If You Think Your Auto Insurance Protects Your Family From Personal Injury Damages—Think Again!

If you drive children to school, you should know about Indiana’s Guest Statute and how it may affect your family

Call personal injury and accident lawyer Charlie Ward today for a free consultation

I would like to explain how the Guest Statute law leaves you and your family unprotected from personal injury damages—not to panic you—but to inform you, your family and your friends. My hope is that you’ll take the information to heart, make thoughtful driving decisions, and then pass the information on. The erroneous assumption that you, your children and other family members are fully covered for personal injuries by your auto insurance policy gives you a false sense of peace. When you purchased your automobile policy, I doubt very much that your agent informed you of Indiana’s Guest law.  Read the statute at Indiana Code 34-30-11 and you’ll get the impression that the legislators are doing you a great favor by granting you—as owner/operator of your vehicle—immunity from injuries sustained by family members. As a matter of fact, the statute favors the far more powerful insurance industry.

What is the Guest Statute?

In essence, the Guest Statute states that a driving error on your part and the resulting damages, personal injuries and possible loss of life will not be covered by your automobile insurance policy if the injured passenger(s) is a family member, riding as a ‘guest’ —specifically a spouse, child, step-child, a sibling or a parent unless the owner, operator or person responsible for the operation of a motor vehicle is willfully or wantonly reckless in their driving conduct.

If you make an error in judgment

For example, you’re driving your son to school. The bell is about to ring, another late slip and your son serves a Saturday detention. Under pressure to get him to school on time, you’re resolved to make the left turn arrow—this time. Poor timing and a lapse of judgment causes a tragic accident by an oncoming car wherein both you and your son suffer catastrophic personal injuries. Your health insurance company may pick up the medicals. But if you don’t have health insurance… well, unfortunately hospitals are not charitable institutions. If you were solely responsible for the accident, the injuries suffered by the other driver, of course, would be covered by your own automobile insurance, perhaps to the policy limits. But your son’s injuries, possible future medicals, wage and loss damages, pain and suffering will not be honored under the same automobile liability policy that will protect the stranger. Good drivers occasionally make errors in judgment. The scenario described above could happen to any one of us at any time. Who do you think stands to benefit from the Indiana Guest Statute?

Collusion?

The insurance companies argue that the opportunity for you and your ‘guest’ passenger to join in collusion against the insurance company is too great a risk.  But the possibility of collusion and false claims should not preclude the substantive right of individual personal injury litigants to have a voice in a court of law, a right granted under the Seventh Amendment to the Constitution. Did the boy used in our example make that driving decision? Was he given a choice between a Saturday detention and the unintended consequence? The insurance companies have been heard—loud and clear. This law is tipped in their favor. Are your state representatives really looking after your family’s best interests?

Experienced personal injury attorneys

The law firm of Ward & Ward has over eighty years of legal experience with personal injury and wrongful death claims. Our firm receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie Ward today for a free evaluation of your claim.  

How Does Indiana’s “Guest” Statute Affect You and Your Family?

The Indiana Guest Statute prohibits family members and hitchhikers from receiving compensation for injuries

Call personal injury and accident lawyer Charlie Ward today for a free consultation

Indiana’s ‘Guest’ statute, Indiana Code 34-30-11 makes it clear that unless the owner, operator or person responsible for the operation of a motor vehicle is willfully or wantonly reckless in their driving conduct, a passenger family member may not hold their host-driver spouse, sibling, parent, step parent or child responsible for bodily injuries or death resulting from the driver’s negligence.

In addition, a hitchhiker may not hold the host-driver responsible for loss or damage arising from injuries or death resulting from the operation of the motor vehicle unless the injuries or death are caused by the wanton or willfull misconduct of the operator, owner or person responsible for the operation of the motor vehicle. Immunity does not apply when passengers make payment for transportation.

How does the Court define willful or wanton behavior?

Willful or wanton behavior is defined by the Indiana Supreme Court as either “1) an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time; or 2)an omission or failure to act when the actor has actual knowledge of the natural and probable consequence of injury and his opportunity to avoid the risk”[McKeown v. Calusa, 172 Ind. App. 1, 5, 359 N.E.2nd 550, 553-54 (1977)].

