by admin | Oct 8, 2020 | Construction Injury Claim, Insurance Disputes, Legal Matters Discussed, Personal Injury, Safety, Slip / Fall Injury, Worker's Comp
Indiana enacted its first Worker’s Compensation Act in 1915 in response to a growing number of workers injured on the job who had no guaranteed means of receiving medical treatment for injuries or wage replacement income during their physical recovery. Prior to enacting its first Worker’s Compensation Act, when an Indiana worker was injured, the worker was permitted to sue their employer in court in an effort to get compensation. However, lawsuits were time consuming, expensive, and frequently left the injured worker in a position where they were unable to obtain medical attention while their lawsuit was working its way through court because time was lost to address arguments from employers that the worker caused the accident or assumed the risk of the accident. The Workers Compensation Act struck a compromise between the competing interests of the worker and the employer and moved to a no-fault based system. In short, and in general, employers were stripped of the ability to claim the worker caused the accident. In exchange for this concession, injured workers were deprived from collecting pain and suffering or loss of enjoyment of life damages.
In today’s Indiana Worker’s Compensation system, this means when a worker is injured “on the clock” when they slip and fall, or are injured in a car accident, or are injured in a construction accident, the worker’s employer is not permitted to claim the worker should have paid more attention to what they were doing when the event occurred. However, some important employer-based fault arguments are still available to employers. For example, pursuant to I.C. 22-3-2-8, employers may raise affirmative defenses that no money is owed because the injury was 1) due to the employee’s knowingly self-inflicted injury, 2) due to intoxication, 3) due to the commission of an offense (not including traffic violations), 4) due to a knowing failure to use a safety appliance, 5) due to a knowing failure to obey a reasonable written or printed safety rule which has been posted in a conspicuous position in the place of work, or 6) due to a knowing failure to perform any statutory duty.
Disagreements often occur when an employer raises one of these defenses, and if left unresolved, a judge is asked to determine whether the employer’s defense is valid at a hearing. Like many areas in law, an exploration into the facts of an individual matter is usually necessary to assess the validity of these types of defenses. For example, just because a worker is intoxicated or impaired at the moment the worker is injured, it does not necessarily mean the employer does not owe compensation. Indeed, there is a difference between a drunk worker being injured when the worker drives a delivery truck off the road compared to a drunk worker performing his work satisfactorily when a co-worker accidentally drops an item from above that strikes and injures the worker.
Similarly, not every failure to use a safety appliance or knowing failure to obey a posted and written safety rule bars a recovery. When an employer allows the alleged prohibited conduct to occur or also engages in the prohibited conduct, the employer will not be able to shield itself from responsibility. As an illustration in an industrial or machine setting, if an employer posts an open and obvious sign that machinery must be shut down before it is cleaned, but observes employees cleaning the machine while it is not shut down, the employer will not be allowed to rely on a fault-type defense.
If you need help navigating a matter involving an injury at work where questions exist as to whether the employer may raise an argument that the worker is at fault for the accident, Goodin Abernathy, LLP can bring experience, knowledge, and resources to bear on the question. Contact us today for a free consultation.
by Karl Popowics | Apr 21, 2020 | COVID-19, Current Events, Free Consultations, Insurance Disputes, Legal Matters Discussed, News & Announcements
The economic impact on small businesses due to COVID-19 is undeniable. Further, the uncertainty surrounding the length of the shut-down and the availability of funds for relief loans has left many business owners wondering whether the business interruption coverage in their commercial general liability policy will provide coverage to offset financial losses incurred. Politicians in Washington have asked insurers to justify the refusal to pay out claims, and already class action lawsuits are being filed around the country against insurance companies.
When assessing whether business interruption coverage in a commercial general liability insurance policy applies to economic losses caused by COVID-19, the answer is—it depends on the particular policy. Generally speaking, however, most business interruption clauses require the loss of business income to be caused by direct physical loss or damage to the property that prevents the business from operating. Although it appears the COVID-19 virus can survive on surfaces for up to five (5) days, it is doubtful that this phenomenon would qualify as direct physical loss or damage to the property or be of sufficient duration to trigger most insurance clauses. In addition, many commercial general liability insurance policies exclude coverage for losses caused by viral contamination.
On the contrary, it is possible that the specific wording and coverages in any particular policy may provide coverage. For example, businesses operating in the food service industry or the hospitality industry may have specific clauses in their respective insurance policies that relate to losses caused by viruses or alternative business interruption losses like event cancellations. Consequently, all business owners who have sustained financial losses due to COVID-19 are encouraged to examine their insurance contracts.
