• The driver who struck you was negligent/at fault for the crash;
• Neither the driver nor the automobile had auto insurance coverage (or enough coverage), OR you were unable to identify the driver; and
• You suffered damages as a result of the crash.

In a recent case before the Indiana Court of Appeals, a plaintiff who suffered injuries in a rear-end collision was unable to collect UM damages because she failed to prove an essential element in her case, which was that both the driver AND the vehicle lacked any type of auto insurance coverage.

According to court records in the case, the plaintiff was stopped at a red light at around 8 p.m. when her vehicle was rear-ended by another driver. The plaintiff was injured as a result, and she subsequently filed a personal injury lawsuit against the at-fault driver, alleging negligence. She also asserted a claim for uninsured motorist benefits against her own insurance provider (the defendant in the present case).

The trial court found against the defendant driver, deeming him liable and ultimately deciding the plaintiff suffered $170,000 in damages. However, the plaintiff’s UM insurance carrier moved for judgment on the issue of uninsured motorist benefits. The plaintiff sought to re-open the evidence to ask questions of her insurance agent related to whether her insurance contract contained UM benefits. The judge denied the motion and decided the case in favor of the insurer, determining she had not met the proof burden necessary to establish her right to UM benefits.

On appeal, the plaintiff argued the court erred in refusing her request to question the insurance agent. The appellate court affirmed, finding that the court didn’t err, but even if it had, this would not have resolved the issue of her failure to meet the proof burden because she had not introduced evidence indicating that the vehicle driven by the defendant was not insured.

The court noted that to successfully raise a claim for uninsured motorist benefits in Indiana, an insured must establish the fault of the tortfeasor, the fact that there is no insurance policy covering the motorist or motor vehicle, and resulting damages. She relied on the allegation set forth in her claim against the defendant driver, which involved the assertion that the driver was not insured at the time of the crash. However, there was nothing in the record to indicate the vehicle itself was not covered by some insurance policy. For this reason, the claim for UM benefits failed.

The case highlights why it is so critically important to hire an experienced car accident attorney to handle your crash-related injury claim.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Owens v. Caudillo and State Farm Mutual Automobile Insurance Co., Aug. 2, 2018, Indiana Court of Appeals

More Blog Entries: Indiana Motorcycle Accident Victim’s $9M Damages Award Affirmed on Appeal, Feb. 16, 2018, Indiana Car Accident Attorney Blog

But there is one risk on the roads around the holidays that often gets overlooked: Fatigue.

Just recently in Putnam County, authorities reported a 20-year-old truck driver crashed his rig shortly before 2 a.m., veering off the highway, into the median and striking several trees. Although the dangers of fatigued truck drivers are well documented, given their long hours of tedious work, we often take for granted the devastation that can be caused by other motorists who aren’t getting enough sleep – and there are a lot of them. more

The U.S. Centers for Disease Control and Prevention compiled data from a number of studies, painting a deeply troubling picture of the problem. It’s estimated approximately 1 in 25 drivers over 18 fell asleep at the wheel while driving at some point in the last month. The NHTSA reports as many as 6,000 fatal crashes every year may be traced to a drowsy driver. The worst part is many people can’t tell if they are too tired to drive or when they may be close to falling asleep.

This is exacerbated by the holidays, when workers are often scrambling to put in overtime hours to complete end-of-year deadlines or meet consumer demands. On top of that, there are individuals traveling long distances to spend time with loved ones. Hours behind the wheel without enough rest or adequate breaks can be extremely perilous. Further, many people tend to indulge in alcohol more in December, attending a variety of holiday-related festivities. Alcohol in and of itself can be dangerous if one drives under the influence, but beyond that, alcohol has been shown to disrupt sleep patterns, causing those who imbibe not to get the proper amount of rest – and leaving them prone to a fatigued driving accident.

