Indiana Auto Case Law Manual. 4 th Edition

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1 Indiana Auto Case Law Manual 4 th Edition i

2 Prepared By: Richard M. Davis Hoeppner Wagner & Evans LLP (219) FORWARD This manual has been prepared to assist claims personnel and defense attorneys in performing their duties. It is not a substitute for legal research and advice. The law is constantly undergoing changes. In addition, a manual such as this must, by necessity, be stated in general terms. Most legal concepts can only have meaning in the context of specific factual scenarios. Seemingly insignificant factual nuances can produce widely divergent legal results. This manual should be used as a general reference only. Counsel should be consulted, in each case, for an update on, and an interpretation of, the law as applied to specific facts. ii

3 ACKNOWLEDGMENTS A substantial share of the credit of the production of this Fourth Edition of the Indiana Auto Case Law Manual goes to the 2005 Hoeppner Wagner & Evans, law clerks. They are Tim Barrett, Courtney Cooper, Charles Maupin, Juan Perez and Adam Bartrom. A special thanks to Chuck who coordinated all the efforts. Many thanks also to those who contributed to the first three editions, who are mentioned in the Acknowledgments therein. Richard M. Davis July, 2005 iii

4 TABLE OF CONTENTS I. PROCEDURAL ISSUES... 1 A. SERVICE REQUIREMENTS-METHODS OF SERVICE OF PROCESS MANNER OF SERVICE... 1 a. BASIC LAW... 1 b. ANALYSIS TIME OF SERVICE... 1 a. BASIC LAW PERSONAL SERVICE... 2 a. BASIC LAW... 2 b. ANALYSIS SERVICE OUTSIDE INDIANA... 2 a. BASIC LAW SERVICE UPON INFANT OR INCOMPETENTS... 3 a. BASIC LAW... 3 b. ANALYSIS SERVICE UPON INSTITUTIONALIZED PERSONS... 4 a. BASIC LAW SERVICE UPON PERSONS IN ACTIONS FOR ACTS DONE IN THIS STATE OR HAVING AN AFFECT IN THIS STATE... 4 a. BASIC LAW... 4 b. ANALYSIS SERVICE UPON RESIDENT WHO CANNOT BE FOUND OR SERVED WITHIN THE STATE... 6 a. BASIC LAW... 6 b. ANALYSIS SERVICE UPON ORGANIZATIONS... 6 a. BASIC LAW SERVICE BY PUBLICATION... 7 a. BASIC LAW... 7 b. ANALYSIS... 7 B. VENUE BASIC LAW TRANSFER OF VENUE... 8 a. BASIC LAW... 8 b. ANALYSIS CHANGE OF VENUE a. BASIC LAW C. DISCOVERY IN GENERAL a. BASIC LAW SCOPE OF DISCOVERY iv

5 a. BASIC LAW b. ANALYSIS METHODS OF DISCOVERY DEPOSITIONS UPON ORAL EXAMINATION a. BASIC LAW b. ANALYSIS DEPOSITIONS UPON WRITTEN QUESTIONS INTERROGATORIES a. BASIC LAW b. ANALYSIS REQUESTS FOR PRODUCTION a. BASIC LAW b. ANALYSIS REQUEST FOR ADMISSIONS a. BASIC LAW b. ANALYSIS SUBPOENAS SANCTIONS FOR FAILURE TO MAKE OR COOPERATE IN DISCOVERY a. BASIC LAW b. ANALYSIS DISCOVERABILITY OF SURVEILLANCE VIDEOTAPES D. MOTIONS INTRODUCTION DISMISSAL a. BASIC LAW b. ANALYSIS JUDGMENT ON THE PLEADINGS a. BASIC LAW b. ANALYSIS MOTION FOR A MORE DEFINITE STATEMENT MOTION TO STRIKE a. BASIC LAW b. ANALYSIS MOTION TO COMPEL DISCOVERY MOTION FOR SUMMARY JUDGMENT a. BASIC LAW b. ANALYSIS E. ARBITRATION F. CONFLICTS OF LAW G. LIABILITY OF GOVERNMENTAL ENTITIES, IMMUNITY AND CLAIMS a. BASIC LAW v

