly understand that after your divorce, you and your spouse will not have as high a standard of living as you each had while married, especially if you are both employed at vastly different incomes. However, the Courts long ago stated, "The Duchess should not be required to live on the wages of the scullery maid" after a divorce. <em>Casper v. Casper</em>, 510 S.W.2d 253 (1974 Ky.)</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Standard of living</strong></span></span></h4>
<p>What was the standard of living established during your marriage? "Standard of living" is basically a function of income and spending and a picture of how you lived. Your attorney must therefore first know how much money you both earned in each year and how much you spent. Again, accurate records are helpful.</p>
<p> </p>
<p>Get out your checkbook register, your tax returns and your credit card statements. With that information in hand, your attorney can help you gather the information and the supporting documentation needed to address your request for maintenance.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>A spouse's special needs</strong></span></span></h4>
<p>All of these special needs are expensive and many can be included in the calculation of maintenance in a divorce:</p>
<ul>
<li>Do you have a serious medical condition which require on-going medical treatment?</li>
<li>Are you learning disabled?</li>
<li>Are you disabled in any other way?</li>
<li>Are you receiving therapy, counseling or psychological care?</li>
<li>Are you continuing your education?</li>
<li>Are you a displaced homemaker?</li>
<li>Will you require vocational rehabilitation before you enter today's workforce?</li>
</ul>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Your medical records</strong></span></span></h4>
<p>It is possible that your attorney will need to obtain a copy of your medical records from your doctor, psychologist, therapist or other provider to prove your claim for maintenance.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Important reasons to demand maintenance</strong></span></span></h4>
<ul>
<li>Disparity of income and length of marriage which requires rehabilitation money to the disadvantaged spouse.</li>
<li>Special circumstances during the marriage requires maintenance.</li>
<li>Physical, mental or emotional disabilities which requires maintenance.</li>
</ul>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Temporary maintenance</strong></span></span></h4>
<p>Temporary maintenance is money paid while you divorce is pending. You and your souse can decide how much that will be, or, if no agreement can be reached, the Court will decide at a hearing. By definition, this type of maintenance ends when the divorce is final or sooner if so ordered by the Court.</p>
<p> </p>
<p>It is important that your list of monthly living expenses be as complete as possible at the hearing for your request for temporary maintenance. Also, at the conclusion of your divorce, the Court will use the list of your expenses, among other factors, in determining whether permanent or rehabilitative maintenance is appropriate.</p>
<p> </p>
<p>It is difficult the Court that your permanent expenses are significantly different (either less or greater) than those you listed for your temporary maintenance hearing.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Rehabilitative maintenance</strong></span></span></h4>
<p>Rehabilitative maintenance is money paid by one spouse to the other, usually in a relatively short-term marriage. This is paid with the specific purpose to help the financially disadvantaged spouse get the training necessary to support himself or herself. In Indiana, it cannot last more than three years.</p>
<p> </p>
<p>Rehabilitative maintenance is often used to finish a college degree or gain specialized training in order to assit the disadvantaged spouse in become self-sufficient.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Permanent maintenance</strong></span></span></h4>
<p>Permanent maintenance is just what is sounds like. It is maintenance paid by one spouse to the other for life or for as long as the other spouse is disabled. In this day and age, it is the exception rather than the rule.</p>
<p> </p>
<p>Most divorce lawyers agree that they rarely see parmanent maintenance paid unless the spouse is disabled and the marriage is very lengthy.</p>
<p> </p>
<hr />
<p>If you are thinking about divorce, our attorneys can help you find the solutions. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law attorneys of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane</a> -- (812) 949-1114. Weekend and evening appointments are available; major credit cards accepted.</p>
<p> </p> Tax Liabilityhttp://www.wtshdlaw.com/site/divorce/tax-liability.html2010-02-18T14:30:42Z
<p>Taxes are a huge subject of debate in divorce.</p>
<ul>
<li>Who is going to be responsible for paying taxes on this year's income?</li>
<li>Who is going to claim the children as exemptions on this year's taxes?</li>
<li>Should the parties file jointly or separately (assuming they are still technically married on December 31st)?</li>
<li>What will happen to the refund on last year's or this year's return?</li>
<li>Who will be responsible for preparing this year's tax return?</li>
<li>Will maintenance be taxable to the recipient and deductible to the paying party?</li>
<li>Will one party indemnify the other from liability on state, federal and local taxes? (Particularly important if there is a business enterprise involved.)</li>
</ul>
<p><img alt="" align="left" width="110" height="73" src="/uploads/3/Image/j0316868.jpg" />These are only a few of the questions you need to review with your divorce attorney during the divorce process. If you have a complex financial estate, you would probably be well advised to consult with your accountant or a tax attorney.</p>
<p> </p>
<hr />
<p>You deserve a divorce attorney who cares about your case. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> High Conflict Divorcehttp://www.wtshdlaw.com/site/divorce/high-conflict-divorce.html2010-02-18T14:31:25Z
<p>Generally, divorces and other family law issues progress in one of two ways...they are either amicable (simple and easily handled) or high conflict, which means litigious, acrimonious, difficult, painful and expensive. It really seems there is very little middle ground. But, this does not mean that taking the "low road" is the only way to go.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Amicable divorces</strong></span></span></h4>
<p>In an amicable divorce, the husband and wife accept that the marriage is over and proceed in a respectful manner to divvy up their marital assets and debts. If there are children involved, they are able to come to an agreement about what will be best for the kids and they move on with their respective lives with little acrimony between them. The children have the advantage of growing up without listening to their parents complant about "your father did this" and "your mother won't do that."</p>
<p> </p>
<p>Couples who dissolve their marriage without bitterness are usualy comfortable dealing with each other in the future as they continue to share a familial bond through their children because it is inevitable they will bump into each other at graduations, bar mitzvahs, baptisms, weddings, grandchildren's birthdays, etc.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>High-conflict divorces</strong></span></span></h4>
<p><img alt="" align="left" width="120" height="121" src="/uploads/3/Image/conflict.jpg" />On the other hand, there are some couples who cannot resolve their differences without anger, resentment, bitterness, hatred, etc. Many times intimidation, threats and even genuine violence are involved in high-conflict divorces as one or even both spouses tries to control the outcome.</p>
<p> </p>
<p>A "War of the Roses" can ensue between the parties which is going to be expensive and hear-breakingly destructive to their children. Such couples will often spend more than their children's college educations will cost to battle over ever possible slight or perceived disadvantage.</p>
<p> </p>
<p>The damage of a high-conflict divorce spreads like an epidemic through the entire extended family and even to their friends, their business associates, etc. Oftentimes, people in high-conflict divorces are never able to fully recover from the trauma.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>How to deal with high-conflict divorces</strong></span></span></h4>
<p>If you find yourself in a high-conflict divorce, we strongly urge to engage the services of a well-qualified therapist or counselor to help you sort out your emotions so you can stop letting them push you around and dictate your decisions. Remember, lawyers generally make really bad therapists! You need someone to talk to who has specific training in helping people through the difficulties of such situations.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Children and high-conflict divorces</strong></span></span></h4>
<p><img alt="" align="left" width="125" height="83" src="/uploads/3/Image/conflict%20child.jpg" />Current research shows divorce is not so bad for children, though obviously it creates difficulties for them. But, after about 18 months, the children can usually move on, probably better than the adults fare.</p>
<p> </p>
<p>The odds of children surviving a divorce with permanent emotional and psychological damage are far greater when the parents have gone through an acrimonious, embittered and litigious divorce. Further, it is not just little kids, but teenagers as well who suffer in high-conflict divorces.</p>
<p> </p>
<p>Retired family law judge and California Court of Appeals Justice Donald King is quoted as saying that "family court is where they shoot the survivors." He was talking about high-conflict divorce cases. But your divorce does not have to unfold this way. Please investigate other options before declaring war in divorce court.</p>
<p> </p>
<hr />
<p>If you are considering divorce, we can help guide you through the complex issues in your case. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the divorce attorneys of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p> Uncontested Divorceshttp://www.wtshdlaw.com/site/divorce/uncontested-divorces.html2010-02-18T14:32:03Z
<p>We frequently receive telephone calls from potential clients asking, "What do you charge for an uncontested divorce?"</p>
<p> </p>
<p>Unfortunately, this question is generally impossible to answer right off the bat. There are hundreds of variables which influence the cost of a divorce.</p>
<p> </p>
<p>Sometimes we get a call from a person who say he (or she) wants an uncontested divorce because "I've decided what I'm going to give her (or him)." Equally often, the other spouse has a somewhat different idea of what her or she is entitled to take from the marriage. What does this create? Conflict. And if there is conflict, the divorce is not uncontested.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Details matter</strong></span></span></h4>
<p>On the other hand, we get calls from people who say, "We've worked this all out. We just want a divorce." But, when we start asking questions about the division of debts, division of retirement and pension funds, the refinancing of the mortgage on the house, etc., we find that the parties usually have not thought this through quite as thoroughly as an experienced family law attorney and that maybe there are real issues that have not truly been agreed upon.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Representing both spouses</strong></span></span></h4>
<p>"If we think we have it all worked out, can you represent both us?" The short answer is "No!". An attorney cannot represent both parties in a divorce and the Indiana Supreme Court agrees with this position. Please proceed with caution if an attorney promises to represent both you and your spouse.</p>
<p> </p>
<p>One attorney can, however, represent one of the parties while the other party can either proceed without legal counsel or, perhaps, engage an attorney only for the purpose of reviewing a settlement agreement. This could save the parties a good deal of money in a low-conflict divorce.</p>
<p> </p>
<hr />
<p>Considering divorce? We are committed to protecting your interests. With so much at stake in your divorce you need experienced and knowledgeable attorneys. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointmens available; major credit cards accepted.</p>
<p> </p> What Happens After Divorce?http://www.wtshdlaw.com/site/divorce/what-happens-after-divorce.html2010-02-18T16:39:18Z
<p>The legal and effective date of your divorce is the date the Court enters your Deree of Dissolution of Marriage. Your attorney has probably provided you with a copy of your decree, as approved by the judge. You should have also received a copy of any "Settlement Agreement", which was filed with the Court in your divorce. These documents should be kept in a safe place, among your other valuable records, for future reference.</p>
<p> </p>
<p>There are quite a few things you need to attend to now that your divorce is final...</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Transfer real estate</strong></span></span></h4>
<p>If you were awarded real estate in the property division, a quitclaim deed from your former spouse to you should be drafted, executed and recorded with the County Recorder. A copy of that deed should be forwarded to you when it is processed by the recorder.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Notify financial institutions</strong></span></span></h4>
<p>You are personaly responsible for contacting all your banks, stock brokers, etc., concerning any changes that need to be made with any accounts, IRAs, CDs, etc., awarded to you in the divorce.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Insurance</strong></span></span></h4>
<p>You need to contact your insurance companies (including life, household, automobile, health, fire, casualty and liability insurance companies) to make sure that the coverage and beneficiaries are appropriate pursuant to the terms of your divorce.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Estate planning</strong></span></span></h4>
<p>We recommend that you draft a new Last Will and Testament promptly to reflect your current status and create or revise any trusts affected by your divorce. You should also consider preparing a Durable Power of Attorney at this time or other Estate Planning technigues. The <a href="http://www.wtshdlaw.com/site/practice-areas/estate.html">estate planning</a> attorneys of Waters, Tyler, Scott, Hofmann & Doane can help you.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Remove former spouse from joint accounts</strong></span></span></h4>
<p>We also suggest that you remove your former's spouse's name from any joint-held accounts awarded to you, such as bank or savings accounts. You may also need to determine whether any of the beneficiaries named on your retirement account needs to be changed as a result of your divorce.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Notify government about your name change</strong></span></span></h4>
<p>We recommend you notify the necessary parties, including the Social Security Administration, if your name was changed as a result of the divorce. You should obtain a new driver's license from the Indiana BMV and open new credit cards, especially if your former name has been restored to you.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Health insurance (COBRA)</strong></span></span></h4>
<p>If you are required to cooperate in providing your former spouse with continuation/conversion application forms for health insurance or COBRA, you need to notify your employer immediately of your divorce so your employer can notify the insurance carrier within thirty days of the divorce. You will need to provide your former spouse's current mailing address as well. If you are required to provide health insurance for your minor child or children, you need to provide proof of health insurance.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Tax consequences</strong></span></span></h4>
<p>We recommend that you consult with an accountant to obtain his/her advice on tax consequences and tax planning. If you are receiving maintenance, remember that "spousal support" received is considered income for tax purposes. </p>
<p> </p>
<p>You will need to budget money for the payment of federal and state income taxes. Quarterly estimated tax payments may be required. We strongly advise you to consult with your accountant if you are receiving maintenance from your former spouse.</p>
<p> </p>
<p>If you are receiving child support payments, that income is not currently considered taxable income by you and does not have to be declared as income on your tax returns. If you are paying maintenance or spousal support, you are currently entitled to claim those payments as a deduction. If you are paying child support, remember those payments are not tax deductible.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Social Security benefits</strong></span></span></h4>
<p>If you were married for at least ten years prior to your divorce becoming final, you may be eligble for spousal Social Security benefits when you reach age 62, if you do not marry or for survivor benefits if your former spouse dies. This will not affect your former spouse's benefits nor will it matter if or she has remarried. Check with your local Social Security office for details and to compare this benefit to your own Social Security entitlement from your own employment.</p>
<p> </p>
<hr />
<p>Our divorce attorneys have answers to your questions. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law section of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p>
<p> </p>
<p> </p>
<p> </p> Surviving Divorce Seminarhttp://www.wtshdlaw.com/site/divorce/surviving-divorce-seminars.html2010-02-18T23:44:17Z
<p>Surviving divorce is a fear many people experience when contemplating divorce. The attorneys at Waters, Tyler, Scott, Hofmann & Doane, LLC understand the stress and emotions our clients go through.</p>
<p> </p>
<p>In order to help our clients navigate the divorce process, we have developed the seminar <strong><span style="color: rgb(204, 102, 0);">"Surviving Divorce: A guide to help you through an Indiana divorce."</span> </strong> For information about attending the seminar, please call (812) 949-1114 and ask for Karla. </p>
<p> </p>
<p>We also make the seminar available on-line by doing the following:</p>
<ol>
<li><a href="/uploads/3/File/Surviving%20Divorce%20Guide.pdf">Download</a> the manual in PDF; and</li>
<li><a href="http://www.wtshdlaw.com/site/family-law-seminars/surviving-divorce.html">Listen</a> to the "Surviving Divorce" on-line seminar</li>
</ol>
<p> </p>
<p><img height="42" width="50" align="left" src="/uploads/3/Image/reader_icon_special.jpg" alt="" />To get the latest version of Adobe Reader, <a href="http://get.adobe.com/reader/">click here</a>. </p>
<p> </p>
<p> </p>
Children and Child Supporthttp://www.wtshdlaw.com/2010-02-18T14:35:52ZChildren and Child Supporthttp://www.wtshdlaw.com/site/child-support/children-and-family-law.html2010-02-18T14:35:52Z
<p>Children are impacted by many aspects of Family Law. Most of the time, that impact is negative, particularly when:</p>
<ul>
<li>Mom and Dad are getting a divorce and the children feel it's their fault.</li>
<li>Dad and Mom have a fight, it gets physical and the children witness the domestic violence.</li>
<li>The parents are frequently squabbling over the "little" things.</li>
<li>Mom and Dad are already divorced, but there is so much animosity and bitterness between them that the children become alienated against one party or the other.</li>
<li>Dad has custody of the children and Mom is supposed to pay child support. If Mom is late with her payments, Dad talks badly about her in front of the children or argues with her in their presence.</li>
<li>Dad's late with the child support. He shows up to see the kids and Mom refuses to permit him to have visitation with them.</li>
<li>Mom remarries and her new husband gets transferred to Texas. She and Dad have joint custody of the children, but she is the <br />
primary residential custodian". Mom decides to move to Texas with the children and her new husband, which effecitvely cuts off Dad's opportunities to see his children on a regular basis.</li>
</ul>
<p> The list goes on and on.</p>
<p> </p>
<hr />
<p>You need an attorney who understands the impact of divorce on children. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the Family Law Attorneys at <a href="http://www.wtshdlaw.com/site/about/firm-overview.html">Waters, Tyler, Scott, Hofmann & Doane, LLC</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Custody and Visitationhttp://www.wtshdlaw.com/site/child-support/custody-and-visitation.html2010-02-18T14:36:40Z
<p><span style="font-size: 9pt"><img alt="" align="left" width="130" height="195" src="/uploads/3/Image/children%20drawing.jpg" />Even though your marriage or relationship is dissolving, your role as a parent will continue. Your ability to sustain co-parenting after divorce and have a positive impact on your children is highly dependent on your ability to problem solve and communicate together on issues related to your children’s welfare.</span></p>
<div style="line-height: normal; margin: 0in 0in 10pt"> </div>
<p><span style="font-size: 9pt">The judge does not know you or your children. If you want them to appreciate your side of the case, you are going to have to provide details about you and your family. You must be able to back up that information with as much independent proof as possible. Your thoughts, feelings, beliefs and opinions are all valid. However, the court must base its decision on genuine evidence.</span></p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Types of custody</strong></span></span></h4>
<p><span style="font-size: 9pt">The most common custody arrangement selected by the court is with both parents having <a href="http://www.wtshdlaw.com/site/child-support/joint-sole--shared-custody.html">legal custody</a> and one parent having <a href="http://www.wtshdlaw.com/site/child-support/joint-sole--shared-custody.html">primary physical custody</a>. Joint <a href="http://www.wtshdlaw.com/site/child-support/joint-sole--shared-custody.html">legal custody</a> means the parents work together and consult with each other when it comes to major decision making for the children (i.e, religion, health care, education, etc.). Meanwhile, the children live with the parent having <a href="http://www.wtshdlaw.com/site/child-support/joint-sole--shared-custody.html">primary physical custody</a> (custodial parent) and visit with the other parent (non-custodial parent). The courts prefer this arrangement if possible. Sometimes the court will award one parent sole legal custody meaning that the non-custodial parent is not involved in major decision making.</span></p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Visitation</strong></span></span></h4>
<p><span style="font-size: 9pt"><img alt="" align="left" width="130" height="130" src="/uploads/3/Image/Visitation.jpg" />The courts will usually grant the non-custodial parent visitation in accordance with the Indiana Parenting Time Guidelines. </span><span style="font-size: 9pt"><a href="http://www.in.gov/judiciary/rules/parenting/index.html">Click here </a>for the Indiana Parenting Time Guidelines. Under the guidelines the non-custodial parent has the children least every other weekend from 6 P.M. Friday to 6 P.M. Sunday, with a rotation of traditionally celebrated holidays (Christmas, Hanukkah, New Years, Thanksgiving, birthdays, etc.), all or a portion of the children's spring breaks and a prolonged uninterrupted visitation period in the summer.</span> <span style="font-size: 9pt">In addition, weekly Wednesday evening visitations are frequently awarded to non-custodial parents. </span></p>
<p> </p>
<p><span style="font-size: 9pt">The guidelines are the minimum meaning that the court may grant more visitation if appropriate. The courts also encourage the parents to reach a visitation arrangement through which both parents share the children. Time sharing can be varied as the families that use it. There is no “right” parenting schedule that fits all families or all age groups. </span></p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Restricted or supervised visitation</strong></span></span></h4>
<p><span style="font-size: 9pt">Occasionally the court may restrict (supervise) or suspend the non-custodial parent’s visitation where the presence of the non-custodial parent in a child’s life places that child in clear and present risk of truly serious injury (sexual or physical abuse of a child, drug abuse, etc.). Again, it is very rare that the court goes to this extreme.</span></p>
<p> </p>
<hr />
<p>If you have are need an experienced attorney to represent you in a child custody matter, <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">contact</a> the Family Law Attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Joint, Sole & Shared Custodyhttp://www.wtshdlaw.com/site/child-support/joint-sole--shared-custody.html2010-02-18T14:37:35Z
<p><span>It is very important that you understand the differences between Joint Custody, Sole Custody and Shared Custody.</span><span> </span></p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong><span>Joint Custody</span></strong></span></span></h4>
<p><span>With Joint Custody, you and your spouse continue to share in decision making regarding the children's education, religious training, medical treatment and the like on an equal basis. It has nothing to do with the amount of time you will spend with your children. </span></p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong><span>Sole Custody</span></strong></span></span></h4>
<p><span>With Sole Custody, the sole custodial parent has all the say-so and the opinions of the other parent have no legal weight. Current trends strongly disfavor sole custody as it is believed that such awards effectively strip the non-custodian of his or her parenthood. If you can't agree on custody, a mediator will probably be called upon to help you.</span></p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong><span class="glink"><span>Shared Custody</span></span></strong></span></span></h4>
<p><span class="glink"><span>Shared Custody is distinguished from "Joint Custody" in that the former refers to an arrangement in which each parent has roughly equal periods of physical custody of the child. For Shared Custody to work, the parties must be able to cooperate with each other to a greater degree than that required by Joint Parenting and the parties should live within a close proximity of each other (to facilitate the child's school and interaction with friends and playmates).</span></span></p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>Other Distinctions between Joint and Sole Custody</strong></span><strong> </strong></span><span><img alt="" align="right" width="130" height="127" src="/uploads/3/Image/Girl%20with%20paint.jpg" /></span></h4>
<p><span>There is another important legal distinction between joint custody and sole custody. This has to do with a cu</span><span>stody fight that occurs sometimes after the divorce is final. In such situations, if a joint custody decree is in place, the "best interest of the child" standard is used to determine custody. Your lawyer will need to explain this dilemma to you in more detail. If, however, a sole custody order is in place after the divorce, the parent seeking the change in custody has the burden to show that the welfare of the child or children is seriously endangered. This is much more difficult to defeat.</span> </p>
<p> </p>
<hr />
<p><span>You need an attorney who understands the Indiana child custody laws. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the Family Law Attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler,</a></span><span><a href="http://www.wtshdlaw.com/site/about/">Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</span> </p>
<p> </p> Child Supporthttp://www.wtshdlaw.com/site/child-support/child-support-info.html2010-02-18T14:38:24Z
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Calculating Child Support</strong></span></span></h4>
<p><span style="font-size: 9pt">Child support in Indiana is calculated pursuant to the Indiana Child Support Guidelines. <a href="http://www.in.gov/judiciary/rules/child_support/">Click here </a>for the Indiana Child Support Guidelines. </span></p>
<p> </p>
<p><span style="font-size: 9pt">In Indiana, child support obligations are established and/or modified using a statutorily established set of guidelines. Obligations are to be set in accordance with the guidelines table unless extraordinary circumstances exist. Extraordinary situations are to be handled at the discretion of the court.</span></p>
<p> </p>
<p><span style="font-size: 9pt">The Indiana Supreme Court provides all the information and forms you need to do a rough calculation of child support obligations in your situation. <a href="http://www.in.gov/judiciary/childsupport/">Click here </a>for forms, worksheets, child support calculator and help with calculations.</span></p>
<p> </p>
<p><span style="font-size: 9pt">To determine the amount of child support obligations, Indiana uses the income of both the custodial parent and the non-custodial parent and considers other factors such as medical insurance, maintenance payments, child care and support for prior born children. </span></p>
<p> </p>
<p><span style="font-size: 9pt">The child support calculations completed applying the parties' combined joint monthly incomes (adjusted by their contributions toward health insurance, maintenance payments, child care expenses, support for older children from other relationships, etc.). </span></p>
<p> </p>
<p> </p>
<div style="line-height: normal; margin: 0in 0in 10pt"> </div>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Modifying Child Support</strong></span></span></h4>
<p><span style="font-size: 9pt">Once an obligation has been established by the Court or the parties' agreement has incorporated into a Court Order, child support <i>can</i> later be modified. However, there are certain minimum requirements for making such changes.</span></p>
<p> </p>
<p><span style="font-size: 9pt">The reduced or increased child support obligation must reflect at least a <i>20% change</i> (plus or minus) in order to be modified and the changes in circumstances must be "substantial and continuing". A lay-off or job termination, for instance, is not considered "continuing" as the parent is expected to seek and obtain other employment or to return from lay-off. Retirement or a permanent health condition which prevents a parent from working (long-term disability) may be justification for modifying the parties' respective child support obligations.</span></p>
<div style="line-height: 11.25pt; margin: 0in 0in 10pt"> </div>
<div style="line-height: normal; margin: 0in 0in 10pt"> </div>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Collecting Child Support</strong></span></span></h4>
<p><span style="font-size: 9pt">For information about enforcement and collection of child support obligations owed to you, <a href="http://www.in.gov/dcs/2429.htm">click here </a>for the website of the Indiana Child Support Bureau.</span></p>
<p> </p>
<p><span style="font-size: 9pt">If you live in Floyd County, Indiana, and someone owes you back child support, you need to contact:</span></p>
<div style="line-height: normal"><span style="font-size: 9pt">Floyd County Prosecutor</span><span style="font-size: 9pt"><br />
311 Hauss Square <br />
Room 249<br />
New Albany IN 47150</span></div>
<div style="line-height: normal"><span style="font-size: 9pt">Child Support Division</span><span style="font-size: 9pt"><br />
Ph#812-948-5475</span></div>
<div style="line-height: normal"><a href="http://floydcountyprosecutor.org/child-support-division/">Click here </a>to visit to the website.</div>
<div style="line-height: normal"> </div>
<div style="line-height: normal"> </div>
<div style="line-height: normal; margin: 0in 0in 10pt"><span style="font-size: 9pt">If you live in Clark County, Indiana, and someone owes you back child support, you need to contact:</span></div>
<div style="line-height: normal"><span style="font-size: 9pt">Clark County Prosecutor</span></div>
<div style="line-height: normal"><span style="font-size: 9pt">County Building</span></div>
<div style="line-height: normal"><span style="font-size: 9pt">501 East Court Ave.</span></div>
<div style="line-height: normal"><span style="font-size: 9pt">Jeffersonville IN 47130</span></div>
<div style="line-height: normal"><span style="font-size: 9pt">Child Support Division</span></div>
<div style="line-height: normal"><span style="font-size: 9pt">Ph#812-285-6261</span></div>
<div style="line-height: normal"><span style="font-size: 9pt"><a href="http://www.clarkprosecutor.org/html/child/child.htm">Click here </a>to visit the website.</span></div> Impact of Domestic Violencehttp://www.wtshdlaw.com/site/child-support/impact-of-domestic-violence.html2010-02-18T14:39:16Z
<p><span style="font-size: 9pt"><a href="http://www.wtshdlaw.com/site/domestic-violence-section/">Domestic violence</a> in your home may be an important element of your custody case.<img alt="" align="right" width="130" height="196" src="/uploads/3/Image/Impact%20of%20Domestic.jpg" /></span></p>
<p> </p>
<p><span style="font-size: 9pt">When children are eye witnesses to domestic violence, psychologists' reports and specific medical opinions may be required as verification of the event and its impact upon them.</span></p>
<p> </p>
<p><span style="font-size: 9pt">Allegations of domestic violence in the home may be severe enough to persuade the Court to prohibit a non-custodial parent's visitation with his or her minor children. For instance, if your spouse has an alcohol or drug addiction, we need to know about his or her Public Intoxication or DUI arrests. If your spouse has physically abused you, we need to know about any Emergency Protective Orders you have had to obtain.</span></p>
<p> </p>
<p><span style="font-size: 9pt">People are often embarrassed about allowing physical abuse to go on for years. Please don't be. This is very common. It will help all concerned if you tell the truth in this area. Your lawyer can help you get to the people who can help.</span></p>
<p> </p>
<p><span style="font-size: 9pt">If domestic violence is an issue in your situation, or if you have questions about domestic violence, please <a href="http://www.wtshdlaw.com/site/domestic-violence-section/">click here</a> to visit our web pages that address that situation specifically.</span></p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><b>Other Custody Factors</b></span></span></h4>
