Jennifer Nelson for www.theindianalawyer.com

A negligence case involving a Terre Haute HVAC business and a man injured while helping move a furnace will move forward now that the Indiana Court of Appeals has reversed summary judgment in favor of the company.

Timothy Miller, the owner and sole employee of Air Sorce-1, delivered a new furnace to Kelly Brannen’s home. Nick Hunckler lived with Brannen at the time and was home when the furnace arrived. Miller asked Hunckler to help him move the furnace to the basement, and he agreed. Huckler was at the top of the stairs and when he attempted to get a better grip on the furnace, sliced his hands on metal edges. His injuries required several surgeries and left him with continued impaired use of his left hand.

Hunckler sued Miller and Air Sorce-1 for negligence, and the trial court granted the defendants’ motion for summary judgment. It determined that Hunckler was a volunteer and applied the volunteer duty of care as stated in Thompson v. Owen, 141 Ind. App. 190, 218 N.E.2d 351 (Ind. Ct. App. 1966).

In Nick Hunckler v. Air Sorce-1, Inc., Timothy Miller and Kelly A. Brannen, 84A01-1405-CT-217, Hunckler argued that Thompson does not apply to him because the case at bar is not a premises liability case, as was Thompson. That case involved a man injured while helping a neighbor start her father’s lawnmower on her property. Judges John Baker and James Kirsch – the majority in this case – questioned whether even Thompson is binding precedent as it was decided by a split panel of the COA at a time when the panel was made up of four judges. But, they decided to adopt an approach used by Michigan that abandoned the volunteer doctrine and returned this area of the law to traditional agency and tort principles.

“We will continue to rely on traditional tort and agency principles and, to the extent it was ever applied, abandon the volunteer doctrine. Therefore, it follows that ordinary negligence principles apply in the instant case. We find that there are genuine issues of material fact as to duty, causation, breach, and damages,” Baker wrote.

Judge Margret Robb agreed with her colleagues that summary judgment should be reversed, but wrote separately to address that the appeals court didn’t even need to discuss Thompson nor abandon the volunteer doctrine it espoused. It may not be binding precedent and the situation decided by Thompson is not the same situation as in Hunckler’s case.

AG Zoeller, Sec. Lawson: S&P misled investors; State to receive $21.5M

INDIANAPOLIS – Indiana Attorney General Greg Zoeller and Secretary of State Connie Lawson announced today that Indiana, the U.S. Department of Justice, 18 other states and the District of Columbia reached a settlement agreement with Standard & Poor’s Financial Services LLC (S&P) resolving allegations that S&P misled investors when it rated structured finance securities in the lead-up to the 2008 financial crisis.

The settlement requires S&P to pay $1.375 billion, which will be split among the states and the Department of Justice. Indiana will receive $21.5 million in the settlement, a majority of which will go toward the state General Fund.

The state and federal complaints against S&P alleged that – despite S&P’s repeated statements emphasizing its independence and objectivity – the credit rating agency allowed its analysis to be influenced and shaped by its desire to earn lucrative fees from its investment bank clients. Moreover, the lawsuits alleged S&P knowingly inflated the credit ratings of toxic assets packaged and sold by the Wall Street investment banks. The alleged misconduct which misled investors began as early as 2001 and became particularly egregious between 2004 and 2007.

Structured finance securities backed by subprime mortgages were at the center of the 2008 financial crisis. These financial products, including residential mortgage-backed securities (RMBS) and collateralized debt obligations (CDOs), derive their value from the monthly payments consumers make on their mortgages. Instruments backed by subprime mortgages – where borrowers by definition are more likely to default – are riskier investments, which S&P’s rating analysis downplayed, leading investors to investment decisions based on faulty assumptions.

“As alleged in our lawsuit, Standard & Poor’s misled investors who believed they were getting objective analysis, which contributed to the worst financial crisis we’ve experienced in decades,” Zoeller said. “This company’s misleading of the investing public created hardship for many, and today’s settlement sends a message that these deceptive practices will not be tolerated.”

In June of 2013, the Indiana Attorney General’s Office filed a lawsuit against S&P on behalf of Secretary of State Connie Lawson’s office, which oversees the securities industry in Indiana. Indiana’s complaint alleged that S&P violated the Indiana Uniform Securities Act by misrepresenting the objectivity and independence of its rating process with respect to certain structured finance securities. The complaint did not challenge S&P’s ratings of Indiana’s state and municipal securities.

