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Reversal: Care facility must pay legal fees after $1M negligence verdict

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Dave Stafford for www.theindianalawyeerr.com

An assisted-living facility where a resident died after being badly burned must pay the estate’s attorney fees, the Indiana Court of Appeals ruled Wednesday in reversing a trial court.

A Marion Superior jury awarded the estate of Charles Sindledecker just over $1 million in damages after finding the Greentree at Fort Harrison facility where he lived primarily at fault.

Sindledecker was a dementia patient who suffered serious burns in a fireplace that were not initially treated after staff found him unresponsive on the floor near the fireplace. According to the record, he later was hospitalized for 10 days for burn treatment before undergoing a skin graft. He never regained mobility and afterward could no longer feed himself. He died about a year and a half later.

The trial court denied the estate’s motion for attorney fees and its motion to correct error, resulting in this appeal. Sindledecker’s residence agreement with Greentree contained a clause that read, “In the event of any controversy, claim, or dispute between the parties hereto, arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, costs and attorney’s fees.”

The trial court held that because the estate had dismissed a breach of contract claim, the agreement was not at issue. But Judge John Baker wrote for the panel, “(T)he plain language of the residence agreement compels an award of attorney fees in this case.

“The judgment of the trial court is reversed and remanded so that the trial court may calculate reasonable attorney fees and award those fees to Sindledeckler’s estate,” Baker wrote in Carole Storch, as Personal Representative for the Estate of Charles Sindledecker v. Provision Living, LLC; PVL Tenant Holdings, LLC, d/b/a Greentree at Fort Harrison, 49A02-1505-CT-352.

Adopt A Pet

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This cute, spritely little guy is Russell! He lived in the same home for the last 7 years, but is now seeking a new home due to his person’s health problems. He’s a couch potato, with a history of doing well with kids, dogs and cats. November is Adopt A Senior Pet Month. While he may seem “old,” Russell still has plenty of energy for walks & playtime and many years of love to give. Adopting a well-mannered, housetrained senior is better than a messy, wild puppy anyway! Russell’s adoption fee is $100, which includes his neuter, microchip, vaccines, and more. Call (812) 426-2563 or visit www.vhslifesaver.org for adoption information!

 

Governor Mike Pence Directs Flags Be Flown at Half-staff Statewide

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In accordance with a presidential proclamation issued today, Governor Mike Pence is directing flags at state facilities statewide be flown at half-staff in honor of the victims of the tragedy in San Bernardino, California on December 2, 2015. Flags should be flown at half-staff effective immediately through Monday, December 7, 2015. Flags should return to full-staff at 12:00 a.m. between December 7 and December 8.

Governor Pence also asks businesses and residents to lower their flags to half-staff to honor of the victims of the tragedy in San Bernardino, California.

 

USI Women’s Tennis signs one for 2016-17

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University of Southern Indiana Women’s Tennis announced the signing of Lauren Hambrock (Terre Haute, Indiana) to a national letter of intent. She will be added to Head Coach Keely Porter<http://gousieagles.com/coaches.aspx?rc=449>’s  roster for the fall of 2016.

“I am thrilled to have Lauren Hambrock join us next fall,” said Porter. “I expect she will make an immediate impact on my team and the Great Lakes Valley Conference.”

Hambrock has excelled in both tennis and basketball garnering All-State honors in both at Terre Haute South Vigo High School. While receiving an All-State nod the past two seasons, Hambrock made an appearance in the 2014 IHSAA State Tennis Finals, then finished her junior year with a 21-2 record at number one singles to move her career record to 52-12. Hambrock, also, has been named All-Conference each of her three seasons at Terre Haute South.

“Lauren has an aggressive style of play with a calm, mature disposition on court,” Porter said. “Her winning traditions in both high school tennis and basketball, plus a tough Midwest Tennis tournament schedule, will prepare Lauren for college competition.  It will be exciting adding her talent to the fun, energetic atmosphere my team has created.”

On the amateur tour, Hambrock has won USTA events in four different states that resulted in a number six ranking in the state of Indiana. In the classroom, Hambrock was awarded the 2015 McMillan Award at Terre Haute South and is in the top five percent of her class.

The Eagles resume their 2015-16 schedule this spring.

COA affirms dismissal of will contest

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Jennifer Nelson for www.theindianalawyer.com

The Indiana Court of Appeals upheld the dismissal of a man’s will contest action involving his siblings, but for a different reason than the trial court.