<p><span style="font-size: 9pt">If you or your spouse have been or are under a doctor's care for physical or mental health problems, your lawyer must know this in order to present it to the court in the proper way.</span></p>
<p> </p>
<p><span style="font-size: 9pt">Your lawyer also needs to know the positive information about the roles you and your spouse take as parents. No one is "all good" or "all bad". It is not illegal to have an extremely disagreeable temperament, although there are times we all think it should be.</span></p>
<p> </p>
<p><span style="font-size: 9pt">Finally, there are the children. The court also needs to know all you can tell it about them. The court must award custody and visitation as measured by the best interest of the children, not the best interests, fears or wishes of the parents.</span></p>
<p> </p>
<p><span style="font-size: 9pt">What you and your spouse want to happen with the children is only one of the many factors the court considers. It is important to try to resolve the custody of your children by agreement.</span></p>
<p> </p>
<hr />
<p>If you or your children are victims of domestic abuse, our family law attorneys can help. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law section at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Relocation Issues in Child Custodyhttp://www.wtshdlaw.com/site/child-support/relocation-issues-in-child-custody.html2010-02-18T14:40:03Z
<p><span style="font-size: 9pt">The issues surrounding the relocation of custodial parents require significant attention in today's mobile society. Almost two-fifths of divorced women move in the first year after divorce. This rate is nearly seven times the rate of married women, and it is important to remember the majority of these relocation decisions are motivated by necessity rather than choice.</span></p>
<div style="line-height: normal; margin: 0in 0in 10pt"> </div>
<p><span style="font-size: 9pt"><img alt="" align="left" width="130" height="174" src="/uploads/3/Image/relocate.jpg" />In the past, the decision to relocate almost automatically placed the custody of the children at risk. Non-custodial parents, moving for a change in custody, often argued successfully that a move would significantly and detrimentally affect the best interests of the child by depriving the child of the benefits of two accessible parents.</span></p>
<p> </p>
<p><span style="font-size: 9pt">Unless the former spouse consented to the relocation, the burdens of litigation and delay imposed on the custodial spouse seeking to relocate sometimes seemed greater than the difficulty imposed to relocate a criminal subject to probation or parole supervision. Currently, however, the trend is to allow relocation as long as it is not motivated by the desire to deprive the non-custodial parent of parental contact.</span></p>
<p> </p>
<p><span style="font-size: 9pt">Nevertheless, it remains critical for both the custodial and non-custodial parents to understand the factors that the courts will consider when entertaining a motion to change custody based on plans to relocate. In a recent case, the California Supreme Court held that a custodial parent had a presumptive right to change a child's residence as part of "the ordinary needs for both parents after a marital dissolution to secure or retain employment, pursue education or career opportunities, or reside in the same location as a new spouse or other family or friends."</span></p>
<p> </p>
<p><span style="font-size: 9pt">Even the courts recognize that it is unrealistic to daily micromanage a family. Given the importance of the stability of custodial relationships and visitation, persons resolving a divorce should try to anticipate possible relocation.</span></p>
<p> </p>
<p><span style="font-size: 9pt">The language in your divorce agreement should address this very important issue, even if a relocation is not immediately on the horizon for either parent. Indiana requires notice to the custodial parent and court if you intend to relocate. You should consutl an attorney before relocating.</span></p>
<div style="line-height: normal; margin: 0in 0in 10pt"> </div>
<p> </p>
<hr />
<p>If you or your spouse are considering relocating with the children, you should consult an experienced family law attorney. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p>
Post-Divorcehttp://www.wtshdlaw.com/2010-02-18T14:41:10ZPost-Divorcehttp://www.wtshdlaw.com/site/post-divorce-section/post-divorce.html2010-02-18T14:41:10Z
<p>The entry of a Decree of Dissolution of Marriage does not necessarily put a final end to all legal issues arising out of your past marriage.</p>
<p> </p>
<p>First, there are many things that you will need to take care of personally (i.e., changing your name on your social security card and your driver's license, closing your joint bank accounts and opening new ones in your own name, and so forth).</p>
<p> </p>
<p>You and your spouse may have reached a full and final settlement of all of the issues in your divorce. But, what if your ex-spouse does not keep his or her end of the bargain?</p>
<p> </p>
<p>And then there are the children! Situations and circumstances change and the obligation you and your former spouse share with respect to the children are going to continue for a very long time.</p>
<p> </p>
<p>Under certain circumstances, it is possible to re-visit custody and support issues after the divorce is final. The most frequent post-divorce actions involve:</p>
<ul>
<li><a href="http://www.wtshdlaw.com/site/post-divorce-section/modification-of-custody.html">Modification of Custody</a></li>
<li><a href="http://www.wtshdlaw.com/site/post-divorce-section/modification-of-child-support.html">Modification of Child Support</a></li>
<li><a href="http://www.wtshdlaw.com/site/child-support/relocation-issues-in-child-custody.html">Relocation Issues</a></li>
<li><a href="http://www.wtshdlaw.com/site/child-support/child-support-info.html">Child Support Arrearages</a></li>
</ul>
<p> </p>
<hr />
<p>If you think you have a valid post-divorce issue, you consult our experienced attorneys. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the Family Law Attorneys at <a href="http://www.wtshdlaw.com/site/about/firm-overview.html">Waters, Tyler, Scott, Hofmann & Doane, LLC</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Modification of Custodyhttp://www.wtshdlaw.com/site/post-divorce-section/modification-of-custody.html2010-02-18T14:42:08Z
<p>It is possible to obtain modification of a prior custody order. But, there are several specific hurdles which must be cleared to accomplish such a change.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>The factors the Court considers</strong></span></span></h4>
<p>The Court may only modify a child custody order if modification is in the best interest of the child and if there is a substantial change in one or ore of the factors the Court is to consider in making its initial custody award in determining whether to change custody. Those factorss are:</p>
<p> </p>
<ol>
<li>The age and sex of the child.</li>
<li>The wishes of the child's parent or parents.</li>
<li>The wishes of the child, with more consideration given to the child's wishes if the child is at least 14 years of age.</li>
<li>The interaction and interrelationship of the the child with: the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interests.</li>
<li>The child's adjustment to the child's home, school and community.</li>
<li>The mental and physical health of all individuals involved.</li>
<li>Evidence of a pattern of domestic or family violence by either parent.</li>
<li>Evidence that the child has been cared for by a de facto custodian.</li>
</ol>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>Stability for the child</strong></span></span></h4>
<p><img style="width: 180px; height: 120px" alt="" align="right" src="/uploads/3/Image/Stability%20for%20Child.jpg" />Even under the "lessened" standard for modification of custody, the Court is to provide as much stability as possible for the child. The Court is to apply a more stringent standard to requests for modification than it is to intitial determinations for custody. The person seeking modification must show that the existing custody arrangement is unreasonable. The Court is to aim for continuity and stability in the life of the child in considering changes in custody.</p>
<p> </p>
<h4><span style="color: rgb(204,102,0)"><span style="font-size: medium"><strong>Burden of proof</strong></span></span></h4>
<p>The party seeking modification of custody has the burden of proof. A party seeking to terminate visitation has the burden of proving that the child's physical health or emotional development is endangered by the visitation.</p>
<p> </p>
<p>The modification standard is very high in order to achieve permanence and prevent the child from going back and forth between parent's homes.</p>
<p> </p>
<hr />
<p>You need a family law attorney who understands the Indiana child custody laws. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law section at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Modification of Child Supporthttp://www.wtshdlaw.com/site/post-divorce-section/modification-of-child-support.html2010-02-18T14:42:50Z
<p><span style="color: black; font-size: 9pt">If you or your formal spouse (or other parent of a child) experience a <b>"substantial and continuing change in circumstances"</b>, you may be able to petition the court to reconsider your child support payments. This is generally deemed to mean at least a <b>20 percent</b> permanent increase or decrease in income and its been at least 12 months since the last support order was issued. It does not include a loss of employment, layoff or voluntary underemployment.</span></p>
<p> </p>
<p><span style="color: black; font-size: 9pt"><a href="http://www.wtshdlaw.com/site/child-support/child-support-info.html">Click here</a> for<a href="http://www.divorceinkentucky.com/childsupport.htm#Modification of Child Support (Increases and Decreases)"><b><span style="color: rgb(89,55,18); text-decoration: none"> </span></b></a>our Child Support page of our website for more information on the calculation of new child support obligations based on substantial and continuing changes in circumstances.</span></p>
<p> </p>
<p> </p>
<hr />
<p><span style="color: black; font-size: 9pt">If you believe that you or the child's other parent have experienced a "substantial and continuing change in circumstances" as described above, you should <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">contact</a> to the experienced Family Law attorneys at <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114; Weekend and evening appointments available; major credit cards accepted.</span></p>
Domestic Violencehttp://www.wtshdlaw.com/2010-02-08T21:28:23ZMake a Domestic Violence Planhttp://www.wtshdlaw.com/site/domestic-violence-section/make-a-domestic-violence-plan.html2010-02-08T21:28:23Z
<p>While you may not be able to predict or control your partner's violence, you can plan the most effective way to respond to violence. You should make a domestic violence safety plan. Review your plan periodically and modify it according to your needs and circumstances. Carefully choose and guard your hiding place for this safety plan to prevent your partner from learning in advance of your plans.</p>
<p> </p>
<p>For a domestic violence plan from the American Bar Association, <a href="http://www.abanet.org/tips/publicservice/DVENG.pdf">click here</a>. Print it and keep it somewhere safe and review it often.</p>
<p> </p>
<hr />
<p>If you are victim of domestic violence in southern Indiana, our family law attorneys can help you through the legal process. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law section of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p>
<p> </p>
<p> </p> How To Take Out An EPOhttp://www.wtshdlaw.com/site/domestic-violence-section/how-to-take-out-an-epo.html2010-02-11T14:31:12Z
<p>Victims of domestic or family violence, stalking or a sex offense may request a protective order against the alleged perpetrator, called the Respondent. In the case of domestic violence or family violence, the victim and the Respondent must have a certain type of relationship including: current or former spouses; individuals that have dated or had a sexual relationship; individuals related by blood, adoption, marriage or other established legal relationship; individuals who have a child together or are the child of any type of relationship previously described.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Emergency Protective Order.</strong></span></span></h4>
<p>An emergency protective order or EPO may be issued ex parte, meaning without a hearing or notice to the Respondent. A hearing must be held within 30 days if there is a request for the following: to evict the Respondent from the victim's home; possession of personal property; to establish r ules for parenting time; to request that the Respondent pay child support or attorney fees; or to forbid the Respondent from possessing a firearm, ammunition or deadly weapon.</p>
<p> </p>
<p>Once issued, protective orders normally last for 2 years and can be extended by the Court if necessary. During this time period, the Respondent may be restrained from committing further acts of abuse or threats of abuse to the victim, prohibited from having a gun and/or restrained from any contact with the victim or other protected person or places.</p>
<p> </p>
<p><span style="color: #cc6600"><span style="font-size: small"><em><strong>Neither a protective order or an emergency protective order is bullet-proof.</strong></em></span><em><strong> </strong></em></span><em><strong> </strong></em>That piece of paper cannot save your life! It can, however, empower the authorities to take your partner into police custody if he/she is threatening you or otherwise violating the order. If you are a victim, you should also consider making a domestic violence plan.</p>
<p> </p>
<p>If you require a protective order, you should contact the Clerk's office in the county where you live. <a href="http://www.in.gov/judiciary/forms/po.html">Click here </a>for the forms you need for filing with the Clerk's office.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: small"><strong>Remember, if you are in genuine risk of injury through domestic violence, call 9-1-1.</strong></span></span></h4>
<p> </p>
<hr />
<p>If you are victim of domestic violence in southern Indiana, our family law attorneys can help you through the legal process. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the family law section of <a href="http://www.wtshdlaw.com/site/about/">Waters, Tyler, Scott, Hofmann & Doane </a>-- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p> Domestic Violencehttp://www.wtshdlaw.com/site/domestic-violence-section/domestic-violence.html2010-02-18T14:44:14Z
<p>The <a href="http://www.ndvh.org/">National Domestic Violence Hotline</a> defines domestic violence as a "pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner."</p>
<p><br />
Regardless of the definition, if you are in an abusive relationship or situation, you must seek out the resources you need to protect yourself and your children from abuse.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>You may be in an emotionally abusive relationship if your partner:</strong></span></span></h4>
<ul>
<li>Calls you names, insults you or continually criticizes you.</li>
<li>Does not trust you and acts jealous or possessive.</li>
<li>Tries to isolate you from family or friends.</li>
<li>Monitors where you go, who you call and who you spend time with.</li>
<li>Does not want you to work.</li>
<li>Controls finances or refuses to share money.</li>
<li>Punishes you by withholding affection.</li>
<li>Expects you to ask permission.</li>
<li>Threatens to hurt you, the children, your family or your pets.</li>
<li>Humiliates you in any way.</li>
</ul>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>You may be in a physically abusive relationshiop if your partner has ever:</strong></span></span></h4>
<ul>
<li>Damaged property when angry (thrown objects, punched walls, kicked doors, etc.)</li>
<li>Pushed, slapped, bitten, kicked or choked you.</li>
<li>Abandoned you in a dangerous or unfamiliar place.</li>
<li>Scared you by driving recklessly.</li>
<li>Used a weapon to threaten or hurt you.</li>
<li>Forced you to leave your home.</li>
<li>Trapped you in your home or kept you from leaving.</li>
<li>Prevented you from calling police or seeking medical attention.</li>
<li>Hurt your children.</li>
<li>Used physical force in sexual situations.</li>
</ul>
<p> </p>
<p>If you answered "yes" to any of these questions you may be in an abusive relationshiop. Please call the <a href="http://www.ndvh.org/">National Domestic Violence Hotline</a> at 1-800-799-SAFE (7233) or in southern Indiana the <a href="http://www.thecenteronline.org/">Center for Women & Families</a> at (812) 944-6743 (24 hours) your local domestic violence center to talk with someone about your situation.</p>
<p> </p>
<p><strong>Physical abuse</strong> includes putting your hands on a person against his/her will. It also includes shoving, pushing, grabbing, pulling or forcing someone to stay somewhere. Regardless of the relationship between two people, using physical violence or force against someone is a crime.</p>
<p> </p>
<p><strong>Emotional abuse</strong> is where one partner continously degrades or belittles the other ot accuses the other of being stupid, unattractive, a bad parent, unfaithful or any other similar fault - can indicate domestic violence or the potential for domestic violence.</p>
<p> </p>
<p><strong>Domestic violence impacts chidren</strong> even if they are never physically injured by it. Children who witness domestic violence often suffer behavioral and cognitive problems. Boys, especially, are more likely to be aggressive and engage in criminal behavior if they grow up in homes where domestic violence exists.</p>
<p> </p>
<hr />
<p>If you are a victim of domestic violence in southern Indiana, you should consult an experienced attorney. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the Family Law Attorneys at <a href="http://www.wtshdlaw.com/site/about/firm-overview.html">Waters, Tyler, Scott, Hofmann & Doane, LLC</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
Resolution Optionshttp://www.wtshdlaw.com/2010-01-09T13:37:04ZLitigationhttp://www.wtshdlaw.com/site/resolution-options/litigation-info.html2010-01-09T13:37:04Z
<p>In the old day (40 years ago), divorce clients were at the mercy of the judicial system as there were few options to full-blown, no-holds-barred litigation. This method is expensive, lengthy and exhausting for everyone involved. The litigants have relatively little controt over the outcome and their atorneys must go to the ends of the earth to prove their case to the judge.</p>
<p> </p>
<p>If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witneses, and documents called exhibits.</p>
<p> </p>
<p>Trial will be expensive (both from monetary and emotional standpoints). However, it can be the only acceptable alternative to never-ending, unreasonabe settlement demands or a party's refusal to negotiate in good faith. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different. A judge -- a stranger who likely has a viewpoint, temperament and values very different from yours -- unilaterally decides how you and your spouse are going to rearrange your lives, divides your income and assets, and dictates when each of you may see your children.</p>
<p> </p>
<p>Sometimes, a trial does not end the case. Multiple appeals are possible (both in the trial court and in the appellate courts). Appeals add even more time and expense to the divorce process and are usually difficult to win.</p>
<p> </p>
<p><em>"So what are my options if I don't want to go through litigation?"</em></p>
<p>Over the course of the last 10 years, the evolution of Alternative Dispute Resoluttion ("ADR") has given us specialized techniques to help resolve your divorce without litigation through mediation or arbitration. All of them are available to help efficiently and expeditiously resolve dissolution of marriage, custody disputes, division of property, responsbility of debts, visitation and parenting issues, etc. In all likelihood, one of these methods is right for your situation. </p>
<p> </p>
<p> </p> Arbitrationhttp://www.wtshdlaw.com/site/resolution-options/arbitration-family.html2010-01-09T13:03:49Z
<p>In arbitration, an arbitrator is empowered by the parties to make a decision on the resolution of the case, which is fully binding upon the parties in much the same way as the Court's decision. Arbitration in Family Law is conducted by an independent third party, usually an attorney with many years of Family Law experence.</p>
<p> </p>
<p>The setting of an arbitration is generally more formal than in mediation. The arbitrator will conduct the session in much the same way as a court hearing, with specific time limits for each party's proof to be presented and their arguments made.</p>
<p> </p>
<p>Unlike mediation, the parties and their counsel give the arbitrator the authority to render a binding decision, which will have the same authority and power as a court order and which will be enacted by the court through approval of the decision as an order of the court.</p>
<p> </p>
<p>In arbitration, the parties do not have the power to participate in the decision-making process but, rather than endure months of delay before getting a court date, they can engage an arbitrator who will tender his decision in a much shorter period of time. A speedy date is the primary advantage of arbitration.</p>
<p> </p>
<p> </p> Mediationhttp://www.wtshdlaw.com/site/resolution-options/mediation-family.html2010-02-11T14:48:55Z
<p>With today's court caseload, the cost of protracted litigation and the emotional toll of a full-blow divorce or custody battle, and you will quickly realize there must be a better way to end a marriage.</p>
<p> </p>
<p>After you come to the realization that nobdoy wins in a divorce, after you understand that protecting and nurturing your children should be the primary goal, and after you consider who will most likely walk away with what and who will have to pay what, then you should be in a position to realize the potential benefits of resolving your divorce through mediation.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>What is mediation?</strong></span></span></h4>
<p> Mediation is commonly defined as:</p>
<p> </p>
<p><em>"An informal process in which a neutral third party or persons called a mediators act to facilitate the resolution of a dispute between two or more parties. The process is designed to help disputing parties reach an agreement on all or part of the issues in dispute. Mediation is based on principles of communication, negotation, facilitation, and problem-solving that emphasize the needs and interests of the participants; fairness procedural flexibility; privacy and confidentiality; full disclosure; and self determination. Decision-making authority remains at all times with the parties, not the mediator."</em></p>
<p> </p>
<p>It is common practice in southern Indiana for the Courts to compel the parties to attempt mediation before a divorce trial will be scheduled.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>Why mediate our differences?</strong></span></span></h4>
<p> With the help of an independent third party -- the mediator -- the divorcing couple can usually determine the issues that are really important to them and negotiate arrangements that come out of their own specific needs. A mediated resolution often costs less, takes less time and is usually less painful. It is always faster than waiting for your day in court.</p>
<p> </p>
<p>We are not proposing that any divorce be undertaken without the aid and guidance of a competent family law attorney and who spends a considerable amount of time staying up-to-date on developments in this ever-changing area of practice.</p>
<p> </p>
<p>Competent, reliable, knowledgeable legal counsel is still important, even if you and your spouse opt to attempt mediation. For one thing, only your attorney can draw your attention to important matters that might have slipped by you that will require mediation or adjudication. Mediators cannot look after your best interests -- their goal is to settle the case.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>What are the advantages of mediation?</strong></span></span></h4>
<p> Research has found that it takes approximately two (2) years following a divorce to recover from the overall stress and trauma -- even longer if high conflict was involved.</p>
<p> </p>
<p>Poor communication between spouses is one of the most common reasons for divorce. The time to begin practicing good communication with your sposue is usually not when you are both in the throes of a bitter and acrimonious divorce battle. Divorce mediators are specially trained, frequently being retired judges or experienced family law attorneys who have committed themselves to helping people just like you resolve disputes.</p>
<p> </p>
<p>Successful mediation can improve the former spouses' relationship to the level that future communication is possible when they must deal with each other regarding the children of the marriage.</p>
<p> </p>
<p>Although you may divorce your spouse, you will always be connected to him or her through the children. Children are defenseless when they are caught between battling parents. Mediation can be successful in focusing the parties' attention on what should be the primary objective: the future care and well-being of the children.</p>
<p> </p>
<p>So often, divorce seems to be all abuot who's going to walk away with what and the children are sometimes regarded as the "spoils of war" -- something to be "awarded" to the victor. Rational parents recognize that this attitude does nothing but damage the children through the strain it puts on your relationship with your former spouse and the children's relationship with their other parent.</p>
<p> </p>
<p>If the mediator is open and supportive of the parties, the process can have benefits that are not possible in litigation. Mediation allows clients to make use of their own values, goals and priorities to "custom build" a divorce agreement, tailor-made to suit their needs and legal rights.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>When is mediation not advisable?</strong></span></span></h4>
<p> If you are victim of domestic violence at the hands of your spouse and your spouse's attorney suggests or the court orders mediation, be absolutely certain your attorney fully understands the abuse you have suffered.</p>
<p> </p>
<p>Mediation is generally not advisable when domestic violence is or has been present, although it is sometimes successful when the parties are kept isolated from one another and the mediator works by going from room to room, visting the respective parties and their attorneys.</p>
<p> </p>
<h4><span style="color: #cc6600"><span style="font-size: medium"><strong>How does mediation work?</strong></span></span></h4>
<p>When the parties agree to mediate or when the court orders mediation, a neutral third party specially trained and qualified to assist domestic relations dispute resolution will be chosen by the parties or appointed by the court.</p>
<p> </p>
<p>An appointment will be scheduled for the mediation session. The mediator will explore the following:</p>
<ul>
<li>Defining the parties' issues and setting an agenda</li>
<li>Uncovering hidden interests</li>
<li>Generating options for settlement</li>
<li>Conducting final bargaining between the parties</li>
</ul>
<p>The mediation process is sometimesy conducted with both parties and their respective attorneys being in the same room. Often the session is conduced with the parties in separate rooms.</p>
<p> </p>
<p> </p>
<p> </p>
<p> </p> Resolution Optionshttp://www.wtshdlaw.com/site/resolution-options/intro to resolution options.html2010-02-18T14:47:30Z
<p>Today, family law clients in Indiana have many options in choosing how they want to resolve their disputes.</p>
<p> </p>
<p>Your resolution options include:</p>
<ul>
<li><a href="http://www.wtshdlaw.com/site/resolution-options/litigation-info.html">Litigation</a></li>
<li><a href="http://www.wtshdlaw.com/site/resolution-options/mediation-family.html">Mediation</a></li>
<li><a href="http://www.wtshdlaw.com/site/resolution-options/arbitration-family.html">Arbitration</a></li>
</ul>
<p> </p>
<hr />
<p>An experienced family law attorney can help you resolve your domestic relation dispute. <a href="http://www.wtshdlaw.com/site/contact/contact-form.html">Contact</a> the attorneys at <a href="http://www.wtshdlaw.com/site/about/firm-overview.html">Waters, Tyler, Scott, Hofmann & Doane, LLC</a> -- (812) 949-1114. Weekend and evening appointments available; major credit cards accepted.</p>
<p> </p>
Attorneyshttp://www.wtshdlaw.com/2010-02-18T14:16:47ZRick E. Bartletthttp://www.wtshdlaw.com/site/attorneys/rick-e-bartlett.html2010-02-18T14:16:47ZSenior Staff Attorney<a href="mailto:rbartlett@wtshdlaw.com">rbartlett@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6068</strong></p>
<p> </p>
<p><strong>Areas of Practice:</strong><br />
Estate Planning<br />
Estate Administration</p>
<p>Business Law</p>
<p>Real Estate<br />
<br />
<strong>Bar Admissions:</strong><br />
Indiana, 1981<br />
U.S. District Courts, Northern and Southern Districts of Indiana<br />
<strong><br />
Education:</strong><br />
Indiana University Business School (B.A., with highest honors, 1978)<br />
Indiana University (J.D., cum laude, 1981)<br />
<strong><br />
Professional Associations and Memberships:</strong><br />
Floyd County Bar Association</p>
<p>Clark County Bar Association</p>
<p>Indiana State Bar Association <br />
Southern Indiana Estate Planning Council (President 1988-1989)</p>
<p>Clark County United Way (past board member)</p>
<p>Leadership of Southern Indiana</p>
<p>Rotary Club<br />
<br />
<strong>Personal:</strong><br />
Born 1956<br />
Married to wife, Sandra Heeke, since 1978<br />
<strong><br />
Interests:</strong><br />
Travel; tennis; golf; bicycling; member of Northside Christian Church, New Albany, Indiana.</p> Kenneth G. Doane, Jr.http://www.wtshdlaw.com/site/attorneys/kenneth-g-doane-jr.html2010-02-18T13:59:57ZMember<a href="mailto:kdoane@wtshdlaw.com">kdoane@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6046</strong></p>
<p> </p>
<p> </p>
<p><strong>Practice Areas:</strong><br />
Product Liability<br />
Commercial Litigation<br />
Insurance Defense<br />
Construction Litigation <br />
Professional Liability<br />
Subrogation & Fire-Related Casualties<br />
<br />
<br />
<strong>Bar Admissions:</strong><br />
Pennsylvania, 1996; Indiana, 1998; Kentucky, 1999<br />
U.S. Courts of Appeals, 6th and 7th Circuits<br />
U.S. District Courts, Northern and Southern Districts of Indiana; Western District of Kentucky; and Middle District of Pennsylvania<br />
<strong><br />
Education:</strong><br />
Clarkson University (B.S., cum laude, 1991)<br />
Louisiana Tech University (M.A., 1993)<br />
Penn State, Dickinson School of Law (J.D., 1996)<br />
Woolsack Honor Society<br />
Appellate Moot Court Board<br />
Trial Moot Court Board<br />
<strong><br />
Professional Associations and Memberships:</strong><br />
Floyd County Bar Association<br />
Indiana State and Kentucky State Bar Associations<br />
Sherman Minton American Inn of Court<br />
Leadership Southern Indiana</p>
<p>Floyd County Teen Court - Charter Attorney Advisor<br />
<strong><br />
Author:</strong><br />
“Use of Forensic Economists in Commercial Litigation: A Defense Perspective,” Defense Counsel Journal, Vol. 66, No. 4, p. 552 and Vol. 69, No. 1, p. 16.<br />
<br />
<strong>Interests:</strong><br />
Golfing, skiing, kayaking, coaching soccer, reading, Scrabble, music, and movies.</p> Sandra L. Heekehttp://www.wtshdlaw.com/site/attorneys/sandra-l.-heeke.html2010-02-18T14:02:03ZSenior Staff Attorney<a href="mailto:sheeke@wtshdlaw.com">sheeke@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6048</strong></p>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p><strong>Areas of Practice:</strong><br />
Insurance Defense</p>
<p>Insurance Coverage<br />
Products Liability</p>
<p>Commercial Litigation</p>
<p>Construction Litigation</p>
<p>Labor Law</p>
<p>Civil Rights and Discrimination</p>
<p><br />
<strong>Bar Admissions:</strong><br />
Indiana, 1981<br />
U.S. District Courts, Northern and Southern Districts of Indiana<br />
<strong><br />
Education:</strong><br />
Indiana University (B.S., with highest honors, 1978)<br />
Indiana University (J.D., cum laude, 1981)<br />
<strong><br />
Professional Associations and Memberships:</strong><br />
Floyd County Bar Association</p>
<p>Clark County Bar Association </p>
<p>Indiana State Bar Association <br />
Christian Legal Society</p>
<p>Indiana Supreme Court Character & Fitness Committee</p>
<p>Fellows of Indiana Bar Association (1988 inductee)</p>
<p>Leadership of Southern Indiana</p>
<p><br />
<strong>Personal:</strong><br />
Born 1955<br />
Married to husband, Rick Bartlett, since 1978<br />
<strong><br />
Interests:</strong><br />
Tennis; golf; bicycling; member of Northside Christian Church, New Albany, Indiana</p> Tricia Kirkby Hofmannhttp://www.wtshdlaw.com/site/attorneys/tricia-kirkby-hofmann.html2010-02-18T14:04:35ZMember<a href="mailto:thofmann@wtshdlaw.com">thofmann@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6049</strong></p>
<p> </p>
<p> </p>
<p><strong>Areas of Practice:</strong><br />
Insurance Coverage<br />
Insurance Defense<br />
Personal Injury Litigation<br />
Mold Litigation<br />
Construction Litigation<br />
<strong><br />
Bar Admissions:</strong><br />
Indiana, 1998<br />
U.S. District Court, Southern District of Indiana<br />
<br />
<strong>Education:</strong><br />
DePauw University (B.A., cum laude, 1992)<br />
The Ohio State University (M.A., 1994)<br />
Thomas M. Cooley Law School (J.D., cum laude, 1997)<br />
National Moot Court Team<br />
Associate Editor – Law Review<br />
<strong><br />
Professional Associations and Memberships:</strong><br />
Floyd County Bar Association (Secretary/Treasurer, 2000-2001; Vice-President, 2001- 2002; President, 2002-2003)<br />
Indiana State Bar Association<br />
Defense Trial Counsel of Indiana, Insurance Coverage Section</p>
<p>Floyd County Teen Court - Charter Attorney Advisor<br />
Alpha Chi Omega Social Fraternity<br />
<br />
<strong>Author:</strong><br />
“Vernonia School District 47J v. Acton: An Unacceptable Intrusion into Student Privacy,” 13 Cooley Law Rev. 643 (1996).<br />