6 b. ANALYSIS II. GENERAL NEGLIGENCE A. BASIC LAW B. ANALYSIS MINORS PARENTS EMPLOYERS SERVERS OF ALCOHOLIC BEVERAGES COMMON CARRIERS C. NEGLIGENCE PER SE D. STRICT LIABILITY BASIC LAW APPLICATION III. LEGAL LIABILITY ISSUES A. RIGHT OF WAY BASIC LAW APPLICATION TRAFFIC CONTROL SIGNS AND LIGHTS a. TRAFFIC LIGHTS b. STOP SIGNS c. YIELD SIGNS d. ENTRY FROM PRIVATE ROAD OR DRIVEWAY B. PASSING, OVERTAKING, AND TURNING DUTY TO DRIVE ON THE RIGHT SIDE OF THE ROAD a. BASIC LAW b. APPLICATION PASSING AND OVERTAKING a. BASIC LAW b. APPLICATION TURNING a. U-TURNS b. LEFT AND RIGHT HAND TURNS LOOKOUT SPEED a. BASIC REQUIREMENTS b. VIOLATION OF SPEED LAWS AND NEGLIGENCE c. OTHER SPEED LAW SITUATIONS EMERGENCY VEHICLES C. SUDDEN EMERGENCIES D. REAR END COLLISIONS E. BICYCLE AND MOPED ACCIDENTS F. DRIVING WHILE INTOXICATED IV. DEFENSES vi

7 A. CONTRIBUTORY NEGLIGENCE B. COMPARATIVE FAULT BASIC LAW ANALYSIS NOTES C. JOINT AND SEVERAL LIABILITY D. INDEMNITY E. INCURRED RISK/ASSUMPTION OF THE RISK F. SEAT BELT DEFENSE G. STATUTES OF LIMITATION H. SPOILATION OF EVIDENCE DEFINED TORT LIABILITY IMPACT OF UNINTENTIONAL OR INTENTIONAL DESTRUCTION OF EVIDENCE I. MOTION FOR SEPARATE TRIALS BASIC LAW ANALYSIS J. DISMISSED PARTIES/NON-PARTY DEFENSE V. DAMAGES A. PROPERTY DAMAGE CLAIMS GENERAL RULE DIMINISHED VALUE a. PROPERTY LOST OR DESTROYED b. DIMINUTION IN VALUE/PROPERTY REPAIRABLE LOSS OF USE SPECIAL DAMAGES DAMAGES FOR LOSS OF TIME, INCONVENIENCE, ETC B. BODILY INJURY CLAIMS GENERAL RULES MEDICAL EXPENSES LOSS OF INCOME a. GENERAL RULE b. SCOPE OF DAMAGES RECOVERABLE c. IMPAIRED EARNING CAPACITY NATURE, EXTENT AND PERMANENCY OF THE INJURY AS IT AFFECTS THE QUALITY AND ENJOYMENT OF LIFE. PHYSICAL PAIN AND SUFFERING, PAST AND FUTURE. PHYSICAL PAIN AND SUFFERING, PAST AND FUTURE. DISFIGUREMENT OR DEFORMITY COLLATERAL SOURCE RULE PUNITIVE DAMAGES a. BASIC LAW vii

8 b. ANALYSIS LOSS OF CONSORTIUM EMOTIONAL DISTRESS a. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS b. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SURVIVAL STATUTE, WRONGFUL DEATH, ACTION FOR INJURY OR DEATH OF A CHILD a. SURVIVAL AND WRONGFUL DEATH STATUTES b. MEASURE OF DAMAGES c. ACTION FOR INJURY OR DEATH OF A CHILD d. INTERESTS IN PROCEEDS VI. VICARIOUS LIABILITY A. RESPONDEAT SUPERIOR EXCEPTIONS TO RESPONDEAT SUPERIOR B. NEGLIGENT ENTRUSTMENT C. PARENTAL LIABILITY D. OWNER S RESPONSIBILITY E. SUITS AGAINST UNINCORPORATED ASSOCIATIONS VII. CONCLUDING THE CASE A. STATUTORY OFFERS TO SETTLE A TORT CLAIM B. COSTS, ATTORNEY S FEES, AND INTEREST GENERAL RULE COSTS ATTORNEY S FEES a. FRIVOLOUS CLAIMS b. BAD FAITH c. DAMAGES FOR BAD FAITH IN APPEALS d. PROCEDURAL BAD FAITH e. PREVAILING PARTY f. COMPUTATION OF ATTORNEY FEES C. PREJUDGMENT INTEREST EFFECT OF OFFER TO SETTLE DAMAGES MUST BE ASCERTAINABLE DATE PREJUDGMENT INTEREST BEGINS TO ACCRUE RATE OF INTEREST D. MINOR AND INCOMPETENT S COMPROMISE E. PARTIAL SETTLEMENTS INVOLVING MULTIPLE DEFENDANTS F. RELEASES AND DISMISSALS RELEASES a. NATURE AND TYPE OF RELEASES b. VALIDITY OF THE RELEASE RELEASE AS A CONTRACT viii