The Guest Statute IC 34-30-11-1

Indiana Title 34 – Civil Code and Procedure reads as follows:

IC 34-30-11-1

Guest statute

Sec. 1. The owner, operator, or person responsible for the operation of a motor vehicle is not liable for loss or damage arising from injuries to or the death of:

  1. the person’s parent;
  2. the person’s spouse;
  3. the person’s child or stepchild;
  4. the person’s brother;
  5. the person’s sister; or
  6. a hitchhiker;

resulting from the operation of the motor vehicle while the parent,spouse, child or stepchild, brother, sister, or hitchhiker was being transported without payment in or upon the motor vehicle unless the injuries or death are caused by the wanton or willful misconduct of the operator, owner, or person responsible for the operation of the motor vehicle.As added by P.L.1-1998, SEC.26.

Purposes of the Guest Statute

The opinion of the Indiana Court of Appeals, KLLM, Inc. v. Legg, states:

“…we recognized that the purposes of Indiana’s Guest Statute are threefold: first, it reduces the threat of “collusive” lawsuits, whose likelihood would be greater between family members than mere acquaintances; second, it reduces the threat of “Robin Hood” proclivities of juries where juries would be more eager to take from the “rich” liability insurance companies and give to the “poor” victims, especially where the victims were members of the same family; and three, it fosters family harmony by not allowing family members to sue and recover for injuries caused by another family member’s negligence. Davidson, 558 N.E.2d at 851. With respect to hitchhikers, we recognized a fourth purpose for Indiana’s Guest Statute: it deters the illegal act of hitchhiking by not allowing hitchhikers to recover for their injuries caused by a driver’s negligence. Id.
Thus, under the Guest Statute, KLLM would not be liable for any loss or damage arising from the death of Hanna if Hanna was a hitchhiker who was being transported without payment in or upon the motor vehicle at the time of his death.”

What’s the risk when you ride with a relative at the wheel?

In a real world scenario, let’s take a look at how the statute might affect you.

Your car breaks down. You have an important meeting and ask your brother to drive you. To get you there on time, he ekes through a red light and you’re catastrophically injured by an oncoming car. Your brother is at fault for the accident and the personal injuries you’ve incurred because, in his haste, he ran the red light. Your brother has an auto insurance policy and has paid his premiums in good faith. But under Indiana’s Guest Statute, you cannot file a claim against his insurance company for the injuries or disabilities you’ve suffered. Your health insurance policy  may pick-up the majority of medical bills incurred but a high deductible could significantly set you back, possibly even bankrupt your future. A permanent disability resulting from your brother’s momentarily poor judgment could leave you unable to adequately provide for yourself or your family in the future.

Common law requires the host-driver to exercise ordinary care for the safety of his non-paying as well as paying passengers. Yet, Indiana insurance companies have asserted that personal injuries received by a relative of an insured driver invite collusion and false claims. The possibility of collusion should not preclude the substantive right of individual litigants to their day in court. To assert that untruths may be told undermines the judicial system our society lives by. It is not unreasonable to assume that accidents requiring snap decisions result in personal injuries or death to loved ones.  How often do you drive a family member to an event?

Trial lawyers with experience

The law firm of Ward & Ward has over eighty five years of legal experience with personal injury and wrongful death claims and continues to seek justice for clients that have been harmed by the negligence of others. Our firm receives no legal fees or expenses unless we collect damages on your behalf. Call Ward & Ward Law Firm today at 317-639-9501 and ask for “Charlie” for a free evaluation of your claim.

