Dollens: 2022 DTCI amicus activity in Indiana appeals courts

During that year, the Indiana Defense Attorney participated as amicus on a variety of matters of significant interest to the Bar Association. While DTCI cannot act in every case in which its participation is requested, the Amicus Committee and Board of Directors carefully review each request and welcome the opportunity to work with defense attorneys across the state on important Indiana law issues prior to Indiana’s appeal Dishes.

Davidson vs. Indiana State

Regarding Davidson vs. Indiana State, 21A-CT-1516, DTCI served as amicus in support of the respondent/defendant’s motion for a transfer to the Indiana Supreme Court. Respondents/defendants sought to have the Indiana Circuit Court of Appeals’ decision, which concluded that Indiana’s prohibition on “claims-splitting” and its doctrine of non-mutual defense of collateral not preclude a plaintiff from bringing a suit against a class of defendants (the negligent driver and the driver’s employer), obtaining judgment for all damages suffered in the automobile accident, and then filing a second lawsuit for the same damages against other known defendants (road owners and road construction contractors). In DTCI’s amicus brief, written by Crystal G. Rowe of Kightlinger & Gray LLP, DTCI argued that the court should grant review and clarify that plaintiffs’ claims against known defendants in cases involving the same accident, the same This would run counter to Indiana’s strong public policy, which supports the doctrine of non-mutual defensive collateral protection and the associated prohibition on the sharing of claims. The court on June 6 granted DTCI permission to act as amicus in the matter. The Indiana Supreme Court granted the transfer on September 15 and held a hearing on November 15. See Cause #22S-CT-318. The case remains pending.

Kearschner v American Family Insurance Co.

Regarding Kearschner v American Family Insurance Co., 21A-CT-1888, DTCI acted as amicus in support of the appellant/defendant’s brief. Jenny R. Buchheit and Alexandria H. Pittman, both of Ice Miller LLP, wrote the amicus brief on behalf of DTCI. In this uninsured motorist case, the plaintiff contracted the insured defendant for $100,000 of UIM coverage. After being injured in an automobile accident, the plaintiff received $50,000 from the tortfeasor and $62,084.52 in workplace compensation for a total of $112,084.52. Based on the set-off provisions in his insurance policy, the trial court determined that the plaintiff was not entitled to any further recovery from the insured defendant. The plaintiff appealed, seeking an additional $50,000 from the insured defendant.

In its amicus brief, DTCI argued that given the purpose of Indiana Code § 27-7-5-2 and directly applicable case law (Justice v American Family Mutual Insurance Co., 4 NE3d 1171 (Ind. 2014)), the court of first instance correctly concluded that the plaintiff was not entitled to underinsurance by the insured-defendant. DTCI argued that the finding was consistent with the language of the insured defendant’s insurance policy, the Indiana Uninsured/Underinsured Motorist Act, the case law interpreting the same, the intention of the General Assembly and public policy to prevent double recovery and freedom of contract . The court granted DTCI permission to act as amicus on January 27.

On July 13, the Court of Appeal delivered its opinion, overturning the summary judgment. Kearschner v Americam Family Mutual Insurance Co., SI, 2022 WL 2709480 (Ind. Ct. App. July 13, 2022). The court agreed that the wording of the UIM policy provision clearly provided that any worker’s indemnity payment would reduce the plaintiff’s UIM limit of liability, but found that the application of that provision violated the UIM statute. The court emphasized that the UIM policy’s provision, which attempts to reduce the plaintiff’s UIM policy cap to zero, based on the payment of workers’ compensation benefits, provides less coverage than the UIM statute requires and inconsistent with the view that the UIM Statute constitutes a full recovery , remedial law. Consequently, the court concluded that “this specific policy provision is unlawful and unenforceable” and “subject to his damages (the plaintiff) is entitled to the difference between his UIM policy limit of $100,000 and the $50,000, which he received from the infringer’s insurance.”

The Complainant/Defendant filed a request for transfer on August 26. The case has been fully reported to the Indiana Supreme Court and is pending.

Many thanks to the members of the DTCI amicus committee, the authors of the short messages and the board

DTCI and its Amicus Committee appreciate and thank attorneys and their law firms/corporations who devote their time and talent to drafting proposals for amicus participation and writing amicus briefs on behalf of DTCI. I sincerely thank the members of the DTCI Amicus Committee who invested the time and expertise to ensure that the voice of the Indiana defense attorney is heard in the Indiana Courts of Appeals: Jenny Buchheit, Ice Miller; Phil Kalamaros, Attorney/Mediator/Consultant; Keith Mundrick, Amundsen Davis LLC; Bob Palmer, May Oberfell Lorber; Peter Pogue, Schultz & Pogue LLP; Crystal Rowe, Kightlinger & Gray; and Cathleen Shrader, Barrett McNagny LLP.

If you would like to request DTCI to participate as an amicus in your opposition, please do not hesitate to send the request to as early as possible in the opposition proceedings [email protected] or 317-399-2815. The DTCI Amicus Committee and Board of Directors welcome and endeavor to carefully consider each request.•


Lucy Dollens, a commercial litigator and appellate expert, is a partner in Quarles & Brady’s Indianapolis office, chair of the DTCI Amicus Committee and a member of the DTCI Board of Directors. The opinions expressed are those of the author.