9 a. MUTUAL MISTAKE b. CONSTRUCTIVE FRAUD/MISREPRESENTATION c. MEETING OF THE MINDS/CONSIDERATION NECESSITY OF A WRITING G. DISMISSALS AND DEFAULTS a. GENERALLY b. DISMISSAL WITH AND WITHOUT PREJUDICE c. DEFAULT JUDGMENTS VIII. LIABILITY COVERAGE ISSUES A. OWNERSHIP, MAINTENANCE AND USE OWNERSHIP MAINTENANCE USE OCCUPYING AN AUTO a. ALIGHTING FROM B. WHO IS AN INSURED ENTITIES PERMISSIVE USE a. PERMISSIVE USE FOUND b. PERMISSIVE USE NOT FOUND c. EXCLUSIONS FROM COVERAGE C. COOPERATION NOTICE OF SUIT DUTY TO COOPERATE SETTLEMENT WITH A PLAINTIFF PROPRIETY OF DECLARATORY RELIEF ACTION D. DUTY TO DEFEND E. NEWLY ACQUIRED, NON-OWNED AND TEMPORARY SUBSTITUTE CARS NEWLY ACQUIRED CAR a. TYPICAL DEFINITION b. ANALYSIS NON-OWNED VEHICLE COVERAGE a. DEFINITION OF NON-OWNED CAR TEMPORARY SUBSTITUTE CARS G. HOUSEHOLD EXCLUSION H. OTHER INSURANCE I. RECISSION CANCELLATION AND NON-RENEWAL RECISSION CANCELLATION NON-RENEWAL J. INSURANCE BAD FAITH FIRST PARTY CASES ix

10 2. LIABILITY FOR FAILURE TO SETTLE EVIDENCE OF BAD FAITH ADJUSTER LIABILITY IX. UNINSURED/UNDERINSURED MOTORIST COVERAGE A. UNINSURED & UNDERINSURED MOTOR VEHICLE DEFINED B. STATUTORY REQUIREMENTS C. EXCLUSIONS & LIMITATIONS ON COVERAGE MEMBERS OF THE INSURED S HOUSEHOLD RELATIVES SPOUSE D. HIT & RUN /UNKNOWN OPERATOR E. INSOLVENCY OF THE CARRIER F. PERSONS INSURED DEFINITION OF NAMED INSURED NAMED INSURED - ENTITY OTHER THAN AN INDIVIDUAL INSURED MOTOR VEHICLES a. ENTERING, EXITING IN OR UPON b. DESCRIBED MOTOR VEHICLE c. TEMPORARY SUBSTITUTE VEHICLE NEWLY ACQUIRED VEHICLE OTHER NON OWNED VEHICLES G. EXEMPTIONS FROM COVERAGE H. REJECTION OF COVERAGE I. LIMITATION OF COVERAGE REDUCTION CLAUSES ANTI-STACKING CLAUSES SEPARABILITY CLAUSE PRIMARY & EXCESS CLAUSES ILLUSORY COVERAGE J. NOTICE, COOPERATION & STATUTE OF LIMITATIONS REQUIREMENTS NOTICE AND COOPERATION CONTRACTUAL LIMITATIONS ON TIME TO BRING AN ACTION STATUTES OF LIMITATION K. ARBITRATION PROCEDURE ARBITRATION AND RES JUDICATA DISCOVERY IN ARBITRATION L. SUBROGATION INSURERS SUBROGATION RIGHTS ARE SUBJECT TO AFFIRMATIVE DEFENSES INSURER S SUBROGATION RIGHTS ARE SUBJECT TO WAIVER AND ESTOPPEL x