Charlie Ward

(317) 639-9501

www.wardlawfirm.com

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225

Medical Negligence Tort Reform Leaves Catastrophically Injured Patients in the Cold

Tort reform legislation favors insurance companies

Call personal injury and accident lawyer Charlie Ward today for a free consultation

In 1975, Indiana representatives steered our state toward personal injury tort reform legislation in a rush to cap monetary awards ordered by juries in claims of medical negligence. The majority of these first generation “tort reforms” focused on the legal system. The stated objectives of the legislation were two-fold: to keep medical costs down; and to prevent physicians bolting from the state. This knee-jerk reaction to legislate in favor of the insurance industry and physicians has left catastrophically injured patients in the cold. The caps for personal injury victims of medical negligence, apply a “one size fits all” approach to every case. As of July 2011, 39 states have enacted legislation that limits economic and non-economic damage recovery for those who are injured by members of the medical profession. A few states have enacted legislation in favor of tort reform only to be struck down by higher courts as unconstitutional. [See how Indiana’s laws compare with reforms of other states here.]

On their website, The Indiana State Medical Association states:

“Physicians are only responsible for the first $250,000 in damages to any patient for one act of malpractice and no more than $750,000 in the annual aggregate. Indiana’s Patient’s Compensation Fund (PCF) pays any excess, not to exceed $1 million — for a total of $1.25 million.” [Key Features of Indiana’s Medical Malpractice Act published online by the Indiana State Medical Association.]

Tort reform insurance lobbyist crushed by his own reform

Frank Cornelius, a lobbyist for the Indiana Institute of Insurance, worked to secure passage of Indiana’s first medical tort reform laws and by his own account, “fought to enact the law that limits my compensation.” Sadly, Mr. Cornelius was harmed in a series of negligent medical incidents 14 years later that confined him to a wheel chair in excruciating pain requiring a morphine drip, and a respirator to facilitate breathing. What began as a routine arthroscopic surgery left him disabled until an early death at the age of 50. As often occurs when a family member has been catastrophically injured, his marriage fell apart and the consequences his family suffered were painful for him to witness. In a letter penned to the New York Times, shortly before his death, and entitled “Crushed by My Own Reform,” he details his horrendous experiences with the providers medically responsible for his injuries—the same providers he sought to protect with legislation. It states in part:

“Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.” [Read the full text of Mr. Cornelius’ letter here.]

What prompted Legislative Reforms of the Seventies?

During the seventies, physicians were experiencing higher than normal insurance premiums due to a sagging stock market and a decline in insurance company investment revenues. In the publication entitled “Trends Alert”, the Council for State Governments asserts that insurance rates are cyclical and coincide with the ups and downs of the stock market. The Council further claims that a rise in doctor’s insurance premiums occurs every ten years or so. The slump in the economy during the seventies created a crisis which forced insurance companies to raise their premiums at a time when modern medicine was employing more sophisticated forms of treatments and pharmaceutical therapies.

Tort Reform Legislation Overrides the Authority of the Jury System

The Seventh Amendment to the Constitution grants every citizen a right to a trial by a jury. Members of the jury are employed to hear the evidence of a case and to judge the facts. Juries set the awards which can be reduced by the judge if deemed unreasonable against the facts. Our juries act as an essential safeguard against government oppression, unchecked power and undue influence by special interests. Legislated caps on recovery of monetary awards granted by impartial juries have been a source of contention for constitutionalists and continue to be challenged across many fronts. On October 25, 2011, the Indiana Court of Appeals issued a preliminary opinion in the case of Plank v. Community Hospitals of Indiana, Inc. and State of Indiana stating that Mr. Plank, husband of the deceased, was entitled to an evidentiary hearing on the subject of the constitutionality of the State’s malpractice cap. While the Indiana Court of Appeals has routinely upheld the authority of legislators to enact tort reform laws, we’ll watch this case and keep you informed of their decision.

During the healthcare deliberations of twenty-ten, the meme on Capitol Hill was “tort reform” as the key to controlling costs. Insiders and lobbyists unsuccessfully pursued federal legislation that would unite the states. Today the American Tort Reform Association and several well-funded lobbying organizations representing the interests of insurance companies, medical, pharmaceutical and energy industries, and many other major corporations, chip away—state by state—at our jury system of justice by grabbing headlines with catch phrases like “legal abuse” and “runaway attorneys”. We are very fortunate to live in a country where opinions can be expressed. But good decisions by government representatives require a 360°examination of all sides of an issue by a curious public.