Driver fatigue can be grounds to assert negligence, if your Hammond personal injury attorney can prove the driver knew or should have known they did not get enough sleep. It could be considered a breach of the driver’s duty to passengers and other motorists to use reasonable care while operating a motor vehicle. However, we also recognize that it can be difficult to prove. In trucking accident cases, of course, there are stringent requirements to keep track of work/ drive time/ downtime hours, so that can make it less challenging.

But even if we cannot show definitively the driver was fatigued, that doesn’t mean the case is a lost cause. Most of the time, fatigued drivers are still making errors that amount to negligence, such as failing to yield the right-of-way or not slowing down fast enough for stopped traffic ahead.

Although these collisions are referred to as “accidents,” the reality is they are preventable when motorists take appropriate caution. Part of that means getting enough sleep before getting behind the wheel.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Drowsy Driving 2015, Oct. 2017, NHTSA

More Blog Entries:

Indiana Appeals Court: Vehicle Insured but Denied Coverage is Uninsured for UM Purposes, Oct. 18, 2017, Indiana Car Accident Attorney Blog

But while the augmented reality Pokemon Go craze has since died down significantly, what hasn’t is the fact that smartphones and apps continue to divide drivers’ attention in a way that endangers all of us on the roads. Our Indiana car accident attorneys know that this raises some interesting legal questions about what duty of care – if any – technology companies have to motorists.

Case law on the matter has not been hopeful for plaintiffs. In August, a superior court judge in California dismissed a lawsuit filed by the parents of a young man killed when he was struck by a driver who was texting. The distracted driver was charged with a misdemeanor, but the parents took legal action against the technology giant, alleging Apple failed to implement a lockout system on the iPhone. In the order for dismissal, the judge cited another lawsuit in that state with a similar fact pattern, wherein the appellate court ruled it would be “unreasonable” to assume the tech firm was responsible for the ultimate harm. more

It’s important to point out those rulings don’t have any direct impact here in Indiana, though courts do look to other jurisdictions that have weighed similar matters when considering issues of first impression, so it’s plausible those decisions could become relevant.

While there is likely to be continued legal exploration on this front, the more plausible avenue for success in these cases, at least for now, is to pursue action against the distracted driver. Driving while distracted by a smartphone is evidence of failure to abide the duty to use reasonable care that all motorists have behind the wheel. It’s also against the law in Indiana, which prohibits typing, transmitting or reading email or text messages on a communication device while driving. Violators could be slapped with a $500 fine.

Still, the Purdue study underscores the fact that this isn’t an issue that’s likely to go away anytime soon. If it’s not Pokemon GO, it will be some other game or feature.

The authors of the study noted that the numbers they released are an extrapolation of detailed Indiana car accident reports gleaned over the course of five months in Tippecanoe County. There were 12,000 crash reports analyzed. Within those, crash rates were 27 percent higher at intersections that were located within 100 meters of a Pokestop, as compared to other intersections. The data indicated 2 people in the county died in the course of those five months as a result of crashes caused by drivers playing the game, and the economic losses just in that county alone for these collisions topped $5.2 million.

The Pokemon Go popularity received an awful lot of attention, and it does seem given the research findings some of that was deserved. However, the use of regular, every day text messages and email by drivers poses a much larger collective threat – one our Gary car accident attorneys hope motorists will begin to take more seriously.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Death by Pokemon Go, November 2017, By Professors Mara Faccio and John J. McConnell of the Kranert School of Management, Purdue University

More Blog Entries:

Indiana Drunk Driving Accidents Targeted With New Breathalyzers, Nov. 15, 2017, Gary Car Accident Lawyer Blog

The case has implications for future uninsured motorist (UM) claims in Indiana.

Indiana requires every newly-written auto liability insurance policy to include uninsured and underinsured motorist coverage – unless it’s rejected in writing by the insured. Minimum UM/UIM liability limits are $25,000 per person and $50,000 per accident of UM benefits, $25,000 per accident for property damage, and $50,000 per accident for UIM benefits. This coverage protects insureds in the event they are involved in a crash with an at-fault driver who either doesn’t have auto insurance (as required by law) or doesn’t have enough auto insurance liability coverage to cover the full cost of the plaintiff’s injuries and damages.