<br />
<strong>Personal:</strong><br />
Born 1970<br />
Married to husband, John<br />
Children: Casey and Madison<br />
<br />
<strong>Interests:</strong><br />
Animal welfare issues, Michigan State football and basketball, gardening, cooking, genealogy, reading.</p> Les D. Merkleyhttp://www.wtshdlaw.com/site/attorneys/les-d-merkley.html2010-02-24T12:57:50ZAssociate<a href="mailto:lmerkley@wtshdlaw.com">lmerkley@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6050</strong></p>
<p><strong> </strong></p>
<p><strong>Areas of Practice:<br />
</strong>Family Law<br />
Municipal Law</p>
<p>Zoning & Planning<br />
<br />
<strong>Bar Admissions:<br />
</strong>Indiana, 1997</p>
<p>U.S. District Courts, Northern and Southern Districts of Indiana<br />
<br />
<strong>Education:<br />
</strong>Indiana University (B.A., 1991)<br />
Thomas M. Cooley Law School (J.D., 1997)<br />
<br />
<strong>Professional Associations and Memberships:<br />
</strong>Clark County Bar Association</p>
<p>Floyd County Bar Association</p>
<p>Indiana State Bar Association</p>
<p>Family and Juvenile Law Section, Indiana State Bar Association</p>
<p>Sherman Minton American Inn of Court</p>
<p>IU Southeast Alumni Board</p>
<p>Clark Co. Family Health Center Board</p>
<p>Floyd County Teen Court - Attorney Mentor/Advisor<br />
<br />
<strong>Personal:<br />
</strong>Born 1969<br />
<br />
<strong>Interests:<br />
</strong>The Green Bay Packers (Go! Pack! Go!), politics, history, fishing, cooking and country music.</p> Rodney L. Scotthttp://www.wtshdlaw.com/site/attorneys/rodney-l-scott.html2010-02-18T13:57:18ZMember<a href="mailto:rscott@wtshdlaw.com">rscott@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6044</strong></p>
<p> </p>
<p> </p>
<p><strong>Areas of Practice:</strong><br />
Commercial Litigation<br />
Personal Injury Litigation<br />
Insurance Litigation<br />
Arson and Fraud Investigation<br />
Estate Litigation<br />
<br />
<strong>Bar Admissions:</strong><br />
Indiana, 1989<br />
U.S. Court of Appeals, 7th Circuit<br />
U.S. District Courts, Northern and Southern Districts of Indiana<br />
<br />
<strong>Education:</strong><br />
Bob Jones University (B.A., cum laude, 1986)<br />
Indiana University (J.D., cum laude, 1989)<br />
<br />
<strong>Professional Associations and Memberships:</strong><br />
Indiana State and Floyd County Bar Associations<br />
Law Practice Management Committee, Indiana State Bar Association<br />
Indiana Arson and Crime Association<br />
National Society of Professional Investigators<br />
<br />
<strong>Honors:</strong><br />
Indiana “Super Lawyer” (2004, 2005)<br />
<br />
<strong>Speaker:</strong><br />
1993 CLE Seminar, “Good Faith Handling of Bad Faith and Punitive Damage Claims”<br />
1994 CLE Seminar, “Bad Faith Law in Indiana”<br />
1998 CPCU Society’s Annual Seminar<br />
2005 National Society of Professional Investigators Annual Seminar<br />
<br />
<strong>Instructor:</strong><br />
American Institute of Paralegal Studies<br />
Chartered Property and Casualty Underwriters Society<br />
<br />
<strong>Personal:</strong><br />
Born 1965<br />
Married to wife, Lisa<br />
Children: Meghan, Dalton, Emma, Katie, and Mackenna<br />
<br />
<strong>Interests:</strong><br />
Skiing; racquetball; driver and spectator at children’s baseball, soccer, volleyball, drama and other activities.</p> Chad M. Smithhttp://www.wtshdlaw.com/site/attorneys/chad-m-smith.html2010-02-18T14:07:09ZAssociate<a href="mailto:csmith@wtshdlaw.com">csmith@wtshdlaw.com</a>
<p><strong>Direct Dial:</strong> <strong>(812) 206-6051<br />
</strong><br />
<strong>Areas of Practice:</strong><br />
Insurance Litigation<br />
Personal Injury Litigation<br />
<strong><br />
Bar Admissions:</strong><br />
Kentucky, 2003</p>
<p>Indiana, 2006<br />
<br />
<strong>Education:</strong><br />
DePauw University (B.A., 2000)<br />
University of Louisville (J.D., 2003)<br />
<br />
<strong>Professional Associations and Memberships:</strong><br />
Indiana State Bar Association<br />
Kentucky Bar Association<br />
<br />
<strong>Personal:</strong><br />
Born 1978</p>
<p>Married to wife, Renee</p>
<p>Children: Samantha and Genevieve</p>
<p><br />
<strong>Interests:</strong><br />
Family, basketball, movies, games and college sports.</p> Scott L. Tylerhttp://www.wtshdlaw.com/site/attorneys/scott-l-tyler.html2010-02-18T14:09:39ZMember<a href="mailto:styler@wtshdlaw.com">styler@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6045</strong></p>
<p> </p>
<p><strong>Areas of Practice:</strong><br />
Motor Vehicle Accidents<br />
Premises Liability<br />
Construction Defects<br />
Trucking Accidents<br />
Fraud Litigation<br />
<br />
<strong>Bar Admissions:</strong><br />
Indiana, 1991; Kentucky, 1992<br />
U.S. District Courts, Southern District of Indiana and Western District of Kentucky <br />
<br />
<strong>Education:</strong><br />
Indiana University (B.A., 1988)<br />
Indiana University (J.D., 1991)<br />
National Moot Court Team<br />
<br />
<strong>Professional Associations and Memberships:</strong><br />
Floyd County Bar Association <br />
Louisville Bar Association<br />
Indiana State and Kentucky State Bar Associations</p>
<p>Sherman Minton American Inn of Court<br />
National Society of Professional Insurance Investigators <br />
New Albany Rotary Club</p>
<p>Floyd County Teen Court - Charter Attorney Advisor<br />
<br />
<strong>Speaker:</strong><br />
1998 CLE seminar, “Preparing Your First Personal Injury Case”<br />
2000 CPCU Society’s Annual Meeting<br />
<br />
<strong>Personal:</strong><br />
Born 1966<br />
Married to wife, Alison<br />
Children: Jack, Mitchell and Kate<br />
<br />
<strong>Interests:</strong><br />
Family and fun; running and resting; movies and mayhem; history and hi-jinks; technology and toys.</p> J. Scott Waters, IVhttp://www.wtshdlaw.com/site/attorneys/j-scott-waters-iv.html2010-02-18T14:14:08ZMember<a href="mailto:swaters@wtshdlaw.com">swaters@wtshdlaw.com</a>
<p><strong>Direct Dial: (812) 206-6047</strong></p>
<p> </p>
<p> </p>
<p><strong>Areas of Practice:</strong><br />
Estate<br />
Healthcare<br />
Real Estate<br />
Corporate<br />
Regulatory<br />
<br />
<strong>Bar Admissions:</strong><br />
Indiana, 1980; Texas, 1989; Kentucky, 1991<br />
U.S. District Court, Northern District of Indiana<br />
<br />
<strong>Education:</strong><br />
Purdue University (B.A., with distinction, 1976)<br />
Indiana University (J.D., 1980)<br />
<br />
<strong>Professional Associations and Memberships:</strong><br />
Floyd County Bar Association <br />
Indiana State and Kentucky State Bar Associations<br />
Southern Indiana Estate Planning Counsel (President, 2005-2006)<br />
American Health Lawyers Association (past three-term board member; past member of the Audit Committee)<br />
Board of Directors of Historic Locust Grove, Inc. (President, 2004-2008)<br />
<br />
<strong>Speaker:</strong><br />
Various estate planning seminars annually<br />
Multiple healthcare seminars annually<br />
Real Estate Certification Program<br />
<br />
<strong>Personal:</strong><br />
Born 1954<br />
Married to wife, Anne<br />
Children: Mallery, Megan, Michelle, and Molly<br />
<br />
<strong>Interests:</strong><br />
Family activities, kayaking and fishing on the Blue River, golf.</p>
Resourceshttp://www.wtshdlaw.com/2010-02-18T23:44:39ZSurviving Divorce Seminarhttp://www.wtshdlaw.com/site/resources/surviving-divorce-seminar.html2010-02-18T23:44:39Z
<p>Surviving divorce is a fear many people experience when contemplating divorce. The attorneys at Waters, Tyler, Scott, Hofmann & Doane, LLC understand the stress and emotions our clients go through.</p>
<p> </p>
<p>In order to help our clients navigate the divorce process, we have developed the seminar <strong><span style="color: rgb(204, 102, 0);">"Surviving Divorce: A guide to help you through an Indiana divorce."</span></strong><span style="color: rgb(204, 102, 0);"> </span> For information about attending the seminar, please call (812) 949-1114 and ask for Karla. </p>
<p> </p>
<p>We also make the seminar available on-line by doing the following:</p>
<ol>
<li><a href="/uploads/3/File/Surviving%20Divorce%20Guide.pdf">Download</a> the manual in PDF; and</li>
<li><a href="http://www.wtshdlaw.com/site/family-law-seminars/surviving-divorce.html">Listen</a> to the "Surviving Divorce" on-line seminar</li>
</ol>
<p> </p>
<p><img height="42" width="50" align="left" alt="" src="/uploads/3/Image/reader_icon_special.jpg" />To get the latest version of Adobe Reader, <a href="http://get.adobe.com/reader/">click here</a>. </p> Family Law Data Packshttp://www.wtshdlaw.com/site/resources/family-law-data-pack.html2010-02-18T11:28:14Z
<p>We use "Data Packs" to collect essential information from our potential divorce and family law clients. By downloading, printing and filing out these forms before your first appointment, you take an important first step toward being pro-actively involved in your case and, further you help reduce your legal costs.</p>
<p> </p>
<p>If you would prefer, we would be happy to sit down with you and fill out these forms with you, but you must understand that you will have to pay an attorney or a paralegal to do this for you. Wouldn't you rather do it yourself?</p>
<p> </p>
<p><img style="width: 63px; height: 52px" alt="Adobe Reader" align="left" width="76" height="63" src="http://wwwimages.adobe.com/www.adobe.com/products/acrobat/images/reader_icon_special.jpg" /></p>
<p>Before downloading, viewing and printing any of the following forms, you will need Adobe Reader installed on your computer. To obtain Adobe Reader, <a href="http://get.adobe.com/reader/">click here</a>.</p>
<p> </p>
<p>The Data Packs linked below are those currently available on-line. Others will be added in the future.</p>
<p> </p>
<h4><strong><span style="color: #cc6600">For marrired/previously married couples:</span></strong></h4>
<ul>
<li><a href="/uploads/3/File/Divorce%20Data%20Pack.pdf">Divorce Data Pack</a> and <a href="/uploads/3/File/Verified%20Financial%20Disclosure%20Statement.pdf">Verififed Financial Disclosure Statement</a></li>
<li><a href="/uploads/3/File/Post-Divorce%20Data%20Pack.pdf">Post-Divorce Data Pack</a></li>
<li><a href="/uploads/3/File/Visitation%20Custody%20(formerly%20married)%20Data%20Pack.pdf">Custody/Visitation Dispute Data Pack</a> (for previously married parents)</li>
</ul>
<h4><span style="color: #cc6600">For non-married parents of minor children:</span></h4>
<ul>
<li><a href="/uploads/3/File/Visitation%20Custody%20(never%20married%20parents)%20Data%20Pack.pdf">Child Custody/Visitation/Support Data Pack</a> (for non-married parents of minor children)</li>
</ul>
<h4><span style="color: #cc6600">For persons seeking appointment as custodian or guardian for a minor child:</span></h4>
<ul>
<li><a href="/uploads/3/File/Guardianship%20Data%20Pack.pdf">Guardianship of Minor Child Data Pack</a></li>
</ul>
<hr />
<p>NOTE: The act of completing and mailing in or delivering to this firm any Data Pack (or supporting documentation) does not establish an attorney-client relationship with Waters, Tyler, Scott, Hofmann & Doane, LLC. Such a relationship is created only when a written agreement has been entered into by you and our firm.</p>
<p> </p> Divorce Law Indianahttp://divorce-law-indiana.blogspot.com/2009-10-22T14:35:56ZIn our continued commitment to provide southern Indiana with honest, caring, affordable, quality family law services, Waters Tyler Scott Hofmann & Doane, LLC is proud to introduce the Divorce Law Indiana blog. This site is intended to provide helpful information about Indiana divorce law and family issues. Divorce Law Indiana is the first of its kind in southern Indiana in that it is devoted entirely to news, information, and analysis on divorce and family law in Indiana.
In our continued commitment to provide southern Indiana with honest, caring, affordable, quality family law services, Waters Tyler Scott Hofmann & Doane, LLC is proud to introduce the Divorce Law Indiana blog. This site is intended to provide helpful information about Indiana divorce law and family issues. Divorce Law Indiana is the first of its kind in southern Indiana in that it is devoted entirely to news, information, and analysis on divorce and family law in Indiana. Firm Happeningshttp://www.wtshdlaw.com/site/resources/newsletters.html2010-01-05T11:27:26Z
<div style="line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">
<div style="margin: 0in 0in 0pt"><span>
<div style="margin: 0in 0in 0pt"><span style="color: #1f497d"><font color="#000000">
<div style="line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt"><font color="#121212" face="Georgia">
<div><span style="line-height: 150%; font-size: 10pt">
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">The firm is pleased to announce the return of <b>Eric Eberwine</b> 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.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">At the same time, we must say farewell to litigation associate <b>George Budd</b>. George <span style="color: black">and his wife Tammy have</span>, 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.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">We also recently welcomed two new additions to our staff. <b>Mary Burch</b> joined the firm in October as a legal assistant. She will be working with <b>Ken Doane</b>, <b>Tricia Hofmann</b> and <b>Sandra Heeke</b>. <b>Jennifer Frasier</b> has just come on board as a new litigation paralegal, starting in December. We are excited to have both of them with us.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 0pt"><strong><span style="line-height: 150%; color: #121212; font-size: 10pt">Les Merkley, </span></strong><strong><span style="line-height: 150%; color: #121212; font-size: 10pt; font-weight: normal">who practices family law in our firm, </span></strong><span style="line-height: 150%; color: #121212; font-size: 10pt">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 <a href="http://divorce-law-indiana.blogspot.com/">click here</a>. 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.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"><b><span style="line-height: 150%; color: black; font-size: 10pt">Rodney</span></b><span style="line-height: 150%; color: black; font-size: 10pt"> and <b>Lisa Scott</b> 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. </span></div>
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><b><span style="line-height: 150%; font-size: 10pt">Jennifer Brown</span></b><span style="line-height: 150%; font-size: 10pt"> celebrated her ten-year anniversary with the firm in July. We are lucky to have her. Congratulations on the milestone, Jen! <strong>Teresa Summers </strong>is next in line with a big milestone anniversary, as she will have been here for five years in March of 2010.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">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. <b>Scott Tyler</b> and <b>Tricia Hofmann</b> have been working with Teen Court since its inception, presiding over trials and training the student participants. <b>Les Merkley</b> began actively participating in the program in May.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt"><b><span style="line-height: 150%; color: #121212; font-size: 10pt">Les Merkley</span></b><span style="line-height: 150%; color: #121212; font-size: 10pt"> 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.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt"><b><span style="line-height: 150%; color: #121212; font-size: 10pt">R</span></b><b><span style="line-height: 150%; color: black; font-size: 10pt">odney</span></b><span style="line-height: 150%; color: black; font-size: 10pt"> and <b>Lisa Scott</b> 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. </span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt"><span style="line-height: 150%; font-size: 10pt">The Executive Board of the Sherman Minton Inns of Court selected <b>Scott Tyler</b> 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. <b>Scott</b> is honored to have been chosen to lead the organization this year.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt"><b><span style="line-height: 150%; font-size: 10pt">Jennifer Brown</span></b><span style="line-height: 150%; font-size: 10pt"> is proud to announce that her daughter, Bayley, was accepted into the National Junior Honor Society at Clarksville Middle School. </span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"><b><span style="line-height: 150%; font-size: 10pt">Tricia Hofmann</span></b><span style="line-height: 150%; font-size: 10pt">’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.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"><b><span style="line-height: 150%; color: black; font-size: 10pt">Rodney</span></b><span style="line-height: 150%; color: black; font-size: 10pt"> and <b>Lisa Scott</b> 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.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"><span style="line-height: 150%; color: black; font-size: 10pt">
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt"><b><span style="line-height: 150%; font-size: 10pt">Scott Waters</span></b><span style="line-height: 150%; font-size: 10pt"> 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. </span></div>
</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 0pt"><strong><span style="line-height: 150%; color: #121212; font-size: 10pt">Les Merkley </span></strong><span style="line-height: 150%; color: #121212; font-size: 10pt">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.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><b><span style="line-height: 150%; font-size: 10pt">Chad Smith</span></b><span style="line-height: 150%; font-size: 10pt"> and <b>Jennifer Brown</b> won the first ever WTSHD cornhole tournament this summer. We are confident that competition will be fierce for bragging rights in the future.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"><b><span style="line-height: 150%; color: black; font-size: 10pt">Rodney</span></b><span style="line-height: 150%; color: black; font-size: 10pt"> and <b>Lisa Scott</b> 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. </span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"><span style="line-height: 150%; color: black; font-size: 10pt">
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt"><b><span style="line-height: 150%; font-size: 10pt">Scott</span></b><span style="line-height: 150%; font-size: 10pt"> and Anne <b>Waters</b>’ 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.</span></div>
</span></div>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 0pt"><b><span style="line-height: 150%; color: #121212; font-size: 10pt">Les Merkley</span></b><span style="line-height: 150%; color: #121212; font-size: 10pt"> was interviewed by Babble.com – an online parenting website – about the concept of “bird nesting.” It refers to a child custody arrangement where the divorced parents</span><span style="line-height: 150%; font-size: 10pt">, rather than the children, move in and out of the marital residence.</span></div>
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">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 – <b>Scott Waters</b>, <b>Scott Tyler</b>, <b>Rodney Scott</b>, <b>Tricia Hofmann</b> and <b>Ken Doane</b> – 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. </span></div>
<div style="text-align: justify; line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">Last, but not least, <b>WTSHD</b> is on facebook! If you are a regular on that site, please become our fan. We’d love to have you! </span></div>
</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
</font></span></div>
</font></span></div>
</span></div>
</span></div> Client Outcomeshttp://www.wtshdlaw.com/site/resources/client-outcomes.html2010-01-05T11:24:11Z
<div style="line-height: 150%; margin: 0in 0in 10pt"><font size="2">
<div style="line-height: 150%; margin: 0in 0in 10pt">
<div style="line-height: 150%; margin: 0in 0in 10pt"><font size="2">
<div style="line-height: 150%; margin: 0in 0in 10pt"><span>
<div style="line-height: 150%; margin: 0in 0in 10pt"><span><font color="#121212" face="Georgia"><span><font color="#121212" face="Georgia"><span><font color="#121212" face="Georgia"><strong>
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"> </div>
</strong></font></span><span><font color="#121212" face="Georgia">
<div style="line-height: 150%; margin: 0in 0in 10pt"><strong><span style="line-height: 150%; font-size: 10pt">Rodney Scott </span></strong><span style="line-height: 150%; font-size: 10pt">tried <i>Delaney v. Heady and Weiss</i> 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. <strong>Tricia Woods </strong>assisted greatly at the trial and in solving the “billed” vs. “paid” puzzle during trial. </span></div>
<div style="text-align: left; line-height: 150%; margin: 0in 0in 10pt; background: white"><strong><span style="line-height: 150%; color: black; font-size: 10pt">Scott Tyler </span></strong><span style="line-height: 150%; color: black; font-size: 10pt">and <strong>Tricia Hofmann </strong>secured the voluntary dismissal of a mortgagee’s claim in a fire loss case. In <i>Country Acreage v. Progressive</i>, 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.</span></div>
<div style="text-align: left; line-height: 150%; margin: 0in 0in 10pt; background: white"><strong><span style="line-height: 150%; font-size: 10pt">Rodney Scott</span><span style="line-height: 150%; font-size: 10pt"> </span></strong><span style="line-height: 150%; font-size: 10pt">participated in the trial defense of <i>Miller v. Southern Indiana Anesthesiology Consultants, Inc.</i> 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.</span></div>
<div style="text-align: left; line-height: 150%; margin: 0in 0in 10pt; background: white"><strong><span style="line-height: 150%; font-size: 10pt">Rodney Scott</span><span style="line-height: 150%; font-size: 10pt"> </span></strong><span style="line-height: 150%; font-size: 10pt">and <strong>Chad Smith </strong>tried <i>Rice v. Hancock</i> 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.</span></div>
<div style="text-align: left; line-height: 150%; margin: 0in 0in 10pt; background: white"><strong><span style="line-height: 150%; font-size: 10pt">Scott Tyler</span><span style="line-height: 150%; font-size: 10pt"> </span></strong><span style="line-height: 150%; font-size: 10pt">and <strong>Chad Smith </strong>tried <i>Jordan Miller v. Westfield Insurance Company</i> 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. </span></div>
<div style="text-align: left; line-height: 150%; margin: 0in 0in 10pt; background: white"><strong><span style="line-height: 150%; font-size: 10pt">Tricia Hofmann </span></strong><span style="line-height: 150%; font-size: 10pt">procured the voluntary dismissal of <i>Myers v. Thompson</i>, 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.</span></div>
<div style="text-align: left; line-height: 150%; margin: 0in 0in 10pt; background: white"><strong><span style="line-height: 150%; font-size: 10pt">Rodney Scott</span><span style="line-height: 150%; font-size: 10pt"> </span></strong><span style="line-height: 150%; font-size: 10pt">tried <i>Baer v. Lawson</i> 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.</span></div>
<div style="text-align: left; line-height: 150%; margin: 0in 0in 10pt; background: white"><span style="line-height: 150%; font-size: 10pt">
<div style="text-align: justify; line-height: 150%; margin: 0in 0in 10pt; background: white"><strong><span style="line-height: 150%; font-size: 10pt">Chad Smith </span></strong><span style="line-height: 150%; font-size: 10pt">secured an involuntary dismissal in <em>Murray v. Lights </em>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. </span></div>
</span></div>
<strong><span style="font-size: 10pt">Rodney Scott</span><span style="font-size: 10pt"> </span></strong><span style="font-size: 10pt">tried <i>Hendrix v. Olymco</i> 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. <strong>Tricia Woods </strong>assisted greatly before and during the trial. <b> </b></span><br />
</font></span></font></span></font></span></div>
</span></div>
</font></div>
</div>
</font>
<div style="line-height: 150%; margin: 0in 0in 10pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><strong><font size="2">THIS WEBSITE AND THE RESULTS DESCRIBED ABOVE ARE NOT INTENDED TO CONSTITUE AN ENDORSEMENT OF ANY PARTICULAR ATTORNEY OR CONSTITUTE A REPRESENTATION ABOUT THE QUALITY OF LEGAL SERVICES. ADDITIONALLY, WATERS, TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT CLAIM THAT PAST RESULTS PREDICT FUTURE SUCCESSES AND CANNOT WARRANT OR GUARANTEE RESULTS IN PENDING OR FUTURE CASES.</font> </strong></div>
</div>
<p><strong> </strong></p> Legal Updateshttp://www.wtshdlaw.com/site/resources/legal-updates.html2010-01-05T11:24:31Z
<blockquote>
<div style="line-height: 150%; margin: 0in 0in 0pt" align="left"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt">
<div style="text-align: center; line-height: 150%; margin: 0in 0in 0pt" align="center"><b><span style="line-height: 150%; font-size: 10pt">Expert Testimony Issues</span></b></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><u><span style="line-height: 150%; font-size: 10pt">Cox and Tube City, LLC v. Matthews</span></u><span style="line-height: 150%; font-size: 10pt">, 901 N.E.2d 14 (Ind. Ct. App. 2009).</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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.</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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.</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="text-align: center; line-height: 150%; margin: 0in 0in 0pt" align="center"><b><span style="line-height: 150%; font-size: 10pt">ACV and Replacement Cost Issues and Caps on Contractual Recoveries</span></b></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><u><span style="line-height: 150%; font-size: 10pt">Rockford Mutual Insurance Company v. Pirtle</span></u><span style="line-height: 150%; font-size: 10pt">, 911 N.E.2d 60 (Ind. Ct. App. 2009).</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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. </span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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. </span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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. </span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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.</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="text-align: center; line-height: 150%; margin: 0in 0in 0pt" align="center"><b><span style="line-height: 150%; font-size: 10pt">“Bodily Injury” and Bodily Touching Requirement</span></b></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><u><span style="line-height: 150%; font-size: 10pt">Bush and Bush v. State Farm Mutual Automobile Insurance Company</span></u><span style="line-height: 150%; font-size: 10pt">, 905 N.E.2d 1003 (Ind. 2009).</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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.</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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. </span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="line-height: 150%; font-size: 10pt">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. </span></div>
<p style="text-align: left">
<p> </p>
</p>
<p> </p>
</div>
</blockquote><blockquote><strong>THIS WEBSITE IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. WATERS, TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS STILL ACCURATE, COMPLETE OR CURRENT.</strong></blockquote> Featured Trial Reporthttp://www.wtshdlaw.com/site/resources/featured-trial-report.html2010-01-05T11:24:49Z
<div style="line-height: 16.5pt; margin: 0in 0in 0pt; background: white"><span style="color: #454545; font-size: 10pt">
<p><font color="#121212" face="Georgia"><strong>Caption: </strong>Tammy, Ryan and Kayla Cobb v. Bryan Scott Goodwin</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Cause Number: </strong>22C01-0707-CT-458</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Judge: </strong>Hon. J. Terrence Cody</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Carrier: </strong>Motorists Mutual Insurance Company</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Claim Representative: </strong>Tami Burgoyne</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Damages Awarded: </strong>None - Defense Verdict</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Incurred Medicals: </strong> $36,185.55</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Trial Attorneys: </strong>Tricia Kirkby Hofmann and George A. Budd</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Synopsis: </strong></font><font color="#121212" face="Georgia"> </font></p>
<div style="text-align: justify; margin: 0in 0in 10pt"><span style="line-height: 115%; font-size: 10pt">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.</span></div>
<div style="text-align: justify; margin: 0in 0in 10pt"><span style="line-height: 115%; font-size: 10pt">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.</span></div>
<div style="text-align: justify; margin: 0in 0in 10pt"><span style="line-height: 115%; font-size: 10pt">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.</span></div>
<div style="text-align: justify; margin: 0in 0in 10pt"><span style="line-height: 115%; font-size: 10pt">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.</span></div>
<div style="text-align: justify; margin: 0in 0in 10pt"><span style="line-height: 115%; font-size: 10pt">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.</span></div>
<p style="text-align: left"> <strong><font color="#121212" face="Georgia">THIS WEBSITE AND THE RESULTS DESCRIBED ABOVE ARE NOT INTENDED TO CONSTITUTE AN ENDORSEMENT OF ANY PARTICULAR ATTORNEY OR CONSTITUTE A REPRESENTATION ABOUT THE QUALITY OF LEGAL SERVICES. ADDITIONALLY, WATERS TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT CLAIM THAT PAST RESULTS PREDICT FUTURE SUCCESSES AND CANNOT WARRANT OR GUARANTEE RESULTS IN PENDING OR FUTURE CASES. </font></strong> </p>
<div style="line-height: 150%; margin: 0in 0in 10pt"> </div>
</span></div> Summer 2009 Newsletterhttp://www.wtshdlaw.com/site/resources/summer-2009-newsletter.html2010-01-05T09:39:44Z
<p> </p>
<p><strong><span style="line-height: 150%; font-size: 10pt">Firm Happenings</span></strong></p>
<div> </div>
<div><span style="line-height: 150%; font-size: 10pt">On December 4, 2008, our firm celebrated ten years of service at a client reception and holiday party with approximately two hundred clients. We value our clients, and are proud to have developed such positive, long-standing relationships. </span></div>
<div style="line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">We also held our biannual insurance litigation seminar on December 4, 2008, which drew insurance professionals from Evansville to Cincinnati to Indianapolis. </span><span style="line-height: 150%; color: black; font-size: 10pt">Bill Smock, a nationally-recognized forensic doctor, headlined the seminar with a lecture on biomechanical investigations of automobile accidents. Michael Barnes, an accident reconstruction expert with Crashteams, also presented information about 3-D graphic animations of such accidents. <b>Scott Tyler</b> and <b>Tricia Hofmann</b> also presented legal materials at the seminar. <b>Rodney Scott</b> and Matt Schad, a local accident attorney, participated in a mock debate.</span></div>
<div style="line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; color: black; font-size: 10pt">WTSHD, LLC takes a lot of pride in recognizing <b>Lisa Scott</b> for ten full years of service to the firm. We recognize her contributions to our success. </span></div>
<div style="line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">The firm family is excited to welcome its newest member, Kathleen Suzanne (“Kate”) Tyler, daughter of <b>Scott Tyler</b> and his wife Alison. Kate was born on December 19, and is beautiful and healthy. She joins proud big brothers Jack and Mitchell.</span></div>
<div style="line-height: 150%; margin: 12pt 0in 10pt"><b><span style="line-height: 150%; font-size: 10pt">George Budd</span></b><span style="line-height: 150%; font-size: 10pt"> is serving a one-year term as Vice President of the Floyd County Bar Association.</span></div>
<div style="line-height: 150%; margin: 12pt 0in 10pt"><span style="line-height: 150%; font-size: 10pt">Since our last newsletter,<b> Rodney Scott</b>,<b> Ken Doane </b>and<b> Tricia Hofmann</b> have participated in the “Talk to a Lawyer” program, which conducts a monthly phone bank to make referrals and answer simple legal questions on a pro bono basis. In 2008, the firm donated our former multi-line phone system to Legal Associates, which runs the “Talk to a Lawyer” program, to assist them in being better able to serve the public. </span></div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><span style="line-height: 150%; font-size: 10pt"> <b>Scott Tyler</b> served again this year as the Chair of the Rotary Club of New Albany Community Toast Ambassador Campaign. Scott’s Campaign Committee secured a record number of corporate sponsors for the event, the proceeds of which were shared equally by Rotary and Junior Achievement. For his efforts, Scott was awarded the Starfish Flinger Award by Junior Achievement.</span></div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><strong><span style="line-height: 150%; color: black; font-size: 10pt">Rodney</span></strong><span style="line-height: 150%; color: black; font-size: 10pt"> and <strong>Lisa Scott</strong> are pleased to announce that daughter Emmawas designated a National Merit Semifinalist this fall. Finalists will be selected in the spring. She also was selected to play the violin in the All-State Symphonic Orchestra. </span></div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><b><span style="line-height: 150%; color: black; font-size: 10pt">Rodney</span></b><span style="line-height: 150%; color: black; font-size: 10pt"> and <b>Lisa Scott</b> are also pleased to announce that daughter Meghan was awarded a scholarship from Ideal Beauty Academy for an essay she wrote about her chosen profession and future plans.</span></div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><span style="line-height: 150%; color: black; font-size: 10pt">The Floyd County Youth Services Bureau has recently instituted a new Teen Court program. According to the Bureau’s materials Teen Court is a deferral program for first-time juvenile offenders, who admit to misdemeanors and are sentenced to punishment by a jury of their peers. Since July, <b>Scott Tyler</b>, <b>Ken Doane</b> and <b>Tricia Hofmann</b> have served as the charter volunteer attorneys for the program. Scott, Ken and Tricia meet with the teen court participants two or three afternoons a month to train them in how to question witnesses, frame arguments, and fulfill their duties as jurors. After considerable training, Floyd County’s Teen Court conducted its first actual trial in December. It is expected that trials and training sessions will continue to occur at least twice a month for the foreseeable future.</span></div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><b><span style="line-height: 150%; color: black; font-size: 10pt">Tricia Hofmann</span></b><span style="line-height: 150%; color: black; font-size: 10pt"> is serving as room parent, a liaison between teachers, parents and board members, at her daughter Casey’s school, Hayfield Montessori School in Louisville. While drafting school directories and coordinating volunteer coverage has been within her comfort zone, she was considerably less at ease helping the preschoolers and kindergarteners with their glitter glue and paint.</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><b><span style="line-height: 150%; font-size: 10pt">Scott Tyler</span></b><span style="line-height: 150%; font-size: 10pt"> was selected by Westfield Insurance Company to represent the firm at its annual Defense Days on August 18th and 19<sup>th</sup> at its home office located in Westfield Center, Ohio. During Defense Days, Westfield recognized forty of its top attorneys and, in addition, Scott was one of only twelve attorneys selected to participate in Westfield’s Litigation Summit conducted before the start of Defense Days.</span></div>