You can view Indiana’s legislation at http://www.in.gov/legislative/ic/code/title34/ar18/.

Trial lawyers representing hurt and injured

The law firm of Ward & Ward has more than eighty-five years of legal experience with personal injury and wrongful death claims and continues to seek justice for clients that have been harmed by the negligence of others. Our firm receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie Ward today for a free evaluation of your claim.

By Charlie Ward

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225
317-639-9501

 

Indiana Tort Claims Against Governmental Entities and Their Employees

This article is Part I of a series. It addresses the principal of sovereign immunity and reform of English common law, specifically caps on tort claims against Indiana governmental entities and their employees. Part II will focus on tort reform in Indiana for medical malpractice claims.

History of Sovereign Immunity

Call personal injury and accident lawyer Charlie Ward today for a free consultation

Hoosiers have been privy to considerable discussion lately about caps on tort claims. The conversations have focused primarily around the 2011 Indiana State Fair stage collapse. To add insight into the laws that we live and abide by in the state of Indiana, I thought this would be a good time to explain the $5,000,000 state fund made available for tort claimants and how this incident has spawned controversy in the legal and legislative communities as well as among the public in general.

Up until the 1940’s, American sovereign immunity protected nearly every national, state and local governmental entity and their employees from being sued. The principal of Sovereign Immunity stems from the English common law—upon which our American legal system is founded—wherein the sovereign “King could do no wrong” and therefore, could not be sued by his subjects without first extending his permission. However, during the mid-twentieth century a trend toward government accountability began to emerge and the federal government passed the Federal Tort Claims Act (28 U.S.C. §2674), waiving immunity and liability for certain actions.

Then in 1969 the Indiana State Supreme Court ruled on behalf of plaintiffs (Perkins v. State) who had become ill from lake water contaminated with raw sewage while they were renting a cottage located on state property. With regards to the doctrine of sovereign immunity, Judge Arterburn of the Indiana Supreme Court wrote:

“…law is active and dynamic and thus changes with the times and growth of society to meet its needs”.

In his opinion, Judge Arterburn believed the principles of law on which a court rested a previous decision “…do not prevent the courts from ever changing the common law, but the common law must grow and develop with the growth of our society in which it operates.”

Three years later Judge Arterburn in Campbell v. State of Indiana affirmed that the State, acting in a proprietary activity, “…could not avail itself of the immunity privilege.”

Indiana Tort Claims Act

In 1974 the Indiana State General Assembly enacted legislation entitled the Indiana Tort Claims Act. The law currently in place, Indiana Code, Chapter 3, Section 4 addresses the $700,000 cap per claimant, a $5,000,000 limitation on the aggregate liability for all claimants, and prohibits punitive damage awards. Although the individual awards for personal injury claimants have been increased by legislative amendments over the years, the total cap of $5,000,000 liability, per incident, to settle wrongful death and personal injury claims has remained the same since 1974.

In light of the facts, attorneys and legislators are re-thinking the decades old cap and its ability to address the scope of this situation.  Already one attorney has filed suit claiming the cap denies individuals their fair share and creates an economic incentive for the state to act negligently. Many believe the caps are arbitrary; that every claim is unique and requires a case-by-case approach. But in the end, it is likely that the legislature will have their say as well.

Charlie Ward is a personal injury attorney experienced in accident litigation and wrongful death claims. The law office of Ward & Ward receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie today at 317-639-9501 to discuss your accident and receive a free analysis of your claim.

Charlie Ward

317-639-9501

www.wardlawfirm.com

Tort Reform for Acts of Medical Negligence – Is it the Best We Can Do for Injured Parties?

Indiana’s tort reform endeavorsCall Charlie Ward at 317-639-9501

Unless you’ve been harmed by the negligence of a health care provider, you probably aren’t aware that in 1975 Indiana led the nation in tort reform legislation, placing caps on medical negligence claims. The stated aims of Indiana’s tort reform endeavors were two-fold: to keep physicians from fleeing Indiana during the malpractice crisis of the seventies; and to keep healthcare costs to a manageable level.

