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Proof of a Negative Not Required for Summary Judgment
Opinions |
2012/02/28 10:03
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The Indiana Court of Appeals has issued a decision that may have a large impact on summary judgment practice in Indiana. In Commr. of the Indiana Dept. of Ins. v. Black, ___ N.E.2d ___ (Ind. Ct. App. 2012), the Court essentially held that Indiana will apply the standard set forth in Celotex v. Catrett, 477 U.S. 317 (1986), at least in some circumstances.
Tim Black alleged that Dr. Harris and others rendered negligent care to his wife after she complained of chest pain. The negligence allegedly resulted in severe cardiac arrest and resulted in the need for a heart transplant. The medical review panel unanimously concluded that Dr. Harris failed to comply with the applicable standard of care.
After the panel decision, Black filed a petition seeking payment of $1 million from the Patient's Compensation Fund and asserted that he had settled with Dr. Harris for $250,000, thereby satisfying the qualifying amount to get to the fund. The Commissioner sought discovery of the settlement agreement but Black refused to produce it, saying it was confidential. Black did produce a copy of an unauthenticated check in the amount $250,000 from the Medical Assurance Co., made payable to Black and his counsel. Black also produced some correspondence between counsel that discussed a prospective settlement.
The Commissioner moved to dismiss the petition claiming that he needed the settlement agreement in order to make payment. It was not clear from the check whether the payment was for settlement with Dr. Harris or other defendants. The trial court denied the motion to dismiss and after conducting a hearing on damages, ordered the Commissioner to pay Black $1 million. The Commissioner appealed.
In considering the motion to dismiss, the Court of Appeals observed that matters outside the pleadings were submitted in support of the motion to dismiss and were relied on by the trial court. In light of this fact, the Court of Appeals, pursuant to T.R. 12(B), treated the motion as one for summary judgment. In a footnote, the court recognized that T.R. 12(B) requires that all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56. Although no such opportunity was given, the court found there was no prejudice and proceeded to consider the appeal as a summary judgment case.
The court noted that the Commissioner's position on the motion required him to prove a negative?-that there was no settlement with Harris for $250,000. In Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind. 1994), the Indiana Supreme Court rejected the view that a party seeking summary judgment could simply point to the opponent’s burden of proof at trial and prevail unless the non-movant produced evidence supporting its claim or defense. This ruling has for many years been perceived as being at odds with Celotex, in which the U.S. Supreme Court reached a different conclusion under the federal rules. In 2000, Justice Boehm, in dissenting from a denial of transfer in Lenhart Tool amp; Die, Inc. v. Lumpe, 722 N.E.2d 824 (Ind. 2000), expressed the view that a party who puts forward evidence that a non-movant will be unable to present evidence to prove an essential element of its claim or defense, should be entitled to summary judgment if the non-movant fails to present such evidence. In Black, the Court of Appeals held: Today, we accept Justice Boehm's views on this subject expressed in his dissent.
Having adopted this new standard, however, the Court of Appeals found that in this case, based on the unauthenticated check and the settlement correspondence, there was a genuine issue of fact as to whether a $250,000 settlement on Black’s claim against Harris had been accomplished. So, the Commissioner was not entitled to summary judgment. Black was also not entitled to a judgment on his claim since it was not clear that the required settlement with Harris for $250,000 had been consummated.
The Court held that the Commissioner is entitled to discovery of the settlement agreement and that the confidentiality term in the settlement agreement would not trump the Commissioner's right to such discovery. The case was reversed and remanded for further proceedings. |
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Law Firms Keep Squeezing Associates
Opinions |
2012/01/29 13:04
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Law firms are finally starting to recover from the recession, but they aren't taking their young lawyers along for the ride.
Even as profits return, cautious partners with one eye on damaged balance sheets and the other on stingy clients plan to hang onto the lean silhouettes they acquired during the downturn.
That means little relief for young associates—who took on hefty law-school loans, only to run into layoffs and stagnant pay in the years since 2008—and fewer chances for new law-school graduates to get in on the ground floor. And the elusive brass ring of partnership has grown more remote.
What happens if Greece falls apart again? says Greg Nitzkowski, managing partner at Paul Hastings LLP, an international firm that has reduced entry-level hires by about a third since 2008. We just think it's prudent to plan as if this coming year is going to be a relatively flat year.…We're not planning for a big upsurge in demand.
Conditions at law firms have stabilized since 2009, when the legal industry shed 41,900 positions, according to the Labor Department. Cuts were more moderate last year, with some 2,700 positions eliminated, and recruiters report more opportunities for experienced midlevel associates.
But many elite firms have shrunk their ranks of entry-level lawyers by as much as half from 2008, when market turmoil was at its peak. Salaries and bonuses for those associates have remained generally flat. Meanwhile, a degree at a top law school can cost $100,000 or more.
Associates at prominent law firms say some of their peers hired during the boom years are happy just to have jobs at all. The world has changed, says a senior associate at a top firm.
Read full article: http://online.wsj.com/article/SB10001424052970203363504577186913589594038.html |
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When is a Person an Employee of Another?
Opinions |
2011/07/19 09:40
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On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.
In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.
