Category Archives: Legal History

Indiana Legislation Relating to Asbestos and Mesothelioma Claims Declared Unconstitutional

asbestos product liability lawsuits in indiana

Victims of latent asbestos related diseases have reason for hope after Indiana’s State Supreme Court Ruling

asbestos product liability lawsuits in indianaWhat is a product liability claim?

A product liability claim seeks to hold miners, manufacturers, distributors, suppliers, retailers, and others along the commerce and distribution chain, responsible for the personal injury and wrongful death caused by dangerous and defective products, including, but not limited to asbestos-related injuries. Read Indiana’s Product Liability Act (IPLA).

Plaintiffs seek relief in lawsuit involving latent Mesothelioma diagnoses

Both plaintiffs were exposed to materials containing asbestos during their employment. One plaintiff, an electrician, was exposed for approximately 40 years and diagnosed with malignant pleural mesothelioma 15 years after leaving his employment. The other plaintiff was employed by an electric utility company where he worked on and around asbestos-containing products for 15 years; he was diagnosed with mesothelioma nearly 37 years after terminating his employment.  Both defendants filed separate suits naming multiple defendants. When the cases were brought before the Indiana State Supreme Court, they argued that the following provisions in Article 1 (The Bill of Rights) of the Indiana Constitution had been violated:

Section 12 of the Indiana Constitution, commonly referred to as Rights to Remedy states:

All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.

Section 23 of the constitution, commonly referred to as the Equal Privilege and Immunity Clause, states:

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

The argument and the ruling

Two sections (Section 1 and Section 2) in Chapter 3 of the Indiana Products Liability Act (IPLA) are at the center of the instant case.

Section 2, written by the Indiana General Assembly specifically for those with asbestos-related injuries , limits actions to those brought against persons or entities who both mined and sold commercial asbestos. Since plaintiffs sought damages from defendants who neither sold nor mined raw asbestos, they were barred from recovering damages under Section 2 and were therefore subject to the limits expressed in Section 1 of the IPLA.

Section 1 of the Indiana Product Liability Act, imposes a 10-year statute of repose upon persons exposed to dangerous and defective products. The Statute of Repose, as it is commonly called, states the product liability action must be commenced within ten years after the delivery of the product to the initial user or consumer. Malignant Pleural Mesothelioma is a disease which sometimes manifests many years after initial exposure to asbestos. Both plaintiffs were exposed to asbestos products and both developed asbestos-related diseases over a protracted period of time, greater than the 10-year statute of repose provided for in Section 1 of the IPLA.

In March of 2016 in a 3-2 split decision, the Indiana State Supreme Court, joining 3 appeals under one ruling, looked primarily at the Equal Privilege and Immunity Clause and held Section 2 of the IPLA created an impermissible disparity between classes of plaintiffs (those with claims against defendants who both mined and sold raw asbestos, and those with claims against defendants that sold asbestos-containing products) which violated Section 23 of the Indiana State Constitution, the Equal Privileges and Immunities Clause of the Indiana Constitution. And since Section 2 of the IPLA contained special verbiage which voided the entire section if any part of the section was held invalid, all of Section 2 was deemed unconstitutional. It was further decided that the ten-year statute of repose contained in Section 1 of the Indiana Product Liability Act did not apply to claims arising out of long-term exposure to products containing asbestos. Justice Brent Dickson wrote the opinion for the majority; Chief Justice Rush and Justice Massa wrote the dissenting opinions.

Petition for Re-Hearing

Shortly after the cases were decided, defendants submitted a petition to the court requesting a re-hearing. But in a 3-2 split, on April 28, 2016, a re-hearing was denied.

Indiana Product Liability Lawyers with Experience

Don and Charlie Ward, of Ward & Ward Law Firm in Indianapolis, have more than 86 combined years successfully litigating cases against corporations both large and small for bringing dangerous products into the marketplace that may harm individuals.

Our experienced personal injury lawyers and wrongful death lawyers use their knowledge of the law, legislation and judicial opinions to employ strategies that maximize our clients’ financial recovery after they have experienced a life-altering accident or event caused by another person or entity. If you or someone you know has been injured by an unsafe product, involved in an accident, injured by the negligence of a medical professional, or were the victim of nursing home neglect or wrongful death, call personal injury attorney, Charlie Ward, today at (317) 639-9501 or toll free at 1 (888) 639-9501 for a free consultation.

Charlie Ward

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225
317-639-9501 or  toll free at 1 (888) 639-9501
Published 09/24/2016

 

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

Sovereign Immunity and Tort Claims Against Indiana State Government

Sovereign Immunity and Tort Claims Against Indiana State Government – The Indiana Tort Claims Act

Call Charlie Ward at 317-639-9501

If you reside in Indiana, chances are you’ve heard a lot of talk lately about the Indiana Tort Claims Fund. The debate revolves around the Indiana State Fair stage collapse, the number of victims killed or injured in the accident and the monies available to the victims and families of the deceased through the state fund.

Why does Indiana have a Tort Claims Fund?  The answer to this question stems from our country’s early history and the basis of our legal system. When America was founded, our system of justice was based upon the English Common Law system of our mother country and the principle of Sovereign Immunity. It was an accepted standard of English Common Law that the sovereign “King could do no wrong”. Under this assumption the subjects of the King were unable to obtain legal justice from that which the king—the sovereign governing entity—ruled, without his royal permission.

At the dawning of the twenty-first century, we take it for granted that Americans have the right to hold corporate or governmental entities responsible for personal injury actions that harm or contribute to the harm of others. But it wasn’t until the mid-twentieth century that the Federal government passed the Federal Tort Claims Act (28 U.S.C. §2674) waiving the federal government’s Sovereign Immunity for certain actions. This occurred as citizens began to demand accountability from their government.

On Halloween night, October 31st, 1963, a massive explosion caused by concession propane tanks at the Indiana State Fair Coliseum during a widely attended ice show, killed 74 persons and injured more than 300. An impartial panel commissioned by Judge Dillon estimated that the monies necessary to fairly reimburse injured victims and families of deceased would total $7,502,303. However, a fund of $1,122,480.79 represented the full amount of insurance coverage held by Discount Gas Corporation. After distribution of the insurance fund, more than 350 persons sued the State of Indiana charging that the State and State Fair Board had an implied contract to provide safe seating for ice show spectators. A lower court ruled that the state had no sovereign immunity and the question was then bumped up to the Indiana Supreme Court for a ruling. However, the Supreme Court did not rule on the question of state sovereign immunity when the existing case settled out of court.

It wasn’t until 1969 that the State Supreme Court was asked once again to rule on the issue of Sovereign Immunity of the State in Perkins v. State and again in 1972 under Campbell v. State. Judge Arterburn of the Supreme Court settled the dispute, writing that the State, acting in a proprietary activity, “…could not avail itself of the immunity privilege.”

In 1974 the Indiana State General Assembly enacted 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 increased 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.

Today attorneys and legislators are debating the decades old cap and its ability to address the scope of the tragedy. Already one attorney has filed suit claiming the cap denies individuals an equitable award and creates an economic incentive for the state to act negligently in future endeavors. There are those that believe the capped figure capriciously holds down merited awards. However, in the end it is expected that the legislature will have their say. We will watch with interest as the legislature attempts to deal with the Indiana Tort Claim Act and possible reforms.

Charlie Ward is a personal injury attorney experienced in accident, personal injury 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 acc ident and receive a free analysis of your claim.