<div style="line-height: 150%; margin: 0in 0in 0pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 0pt"><span style="font-size: larger"><span style="line-height: 150%">The firm remains committed to taking aggressive and proactive steps to reduce the size of its carbon footprint, as discussed in the Spring, 2008, issue of this newsletter. We have substantially reduced our use of paper, ink and waste. In that regard, we are grateful to our clients who assist us in this goal by accepting correspondence electronically or via fax. We continue to employ Shred-It, a paper-waste recycling business, to reclaim our used paper products. Shred-It has advised that we saved twenty-nine trees in 2008.</span></span></div>
<div> </div>
<div><strong><span style="line-height: 150%; font-size: 10pt">Client Outcomes</span></strong></div>
<div> </div>
<div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><font size="2">
<div style="line-height: 150%; margin: 0in 0in 10pt">
<div style="line-height: 150%; margin: 0in 0in 10pt"><font size="2">
<div style="line-height: 150%; margin: 0in 0in 10pt"><span>
<div style="line-height: 150%; margin: 0in 0in 10pt"><span><font color="#121212" face="Georgia"><strong>Rodney Scott, Rick Bartlett </strong>and<strong> Chad Smith</strong> all contributed to the dismissal of an adult wrongful death action filed by the non-custodial father acting as a personal representative of an Estate opened for that purpose by a Bloomington, Indiana law firm. To the father and law firm’s surprise, the 20 year-old decedent was a full-time student at Ivy Tech and, therefore, an adult wrongful death action was an inappropriate vehicle to seek recovery for her death. J. Scott Waters, IV, of our firm, was helping the residential and custodial mother with her plans for a memorial for her daughter when the mother learned of the lawsuit and her ex-husband’s intentions. We filed a motion to dismiss on her behalf. The Orange County Circuit Court granted the motion and permitted mother to file an intervening complaint against the tortfeasor and the ex-husband. The residential and custodial mother, therefore, will be able to proceed with her initial plans.</font></span></div>
<span><font color="#121212" face="Georgia">
<div><br />
<strong>Sandra Heeke </strong>and<strong> George Budd</strong> successfully defended the appeal of a summary judgment entered in favor of their client in <em>Wagner v. Yates</em>, 884 N.E.2d 331 (Ind. Ct. App. 2008). In this permissive use case, the Court of Appeals agreed that American Family – the Plaintiffs’ UIM carrier – was contractually entitled to set off not only the tortfeasor’s liability limits, but any UIM payments made by the Plaintiff’s employer’s insurer. Plaintiffs have since filed a petition to transfer this matter to the Indiana Supreme Court, which is currently pending.</div>
<div><br />
<strong>Rodney Scott</strong> tried a breach of contract and UCC action for Sellersburg Volunteer Fire Department against Shane Williams Enterprises, Inc., Wolverine Fire Apparatus and American Fire Apparatus in Clark Circuit Court in May of 2008. As it turned out, it was Judge Daniel F. Donahue’s last trial. Indeed, he signed the judgment entry on his last day on the bench. The dispute arose after Sellersburg VFD purchased a used ladder truck from the defendants. It was purchased to increase the ability and capacity to fight fires and decrease the community’s insurance ratings for premium purposes. As agreed, the fire truck was sold “as-is except for a pump test, ladder certification, pump cooler repair and a full complement of (USED) ground ladders (85’).” After delivery, Fire Chief Greg Dietz noted several defects and questioned whether the “ladder certification” was legitimate. He had the vehicle inspected by an independent testing company that concluded that it failed the certification standard in multiple respects. Rodney, on behalf of Sellersburg VFD, offered to rescind the transaction and return the truck. Defendants refused. Accordingly, Sellersburg VFD made the necessary repairs at the cost of $27,400. After a two day bench trial, the Judge granted Sellersburg Volunteer Fire Department its damages of $27,400 and ordered specific performance compelling the title transfer that had not yet occurred. Interestingly, the Judge also granted sanctions including mediation costs and attorney’s fees because Defendants failed to appear in person at the mediation without notifying Rodney, the mediator or the court. </div>
<div><br />
<strong>Ken Doane </strong>and <strong>George Budd</strong> successfully defended an appeal to the Indiana Court of Appeals in <em>McClanahan v. Mason</em>, 881 N.E.2d 103 (Ind. Ct. App. 2008). Previously, Rodney had defended the case at a jury trial and received a defense verdict. Plaintiff appealed the jury’s verdict and requested a new trial. The Court of Appeals held that the trial court’s admission of evidence of other post-accident claims Plaintiff pursued was harmless error. It further determined that the jury’s defense verdict was supported by sufficient evidence.</div>
<div><br />
<strong>Rodney Scott</strong> successfully mediated <em>Gentry v. Zingg</em> with Darryl Isaacs’ office. The injury claim was catastrophic. In addition to $134,000 in medical billings, Plaintiff had been unemployed since the date of the accident with no prospects of returning to his employment because of the significant and permanent injuries sustained in the accident. While Rodney’s client definitely had significant liability and damage exposure, he believed that it should be shared by Plaintiff and, most significantly, by Harrison County. Both parties had accident reconstructions performed which agreed that both Plaintiff and Defendant were across the centerline, that Defendant may have been 4 inches further across the centerline, that both Plaintiff and Defendant were about equal distances from their respective edges and that both vehicles were travelling within the speed limit. After the suit filing, Rodney asked the defense accident reconstructionist to revisit the scene and analyze the road design. The Defendant’s accident reconstructionist concluded that the maximum advisable speed for the roadway – based upon its design – was more in the range of 20 mph than the posted 55 mph limit. Additionally, the road lacked any necessary warnings or advisories to notify traffic of the narrowness of the roadway and the visibility limitations at the location of the accident. Harrison County, therefore, was named a non-party to the action and Rodney successfully argued that his 16 year-old client, in particular, needed warnings and advice about speed and visibility and that, as such, Harrison County bore at least 50% of the total fault, for settlement purposes, for the accident and the parties each bore no more than 25% of the fault. The case was settled within the insured’s available liability limits.</div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><br />
<strong>Ken Doane </strong>and<strong> George Budd</strong> received a favorable published opinion from the Indiana Court of Appeals in <em>Bailey v. State Farm Mut. Auto. Ins. Co.</em>, 881 N.E.2d 996 (Ind. Ct. App. 2008). Rodney Scott and Ken Doane had previously achieved a defense verdict at the trial court level for the client, State Farm, Plaintiff’s underinsured motorist (UIM) insurance carrier. By way of brief background, Caudill allowed Bailey to drive his car, and they were involved in a single-car accident. Both men were intoxicated. Bailey sued Caudill, who subsequently tendered his liability limits, and then pursued a UIM claim against State Farm. At trial, Plaintiff moved to amend his Complaint to add a claim of negligent entrustment. The trial court denied this motion and granted State Farm’s motion in limine on the same issue. After the jury entered a defense verdict, Plaintiff appealed. The Court of Appeals held, as a matter of first impression, that a voluntarily intoxicated adult (Bailey) does not have a right to maintain a first-party cause of action against the vehicle owner (Caudill) for negligently entrusting the vehicle to him. The Court of Appeals also held that the evidence at trial also failed to establish Caudill’s actual knowledge of Bailey’s intoxication. The defense verdict was upheld.</div>
<div style="line-height: 150%; margin: 0in 0in 10pt"> </div>
</font></span></span></div>
</font></div>
</div>
<div style="line-height: 150%; margin: 0in 0in 10pt"> </div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><span style="font-size: larger"><strong>Legal Updates</strong></span></div>
<div style="line-height: 150%; margin: 0in 0in 10pt">
<div style="line-height: 150%; margin: 0in 0in 0pt">
<p align="center"><span style="font-size: larger"><strong><font color="#121212" face="Georgia">INSURANCE CLAIM HANDLING</font></strong></span></p>
<p align="center"> </p>
<p style="text-align: left"><u><font color="#121212" face="Georgia">Insurer’s Post-Complaint Conduct Can Not Be Considered as Evidence of Bad Faith</font></u><font color="#121212" face="Georgia">.</font></p>
<p align="center"> </p>
<p style="text-align: left"><font color="#121212" face="Georgia">In <em>Allstate Insurance Company v. Fields</em>, 885 N.E.2d 728 (Ind. Ct. App. 2008), the insureds brought a UM claim against Allstate demanding the $50,000 limits. Allstate refused to make an offer until the insureds complied with the policy condition requiring them to complete medical/wage authorizations and Proof of Loss forms. The insureds ultimately provided executed authorizations, but no Proof of Loss forms. Allstate reiterated that no settlement offer would be made unless the insureds submitted the forms as required by the policy. The insureds sued Allstate for breach of contract and bad faith. </font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
During litigation, Allstate’s motion for partial summary judgment on the bad faith claim was denied. In addition, various discovery disputes erupted which ultimately resulted in a default judgment against Allstate on the bad faith claim. Allstate sought to appeal both decisions and was successful at the Indiana Court of Appeals. However, the decision was vacated by the Indiana Supreme Court, which held that an appeal was premature. The case was remanded and tried on the issue of damages only. At trial, the insureds argued that Allstate’s claims handling had caused Ted Fields to suffer two strokes, two heart attacks, and diabetes. The jury awarded the insureds $2 million compensatory damages and $18 million punitive damages (reduced to $6 million by the trial court per the statutory cap) and Allstate appealed.</font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
The Court of Appeals, for the second time, found in favor of Allstate and vacated the jury verdict. First, the Court limited its review to Allstate’s conduct before the bad faith claim was filed. Second, the Court concluded that there was no indication that Allstate caused an unfounded delay in making payment or acted with ill will or conscious wrongdoing by delaying payments until Fields complied with provisions of his policy or until Allstate could obtain complete medical and wage information to evaluate the claim. Accordingly, the Court remanded the case to the trial court with instructions to enter summary judgment in favor of Allstate on the bad faith claim. </font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
</font><u><font color="#121212" face="Georgia">Kentucky Drastically Alters Permissive Use Rules – Abandons Minor Deviation Rule for Initial Permission Standard</font></u><font color="#121212" face="Georgia">.</font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
The Kentucky Supreme Court issued an opinion in <em>Mitchell v. Allstate Insurance Company</em>, 244 S.W.3d 59 (Ky. 2008) which drastically altered the state’s rule in permissive use cases. In <em>Mitchell</em>, Rita allowed her friend Virginia to use her car, and Virginia in turn allowed her son Allan to use it to drive to and from work. There was conflicting testimony about whether Allan was allowed to ever use it for other purposes. One day, Allan picked up some friends and was involved in a single-vehicle accident, killing Allan and injuring his passengers.</font></p>
<p style="text-align: left"> </p>
<p style="text-align: left"><font color="#121212" face="Georgia">Allstate denied coverage for the loss, based on <em>Maryland Casualty Company v. Hassell</em>, 426 S.W.2d 133 (Ky. App. 1967), which adopted the “minor deviation” rule. Since Allan was not driving to or from work at the time of the accident, Allstate reasoned, he was outside the scope of permission, and not an insured. The trial court entered summary judgment for Allstate, which was affirmed by the Kentucky Court of Appeals. </font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
The Kentucky Supreme Court reversed. The <em>Mitchell </em>court agreed with <em>Hassell </em>insofar as it held that initial permission from an insured could either be express or implied. However, a majority of the court concluded that the “minor deviation” rule was not consistent with the goals of the Kentucky Motor Vehicle Reparations Act (“KMVRA”), which was not in existence when <em>Hassell </em>was decided. The majority noted that Kentucky courts interpret omnibus clauses broadly so as to maximize availability of liability insurance for the protection of the general public. Consistent with that interpretation, the five justices in the majority decided that the “initial permission” rule would better achieve the KMVRA’s goals of protecting innocent victims of auto accidents and speed up the recovery process.</font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
Under the “initial permission” rule, which is in use in a handful of other jurisdictions, as long as the insured initially affords permission to use an insured vehicle, any subsequent use of that vehicle will be covered, even if it is wholly outside the bounds of the contemplated use. As such, even if Rita expressly told Virginia not to let Allan drive the car at all, Allan would be an insured under the policy, as Rita gave permission to Virginia.</font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
There are two exceptions to the “initial permission” rule. If an individual’s use of a vehicle constitutes theft or conversion, he or she will not be an insured. According to the <em>Mitchell </em>majority, an individual is not a converter if he or she uses the vehicle “in the good faith belief that he is legally entitled to do so.” The second exception occurs if the operator uses a motor vehicle in a manner intending to injure others. Absent one of these two limited circumstances, any use of an insured vehicle will be found to be within the scope of the insured’s consent, rendering the operator an “insured” under the liability portion of the policy.</font></p>
<p align="center"><font color="#121212" face="Georgia"><br />
</font><strong><font color="#121212" face="Georgia">EVIDENCE</font></strong></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
<u>Vocational Expert’s Reliance on General Census Data Fails Daubert Evidentiary Standard</u>.</font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
The Indiana Court of Appeals ruled in <em>Kempf Contracting and Design, Inc. v. Holland-Tucker</em>, 892 N.E.2d 672 (Ind. Ct. App. 2008), that the trial court abused its discretion in permitting John Tierney, Vocational Economics, to testify regarding his opinions as to the reduction of plaintiff’s capacity to work and earn money after she was injured. In doing so, the Court found that plaintiff had failed to prove that Tierney’s methodology was scientifically reliable under Indiana Evidence Rule 702(b). At the trial, Tierney testified that plaintiff had sustained a physical disability as a result of the accident. To reach his conclusion, Tierney testified that he used the definition of physical disability found in the American Community Survey (which is conducted by the U.S. Census Bureau). He then reviewed compiled databases regarding the earning capacity of people with physical disability who have a bachelor’s degree, as does the plaintiff. However, he did not compare the data as to the plaintiff’s specific profession, nor the plaintiff’s specific disability. Tierney testified this methodology was well known in the vocational field. However, since Tierney did not provide any support for this claim, the Court of Appeals held that such a statement was insufficient to show that the methodology was reliable, and therefore, the testimony should have been excluded.</font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
<u>Third-Party Carrier Has No Duty to Preserve Evidence Which Has No Foreseeable Evidentiary Value</u>. </font></p>
<p style="text-align: left"> </p>
<p style="text-align: left"><font color="#121212" face="Georgia">Insurance carrier can have a duty to a third party claimant to preserve evidence. The Indiana Court of Appeals in <em>ANPAC v. Wilmoth and Sharpe and Bowers</em>, 893 N.E.2d 1068 (Ind. Ct. App. 2008), explained that, in order to determine whether an insurer has a duty to a third party claimant, courts must analyze the relationship of the parties, the foreseeability of the harm and the public policy behind enforcing a duty. </font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
Wilmoth and Rider lived in a house rented from the Bowers and insured by ANPAC. The house was destroyed by fire, and Rider died as a result of the fire. The firefighters threw several items out of the house, including a couch, which remained on site for approximately six weeks. The Bowers eventually threw the items away, including the couch. The firefighters determined the fire was accidental and originated from an electric space heater. Later, plaintiffs’ expert believed the fire started in the area of the sofa. Plaintiffs sued ANPAC under a spoliation theory for allowing the couch to be destroyed. The trial court denied ANPAC’s summary judgment motion, and the Court of Appeals reversed.</font></p>
<p style="text-align: left"><font color="#121212" face="Georgia"><br />
The Court of Appeals first found that ANPAC had no contractual relationship with Wilmoth or Sharpe, and, further, never had possession of the couch. Indeed, it was the owner who threw out the couch. Notwithstanding the lack of any special relationship, the Court found that an insurer can have a relationship to a third-party sufficient to allow a spoliation theory to proceed if the insurer takes possession of items that will be key to litigation if a claim is denied. The Court also denied ANPAC’s invitation to hold an insurer can never owe a third party a duty to preserve evidence not in its exclusive control. Rather, the Court concluded that ANPAC did not owe a duty to Wilmoth and Sharpe since the couch had no forseeable evidentiary value.</font></p>
<p style="text-align: left"> </p>
<p style="text-align: left"><u><font color="#121212" face="Georgia">First-Party Cause of Action for Negligent Entrustment Rejected</font></u><font color="#121212" face="Georgia">.</font></p>
<p style="text-align: left"> </p>
<p style="text-align: left"><em><font color="#121212" face="Georgia">Bailey v. State Farm Mut. Auto. Ins. Co.</font></em><font color="#121212" face="Georgia">, 881 N.E.2d 996 (Ind. Ct. App. 2008), involved a claim for underinsured motorist benefits. Caudill allowed Bailey to drive his car, and they were involved in a single-car accident in which Bailey sustained serious injuries. Both were intoxicated. Bailey sued Caudill, who subsequently tendered his liability limits, and then pursued a UIM claim against State Farm. At trial, Bailey moved to amend his Complaint to add a claim of first-party negligent entrustment. The trial court denied this motion and granted State Farm’s motion in limine on the same issue. After the jury entered a defense verdict, Plaintiff appealed. We are proud to note that Rodney Scott and Ken Doane tried the case on behalf of State Farm.</font></p>
<p style="text-align: left"> </p>
<p style="text-align: left"><font color="#121212" face="Georgia">The Court of Appeals held, as a matter of first impression, that a voluntarily intoxicated adult (Bailey) does not have a right to maintain a first-party cause of action against the vehicle owner (Caudill) for negligently entrusting the vehicle to him. The Court of Appeals also held that the evidence at trial also failed to establish Caudill’s actual knowledge of Bailey’s intoxication. The defense verdict was upheld.<br />
</font></p>
<font color="#121212" face="Georgia"><font color="#121212" face="Georgia"><font color="#121212" face="Georgia">
<p> <strong>THIS WEBSITE IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. WATERS, TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS STILL ACCURATE, COMPLETE OR CURRENT.</strong></p>
<p> </p>
</font></font></font></div>
</div>
<div style="line-height: 150%; margin: 0in 0in 10pt"><span style="font-size: larger"><strong> Featured Trial Report</strong></span></div>
<div style="line-height: 150%; margin: 0in 0in 10pt">
<div style="line-height: 16.5pt; margin: 0in 0in 0pt; background: white"><span style="color: #454545; font-size: 10pt">
<p><font color="#121212" face="Georgia"><strong>Caption: </strong>Raymond Joseph Charles Van Riper vs. Anthony Sharpe</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Cause Number: </strong>22C01-0610-CT-669</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Judge: </strong>Hon. J. Terrence Cody</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Carrier: </strong>American National Property & Casualty Company</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Claim Representative: </strong>Jack Carter</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Damages Awarded: </strong>None - Defense Verdict</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Incurred Medicals: </strong> $123,396.51</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Trial Attorneys: </strong>Sandra L. Heeke and Rodney L. Scott</font></p>
<p><font color="#121212" face="Georgia"><strong><br />
Synopsis: </strong>This lawsuit arose from an injury suffered by the Plaintiff while he and the Defendant were operating a compound miter saw. On the day of the accident, the Plaintiff, who is the step-son of the Defendant, asked the Defendant to come over and help cut some stakes for a project. The Defendant was being instructed on the location of the power switch when he inadvertently turned on the power saw. Unfortunately, at that same time, the Plaintiff had placed his hand under the saw blade to position the wood in order to go ahead and cut the wood stake himself. The Plaintiff is legally blind and was not aware that the Defendant was going to turn on the saw. The parties disputed how the energized saw blade was lowered into position to cut. The saw blade cut the Plaintiff’s right ring finger completely and significantly tore and damaged his right long finger.<strong> <br />
</strong></font></p>
<p> </p>
<p><font color="#121212" face="Georgia">The Defendant denied liability in this case. The Plaintiff insisted that the Defendant was more at fault in causing this accident and pursued forward with the lawsuit. Experts were employed to discuss proper and safe handling of the saws. Upon Motions in Limine, the Judge severely restricted their testimony. Accordingly, both parties decided to try the case without the liability experts. <br />
</font></p>
<p><font color="#121212" face="Georgia">The Plaintiff emphasized the severity of his injuries through the primary treating surgeon, Dr. Tien, of the well-known hand surgery center, Kutz & Kleinert. Dr. Tien re-attached the two fingers but indicated Plaintiff would have permanent functional problems in the fingers and hand. He assigned an 8% whole person permanent impairment rating. </font></p>
<p><font color="#121212" face="Georgia"><br />
The evidence regarding the amount of medicals billed versus the amounts paid was a critical factor in this case, as there were substantial insurance adjustments. Indeed, only approximately $20,000.00 was actually paid toward those bills. As described in the “Our Perspective” column of our Spring 2008 firm newsletter, Indiana law on which figure to introduce is currently unsettled. The Defendant vigorously argued that the amounts paid should be the sole evidence of medicals submitted to the jury. On the other hand, the Plaintiff argued that the evidence should solely be the medicals billed. The Judge initially ruled that both amounts would be submitted to the jury. During trial, however, Plaintiff elected to seek just the amounts actually paid. </font></p>
<p><font color="#121212" face="Georgia"><br />
The jury returned a verdict assigning 80% fault to the Plaintiff and 20% fault to the Defendant. Under Indiana’s Comparative Fault Act, the Defendant owed no money to the Plaintiff. <strong> </strong></font></p>
<p> </p>
<font color="#121212" face="Georgia">
<div style="line-height: 150%; margin: 0in 0in 10pt"><strong><font size="2">THIS WEBSITE AND THE RESULTS DESCRIBED ABOVE ARE NOT INTENDED TO CONSTITUE AN ENDORSEMENT OF ANY PARTICULAR ATTORNEY OR CONSTITUTE A REPRESENTATION ABOUT THE QUALITY OF LEGAL SERVICES. ADDITIONALLY, WATERS, TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT CLAIM THAT PAST RESULTS PREDICT FUTURE SUCCESSES AND CANNOT WARRANT OR GUARANTEE RESULTS IN PENDING OR FUTURE CASES.</font> </strong></div>
</font></span></div>
</div>
</font></div>
</div>
<div> </div>
<div> </div>
<div> </div>
<div> </div>
<div> </div>
<div> </div>
<div> </div> Summer 2008 Newsletterhttp://www.wtshdlaw.com/site/resources/summer-2008-newsletter.html2009-02-06T10:52:14Z
<div style="BORDER-RIGHT: rgb(141,46,24) 2px solid; PADDING-RIGHT: 6px; BORDER-TOP: rgb(141,46,24) 2px solid; PADDING-LEFT: 6px; FONT-SIZE: 11px; BACKGROUND: rgb(241,235,218) 0% 50%; FLOAT: right; PADDING-BOTTOM: 1px; MARGIN: 0px 0px 0px 16px; BORDER-LEFT: rgb(141,46,24) 2px solid; WIDTH: 130px; LINE-HEIGHT: 21px; PADDING-TOP: 1px; BORDER-BOTTOM: rgb(141,46,24) 2px solid; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><strong>Contents:</strong><br />
<ul style="FONT-SIZE: 11px; MARGIN: 0px 0px 10px 10px">
<li><a href="#firm-happenings">Firm Happenings</a> </li>
<li><a href="#client-outcomes">Client Outcomes</a> </li>
<li><a href="#legal-updates">Legal Updates</a> </li>
<li><a href="#our-perspective">Our Perspective</a> </li>
<li><a href="#featured-trial-report">Featured Trial Report</a> </li>
</ul>
</div>
<h2><a name="firm-happenings"></a>Firm Happenings</h2>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">
<div style="MARGIN: 0in 0in 0pt"><span style="COLOR: rgb(31,73,125)"><font color="#000000">
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">As you know, in March the firm reorganized and began operating under a new name: <strong>Waters, Tyler, Scott, Hofmann & Doane, LLC</strong>. We are excited about the new incarnation of our firm, and the services we can provide for our clients.</span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In that regard, we are pleased to announce four new members of our firm family. <strong>Chad Smith</strong> joined the firm as a litigation associate in February. Chad is licensed in both Indiana and Kentucky, and came to us from the Jefferson County (Kentucky) County Attorney’s office, where he prosecuted misdemeanor criminal offenses. </span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Karla Edelen</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> came to us as a legal assistant in May. Karla has considerable experience as a business legal assistant, and is presently pursuing an associate's degree in paralegal studies. She will be working with <strong>George Budd</strong>. </span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">On July 1, <strong>Les Merkley</strong> joined our firm as an Associate. Les has operated in private practice in Jeffersonville, Indiana, since 1997, practicing primarily in the areas of family law, municipal law and zoning. We are excited about the depth his expertise brings to our firm’s practice areas. Les was accompanied by former legal assistant, <strong>Amanda Due</strong>, who is serving as a paralegal in the firm’s business practice. We are happy to have these four great people aboard.</span></div>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Scott Tyler</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> attended an Advanced Insurance Fraud Seminar in Indianapolis conducted by the National Society of Insurance Investigators. Topics included forensic accounting; body language and voice analysis; and criminal and civil arson</span>.</div>
<div style="BACKGROUND: white; MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">Rodney Scott</span></strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%"> presented a legal update to the physicians and administration at Floyd Memorial Hospital on medical malpractice issues and legal updates on April 15, 2008.</span></div>
<div style="BACKGROUND: white; MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%"><strong>George Budd</strong> is excited to announce his engagement to Tammy Ray, an emergency room physician at Jewish Hospital South in Louisville. No date has been set as of yet. The whole firm wishes George and Tammy a heartfelt congratulations!</span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Scott Tyler, Rodney Scott </span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">and<strong> Tricia Hofmann</strong> each recently participated in the “Talk to a Lawyer” program, which conducts a monthly phone bank to make referrals and answer simple legal questions on a pro bono basis. In addition, the firm donated our former multi-line phone system to Legal Associates, which runs the “Talk to a Lawyer” program, to assist them in being better able to serve the public. </span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Sandra Heeke</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> is part of a competitive adult United States Tennis Association league team consisting of 18 women from the Louisville area. The team plays three courts of doubles and two courts of singles. She typically plays number one court doubles. The team plays matches throughout the winter. Sandy’s team recently qualified for the Kentucky State tennis tournament, beating out approximately 35 other teams. At the State tournament, Sandy and her partner won all three of their matches, and came within one tie-break point of advancing to the State semi-finals. Congratulations, Sandy! </span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Scott Waters</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> is proud to announce that his daughter Megan Waters was married on May 17, 2008. Megan is a recent graduate of Cedarville University. Scott and his wife Anne have three other daughters, Mallery, Michelle and Molly.</span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Tricia Hofmann</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> and her husband, John, together with <strong>Rodney</strong> and <strong>Lisa Scott</strong>, attended the annual FurBall in Louisville in February. The FurBall is a fundraising event and awards ceremony conducted by Pet Groups United, a non-profit association of pet rescue and animal welfare organizations in the Greater Louisville metropolitan area. More information can be found about Pet Groups United at its website: <a href="http://www.petgroupsunited.com/"><font color="#800080">http://www.petgroupsunited.com</font></a>. </span></div>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Scott Tyler</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> served on the Grants Committee of the Community Foundation of Southern Indiana and assisted in the selection of organizations which will receive grants in excess of $50,000 for local community projects. </span></div>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">George Budd</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> will soon be completing his term as Secretary/Treasurer of the Floyd County Bar Association. It is anticipated that he will be nominated for Vice President of the organization at its July meeting.</span></div>
</span></div>
<div style="BACKGROUND: white; MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">Rodney </span></strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">and<strong> Lisa Scott</strong> and their family again spent this spring following daughter Emma’s travelling soccer team - Mockingbird Soccer Club - "92 Girls at</span><span style="FONT-SIZE: 10pt; COLOR: rgb(69,69,69); LINE-HEIGHT: 150%"> <a href="http://eteamz.active.com/mvscg13/"><span style="COLOR: purple">http://eteamz.active.com/mvscg13/</span></a>. </span><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">Emma's team won the Kentucky State Cup for the third straight year and qualified for the Regional Championships in Rockport, Illinois. Emma was the team captain. </span></div>
