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Statute of Limitations
The statute of limitations for personal injury is two years. IC 34-11-2-4.
Indiana courts have adopted a two-part test to determine if the doctrine of equitable estoppel should defeat a statute of limitations defense. The first part is to determine whether the insurer has engaged in any of the following: (1) a promise to settle; (2) discouraging a claimant from filing suit; (3) discouraging a claimant from obtaining counsel; or (4) engaged in other egregious conduct. Davis v. Shelter Ins. Cos., 957 N.E.2d 995, 1001 (Ind.App. 2011). If the court finds that the first part of the test is satisfied, the court examines the totality of the circumstances to determine if the insurer’s conduct was sufficient to induce the claimant to delay timely action. Id.
Economic Loss Doctrine
The economic loss doctrine in Indiana historically prohibited a party from asserting tort claims in product liability actions. In 2005, the Indiana Supreme Court extended the economic loss doctrine to construction claims. Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind. 2005). As such, an owner claiming defective construction is limited to contractual damages and cannot assert a claim for negligent construction. Courts in Indiana have, however, carved out certain exceptions to the economic loss doctrine, for example, where a separately acquired product or service causes damage to a larger product or structure into which the former has been incorporated. Id. at 156. Thus, whether the economic loss doctrine applies in a particular case involves a fact-sensitive inquiry.
Comparative Fault
Indiana operates under a modified comparative fault scheme. Any fault attributed to the plaintiff operates to proportionately diminish the plaintiff’s recoverable damages. IC 34-51-2-5. If a jury finds, however, that the fault of the plaintiff exceeds the combined fault of the defendants, the plaintiff is barred from recovering any proven damages. IC 34-51-2-6. As an example, a plaintiff who is apportioned 51% fault for the injury claimed recovers zero damages, not 49% of their proven damages.
The jury may also apportion fault to nonparties in Indiana. IC 34-51-2-7. A defendant seeking to assert as a defense the fault of a nonparty, however, has the burden of proof.
In the construction context, where a plaintiff seeks to recover from two defendants based upon the relationship of the defendants (e.g., general contractor/subcontractor), the defendants are treated as a single party for purposes of fault apportionment. IC 34-51-2-4.
Joint and Several Liability
Indiana’s comparative fault act, IC 34-51-2-1, et.seq., abrogated the common law doctrine of joint and several liability. In addition, the definition of “fault” includes:
[A]ny act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages. IC 34- 6-2-45(b).
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