The Indiana Supreme Court has disagreed with the Court of Appeals and affirmed a trial court’s dismissal of a declaratory action in the case of Allen v. Clarian Health Partners (pdf). (See my prior blog post here.)

If a price term is sufficiently vague in a contract, courts impute an agreement to pay a “reasonable” price for the goods or service. Plaintiffs argued that since the agreement they signed for hospital services did not specify a price, their agreement was to pay the reasonable price of services. When the hospital charged them more than the reasonable price, the patients argued that the hospital had breached the contract and requested a declaratory judgment to that effect. The trial court dismissed the action for failure to state a claim. The Court of Appeals disagreed, holding that because the contracts did not specifically reference the chargemaster or other extrinsic document (and noting that the chargemaster was not, in any case, a document available to a patient), the contract was open ended and, therefore, ambiguous as to price, meaning that a reasonable fee would be imputed.

The Indiana Supreme Court disagreed, deciding that, when you sign such an agreement with a hospital, you are really agreeing to pay – not the reasonable price – but, rather, whatever the hospital’s chargemaster says. The Indiana Supreme Court did not, however, address this difficulty highlighted by the Indiana Court of Appeals:

As we have already noted, Clarian contends that the chargemaster rates are “unambiguous” and “express[,] binding obligation[s]” on Allen and Moore. Appellee’s Br. at 5. But at oral argument counsel for Clarian stated that Clarian considers its chargemaster rates confidential and proprietary. Left unanswered by Clarian is how a patient and a provider can mutually agree to an “unambiguous” and “express” chargemaster fee schedule that is not available to the patient.

The decision was 5-0. Hopefully this at least undermines hospital claims that their chargemasters are confidential, proprietary, and/or trade secrets of some sort. One of the problems with our health care system is that pricing is so opaque.

A case brought by the Center for Inquiry challenged Indiana’s marriage solemnization statute on the grounds that it does not permit secular celebrants to solemnize marriages. The United States District Court for the Southern District of Indiana rejected that challenge.(pdf)

The solemnization statute is IC 31-11-6-1:

Sec. 1. Marriages may be solemnized by any of the following:
(1) A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.
(2) A judge.
(3) A mayor, within the mayor’s county.
(4) A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.
(5) A clerk of the circuit court.
(6) The Friends Church, in accordance with the rules of the Friends Church.
(7) The German Baptists, in accordance with the rules of their society.
(8) The Bahai faith, in accordance with the rules of the Bahai faith.
(9) The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.
(10) An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.

A secular celebrant is someone who has some background in performing weddings, memorials, and other “milestones of life” ceremonies but who is not affiliated with any religion.

I think the District Court was probably correct, particularly under existing precedent, that this statute does not violate the establishment or free exercise clauses. It is maybe slightly more burdensome for an atheist to get married than a religious adherent. But, the fact is, the secular celebrant can still preside at your ceremony. You just might have to do a little extra paperwork at the Clerk’s office to have your marriage recognized by the State whereas the Muslim can just have the imam solemnize the marriage.

That said, the Center for Inquiry should lobby the General Assembly to amend the solemnization statute to allow for secular celebrants to solemnize marriages.

Just more goofing around browsing the Brevier Legislative Reports. This one from March 21, 1885:

Mr. PATTEN: There is another geraniun who speaks for economy and votes against it. Here is the gentleman from Hancock speaking for the people. The Government of the United States, had it known what disposition would have been made of its allowance in this direction, would never have made it. This is simply class legislation – this proposition to educate at Purdue . Very few farmers’ sons have been educated there. Three from my county have gone there. None of them were farmers’ sons and none of them are farmers. President Smart says the mechanical shop is not half large enough, and he wants a new one. Farther, the farm should have more stock; a new carpet is wanted; the library is not adequate, and thousands of dollars are wanted for it. Here I hold the tenth annual register of the institution. I want to call attention to the buildings Here is shown where $4,000 was paid for stock, and yet these gentlemen want further appropriations to buy some blooded stock. I will read further items of expense. [Reads] The enormous amount of $148,500 has been paid to Purdue University besides what it receives from its endowment fund, which pays 5 per cant. The State has already given Purdue $7 000 for stock, and they want more to experiment with. Is this what is to be done with the farmer’s hard-earned moneys? I suppose that it is an open secret that these Professors there have been down with a microscope examining which end of the crawfish is the front end. [Laughter.] They also have prepared treaties on the clinch bug. President Smart knows no more of farming than my nine year old boy, and not as much. He is a school teacher. All this argument here is made by those who undertake to ingratiate themselves in the good graces of the farmers. No one ever heard of a farmer being benefited by Purdue University. The farm boy knows much more from experience than any one about the colleges.

