Cases
Experience: Representative Cases: Defense verdict on slip
fall case
07C01-1311-CT-000470
Court of Appeals affirms grant of summary judgment to employer who paid for drinks where employee was involved in an automobile accident.
32A05-1403-CT-131
Seventh Circuit affirms dismissal of action by collection agent for volunteer fire departments to recover environmental cleanup costs under CERCLA
11-2381
Indiana Supreme Court ruled in favor of an insurance company on insured's obligation to give timely notice of a loss
timely notice of a lawsuit
Empire Fire
Marine Ins. Co. v. Frierson
2016 WL 276482
Defense verdict on slip
fall case
07C01-1311-CT-000470 Ms. Koller allegedly slipped
fell upon ice at the Hotel Nashville in Nashville, Indiana. There were significant questions associated with Ms. Koller's contention that ice was present at the time of her fall. We were able to cast doubt upon Mr. Koller's description of the conditions.
Court of Appeals affirms grant of summary judgment to employer who paid for drinks where employee was involved in an automobile accident.
32A05-1403-CT-131
Lewis Wagner, LLP's client is an employer who had a holiday luncheon for its employees at a restaurant which began at 1:00 p.m. One of the client's employees had prior instances of incidents after the consumption of alcohol. At the holiday party, the restaurant served two drinks to the employee which were paid for by the employer. The party ended at around 3:00 p.m.
The employee left the restaurant
went to his home. Later, the employee drove to a nearby liquor store
purchased beer
tequila. He spent two hours consuming the alcohol that he had recently purchased. At around 8:30 p.m., almost five
a half hours after he left the holiday party, he was involved in an automobile accident with the plaintiffs while driving his own vehicle on personal activities.
The plaintiffs filed a lawsuit against the employer
others alleging negligence. The plaintiffs argued that the employer was responsible for the employee's intoxication
actions by organizing
supervising the Christmas party. Furthermore, the Plaintiffs contended the employer was responsible to exercise reasonable care with respect to the employee's consumption of alcohol such that he would not sustain a relapse that lead to the chain of events because of his alcohol consumption. However, the Court of Appeals found that the employer actually exercised ordinary reasonable care in the organization of the holiday party, by refusing to allow the employees to go into the bar at the restaurant,
allowing only two drinks to be purchased by the employees. Furthermore, the Court found that the employee's voluntary consumption almost six hours after the party ended represented an intervening cause of which the employer was not responsible.
In this case, the employer was represented by Richard K. Shoultz
Edward Thomas. The Appellate decision can be found at Thompson v. Fields Gutter & Siding, Inc., 2014 Ind. App. Unpub. LEXIS 1006 (Ind. Ct. App. 2014).
Seventh Circuit affirms dismissal of action by collection agent for volunteer fire departments to recover environmental cleanup costs under CERCLA
11-2381
When insureds are involved in automobile accidents, volunteer fire departments typically respond
render environmental cleanup services. A collection agent for the volunteer fire departments often attempts to recover the expenses for the clean-up costs from accident victims
their insurance companies by contending that a right to collect such charges existed under the Comprehensive Environmental Response, Compensation,
Liability Act ( CERCLA ). 42 USC 9601 et. seq. John Trimble
Richard K. Shoultz represented The Insurance Institute of Indiana, Inc., Property Casualty Insurers Association of America,
Wisconsin Insurance Alliance in asking the Seventh Circuit to affirm the Northern District of Indiana's dismissal of the collection agent's lawsuit against the insureds
insurance companies. The Seventh Circuit affirmed the dismissal, concluding that an insured's use of an automobile that may have been involved in an accident qualified as part of a consumer product exception under CERCLA, which prohibited the use of the act to recover for environmental cleanup costs.
It is anticipated that this decision will be a significant one in curtailing volunteer fire department's efforts to overcome budget shortcomings by imposing environmental cleanup costs upon insureds
their insurance companies.
Indiana Supreme Court ruled in favor of an insurance company on insured's obligation to give timely notice of a loss
timely notice of a lawsuit
The Indiana Supreme Court ruled in favor of an insurance company on the issue of the insured's obligation to give timely notice of a loss
timely notice of a lawsuit. The Court also addressed the significant issue of what is an occurrence under a CGL policy.
Empire Fire
Marine Ins. Co. v. Frierson
2016 WL 276482 Lewis Wagner team members, John Trimble, Richard Shoultz
Chuck Whybrew, were hired by the client to pursue post-judgment
appellate relief of an adverse verdict entered against the client. Specifically, the plaintiff, a renter of an automobile from a rental car company, was involved in an automobile accident with an underinsured motorist ( UIM ). The renter sought UIM coverage from the rental car company
its insurer, Empire Fire
Marine Insurance Company ( Empire ). Empire denied that any UIM coverage was available based upon language contained in the rental agreement
the insurance policy with the rental car company, whose terms were incorporated into the rental agreement.
The Trial Court denied Empire's Motion for Summary Judgment. Although the renter did not seek nor did the Court specifically grant summary judgment on the coverage issues to the renter, the trial court refused to allow Empire to argue its coverage defenses at trial. As a result, a significant verdict was entered against the insurance company.