Roger S. Blackman filed his will contest in the same court and under the same cause number as an original probate action involving his mother’s estate. His attorney did so under the advice of the trial court’s clerk. The will contest was served upon counsel for his sister Karen Gholson and brother James Blackman, but no summonses were issued for the siblings.

The trial court granted the siblings’ motion to dismiss, stating it lacked subject matter jurisdiction. The court also denied Roger Blackman’s motion to correct error or relief from judgment. He sought to file a new, separate will contest action under the Journey’s Account Statute.

Based on K.S. v. State, 849 N.E.2d 538 (Ind. 2006), the Court of Appeals concluded that the lower court incorrectly found it lacked subject matter jurisdiction in this case. Failure to follow statutory guidelines for initiating a particular action do not affect subject matter jurisdiction, so long as the action was filed in the proper court for such an action, Judge Michael Barnes wrote.

But in this case, defects existed in the will contest action – Roger Blackman did not tender summonses for his siblings, nor did he pay a filing fee. These actions are necessary to initiate a civil suit under Indiana Trial Rules. The appeals court rejected Blackman’s argument that he should be allowed to re-file because his attorney was following the advice of the trial court clerk in not filing it as a separate proceeding.

“He cites no authority for the proposition that an attorney should be able to rely upon advice from a non-attorney as to legal matters. We decline to create such authority,” Barnes wrote.

The appeals court declined to allow him to re-file pursuant to the Journey’s Account Statute, citing, again, his failure to pay the filing fee and not serving process on his siblings.

The COA also declined to award James Blackman and Gholson appellate attorney fees because the judges did not think Roger Blackman’s appeal was frivolous or in bad faith.

The case is Roger S. Blackman v. Karen A. Gholson and James W. Blackman, 52A02-1412-ES-883.

7th annual “911 Gives Hope For The Holidays” Toy Drive.

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For this upcoming Holiday Season, the Townsquare Media Radio Stations (WKDQ, WJLT, WDKS, WGBF-FM, WGBF-AM) will team up with Henderson Chevrolet, Buick, GMC and the 911 Gives Hope charity to present the 7th annual “911 Gives Hope for the Holidays” toy drive. For the past 6 years we have successfully filled a 53 foot trailer with toys that were distributed to the Children’s Wards at local hospitals. This year all 5 radio stations will again partner together for a mass broadcast “radiothon” to urge the public to donate toys, clothing, gift certificates and more to the Children’s Wards at Deaconess Hospital, St Mary’s Hospital, Methodist Hospital, Evansville Psychiatric Children’s Center and The Ronald Mc Donald House.

The radiothon will begin at 5am on Friday, December 4th and will run thru 6pm on Sunday, December 6th. The radio stations will broadcast live from the Wal-Mart on Burkhardt the entire weekend with additional broadcasts, live from Henderson Chevrolet in Henderson Kentucky. Local Fire Departments, Police Departments, Sheriff’s Departments and AMR will be in attendance all weekend in an effort to fill another 53 foot trailer. Santa will also be on hand and available for pictures throughout the weekend.

The toys that are collected will be sorted and delivered to the local hospitals on Monday, December 21st, just in time for Christmas. For more information contact Angie Ross-Peters at 812-425-4226 ext. 308

UE Swimming And Diving Continues House of Champions

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Daniel O'Brien

Daniel O’Brien
UE swimming and diving continues House of Champions
Day Two Results

INDIANAPOLIS – Another full day of action took place as the Purple Aces swimming and diving teams completed the second day of action at the House of Champions in Indianapolis.

“Today was a great day. A lot of season best times and a few life time best times. At the start of the meet today we talked about being brave and what it meant to be brave and they were awesome,” UE head coach Rickey Perkins said.  “Daniel O’Brien had an excellent night getting second in the 100 fly and finishing high on the 100 back. Overall a very exciting night and I believe tomorrow will be even better.”

O’Brien came home in second place overall in the 100 fly.  His effort of 49.84 was second out of 24.  He was just 0.75 behind the winner.  In the 100 back stroke, O’Brien swam a 51.00 to take 5th place.

In the 200 medley relay, the guys finished in sixth place with Dan O’Brien, Troy Burger, Prescott Marcy and Matt Childress swimming a 1:33.78.  Burger was also stellar in the 100 breaststroke.  He came in 9thwith a 57.32.  Everett Plocek was just behind him in the event, taking 11th with his time of 58.50.