11 3. INSUREDS DUTY TO PROTECT ITS INSURERS RIGHT TO SUBROGATION CONTRIBUTION SUBROGATION RIGHTS AGAINST INSOLVENT CARRIERS M. INSURER S RIGHT OF INTERVENTION N. PRIVATE PROPERTY O. PEDESTRIAN ACCIDENTS GENERAL STANDARDS OF CONDUCT PEDESTRIANS CROSSING THE STREET PEDESTRIAN WALKING ALONG A ROADWAY CHILDREN AND INTOXICATED PEDESTRIANS P. FINANCIAL RESPONSIBILITY xi

12 I. PROCEDURAL ISSUES A. SERVICE REQUIREMENTS-METHODS OF SERVICE OF PROCESS 1. MANNER OF SERVICE a. BASIC LAW (1) AThe person seeking service or his attorney may designate the manner of service upon the summons. If not so designated, the clerk shall cause service to be made by mail or other public (2) AIt shall be the duty of every person being served under these rules to cooperate, accept service, comply with the provisions of these rules, and, when service is made upon him personally, acknowledge receipt of the papers in writing over his Ind. Trial Rule 4(D); 4.16(A). b. ANALYSIS When delivery is refused, such refusal does not defeat the court's jurisdiction because the person to be served is on notice of pendency of some court proceeding, despite lack of knowledge of a particular proceeding. Spangler v. State, 607 N.E.2d 720 (Ind. Ct. App. 1993). This rule only cures technical defects in service of process and provides that no summons or service thereof shall be set aside or deemed insufficient when it is reasonably calculated to inform a person to be served that action has been instituted against him. It cannot cure a total failure of service. LaPalme v. Romero, 621 N.E.2d 1102 (Ind. 1993). 2. TIME OF SERVICE a. BASIC LAW "The person to whom the summons is delivered for service must act promptly and exercise reasonable care to cause service to be made." Ind. Trial Rule 4.12 (A). 1

13 3. PERSONAL SERVICE a. BASIC LAW "Service may be made upon an individual, or an individual acting in a representative capacity, by: (1) sending a copy of the summons and complaint by registered or certified mail or other public means...; or (2) delivering a copy of the summons and complaint to him personally...; or (3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode; or (4) serving his agent as provided by rule, statute or valid agreement." "Whenever service is made under Clause (3) or (4) of subdivision (A), the person making the service also shall send by first class mail a copy of the summons without the complaint to the last known address of the person being served..." Ind. Trial Rule 4.1. b. ANALYSIS (1) Knowledge of Suit: Mere fact that a party to be served with process has actual knowledge of suit does not satisfy due process or give court in personam jurisdiction. Service must be perfected in accordance with the trial rules. Barrow v. Pennington, 700 N.E.2d 477 (Ind. Ct. App. 1998). (2) Service on Party's Insurer: Service on defendant's insurer rather than on defendant is defective. Shafer v. Lieurance, 659 N.E.2d 229 (Ind. Ct. App. 1995). 4. SERVICE OUTSIDE INDIANA a. BASIC LAW 2

14 "A person subject to the jurisdiction of the courts of this state under this rule may be served with summons: (1) As provided by Rules 4.1 (service on individuals), 4.5 (service upon resident who cannot be found or served within the state), 4.6 (service upon organizations), 4.9 (in rem actions); or (2) The person shall be deemed to have appointed the Secretary of State as his agent upon whom service of summons may be made as provided in Rule 4.10." Ind. Trial Rule 4.4(B). 5. SERVICE UPON INFANT OR INCOMPETENTS a. BASIC LAW (1) Infants: Service upon an individual known to be an infant shall be made upon his next friend or guardian ad litem if service is with respect to the same action in which the infant is so represented. If there is no next friend or guardian, service should be made upon his courtappointed representative. If there is no court appointed representative, then on the parent holding custody. If there is no custodial parent, on a person standing in the position of custodian or parent. The infant shall also be served if he is fourteen (14) years of age or older. If such service is not possible, service shall be made on the infant. (2) Incompetents: Service upon an individual adjudged to be of unsound mind, otherwise incompetent or who is believed to be such shall be made upon his next friend or guardian ad litem if service is with respect to the same action in which the incompetent is so represented. If there is no next friend or guardian ad litem, service shall be made on his court-appointed representative. If there is no court-appointed representative, then service shall be made on the named party and also upon a person known to be standing in the position of custodian of his person. Ind. Trial Rule 4.2(A), (B). b. ANALYSIS 3