An old-timey legislator (Rep. Pierce of Porter County) waxes poetic on the subject of marriage. And he’s doing it in support of a divorce law in 1869. No real point to my post except that it struck me as much more eloquent than anything we’d hear on the floor of the House today.

I hope I am not one of those, sir, who look too lightly upon the sacred relation of husband and wife; sacred in its name, sacred in its origin, sacred in its duties, sacred in its confidences and associations, and sacred in these and for these alone. Indeed, sir, there is no holier sight to me than that of the loving and confiding wife, and the proud and faithful husband walking hand in hand together through the journey of life, suffering together, enduring together, rejoicing together as one. The sight brings tears of penitence to the eyes of the harlot, and crimsons the brazen face of the professional roue and debauchee. And, as they grow older, as the autumn of life approaches, and then brown locks are tinged with silver and the winter comes on with its crowning glory of white, typical of the purity of those faithful hearts, the sight ‘ grows even more beautiful, for we then see that time does not always lay his hand unkindly upon his victims, but sometimes only touches to bless them, and that “every wrinkle which puts on their brows, is only another notch in the quiet calendar of a well-spent life!” The grain is ripe and ready for the sick and death to them is nought but being garnered home. They’ve climbed the hill together, and together they will sleep, peace fully, quietly, lovingly at its foot. I never hear a Scotchman repeat those beautiful lines of Burns’, with all the advantages the quaint old fashioned dialect, which none but a Scotchman can properly render, that I can not almost see good old John Andersen as he sits, smiling through his tears at the plain and homely but tender and loving words of his faithful wife.”

John Anderson, my Joe John, when we were
first acquaint,
Your locks were like the raven, your bonnie
brow was brent;
But now your getting auld, John, your locks are
like the snow,
Yet blessings on your frosty powa, John Ander-
son my Joe.
John Anderson, my Joe John, we clam the hill
thegither,
And mony a canty time, John, we had we ane
anither;
Now, we maun totter down, John, but hand in
hand we’ll go,
And we’ll sleep thegither at the foot, John Ander
son, my Joe.”

Ah! John Anderson, there was no neglect no cruelty, no abandonment there. It was union where mutual love and confident prevailed ; a man and woman whom God had indeed joined together, and whom man should not and could not separate.

I hope the House will pardon me for this digression, but the subject naturally led me into it. Such marriages are made in heaven, and whether they be the results of the first or the second love, I would do all that in me lies to multiply their number, and thereby bless the parties, bless their offspring, and bless the State. One word regarding the particular provisions of the substitute I have offered, and I am through. It provides against fraud in the service of process, it provides against hardship in the matter of property like that which has just occurred in Lagrange, and gives relief in that case. It provides against the disgraceful custom which now permits residents to gain a technical residence here for the notorious and avowed purpose of securing a divorce. I venture to say that there can be no valid objection raised to the bill, and I hope it will pass. Some members say that we have not time to pass this bill now, and send it to the Senate. I hope the effort will be made, but if it should not, I can only say that I have done what I deem to be my duty in the matter, and represented so far as I have been able what I understand to be the wishes of my constituents.

I hate it when newspapers use the question marked headline; and here I’m doing it. But I’m doing that because I think the reasoning of a portion of the Court of Appeals decision in Waldrip v. Waldrip, City of Bloomington, and Monroe County is reasonable but its reach perhaps uncertain.

First of all, just a note of approval on the lawyers. I am not familiar with plaintiff’s counsel; but that’s some fine lawyering going on for the defense – Andy Wirick for the City of Bloomington; Jim Stephenson and Ian Stewart for Monroe County.

But I digress. In general, the case had to do with a domestic dispute – husband and wife were at odds. Wife said husband was battering her, husband denied it. Husband was arrested by City police, prosecuted in the county courts, and was acquitted. Adding a wrinkle, Wife was court reporter for the Monroe Circuit Court. I’m simplifying, but husband alleged that there were improprieties in his arrest and prosecution. As to the county, Husband alleged claims of false imprisonment, abuse of process, malicious prosecution, defamation, respondeat superior liability for wife’s actions, and negligent hiring and/or retention of wife.

