Governor Mike Pence Spokesman Matt Lloyd today issued the following statement regarding assertions that today’s Senate vote would repeal HIP 2.0.

“Governor Pence continues to support the repeal of Obamacare because it is a deeply flawed law due to the excessive mandates and taxes it places on the backs of hard-working Hoosier families.  Any assertion that today’s Senate vote will repeal HIP 2.0 is simply not true and is a shameful scare tactic being used for political gain that only serves to needlessly scare Hoosiers about losing their health care. Obamacare did not create the Healthy Indiana Plan.  Indiana’s solution predates Obamacare and is homegrown, bipartisan and unprecedented in the way that it reforms the traditional Medicaid program and provides consumer directed health care for beneficiaries.

“Furthermore, Governor Pence’s decision to expand HIP was predicated on ensuring the fiscal solvency of the program. Unlike other states, under the leadership of Governor Pence, Indiana planned for changes in federal funding. The state ensured there would be no new taxes for Hoosiers, and that the trust fund was adequately funded to cover operational expenses so the state would have time to prepare should there be any changes in financing.

“Finally, the bill being considered by Congress allows for a two-year grace period to allow time for a new president the chance to seek new market-based reforms like Indiana’s Healthy Indiana Plan and consider policies like Medicaid block grants that provide states with more flexibility.”

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.

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.

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.