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Counsel That You Can Trust & Depend On


Guy DiMartino Oct. 31, 2014

Northwest Indiana personal injury lawyer discusses a recent lawsuit that was filed challenging the Indiana Tort Claim Act damage caps.

The Claims Journal recently published a report that a local attorney, Ken Allen, has filed a case in federal court in Indianapolis attempting to challenge the caps on damages for claims against the state for personal injury or death. In order to understand what is going on, it is important to understand the roots of Sovereign Immunity.

The common law followed by all states except Louisiana has its roots in England's common law. Under the common law system a person who was injured or killed by the negligence of a state actor, state agency or municipality was not able to seek compensation for the injuries because the state was immune from suit. Over the years, Indiana as well as other states legislatures felt tort immunity was unfair and they wrote a statutory law called the Indiana Tort Claim Act. Click here to read our prior comments about the Indiana Fair stage collapse claims.

So the Indiana Tort Claim Act says that we will allow certain claims against a state actor, the state, public employee, state agency or municipality, if the injured person or personal representative of an estate gives the state or agency proper notice within a certain amount of time. The law also says that there will be a cap on all damages relating to claims filed against the state or municipality. Specifically, IC-34-13-3-4 reads:

(a) The combined aggregate liability of all governmental entities and of all public employees, acting within the scope of their employment and not excluded from liability under section 3 of this chapter, does not exceed: (1) for injury to or death of one (1) person in any one (1) occurrence: (A) three hundred thousand dollars ($300,000) for a cause of action that accrues before January 1, 2006; (B) five hundred thousand dollars ($500,000) for a cause of action that accrues on or after January 1, 2006, and before January 1, 2008; or (C) seven hundred thousand dollars ($700,000) for a cause of action that accrues on or after January 1, 2008; and (2) for injury to or death of all persons in that occurrence, five million dollars ($5,000,000). (b) A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages.

The lawsuit is attempting to challenge the $5,000,000 aggregate caps on claims because it allegedly violates the federal and state constitutions. In Indiana, statutory caps on damages have been routinely upheld. For instance, the medical malpractice cap on damages has been challenged and upheld throughout the years. We do not see that this is any different than the caps on medical malpractice damages but we wish Mr. Allen and all the injury victims luck in trying to change Indiana law.

If you have any questions about a Northwest Indiana personal injury case, call our Michigan City personal injury lawyers at (219) 874-4878 or fill out the Internet consultation form on the right.