During the national healthcare debate of 2010, we heard a lot from Washington about “tort reform” as a necessary precursor to reducing health care costs across the nation. However, most states have already enacted their own brands of tort reform. Washington insiders unsuccessfully sought unifying legislation that would wrench the authority from the states and seat it in the lap of federal legislation. Presently, the objective of the American Tort Reform Association is to fight this battle on a state by state basis. Today, most states have some form of tort reform on the books. Indiana Code Annotated § 34-18-14-3 addresses “Recovery Limitations” also known as “caps” for medical negligence claims.

The earliest Indiana legislation stipulated that prior to 1990, the total amount recoverable for an act of medical negligence or the wrongful death of a patient by a medical caregiver may not exceed $500,000. Since 1975, legislators have twice increased the awards. Currently, for claims accruing on or after July 1st, 1999, the total maximum amount awarded to the plaintiff is capped at $1,250,000. On their website, the Indiana State Medical Association clearly states:

“Physicians are only responsible for the first $250,000 in damages to any patient for one act of malpractice and no more than $750,000 in the annual aggregate. Indiana’s Patient’s Compensation Fund (PCF) pays any excess, not to exceed $1 million — for a total of $1.25 million.” [Key Features of Indiana’s Medical Malpractice Act published online by the Indiana State Medical Association.]

In 1975, Frank Cornelius, a successful and influential lobbyist for the Indiana Institute of Insurance, helped secure passage of Indiana’s original medical tort reform law. Fourteen years later, in an ironic twist of fate, Mr. Cornelius suffered a succession of serious and permanently disabling medical acts of negligence brought about by the same medical providers he sought to protect with legislation. His injuries required permanent confinement to a wheelchair and his breathing was only made possible with the aid of a respirator. Just prior to his death, in a letter written to the New York Times on October 7, 1994 he wrote an article entitled “Crushed By My Own Reform.” It states in part:

“Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.” [Read the full text of Mr. Cornelius’ letter here.]

While the constitutionality of capping medical negligence awards and awards for negligent acts resulting  in wrongful death has been challenged based on the Seventh Amendment to the Constitution, the State of Indiana has routinely upheld the authority of Indiana to legislate tort reform.  However, most recently, on October 25, 2011, the Indiana Court of Appeals issued a preliminary opinion in the case of Plank v. Community Hospitals of Indiana, Inc. and State of Indiana stating that Mr. Plank, husband of the deceased, was entitled to an evidentiary hearing on the subject of the constitutionality of the State’s malpractice cap. We’ll keep you informed of this issue if new developments occur.

We are very fortunate to live in a country where opinions can be stated. The national organizations in favor of tort reform are well-funded and voice their opinions with catch phrases that appeal to the headlines. But good decisions by government representatives can only be made when the public is educated on all sides of an issue.

The law firm of Ward & Ward has over eighty five years of legal experience with personal injury and wrongful death claims and continues to seek justice for clients that have been harmed by the negligence of others. Our firm receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie Ward today for a free evaluation of your claim.

Charlie Ward

(317) 639-9501

www.wardlawfirm.com

The Truth Surrounding Stella Liebeck’s Personal Injury “Hot Coffee” Litigation and the Jury’s Punitive Damages Award | Indianapolis Personal Injury Lawyers

McDonald’s hot coffee case spun by tort reform propagandists

Call Charlie Ward at 317-639-9501

Propaganda is a tool used for the purpose of swaying opinion. Sound bites about the ‘hot coffee’ case against a fast food chain have been crafted to malign and ridicule personal injury attorneys and the American legal justice system for the purpose of achieving local and ultimately national tort reform legislation in America.

Here are the facts surrounding Stella Liebeck’s case against the fast food restaurant for knowingly serving scalding hot coffee, capable of producing third degree burns in less than 7 seconds.