The Lewis Wagner attorneys first sought post-judgment relief at the trial court level by filing a Motion to Correct Error
for Additional Setoff. The Trial Court denied the Motion to Correct Error, but granted, in part, the request for setoff by reducing the judgment against Empire after deducting amounts received by the renter from the UIM.
On appeal, the Court reversed the Trial Court's denial of Empire's Motion for Summary Judgment. Specifically, the Court found that any coverage provided by Empire was under a commercial excess liability policy,
pursuant to Indiana Code 27-7-5-2(d), such coverage was not required to be made available to insureds or rejected by them. Consequently, the Court instructed that summary judgment be entered in favor of Empire.
Published Appeals: School City of Hammond Dist. V. Rueth , 71 N.E. 3d 33 (Ind. Ct. App. 2017), trans. den. Counsel for school
hired to pursue appeal after $500,000 verdict entered against school on defamation
blacklisting claims. Court of Appeals reversed
entered judgment for school.
Empire Fire
Marine Ins. Co. v. Frierson, 2016 WL 276482 (Ind. Ct. App. 2016), Counsel for Defendant, arguing for reversal of jury verdict against insurer (represented by a different law firm) for trial court's errors in failure to grant summary judgment in underinsured motorist claim.
Thompson v. Fields Gutter & Siding, Inc. , 18 N.E.2d3d 319 (Ind. Ct. App. 2014) trans den . Counsel for Defendant, Fields Gutter & Siding, Inc., arguing that client lacked legal duty to be responsible for an employee's actions in becoming intoxicated outside scope of employment.
Robinson v. Erie Ins. Exch., 9 N.E.3d 673 (Ind. 2014). Counsel for Amicus Curiae, Insurance Institute of Indiana, Inc., arguing interpretation of limitation on uninsured motorist coverage for property damage claim.
State of Indiana v. Doe, 987 N.E.2d 1066 (Ind. 2012). Counsel for Amici Curiae, Insurance Institute of Indiana, Inc., Manufacturers Association,
Indiana Chamber of Commerce, Inc., arguing that Indiana's statutory cap on punitive damages should be upheld.
Emergency Services Billing Corp. v. Allstate Ins. Co., 668 F.3d 459 (7th Cir. 2011). Counsel for Amici Curiae, Insurance Institute of Indiana, Inc., Property Casualty Insurers Assoc. of America,
Wisconsin Insurance Alliance, arguing issue of CERCLA application to volunteer fire department's request to cover cleanup costs after motor vehicle accident.
Balagtas v. Bishop , 910 N.E.2d 789 (Ind. Ct. App., 2009). Counsel for Amicus Curiae, Insurance Institute of Indiana, Inc., arguing whether insurance company can offer partial uninsured motorists coverage to commercial insured.
Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997 (Ind. 2009). Counsel for Amicus Curiae, Insurance Institute of Indiana, Inc., arguing whether insurance company waives other coverage defenses if it also asserts defense that insured supplied late notice of claim.
Bush v. State Farm Mut. Auto Ins. Co., 905 N.E.2d 1003 (Ind. 2009). Counsel for Amici Curiae, Insurance Institute of America, Inc.
National Association for Mutual Insurance Companies, arguing whether bodily injury requirement in policy for uninsured motorist coverage violated Indiana public policy.
Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2008). Counsel for Amici Curiae, Insurance Institute of America, Inc.
National Association for Mutual Insurance Companies, arguing statute of limitations for remediation on environmental claim.
Midtown Chiropractic v. Illinois Farmers Ins. Co. , 847 N.E.2d 942 (Ind. 2006). Counsel for Amici Curiae, Insurance Institute of Indiana, Inc.
Property Casualty Insurers Association of America, arguing issue of assignment of personal injury claim to chiropractors.
Barclay v. State Auto Insurance Companies , 831 N.E.2d 745 (Ind. 2005) trans. den., Counsel for Amici Curiae, Insurance Institute of Indiana, Inc.
Property Casualty Insurers Association of America, arguing policy interpretation by Court of Appeals
impact on insurance industry.
Menefee v. Schurr, et. al., 751 N.E.2d 757 (Ind. Ct. App. 2001) trans. den., 774 N.E.2d 511 (Ind. 2002). Counsel for Amicus Curiae, Insurance Institute of Indiana, Inc., arguing issue of cause of action for third party bad faith by insurance company.
Jesse v. American Comm. Mut. Ins. Co., 735 N.E.2d 238 (Ind. 2000). Counsel for Amicus Curiae, Insurance Institute of Indiana, Inc., arguing issue of rescission of insurance policy for material misrepresentation.
Economy Fire & Cas. Co. v. Collins , 643 N.E.2d 382 (Ind. Ct. App. 1994) trans. den. Counsel for Amicus Curiae, Indiana Insurance Institute, arguing issue of insurance company liability for excess verdicts.
Richey v. Chappell , 594 N.E.2d 443 (Ind. 1992). Counsel for Amicus Curiae, Indiana Defense Lawyers Association, arguing issue of discoverability of insureds statement to insurer.