According to court records, two individuals were involved in a South Bend car crash. The plaintiff was insured by the Affirmative Casualty Insurance Company, and the defendant was insured by ACCC Insurance Company. A few months after the 2015 crash, the defendant’s insurer denied coverage based on his lack of cooperation in the crash investigation – which is a policy stipulation that exists in many auto insurance policies.

In the following year, the plaintiff filed a complaint against the allegedly negligent driver and his own insurer, alleging that the defendant driver negligently caused his injuries and that the defendant was uninsured at the time of the crash, based on the denial of coverage by ACCC. He also asserted that under the provisions of his own UM policy, Affirmative should be liable for the damages he suffered as a result of the crash with an effectively uninsured driver.

A few days later, Affirmative was declared an insolvent insurer, and the IIGA (Indiana Insurance Guaranty Association) was substituted as the defendant. The association filed a motion to dismiss, arguing that the denial of coverage by ACCC didn’t render the defendant driver an uninsured motorist under the law or its policy. The trial court denied this motion, and the IIGA appealed.

The IIGA argued before the appellate court that the defendant driver wasn’t uninsured, and therefore the plaintiff had no actionable claim against Affirmative (and therefore no claim against IIGA) from which he could recover damages.

The court reviewed Indiana Code section 27-7-4(a), which offers the definition of uninsured motorist vehicle. This (subject to terms and conditions of coverage) means a motor vehicle without liability insurance or a motor vehicle not otherwise in compliance with the state’s minimum financial responsibility requirements or other applicable requirements under another state’s law.

The court ruled that a defendant driver’s vehicle whose coverage has been denied falls within the category of a vehicle that was “not otherwise in compliance with financial responsibility requirements.” The denial of coverage means that even though the defendant driver’s vehicle technically has insurance, the defendant is still without insurance that can actually cover any claimed damages.

The justices added that to interpret this statute any differently would be against public policy because it would allow insurers to deny motorists coverage in a way that would defeat the purpose of a claimant’s buying insurance in the first place. Secondly, if a claimant was unable to collect UM benefits from his own insurance just because a negligent driver failed to cooperate or was otherwise denied coverage, this would leave the plaintiff without any remedy to recover damages at all after the crash – which would defeat the purpose of the legislators’ goal of ensuring all motorists are covered.

Indiana Injury Attorney Burton A. Padove handles car accident claims throughout northern Indiana, including in Highland, Gary, and Hammond. Additional Resources: Indiana Insurance Guaranty Association v. Smith, Sept. 25, 2017, Indiana Court of Appeals

More Blog Entries: Indiana Drunk Driving Wrongful Death Lawsuit Filed After Teen Dies, Aug. 1, 2017, Highland Car Accident Lawyer Blog

The Marion-Chronicle Tribune reported jurors awarded the two men damages – approximately $3 million each – for the negligence of another driver, who perished in the collision.

While the decedent’s estate insisted the crash was caused by a faulty throttle cable designed and manufactured by Ford Motor Co., jurors ruled the decedent was 100 percent at fault. Specifically, they ruled she pressed down on the accelerator rather than the brake, causing her vehicle to crash into the victims. Her estate will be responsible for the entire award.

The crash happened in July 2009 when the decedent was driving southbound on State Road 37 in her 2005 model passenger vehicle. As she approached a traffic signal at an intersection, her light was red. Meanwhile, the plaintiffs were stopped in the northbound lane, waiting for the light to change. However, rather than stopping at that red light, the decedent accelerated through the intersection, slamming into the plaintiffs’ vehicle at a high rate of speed before leaving the roadway and crashing into a pole.

The decedent was pronounced dead at the scene. The plaintiffs were both severely injured.

In the following year, the decedent’s auto insurer filed a claim against Ford to recover what it had paid for damages to the vehicle. The insurer argued the car accident was caused by the defective throttle, which caused the decedent to barrel uncontrollably through the intersection. Subsequently, the decedent’s estate filed a wrongful death lawsuit against Ford as well, making the same allegation. The plaintiffs then filed a third lawsuit against Ford, also alleging the same theory. The plaintiffs, brothers who are now 24 and 26, also sought damages from the decedent’s estate.