The facts behind the personal injury lawsuit

In 1992, Stella Liebeck, a 79 year old woman from Albuquerque, New Mexico, was driven by her grandson through the drive-thru of a fast food restaurant for a breakfast order. Stella ordered a 49 cent cup of coffee. Since the car was without cup holders, her grandson parked the car so Stella could add cream, and sugar to her coffee. She placed the Styrofoam cup of coffee between her knees and lifted the far side of the lid toward her when the cup collapsed in her lap. She suffered third degree burns on 16% of her body including her abdomen, buttocks, thighs and groin when the coffee was absorbed by the sweat pants she was wearing. She spent eight days in the hospital for skin grafting procedures and an additional two years of medical treatments. She was scalded so badly, there were some doctors that thought she might not make it at all. She never fully recovered from the gruesome injuries.

Injured plaintiff offered to settle for only $20,000

Several attempts at a direct settlement were made by Stella’s family prior to retaining an attorney. One attempt to settle directly with the fast food chain was made early on by Stella’s daughter for the amount of $20,000 to cover Stella’s medical bills of $13,000 and her mother’s lost wages. The fast food chain countered with an offer of $800.00. Future correspondence with the restaurant chain went unanswered.

Plaintiff’s personal injury attorney made a last ditch attempt to settle the claim

Prior to trial, Liebeck’s attorney unsuccessfully offered to settle the case with the fast food chain and to graciously waive his own attorney fees in favor of his client. The day before trial, defense chose not to show up at the scheduled mediation (a last ditch attempt to settle before exercising the court system.) Why? At the time, New Mexico juries had never before found favorably for a plaintiff in any product liability case. The restaurant wanted to go to trial and put the issue to rest for potential future litigants—more than 700 of them, many of which had suffered third degree burns since 1982.

The evidence produced at trial

A typical home brewer serves coffee at a range of 142 to 162. When the coffee is poured into a ceramic cup, the heat dissipates even further. At that range you have up to 25 seconds to remove yourself from the situation before receiving burn injuries. However, at 187 (the temperature at which the fast food restaurant coffee was held),you have only 2-7 seconds to remove yourself from the situation before receiving 3rddegree burns. At trial, the jury learned that defendant’s policy manual required all restaurants hold their coffee between 180-190 degrees—a business decision to optimize taste, reduce waste and marginalize loss. Defendant’s own quality assurance manager testified that their coffee served at 185 in a Styrofoam cup was not fit for human consumption because it would burn the mouth and throat; and further, that the chain had no intention of reducing the holding temperature of its coffee. Defendant further admitted that their customers were unaware that they could suffer third degree burns from their scalding coffee.

Punitive Damage Award

The jury found defendant to be 80% responsible and Liebeck 20% responsible for her injuries. She received a reasonable compensatory award but it was the punitive damage award that stirred the media into a frenzy. Stunned by the chains reckless business decisions, it was a jury of her peers that awarded 2 days of coffee sales to Liebeck, approximately 2.7 million for punitive damages. But, keep in mind that the purpose for punitive damages is to change existing behavior.

A temperature check performed at the same local fast food restaurant where the incident occurred, revealed—post-verdict—that the restaurant had reduced their hold temperature to 158 degrees. Many coffee shops and restaurants have heeded the jury’s admonition and since have reduced their coffee temperatures in kind. But that’s not the end of Stella’s story…

Settlement amount remains a mystery

The trial court subsequently reduced the jury’s punitive damages award to $480,000, 3 times the final compensatory award. And a later settlement agreement between plaintiff and defendant, sealed by the court, adjusted the settlement once again. Few people know or will ever know what amount the plaintiff eventually received. To learn more about this story, you can find the full interview of Stella’s family here.

Personal injury lawyers experienced in product liability and personal injury claims

The jury’s verdict for punitive damages awarded the plaintiff remains a topic of conversation, even today. Just this week  Tru TV’s hit show, Adam Ruins Everything,  exposed the facts behind Stella Liebeck’s “hot coffee” claim and the attacks perpetrated on our legal profession by special interest tort reformists.

Our attorneys have more than eighty-six combined years of legal experience with personal injury, product liability and wrongful death claims. We receive no legal fees or expenses unless we collect damages on your behalf.  If you have been injured by the negligence of another person or entity, Call Charlie Ward today at 317-639-9501 for a free evaluation of your claim. There is no obligation.

Charlie Ward

(317) 639-9501

[email protected]

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225