In a 3-2 decision, the Indiana Supreme Court struck down IC 34-58-2-1 which provides:

If an offender has filed at least three (3) civil actions in which a state court has dismissed the action or a claim under IC 34-58-1-2, the offender may not file a new complaint or petition unless a court determines that the offender is in immediate danger of serious bodily injury (as defined in IC 35-41-1-25).

This was designated the “Three Strikes Law.” (I find that to be confusing short hand, since I associate “three strikes laws” with criminal sentencing provisions that create life sentences for third felony convictions.) The court found that this law impermissibly infringed upon the prisoners’ rights under Art. 1, Sec. 12 of the Indiana Constitution which provides that “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.”

In any event, the Court left standing the related statute, IC 34-58-1-2 which theoretically requires a state trial court to screen incoming prisoner lawsuits and dismiss them if they are frivolous on their face. The case, Smith v. Indiana Dept. of Correction, is here. Michael Hoskins has a story for the Indiana Daily Lawyer which also has links to three related cases that were decided in conjunction with the Smith case.

In practice, my experience has been that the trial courts do not screen these statutes. Instead, summons get issued and a burden is imposed on Defendants to respond in one way or another. For prisoner complaints that seem frivolous, my practice has been to file a Motion to Dismiss along with an additional paragraph or two suggesting that the court didn’t have jurisdiction because the summons should not have been issued before the screening had taken place. But, the damage has been done. My client has had to pay for me to draft a motion to dismiss and a memorandum of law explaining it. Any practical value of the so-called “frivolous claim law” has been eviscerated.

But, I can’t blame the trial courts too much on this score; a *lot* of paper gets filed in their courts. Expecting them to detect and screen the incoming prisoner lawsuits with the same diligence of a federal court with many fewer cases might be unrealistic. With prisoners who might file one or two lawsuits in the course of their incarceration, it’s probably just an unavoidable cost of doing business for the Defendants who deal with them to have to respond to their complaints. But, as Justice Shepard points out in his dissent, it’s something of an impressive feat for a prisoner to get three or more lawsuits dismissed as frivolous. Under Indiana’s liberal rules of pleading, if you have anything resembling a legitimate claim, it is pretty hard to get it thrown out. The people affected by this “three strikes rule” are people who are really working hard at making nuisances of themselves.

So, this morning, I was thinking about potential alternatives. In my opinion, the real resources are consumed not so much by cases that can be dismissed quickly just by reading the facts alleged in the complaint. Instead, more resources are consumed by those cases that make it beyond the initial review. If, hypothetically, I were serving a long sentence and had nothing to fear from perjury charges, I could cost governments untold millions in defense costs, simply through competent pleading and signing false affidavits. Even though I’d never be believed at trial and probably never win a case, I think I could hang in there through the summary judgment stage, make the government sweat a trial and force them to engage incur discovery expenses and other defense costs. Getting third parties to lie and risk perjury charges on my behalf, however, would not be so easy.

So, I wonder if the General Assembly would be wise to consider a response to this court case whereby frivolous litigants, such as the ones involved in the cases decided today, would have their affidavits and/or testimony barred when they try to resist summary judgment and/or go to trial. Just a thought if any legislators out there are listening.

The Indiana Supreme Court once again issued an opinion highlighting the bright line rule that a party opposing summary judgment must file affidavits in opposition to summary judgment or a request for enlargement of time within 30 days of the filing of the motion for summary judgment or else their affidavits in opposition may not be considered by the trial court. There used to be some inconsistency on this point, but since 2004, these time frames should be strictly adhered to by the courts.

I’m a little bitter on this point since, in 2006, I believe, I had a trial court refuse to adhere to the trial rules on this point. I filed for summary judgment on behalf of my client. The opposition didn’t file any affidavits in opposition until the day of the hearing (at least 60 days after my motion was filed). Ready for this eventuality, I objected and cited the appropriate case law at the hearing. The court overruled my objection. I filed a motion to correct error, citing chapter and verse on the propriety of considering untimely affidavits. That motion was denied. I requested certification of an interlocutory appeal (an appeal taken before final judgment) so that I could get a higher court to look at the issue. The trial court denied my request. Eventually the case went to trial and my client got a judgment for about 60% of what it was entitled to. I explained that we had a great shot on appeal, but ultimately the client decided it had to cut its legal expenses and settled for the 60%.

So, remember kids, it’s not always enough to have the law on your side.

The Indianapolis Star has an article on an Anderson couple who decided to represent themselves in challenging a school’s dress code and ended up owing Anderson’s legal bills in excess of $40,000. I have not been following the story too closely, but my impression is that they alleged some sort of Constitutional violation by the dress code. They chose to represent themselves in pressing the claim. The claim wasn’t likely to succeed in that prior challenges in other jurisdictions. When the realities of trying to litigate in federal court hit them, they couldn’t handle it. I’m not sure where I got this idea — it’s not in the linked article — but I believe that, to some extent, they simply stopped responding to the court’s order.