<div style="BACKGROUND: white; MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">Rodney</span></strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%"> and <strong>Lisa Scott</strong> are also pleased to announce that Emma was selected to participate in the Kentucky Governor’s Scholar Program this summer. She will spend five weeks at Morehead State University studying a variety of subjects with an emphasis in music theory. She will then enter her senior year pre-qualified for scholarships at several Kentucky schools.</span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Rick Bartlett</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> recently served as Chairman of the Boys Scouts of America, Clark County, Indiana campaign. The effort concluded with a luncheon at Papa John’s Cardinal stadium. Other firm members attending the fund raiser were <strong>Sandra Heeke</strong>, <strong>Ken Doane</strong> and <strong>Scott Waters</strong> (himself a former eagle scout).</span></div>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Scott Tyler</span></strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> served as Ambassador Campaign Chair of the 14<sup>th</sup> Annual Rotary Community Toast and Benefit Banquet honoring long-time community activist Robert Kleehammer. The Ambassador Campaign generated a record number of the Gold Sponsors for the event and attendance exceeded four hundred. The proceeds will benefit the new downtown New Albany YMCA and Rotary Club of New Albany.</span></div>
<div style="BACKGROUND: white; MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">Rodney</span></strong><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%"> and <strong>Lisa Scott</strong> are proud to announce that their son, Dalton Fitzgerald, graduated with a Core 40 diploma from Clarksville High School. He also played baseball for Clarksville and was one of two senior captains. He led the team in batting average while playing shortstop. He also was named the offensive player of the year. </span></div>
<span style="FONT-SIZE: 10pt">The firm is committed to taking aggressive and proactive steps to reduce the size of its carbon footprint. To that end, last year the firm adopted a “paper-less” system, which employs scanning documents and forwarding documents via e-mail and on-line fax, with substantially fewer paper documents ever generated in the process. This saves considerable paper and toner, and reduces waste. In addition, the firm contracts with Shred-It, a paper-waste recycling business. Virtually all the firm’s paper products are now recycled, and we are proud to report that Shred-It has advised that as of May, 2008, we have saved a total of twelve trees so far this year with our recycling efforts. In 2007, before we operated in a substantially paperless environment, we saved forty-seven trees.</span></font></span></div>
</span></div>
<br />
<h2><a name="client-outcomes"></a>Client Outcomes</h2>
<br />
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><font size="2"></font>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%">
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><font size="2"><font size="2"></font></font>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><span>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><span><font size="2"><font size="2"><strong>Ken Doane </strong>and<strong> George Budd</strong> received a favorable published opinion from the Indiana Court of Appeals in <em>Bailey v. State Farm Mut. Auto. Ins. Co., </em>881 N.E.2d 996 (Ind. Ct. App. 2008). <strong>Rodney Scott </strong>and<strong> Ken Doane</strong> secured a defense verdict at the trial court level for the client, State Farm, Plaintiff’s underinsured motorist (UIM) insurance carrier. By way of brief background, Caudill allowed Bailey to drive his car, and they were involved in a single-car accident. Both men were intoxicated. Bailey sued Caudill, who subsequently tendered his liability limits, and then pursued a UIM claim against State Farm. At trial, Plaintiff moved to amend his Complaint to add a claim of negligent entrustment. The trial court denied this motion and granted State Farm’s motion in limine on the same issue. After the jury entered a defense verdict, Plaintiff appealed. The Court of Appeals held, as a matter of first impression, that a voluntarily intoxicated adult (Bailey) does not have a right to maintain a first-party cause of action against the vehicle owner (Caudill) for negligently entrusting the vehicle to him. The Court of Appeals also held that the evidence at trial also failed to establish Caudill’s actual knowledge of Bailey’s intoxication. The defense verdict was upheld.</font></font></span></div>
<font size="2"><font size="2"><strong>Rodney Scott</strong>, <strong>Rick Bartlett</strong> and <strong>Chad Smith</strong> all contributed to the dismissal of an adult wrongful death action filed by the non-custodial father acting as a personal representative of an Estate opened for that purpose by a personal injury law firm. To the father and law firm’s surprise, the 20 year-old decedent was a full-time student at Ivy Tech and, therefore, an adult wrongful death action was an inappropriate vehicle to seek recovery for her death. <strong>J. Scott Waters, IV</strong>, of our firm, was helping the residential and custodial mother with her plans for a memorial for her daughter when the mother learned of the lawsuit and her ex-husband’s intentions. We filed a motion to dismiss on her behalf. The Orange County Circuit Court granted the motion and permitted mother to file an intervening complaint against the tortfeasor and the ex-husband. The residential and custodial mother, therefore, should be able to proceed with her initial plans.</font></font></span></div>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><span><font size="2"><font size="2"><strong>Sandra Heeke</strong> and <strong>George Budd</strong> successfully defended the appeal of a summary judgment entered in favor of their client in <em>Wagner v. Yates</em>, 884 N.E.2d 331 (Ind. Ct. App. 2008). In this permissive use case, the Court of Appeals agreed that American Family – the Plaintiffs’ UIM carrier – was contractually entitled to set off not only the tortfeasor’s liability limits, but any UIM payments made by the Plaintiff’s employer’s insurer. Plaintiffs have since filed a petition to transfer this matter to the Indiana Supreme Court, which is currently pending.</font></font></span></div>
<div style="BACKGROUND: white; MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><span><font size="2"><font size="2"><strong>Rodney Scott </strong>helped Floyd Memorial Hospital defend a malpractice complaint before a Medical Review Panel. The unanimous opinion of the panel was that the evidence did not support the conclusion that Floyd Memorial Hospital breached the standard of care owed to the patient and further opined that Floyd Memorial's conduct was not a factor in the injuries and damages complained of by the Plaintiff.</font></font></span></div>
<div style="BACKGROUND: white; MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><span><font size="2"><font size="2"><strong>Rodney Scott</strong> tried a breach of contract and UCC action for Sellersburg Volunteer Fire Department against Shane Williams Enterprises, Inc., Wolverine Fire Apparatus and American Fire Apparatus in Clark Circuit Court in May of 2008. As it turned out, it was Judge Daniel F. Donahue’s last trial. Indeed, he signed the judgment entry on his last day on the bench. The dispute arose after Sellersburg VFD purchased a used ladder truck from the defendants. </font></font></span><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"><font size="2"><font size="2">It was purchased to increase the ability and capacity to fight fires and decrease the community’s insurance ratings for premium purposes.</font></font></span><font size="2"><font size="2"> <span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"> As agreed, the fire truck was sold “as-is except for a pump test, ladder certification, pump cooler repair and a full complement of (USED) ground ladders (85’).” </span><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">After delivery, Fire Chief Greg Dietz noted several defects and questioned whether the “ladder certification” was legitimate. He had the vehicle inspected by an independent testing company that concluded that it failed the certification standard in multiple respects. Rodney, on behalf of Sellersburg VFD, offered to rescind the transaction and return the truck. Defendants refused. Accordingly, Sellersburg VFD made the necessary repairs at the cost of $27,400. After a two day bench trial, the Judge granted Sellersburg Volunteer Fire Department its damages of $27,400 and ordered specific performance compelling the title transfer that had not yet occurred. Interestingly, the Judge also granted sanctions including mediation costs and attorney’s fees because Defendants failed to appear in person at the mediation without notifying Rodney, the mediator or the court. </span></font></font></div>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><span><font size="2"><font size="2"><strong>Ken Doane</strong> and <strong>George Budd</strong> successfully defended an appeal to the Indiana Court of Appeals in <em>McClanahan v. Mason</em>, 881 N.E.2d 103 (Ind. Ct. App. 2008). Previously, <strong>Rodney Scott</strong> had defended the case at trial and the jury returned a defense verdict. Plaintiff appealed the jury’s verdict and requested a new trial. The Court of Appeals held that the evidentiary issues claimed by Plaintiff's counsel were, at most, harmless error. It further determined that the jury’s defense verdict based exclusively upon Plaintiff's failure to meet his burden of persuasion on the medical causation issue was justified by the evidence.</font></font></span></div>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><span><font size="2"><font size="2"><strong>Rodney Scott</strong> successfully mediated <em>Gentry v. Zingg. </em> The injury claim was catastrophic. In addition to $134,000 in medical billings, Plaintiff had been unemployed since the date of the accident with no prospects of returning to his employment because of the significant and permanent injuries sustained in the accident. While Rodney’s client definitely had significant liability and damage exposure, he believed that it should be shared by Plaintiff and, most significantly, by Harrison County. Both parties had accident reconstructions performed which agreed that both Plaintiff and Defendant were across the centerline, that Defendant may have been 4 inches further across the centerline, that both Plaintiff and Defendant were about equal distances from their respective edges and that both vehicles were travelling within the speed limit. After the suit filing, Rodney asked the defense accident reconstructionist to revisit the scene and analyze the road design. The Defendant’s accident reconstructionist concluded that the maximum advisable speed for the roadway – based upon its design – was more in the range of 20 mph than the posted 55 mph limit. Additionally, the road lacked any necessary warnings or advisories</font></font></span><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"><font size="2"><font size="2">to notify traffic of the narrowness of the roadway and the visibility limitations at the location of the accident.<span style="COLOR: black"> Harrison County, therefore, was named a non-party to the action and Rodney successfully argued that his 16 year-old client, in particular, needed warnings and advice about speed and visibility and that, as such, Harrison County bore at least 50% of the total fault, for settlement purposes, for the accident and the parties each bore no more than 25% of the fault. </span>The case was settled well within the insured’s available liability limits.</font></font></span></div>
<font size="2"><font size="2"></font></font></div>
</div>
<font size="2"></font>
<div style="MARGIN: 0in 0in 10pt; LINE-HEIGHT: 150%"><strong><font size="2"></font></strong></div>
<strong><font size="2">THIS WEBSITE AND THE RESULTS DESCRIBED ABOVE ARE NOT INTENDED TO CONSTITUE AN ENDORSEMENT OF ANY PARTICULAR ATTORNEY OR CONSTITUTE A REPRESENTATION ABOUT THE QUALITY OF LEGAL SERVICES. ADDITIONALLY, WATERS, TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT CLAIM THAT PAST RESULTS PREDICT FUTURE SUCCESSES AND CANNOT WARRANT OR GUARANTEE RESULTS IN PENDING OR FUTURE CASES.</font> </strong></div>
<p><strong> </strong></p>
<h2><a name="legal-updates"></a>Legal Updates</h2>
<blockquote>
<div style="MARGIN: 0in 0in 0pt; LINE-HEIGHT: 150%" align="left">Submitted by George Budd and Chad Smith</div>
<div style="MARGIN: 0in 0in 0pt; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%" align="center"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">CLAIM HANDLING</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%" align="center"><strong> </strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Reciprocity required for trigger of IC 27-7-5-6 thirty-day deadline to advance funds</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong> </strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>Hornberger v. Farm Bureau Insurance</u>, 868 N.E.2d 1149 (Ind. Ct. App. 2007), a Farm Bureau insured, Brewington, was struck by Hornberger, an insured of Citizens Insurance Company. On November 13, 2003, Citizens informed Brewington and Farm Bureau of its intentions to make a policy limits offer and provided a copy of the policy coverage limits as required by I.C. 27-7-5-6. Brewington refused the offer due to the contingency that he accept 50% fault for the accident. Nonetheless, Farm Bureau notified Brewington of its intention to advance the money and reserve its subrogation rights against the tortfeasor, Hornberger.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">On March 23, 2004 Brewington decided to accept Citizens’ offer, and advised Farm Bureau. On April 2, 2004 Farm Bureau advanced payment to Brewington. After suit was filed, Hornberger moved for summary judgment on the grounds that Farm Bureau had waived its subrogation rights by failing to advance the money within thirty days of the initial offer, conveyed on November 13, 2003. The trial court denied his motion.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Indiana Court of Appeals affirmed. In doing so, the Court concluded that Hornberger’s argument – that only the fact of an offer and proof of policy limits is necessary to trigger the statutory thirty-day period – was against the clear language of the statute. The Court determined that the thirty-day period does not been to run until there is clear evidence of a reciprocal agreement between the tortfeasor and the insured plaintiff to settle for the tortfeasor’s liability limits. There was no reciprocity in November of 2003, as Brewington did not consent to the settlement terms. Farm Bureau’s deadline to advance funds did not expire until April 22, 2004, after it had tendered payment. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">As a practical matter, when notifying UIM carriers of a limits tender, insurers must be careful to clearly demonstrate the plaintiff’s willingness to accept the offer and release the tortfeasor. It would be helpful to secure written confirmation of such agreement from plaintiff’s counsel. If this is not possible, the notice should clearly indicate that plaintiff’s counsel has expressed a willingness to accept the funds, and copy plaintiff’s counsel on the letter. Without evidence of such reciprocity, notice of a limits tender will not trigger the thirty-day period established by the statute.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong> </strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong> </strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Breach of insurance contract and failure to submit to second EUO</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt 1in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>National Athletic Sportswear, Inc. v. Westfield Insurance Company</u>, 2008 WL 2345019 (7<sup>th</sup> Cir. 2008), National Athletic (“NAS”) sued Westfield for breach of contract and bad faith after Westfield denied NAS’ burglary claim. Westfield filed an answer and counterclaim for declaratory judgment based on NAS’ refusal to submit to a second examination under oath (“EUO”), in violation of its post-loss duties under the contract.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Westfield’s insurance contract contained a provision which read, “We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records.” The contract also required insureds to fully comply with their contractual duties before filing an action against the company. NAS timely reported the underlying theft and loss of property to Westfield, and Westfield promptly tendered payment to NAS for its loss of business income. Approximately two months later, an attorney for Westfield conducted a lengthy EUO of the president of NAS. The exam was recessed so that NAS could provide additional documentation to Westfield. After receiving numerous documents, Westfield sought to reconvene the EUO to discuss them. Although both parties originally agreed to conduct a second EUO after the documents were provided, NAS subsequently objected and refused to participate. It also sought to limit the length of a second EUO, if one was ordered. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Court rejected NAS’ argument that the Federal Rules of Civil Procedure limited EUOs to seven hours, noting that nothing in the insurance contract so limited an EUO’s duration. As this was a contract dispute, the federal rule was “at best, only persuasive or analogous.” There was no legal basis for NAS’ argument that Westfield’s attempt to reconvene the EUO was unreasonable. While conducting repeat EUOs in an attempt to harass or burden an insured could be unreasonable in some situations, that was not the case here. By refusing to submit to a reasonable resumption of the EUO, NAS breached the contract. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Court also rejected the bad faith claim. There was a rational basis for Westfield’s questioning of NAS’ president. In addition, the underlying disagreement centered around value, not the claim-handling process. A good-faith dispute about value is not grounds for a bad faith claim.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Compliance with post-loss duties precursor for recovery under the policy</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>Allstate Insurance Company v. Fields</u>, 885 N.E.2d 728 (Ind. Ct. App. 2008), Allstate insured the Fields, who were involved in an auto accident with Jimmy Woodley. The Fields’ Allstate policy contained medical payments coverage, UM coverage and UIM coverage. The Fields filed a lawsuit against Woodley, alleging negligence and loss of consortium, and submitted medical bills to Allstate, which paid the medical payments coverage limits under the policy. After Woodley’s insurance carrier became insolvent, the Fields notified Allstate that they were pursuing a UM claim. Allstate acknowledged this claim, but requested that the Fields complete medical/wage authorizations and proof-of-loss forms. The Fields responded by sending a list of medical bills to Allstate and acknowledging that the submission was incomplete. At the same time, the Fields made a policy limits demand. Allstate responded by sending a second set of forms and iterated that no offers of settlement could be made until they were completed and returned. The Fields claimed that they had provided complete medical records to Allstate and reiterated their policy limits demand, while also stating that Allstate’s continued refusal to pay policy limits was in bad faith. Allstate responded by stating that it still had not received the completed forms. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Fields moved for leave to amend their complaint to add Allstate as a party defendant and allege a bad faith claim. The court denied Allstate’s subsequent motion for partial summary judgment on the bad faith claim. Ultimately, after several years’ worth of discovery disputes, interlocutory appeals and other procedural hurdles, a jury awarded the Fields $2,000.000 in compensatory damages and $18,000,000 in punitive damages. Allstate, of course, appealed.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Court stressed that a good-faith dispute as to the amount of a valid insurance claim is not a breach of the duty to exercise good faith. Also, any conduct on the part of an insurance company <u>after</u> a lawsuit has been filed is not evidence of bad faith. Ultimately, the Court of Appeals concluded that there was no evidence of bad faith on the part of Allstate in the handling of the Fields’ claim and that the trial court erred in its denial of Allstate’s motion for partial summary judgment. Specifically, the Court stated that Allstate did not act with ill will by delaying any payments to the Fields, as it was still seeking full compliance with the terms of the insurance contract. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Interpretation of one-year suit clause</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>General Casualty Insurance Company v. Bright</u>, 885 N.E.2d 56 (Ind. Ct. App. 2008), Diana Bright and her spouse maintained a homeowner’s insurance policy with General Casualty. The policy itself contained a provision that read: “Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of the loss.” According to the policy, “us” referred to General Casualty. In June of 2003, the dwelling burned down, and the Brights submitted a claim to General Casualty.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In September of 2005, General Casualty filed suit against the Brights and alleged that they had caused the fire and had fraudulently submitted an insurance claim regarding the same. Bright eventually filed a motion to dismiss, alleging that General Casualty had failed to file its complaint within one year after the house had burned down. The trial court agreed and dismissed General Casualty’s complaint with prejudice. General Casualty appealed. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">On appeal, General Casualty argued that the contractual provision limiting the time for filing lawsuits applies only to insureds. In turn, Bright argued that if the policy was intended to have this meaning, it would have been specifically iterated. The Court of Appeals agreed with General Casualty. The Court determined that the suit limitation clause was clear and only applied to suits filed by insureds against the insurer. General Casualty was free to proceed with its suit against the Brights.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%" align="center"><strong><u><span style="FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: 150%">HEALTH CARE LAW</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt 1in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Hospitals may have duty to protect patients from external harm after discharge</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong> </strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>McSwane v. Bloomington Hospital & Healthcare System</u>, 882 N.E.2d 244 (Ind. Ct. App. 2008), Vandeede presented to the emergency room with lacerations and a deep puncture wound sustained when she allegedly fell from a horse. She was accompanied by her visibly controlling ex-husband. Noting that Vandeede appeared intimidated by him, one nurse presented her with a domestic abuse form, which she refused. Even in the ex-husband’s absence, Vandeede maintained she fell from her horse. After she was treated, Vandeede insisted on being released to her ex-husband, and the staff repeatedly questioned her about her safety. Vandeede’s mother told the staff that her daughter was the victim of domestic violence, but Vandeede told her mother to mind her own business and left with her ex-husband. Shortly after being released, the ex-husband killed Vandeede and then committed suicide. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In the mother’s resulting lawsuit, the surgeon and the hospital moved for summary judgment, which the trial court granted. The Court of Appeals upheld the summary judgment as to the surgeon, as Plaintiff waived her argument against him by failing to properly present it at the trial level. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In reversing the summary judgment for the hospital, the court first held that a hospital’s general duty of care to a patient may include a duty not to discharge that patient to a suspected abuser. A hospital has a duty to safeguard the welfare of its patients, and this can include a duty to protect them from external circumstances if the hospital observed or unreasonably ignored events that could lead to a risk of harm. The Court cautioned that such risks must be reasonably foreseeable. The Court determined there were genuine issues of material fact as to whether the hospital ignored such events in Vandeede’s case. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Court also declared the hospital may have violated a statutory duty to report the abuse of an endangered adult. It defined “endangered adult” as someone who, by virtue of a physical or mental ailment, is incapable of making decisions in his or her own interest. Given that Vandeede’s treatment consisted of extensive use of narcotics and anesthesia, the Court determined there was a genuine issue of material fact of whether she was an “endangered adult.” </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">One judge penned a strong dissent, arguing that the Court had imposed an unreasonably broad duty on hospitals. He emphasized the facts that Vandeede was fully coherent prior to discharge, and that the hospital suggested on several occasions that she not leave with her ex-husband. She voluntarily chose to do so. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Presence of surgical sponge is evidence of medical malpractice</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt 1in; LINE-HEIGHT: 150%"><strong> </strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>Chi Yun Ho v. Frye</u>, 880 N.E.2d 1192 (Ind. 2008), Plaintiff underwent a hysterectomy. Following the surgery, nurses performed a sponge count and advised the surgeon that all the used sponges were accounted for. Over a year later, plaintiff learned that a sponge had been left in her abdomen, and underwent a second operation to remove it. A medical review panel found that the surgeon failed to meet an adequate standard of care. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">At trial, Plaintiff moved for a partial summary judgment on the issue of liability, which was denied. Following the entry of a defense verdict, Plaintiff filed various post-trial motions, seeking a new trial. After the trial court ordered a new trial, the surgeon appealed, and the Plaintiff cross-appealed the denial of her partial summary judgment motion.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Ultimately, the Court affirmed denial of Plaintiff’s motion, and reinstated the jury’s verdict. Citing <u>Funk v. Bonham</u>, 204 Ind. 170, 183 N.E. 312 (1932), it explained that a surgeon has a duty as a matter of law to ensure that all sponges are removed after a procedure is completed. Even if a surgeon delegates the task of counting sponges to an assistant, a failure to remove all of them is evidence of medical negligence and will support a jury’s finding of liability on the part of the surgeon. He or she cannot escape liability for such a failure by delegating the duty to another.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Court noted that a provider “is only required to produce expert evidence refusing the panel’s opinion” to avoid summary judgment in a medical malpractice case. Even without any concrete facts supporting the opinions, the very existence of conflicting expert opinions on whether the standard of care was met is sufficient to preclude summary judgment. As the surgeon introduced evidence of a conflicting opinion, summary judgment was inappropriate.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%" align="center"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">LITIGATION AND TRIAL PROCEDURE</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Grant of new trial based on newly-discovered evidence</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>Speedway SuperAmerica, LLC v. Holmes</u>, 885 N.E.2d 1265 (Ind. 2008), Gerald Holmes claimed that while at Speedway’s truck stop, he slipped and fell on a black spot he believed to be diesel fuel. He promptly changed his pants, which he claimed were at least partly covered in diesel fuel. Ten days prior to trial in their suit against Speedway, one of the Holmes’ attorneys asked his clients whether they still had the clothes Mr. Holmes wore on the date of his alleged injury. One day before trial, the Holmes told him that they had located the jeans and boots, which they put in the trunk of their car. The attorney did not physically examine the jeans or boots. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">On the day of trial, Holmes’ attorney advised defense counsel for the first time that the Holmes were in possession of the clothing and that the items might be introduced into evidence. Speedway’s attorney did not inspect the items. When the Holmes’ attorneys attempted to introduce the clothing, Speedway objected on the basis the evidence was highly prejudicial, and that the substance had not been identified as diesel fuel via any scientific testing. The trial court allowed the clothing to be admitted, but prohibited any testimony or inferences as to whether the stain was derived from diesel fuel. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Holmes subsequently testified that the stains on the boots and jeans were present before the accident and appeared as a result of the fall. They explained that they put the clothing in their barn after the accident and had subsequently forgotten until just before trial. Ultimately, the jury found in favor of Mr. Holmes and awarded him $1,125,000 which, after a 50% fault apportionment to him, was reduced to $562,000. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Speedway moved for a new trial and also filed a motion to preserve and test the clothing, the latter of which the trial court granted over the Holmes’ objection. A chemist concluded that the jeans did not contain diesel fuel, turpentine or mineral spirits. In addition, Speedway learned that the jeans had not been manufactured until 2000 and were not available for sale until April or May of 2001, long after Mr. Holmes’ June, 2000, fall. Nonetheless, the trial court denied Speedway’s motion for a new trial, specifically stating that Speedway had not established intentional misrepresentation on the part of the Holmes or their attorneys. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">A majority of the Court of Appeals affirmed the trial court’s ruling, stating that Speedway could have requested a continuance to have the clothing tested. The dissent reasoned that although Speedway would have had an advantage by requesting a continuance to obtain testing, this was a clear case for a new trial due to the post-verdict discovery of new evidence. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Indiana Supreme Court concluded that Speedway was entitled to a new trial based on the chemist’s report and the timeline of the jeans’ manufacture. The Court concluded that Speedway met the nine elements required for granting a new trial due to newly-discovered evidence, that: 1) the evidence has been discovered since the trial; 2) it is material and relevant; 3) it is not cumulative; 4) it is not merely impeaching; 5) it is not privileged or incompetent; 6) due diligence was used to discover it in time for trial; 7) the evidence was worthy of credit; 8) it can be produced upon a retrial of the case; and 9) it will probably produce a different result at retrial. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The only element Supreme Court questioned was whether Speedway exercised due diligence in obtaining the test results. In the end, the Court found that the Holmes ultimately created the underlying procedural problem by failing to report the existence of the jeans and boots to counsel for Speedway until the morning of trial. The Court concluded that although Speedway could have requested a continuance during trial, failure to do so did not result in failure to exercise due diligence during post-trial testing of the jeans. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"><strong><u><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Bifurcation not allowed absent showing of actual prejudice</span></u></strong></div>
<div style="MARGIN: 0in 0in 0pt 1in; LINE-HEIGHT: 150%"><strong> </strong></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">In <u>Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth</u>, 877 N.E.2d 475 (Ind. Ct. App. 2007), the Plaintiff went to his parent’s property near Lake Shafer. Upon arrival, Plaintiff’s father warned him that there was a newly installed dredge pipe near their dock. Despite this knowledge, Plaintiff dove into the water – like he had done many times in the past – and struck his head on the dredge pipe. Plaintiff fractured several vertebrae and was paralyzed. </span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">Prior to trial, Defendant moved for summary judgment on liability and also moved to bifurcate the liability and damages portions of the. The trial court denied both motions. Following a trial, the jury returned a verdict for the Plaintiff totaling $3,398,000, but attributed 50% fault of the to the Plaintiff, 20% to the Plaintiff’s father (who was named as a non-party) and 30% to Defendant. Defendant appealed the denial of its motions.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Court of Appeals held that the Plaintiff was an invitee at the lake and, as such, was entitled to a greater degree of protection than if he were merely a licensee. Defendant tried to argue that since a person could only access the lake by crossing private property, requiring permission, anyone at the lake must be a licensee. The Court concluded that lake visitors are invitees, as the lake was open to the public for everyone’s enjoyment. As such, Defendant owed a higher duty of care, and summary judgment was properly denied.</span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0.5in; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%">The Court also upheld the trial court’s denial of bifurcation. With the benefit of hindsight, the Court noted that the jury apportioned 50% of the fault to Plaintiff, despite the severe nature of his injuries. This suggested that the jury did not improperly conflate emotion with its liability assessment, and that no actual prejudice occurred. It rejected Defendant’s speculation that, if the case had been bifurcated, Plaintiff would have been assessed more than 50% at fault. Relying on a recent Supreme Court decision, <u><span style="COLOR: black">State Farm Mut. Auto. Ins. Co. v. Gutierrez</span></u><span>, 866 N.E.2d 747 (Ind.2007), the Court explained that the mere possibility or speculation of prejudice is insufficient to require separate trials on liability and damages. </span></span></div>
