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Proof of a Negative Not Required for Summary Judgment
Attorney Blogs |
2012/02/27 10:45
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The Indiana Court of Appeals has issued a decision that may have a large impact on summary judgment practice in Indiana. In Commr. of the Indiana Dept. of Ins. v. Black, ___ N.E.2d ___ (Ind. Ct. App. 2012), the Court essentially held that Indiana will apply the standard set forth in Celotex v. Catrett, 477 U.S. 317 (1986), at least in some circumstances.
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Tim Black alleged that Dr. Harris and others rendered negligent care to his wife after she complained of chest pain. The negligence allegedly resulted in severe cardiac arrest and resulted in the need for a heart transplant. The medical review panel unanimously concluded that Dr. Harris failed to comply with the applicable standard of care.
After the panel decision, Black filed a petition seeking payment of $1 million from the Patient's Compensation Fund and asserted that he had settled with Dr. Harris for $250,000, thereby satisfying the qualifying amount to get to the fund. The Commissioner sought discovery of the settlement agreement but Black refused to produce it, saying it was confidential. Black did produce a copy of an unauthenticated check in the amount $250,000 from the Medical Assurance Co., made payable to Black and his counsel. Black also produced some correspondence between counsel that discussed a prospective settlement.
The Commissioner moved to dismiss the petition claiming that he needed the settlement agreement in order to make payment. It was not clear from the check whether the payment was for settlement with Dr. Harris or other defendants. The trial court denied the motion to dismiss and after conducting a hearing on damages, ordered the Commissioner to pay Black $1 million. The Commissioner appealed.
In considering the motion to dismiss, the Court of Appeals observed that matters outside the pleadings were submitted in support of the motion to dismiss and were relied on by the trial court. In light of this fact, the Court of Appeals, pursuant to T.R. 12(B), treated the motion as one for summary judgment. In a footnote, the court recognized that T.R. 12(B) requires that "all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." Although no such "opportunity" was given, the court found there was "no prejudice" and proceeded to consider the appeal as a summary judgment case.
The court noted that the Commissioner's position on the motion required him to prove a negative—-that there was no settlement with Harris for $250,000. In Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind. 1994), the Indiana Supreme Court rejected the view that a party seeking summary judgment could simply point to the opponent’s burden of proof at trial and prevail unless the non-movant produced evidence supporting its claim or defense. This ruling has for many years been perceived as being at odds with Celotex, in which the U.S. Supreme Court reached a different conclusion under the federal rules. In 2000, Justice Boehm, in dissenting from a denial of transfer in Lenhart Tool & Die, Inc. v. Lumpe, 722 N.E.2d 824 (Ind. 2000), expressed the view that a party who puts forward evidence that a non-movant will be unable to present evidence to prove an essential element of its claim or defense, should be entitled to summary judgment if the non-movant fails to present such evidence. In Black, the Court of Appeals held: "Today, we accept Justice Boehm's views on this subject expressed in his dissent."
Having adopted this new standard, however, the Court of Appeals found that in this case, based on the unauthenticated check and the settlement correspondence, there was a genuine issue of fact as to whether a $250,000 settlement on Black’s claim against Harris had been accomplished. So, the Commissioner was not entitled to summary judgment. Black was also not entitled to a judgment on his claim since it was not clear that the required settlement with Harris for $250,000 had been consummated.
The Court held that the Commissioner is entitled to discovery of the settlement agreement and that the confidentiality term in the settlement agreement would not trump the Commissioner's right to such discovery. The case was reversed and remanded for further proceedings.
http://www.indianalawupdate.com/entry/Proof-of-a-Negative-Not-Required-for-Summary-Judgment |
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Eugene Criminal Defense - MJM Law Office, P.C.
Attorney Blogs |
2012/02/20 11:26
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Eugene Criminal Defense Law Firm
MJM Law Office, P.C. defends clients throughout Southern Oregon and the Willamette Valley against criminal charges. Eugene criminal defense attorney Max Mizejewski provides an aggressive defense against state and federal prosecutors. Mr. Mizejewski believes everyone's rights should be protected, and everyone deserves the best possible defense. If you have been charged with a criminal offense, you need to know your rights. Serious offenses such as drunk driving should not be taken lightly and you want to have an experience Eugene DUI Lawyer. Their firm also covers the follow criminal defenses: criminal driving offenses, drug crimes, property crimes, assault and violent crimes, and stalking. If you have been accused of domestic violence or are facing charges for any crime against the person it is important consult an experienced lawyer to protect your rights.
MJM Law Office is an Oregon based firm that has experience and successful track records defending cases against criminal charges. Their principal attorney, Max J. Mizejewski believes in dedicating time to understand each clients' individual case and specific needs. He has had the background and training to represent clients in criminal prosecutions and administrative hearings, making him the right advocate to have on your side. Contact MJM Law Office, P.C. today to schedule a consultation and visit www.mjmlawoffice.com for more information. |
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Corvallis Criminal Defense Attorneys - Arnold Law Office, LLC
Attorney Blogs |
2012/02/08 14:25
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Prosecutors are always ready because they handle cases just like yours every day. Our strategy to gain advantage over the prosecution is to enter each settlement negotiation ready and prepared to go over each issue in your case. It is important to know the facts and legal issues better than anyone else in the courtroom because that will give you the edge as a defendant. Choosing to hire our firm means you are hiring a team of lawyers, not just one single person. Our lawyers strategically coordinate, gather evidence and work with experts to meet the demands of your case - Corvallis Criminal Defense Attorneys.