UE’s top relay finish of the day on the women’s side came in the 800 free relay as Madi Jones, Bridget Sheridan, Jessi Hildebrand and Maja Magnusson posted a 7:53.69 to finish in 5th.

The group of Michaela Kent, Amy Smith, Charlotte Lechner and Mackenzie Harris placed seventh in the 200 medley relay with a final of 1:48.51.  Lechner struck again in the 100 fly as her 58.44 was good for 10th place.  Madi Jones was just 0.2 seconds behind her in 11th.

Kent had a strong finish in the 100 back.  Her final of 57.92 put her in fifth place.  Magnusson was the top UE finisher in the 200 free.  She swam a 1:57.92 en route to a 14th-place effort.  Amy Smith came home in 12th place in the 100 breaststroke.  She swam a 1:08.29.

On the boards, it was Courtney Coverdale leading the way with a second-place finish in the 3-meter dive.  Her score was 251.35.  Miguel Marcano was the top finisher for the men in the 1-meter, placing tenth with a score of 207.25.

Overall, the ladies rank in fifth place out of ten squads while the men are sixth out of 9.

IS IT TRUE DECEMBER 4, 2015

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IS IT TRUE this week “Readers Poll”is: “Are you pleased with the way Governor Pence has conducted himself over the last four (4) years”?

IS IT TRUE we are hoping to have at least 2 million page views by the end of the year?

IS IT TRUE you can expect some redesign layout activity on our site spearheaded by our Webmaster? …we urge you to be patient with us over the next couple of days?

IS IT TRUE that starting next Monday IIT will posted twice a week? …you can expect to read IS IT TRUE on Monday and Thursday of each week?

IS IT TRUE we would like to share with you a new publication called FEDERAL FUMBLES-100 Ways The Government Dropped The Ball? …this publication was created by United States Senator James Lankford form Oklahoma? …you can Goggle it to read the entire publication? …heres a few TID BITS from this publication that we thought you would enjoy?

MORE MONEY, FEWER RESULTS

 No funds for failed state exchanges; repeal Obamacare Under Obamacare states were given the option to set up their own health insurance exchanges to buy and sell insurance or to allow the federal government to operate an exchange within the state. Fourteen states and the District of Columbia established their own exchanges. The Obama Administration, eager to support their efforts, shelled out $4 billion from taxpayers for planning, establishment, and innovator exchange grants—more than the federal government spent on the nationwide federally facilitated marketplace. Most taxpayers would reasonably expect that a higher investment would yield a higher return, but that was not the case. When the 14 states that established exchanges opened for business, seven were dysfunctional, disabled, or severely underperforming. 79 For example Oregon’s exchange failed to enroll a single person through its online platform, despite spending $304 million80 in taxpayer dollars. Oregon eventually gave up and turned its exchange over to the federal government. Maryland’s exchange failed almost as soon as it launched. Massachusetts, which already had a functioning state website for health insurance, received $184 million81 in federal funds for a boondoggle that flopped so spectacularly during its first open enrollment that its executive director “wept at a board meeting, where it was disclosed that 50,000 applications for health insurance are sitting in a pile, and have yet to be entered into a computer system.”82 Obamacare, “despite all the massive brainpower behind it, had some ‘glitches,’ in the same sense that the universe has some ‘atoms.’”83 So where did all of the money go? GAO reports, “[T]he specific amount spent on marketplacerelated projects was uncertain, as only a selected number of states reported to GAO that they tracked or estimated this information.”84 RECOVERY Unimpressed by this display of spending malfeasance and mismanagement, Congress declined to offer further funds for state exchanges. The entire system continues to drive up healthcare costs and healthcare complexities. It is time to stop wasting Americans’ money on a failed policy

 

RUSSIAN CIGARETTES

NIH’s stated mission is “to seek fundamental knowledge about the nature and behavior of living systems and the application of that knowledge to enhance health, lengthen life, and reduce illness and disability.”  Perhaps running counter to the mission, in April 2015 NIH announced a $48,500 grant to produce a book entitled, Cigarettes and Soviets: The Culture of Tobacco Use in Modern Russia. 54 While the title harkens images of a James Bond movie, the grant will go to pay a historian to write “the first solo-authored monograph in Russian or English to explore the history of tobacco use and government initiated cessation programs in Russia in the context of the country’s complex social, cultural, and political changes of the past 130 years.”