<div style="MARGIN: 0in 0in 0pt; TEXT-INDENT: 0in; LINE-HEIGHT: 150%"> </div>
</blockquote><blockquote><strong>THIS WEBSITE IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. WATERS, TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS STILL ACCURATE, COMPLETE OR CURRENT.</strong></blockquote><br />
<strong></strong><br />
<h2><a name="our-perspective"></a>Our Perspective</h2>
<div style="MARGIN: 0in 0in 10pt" align="center"><strong><span style="FONT-SIZE: 12pt; LINE-HEIGHT: 115%">Admissibility at Trial of Evidence of Medical Billings -- </span></strong></div>
<div style="MARGIN: 0in 0in 10pt" align="center"><strong><span style="FONT-SIZE: 12pt; LINE-HEIGHT: 115%">Amounts Billed Versus Amounts Paid </span></strong></div>
<div style="MARGIN: 0in 0in 10pt" align="center"><strong><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">By Tricia Kirkby Hofmann</span></strong></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">Indiana law provides that a prevailing plaintiff is entitled to recover the “reasonable value” of the treatment he or she receives as a proximate cause of a defendant’s negligence. <em>Sikora v. Fromm</em>, 782 N.E.2d 355, 359 (Ind. Ct. App. 2002)(<em>abrogated on other grounds</em>, <em>Willis v. Westerfield</em>, 839 N.E.2d 1179 (Ind. 2006)). The question then is what is the “reasonable value” – the amount billed for the services, or the amount the provider accepts in full satisfaction of those bills? There have been four relevant Indiana cases which touch on this issue.</span></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">The first case, <em>Chemco Transport, Inc. v. Conn</em>, 506 N.E.2d 1111, 1115 (Ind. Ct. App. 1987), affirmed in relevant part and reversed on unrelated grounds, 527 N.E.2d 179 (Ind. 1988), said that the reasonable value of medical services could be determined either by looking at the amount billed or the amount paid. However, this case did not expressly address insurance write-offs. Nonetheless, in several cases we have tried, our firm has been able to persuade the judge to allow both figures to be introduced.</span></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">Next came <em>Brumfiel v. U.S.</em>, 2005 WL 4889255 (S.D. Ind. 2005). <em>Brumfiel</em> is a federal case, and is not binding authority on an Indiana state court. In this case, Defendant sought to introduce evidence of insurance write-offs, reducing the amount of medical damages claimed by Plaintiff. Plaintiff objected, arguing that the introduction of such write-offs would violate Indiana’s collateral source rule, codified at I.C. 34-44-1-2. The collateral source rule, which abrogated the common law rule, allows collateral source evidence to be admitted, unless it is evidence of a collateral source payments from sources for which the plaintiff or his/her family pays directly or benefits received from the government. The judge in <em>Brumfiel</em> concluded that the reason Indiana abrogated the common law rule was to reflect a change in public policy. Instead of focusing on holding a defendant fully accountable (the policy behind the common law rule), the Indiana legislature sought to prevent plaintiffs from receiving a double recovery. He therefore rejected Plaintiff’s citation to cases from states which retained the common law rule, noting they were not relevant to addressing the Indiana statute. The <em>Brumfiel</em> court ultimately concluded that the collateral source rule did not even apply, as it applies to “payments,” and a write-off is not a “payment.” Accordingly, Plaintiff was prohibited from seeking to recover the substantial insurance write-offs in that case.</span></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">Although the <em>Brumfiel</em> opinion was not binding on it, the Indiana Court of Appeals relied on it in <em>Butler v. Ind. Dep’t of Ins.</em>, 875 N.E.2d 235 (Ind. Ct. App. 2007), the third relevant pre-<em>Stanley</em> case. <em>Butler</em> involved substantial Medicare write-offs. Like the judge in <em>Brumfiel</em>, the <em>Butler</em> court limited Plaintiff to only seek the actual payments. The court emphasized that no one will ever be paying for the write-offs, and if Plaintiff were allowed to recover them, it would result in a windfall to him. This is contrary to the public policy behind the collateral source statute. Unfortunately, the Indiana Supreme Court recently granted transfer in this case, and it may not be cited as binding authority. </span></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">Since transfer was granted in <em>Butler</em>, the Court of Appeals issued anopinion in <em>Stanley v. Walker</em>, 2008 WL 2246994 (Ind. Ct. App. 2008). The <em>Stanley</em> court reached a conclusion wholly opposite to <em>Butler</em> and <em>Brumfiel</em>. While it referenced <em>Butler</em> in a footnote as a case yielding a different result, it did not mention <em>Brumfiel</em> at all. <em>Stanley</em> is slightly different from <em>Butler</em>, in that it featured write-offs made by a private insurance payor. We believe the <em>Stanley</em> court is problematic largely because it reached its conclusions solely by applying case law from states which retained the common law rule. As stated earlier, the policy objectives of the common law rule are different than the objectives behind the Indiana statute. The <em>Stanley</em> court noted that the statute abrogated the common law rule, and noted specifically that to abrogate means “to do away with” and “to destroy.” It also noted the different public policy goals involved. Then, with no authority, the Court stated that it allowed to follow the policy objectives of the common law rule. It ignored case law from jurisdictions which have statutorily abrogated the common law rule, even though all of them that have addressed the issue have prevented plaintiffs from recovering the written-off amounts. While we disagree with the conclusion of a number of cases, it is unusual to find one with such a profoundly troubling and unreasonable analysis. </span></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">We anticipate transfer will likely be granted in <em>Stanley</em>, and that the Supreme Court will rule in both cases together. Until transfer is granted, however, <em>Stanley</em> is the law and is binding precedent. Due to briefing schedules, it will be some months before this issue has been resolved.</span></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">In the interim, a footnote located at the end of <em>Stanley</em> offers some direction. The court noted that nothing in its ruling should be construed as preventing defendants from challenging the reasonableness of medical billings. Such evidence could be introduced via a defense expert or other evidence. In appropriate cases, with sizeable differences between the amount billed and the amount paid, it may be worth considering hiring an expert in medical billings. This individual would be qualified to testify about how billing works: how providers set their rates; how contracts between providers and insurance companies or Medicare work; how adjustments and write-offs are handled; and the fact that, as part of those contracts, providers are not allowed to pursue written-off amounts from the patients. This could then be introduced at trial as evidence of what constitutes the “reasonable value” of the services.</span></div>
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%">In some cases, a treating provider may be willing to candidly testify about these issues and how he/she/it handles write-offs in practice. In those cases, a defense expert would likely be unnecessary. However, many providers, as you well know, are such advocates for their patients that they would not admit anything harmful to the patient’s case. It is in those cases where a defense medical billing expert may be appropriate.</span></div>
<div style="MARGIN: 0in 0in 10pt">
<div style="MARGIN: 0in 0in 10pt"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 115%"><blockquote><strong>THIS WEBSITE IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. WATERS, TYLER, SCOTT, HOFMANN & DOANE, LLC DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS STILL ACCURATE, COMPLETE OR CURRENT.</strong></blockquote></span></div>
</div>
<br />
<br />
<br />
<h2><a name="featured-trial-report"></a>Featured Trial Report</h2>
<table cellspacing="0" cellpadding="0" border="0">
<tbody>
<tr>
<td valign="top" width="200">Caption:<br />
<br />
</td>
<td> </td>
<td valign="top">Janice and Danny Coffman v. Christy Mitchum</td>
</tr>
<tr>
<td valign="top">Cause No.: <br />
<br />
</td>
<td> </td>
<td valign="top">10D01-0412-CT-237</td>
</tr>
<tr>
<td valign="top">Court:<br />
<br />
</td>
<td> </td>
<td valign="top">Clark Superior Court No. 1</td>
</tr>
<tr>
<td valign="top">Judge:<br />
<br />
</td>
<td> </td>
<td valign="top">Hon. Vicki Carmichael</td>
</tr>
<tr>
<td valign="top">Carrier:<br />
<br />
</td>
<td> </td>
<td valign="top">State Farm Mutual Automobile Insurance Company</td>
</tr>
<tr>
<td valign="top">Damages Awarded:<br />
<br />
</td>
<td> </td>
<td valign="top">None – Defense Verdict.</td>
</tr>
<tr>
<td valign="top">Incurred Medicals:<br />
<br />
</td>
<td> </td>
<td valign="top">$119,371.07</td>
</tr>
<tr>
<td valign="top">Last Demand:<br />
<br />
</td>
<td> </td>
<td valign="top">Policy Limits of $100,000.00.</td>
</tr>
<tr>
<td valign="top">Last Offer:<br />
<br />
</td>
<td> </td>
<td valign="top">$17,460.33</td>
</tr>
<tr>
<td valign="top">QSO:<br />
<br />
</td>
<td> </td>
<td valign="top">$17,460.33</td>
</tr>
<tr>
<td valign="top">WT&S Attorneys:<br />
<br />
</td>
<td> </td>
<td valign="top">Rodney L. Scott and Tricia K. Hofmann</td>
</tr>
<tr>
<td valign="top">Synopsis:</td>
<td> </td>
<td valign="top"><span style="FONT-SIZE: 10pt">This case arose out of a four-car accident that occurred on the off-ramp of I-65 northbound in Clark County, Indiana, at the Sellersburg exit. Plaintiff was a passenger in a vehicle being driven by his wife, Janice Coffman. Plaintiff was partially reclined and dozing off when his vehicle was struck by the vehicle behind it. Our client was three cars behind Plaintiff’s, and had bumped the car in front of her, causing a four-car chain-reaction collision to occur. Although a vehicle was stopped in front of Plaintiff’s car, no contact was made with this vehicle. While our client’s vehicle suffered significant damage, Plaintiff’s vehicle sustained no visible damage whatsoever in the accident. Plaintiff’s wife and son, who were also in the vehicle, were not injured.</span>
<div scroll="" repeat="" none="" white=""> </div>
</td>
</tr>
</tbody>
</table> Winter 2007 Newsletterhttp://www.wtshdlaw.com/site/resources/fall-2007-newsletter.html2008-07-01T13:19:20Z
<div style="BORDER-RIGHT: rgb(141,46,24) 2px solid; PADDING-RIGHT: 6px; BORDER-TOP: rgb(141,46,24) 2px solid; PADDING-LEFT: 6px; FONT-SIZE: 11px; BACKGROUND: rgb(241,235,218) 0% 50%; FLOAT: right; PADDING-BOTTOM: 1px; MARGIN: 0px 0px 0px 16px; BORDER-LEFT: rgb(141,46,24) 2px solid; WIDTH: 130px; LINE-HEIGHT: 21px; PADDING-TOP: 1px; BORDER-BOTTOM: rgb(141,46,24) 2px solid; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><strong>Contents:</strong><br />
<ul style="FONT-SIZE: 11px; MARGIN: 0px 0px 10px 10px">
<li><a href="#firm-happenings">Firm Happenings</a> </li>
<li><a href="#client-outcomes">Client Outcomes</a> </li>
<li><a href="#legal-updates">Legal Updates</a> </li>
<li><a href="#our-perspective">Our Perspective</a> </li>
<li><a href="#trial-report">Featured Trial Report</a> </li>
</ul>
</div>
<h2><a name="firm-happenings"></a>Firm Happenings</h2>
<p>Ward, Tyler & Scott, LLC is pleased to announce that two experienced local attorneys will be joining our firm family on November 1, 2007. <strong>Rick Bartlett</strong> and <strong>Sandra Heeke,</strong> formerly partners with an established Jeffersonville, Indiana, firm, will bring over fifty collective years of experience. Rick’s primary area of practice is in the estate planning and administration arena. He will work in the Firm's business and estate section. Sandy will bring her knowledge and expertise in representing insurers and their insureds to the firm’s litigation section. Their practices seem like a perfect complement for the firm and its clients. Accompanying them will be Sandy’s former legal assistant, <strong>Theresa Lee</strong>, who will work as a litigation paralegal. Welcome, <strong>Rick</strong>, <strong>Sandy</strong> and <strong>Theresa</strong>. </p>
<p><span style="FONT-SIZE: 10pt">As you may have noticed, Ward, Tyler & Scott, LLC now employs a new (like they haven't been around for more than a decade) automated voice attendant system. It went into operation in mid-September, and we are hopeful that it will prove to be efficient and user-friendly. As is always the case with changing technology, there have been a few bugs to work out. We would greatly appreciate your feedback on it and any ideas you might have on how it might better suit your needs.</span></p>
<div style="MARGIN: 0in 0in 0pt">
<div style="MARGIN: 0in 0in 0pt">
<div style="MARGIN: 0in 0in 0pt">
<div style="MARGIN: 0in 0in 0pt">
<p style="MARGIN: 0in 0in 0pt"><br />
<strong>Scott Tyler</strong> was selected by Westfield Group to serve as an attorney representative at its inaugural Westfield Legal Summit. The Westfield Legal Summit involved a panel of attorneys who discussed the practice of law and current legal issues impacting the industry. The summit occurred during Westfield’s annual Defense Days, which took place in August at its home office in Westfield, Ohio. Other than on the golf course, Scott looked like he knew what he was doing. <br />
<br />
<strong>George Budd </strong>was recently elected Secretary/Treasurer of the Floyd County Bar Association. He will serve in that capacity for a one-year term. After that, we may just make him handle the firm's books.<br />
<br />
<strong>Mick Ward</strong> accompanied his brother, Jim, a biochemist, and a group of other adults and youngsters from Good Shepherd Episcopal Church in Lexington, Kentucky, on a Katrina-relief trip to Bayou le Batre (pronounced, the locals say, “By-O Luh Bat tree,”), Alabama, in July of 2007. There he helped build two handicap ramps for some disabled folks and learned firsthand why “Alabama” and “July” don’t belong in the same sentence. Mick reports it was so hot and humid that the first night after work, when he went to recharge his cell phone (which he had been carrying in his pocket), sweat poured out of the inside and he later learned that the internal circuitry had corroded – proving once again that no good deed goes unpunished! In truth, however, Mick admits that he got more out of it than he gave.<br />
<br />
<strong>Rodney Scott, Ken Doane, George Budd</strong> and <strong>Peggy Timmel</strong> each volunteered for the monthly “Talk to a Lawyer” pro bono program sponsored by Legal Volunteers. They comprised part of a phone bank to respond to legal questions from residents of Clark, Floyd and Harrison counties. Chris King regularly participates in a similar pro bono program sponsored through the Louisville Bar Association, most recently in June. The diverse questions can challenge the most brilliant of legal minds - not that any of those minds were in attendance.<br />
<br />
In May, <strong>Scott Waters </strong>and <strong>Allan Hoffer</strong> completed teaching a nine-week Real Estate Certification Program for prospective realtors to assist them in preparing for the state licensing test. They anticipate teaching another session over the summer - the realtors, however, have asked us to confiscate their rulers.<br />
<br />
<strong>Tricia Hofmann</strong> and <strong>Julie Flanigan</strong> were invited by Floyd County Superior Court Judge Susan Orth to the inaugural launch dinner of the Women’s Foundation of Southern Indiana. The Foundation was created in 2005 to serve the needs of women and children in Floyd, Clark and Harrison counties. More information about the Women’s Foundation of Southern Indiana can be found at <a target="_blank" href="http://www.cfsouthernindiana.com/Default.aspx?sitemapid=46">http://www.cfsouthernindiana.com/Default.aspx?sitemapid=46</a>. Donations are always accepted.<br />
<br />
<strong>Rodney</strong> and <strong>Lisa Scott</strong> and their family spent part of June following Emma’s travelling soccer team - Mockingbird Soccer Club - "92 Girls at <a target="_blank" href="http://eteamz.active.com/mvscg13/">http://eteamz.active.com/mvscg13/</a>. Emma's team won the Kentucky State Cup for the second straight year and proceeded to the Regional Championships in Des Moines, Iowa. Rodney and Lisa now have firsthand knowledge of how corn grows.<br />
<br />
<strong>Allan Hoffer</strong>’s son, Drew, was recently hired to teach eleventh grade history at South Oldham High School. Allan’s daughter, Kendall, was hired as a full-time counselor at Louisville’s Home for the Innocents. Allan's wallet is getting heavier by the minute. <br />
<br />
<strong>Peggy Timmel</strong> gave a presentation to a group of women at a recent One Southern Indiana TGI Friday luncheon. She spoke about the differences between powers of attorney and living wills in Indiana and Kentucky, and also discussed the debate regarding withholding nutrition and hydration (at a lunch nonetheless) and the importance of family involvement in such sensitive discussions.<br />
<br />
</p>
<h2 style="MARGIN: 0in 0in 0pt"><a name="client-outcomes"></a>Client Outcomes</h2>
<p style="MARGIN: 0in 0in 0pt"><strong></strong></p>
<p style="MARGIN: 0in 0in 0pt"><strong>Mick Ward</strong> concluded a tax-deferred exchange of industrial properties of substantial value in Park East Industrial Park, in New Albany, Indiana, working closely with other firms. This exchange concluded many months’ work on a very time-sensitive transaction involving complicated real estate and tax issues.<br />
<br />
<strong>Rodney Scott</strong> and <strong>Tricia Hofmann</strong> secured summary judgment in <em>Sasaki v. Yu</em> in the Clark Circuit Court. Their client, Abel Yu, was trustee of a trust which owned a residence at which Plaintiff fell. However, Plaintiff sued Mr. Yu in his individual capacity only, not in his capacity as a trustee. Neither did he sue the trust. The statute of limitations expired without Plaintiff correcting the problem, and Plaintiff’s Motion to Amend his Complaint was filed too late for the amendment to relate back to the original date of filing. Judge Daniel Donahue agreed with our argument that Mr. Yu owed no duty to Plaintiff and, in his individual capacity, was not a proper defendant.</p>
<p style="MARGIN: 0in 0in 0pt"> </p>
<p style="MARGIN: 0in 0in 0pt"><span><strong></strong></span></p>
<p style="MARGIN: 0in 0in 0pt"><span><strong>George Budd</strong> recently completed a two-day jury trial in <em>Dollens v. Thompson</em>, in the Jackson Circuit Court. Plaintiff claimed approximately $13,000 in medical expenses and $8,600 in lost wages. Plaintiff also called an accident reconstruction expert live at the trial. Nonetheless, the jury ultimately assessed Plaintiff thirty percent of fault for the intersectional accident even though George's client had come from the subordinate road and allegedly ran the stop sign. The net award was approximately $6,000, less than the amount of our client's qualified settlement offer which entitles our client to $1,000.00 in attorneys' fees and costs. </span><br />
<br />
<strong>Mick Ward</strong> helped one of the our clients sell all of the stock in an insurance-brokerage firm. This transaction also involved numerous complicated issues ranging from valuation of the stock (on which he worked closely with a neutral financial advisor with expertise regarding the insurance-industry-sensitive issues involved in such matters), to incentiviced retention agreements for key employees, to continuing employment agreements with the client for continuity of business operations. Mick reports that this too was one of those time-sensitive transactions that often found him waking in the middle of the night to make notes on things he needed to address the next day – and writing himself reminders to renew his fitness-club membership to help him cope with the stress that the responsibility for such deals inevitably involves!<br />
<br />
Around the same time, <strong>Mick</strong> helped some heirs sell a substantial commercial complex which they had inherited to a local developer. <br />
<br />
<strong>Julie Flanigan</strong> achieved a defense verdict after a three-day jury trial in Washington Superior Court before the Honorable Judge Frank Newkirk in <em>Saylor v. Cowles</em>. Plaintiff Audrey Saylor claimed a soft tissue injury to her low back and introduced $14,000 in medical expenses. Plaintiff Leif Saylor aggressively pursued a rather unique consortium claim, with all due respect and honor to the Rolling Stones, based on his wife's inability to attain "satisfaction." Plaintiffs had demanded $160,000 at trial. Qualified settlement offers were issued before trial to both plaintiffs. </p>
<p style="MARGIN: 0in 0in 0pt"> <span> </span><br />
</p>
<div style="MARGIN: 12pt 0in 10pt; LINE-HEIGHT: 150%"><span style="FONT-SIZE: 10pt; LINE-HEIGHT: 150%"><strong>George Budd</strong> also secured a defense verdict in <em>Buckner v. Hurst </em>after a jury trial in the Floyd Superior Court. On the morning of trial, and after the motions in limine about the medical proof, one of the Plaintiffs agreed to dismiss the personal injury part of his lawsuit and the other Plaintiff decided to proceed only on the property damage issues. As it turned out, the damage claim did not matter since the jury returned a verdict on liability based on the disputed evidence about who had the "green" light. Unfortunately, the Qualified Settlement Offer was only made to the personal injury Plaintiff.</span></div>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt">THIS WEBSITE AND THE RESULTS DESCRIBED ABOVE ARE NOT INTENDED TO CONSTITUE AN ENDORSEMENT OF ANY PARTICULAR ATTORNEY OR CONSTITUTE A REPRESENTATION ABOUT THE QUALITY OF LEGAL SERVICES. ADDITIONALLY, WARD, TYLER & SCOTT, <font size="1">LLC</font> DOES NOT BELIEVE THAT PAST RESULTS PREDICT FUTURE SUCCESS AND CANNOT WARRANT OR GUARANTEE RESULTS IN PENDING OR FUTURE CASES.</p>
<div style="MARGIN: 0in 0in 0pt"><br />
<br />
</div>
<h2 style="MARGIN: 0in 0in 0pt"><a name="legal-updates"></a>Legal Updates</h2>
<p style="MARGIN: 0in 0in 0pt"><strong><u></u></strong></p>
<div style="MARGIN: 0in 0in 0pt"><strong><u>CONSTRUCTION</u><br />
<br />
Kentucky Enacts New Statute Concerning Construction Contracts</strong><br />
Kentucky Governor Ernie Fletcher signed HB-490 into law on April 5, 2007. The bill, entitled the “Kentucky Fairness in Construction Act,” went into effect on June 26, 2007 and carries with it significant changes for Kentucky construction contracts entered into on and after that date. While this act specifically exempts residential construction and facilities regulated by the Kentucky Public Service Commission, it applies to most all other construction projects in the Commonwealth, both public and private.<br />
<br />
In a nutshell, the new law will benefit contractors and subcontractors by 1) prohibiting certain common contract clauses (i.e. “no damage for delay” clauses, waivers of rights to sue on contract or file liens); 2) requiring prompt payment of undisputed amounts to contractors and subcontractors; 3) limiting the retainage allowed to be withheld from payments to the contractor and subcontractor; and 4) extending the time (in some cases) in which a lien can be filed. The statute, as written, does not specifically apply to suppliers of materials or equipment (“materialmen”). However, the statute likely will be extended to apply to materialmen in the future through legislative amendments and/or case law interpreting the new statute.<br />
<br />
Contractors and subcontractors working in Kentucky may want to review their standard contracts to ensure they comply with the new act and take advantage of its new benefits. The text of the new law can be found at <a target="_blank" href="http://www.lrc.ky.gov/Statrev/ACTS2007/0136.pdf">http://www.lrc.ky.gov/Statrev/ACTS2007/0136.pdf</a> and is codified in Kentucky Revised Statutes 371.400 to 371.425, along with some changes to Kentucky Revised Statutes 376.230. <strong><br />
</strong><br />
<u><strong>LITIGATION</strong></u><br />
<br />
<strong>Counsel’s Authority (or Lack Thereof) to Bind Client to Terms of Settlement</strong><br />
In Bay v. Pulliam, 2007 WL 2416871 (Ind. Ct. App. 2007), the Bays hired a well-known Bloomington personal injury firm to represent them for injuries Carol Bay allegedly incurred in an auto accident with Pulliam. The law firm actively negotiated with Pulliam’s carrier, Zurich, and ultimately advised Zurich in writing, “Our client has accepted your offer in the amount of $16,700.00.” Defense counsel forwarded the necessary settlement documents to the Bays’ attorney. However, when presented with the terms of the settlement, Carol Bay reported that she had not agreed to the amount. To the contrary, she reported needing to discuss it with her husband. The Bays then rejected the offer in writing.<br />
<br />
Defendant filed a Motion to Enforce the settlement agreement, which was granted by the trial court. Surprisingly, the Court of Appeals reversed. It held that the law firm possessed neither actual nor apparent authority to accept the settlement amount. There was no actual authority, as the attorney was not told that amount was acceptable, nor was he given authority to accept whatever he deemed appropriate. In addition, the Bays never made any manifestation to Defendant or his counsel that their attorney had such authority. The fact that counsel was authorized to negotiate was insufficient. The court concluded that Defendant did not take any action to ascertain that the attorney had authority to bind the client. Instead, “it merely assumed that to be the case. Accordingly, Zurich acted at its peril with regard to the settlement.”<br />
<br />
<strong>Standard for Admissibility of Evidence of Pre-Accident Medical Evidence and Injury</strong><br />
In Armstrong v. Gordon, 871 N.E.2d 287 (Ind. Ct. App. 2007), the Indiana Court of Appeals clarified the standard for a defendant to introduce evidence of a plaintiff’s relevant pre-accident medical condition. Gordon claimed neck injuries as a result of an accident for which Armstrong admitted fault. Prior to that accident, Gordon was involved in two other accidents, had been diagnosed with cervical degenerative disc disease, and underwent fairly substantial treatment for neck-related complaints. At trial, the court inexplicably granted Plaintiff’s motion to exclude evidence about her pre-accident condition, treatment and accidents. All pre-accident records were excluded, and deposition testimony about those issues was stricken.<br />
<br />
The Court of Appeals reversed, holding that Armstrong was “entitled to thoroughly challenge [] Gordon’s expert with respect to that expert’s causation opinions.” The trial court’s ruling effectively denied Armstrong that opportunity. The Court of Appeals cited Walker v. Cuppett, 880 N.E.2d 85 (Ind. Ct. App. 2004), noting that the evidence of a plaintiff’s related medical condition is relevant and is an appropriate topic for cross-examining a treating physician. Although Armstrong had an expert who was prepared to – but prevented from – testifying that the post-accident complaints were related to the underlying degenerative problems, no defense expert is necessary.<br />
<br />
The Court further clarified what a defendant must establish to introduce such evidence. The defendant must have evidence showing a “logical nexus or causal relationship” between the pre-accident condition and the post-accident complaints. If a defendant satisfies that requirement, as did Armstrong, the evidence is admissible. Finally, the Court also rejected Gordon’s argument that the defense was required to show a “reasonable medical probability” that the post-accident complaints were a result of the pre-accident condition, as opposed to the accident itself. It explained that a “reasonable medical probability” is the standard for a plaintiff’s burden of proof. It is not the standard for the admissibility of evidence.<br />
<br />
<u><strong>GOVERNMENT AND BUSINESS LAW</strong></u><br />
<strong><br />
The New “Bobby Knight” Rule for "Open Meetings" in Indiana</strong><br />
Gone forever are the days in Indiana that governing bodies which are subject to the Indiana Open Meetings law may hold a number of small meetings of less than a quorum of members to get around the requirement of giving notice to the public so that the public can attend a “public” meeting. The prohibition against the use of serial meetings is common in many states, but until July 1, 2007 was permitted technically in Indiana. Generally, all public action is subject to the “sunshine law” requiring notice to the public of the meeting, giving interested individuals the opportunity to attend such meetings in person.<br />
<br />
The whole issue came up here in Indiana after the Board of Trustees of Indiana University skirted the Open Meetings law in deciding to fire legendary basketball coach, Bob Knight. Although Miles Brand, President of IU at the time, had the authority to fire Coach Knight on his own, he instead elected to secure the support of the Board of Trustees behind his decision. However, to have a board meeting, the University would have been required to comply with the Open Meetings law. Concerned about politics and the emotions of IU alumni, he instead opted to have numerous meetings of less than a quorum of the Board of Trustees to discuss and ultimately arrive at the final conclusion to terminate Coach Knight. <br />
<br />
The Indiana Legislature responded by passing Senate Enrolled Act 103, which Governor Daniels signed into law as Public Law 179-2007. This legislation put an end to the use of “serial meetings,” like those convened by President Brand, to avoid public notice and attendance at meetings of governmental bodies. Many quasi-governmental bodies are also subject to the Indiana Open Records and Open Meetings laws and may have to change the way they conduct meetings.<br />
<br />
However, the new law still permits some “wiggle room.” Under the new law, a board could still avoid the notice requirement by ensuring that any meeting of three or more members of a governing body occurs no more often than once every seven consecutive days on a particular topic.<br />
See the Governor’s Press Release on the issue at: <a href="http://www.mymanmitch.com/news_article.asp?pressid=568">http://www.mymanmitch.com/news_article.asp?pressid=568</a><br />
<br />
<u><strong>INSURANCE LAW<br />
<br />
</strong></u><strong>Waiver of Uninsured/Underinsured Coverage in Umbrella Policies</strong><br />
The Indiana Court of Appeals recently disapproved of the manner used by one insurer to limit its exposure in excess policies. Liberty Mut. Fire Ins. Co. v. Beatty, 870 N.E.2d 546 (Ind. Ct. App. 2007). The Beattys had personal auto and umbrella policies through Liberty Mutual, both of which contained UM/UIM coverage. The umbrella policy afforded $1,000,000 in UM/UIM coverage. While those policies were in effect, Liberty Mutual sent a notice to the Beattys, offering UM/UIM coverage in the sum of one, two, or three million dollars at various rates. In the alternative, the Beattys could check a box indicating that they were rejecting such coverage. Confused, they contacted their agent, who told them they did not need any more coverage, and directed them to check the appropriate box to effect a rejection. <br />
<br />
Some months later, Mr. Beatty was subsequently injured in an accident with an uninsured driver. Liberty Mutual paid the full $250,000 UM limits under the personal auto policy, but denied that there was UM coverage under the umbrella. The Beattys filed suit, arguing that the purported rejection was ineffective. The trial court agreed, and granted summary judgment on behalf of the Beattys.<br />
<br />
The Court of Appeals agreed. It noted that an insurer has a duty to provide UM/UIM coverage under umbrella policies, as well as underlying auto policies, and that any written rejection of such coverage must be unambiguous. The letter sent to the Beattys was ambiguous, in that it did not indicate whether the cancellation would go into effect immediately or at the time of the next policy renewal. Even more important, it was not clear whether it was a rejection of all UM/UIM coverage under the umbrella policy, or a rejection of any coverage on top of the $1,000,000 already provided under the policy. The court was troubled by Liberty Mutual’s argument that all UM/UIM coverage was waived, as $1,000,000 in such coverage was part of the original umbrella policy for which the Beattys had paid a premium. The court explained that if Liberty Mutual had intended the rejection to apply to all UM/UIM coverage, including the coverage that the Beattys already had, the insurer should have done one of two things. It initially could have secured the Beattys’ written waiver of all UM/UIM coverage and included that waiver in the policy before the policy commenced. Once coverage commenced, it could have modified the policy and reduced the Beattys’ premium to reflect the change in coverages. It could not materially alter the coverage, eliminating UM/UIM coverage entirely, yet retain the full premium.<br />
<br />
<strong>Subrogation Rights and the “Fully Compensated” Insured</strong><br />
Just this month, the Court of Appeals issued an opinion which obfuscates insurers’ subrogation rights. In State Farm Mut. Auto. Ins. Co. v. Cox, 2007 WL 2554675 (Ind. Ct. App. 2007), an accident occurred between a vehicle operated by Hunt and one operated by McCauley and occupied by Cox. Cox was insured by State Farm and McCauley was insured by Kentucky National. Hunt, who died in the accident, was uninsured. The carriers paid their respective MPC limits ($25,000 from State Farm and $5,000 from Kentucky National) on behalf of Cox. Subsequently, State Farm tendered the $100,000 UM limits to Cox and secured a release in which Cox agreed to “hold in trust for the benefit of [State Farm] all rights or recovery, which he[] shall have against any person or organization legally liable for” Cox’s injuries, and further agreed that State Farm was “authorized to take any action which may be necessary in law or in equity in the name of the undersigned against any such person or organization.” The State Farm policy provided that its right to recover UM payments “applies only after the insured has been fully compensated for the bodily injury.”<br />