15 The fact that parents of 17-year-old putative father were not served at the time that he was served with paternity complaint did not deprive court of personal jurisdiction. Court found that service upon the putative father satisfied the due process requirement of timely notice despite the fact that the service was technically defective under the trial rules. Gourley v. L.Y., 657 N.E.2d 448 (Ind. Ct. App. 1995). 6. SERVICE UPON INSTITUTIONALIZED PERSONS a. BASIC LAW Service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution. Ind. Trial Rule SERVICE UPON PERSONS IN ACTIONS FOR ACTS DONE IN THIS STATE OR HAVING AN AFFECT IN THIS STATE a. BASIC LAW Any person or organization that is a nonresident of this state, a resident of this state who has left the state, or a person who residence is unknown, submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent: (1) doing any business in this state; (2) causing personal injury or property damage by an act or omission done within this state; (3) causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does 4

16 or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in this state; (4) having supplied or contracted to supply services rendered or to be rendered or goods or materials furnished or to be furnished in this state; (5) owning, using, or possessing any real property or an interest in real property within this state; (6) contracting to insure or act as surety for or on behalf of any person, property or risk located within this state at the time the contract was made; or (7) living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in the state. (8) abusing, harassing, or disturbing the peace of, or violating a protective or restraining order for the protection of, any person within the state by an act or omission done in this state, or outside of this state if the act or omission is part of a continuing coarse of conduct having an effect in this state. Ind. Trial Rule 4.4(A). b. ANALYSIS Although nonresident's activities established sufficient minimum contacts with the state to subject nonresident to in personam jurisdiction, where residents' cause of action did not arise out of those contacts but out of the alleged negligence of one of nonresident's agents/employees in operating motor vehicle in another state, there was insufficient nexus between jurisdictional facts and matter in dispute. Ellenstein v. S & S Game Preserve, Inc., 581 F. Supp. 81 (D.C. 1983). In general, a person who drives a car in the State of Indiana and causes personal injury or property damage is subject to the jurisdiction of Indiana courts. 5

17 8. SERVICE UPON RESIDENT WHO CANNOT BE FOUND OR SERVED WITHIN THE STATE a. BASIC LAW When the person to be served is a resident of this state who cannot be served personally or by agent in this state and either cannot be found, has concealed his whereabouts or has left the state, summons may be served in the manner provided by Rule 4.9 (summons in in rem actions). Ind. Trial Rule 4.5. b. ANALYSIS This rule does not require the existence of a res (property or thing) within the state as a prerequisite for exercise of jurisdiction by means of service by publication. Milosavljevic v. Brooks, 55 F.R.D. 543 (D.C. 1972). 9. SERVICE UPON ORGANIZATIONS a. BASIC LAW (A) Persons to Be Served. Service upon an organization may be made as follows: (1) In the case of a domestic or foreign organization upon an executive officer thereof, or if there is an agent appointed or deemed by law to have been appointed to receive service, then upon such agent; (2) In the case of a partnership, upon a general partner thereof; (3) In the case of a state governmental organization 6

18 upon the executive officer thereof and also upon the Attorney General; (4) In the case of a local governmental organization upon the executive thereof, and upon the attorney for the local governmental organization. (B) When shown upon an affidavit or in the return, that service upon an organization cannot be made...service may be made by leaving a copy of the summons and complaint at any office of such organization within the state with the person in charge of such office. Ind. Trial Rule 4.6(A), (C). 10. SERVICE BY PUBLICATION a. BASIC LAW (A) In any action where notice by publication is permitted by these rules or by statute, service may be made by publication... The person seeking such service, or his attorney, shall submit his request... along with supporting affidavits that diligent search has been made that the defendant cannot be found... (B) The summons shall be published three (3) times by the clerk or person making it, the first publication promptly and each two (2) succeeding publications at least seven (7) and not more than fourteen (14) days after the prior publication, in a newspaper authorized by law to publish notices, and published in the county where the complaint or action is filed, where the res (property or thing) is located, or where the defendant resides or where he was known last to reside... Ind. Trial Rule 4.13(A) and (C). b. ANALYSIS Indiana law allows for service by publication if person to be served cannot be served personally and cannot be found, has concealed his whereabouts, or has left the state. Donforth v. R.L.W. ex rel. Whitehead, 643 N.E.2d 367 (Ind. Ct. App. 1994). 7

