Individuals who are deemed liable for the injuries of another person – whether through negligence or intentional conduct – can be ordered in civil court to cover damages for medical bills, lost wages, and pain and suffering. This is separate and apart from any order of restitution in a criminal court, since the two operate independently of each other. While no insurance company will pay for the cost of intentional injuries inflicted by an insured, they could be responsible to cover third-party liability in such a case. For example, if you are injured at a bar in an attack by a fellow patron, you may have grounds to sue the bar itself in an Indiana premises liability claim if there is evidence such an incident was foreseeable, and the bar’s security was inadequate.

It’s often in a victim’s best interest to explore civil injury case options, since restitution orders often only take into account actual damages and often do not calculate payouts based on intangible losses, such as pain and suffering and mental anguish.

Recently, the Indiana Court of Appeals affirmed a criminal case restitution order against a bar patron who allegedly instigated a fight with a bouncer, even though she did not directly inflict his injuries.

According to court records in the case, the defendant argued the trial court abused its discretion by ordering her to pay more than $18,000 in restitution to the victim because she did not cause the victim’s injuries.

The incident in question occurred in April 2015 while the defendant and three male companions – her boyfriend, his brother, and another friend – went to a bar in Broad Ripple. Prior to their arrival at the site, the defendant and the others had already consumed alcohol, and the bartender refused to serve them any more drinks, concluding they were already visibly impaired. (This was a smart move considering that Indiana’s Dram Shop Act, Ind. Code 7.1-5-10-.15.5, statutorily allows for civil liability against alcohol vendors who serve patrons who are already visibly intoxicated.)

The bartender served them water and asked them to leave numerous times amid multiple confrontations with other patrons. Eventually, the bartender threatened to call police. The group loudly exited, according to reports, and then the female defendant attacked a male bouncer who was trying to keep them from going back in. She grabbed his beard with both hands, put her feet on his thighs, and was trying to pull out his beard. The victim was in extreme pain, grabbed the defendant’s hair (but did not pull), and threatened to rip her hair out if she didn’t let go. It was at that point that two of the defendant’s male companions entered the fray, throwing punches and causing the victim to fall back onto the concrete and suffer a broken leg. Once he was on the ground, one of the men stomped on his ankle, breaking it, and another kicked him in the face.

The victim eventually required surgery on his leg. The three attackers were charged with felony battery. The defendant female alleged the bouncer was the initial aggressor, who had yelled slurs at her and spit at her. She also alleged he had punched her.

The defendant was convicted of misdemeanor battery, after the judge stated the two had been in mutual combat, but she was not the person who inflicted the blows that seriously injured him. The other two were found not guilty.

The victim was paid $15,000 in restitution from the Violent Crime Compensation Fund for his medical bills, which totaled more than $33,000. The defendant was ordered to pay the remainder of those bills.

On appeal, defense counsel acknowledged the victim could seek restitution in civil court but insisted restitution wasn’t proper because she wasn’t the one who caused his broken leg.

The appellate court, however, affirmed. The court noted the Indiana Supreme Court’s previous rulings holding restitution is properly payable to those who have suffered injury, harm, or loss as a direct and immediate result of the criminal actions of defendants, and the defendant was the one who started the incident – and the actions of the co-defendants were not a separate, intervening action.

This order of restitution will not affect the victim’s ability to pursue civil action through a personal injury claim. Furthermore, the finding of not guilty in criminal court won’t prevent the victim from taking action against the other two men also, since not only are the cases handled separately, but also the proof burden is lesser in civil cases.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including in Highland, Gary, and Hammond. Additional Resources: Postiglione v. State of Indiana, Sept. 19, 2017, Indiana Court of Appeals

More Blog Entries: Indiana Injury on Aviation Company Property Case to Proceed, Sept. 15, 2017, Indiana Personal Injury Attorney Blog

Many courts have accepted that the amount billed for services can be taken at face value as “reasonable” for services rendered. However, defendants are increasingly challenging these amounts, saying they should not be taken at face value as “reasonable.” One thing that constrains this rebuttal, however, is the collateral source rule. Jurisdictions vary greatly on the collateral source rule application and scope, and the law is constantly evolving. Indiana is no exception, as shown in the recent case of Patchett v. Lee, before the Indiana Supreme Court.

In general, American case law prevents the admission of evidence that a plaintiff or victim in a personal injury lawsuit received compensation from a source other than damages sought by the defendant. Thus, for example, if you are injured but had private health insurance that covered a substantial portion of your medical costs, that information would not be subject to review by the jury. The idea is that this could unfairly affect the jurors’ perception of the compensation to which a plaintiff is entitled.

In Patchett, the question of first impression was whether reduced medical bills negotiated by government payers are subject to the collateral source rule protection. That is, if health care providers agree to accept a lower amount from Medicaid for the treatment of a plaintiff’s injuries, can a defendant in a personal injury lawsuit present this information to the jury as evidence that the amount paid – rather than the amount billed – was the true reasonable cost of services?

It’s an important issue because we know that government payers often wrangle deals from medical service providers that amount to reimbursement for hundreds, thousands, or even tens of thousands less than what is billed.

The Indiana Supreme Court decided in favor of the defendant.

According to court records, the defendant conceded she negligently drove her vehicle into oncoming traffic on one day in 2012, striking the plaintiff’s vehicle and causing an injury to the plaintiff that necessitated medical treatment. The plaintiff sued for full and fair compensation. The defendant agreed she was liable for the car accident and generally agreed that the plaintiff received necessary medical treatment for the injuries she suffered. However, she disputed what was the “reasonable” amount of the plaintiff’s medical costs.