Representing yourself on a federal Constitutional claim is just a Bad Idea. There are so many pitfalls, both procedural and substantive, that it’s difficult to succeed without training. Even beyond that, often times it seems like those representing themselves don’t even bother to read the court orders, let alone the rules of trial procedure, relevant statutes, or prior case law. They just want to get into rambling arguments about how they have been wronged.

That being said, the City of Anderson might want to look into more economical lawyers. I can’t see generating $40,000 in fees on a case where the Plaintiffs are unrepresented and the case law is pretty clearly on my side. Maybe there were special considerations in this case, like I said, I didn’t follow it closely. But $10,000 to $20,000 worth of legal work seems to be more in the ball park. Maybe that’s why I’m still driving a Saturn and not a fancy car. And now the City of Anderson needs a good collection lawyer to try to collect on the assessment of legal fees.

The Seventh Circuit Court of Appeals dismissed the Legislative Prayer Case, Hinrich v. Bosma on technical grounds, saying that the Plaintiffs did not have standing to sue because the taxpayer dollars used to support the “Minister of the Day” program, and therefore to support sectarian prayer by the Indiana House of Representatives, were not closely enough related to the content of the prayers to entitle Plaintiffs to bring suit as taxpayers.

I have not had time to read the opinion yet and am just reading the quoted materials provided by the Indiana Law Blog, but I wanted to make the reason for the dismissal more or less clear before the meme started going around that the 7th Circuit had some how made a determination that sectarian prayer as official business of the Indiana House of Representatives was permitted under the First Amendment. Instead, the 7th Circuit avoided answering that question one way or the other.

In his dissenting opinion, Judge Wood makes much the same point:

My colleagues have concluded that this lawsuit must be cut off at the threshold issue of standing. While I do not agree with them on this point, before turning to that question I wish to highlight the implications (or lack thereof) of their decision. Nothing in the majority opinion should be understood as a ruling one way or the other on the merits of the House’s procedures. Should someone come along who meets the majority’s concept of standing, the question whether the House may sponsor prayers at State expense urging everyone in the chamber to adhere to Christianity, or edicts declaring the room a “hallowed place,” or musical exhortations, revival style, to “talk with Jesus,” is an open one.

Judge Wood’s dissent also opens with a discussion, well worth reading, attributing much of America’s success in religious co-existence to the Founder’s balancing act — allowing individuals to practice their religion freely while restricting government’s ability to get involved with religion at all.

Today the Indiana Court of Appeals issued the case of Butler v. Indiana Department of Insurance (pdf) which potentially has significant implications for personal injury lawsuits. It has to do with the amount of compensation to which an injured person is entitled for medical expenses. The Indiana Rules of Evidence allow a plaintiff to set forth a prima facie case as to the reasonable value of medical services by presenting their medical bills. Indiana’s collateral source doctrine acted to exclude Defendants from providing evidence of certain sources of payment made on behalf of the Plaintiff, including for example insurance payments or Medicaid/Medicare payments.

All of this is fine on a basic level. You don’t want to make a Plaintiff have to drag in a battalion of doctors or hospital administrators just to get reimbursed for an emergency room bill. You also don’t want a tortfeasor to get out of paying just because the Plaintiff was responsible enough to pay for medical insurance — the insurer typically retains an interest in the lawsuit such that the Plaintiff has to pay back some or all of the insurance payments from the proceeds of the judgment or settlement. However, in practice, the billed cost of medical procedures often bears little relationship to the actual cost. Anybody who has ever reviewed the EOB from their medical insurer knows that the billed amount is akin to the sticker price of a car at a used car lot or “full price” at a mall jewelry store. Medical providers often accept deep discounts from the billed amount as payment in full of the bill.

Because of these factors what happens in many cases is that the Plaintiff receives medical services, gets billed $100, has their insurance company pay $50 as payment in full, and goes to court and establishes a prima facie case of a $100 bill. The Defendant is precluded from providing evidence that the real cost was $50 and ends up paying the $100 to the Plaintiff. The Plaintiff pays the $50 back to the insurer and gets a $50 windfall. These numbers are just made up. Sometimes the amounts are significantly greater. For example, in the case at hand, the billed amount was $410,000. The paid amount was $122,000.

It’s not absolutely clear that this case will apply to the average personal injury case where the Plaintiff has paid premiums and the Plaintiff’s health insurer has paid the bills. This case specifically applies to Medicare and Medicaid payments paid in a wrongful death case (where different rules sometimes apply). However, the logic of the case seems to apply to the more general situation.

Per the court:

We will first address the Estate’s claim that the trial court erred by admitting evidence of medical provider write-offs involving Medicare and Medicaid. According to the plain language of the statute codifying the collateral source rule, the rule applies to evidence regarding “collateral source payments.” I.C. § 34-44-1-2 (emphasis added). However, a write-off is not a payment because money is not delivered to the creditor.
. . .
Specifically, the Estate argues that the AWDS [Adult Wrongful Death Statute] allows a plaintiff to recover reasonable medical expenses and that the billed amount represents the reasonable value of Nondis’s medical expenses. Thus, the Estate argues that the amount written off by the medical providers is inconsequential.
. . .
We have emphasized that “[t]he purpose of this new collateral source rule statute is to determine the actual amount of the prevailing party’s pecuniary loss and to preclude that party from recovering more than once from all applicable sources for each item of loss sustained in a personal injury or a wrongful death action.”