19 B. VENUE 1. BASIC LAW Venue refers to the particular county (or counties) within Indiana as the proper place for trial of the lawsuit. Venue may be "proper" in more than one county. The purpose of the venue rules is to give the defendant some control in the choice of the forum where the action is to be tried. Venue determines which county in Indiana whereas jurisdiction determines whether Indiana is the proper state for the action. Although a case may be "venued, convened and decided" in any court in any county, one or more counties may be "preferred" over others. Preferred venue lies in one of ten enumerated counties, with the last being the county where one or more individual plaintiffs reside. There is no preference among the first nine enumerated counties. If one or more preferred venue counties exist, the plaintiff may select the county he or she prefers. The plaintiff may file suit in the county in which he or she resides only when venue is not established under one of the first nine provisions. Ind. Trial Rule 75(A). 2. TRANSFER OF VENUE a. BASIC LAW 8

20 "Whenever a claim or proceeding is filed which should properly have been filed in another court of this state, and proper objection is made, the court in which such action or proceeding is filed shall not dismiss the same, but shall order said cause transferred to the court in which it should have been filed..." Ind. Trial Rule 75(B). b. ANALYSIS When a motion is granted for change of venue, the appropriate remedy is not to dismiss the case but to transfer the matter to the court in which it should have been brought. Hollingsworth v. Key Ben. Adm'rs, Inc., 658 N.E.2d 653 (Ind. Ct. App. 1995). When suit is initiated in a preferred venue county, the defendant may not request transfer of venue and court has no authority to transfer venue. Conner Ins. Agency, Inc. v. Fredericks, 634 N.E.2d 84 (Ind. Ct. App. 1994). Preferred venue rule did not create a hierarchy of preference. Sayeed v. Dillon, 573 N.E.2d 468 (Ind. Ct. App. 1991). Preferred venue in a case involving damage to chattels, such as an automobile, where the damage results from separate accidents, is in the county in which the plaintiff's property is regularly located. Banjo Corp. v. Pembor, 715 N.E.2d 430 (Ind. Ct. App. 1999). The office of an employer's insurance agent was not an "office or agency under the venue rule where the agent's office was not a branch or other place of business were either defendant's business was transacted on a regular basis. Hollingsworth, 658 N.E.2d at 653. Plaintiff's failure to select primarily preferred venue does not automatically warrant award of 9

21 attorney fees to defendant where venue selected is not wholly outside the ambit of the venue rule. Parkinson v. TLC Lines, Inc., 506 N.E.2d 1105 (Ind. Ct. App. 1987); See also Pratt v. Pierce, 713 N.E.2d 312 (Ind. Ct. App. 1999) (finding the selection of an alternative venue significant enough to award attorney fees). In a typical automobile accident case, preferred venue is in either (a) the county where the accident occurred or (b) the county where the defendant lives. 3. CHANGE OF VENUE a. BASIC LAW Upon the filing of a verified complaint, a party is entitled to a change of venue when such party demonstrates that he/she is unlikely to receive a fair trial on account of local prejudice or bias. The party is entitled only to one change of venue from the county. A motion for change of venue generally must be filed within ten (10) days after the issues are first closed on the merits. Whenever a change of venue from the county is granted, if the parties to such action agree as to the court upon which to transfer venue within three (3) days from the granting of the motion or affidavit for the change of venue, the court shall transfer the action to such county. In the absence of such an agreement, the court shall compile a written list of all counties adjoining the county from which the parties shall alternately strike the names of such counties. Ind. Trial Rule 76. C. DISCOVERY 1. IN GENERAL 10

22 a. BASIC LAW Discovery is the process whereby a party to the action attempts to acquire admissible information or evidence including the identity and location of persons having knowledge with regard to the claim or defense of the action, or may involve the identity of any document, tangible thing, or land, or other property relevant to the action. 2. SCOPE OF DISCOVERY a. BASIC LAW "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible Ind. Trial Rule 26(B)(1). b. ANALYSIS If insurer asserts work product privilege and argues that work was prepared in anticipation of litigation before it formally denied a claim, it bears burden of persuasion as to its resolve to litigate. Insurer may not assert work product privilege by merely arguing that the entirety of its claim files are accumulated in anticipation of litigation when it has a duty to investigate, evaluate, and make a decision with respect to a claim. Burr v. United Farm Bureau Mut. Ins. Co., 560 N.E.2d 1250 (Ind. Ct. App. 1990). There is no requirement of privity between insured and insurer to protect statements 11