“I’m pleased that S&P was held accountable for its actions through the enforcement of Indiana’s securities law,” Secretary Lawson said. “Investors deserve accurate and objective ratings when investing and many Hoosiers look to S&P as a trusted and reliable source. We cannot have companies defrauding the marketplace.”

In addition to the financial settlement, S&P has agreed to a statement of facts acknowledging conduct related to its analysis of structured finance securities. S&P also agrees in the settlement to comply with all applicable state laws, and for five years it will cooperate with any request for information from any state expressing concern over a possible violation of state law. Further, the states retain authority to enforce their laws – the same laws used to bring these cases – if S&P engages in similar conduct in the future. The states and federal government have agreed to file stipulated judgments, consent judgments or similar pleadings in their lawsuits in order to implement the terms of the settlement agreement and resolve their respective court proceedings.

Zoeller thanked Indiana’s state and federal partners for the cooperation and coordination that led to today’s settlement announcement.

The other states that are participating in today’s settlement include:  Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Idaho, Illinois, Iowa, Maine, Mississippi, Missouri, New Jersey, North Carolina, Pennsylvania, South Carolina, Tennessee and Washington as well as the District of Columbia.

Indianapolis – Based on media inquiries received today, Governor Mike Pence issued the following statement regarding vaccinations.

“Indiana law requires all children be protected from vaccine-preventable diseases like the measles by getting vaccinated. Vaccines protect all our children from illnesses, and our administration strongly urges Hoosier families to have their children vaccinated.”

Report Will Allow State to Better Align Resources to Improve Outcomes

Indianapolis – Today, the State of Indiana released a report detailing the findings of an advanced analytics study on the root causes of infant mortality in Indiana. This study, which began in 2013 as a priority project for the Governor’s Management and Performance Hub (MPH) initiative, is the result of a collaboration between the Indiana Office of Technology (IOT), Indiana State Department of Health (ISDH) and KSM Consulting (KSMC). Several agencies also contributed to the research-gathering phase, including the Family and Social Services Administration, Department of Child Services, Department of Revenue, Department of Local Government Finance, Department of Corrections, and Department of Workforce Development.

“As I’ve said before, I am an advocate for strong and healthy families, and I believe that with this insight into infant mortality we have the potential to save lives,” said Governor Pence. “In my recommended budget, I asked the General Assembly for $13.5 million to reduce infant mortality, and this study will allow us to take a practical, data-driven approach to spending those resources at the Indiana State Department of Health in a manner that will improve outcomes.”

Based on the results of this study, MPH has created a tool that will continue research regarding infant mortality risk factors and gauge where and how resources are needed to support positive birth outcomes across the state.

The chief risk factors identified by the study are:

• Inadequate prenatal care: Of all factors studied, access to prenatal care was the most important predictor of adverse outcomes. The study showed that the highest risk of infant deaths is to mothers with less than 10 prenatal visits.
• Medicaid enrollment: Significant disparities exist in infants born to mothers enrolled in Medicaid, with increased risk for having low birth weight infants.
• Young maternal age:15- to 20-year old mothers with fewer than 10 prenatal visits were at the highest level of risk for adverse health outcomes. These mothers are most at risk due to a combination of the above, including more likely to have less prenatal care and be enrolled in Medicaid. These are complex risks and this is just the beginning of a comprehensive and collaborative plan to make a true impact on this important issue facing our state.

While identified high-risk subpopulations account for only 1.6 percent of all births in Indiana, they account for nearly 50 percent of infant deaths.

The findings of the report are already changing the way the State of Indiana tackles infant mortality. On January 14, 2015, First Lady Karen Pence and ISDH announced the launch of a new infant mortality public awareness campaign called Labor of Love – Helping Indiana Reduce Infant Death. This campaign, which took advantage of the findings of the report, encourages women who are pregnant or planning to become pregnant to learn more about early and regular prenatal care and other ways to help ensure a healthy pregnancy and first year of life for infants.

“We were able to use preliminary results from the study to help shape the Labor of Love campaign messaging and placement,” said State Health Commissioner Jerome Adams, M.D., M.P.H. “For example, because the study identified prenatal care as the top indicator for infant mortality, the importance of prenatal care was the exclusive focus of our television and radio efforts, in addition to being included in online and transit placement.”

More information about the Labor of Love campaign can be found at www.laboroflove.in.gov or by calling 2-1-1. The full infant mortality report can be found attached to this release.