At Arnold Law Office, LLC, our Corvallis criminal defense attorneys treat every case as if it is their most important case. We understand how much is at stake for you and we will provide you with the straight-talking legal counsel you need and deserve. Call us at 541-338-9111 |
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Indiana Court of Appeals Disagrees Over Effect of Admissions
Attorney Blogs |
2011/07/26 09:59
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Today, the Indiana Court of Appeals issued a memorandum decision, uncitable as authority under App. R. 65(D), in which the Court disagreed over the extent to which admissions could be used against a party in a motion for summary judgment in Clark v. Clark, Cause No. 01A02-1007-CT-759. While the decision itself cannot be used as precedent, the disagreement is informative.
In this case, a father and son traveled in a car together to the home of another person. When they arrived, the son got out of the car to help the father parallel park. The son positioned himself in front of his father's vehicle, between it and another vehicle parked in the alley. When the father's vehicle was in the appropriate position, the son signaled for the father to stop by putting his hand up. The father hit the gas pedal instead of the brake, and the son was pinned between his father's vehicle and the parked vehicle. The son sustained serious injuries to his leg. He brought suit against his father for his injuries and the father asserted the Indiana Guest Statute as an affirmative defense.
The Indiana Guest Statute provides that people with certain types of relationships, such as father-son, cannot sue each other for injuries arising out of the operation of a motor vehicle if the person is "in or upon" the vehicle at the time of the injuries. During the course of the litigation, the son sent requests for admissions to the father. Two of those requests and responses are reproduced below.
19. On September 5, 2007, at the time of the collision, Robert L. Clark, Jr. was not in the Chevrolet.
RESPONSE: At the moment of impact the plaintiff was not in the Chevrolet, whether he was a pedestrian is genuine issue for trial and therefore denied.
20. On September 5, 2007, at the time of the collision, Robert L. Clark, Jr. was not upon the Chevrolet.
RESPONSE: At the moment of impact the plaintiff was not upon the Chevrolet, whether he was a pedestrian is genuine issue for trial and therefore denied.
Based on those responses, the son moved for summary judgment. The father filed a cross-motion and the trial court granted the father's motion.
On appeal, the father argued that the admissions were not dispositive of whether the son was in or upon the vehicle at the time of his injuries because that is a legal conclusion that the Court would have to make after applying the law to the facts. The Court disagreed, holding that admissions can be directed to legal conclusions, not merely facts.
The dissent found the admissions ambiguous, because of the qualification about whether the son was a pedestrian and because there were questions concerning whether "in" and "upon" have the same generic meaning as they do as a legal term of art.
The lesson here is that requests for admissions can be powerful litigation tools and we lawyers must be careful when responding to them. You may find out that you have admitted something inadvertently.
Lesson:
1.Even a qualified response to a request for admission can count as an admission.
Brad A. Catlin
Price Waicukauski & Riley, LLC
http://www.indianalawupdate.com/entry/Indiana-Court-of-Appeals-Disagrees-Over-Effect-of-Admissions |
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Court to review class action status in Wal-Mart suit
Attorney Blogs |
2010/12/14 10:45
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The Supreme Court said on Monday it would decide if the largest sex-discrimination class-action lawsuit in U.S. history against Wal-Mart Stores Inc can proceed, a case involving women workers who seek billions of dollars in damages. The nation's highest court agreed to hear an appeal by the world's largest retailer and the largest private employer arguing the claims of as many as 1.5 million current and former female employees were too diverse to proceed as a single class-action lawsuit. The justices decided to review a ruling by a appeals court in California that upheld the class-action certification in the lawsuit alleging discrimination against every woman employed over the past decade at the company's 3,400 U.S. stores. The Supreme Court is expected to hear arguments in the case, which immediately became the most important business dispute before the justices this term, in March, with a ruling likely by the end of June. The ruling could affect other class-action lawsuits. Anthony Sabino, a professor of law and business at St. John's University in New York, said the case "will test the very limits of class litigation." Bentonville, Arkansas-based Wal-Mart said in a statement it was pleased the court granted review in the important case and it looked forward to the court's consideration of the appeal. |
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Medical Malpractice Case: The Emma Mejias Story
Attorney Blogs |
2010/08/23 09:43
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http://insiderexclusive.com/show-content/186-medical-malpractice-case-the-emma-mejias-story.html
The Sharon Boxie Louisiana Injustice Story - Nelson & Hammons Every day, somewhere in America, more than 300 innocent men, women and children become victims of medical malpractice at the hands of incompetent and negligent doctors, maybe just like your own family doctor, and end up either dead or permanently injured. Last year, over 98,000 victims were killed by doctors; that’s like two 737’s crashing each and every day, killing every single passenger, 365 days a year. And more than 4 million victims are permanently injured each year due to medical errors, surgical tools left in patients and hospital-caused infections. Today, the Insider Exclusive will meet one of those innocent victims, Sharon Boxie, now a total quadriplegic caused by the medical malpractice of her own doctors. We will also visit with her lawyer, John Hammons, who has been fighting for almost thirty years for quality medical care for his clients and their families, as well as obtaining just compensation for those who have been seriously injured by incompetent and negligent doctors. John will show how the State of Louisiana’s medical malpractice laws are full of traps, adding insult to injury with draconian laws capping medical malpractice awards. The $5 million judgment awarded by the trial court to Sharon Boxie was itself reduced substantially by Louisiana law. And if America is to make progress in medical malpractice cases, it needs to be make strides in patient safety, not limit the rights of patients who have been injured through no fault of their own. http://www.insiderexclusive.com/show-content/224-the-sharon-boxie-louisiana-injustice-story-nelson-a-hammons.html
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