On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the most important factor weighing against.
Thus, over all, four of the seven factors, including the most important, Control over the Means Used, indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any unpaid wages from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.
The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being most important, whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.
Lesson:
1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.
Brad A. Catlin
Price Waicukauski amp; Riley, LLC
http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another |
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Court Shows It Is Serious About Appellate Procedure
Opinions |
2011/06/10 23:42
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On June 8, 2011, the Indiana Court of Appeals demonstrated it is serious about enforcing the Rules of Appellate Procedure in Garrard v. Teibel, Cause No. 45A04-1003-PL-229, a memorandum decision, uncitable as authority under App. R. 65(D). In this case, a pro se appellant failed to include any statement of the case after 2007 (although summary judgment proceedings occurred in 2009) and failed to include any of the designated evidence from the summary judgment proceedings in his appendix. The Court found that the pro se appellant had waived all arguments on appeal and affirmed the trial court's order.
Lessons:
1.Although the Court cuts people a lot of slack in the form and content of their brief, its generosity has bounds.
Brad A. Catlin
Price Waicukauski amp; Riley, LLC |
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Is the iPhone Ready for Law Firms?
Opinions |
2009/10/02 16:14
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pIt used to be that the only thing lawyers tried to recruit was new clients. But these days, seemingly every firm has a group of attorneys pushing to bring aboard something else entirely: iPhones. And they want them badly./ppI have probably 15 people who continue to e-mail me about it, says the IT director at an Am Law 100 firm who asked not to be identified. This one attorney, he goes out and finds someone who says he can solve any iPhone problem for $175, he says. These attorneys, they want this thing so much, they are off trying to solve my problems. God bless them, but they don't know what they're doing. /ppThe issue isn't technical. It's relatively simple to hook an iPhone into a corporate network, since it can use the same Microsoft Exchange Server that most firms already use for their BlackBerrys. Instead, IT directors' reluctance boils down to this: The BlackBerry was designed from the ground up to do one thing: transmit e-mail securely. Other features have been tacked onto newer models, but robust, secure, immediate e-mail was -- and is -- at the BlackBerry's core. The iPhone, on the other hand, is more of a consumer device with e-mail tacked on. Law firms shied away from the iPhone because it couldn't match the BlackBerry on security. And security -- well, that's at the core of a law firm IT director's job. The original iPhone and the later 3G model had no local encryption, which meant that everything on the device was stored in clear text, says the IT director. The simple passcodes many users had -- if they used any passcode at all -- could be hacked, and then everything would be viewable. We told our attorneys this was a deal-breaker.
But with the release of the latest iPhone, the a href=http://www.apple.com/iphone/ target=new3GS/a, along with the new iPhone 3.0 operating system, the platform is looking more business-friendly. Forget about the consumer-oriented enhancements (like the upgraded camera on the 3GS, capable of shooting video). The real story, at least for law firms, is the vast array of enterprise-focused improvements. The 3GS phone now has local encryption along with more memory (up to 32 gigabytes) and a faster processor. And with the 3.0 OS, law firms running Exchange can require the use of strong passwords (the complicated ones, with numbers and letters, that no one except IT administrators want to take the time to create and use) and remotely wipe devices that have been lost or stolen. Users get a long-awaited, cut-copy-paste feature (a glaring omission on the iPhone until now), a landscape keyboard option for easier typing, and the ability to search the from, to, and subject headers (but not, alas, the body) on their e-mail, as well as their iPhone contact list, calendar and notes.
/p |
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Six-figure Cabinet jobs sometimes mean a pay cut
Opinions |
2009/01/27 15:15
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| Jobs in President Barack Obama's Cabinet come with a pay cut for some of his appointees, who made millions from investments and lucrative careers in law, lobbying and business before joining his administration, according to financial reports the government released Tuesday.pAt least one must sell stock to avoid potential conflicts of interest./ppObama's choice for deputy defense secretary, William J. Lynn, until recently a lobbyist for military contractor Raytheon, holds Raytheon incentive stock valued at $500,001 to $1 million, the documents show. The stock is due to vest next month. He has Raytheon unvested restricted stock worth $250,001 to $500,000./ppLynn has said he will sell the stock. He received a salary of $369,615 last year as a Raytheon senior vice president, and is expecting a 2008 cash bonus of $100,001 to $250,000 to be paid this March, his report shows. Obama has given Lynn a waiver from ethics rules banning employees from taking part in decisions related to their former employers for two years and prohibiting them from taking jobs in agencies they recently lobbied. If he is confirmed as expected, Lynn will be subject to ethics reviews for one year./ppGovernment ethics rules require senior administration officials to provide details annually on their personal finances. The reports include descriptions of assets, income and debt — typically given in ranges rather than exact amounts — and lists of gifts and any outside positions. The disclosures are intended to shine a light on and help avoid any potential conflicts of interest./ppThe report for Obama's nominee to become attorney general, Eric Holder, shows he received $3.3 million, including deferred compensation, as a partner at the law firm Covington amp; Burling, far more than the $196,700 he would make as a member of Obama's Cabinet. He anticipates receiving a $1 million to $5 million partner separation payment when he leaves the firm./p |
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