The plaintiff was enrolled in the Health Indiana Plan (HIP), which is a government-sponsored health care program. The providers from which the plaintiff received medical services were HIP participants, and as part of the deal with the government, they agreed often to accept significantly less than the original amount billed. In this case, the plaintiff was billed $87,700, but HIP paid $12,000 to cover those costs in full – an 86 percent discount.

The collateral source rule would prohibit the defendant from introducing that the plaintiff’s health insurer paid a much lower rate than billed. If the plaintiff recovered the full cost, she’d only be responsible to reimburse her insurer what was actually paid.

However, the defendant argued the “reasonable” value of those services was the amount actually paid, and this evidence should be allowed because this was a government payer – rather than a private health insurer.

The plaintiff countered that reduced HIP amounts were not based on market negotiation. The trial court and the Indiana Court of Appeals agreed with her, finding the information was not probative or of reasonable value, and thus it was properly excluded. However, the state supreme court vacated the appellate court’s ruling and reversed. The court ruled that since participating providers in the HIP program do so voluntarily, the reduced rates they accept are probative and relevant in determining the reasonable cost of medical services.

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

Additional Resources:

Patchett v. Lee, Oct. 21, 2016, Indiana Supreme Court

More Blog Entries:

Rogers v. Martin – Indiana Supreme Court Weighs Duty of Care for Party Hosts, Nov. 16, 2016, Highland Injury Lawyer Blog

In Rogers v. Martin, the plaintiff alleged the defendant, who co-hosted a house party at which alcohol was served, breached her landowner-invitee duty to exercise reasonable care to protect those on her property and also violated the state’s Dram Shop Act, resulting in harm to another person.

This case highlights the duty of care party hosts owe to their guests, which is an important consideration especially as we’re nearing the holidays, when there tends to be an increase in large gatherings.

According to court records, the defendant and her boyfriend (now husband) co-hosted a house party at a home she owned (and where her boyfriend lived on-and-off). In preparation for the get-together, the defendant’s boyfriend ordered a keg of beer, picked it up, and set it up in the garage. He paid for it with a debit card he and his girlfriend used for household expenses. The account was solely in his girlfriend’s name, but both contributed to the balance and regularly pooled their income to cover expenses, even though she earned much more than he did.

At this party, alcohol was served. Guests, who included friends and co-workers, began arriving at around 6 p.m. There were about 50 people in all. Two of those guests included the decedent and her boyfriend. The decedent’s boyfriend was a co-worker of the defendant’s boyfriend and had been personally invited to the party. Neither the defendant nor her boyfriend had previously met the decedent. Guests largely served themselves from the keg, although at one point, the defendant did serve her boyfriend and others at a poker table with a pitcher from the keg. The defendant did not monitor her boyfriend’s drinking, even though he was on probation for his second operating while intoxicated conviction.

The defendant went to bed at around 2 a.m. About 1.5 hours later, the defendant’s boyfriend asked the last of the guests to go, and for some reason, a fistfight broke out. The boyfriend went to get his girlfriend to ask for her help in getting the guests to leave. She did, and when she went to the basement, she saw the decedent motionless on the floor. She thought maybe he had simply drunk too much alcohol, but she suggested maybe he should be checked out at a local hospital, but she did not call 911. The two men carried the unconscious man upstairs and outside.

Ultimately, the police were called, and they discovered the decedent outside the home, dead. The defendant’s boyfriend was arrested, although prosecutors ultimately dropped the case, citing self-defense.

Later, the personal representative of the decedent’s estate claimed the defendant was liable for negligently causing the decedent’s injuries and for furnishing alcohol to her visibly intoxicated boyfriend, who assaulted the decedent, leading to his death.

The defendant filed for summary judgment on both claims, which the trial court granted, reasoning she was not negligent because Indiana doesn’t recognize the duty of a social host to render aid to a social guest and furthermore because she did not “furnish” beers to her boyfriend because the couple had exercised joint control over the alcohol.

The appellate court reversed, finding summary judgment was not proper because the defendant, as a social host, owed the decedent a duty to render aid, and there were questions of fact as to whether she breached that duty. Furthermore, there were questions of fact as to whether she had actually “furnished” alcohol to her boyfriend.

On review, the Indiana Supreme Court reversed in part.

With regard to the Dram Shop Act violation and the question of whether she “furnished” alcohol to the decedent’s attacker, the court ruled the plain meaning of the statute requires a transfer of possession. The couple jointly possessed the alcohol, and therefore the defendant could not have transferred possession to her boyfriend.

However, on the issue of negligence, a question of fact remained, the court ruled. In order to prevail, the plaintiff needs to show:

• The defendant owed a duty of care;
• The defendant breached that duty; and
• Her breach caused the plaintiff a compensable personal injury.

Here, the allegation was that the defendant was negligent in failing to render aid after finding him seriously injured on the floor of her basement. The appellate court ruled social hosts do have a duty to render aid. The Indiana Supreme Court agreed that summary judgment on the negligence claim was improper, but for a different reason. The justices ruled that the duty governing the defendant’s conduct, which is the duty to exercise reasonable care for an invitee on the premises, is already a duty outlined in existing premises liability law. Here, the question was whether the defendant owed a duty to take reasonable precautions to protect the decedent from the harm caused in the fistfight and whether she owed a duty to protect him from the exacerbation of his injuries after finding him unconscious. Since these questions remained unanswered, they should be answered at trial, the court ruled.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including in Gary and Hammond. Additional Resources: Rogers v. Martin, Oct. 26, 2016, Indiana Supreme Court

More Blog Entries: Bicyclists at Risk of Injury by Impatient, Careless Motorists, Oct. 7, 2016, Gary Indiana Injury Lawyer Blog