Charles R. WhybrewSenior Counsel
The Indiana Court of Appeals affirmed the judgment issued by the Marion Superior Court that the claims asserted by Plaintiffs Crystal and William West are not claims for medical malpractice and, as such, are outside the purview of the Indiana Medical Malpractice Act.
2016 WL 276482Lewis Wagner team members, John Trimble, Richard Shoultz and Chuck Whybrew, were hired by the client to pursue post-judgment and 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 and its insurer, Empire Fire and Marine Insurance Company (“Empire”). Empire denied that any UIM coverage was available based upon language contained in the rental agreement and 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 and 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, and 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.
- Trietsch v. Circle Design Group Inc., 868 N.E.2d 812 (Ind. Ct. App. 2007).
- Battema v. Booth, 853 N.E.2d 1004 (Ind. Ct. App. 2006).
- Newson v. Fenoglio, 2006 U.S. Dist. Lexis 48570 (S.D. Ind. 2006).
- Thorton-Tomasetti Eng’rs v. Indianapolis-Marion County Pub. Library, 851 N.E.2d 1269 (Ind. Ct. App. 2006).
- Mayer v. BMR Props., LLC, 830 N.E.2d 971 (Ind. Ct. App. 2005).
- Crossman Communities Inc. v. Dean, 767 N.E.2d 1035 (Ind. Ct. App. 2002).
- Sheppard v. Stanich, 749 N.E.2d 609 (Ind. Ct. App. 2001).
- United States v. Bartle, 2001 U.S. Dist. Lexis 18483 (S.D. Ind. 2001).
- United States v. Bartle, 2001 U.S. Dist. Lexis 22934 (S.D. Ind. 2001).
- Ling v. Stillwell, 732 N.E.2d 1270 (Ind. Ct. App. 2000).
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Courts of Practice
- U.S. District Court, Northern District of Indiana, 1998
- U.S. District Court, Southern District of Indiana, 1998
- U.S. Bankruptcy Court, Southern District of Indiana, 2000
- Indiana University Robert H. McKinney School of Law, J.D., 1998
- Wabash College, Crawfordsville, Indiana, B.A., cum laude, 1994