Jarrell B. Hammond and Anthony M. Eleftheri received a favorable ruling from the Indiana Court of Appeals, on behalf of their client, National City Bank of Indiana, in the case of In the Matter of the Trust Created under the Last Will and Testament of Eldo H. Stonecipher v. National City Bank of Indiana, Trustee, 849 N.E.2d 1191 (Ind. Ct. App. 2006). On June 30, 2006, the Indiana Court of Appeals affirmed the judgment of the Marion County Probate Court, finding that National City Bank of Indiana, as Trustee of the Stonecipher Trusts, did not abuse its discretion in determining that requested guaranteed discretionary distributions of principal were not warranted under the Trust terms.
The Trust in question specifically provided for an income interest to Stonecipher’s surviving spouse, with a remainder interest to Stonecipher’s two adult daughters from a prior marriage. The Trust terms provided Stonecipher’s surviving wife with a “5 and 5" income credit (specifically the yearly right to withdraw $5,000.00 or 5% of the principal) for health, support and maintenance needs. Stonecipher’s surviving spouse, Miriam Graninger, subsequently remarried and exercised the “5 and 5" power on an annual basis. Unfortunately, Ms. Graninger began to suffer ill health and a request was made by her current spouse for guaranteed discretionary distributions of principal to assist in paying Graninger’s $10,000 a month in-home health care.
National City Bank, as Trustee, reviewed the provisions of the Trust and noted that the purpose of the Trust was to not only help provide for Graninger’s health, support and maintenance, but also to ensure that Stonecipher’s daughters (who held remainder interests) received some interest or benefit from the Trust. National City Bank, as Trustee, also noted that Graninger used her substantial personal interests to make gifts to her own children and based on experience, concluded that $10,000.00 per month was excessive for Graninger’s health, support and maintenance for in-home health care. National City denied the request for guaranteed discretionary distributions of principal.
In affirming the Marion County Probate Court’s decision that the Trustee was within its discretion, the Indiana Court of Appeals noted that Graninger’s request that the amount of monthly distributions remain constant, “was tantamount to a request that the Trustee guarantee discretionary distributions of principal” above the “5 and 5" election. The Court noted that Graninger did not meet her burden in showing that National City abused its discretion and affirmed the judgment.
John Trimble and Richard K. Shoultz submitted an amicus curiae brief on behalf of the Insurance Institute of Indiana, Inc. in the case of Cain v. Griffin,2006 WL 1719934 (Ind. 2006). A customer who slipped and fell at the restaurant’s parking lot brought an action directly against the restaurant’s insurer to recover for medical payment benefits. The customer also alleged that the insurer breached a duty of good faith owed to the restaurant customer in addressing the claim.
The Indiana Supreme Court found that the customer could bring a direct action against the insurer to obtain the medical payments coverage, but the customer could not bring a bad faith action against the restaurant’s insurer. The Institute argued to the Court that the customer was a stranger to the “special relation” between the restaurant and the insurer which supported the lack of duty of good faith. Consequently, the Institute argued that the customer could not bring a bad faith action, and the Supreme Court agreed.
John Trimble and Richard Shoultz submitted an Amicus Curiae Brief on behalf of the Insurance Institute of Indiana, Inc. and Property Casualty Insurers Association of America in the decision of Midtown Chiropractic v. Illinois Farmers Ins. Co., 847 N.E.2d 942 (Ind. 2006). In Midtown Chiropractic, a chiropractor received an assignment from its patient to collect any proceeds received by the patient from a tortfeasor or his insurer. The chiropractor sent notice of this assignment to the tortfeasor’s liability insurer. However, the insurer settled the patient’s personal injury claim directly with the patient, who apparently did not pay the chiropractor. As a result, the chiropractor brought an action directly against the tortfeasor’s liability insurer in an attempt to enforce the assignment and collect the amount of the chiropractic services provided to the patient.
At the trial court level, the liability insurer received summary judgment. On appeal to the Court of Appeals, summary judgment was reversed. The Indiana Supreme Court reversed the Court of Appeals and affirmed the summary judgment entered for the liability insurer by the trial court. The Supreme Court reaffirmed Indiana’s “well settled rule” that a plaintiff cannot assign a personal injury tort cause of action. While the court recognized that the Indiana Legislature has provided a statutory lien to allow certain medical providers (hospitals and ambulance operators) to enforce lien rights, the Supreme Court refused to allow chiropractors to have similar collection rights. The court declined to alter the common law rule which prohibited these assignments.
John and Rick argued that Midtown was nothing more than a general creditor of the patient/plaintiff, and did not possess an enforceable right to bring a direct action against the liability insurer. They also discussed the practical problems that would exist in addressing personal injury claims, if a chiropractor was granted the right to bring a direct action against the insurer.
John Trimble and Lisa Dillman (of counsel to the firm) received a favorable ruling from the Indiana Court of Appeals on May 5, 2006, in the case of Kho v Pennington, 846 N.E.2d 1046 (Ind.App. 2006). In Kho, John defended a local law firm in a legal slander/malicious prosecution case filed by a doctor from Scottsburg, Indiana. The law firm had sued the doctor for malpractice in Scott Circuit Court based upon a substantial number of hospital records that had suggested that the doctor had provided emergency care to a patient who died a day after being sent home from the hospital. The firm learned through discovery that the doctor had been “on call” when the patient was treated, but it developed that he had not actually been present in the hospital. The firm dismissed the lawsuit after they learned that the doctor had not actually seen the patient. The doctor then immediately sued the firm and its client for slander and malicious prosecution.
The trial court granted summary judgment to the law firm, and then the trial judge retired. The summary judgment motion was argued a second time to the new judge pursuant to a Motion to Correct Errors, and summary judgment was again granted. After briefing and oral arguments, the Indiana Court of Appeals found that the law firm had ample probable cause to file the lawsuit, and it upheld the summary judgment ruling. A Petition to Transfer is currently pending before the Indiana Supreme Court.