<br />
Kentucky National subsequently deposited its $50,000 limits to the court for distribution. Subsequently, a bench trial was held, at which the trial court determined Cox’s claim was worth $182,000. Cox and State Farm both made claims for Kentucky National’s tendered funds.<br />
State Farm first argued that if the $50,000 reflected McCauley’s liability limits, then it was entitled to a credit for overpaying $50,000 (in other words, it was entitled to offset the liability limits against its exposure pursuant to the policy and Indiana statute). On the other hand, it reasoned, if the payment was made under Kentucky National’s UM provision, then the anti-stacking provisions of both policies would prevent Cox from recovering both amounts. The trial and appellate court both rejected those arguments. As State Farm repeatedly stated their payment was for UM, not UIM, and the setoff statute was thus inapplicable. In addition, the release squarely framed State Farm’s rights as being subrogation rights in nature, not a right to raise stacking or offset arguments.<br />
<br />
Unfortunately for State Farm, the policy clearly provides that the company’s subrogation rights do not arise until after the insured has been “fully compensated.” Even if one includes Kentucky National’s payments, Cox would have received $180,000. The court valued his case at $182,000. He was not – and never will be – fully compensated. As such, State Farm’s subrogation rights will never arise, and the courts determined Cox was entitled to the full amount of the Kentucky National payment.<br />
<br />
FOR QUESTIONS ABOUT ANY OF THESE TOPICS, PLEASE FEEL FREE TO CONTACT US.<br />
<strong><br />
</strong>THIS WEBSITE IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. WARD, TYLER & SCOTT, LLC DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS STILL ACCURATE, COMPLETE OR CURRENT.<br />
<br />
</div>
<h2 style="MARGIN: 0in 0in 0pt"><a name="our-perspective"></a>Our Perspective</h2>
<p style="MARGIN: 0in 0in 0pt"> </p>
<div style="MARGIN: 0in 0in 0pt" align="center"><strong>EVERYTHING THAT KEEPS LANDLORDS UP AT NIGHT</strong><br />
by <em>Tricia K. Hofmann</em></div>
<div style="MARGIN: 0in 0in 0pt" align="left"><br />
<strong>Statutory Duties and Obligations</strong><br />
<br />
</div>
<div style="MARGIN: 0in 0in 0pt">Indiana Code 32-31-8-5 sets forth statutory duties owed by landlords to their residential tenants. The statute provides that at the time the lease is executed and throughout the tenant’s occupancy, a landlord must<br />
<br />
(1) Deliver the rental premises to a tenant in compliance with the rental agreement, and in a safe, clean, and habitable condition.<br />
<br />
(2) Comply with all health and housing codes applicable to the rental premises.<br />
<br />
(3) Make all reasonable efforts to keep common areas of a rental premises in clean and proper condition.<br />
<br />
(4) Provide and maintain the following items in a rental premises in good and safe working condition, if provided on the premises at the time the rental agreement is entered into:<br />
</div>
<blockquote style="MARGIN: 0in 0in 0pt">(A) Electrical systems.<br />
(B) Plumbing systems sufficient to accommodate a reasonable supply of hot and cold running water at all times.<br />
(C) Sanitary systems.<br />
(D) Heating, ventilating, and air conditioning systems. A heating system must be sufficient to adequately supply heat at all times.<br />
(E) Elevators, if provided.<br />
(F) Appliances supplied as an inducement to the rental agreement.<br />
<br />
</blockquote>
<div style="MARGIN: 0in 0in 0pt">IND. C. § 32-31-8-5. To bring suit under the above-quoted statute, a tenant must provide the landlord written notice of the complaint and afford the landlord access to the premises and ample opportunity to correct the problem. IND. C. § 32-31-8-6(b). In the event the landlord refuses to correct the problem, or does not correct the problem within a reasonable time after being notified, the tenant can seek remedies including injunctive relief, actual or consequential damages, and attorney’s fees and costs. IND. C. § 32-31-8-6(d)-(e). Neither the statute nor any cases construing it suggest what constitutes a “reasonable” time for making repairs. <br />
<br />
These statutes only apply to the rental of dwellings, defined to include units in apartment buildings, boarding houses or rooming houses, mobile homes, single-family residences or duplexes. IND. C. § 32-31-5-3. There do not exist any similar statutory requirements governing the rental of commercial premises in Indiana.<br />
<strong><br />
General Rule – Caveat Lessee</strong></div>
<div style="MARGIN: 0in 0in 0pt"><strong></strong><br />
Under common law principles, once a landlord tenders possession and control over premises to his or her tenant, the landlord will not be liable for injuries sustained by the tenant or by others on the premises. As various courts have held:<br />
</div>
<blockquote style="MARGIN: 0in 0in 0pt">In the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of leased property will not be liable for personal injuries sustained by the tenant and other persons lawfully upon the leased property.<br />
<br />
</blockquote>
<div style="MARGIN: 0in 0in 0pt"><em>Pitcock v. Worldwide Recycling, Inc.</em>, 582 N.E.2d 412, 414 (Ind. Ct. App. 1991). <em>See also Houin v. Burger</em>, 590 N.E.2d 593, 597 (Ind. Ct. App. 1992); <em>Goddard v. Weaver</em>, 558 N.E.2d 853 (Ind. Ct. App. 1990). This position is commonly known as <em>caveat lessee</em> (let the lessee beware). <em>Pitcock, supra</em>. The landlord owes the same duty to the tenant’s guests that he or she owes to the actual tenant. <em>Slusher v. State</em>, 437 N.E.2d 97, 100 (Ind. Ct. App. 1982). The same duty is imposed “because it is the lessor’s business to afford the lessee the uses of the tenancy.”<em> Id.</em> 3<br />
<br />
<strong>Common Areas</strong></div>
<div style="MARGIN: 0in 0in 0pt"><strong></strong><br />
Several exceptions apply to the doctrine of <em>caveat lessee</em>. First, a landlord retains a duty to maintain any common areas over which the landlord retains control or possession, such as hallways, parking lots or sidewalks. <em>Vandenbosch v. Daily</em>, 785 N.E.2d 666 (Ind. Ct. App. 2003); <em>Frost v. Phenix</em>, 539 N.E.2d 45 (Ind. Ct. App. 1989);<em> Coleman v. DeMoss</em> (1969), 144 Ind.App. 408, 246 N.E.2d 483. The Frost court explained that a landlord<br />
</div>
<blockquote style="MARGIN: 0in 0in 0pt">is therefore under an affirmative obligation to exercise reasonable care to inspect and repair such parts of the premises [common ways and areas] for the protection of the lessee. . . . The obligation is one of reasonable care only, and the lessor is not liable where no injury to anyone was reasonably to be anticipated or the condition was not discoverable by reasonable inspection, unless it is shown to have been of such duration as to permit the conclusion that due care would have discovered it.<br />
</blockquote>
<p style="MARGIN: 0in 0in 0pt"><br />
<em>Frost</em>, 539 N.E.2d at 47 (quoting W. Prosser & W. Keeton, The Law on Torts, § 63 at 441-42 (5th ed. 1984)). However, if the landlord leases the common area to the tenant, and does not retain control over it, the landlord will not have a duty to maintain it. <em>Vandenbosch, supra</em>, at 669; <em>Goddard, supra</em>, at 854. <br />
<br />
A landlord has a duty to remove snow and ice accumulations from sidewalks and parking lots used by tenants and/or their guests. <em>Rossow v. Jones</em>, 404 N.E.2d 12 (Ind. Ct. App. 1980). However, if the premises abut a public sidewalk, the landlord does not have any duty to remove snow or ice accumulations from such public walkway. <em>Hirschauer v. C & E Shoe Jobbers, Inc.</em>, 436 N.E.2d 107 (Ind. Ct. App. 1982). The landlord does have a duty to refrain from making the condition on the public walkway worse.<br />
<br />
It should be noted that a landlord cannot avoid the duty to maintain common areas by inserting exculpatory language in the lease, which would release the landlord from liability for damages arising out of any defects present in those common areas. See <em>Ransburg v. Richards</em>, 770 N.E.2d 393 (Ind. Ct. App. 2002). Indiana courts have expressly held such exculpatory provisions contrary to public policy. <em>Id</em>.<br />
<br />
<strong>Latent Defects Known to Landlord</strong></p>
<strong></strong>
<p style="MARGIN: 0in 0in 0pt"><br />
The second exception to the <em>caveat lessee</em> doctrine involves latent defects. If there is a latent defect in the premises unknown to the tenant, which the landlord knows about and fails to disclose to the tenant, the landlord can be liable for any damages arising out of that defect. <em>Pitcock, supra. See also Zimmerman v. Moore</em>, 441 N.E.2d 690 (Ind. Ct. App. 1982). As stated, there must be evidence that the landlord actually knew about the defect, and that the tenant did not. If the defect is open and obvious, the landlord has no duty to warn, as the tenant should be able to identify the defect him- or herself and take appropriate action to avoid being harmed by it. <em>Zimmerman, supra</em>. <br />
<br />
<strong>Public Purpose</strong></p>
<strong></strong>
<p style="MARGIN: 0in 0in 0pt"><br />
The third exception takes this one step further. If the landlord leases premises to a tenant who will use the premises for a public or semi-public purpose, the landlord may be responsible for a wider range of defects. In this scenario, if the landlord knows – or by the exercise of reasonable care, ought to know – about defects or conditions on the premises present at the time of the lease which would render the premises unsafe for their intended purpose, the landlord may be liable. <em>Pitcock, supra</em>, at 415 (citing <em>Walker v. Ellis</em> (1955), 126 Ind.App. 353, 129 N.E.2d 65, 73. In this public use situation, it does not appear that the defect must be latent. Similarly, the landlord’s knowledge need not be established. It is sufficient if he or she should reasonably know of the defect. Again, this only applies to situations in which the premises are held out to the public.<br />
<br />
<strong>Negligent Repairs</strong></p>
<strong></strong>
<p style="MARGIN: 0in 0in 0pt"><br />
Fourth, if the landlord expressly agrees to repair a defect in the premises and then either does not do so, or does so negligently, the landlord may be liable. <em>Houin, supra. See also Vandenbosch, supra</em>, at 669. Certainly, if the landlord begins the repairs, he or she has a duty to perform them in a safe and reasonable manner. A landlord would be liable for negligently-performed repairs which injure a tenant or guest. As to non-performance, however, the duty is a bit less clear. According to an Indiana Supreme Court opinion, if a landlord agrees to perform a repair after a lease is signed, and during the term of the lease, that agreement to repair may not be enforceable due to a lack of consideration. <em>Childress v. Bowser</em>, 546 N.E.2d 1221 (Ind. 1989). The terms of the written lease constitute the entire contract, and there is no consideration for a subsequent agreement to make repairs. However, in a month-to-month lease, each month would constitute its own tenancy, and the payment of the next month’s lease would constitute consideration for the agreement to repair. Assuming the consideration requirement is met, if a landlord failed to make a repair that he or she agreed to perform, and someone was hurt as a result, the landlord would be liable.<br />
<br />
<strong>Violation of Statute or Ordinance</strong></p>
<strong></strong>
<p style="MARGIN: 0in 0in 0pt"><br />
Fifth, if a statute or ordinance creates a duty on the part of a landlord toward a tenant, and the landlord violates that statute or ordinance without excuse or justification, the landlord may be liable for any resulting damages. <em>Vandenbosch, supra</em>, at 669-70 (citing <em>Hodge v. Nor-Cen, Inc.</em>, 527 N.E.2d 1157 (Ind. Ct. App. 1988), reh’g and trans. denied). Such unjustifiable or inexcusable violations constitute negligence per se, the courts noted. Both the Vandenbosch and Hodge courts refused to expand this exception to include unjustifiable violations of administrative code provisions, however, noting that a violation of an administrative provision does not constitute negligence <em>per se</em>.<br />
<br />
Indiana Code 32-31-9 et seq. is one example of a statute which could easily give rise to landlord liability. This section of the Code addresses the rights of tenants who are victims of certain crimes, including domestic or family violence, sex offenses or stalking. IND. C. § 32-31-9-3. Section 32-31-9-12 allows a victim of such a crime to terminate a lease with thirty days’ notice upon proof of a court order of protection or no-contact order. Section 32-31-9-8 prohibits landlords from taking certain adverse actions against tenants who are victims of such crimes or who have terminated leases under section 32-31-9-12. Specifically, a landlord may not terminate or refuse to renew a lease, refuse to enter into a lease, or otherwise retaliate against someone who has either been a victim of such a crime, or who has terminated a lease in the previous twelve months under 32-31-9-12. In addition, and most relevant to a premises liability analysis, the Code sets forth aggressive requirements for changing locks when requested by tenants who are victims of these crimes. If a landlord violates any of these requirements, he or she could have some liability for any resulting damages. However, the statute does expressly note that it “does not make a landlord or the agent of a landlord liable for the actions of a perpetrator or a third party.” IND. C. § 32-31-9-15.<br />
<br />
<strong>Criminal Conduct</strong></p>
<p style="MARGIN: 0in 0in 0pt"><br />
Although not an exception to the <em>caveat lessee</em> doctrine, it is important to note that a landlord ordinarily will not be liable to a tenant for unforeseeable criminal conduct of third parties. However, in some circumstances, such a duty may arise, particularly if the landlord “voluntarily undertakes to perform security measures, but performs the undertaking negligently.” <em>Vertucci v. NHP Mgmt. Co.</em>, 701 N.E.2d 604 (Ind. Ct. App. 1998); <em>Nalls v. Blank</em>, 571 N.E.2d 1321, 1323 (Ind. Ct. App. 1991). These cases typically involve burglaries or assaults perpetrated on tenants in buildings that were supposedly secure.</p>
<p style="MARGIN: 0in 0in 0pt"> </p>
<p style="MARGIN: 0in 0in 0pt"><strong><font size="5"></font></strong></p>
<h2 style="MARGIN: 0in 0in 0pt"><a name="trial-report"></a>Trial Report</h2>
<p style="MARGIN: 0in 0in 0pt"> </p>
<p style="MARGIN: 0in 0in 0pt"><strong>Caption:</strong> <br />
Bryon Scott Benham v. Lyndon Walker</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Cause No.:</strong> <br />
88C01-0208-CT-235</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Court:</strong> <br />
Washington Circuit</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Judge:</strong> <br />
Hon. Daniel B. Burke, Jr.</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Carrier:</strong> <br />
State Farm Mutual Automobile Insurance Company</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Damages Awarded:</strong> <br />
$11,478.74 ($6,313.31 after 45% fault apportioned to Plaintiff)</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Incurred Medicals:</strong> <br />
$19,109.76</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Last Demand:</strong> <br />
none</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Last Offer:</strong> <br />
none</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>QSO:</strong> <br />
none</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>WT&S Attorneys:</strong> <br />
Kenneth G. Doane, Jr. and Rodney L. Scott</p>
<p style="MARGIN: 0in 0in 0pt"><br />
</p>
<p style="MARGIN: 0in 0in 0pt"><strong>Synopsis:</strong> <br />
This rear-end automobile accident occurred on September 2, 2000. Both drivers were westbound on State Road 60.Plaintiff stopped alongside the road to assist his wife, who earlier had to make an unanticipated stop in her vehicle for their sick child. Defendant testified that Plaintiff stopped suddenly and did not signal. Additionally, he testified that Plaintiff’s truck was equipped with blacked-out taillights which made it difficult to see Plaintiff’s brake lights. Plaintiff, a 33-year-old male, had a variety of complaints from the accident, including low-back spasm, chest wall pain, pain between the shoulder blades, and neck stiffness. Plaintiff treated with his family doctor, and had physical therapy and trigger point injections with First Choice Medical Group. In addition to his injuries and medical expenses, Plaintiff claimed that the accident permanently impaired his ability to continue to work as a machine shop technician, resulting in up to $476,854.00 in lost earnings. Plaintiff retained a vocational rehabilitation counsel, Constance Brown, to support his impairment of earning capacity claim. At trial, a motion x-ray was presented by Dr. Nunier of 1<sup>st</sup> Choice Medical which allegedly demonstrated a permanent soft-tissue injury to Plaintiff’s neck. Plaintiff also presented his family doctor, an IME doctor, Warren Bilkey, M.D., and vocational rehabilitation counselor, Constance Brown, by video. Unfortunately, due to relocation for family needs, the Defendant was unavailable to attend the trial. Therefore, Defendant testified by written deposition. Following a four-day jury trial, the jury entered the above-referenced verdict.P er the foreperson, four out of six jurors wanted to return a verdict for the defendant. Thus, as is often the case, this was a compromise verdict.</p>
</div>
</div>
</div>
</div> Summer 2007 Newsletterhttp://www.wtshdlaw.com/site/resources/spring-2007-newsletter.html2008-07-01T13:19:55Z
<div style="BORDER-RIGHT: rgb(141,46,24) 2px solid; PADDING-RIGHT: 6px; BORDER-TOP: rgb(141,46,24) 2px solid; PADDING-LEFT: 6px; FONT-SIZE: 11px; BACKGROUND: rgb(241,235,218) 0% 50%; FLOAT: right; PADDING-BOTTOM: 1px; MARGIN: 0px 0px 0px 16px; BORDER-LEFT: rgb(141,46,24) 2px solid; WIDTH: 130px; LINE-HEIGHT: 21px; PADDING-TOP: 1px; BORDER-BOTTOM: rgb(141,46,24) 2px solid; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial"><strong>Contents:</strong><br />
<ul style="FONT-SIZE: 11px; MARGIN: 0px 0px 10px 10px">
<li><a href="#firm-happenings">Firm Happenings</a> </li>
<li><a href="#client-outcomes">Client Outcomes</a> </li>
<li><a href="#legal-updates">Legal Updates</a> </li>
<li><a href="#our-perspective">Our Perspective</a> </li>
<li><a href="#featured-trial-report">Featured Trial Report</a> </li>
</ul>
</div>
<h2><a name="firm-happenings"></a>Firm Happenings</h2>
Elijah Wayne Mullins was born January 15, 2007, to Legal Assistant/Receptionist <strong>Christina Mullins</strong> and her husband, Scott. Elijah weighed 8 pounds and 1 ounce at birth, and was twenty and one-half inches long. He joins big brother, Alexandar, 2. We expect to see Christina smiling again sometime after the diaper stage.<br />
<br />
January 15 was a big day for Ward, Tyler & Scott, <font size="1">LLC</font>, as it was also the day that <strong>J. David Agnew </strong>joined the firm as an associate. David is a 1996 graduate of DePauw University, and a 1999 graduate of Indiana University School of Law in Bloomington. Prior to his arrival at the firm, David worked as an Assistant Consumer Counselor for the Indiana Utility Consumer Counselor’s Office, where he represented consumers before the Indiana Utility Regulatory Commission. He also worked as a Deputy Attorney General in Indiana. David is licensed to practice law in Indiana and Kentucky, and will be working in both the business and litigation sections of the firm. He is married to Meagen (Peden) Agnew, a native of Floyd County, Indiana, and they have a 2 year-old daughter, Anne. David also plays the trumpet (as if we needed someone other than Rodney Scott blowing hot air). We heartily welcome David to the firm.<br />
<br />
<strong>Christopher King</strong>, associate, is coaching youth soccer and baseball with the Louisville YMCA. Now his arms and legs can both be sore.<br />
<br />
Mick Ward, Scott Tyler, Ken Doane, Tricia Hofmann and Scott Waters are pleased to announce that their partner, <strong>Rodney Scott</strong>, has been selected to serve as the firm’s managing member. Plaintiffs’ attorneys were not making his life difficult enough.<br />
<br />
<strong>Mick Ward</strong>, member, is pleased to announce the graduation of his son, Cory, from Indiana Univiversity with a Criminal Justice major. He and Mick celebrated with a recent diving, fishing and pleasure vacation to Key West. <br />
<br />
<strong>Ken Doane</strong>, member, recently volunteered his time to help Bridgepointe Goodwill in Clarksville with the reopening of a store that was lost in a fire. Only one hammer was broken.<br />
<br />
<strong>Scott Waters’</strong>, member, daughter, Megan Waters, just finished a semester of studying comparative politics in Nizhny Novgorod, Russia after completing a semester term on the same topic in Oxford, England. Megan hopes to continue her studies in Russian and to work for the U.S. State Department or some other related endeavor in Russia. Michelle Waters, another one of his daughters, is going to attend Belfast Bible College in Belfast, Ireland in the fall of this year as part of an overseas study program with Moody Bible Institute where she attends. And with another daughter yet to go to college Scott, understandably, is now spending most of his time in the office.<br />
<br />
On April 19, 2007, <strong>Peggy Timmel</strong>, associate, gave a presentation on estate-planning issues to the Floyd County “Angels of Hope” Cancer Survivors Group. She spoke on various topics, including the importance of estate planning, the different types of estate plans, long-term care insurance issues, special-needs trusts and Medicaid planning. The “Angels of Hope” group celebrates its tenth anniversary in June.<br />
<br />
<strong>Teresa Lewis</strong>, legal assistant, is pleased to announce that her daughter, Tracy, is now engaged to Nick Ludwig. Nick popped the question on April 13th after a romantic carriage ride through Waterfront Park. Tracy also recently got the news that she will be teaching at Silver Creek Elementary this fall. Mom could not be happier. <br />
<br />
On May 10, 2007, <strong>Ken Doane</strong>, member, graduated from Leadership Southern Indiana (LSI) as a member of LSI’s 25th anniversary class. The program begins with a two-day retreat then runs September through May. The class meets for one full day each month and learns from field trips and guest speakers about topics such as Southern Indiana’s history, local government and law, educational system, tourism and commerce and industry. He is now challenging <strong>Scott Tyler</strong>, member, for community service hours. <br />
<br />
<strong>Mick Ward’s</strong> wife, Carol, is retiring after 31 years as an elementary teacher. The firm – especially Mick – wants to congratulate her for her exceptional service. We bet Mick is going to miss the kindergarten teacher talks.<br />
<br />
<strong>Peggy Timmel</strong> also recently presented a brief overview of Pooled Special Needs Trust Funds to attorneys, financial planners and other her peers at the Southern Indiana Estate Planning Council. The lunch kept everyone there until it was over. <br />
<br />
<strong>Scott Waters</strong> attended the American Health Lawyers Association annual health law conference for physicians, physician groups and hospital systems in Las Vegas. The three day conference covered current hot topics of health law, Texas Hold’em, and national and local issues facing physicians and hospitals. <br />
<br />
<strong>Jessica Batman</strong> (no relation to Bruce Wayne) recently joined the firm as a litigation assistant. She has significant experience and will be working with <strong>Tricia Hofmann</strong> and <strong>George Budd</strong>. She is also working towards her BA in Human Resources and Administration.<br />
<br />
Ward, Tyler & Scott, LLC, is sponsoring a Little League baseball team in New Albany. <strong>Mick Ward’s</strong> grandson, Logan Charbonneau, is proud to wear the team colors and firm logo.<br />
<br />
For the fourth straight year, <strong>Ken Doane</strong> has coached youth soccer with the Southern Indiana United recreational soccer program. Curiously enough, his kids have always been the stars of these teams.<br />
<br />
On May 24, 2007, <strong>Scott Waters</strong> is presenting a 1-hour education program to the Kentucky Association of Medical Staff Services (includes Clark and Floyd Counties in Indiana) on “Future Legal Aspects of the Roles of Medical Staff Coordinators.” Get your tickets while they last.<br />
<br />
<h2><a name="client-outcomes"></a>Client Outcomes</h2>
<p>Scott Tyler and <strong>George Budd</strong> tried <em>Johnson v. Polly Freeze</em> in Floyd Circuit Court in defense of a business owner that allegedly obstructed the view of a motorist exiting its parking lot, resulting in an accident with a passing motorist. The jury found defendant without fault in the matter. Westfield Insurance Group honored their effort by awarding them the <br />
<br />
<strong>Golden Gavel</strong>. The Claims Legal Support Unit presents the Golden Gavel Award in formal recognition of outstanding achievement by outside counsel. Nominations are completed by Westfield Claims Professionals and submitted to the Director of Claims Legal Support Unit. One award winner is selected each month from the nominations received. <br />
<br />
<strong>Mick Ward</strong> and <strong>Chris King</strong> continue to assist individuals and charitable organizations in their efforts to protect undeveloped land and preserve natural wildlife habitats for the benefit of the environment and future generations. By working closely with state and federal government agencies, as well as private organizations, such as The Nature Conservancy, they have helped protect more than 1000 acres in the past year through the use of conservation easements, donations and acquisitions. <br />
<br />
<strong>Ken Doane </strong>and<strong> Rodney Scott </strong>tried <em>Bailey v. State Farm Mutual Automobile Insurance Company </em>in Washington Circuit Court. Plaintiff claimed to be a passenger in a vehicle that exited the roadway and ejected him and the alleged driver – Matt Caudill - from the vehicle. Both occupants admitted drinking and being impaired at the time of the accident. Both occupants, however, denied being the driver at the time of impact. Caudill’s liability insurer, despite its client’s denials, paid its limit and secured a release. Nonetheless, Ken and Rodney defended his underinsured motorist claim against State Farm Mutual Automobile Insurance Company on the liability issue. Relying on the initial reports of the accident and the physical evidence, the jury concluded that Plaintiff was the driver and returned a defense verdict. Plaintiff had over $220,000 in related medical specials. Plaintiff’s motion to correct errors has been denied. <br />
<br />
<strong>Mick Ward </strong>and<strong> Scott Waters</strong>, a real estate agent candidate instructor with the <em>Real Estate Certification Program</em> in Bloomington, Indiana, assisted an estate client in the marketing and transfer of a multi-million dollar tract of land to Northside Christian Church. It was a win for both parties. <br />
<br />
<strong>Tricia Hofmann</strong> recently secured a summary judgment from the Clark Circuit Court in <em>Fowler v. State Farm Mutual Automobile Insurance Company</em>, on the basis that the plaintiff, a permissive user, was not entitled to stack his underinsured motorist coverage on top of that of the vehicle owner’s coverage. <br />
<br />
<strong>Rodney Scott</strong> defended <em>McClanahan v. Mason</em> in Floyd Circuit Court. McClanahan claimed a torn meniscus following a minor, rear-end accident. Indeed, he underwent surgery and accumulated more than $20,000.00 in medical bills. It was defended on the basis that the knee problem was not related to the accident. The focus was on the physical evidence and the cross-examination of the treating surgeon. The jury returned a defense verdict. Plaintiff’s motion to correct error has since been denied, and Plaintiff has initiated an appeal. <br />
<br />
<strong>Scott Waters</strong> just secured a two year renewal of Ward, Tyler & Scott, <font size="1">LLC</font>’s retainer agreement with the Board of Trustees of <em>Floyd Memorial Hospital and Health Services</em>. He acts as lead legal counsel to the board, administration and the medical staff of Floyd. He is also assisting the Board on its syndication of ownership interests to physicians of Northgate Surgery Center, a joint venture with <em>Kleinert Kutz,</em> world renowned hand surgeons, and other orthopedic specialists. <br />
<br />
<strong>Scott Tyler</strong> and <strong>Tricia Hofmann</strong> secured an arbitration award in the matter of <em>Hupp v. Martin</em>, a breach-of-contract case arising out of an employment agreement. They subsequently defeated Martin’s attempt to modify the award, and the court entered judgment thereon. Martin’s motion to correct errors is pending. Subsequently, in February of 2007, they prevailed on a motion to dismiss/motion for summary judgment in <em>New Albany Residential, Inc. v. Hupp</em>, on the basis that it was a compulsory counterclaim that was required to have been filed as part of the underlying arbitrated case. Briefs have been filed in the appeal. <br />
<br />
<strong>Margaret “Peggy” Timmel</strong> has performed significant legal services including guardianships for the disabled and minors and estate planning services as part of the firm’s Pro Bono commitment to residents of Clark, Floyd and Scott <br />
<br />
<strong>Mick Ward </strong>continues to be actively and intimately involved in the numerous real estate transactions occurring in local industrial parks. Since 1985, when one of his clients, now the Koetter Group, bought the bare dirt that has since evolved into Park East Industrial Park, nestled between Southern Indiana’s picturesque knobs on the north and Indiana University Southeast on the south, Mick has assisted the Koetter Group and others in the sale, development and exchange of numerous properties in this hub of local industrial activity, as well as in several other industrial- and business-parks in the region. These are often substantial transactions, sometimes involving complicated tax-deferred exchanges. <br />
<br />
<strong>George Budd</strong> tried <em>Joyce v. Phoenix Automotive II, Inc. d/b/a Mr. Transmission</em> in the Clark Superior Court No. 3. Plaintiff claimed that Mr. Transmission had damaged his vehicle’s engine during the repair of the transmission. After tendering payment for the transmission, Plaintiff issued a stop payment on his draft and later filed a lawsuit against Mr. Transmission regarding the alleged engine damage. Mr. Transmission filed a counterclaim against Plaintiff premised in his failure to pay for the transmission and the stop payment issued on the draft. At trial, the case was defended on the basis that Mr. Transmission did not damage Plaintiff’s engine during the repair of his transmission. The jury returned a defense verdict on Plaintiff’s lawsuit and awarded damages to Mr. Transmission on its counterclaim, including attorney’s fees. Mr. Transmission is currently in the process of collecting its $3,420.34 judgment against Plaintiff. <br />
<br />
<strong>Rodney Scott</strong> tried <em>Morton v. Pease</em> in the Switzerland Circuit Court. Morton claimed that a dog from Pease’s property ran into the path of his motorcycle. Pease claimed that the dog in question was a stray that had adopted his farm but came and went as he pleased, that he had no duty to restrain the dog and that, in any event, the accident could have been avoided by Plaintiff if he had kept a proper lookout and maintained control of his motorcycle. The jury returned a verdict attributing 100% of the fault to Plaintiff. <strong>George Budd</strong> was instrumental in providing support and assistance. <br />
<br />
<strong>Rodney Scott</strong> and <strong>Julie Flanigan</strong> defended an absentee defendant in Washington Superior Court. In <em>Terry v. Albertson</em>, the only issue tried related to the damages claimed by Plaintiff. Plaintiff had a complicated pre-accident medical history. Her attorneys arranged for an “IME” with Dr. David Changaris. Dr. Changaris related her ongoing problems and treatment to the accident and diagnosed her with a permanent injury. Based on Dr. Changaris’ opinion, Plaintiff was going to present the testimony of a vocational economist claiming between $544,668.00 and $906,920.00 in future lost wages. The court excluded Dr. Changaris’ deposition testimony but provided that he could testify live at trial if, at that time, he was better able to provide a scientific basis for his testimony. At trial, the Court ultimately decided to exclude Dr. Changaris’ testimony relating Plaintiff’s depression, permanency rating, low back problems and/or antalgesic gait to the accident. He was only permitted to opine about an L3 nerve root stretch injury. The jury awarded $95,000.00 to Plaintiff, based on around $44,000.00 in medicals and $21,000.00 plus in wage loss. Although Rodney and Julie were disappointed with the verdict, they were happy to have successfully challenged Dr. Changaris and believe that this Court’s ruling will assist greatly in the defense of further lawsuits since he is a regular on the testifying circuit. <br />
<br />
<strong>Chris King</strong> recently assisted Floyd Memorial Hospital and Health Services in obtaining approval from the New Albany City Board of Zoning Appeals for expansion of the Hospital's existing campus. This approval is the latest in a series of zoning and regulatory approvals related to Floyd Memorial's 250,000-square-foot expansion, including a new Heart Center, emergency room, parking and physical plant improvements to serve Floyd County and surrounding areas. <br />
<br />