Therefore, Indiana’s collateral source rule, which abrogates the common law rule, supports the conclusion that pursuant to the AWDS, a plaintiff’s recovery is limited to the amount of pecuniary loss sustained by the decedent’s medical treatment, which is represented by the amount actually paid for the treatment, not the amount billed.

My guess is that the Plaintiff’s bar will argue, among other things, that private insurance is different. The write downs given by medical providers to insurers is a benefit purchased through payment of premiums and a Defendant should not receive that benefit. However, the fact of the matter is that the billed prices of medical procedures bear little relationship to the real value of the procedure. I think it’s an acceptable legal fiction to let Plaintiffs create a rebuttable presumption that the billed price is the correct amount simply because I think it puts an undue burden on the Plaintiff to make him or her do more. I think this legal fiction goes too far if a Defendant is not allowed to rebut this presumption simply by showing that the medical providers accepted a lesser amount as payment in full for the services.

(Via the Indiana Law Blog) The Batesville Herald Tribune has an editorial entitled Judicial mandate not popular device. They are referring to the situation in Montgomery County where the local judges issued a mandate ordering the County Council to pay higher salaries for three classes of court employees. The newspaper’s central point is correct: County Councils have a right to be irritated by being told how much to pay a county employee.

[T]he judicial power of the state reaches from the Supreme Court at the state level all the way to the courts of general jurisdiction at the local level. So even though staffers who work for the courts are considered county employees, their pay can’t be controlled by the county council.

Any other department of the County just has to suck it up when budgets are too tight and employees don’t get paid enough. I’m a little torn in the Montgomery County case. The employees seem like good, hardworking folks and it’s nice that they’ll get a raise. In addition, I know some of the judges in Montgomery County and they are not the types to issue a mandate lightly. Still, if a Sheriff feels like his deputies aren’t getting paid enough, and he suffers from high turn over of deputies because of the compensation, the Sheriff can’t simply order the County Council to fork over more money. Same with the Highway Department, the Assessor’s Office, the Surveyor’s Office, the Treasurer, you name it.

I was, however, amused by the closing paragraph:

A judicial mandate is a device that should be used sparingly, if at all. If a need is compelling, judges should be able to draw on their background of advocacy to persuade county officials to go along with the request.

I don’t think I’ve ever seen a mandate where the judge didn’t first try to ask the Council for the money and persuade rather than force. Where are these counties where judges go around mandating first, asking questions later?

Interpleader – It appears to be appropriate for an insurance company insuring a tortfeasor against whom there are multiple claims exceeding the limits of insurance to use the interpleader process to pay its limits into the court, name the potential claimants and the insured as parties to the interpleader, and ask the court to be absolved of further duties of defense. Indiana courts have said that attempting to avoid providing a defense to the insured in this situation isn’t bad faith.

Underinsurance – There is no underinsured claim against an injured party’s own insurer where the “per accident” limits of both the insured and tortfeasor’s policies are the same.

The emotional distress claim of a passenger who witnesses injury of a driver is not a derivative claim. Therefore, the emotion distress claim isn’t combined with the driver’s injuries under the “per person” limits of a policy. A separate “per person” limit applies.

“Miss and run” language in policies that excludes coverage where there is no physical contact between the insured and the “miss and run” driver (who can’t be identified) is permissible.

UM/UIM coverage under umbrella policies – If you have an umbrella policy in excess of your auto policy, then the umbrella is supposed to provide UM/UIM coverage in the amount of the umbrella policy unless you reject it in writing. Where a husband signed a rejection but wife did not, the wife still got the UM/UIM coverage. (This may have subsequently been changed by statute).

Rental car policy’s exclusion of coverage for drunk driving was enforceable.

A policy provision that requires an insured to testify under oath is material and can be a basis for exclusion if the insured refuses. (Occasionally an insurer will find something fishy and can require you to testify under oath — even the 5th Amendment won’t save the coverage if you refuse to testify.)

The standard for winning a bad faith claim is very hard. If the insurer can demonstrate a good faith basis for denying a claim, a disgruntled insured is not going to get very far with the bad faith claim.

A small claims judgment against an insured won’t necessarily bar a subrogated insurer from bringing its own claim against the alleged tortfeasor. Despite anti-claim splitting and res judicata concerns, the insurer was allowed to bring its claim because it wasn’t sufficiently a party to the small claims action.

Where an insured signed an application saying she had no dogs, the insurance company was not required to provide coverage in a dog bit case even though the insured said that she had, in fact, told the insurance agent she had dogs and the agent should have known she had dogs.

There is no duty of an insurance agent to recommend particular kinds or amounts of insurance, but where the agent undertakes to provide that sort of advice, there is probably a duty to use reasonable skill, care, and diligence.