The two victims suffered permanent serious facial scarring, as well as numerous ongoing physical ailments and psychological trauma, as a result of the auto accident. Their family struggled to pay the more than $300,000 in medical bills they incurred in the crash.

A case management plan was adopted that consolidated the three cases.

Expert opinions submitted by the plaintiffs noted a “heavily worn throttle cable,” but Ford argued the cause of that wasn’t determined, and it wasn’t clear this was the cause.

Ford later filed for summary judgment, arguing the damage to the cable was caused by the crash and was not due to any defect in design or manufacturing. The trial court granted the company’s motion for summary judgment on the product liability claim, but the Indiana Court of Appeals later reversed.

The injured plaintiffs’ case later went to a jury, which was charged with deciding the degree to which the decedent and Ford may have been liable for the plaintiffs’ injuries. The jurors accepted the argument by Ford that the decedent was solely to blame for the crash and that the decedent’s estate should be responsible for compensating the plaintiffs for their injuries.

The decedent’s estate had a policy limit of $2 million. The plaintiffs had offered to settle for $1.5 million prior to trial, but both defendants declined. An attorney for Ford later said it was important to prove the auto in question was not defective.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Jury finds driver liable in 2009 wreck, March 17, 2017, By Tyler Juranovich, Chronicle Tribune

More Blog Entries: Wrongful Death Lawsuit: INDOT Liable for Fatal Indiana Crash, Jan. 16, 2017, Car Accident Lawyer Blog

According to The Daily Journal, the decedent was driving his truck on State Road 135 near Trafalgar in December 2014 when another truck came barreling toward him – in his lane – from the opposite direction. The plaintiff’s husband died as a result of the crash, while her son, who was a passenger, was seriously injured, as was the allegedly negligent driver of the other truck.

In a lawsuit filed in Johnson County Superior Court, the plaintiff asserts there is a history of car accidents along that section of roadway that gave the state’s transportation department actual or constructive knowledge that safety improvements were necessary. Specifically, state officials should have installed center-line rumble strips, widened the road, and installed warnings signs near the road curves at the site of the fatal crash.

This failure to act, the plaintiff alleges, was the proximate cause of her husband’s death.

Officials with INDOT declined to comment on the case, as is standard when it comes to pending litigation. More information will come to light during the discovery phase of the litigation, assuming the state chooses not to settle, and the case continues toward the trial phase.

The plaintiff is requesting unspecified damages for the plaintiff and her two sons.

An attorney for the plaintiff notes that while the family is seeking compensation for economic and non-economic damages, it’s critically important to them that the state undertake necessary safety improvements so that this kind of tragedy doesn’t befall yet another family. According to police reports, this particular stretch of road – between Trafalgar and State Road 44 – has been the site of dozens of crashes since 2004. At least 12 drivers have been killed during that time frame.

The state has undertaken a few improvements since that 2014 crash. Center line rumble strips were installed between Bargersville and Morgantown. These devices give an alert to the driver that the vehicle they are operating has crossed over to the opposite lane. The express purpose is to help prevent a head-on car accident, like the one that claimed this man’s life. The plaintiff’s lawyer says if those same rumble strips had been in place two years earlier, after so many other deadly crashes, the plaintiff’s husband might have lived.

In addition, the plaintiff says the state should have properly banked or contoured the road. There was also no effort to upgrade or widen the road, despite its history of crashes. To do so would have been an exercise in reasonable care to keep the roadway in a reasonably safe condition for motorists.

An insurance claim against the other truck driver has already been settled, with no need for litigation, resulting in the plaintiff receiving an undisclosed sum, although the driver conceded no liability for the crash.