23 from disclosure. Madison v. Hawkins, 644 N.E.2d at 184. An insured=s statement to his insurer concerning an occurrence which may be made the basis of a claim by a third party is protected from disclosure as a privileged communication. Richey v. Chappell, 594 N.E.2d 443 (Ind. 1992). Courts have also applied this rule to permissive users of an insured vehicle. Madison v. Hawkins, 644 N.E.2d 184 (Ind. Ct. App. 1994). 12

24 3. METHODS OF DISCOVERY Discovery may be obtained through the following methods: (1) depositions upon oral examination or written questions; (2) written interrogatories; (3) production of documents or things or permission to enter upon land or other property, for inspection and other purposes; (4) physical and mental examination (IME); (5) requests for admission. Unless the court orders otherwise, the frequency of use of these methods is not limited. Local rules usually dictate the number of interrogatories or requests for admissions, e.g., 30. Ind. Trial Rule DEPOSITIONS UPON ORAL EXAMINATION a. BASIC LAW After commencement of the action, any party many take the testimony of any person, including a party, by deposition upon oral examination. The attendance of a non-party may be compelled by the use of subpoena. The party desiring to take the deposition shall give notice in writing to every other party to the action. If the party giving notice fails to attend and proceed with the deposition but the other party attends in person, the non-attending party may be liable for attorney's fees. Before commencement of an action, a person may depose any person only upon filing a verified petition in state court. The court shall allow such a deposition to prevent a failure or delay in justice. Ind. Trial Rules 27 and 30. b. ANALYSIS 13

25 Rule 27 is useful for preserving testimony which may become unavailable. Sowers v. LaPorte, 577 N.E.2d 250 (Ind. Ct. App. 1991). However, the rule may not be used as a means of circumventing the general discovery limitations of Trial Rule 26. For example, a plaintiff bringing a "bad faith" claim may not obtain his/her entire insurance file prior to suit when not entitled to such file after filing suit. See Comments to Trial Rule 27; 2 Ind. Rules of Procedure Annot DEPOSITIONS UPON WRITTEN QUESTIONS After commencement of an action, any party may take the testimony of any person, including a party, by deposition upon written questions. The deposing party shall serve such questions upon every other party. Cross questions may be served within 20 days and redirect questions may be served within 10 days, followed by recross questions within 10 days. Ind. Trial Rule INTERROGATORIES a. BASIC LAW Any party may serve upon any other party written interrogatories to be answered by the party served. Each interrogatory shall be answered separately and fully in writing under oath, unless it is object to, in which case the reason for objection shall be provided in lieu of an answer. Answer shall be served upon the requesting party within 30 days of service of the interrogatory. Ind. Trial Rule 33. b. ANALYSIS 14

26 An interrogatory is not objectionable merely because it call for an opinion or legal conclusion. Bolen v. Mid-Continent Refrigerator Co., 411 N.E.2d 1255 (Ind. Ct. App. 1980). Leave of the court is not required to obtain certain investigative reports from the state. Fender v. Lash, 304 N.E.2d 209, 261 (Ind. Ct. App. 1973). 7. REQUESTS FOR PRODUCTION a. BASIC LAW A Request for Production may be served by any party upon any other party or person requesting such party or person to produce documents or things for inspection or entry upon land or property. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. If a request is made to a non-party, it must be served with a subpoena. Both the parties and non-parties must respond within thirty (30) days. If an objection exists, it shall be contained in the response. Neither a request nor a subpoena may be served upon a non-party until at least fifteen (15) days after a copy of the proposed request and subpoena are served upon all other parties. Failure to produce the documents may subject the responding party to a Motion to Compel Discovery or other discovery sanctions under Trial Rule 37. Ind. Trial Rule 34. b. ANALYSIS By bringing a personal injury suit, patients waive physician-patient privileges only to those matters causally and historically related to a condition put in issue and which have direct medical relevance to a claim, counterclaim, or defense. The bare assertion of a claim of privilege will not suffice to block the discovery of information; rather, the trial court must review contested materials in 15

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