What caught my eye, in particular, was the discussion of the county’s liability under theories of respondeat superior liability and negligent hiring of wife. Respondeat superior is the theory by which an employer is liable for wrongful acts of an employee acting within the scope of employee’s employment. She was a court reporter for the circuit court. Now, it’s long been clear that trial court judges in Indiana are employees of the state. So, even though the judge is the judge of the Monroe County Circuit court, the judge is a state official. Less clear has been the status of his or her staff. They are under the judge’s control and direction; but they are paid by county and, in most places, I think, treated as county employees — subject to the county’s personnel policies, etc.

The Court of Appeals discussion of the allegations against Monroe County starts at part 3 (p. 24 of the opinion.) The Court of Appeals noted that wife’s claims were properly dismissed because she had only sued the county – which, without more description in the case, necessarily meant the county’s board of commissioners as opposed to, say, the Sheriff.

First, with respect to Angela’s employment as a reporter for the Monroe County Circuit Court, she necessarily was appointed to that position by a judge and likewise was subject to removal by the judge. See I.C. §§ 33-41-1-1, 33-41-1-4 (stating that official circuit court reporters are appointed by judge and subject to removal by judge). Although the courts in any given county are thought of as county courts, and although funded by county government, such courts are actually state courts. Allen County Council v. Allen Circuit Court, 38th Judicial Dist., 549 N.E.2d 364, 365 (Ind. 1990). “County courts in Indiana are exclusively units of the judicial branch of the state’s constitutional system . . . .” Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 434 (Ind. Ct. App. 1996) (citing Ind. Const. art. 3, § 1), trans. denied. Therefore, the Monroe County Circuit Court is a state, not county, entity. See id. If certain criteria are met and if the Indiana Supreme Court gives it approval, a trial court may mandate county governments to pay court employees a salary demanded by the court. Allen County Council, 549 N.E.2d at 367. This is further indication that state trial court employees are not subject to control by the county executive. Given Angela’s employment by the Monroe County Circuit Court, a state entity, at the discretion of the Circuit Court judge, she was not subject to hiring, supervision, or firing by Monroe County and its Board of Commissioners. All claims against Monroe County related to alleged vicarious liability for Angela’s actions, or her hiring and retention, were properly dismissed.5 See Delk v. Board of Comm’rs of Delaware County, 503 N.E.2d 436, 440 (Ind. Ct. App. 1987) (holding county commissioners could not be held vicariously liable for actions of county sheriff, which was a separate constitutional office not subject to control by the commissioners).

(Emphasis added) So, it appears that if you want relief against a court’s employee, you have to sue the State as opposed to the county. Husband found himself having similar problems with his allegations against the Sheriff and the Prosecutor. The Prosecutor is also a state actor (this is not new law). But, even his allegations concerning his incarceration – false arrest and imprisonment – did not state a claim against the county. While it’s true that a county’s board of commissioners has a duty to maintain a jail, Husband’s claim concerned the operation of the jail – a duty of the Sheriff. Because the Sheriff is a constitutionally created office separate from the county executive, those claims were dismissed as well.

The stuff about the Prosecutor and Sheriff was not too surprising to me; but the holding as it pertained to the court reporter was a clearer statement than I had seen before on what I had regarded as a muddy area of the law. (See, for example, this prior post of mine on judicial mandates.)

In the past year, the Court of Appeals decided an inverse condemnation case based on a reconfigured road. These are of continuing interest to me because, years ago, I had one of these cases myself.

The recent case was Green River Motel v. State (Ind. Ct. App. 2012) (pdf). The State reconfigured the US 231/I-64 interchange, the consequence being that where once the Motel 6 on Green River’s property was convenient to the Intersection, now motorists had to drive an additional 1.6 miles from one direction and 4.6 from another direction to get to the property from the Interstate.

Inverse condemnation means, roughly, “taking” of the property not directly by the State but indirectly through other actions that diminish the value of the property. It’s the government’s road, so, by reconfiguring it, they aren’t doing anything directly to the owner’s property; but by limiting access to that road, they are affecting how your own property is used.