The lawsuit was filed just inside the two-year window provided by the statute of limitations for Indiana wrongful death claims.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Lawsuit claims INDOT responsible for fatal crash, Dec. 13, 2016, By Jacob Tellers, Daily Journal

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Corporate responsibility in such cases is based on the legal theory of respondeat superior, which is Latin for “Let the master answer.” What this means is that one can establish a claim of liability against an employer for the negligent acts of an employee carried out in the scope of employment – even if the employer did not engage in any negligent act. This is an important issue because it can directly affect how much compensation you may be able to collect for your injuries. The key determination that has to be made in order for respondeat superior to apply is whether the employee was acting in the scope of employment. Courts have generally broken this down into a four-part test: whether the conduct is similar to that which the employee was hired to perform, whether the action occurred mostly within the authorized spacial and temporal limits of employment, whether the action furthered the employer’s business, and whether the conduct, although unauthorized, was foreseeable in view of the employee’s duties.

In the recent case of Hudgins v. Bemish, the Indiana Court of Appeals held that a trial court erred in granting summary judgment to a business defendant that argued it was not liable for the negligent acts of its employee. The appellate justices decided there were conflicting facts and inferences that could be drawn as to whether the driver was acting in the course and scope of his employment. Also, the defendant company hadn’t met its initial proof burden for summary judgment on the issues of negligent hiring and retention (which are direct liability claims).

According to court records, the defendant driver was an employee of the defendant heating and cooling company in 2011, working as an installer. As part of his job, he was supplied with a company truck. The written policy on company vehicles indicates vehicles are to be used solely for work-related purposes. Company vehicles may be driven home by the employee each day or can be dropped off and kept at the shop. The defendant driver drove his work truck home every day and stored it on his property. The company paid maintenance and gas for those vehicles.

Workers were required to sign a vehicle usage policy that indicated workers weren’t to use the company vehicles for any personal use.

In September 2011, the defendant driver was assigned to work on a project at a site in Valparaiso. He drove the truck, loaded up equipment from the shop, and picked up his foreman and drove to the job site. He and the foreman performed work there over the course of several days. One day, after working for several hours on site, the pair drove back to Indianapolis in the truck. The defendant dropped off the foreman at his house and stayed for a few minutes. He then drove the truck near 16th Street and Georgetown Road and was involved in a collision with a line of vehicles stopped at a a red traffic light.

The impact caused a chain reaction that included the plaintiff, who was on his motorcycle and was injured. At the time of the collision, the defendant driver had several ladders with the defendant company’s logo on it. One of those fell onto the road at the site of the car accident.

The defendant driver then fled the scene in the truck, drove another few blocks, and then was involved in a second crash, when he struck another vehicle at a traffic light. When officers caught up to the defendant driver at the second crash site, they noted he “appeared dazed” and had trouble keeping his eyes open. He reportedly conceded that he had smoked “spice,” a synthetic drug, while on the side of the road.

Thereafter, the defendant company fired the defendant driver.

The motorcyclist and his wife filed claims against the driver and the company, alleging the driver was negligent in causing his injuries, and the employer was liable based on the theory of respondeat superior, as well as for negligent hiring and negligent retention.

The company moved for summary judgment on the claims against it. It alleged the worker was not acting in the scope of his employment because he was driving the company vehicle on his commute home after his shift, and he was not performing any activity related to his employment. As to the negligent hiring and retention claims, the company argued that while employers have a duty to use reasonable care to control employees acting outside the scope of employment in certain situations, it had no actual or constructive knowledge that any information that might show a propensity of the worker to commit these tortious acts would lead to a lawsuit. The defendant also further argued that it had no duty to the plaintiffs because they weren’t patrons of the company.

The appellate court, in reviewing the lower court’s grant of this summary judgment request, found there remained genuine issues of material fact as to whether the driver was acting in the course and scope of employment. Specifically, the company’s arguments seemed to conflict with the policies of its own handbook. There was also evidence that the company did owe a duty of care to the plaintiffs. The case was remanded for trial.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Hudgins v. Bemish, Dec. 9, 2016, Indiana Court of Appeals

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