In order to compile the book, the author will “reconstruct the culture of tobacco using newspapers, journals, industry publications, etiquette manuals, propaganda posters, popular literature, films, cartoons, and advertising images.” The supposed hook into NIH and public health relevance is that “understanding Russia’s distinctive history may suggest different strategies for U.S. policy initiatives” and that it can “provide insights into the successes and failures of government-led tobacco control efforts.” While subjective, it is likely that most taxpayers would find the merits of the history of Russian smoking habits outside the scope of NIH’s mission and American national interests.

Recently NIH made major medical advances in Ebola research, gene therapy to treat hemophilia, blood tests for early detection of Alzheimer’s. Four men even regained muscle control from paralysis after spinal stimulation therapy.57 These advances truly make a difference and help families across the nation. Instead of funding the publication of niche history books, Congress should push NIH to continue to concentrate its resources on more transformative research to provide public health breakthroughs for the American people. Leave the study of Russian cigarettes to the Russians.

 TOY GUNS: REGULATORY

When asked to think of an industry that faces particularly duplicative and complex federal regulations, the financial or energy sectors come to mind first for most Americans. However, the federal government’s arm extends into every industry, including toy gun manufacturers and importers. It is important to ensure the safety of every child, but perhaps it can be done in a more efficient manner without sacrificing safety. GAO’s 2015 annual report to Congress on federal duplication and overlap describes multiple examples of duplicative regulations, but the toy gun industry example stands out in particular.

In order to distinguish toy guns from real firearms, NIST within DOC holds primary regulatory jurisdiction over toy guns and imitation firearms. This is a serious and important safety responsibility to protect the lives of millions of children. However, the 2015 GAO report found an interesting loophole in the regulatory structure of the toy gun industry, confirmed by the regulating agency itself: “NIST staff also noted that because there are few, if any, domestic manufacturers of toy and imitation firearms and because most are imported, NIST regulations on the markings for toy and imitation firearms are enforced almost entirely by Customs and Border Protection (CBP).” GAO also noted the possibility for inefficiency, stating “because the regulation of toy and imitation firearms falls outside the scope of NIST’s primary mission and functions and because NIST has no physical presence at ports of entry, NIST staff stated the regulation and oversight of toy and imitation firearm markings may better be administered by another federal agency.”

The difference between a toy gun and a real gun can result in fatal consequences. When it comes to children’s safety, the federal government must get this right.

The regulating authority of the toy gun industry should be transferred to the entity that actually has enforcement capability: CBP. Removing duplicative responsibilities will ensure regulations are implemented appropriately and keep toy costs low for parents.

Coverdale Wins As UE Finishes House of Champions

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Courtney Coverdale

Courtney Coverdale

Coverdale Wins As U E Finishes House of Champions

INDIANAPOLIS – Sophomore Courtney Coverdale took top honors in the 1-meter dive as the University of Evansville swimming and diving teams completed the House of Champions.

“It was a very exciting day, we had some excellent racing and fantastic diving,” head coach Rickey Perkins said.  “I am very proud of the way the team performed this week.  They are responding well to the training and hopefully we continue to improve throughout the remainder of the season.”

Coverdale’s score of 260.05 put her on top in the 1-meter event.  Her score was over 12 points better than the competition.   In women’s races, Maja Magnusson, Charlotte Lechner, Mackenzie Harris and Michaela Kent finished the 400 free relay in 3:35.73 to take 8th in the race.  Magnusson had a strong finish in the 1650 free.  She finished the event in 17:45.19 to take 6th.

In the 200 backstroke, Taylor Davidson had a strong race as her 2:06.91 placed her in 11th.  Kasey Rein was the top finisher in the 200 fly.  Her 2:13.72 put her in 12th.  In the 200 breaststroke, Amy Smith registered a 12th place finish of her own, swimming a 2:29.34.

The men picked up a 4th place finish in the 400 free relay.  Dan O’Brien, Ethan O’Rourke, Everett Plocek and Matt Childress posted a 3:06.61 to record the high finish.  On his own, O’Rourke had a great showing in the 200 backstroke as his 1:52.31 was good for 5th place.

Troy Burger came home seventh in the 200 breaststroke, recording a time of 2:07.35.  Jared Sutphin notched a 16:48.31 to take 11th in the 1650 free.

Evansville’s women finished the weekend in 5th out of 10 schools while the men remained in sixth place out of nine.