<strong>Scott Tyler</strong> and <strong>Julie Flanigan</strong> successfully excluded evidence of a Plaintiff’s motion x-ray in <em>Hembree v. Howard</em> in the Jackson Superior Court. The motion x-ray was performed by Insight Digital Motion X-Ray at Fuller Chiropractic Clinic. In support of their motion in limine, Scott and Julie submitted the expert report of a board-certified radiologist with an added qualification in neuroradiology. The doctor opined that motion x-ray is only investigational and experimental and lacking in scientific merit. <br />
<br />
<strong>Rodney Scott</strong> secured summary judgment from the Washington Superior Court in <em>Hennessy v. Sanders</em>. Plaintiff came to Washington County in response to an internet advertisement in hopes of buying an Appaloosa from Rodney’s client. Soon after she put her saddle on the horse and mounted it, it either stumbled or bucked. Either way, she fell to the ground and suffered pretty serious injuries. The Court concluded that the undisputed evidence established that the horse had no dangerous propensities about which Sanders knew or should have known, that Plaintiff incurred the risk of her injuries and/or that the Defendant was immune from liability pursuant to the terms of Indiana’s “Equine” Act. <br />
<br />
<strong>David Agnew</strong> recently got word of a published appellate decision from the Indiana Court of Appeals in <em>Micronet, Inc. v. Indiana Utility Regulatory Com'n</em>, -- N.E.2d --, 2007 WL 1364659 (Ind. App., 2007), in which he played a big role. While he was an attorney at the Indiana Office of Utility Consumer Counselor (“OUCC”), David filed a complaint with the Indiana Utility Regulatory Commission (“Commission”) alleging Micronet, Inc. and its billing agent, H.T. Teleservices, Inc., had billed dozens of Indiana telephone customers for services they had not ordered. Micronet refused to cooperate with the Commission’s investigation of the allegations, arguing that the Commission lacked jurisdiction to hear the complaint. The Commission issued a decision imposing over $2.1 million in fines on the two companies. Micronet appealed to the Indiana Court of Appeals, arguing the decision exceeded the Commission’s authority. On appeal, David defended the Commission’s decision, which the Indiana Court of Appeals affirmed shortly after David joined Ward, Tyler & Scott.</p>
<p><br />
</p>
<p><strong>Rodney Scott</strong> and <strong>Tricia Hofmann</strong> secured summary judgment from the Floyd Superior Court in <em>Anderson v. Schneider Construction, et al</em>. Plaintiff fell on ice in a parking lot of a commercial establishment. Schneider Construction was asked to clear the lot for the owner. He was not liable, however, because he did not owe any duties to the Plaintiff once he had completed his work in the manner requested. The only duties at the time of Plaintiff's fall were owed by the landowner.</p>
<p><br />
</p>
<p>THIS WEBSITE AND THE RESULTS DESCRIBED ABOVE ARE NOT INTENDED TO CONSTITUE AN ENDORSEMENT OF ANY PARTICULAR ATTORNEY OR CONSTITUTE A REPRESENTATION ABOUT THE QUALITY OF LEGAL SERVICES. ADDITIONALLY, WARD, TYLER & SCOTT, <font size="1">LLC</font> DOES NOT BELIEVE THAT PAST RESULTS PREDICT FUTURE SUCCESS AND CANNOT WARRANT OR GUARANTEE RESULTS IN PENDING OR FUTURE CASES.</p>
<br />
<br />
<h2><a name="legal-updates"></a>Legal Updates</h2>
<strong><u>Estate</u><br />
<br />
Key Estate and Gift Tax Numbers in Effect for 2007:<br />
</strong><em><br />
Applicable Credit Amount:<br />
</em><blockquote>The “applicable credit amount” equates to an exemption from taxation for transfers in certain amounts made during life or at death. The applicable gift tax credit for 2007 is <strong>$345,800</strong>. This equates to an exemption for <strong>$1,000,000</strong> of property transfers.<br />
<br />
The applicable estate tax credit for 2007 is <strong>$780,800</strong>. This equates to an exemption for <strong>$2,000,000</strong> of total property transfers.<br />
<br />
The highest Estate and Gift tax rate for 2007 is <strong>45%</strong>.<br />
</blockquote><em><br />
Annual Gift Tax Exclusion:</em><br />
<blockquote>The “annual exclusion amount” for gift tax purposes for 2007 is <strong>$12,000</strong>. </blockquote><em><br />
Marital Gift Exclusion for Noncitizen Spouse Recipient:<br />
</em><blockquote>The unlimited gift tax marital deduction is available only if the spouse receiving the gift is a citizen of the United States. The gift tax annual exclusion amount for 2007 for gifts to a qualified spouse is <strong>$125,000</strong>. </blockquote><em><br />
Generation-Skipping Transfer Tax Exemption:</em><br />
<blockquote>The Generation-Skipping Transfer Tax applies to taxable distributions, taxable terminations of interests or direct skips made to individuals more than one generation below that of the transferor, unless an applicable exemption or exclusion applies. Every such transferor may allocate a lifetime exemption for this purpose against both lifetime gifts and transfers at death. For 2007, this exemption is $2,000,000.<br />
</blockquote><br />
<em>Special Use Valuation:</em><br />
<blockquote>A Personal Representative of an estate may elect to value real property used for farming or other qualified business purposes based upon its actual use, rather than on its theoretical highest or best use, to arrive at a value, for estate-tax purposes, that is less than the property’s fair market value. If the strict statutory conditions for this election are met, the maximum allowable reduction from fair market value for this purpose is $940,000.<br />
</blockquote><br />
<em>Section 6166 Deferral of Tax on Closely-Held Businesses:</em><br />
<blockquote>Section 6166 provides an extension of time to pay estate taxes assessed against a business interest. If certain strict requirements are met, the Personal Representative of the decedent’s estate may elect to defer payment of the tax for four years, and thereafter pay the tax in up to 10 annual installments. During the first four years of the extended payment period, the estate need only pay interest on the amount of the tax that is deferred. A special interest rate, 2%, applies to the portion of tax attributable to the first $1,250,000, indexed for inflation in the business’ value, for the estate of a decedent dying in 2007. Any remaining tax will bear interest at 45% of the regular under-payment rate. After the initial four-year period, the principal amount of the estate-tax liability, together with interest on the unpaid balance, must be paid off in 10 or fewer annual installments.<br />
</blockquote><br />
<u><strong>HEALTHCARE</strong></u><br />
<br />
<strong>New Indiana Health Legislation Effective July 1, 2007:</strong><br />
<blockquote><u>“Cigarette Tax” - - House Enrolled Act No. 1678</u> - Creates an average 44 cent state tax on a pack of cigarettes to be used for payment of indigent healthcare for Medicaid Current Obligations and Indiana’s “check-up plan” trust and for other “health initiatives of the state general fund. This hard-fought Act that Governor Daniels signed May 10, 2007 also provides a state tax credit to employers who aren’t covered by ERISA and who offer a “health plan benefit” to employees for the first time in an effort to get small business to start to offer such plans. The credit can be no greater than $2,500 or $50 per employee enrolled in such a plan. In addition, a “small employer qualified wellness program tax credit” is also created. This credit is for small businesses (2 to 100 employees) whose owners are actively engaged in the business and spend 50% of their working days in that business. The credit is 50% of the cost of such wellness program. Finally, this Act fixes certain matching provisions of the state law to maximize the Medicaid moneys paid by the Federal government to the State of Indiana, and none too soon, as payments from the State to indigent care hospitals is still in arrears since 2005!! Read the Act at: <a href="http://www.in.gov/legislative/bills/2007/HE/HE1678.1.html">http://www.in.gov/legislative/bills/2007/HE/HE1678.1.html</a><br />
<br />
<u>“New Patient Safety Program” - - Senate Enrolled Act No. 207</u> - This new law signed by Governor Daniels on May 2, 2007, requires the state department of health, subject to appropriation by the general assembly, to enter into an agreement with an agency to collect, analyze, interpret, and disseminate findings regarding patient safety on a statewide basis until June 30, 2010. The law makes it voluntary for certain persons to submit information to the agency and makes the reports and certain other information confidential and privileged. It further requires the state department of health to use standards for infections that have been adopted by a national consensus organization and to report to the health finance commission before September 1, 2007, and September 1, 2008, concerning the implementation of the program. The most important aspect for hospitals and physicians is that it provides that the information remains confidential even if the program expires or is repealed. Read the Act at: <a href="http://www.in.gov/legislative/bills/2007/SE/SE0207.1.html">http://www.in.gov/legislative/bills/2007/SE/SE0207.1.html</a><br />
<br />
<u>“Physician Assistant” (no more “Physician’s Assistant” in Indiana, but they are now “licensed”) -- House Enrolled Act No. 1241</u> – The national debate over licensure of non-physicians (medical doctors and doctors of osteopathy) is not affecting Indiana’s view of the role and responsibility of those “licensed to practice medicine,” i.e. physicians. This new law signed into law April 26, 2007, authorizes a physician to delegate to a physician assistant duties that are within the supervising physician's scope of practice, including prescribing and dispensing certain drugs and medical devices. But the law requires that a supervising physician must be either: (1) <strong>physically present</strong> at the location where services are performed by the physician assistant; or (2) <strong>immediately available</strong> for consultation and <strong>in the county</strong> or a <strong>contiguous county</strong> of the location where the services are being rendered or at a hospital or health facility. Lawyers will like this Act too, as it requires the supervisory agreement (in writing of course) between the physician and the physician assistant to include certain information and be approved by the medical licensing board. The law clearly establishes requirements for a physician assistant to prescribe certain drugs and in certain circumstances requires the patient to be seen by the physician anyway. The law changes references from “certification” to “licensure” of physician assistants, and makes certain other changes concerning the physician assistant committee and licensure of physician assistants. Read the Act at: <a href="http://www.in.gov/legislative/bills/2007/HE/HE1241.1.html">http://www.in.gov/legislative/bills/2007/HE/HE1241.1.html</a><br />
<br />
<u>“Health Insurance Pre-certification of benefits” - - Senate Enrolled Act No. 372</u> - Signed into law April 25, 2007 this law requires the department of insurance to review the current preauthorization practices and procedures and allows the department to review the standardization of other insurance matters. It also requires the department to report to the legislative council before November 1, 2007 concerning the department's findings. From these findings, additional legislation is anticipated to protect providers and enrollees from undue interference by the managed care companies. Read the Act at: <a href="http://www.in.gov/legislative/bills/2007/SE/SE0372.1.html">http://www.in.gov/legislative/bills/2007/SE/SE0372.1.html</a><br />
<br />
<u>“Abolishment of Most Favored Nations Clauses” - - Senate Enrolled Act No. 114</u> - This law signed on April 26, 2007, prohibits health insurers and managed care companies from requiring a provider to give it the provider’s lowest charge, a so-called “most favored nations” clause. This change will allow for more arm’s-length negotiation between providers and insurers. Read the Act at: <a href="http://www.in.gov/legislative/bills/2007/SE/SE0114.1.html">http://www.in.gov/legislative/bills/2007/SE/SE0114.1.html</a><br />
</blockquote><br />
<u><strong>INSURANCE</strong></u><br />
<strong>Clarification on Nature of Insured’s Post-Loss Duties:</strong><br />
<blockquote>In <em>Morris v. Economy Fire and Casualty Company</em>, 848 N.E.2d 663 (Ind. 2006), reh’g denied, the insureds made a first-party claim arising out of a break-in at their premises. Both insureds provided recorded statements, but then refused to either provided requested documentation or submit to examinations under oath until they were provided transcribed copies of those recorded statements. When the insurer refused to provide them, the insureds sued for breach of contract and bad faith. The trial court granted summary judgment for the insurer, but the Court of Appeals reversed.<br />
The Supreme Court agreed with the trial court, concluding that the insureds did not have a right to condition fulfillment of their duties upon the receipt of the transcribed statements. The Court explained that the insurance contract “does not provide that an insured can impose this prerequisite upon the insurer before complying with agreed duties.” The insureds breached the contract as a matter of law, entitling the insurer to summary judgment.<br />
</blockquote><br />
<strong>Third-Party Beneficiaries and Direct Actions against Insurers:</strong><br />
<blockquote>In <em>Cain v. Griffin</em>, 849 N.E.2d 507 (Ind. 2006), Cain fell at the Griffins’ restaurant, sustaining an injury. After the Griffins failed to pay her hospital bills, she sued them. The Griffins’ carrier still did not pay the bills, and Cain amended her claim to state a direct cause of action against the company for breach of contract and bad faith. Both the trial court and the Court of Appeals concluded that since Cain was not a party to the Griffins’ insurance contract, it did not have a right to bring a direct action against the insurance company.<br />
<br />
Judge Sharpnack of the Court of Appeals dissented, relying in large part on a federal appellate court opinion. Cain v. Griffin, 826 N.E.2d 41, 47 (Ind. Ct. App. 2005)(Sharpnack, J., dissenting)(citing <em>Donald v. Liberty</em> Mut. Ins. Co., 18 F.3d 474 (7th Cir. 1994)). He concluded that Cain was a third-party beneficiary of the Griffins’ contract with their insurer, as the contract expressly provided for payment of claimants’ medical expenses, regardless of fault. Since Cain was a third-party beneficiary, the insurer owed her a duty of good faith and fair dealing, as well. As such, Judge Sharpnack reasoned, Cain was entitled to bring both claims.<br />
<br />
The Indiana Supreme Court agreed with Judge Sharpnack as to the breach of contract action, but not with regard to the bad faith claim. It noted that Cain was, in fact, a third-party beneficiary under the medical payments portion of the policy. As such, when the company failed to pay her medical bills as required by the contract, she was entitled to bring a direct action for breach of that contractual obligation. However, being a third-party beneficiary did not create a “special relationship” between Cain and the Griffins’ carrier which is necessary for a duty of good faith and fair dealing. The Court explained that “[t]he relationship between a third-party beneficiary and the insurer is not one intentionally created by a close, fiduciary, or potentially adversarial contract and, as such, is not the ‘special relationship’ anticipated by this Court in Erie [<em>Ins. Co. v. Hickman</em>, 622 N.E.2d 515 (Ind. 1993)]. Thus, a third-party beneficiary cannot sue an insurer in a tort action for the insurer’s failure to deal in good faith with a third-party beneficiary.” <em>Cain</em>, 849 N.E.2d at 515.<br />
</blockquote><br />
THIS WEBSITE IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. WARD, TYLER & SCOTT, LLC DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS SITE IS STILL ACCURATE, COMPLETE OR CURRENT.<br />
<br />
<h2><a name="our-perspective"></a>Our Perspective</h2>
This spring, Indiana appellate courts have issued a handful of opinions addressing the scope of negligent infliction of emotional distress claims. Historically, such claims were permitted if the plaintiff experienced a “direct impact” in the accident. <em>Shuamber v. Henderson</em>, 579 N.E.2d 452 (Ind. 1991). For instance, this would be the case if one passenger in an accident experienced emotional distress from witnessing the death of another passenger. To be compensable, the plaintiff’s emotional distress must be “serious in nature and of a kind and extent normally expected to occur in a reasonable person.”<em> Id</em>. Subsequently, emotional distress claims were allowed without an impact, when the plaintiff was a bystander who directly witnessed a severe injury to a spouse, child, parent, grandparent, grandchild or sibling or “analogous” relation. <em>Groves v. Taylor</em>, 729 N.E.2d 569 (Ind. 2000). Again, there was a requirement that the plaintiff’s response be reasonable and appropriate to the circumstances.<br />
<br />
In <em>Smith v. Toney</em>, 862 N.E.2d 656 (Ind. 2007), the court rejected an emotional distress claim brought by a woman who witnessed the death of her fiancé. It declined to consider a fiancé “analogous” to a spouse for three reasons: promoting the state’s interest in marriage, preventing an unreasonable burden to the courts, and limiting the scope of persons to whom a tortfeasor could possibly owe a duty of care. The <em>Smith</em> court also held that a bystander plaintiff must establish certain temporal and circumstantial facts to recover. “The scene viewed by the claimant must be essentially as it was at the time of the incident, the victim must be in essentially the same condition as immediately following the incident, and the claimant must not have been informed of the incident before coming upon the scene.” <em>Id</em>. at 663.<br />
<br />
While <em>Smith</em> narrowed the applicability of bystander emotional distress claims, several opinions issued by the Indiana Court of Appeals did just the opposite. <em>State Farm Mut. Auto. Ins. Co. v. D.L.B. ex rel. Brake, State Farm v. Jakupko, 856 N.E.2d 778 (Ind. Ct. App. 2006), trans. granted, opinion vacated in rap 58(a)(April 12, 2007)</em> 862 N.E.2d 678 (Ind. Ct. App. 2007);<em>Elliott v. Allstate Ins. Co.</em>, 859 N.E.2d 696 (Ind. Ct. App. 2007), trans. granted, opinion vacated in rap 58(a) (April 12, 2007);<br />
<br />
In <em>Jakupko</em>, husband/driver was paralyzed in an accident with an underinsured motorist. His wife and children were passengers at the time. The court held that negligent of emotional distress was an independent tort and abrogated prior case law to the contrary, <em>Doe v. Lafayette Sch. Corp.</em>, 846 N.E.2d 691 Ind. Ct. App. 2006). In a matter of first impression, the court concluded that the passengers’ emotional distress, which produced physical manifestations, including sleeplessness, constituted “bodily injury” as defined by UIM portion of the policy. As the passengers had their own “bodily injury” and their own cause of action, the “per occurrence” limit was triggered. The family’s claims were not confined to the single “per person” UIM cap. The court did not address whether emotional distress without any physical manifestation would constitute “bodily injury.”<br />
<br />
<em>Elliott</em> went one step further. The driver (Amanda) of a vehicle was seriously injured in an accident with an uninsured motorist. Her passengers were her son (Austin) and sister (Amber). Amanda was insured by Allstate under a policy with $25,000 per person, $50,000 per occurrence UM coverage. Allstate paid Amanda $25,000 for her personal injury claim. The court concluded that Austin and Amber had their own claims for emotional distress and were entitled to the remaining $25,000. Consistent with <em>Jakupko</em>, the court held that the physical manifestations (diminished concentration and sleep deprivation) of Austin’s emotional distress were “bodily injury” under the policy. The Court then held, as a matter of first impression, that emotional distress can be “bodily injury” even in the absence of any physical manifestations. Amber had clinical depression and was consumed by feelings of guilt, anger and sadness, but was not in counseling and had no outward physical signs. Nonetheless, she had a compensable emotional distress claim.<br />
<br />
Finally, the<em> D.B.</em> case appears to throw the rules out the window. A young boy witnessed his cousin hit and killed by a motorist while riding his bike. As a result, the boy experienced weight gain, nightmares, sleeplessness and anger outbursts. The court concluded that the young plaintiff had a compensable emotional distress claim, although the relationship of “cousin” was not ever recognized previously. In addition, the court suggested that the boy’s claim exposed the per occurrence limit. The curiously-worded opinion leaves it unclear whether $200,000 or $300,000 was at risk. The logical conclusion would be that the deceased boy’s parents would receive $100,000, and the emotional distress plaintiff would receive $100,000, for a total of $200,000 exposure. However, D.B. suggests that the emotional distress plaintiff could receive $200,000. Of course, such a reading is contrary to how per occurrence provisions have historically been applied, and we believe the court must not have intended such an outcome. We will continue to monitor whether this is addressed in later cases, specifically during the transfer of <em>Jakupko and Elliott</em>.<br />
<br />
<h2><a name="featured-trial-report"></a>Featured Trial Report</h2>
<table cellspacing="0" cellpadding="0" border="0">
<tbody>
<tr>
<td valign="top" width="200">Caption:<br />
<br />
</td>
<td> </td>
<td valign="top">Jason C. Johnson v. Polly’s Freeze</td>
</tr>
<tr>
<td valign="top">Cause No.: <br />
<br />
</td>
<td> </td>
<td valign="top">22C01-0105-CT-251</td>
</tr>
<tr>
<td valign="top">Court:<br />
<br />
</td>
<td> </td>
<td valign="top">Floyd Circuit</td>
</tr>
<tr>
<td valign="top">Judge:<br />
<br />
</td>
<td> </td>
<td valign="top">Hon. J. Terrence Cody</td>
</tr>
<tr>
<td valign="top">Carrier:<br />
<br />
</td>
<td> </td>
<td valign="top">Westfield Group</td>
</tr>
<tr>
<td valign="top">Damages Awarded:<br />
<br />
</td>
<td> </td>
<td valign="top">None (defense verdict on liability)</td>
</tr>
<tr>
<td valign="top">Incurred Medicals:<br />
<br />
</td>
<td> </td>
<td valign="top">Approximately $54,765.00</td>
</tr>
<tr>
<td valign="top">Last Demand:<br />
<br />
</td>
<td> </td>
<td valign="top">$60,000.00</td>
</tr>
<tr>
<td valign="top">Last Offer:<br />
<br />
</td>
<td> </td>
<td valign="top">$25,000.00; withdrawn after mediation</td>
</tr>
<tr>
<td valign="top">QSO:<br />
<br />
</td>
<td> </td>
<td valign="top">$5,000.00 post-mediation</td>
</tr>
<tr>
<td valign="top">WT&S Attorneys:<br />
<br />
</td>
<td> </td>
<td valign="top">Scott L. Tyler and George A. Budd</td>
</tr>
<tr>
<td valign="top">Synopsis:</td>
<td> </td>
<td valign="top">On May 28, 1999, Brian Johnson was leaving the parking lot of Polly’s Freeze, an ice cream store located on State Road 62 in Floyd County, Indiana. As he pulled out onto S.R. 62, he struck a motorcycle operated by Jason Johnson (no relation). Jason Johnson, who was not wearing a helmet, sustained various injuries, including an alleged brain injury. He sued Brian Johnson, Polly’s Freeze and the State of Indiana under negligence theories. The claims against Polly’s Freeze and the State of Indiana were predicated on the notion that their acts or omissions impaired Brian Johnson’s view of traffic on S.R. 62. Brian Johnson and the State of Indiana settled with Plaintiff pre-trial.<br />
Brian Johnson testified that the accident was his fault, and that his view was not obstructed. Similarly, the investigating officer concluded that Brian Johnson’s negligence was the cause of the accident, and an eyewitness did not see any obstruction.<br />
At trial, Jason Johnson’s lack of helmet was admitted over his objection. Defendant made the argument that, since a person with a motorcycle permit would have a duty to wear such a helmet, no less should be required of someone lacking even a permit. Defendant’s expert opined that had Plaintiff worn a helmet, he would not have sustained a head injury. Plaintiff filed a lengthy motion in limine to exclude this expert on Rule 702/Daubert grounds. That motion was denied. <br />
Following a four-and-a-half-day jury trial, the jury entered a defense verdict on behalf of Polly’s Freeze. Plaintiff agreed to forego an appeal or Motion to Correct Error in exchange for Defendant’s agreement not to seek attorney’s fees owed pursuant to the rejected qualified settlement offer.</td>
</tr>
</tbody>
</table> Linkshttp://www.wtshdlaw.com/site/resources/links.html2008-02-28T06:11:17Z
<ul>
<li><a href="http://www.martindale.com">http://www.martindale.com </a>Martindale-Hubbell Legal Directory </li>
<li><a href="http://www.aig.org">http://www.aig.org </a>Access Indiana Information Network </li>
<li><a href="http://www.dri.org">http://www.dri.org </a>Defense Research Institute </li>
<li><a href="http://www.findlaw.com">http://www.findlaw.com </a>FindLaw </li>
<li><a href="http://www.fire-investigators.org">http://www.fire-investigators.org </a>International Assoc. of Arson Investigators </li>
<li><a href="http://wwwaccessgpo.gov">http://wwwaccessgpo.gov </a>U.S. Government Printing Office </li>
<li><a href="http://cilp.org/tblhome.html">http://cilp.org/tblhome.html </a>Center for Information Law and Policy </li>
<li><a href="http://www.findlaw.com/13experts/index.html">http://www.findlaw.com/13experts/index.html </a>Expert Witness Directory </li>
<li><a href="http://expertpages.com">ExpertPages.com</a> Expert Witness Directory </li>
<li><a href="http://freeadvice.com">FreeAdvice.com</a> The Leading Internet Legal Site for Consumers and Small Businesses. </li>
</ul>
Employmenthttp://www.wtshdlaw.com/2010-02-18T14:46:02ZFirm Culturehttp://www.wtshdlaw.com/site/employment/firm-culture.html2010-02-18T14:46:02Z
<p><img style="margin: 0pt 10px 0pt 0pt" border="0" alt="" align="left" width="150" height="112" src="/uploads/3/Image/SmallContentPics/C_FirmCulture5.jpg" />Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC</font> is proud of the fact that it is large enough to meet its clients’ needs, yet small enough to know their names. It offers the best of both worlds – large-firm resources and experience and small-firm interpersonal relationships and values. That is the direct result of the firm culture.<br />
<br />
Like larger firms, we offer competitive salaries and advancement opportunities. Employees have access to innovative, state-of-the-art technology, including remote network access, trial software, digital dictation and an increasingly paperless environment. In addition, the firm appreciates its reputation in the southern Indiana and greater Louisville legal community. It is located minutes from Louisville, making all the resources of the United States’ twenty-fifth largest city readily available.<br />
<br />
At the same time, the firm provides benefits one would ex<img style="margin: 0pt 0px 0pt 10px" border="0" alt="" align="right" width="146" height="110" src="/uploads/3/Image/SmallContentPics/C_FirmCulture2.jpg" />pect from smaller firms. The firm has annual get-togethers for all employees and their families, where the only stress relates to competitive games of volleyball, croquet and Scrabble. The firm has an annual holiday party, and quarterly dinners for attorneys and their spouses or significant others. The <img style="margin: 0pt 10px 0pt 0pt" border="0" alt="" align="left" width="151" height="109" src="/uploads/3/Image/SmallContentPics/C_FirmCulture3.jpg" />small number of attorneys allow for mentoring opportunities which benefit individual attorneys and the firm as a whole. The firm is located in a community of approximately 45,000 people, with an active and collegial bar association.<br />
<br />
</p>
<p>Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC</font> is proud of its reputation and <img style="margin: 0pt 0pt 0pt 10px" border="0" alt="" align="right" width="166" height="104" src="/uploads/3/Image/SmallContentPics/C_FirmCulture1.jpg" />its hard work for its clients. We also recognize the importance of a healthy work-life balance, and affirmatively nurture the families, civic activities and community service of its attorneys and staff.</p>
<p> </p>
<p> </p>
<p> </p>
<p> </p>
<p> </p> Openingshttp://www.wtshdlaw.com/site/employment/openings.html2009-05-26T14:18:58Z
<p>The firm is currently hiring for the position of Litigation Associate.</p>
<p>Interested candidates should submit a current resume to:</p>
<p> </p>
<p>Kenneth G. Doane, Jr.<br />
Partner<br />
Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC</font><br />
1947 E. Spring Street<br />
New Albany, IN 47150</p>
<p> </p>
<p>For information about other possible positions opening with the firm, please contact:</p>
<p> </p>
<p>Lisa G. Scott<br />
Office Administrator<br />
Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC</font><br />
1947 E. Spring Street<br />
New Albany, IN 47150</p>
<p> </p>
<p>Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC </font>is an equal opportunity employer. It recruits and hires candidates without regard to race, color, religion, sex, national origin, sexual orientation, age or other legally-protected characteristics.</p> How to applyhttp://www.wtshdlaw.com/site/employment/how-to-apply.html2008-03-01T11:44:33Z
<p>Individuals interested in attorney positions with the firm should submit a current resume to: </p>
<p><br />
<br />
Kenneth G. Doane, Jr.<br />
Partner<br />
Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC<br />
</font>1947 E. Spring Street<br />
New Albany, IN 47150 <br />
<br />
Candidates for staff positions should submit a current resume to: </p>
<p> </p>
<p>Lisa G. Scott<br />
Office Administrator<br />
Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC<br />
</font>1947 E. Spring Street<br />
New Albany, IN 47150</p> Benefitshttp://www.wtshdlaw.com/site/employment/benefits.html2009-05-26T14:19:50Z
<p>Waters, Tyler, Scott, Hofmann & Doane,<font size="1"> LLC</font> offers competitive salaries to its associates and staff, which are reviewed annually. In addition, the firm provides the additional benefits to its employees:</p>
<ul>
<li>Performance and longevity bonus opportunities</li>
<li>Health insurance</li>
<li>Long-term disability insurance</li>
<li>Life insurance</li>
<li>401K contribution after one year of service</li>
<li>Free parking</li>
<li>Generous vacation and personal-day packages</li>
</ul>
Mission Statementhttp://www.wtshdlaw.com/2010-02-18T13:46:54ZMissionhttp://www.wtshdlaw.com/site/mission/mission.html2010-02-18T13:46:54Z
<p>Our mission at Waters, Tyler, Scott, Hofmann & Doane, LLC, is to provide quality legal services for our clients in Indiana and Kentucky. Our objective is to employ state-of-the-art technology in conjunction with a highly-informed staff of lawyers, paralegals and legal secretaries to provide clients maximum economy and efficiency while insisting on the highest standards of confidentiality and professionalism.<br />
<br />
Toward that end, Waters, Tyler, Scott, Hofmann & Doane, LLC, offers: client surveys which allow you to evaluate each lawyer's performance; flexible budget and billing programs; computer and internet-assisted research; integrated calendars, file management and billing systems; and efficient voice mail, e-mail and networked communications.<br />
<br />
Waters, Tyler, Scott, Hofmann & Doane, LLC, above all, strives to provide superior responsiveness and service to its clients, along with the resources and efficiencies they deserve.</p>
Contact Ushttp://www.wtshdlaw.com/2010-02-18T14:18:28ZContact Formhttp://www.wtshdlaw.com/site/contact/contact-form.html2010-02-18T14:18:28Z
<p>Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC <br />
</font>1947 East Spring Street<br />
New Albany, Indiana 47150-1658</p>
<p> </p>
<p>Phone: (812) 949-1114<br />
Fax: (812) 949-2189<br />
Email: <a href="mailto:wts@wardtylerscott.com">lscott@wtshdlaw.com</a></p>
<p>We hope you enjoy visiting our website. Please be advised that this site provides general information only and should not be construed as legal advice. In contacting us please do not disclose any information that you believe to be confidential unless and until we have formally established an attorney-client relationship and a written engagement letter has been issued to you. Information you send to us through the internet may be intercepted by third parties, and we disclaim responsibility for the consequences of any such interception. Please use the "submit" button below only if you understand these terms and agree with the statements given above.</p> Directionshttp://www.wtshdlaw.com/site/contact/directions.html2008-07-01T08:03:19Z
Select the direction options on the map below for detailed directions to our offices.<br />
<br />
THIS IS AN ADVERTISEMENTServing Southern Indiana and Greater Louisville
3<p>Waters, Tyler, Scott, Hofmann & Doane, <font size="1">LLC <br />
</font>1947 East Spring Street<br />
New Albany, Indiana 47150-1658</p>
<p> </p>
<p>Phone: (812) 949-1114<br />
Fax: (812) 949-2189<br />
Email: <a href="mailto:wts@wardtylerscott.com">lscott@wtshdlaw.com</a></p>
<p>We hope you enjoy visiting our website. Please be advised that this site provides general information only and should not be construed as legal advice. In contacting us please do not disclose any information that you believe to be confidential unless and until we have formally established an attorney-client relationship and a written engagement letter has been issued to you. Information you send to us through the internet may be intercepted by third parties, and we disclaim responsibility for the consequences of any such interception. Please use the "submit" button below only if you understand these terms and agree with the statements given above.</p>Contact the experienced attorneys of the New Albany, Indiana, law firm of Waters, Tyler, Scott, Hofmann & Doane LLC. In Floyd County, Southern Indiana or Louisville, call (812) 949-1114.131/uploads/3/Image/lamp2.jpgattorney, lawyer, law firm, New Albany, Indiana, IN, Floyd County, Southern Indiana, Louisville, Kentuckiana, KY, Jeffersonville, Clarksville, Madison, Sellersburg, Charleston, Scottsburg, Corydon, Elizabeth, Salem, Seymour, Columbus, English, Floyds Knobs, Georgetown, Solsberry, Jasper, Clark, Harrison, Washington, Scott, Orange, Crawford, Jefferson, Bartholomew, Jennings, Dubois, Louisville, St. Matthews, Shively, Jeffersontown, Indian Hills, Audubon Park, Newburg, Jefferson, Bullitt, Oldham, Meade22contact-formtruetrue
top_article_template.rhtml
Contact Form2010-02-18T14:18:28-05:00