Unfortunately for the property owner, the hurdle for showing a taking through reconfigured roads is high. And it remains high after the Green River decision. “While the right of ingress and egress is a property right in Indiana, only an elimination of ingress and egress rights constitutes a compensable taking; the mere reduction in or redirection of traffic flow to a commercial property is not a compensable taking of the property right.” If the State had cut off road access entirely, there would have been a taking. But, they could still get off the property – it just took a lot longer to get to the Interstate.

This sucks for the particular property owner, but you can see why this is necessary. With all roads being interconnected, litigation would be never-ending for any government entity who ever reconfigured a road.

(Again from the CLE) – Miscellaneous Notes on Evidence:

1. Statements made by persons seeking medical diagnosis which are pertinent to diagnosis are not excluded by the hearsay rule.

2. On appeal, attach documents relied on by the trial court when taking judicial notice of those documents.

3. Communications during mediation may be admissible in subsequent proceedings when used as part of traditional contract defenses. (For example to explore the true meaning of the mediation agreement or to prove fraud, mistake, or duress). They aren’t admissible for purposes of, say, showing liability for the original dispute under mediation.

4. Interpreters have to be put under oath too when interpreting for a witness.

5. A jury’s verdict can’t generally be discredited by the subsequent testimony of a juror. Courts want litigation to have an endpoint; and you don’t really want to give jurors an opportunity to change their minds after the fact.

6. Indiana has a tendency to be liberal in its admission of opinion evidence by skilled lay people or scientific experts.

7. Nurses generally can’t qualify as experts to testify regarding medical causation and medical standards of care. But, the Court of Appeals has opened the door to the possibility that a well-qualified nurse can be qualified as an expert to testify on, for example, whether a healthcare provider – such as a nursing home – has conformed to the applicable standard of care.

8. Medical or hospital records must be authenticated to be admissible as business records.

Some random notes (taken during the Indiana Law Update) from mortgage section, in no particular order or emphasis on importance:

-Indiana doesn’t have a good process for liquidating mixed collateral — realty and personalty.

-Home equity line of credit as second mortgage often doesn’t get extinguished when its paid off to zero. There has to be notice. Typically, if the second mortgage holder starts advancing money again, it doesn’t lose its priority. (However, sometimes it does.)

-Credit bid of mortgage holder foreclosing establishes the amount of credit a debtor is entitled to on their overall debt. So, if a creditor obtains title at Sheriff’s sale by bidding in a judgment of $1 million, turns around and finds it can only sell the property for $500k; it doesn’t matter. The debtor still gets a $1 M credit. (Goes the other way too – if the creditor sells the property for a profit over the credit bid, the debtor doesn’t get extra money credited against its overall debt.)

The Court of Appeals, in Pac-Van v. Wekiva Falls Resort (pdf) decided one reversing a trial court in a case where it’s not entirely clear what the trial court’s thought process might have been. It has to do with post-judgment interest. In civil matters, when a money judgment is entered against a defendant, the judgment accrues interest at 8% per year. IC 24-4.6-1-101 provides that “interest on judgments for money whenever rendered shall be from the date of the return of the verdict or finding of the court until satisfaction at . . . an annual rate of eight percent (8%)[.]”

In this case, there were two judgments – one on the substantive issues and one as an award of attorney fees.

Jury verdict 4/15/11 in the amount of $102,285. Defendant paid $102,285 on 6/2/11.

Attorney fee award 7/19/11 in the amount of $123,379. Defendant paid $123,379 on 8/22/11.

The plaintiff filed a petition for post-judgment interest. Defendant complained that it had already satisfied the judgment. The court, on January 23, 2012, ruled that the defendant owed post judgment interest on the full amounts as if they had not been paid through January 23, 2012. The court of appeals said, no, the defendant has to get credit for payments when they are made. Interest on the jury verdict was for the 48 days between April 15 and June 2. (48/365 * .08 * $102,285) = $1,076 and not the $6,368.27 awarded by the trial court through January 23, 2012. A similar calculation was made on the attorney fee award.

A lot of times, I am trying to collect from judgment debtors who find the entire concept of post-judgment interest terribly unfair. I try to explain it to them by saying, if I owed you a hundred dollars, would you rather have a hundred dollars today, or a hundred dollars nine months from now.” Usually it dawns on them that having the money today is more desirable than having to wait around for it, and it’s not entirely unreasonable that someone should get paid for having to wait around to get paid what’s owed them.