If you need legal assistance in these matters, please contact us for a free initial legal consultation.
by admin | Jul 29, 2015 | Current Events, Insurance Disputes, Legal Matters Discussed, Real Estate Law, Safety
As reported by the Indianapolis Star, the Indiana State Police have discovered 119 methamphetamine labs in Delaware County in the first 6 months of 2015. The next highest was Noble County with 35. While methamphetamine is an illegal substance that has wrecked many lives in Indiana, methamphetamine is also a large problem for realtors, landlords, and buyers and sellers of real estate due to the contamination that occurs in the houses and buildings where the meth is cooked.
Most Sellers of a 1-4 unit residential property are required to fill out a Seller’s Residential Real Estate Sales Disclosure Form per Indiana Code Section 24-4.6-2, et seq. On page 2 under “Hazardous Conditions” the following question appears: “Have there been or are there any hazardous conditions on the property…such as…toxic materials…?” The Seller has the option to indicate “Yes,” “No,” or “Do Not Know.” Methamphetamine contamination would be considered a toxic material. With methamphetamine production, clean-up generally will involve, at a minimum, the removal of all surfaces that came in contact with the contaminants and removal of drywall down to the studs. If a Seller fails to clean-up the condition or sells the property without disclosing the methamphetamine contamination, they could be liable to a Buyer for the failure to disclose.
If a house has been contaminated, there are also insurance issues that will need to be determined. Does a landlord still have insurance coverage when a property is contaminated by a tenant? Is there coverage for lost rent while the house is being cleaned up? What about coverage if the health department or police order the house to be closed up until their investigations are completed? As with all insurance questions, individual policies must be read entirely to determine whether there may be coverage for the landlord in these situations.
If you have concerns surrounding property you own that may have had an undisclosed methamphetamine lab in it or have questions surrounding your insurance coverage, contact the real estate attorneys at Goodin Abernathy, LLP to discuss your case.
by Christopher Clark | Feb 11, 2015 | Insurance Bad Faith, Insurance Disputes, Legal Matters Discussed, Personal Injury
A recent Indianapolis Monthly Magazine article by Megan Fernandez tells the story of Kristine Bunch, a Greensburg mother who spent sixteen years in the Indiana Women’s Prison for a crime she did not commit.
In 1996 a Decatur County Jury convicted Kristine of murder and arson for a fire that destroyed Kristine’s home and killed her three-year-old son, Tony.
In 2012, after a long and hard-fought legal battle, Kristine’s conviction was overturned, and she was set free. Kristine has always maintained her innocence, and it was ultimately determined that the science used by fire investigators to convict her was flawed. This same flawed science is still being used by insurance companies to deny claims that are made by their insureds after a fire.
In the Bunch case, fire investigators wrongfully concluded that the fire was started and spread with the use of accelerants. An accelerant can be any flammable liquid spread around and then set on fire. An ATF report entered by the prosecution of Bunch suggested “heavy petroleum distillate,” the most common of which is kerosene. However, as Bunch’s legal team would later discover, years after her conviction, the ATF report was flawed. The investigator made assumptions about certain gas chromatography tests that were taken using carpet and other samples from Bunch’s home, specifically that they contained evidence of accelerant. Kristine’s conviction came four years after the National Fire Protection Agency promulgated its manual known as NFPA 921; yet the State Fire Marshall who testified against Kristine conceded he had never even read it.
One of the many lessons we can take from the Bunch case is that fire investigations can be very complex. After any fire, if there is insurance involved, the insurance company is going to hire a fire investigator to attempt to determine the cause and origin of that fire. In the event the insurance company suspects that the fire was intentionally set, their next step will be to engage an attorney to subject their policyholder to an Examination Under Oath, or (“EUO”). An EUO is basically a deposition that everyone agrees to submit to when they buy an insurance policy. If you don’t submit to the EUO, the insurance company will deny your claim. The job of the insurance company lawyers is to determine if there was a motive to intentionally set a fire. They are going to ask for your tax returns, credit card and bank statements, and many other personal documents. If you refuse to cooperate, they will deny your claim. This is not a process that anyone should submit to without an experienced lawyer in their corner.
Featured image is a copy of an altered ATF lab report analyzing samples from the fire scene became one of the keys to Kristine’s exoneration. (Photo courtesy Kristine Bunch)
If you or someone you know has suffered the agony of losing a loved one or property to a fire, and the insurance company is refusing to pay the claim, you need to hire an experienced fire attorney immediately. An insurance company that refused to pay for damages caused by a fire, without reasonable cause, can be subject to punitive damages. If you have questions about the way your insurance company is handling your fire claim, please contact us for a free consultation.
