Jennifer Nelson for www.theindianalawyer.com

A Cincinnati girl who was injured when a concert stage collapsed in 2011 at the Indiana State Fair and later declined to settle with the state lost her challenge that the tort claim caps are unconstitutional, ruled the Indiana Court of Appeals Wednesday.

Jordyn Polet was one of dozens injured when high winds moved through Indianapolis, causing the stage to collapse prior to a concert. Seven people were killed. The state settled with all victims, except Polet, and those settlements exhausted the $5 million tort cap. She was initially offered $1,690.75 for her injuries, but she declined. After she decided to sue, the Indiana Legislature appropriated an additional $6 million to compensate the victims. Because she did not settle, Polet was not entitled to any of that money.

The trial court denied her motion for partial summary judgment on the state’s affirmative defense it was immune under the ITCA. She argued in J.P. et al. v. Mid American Sound, et al., 49A04-1405-CT-207, that the limits on the state’s aggregate tort liability as applied to her violate the state constitution’s open courts and equal privileges guarantees.

Regarding her open courts claim, Polet characterizes herself as “a claimant with a valid, accrued cause of action authorized by statute,” but who “has no practical means of asserting it” just because she declined a settlement offer she felt was inadequate and because the state paid the maximum amount of its liability to others.

The state notes Polet was not precluded from pursuing a claim; in fact, she did and the state offered her a settlement. It was not lack of access to the courts that prevented Polet’s recovery – it was the statutory limit on the state’s liability.

“The constitution does not preclude the General Assembly from modifying or eliminating a common law tort, but Section 12 requires legislation that deprives a person of a complete tort remedy must be a rational means to achieve a legitimate legislative goal,” Judge Melissa May wrote. “The ITCA aggregate liability cap is a rational means to achieve a legitimate legislative goal, and we cannot find its application to Polet unconstitutional.”

The appeals court also found that Polet was not in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. In limiting the amount recoverable by individual and by incident, the ITCA applies equally to all claims and all incidents. Both categories defined by Polet – people who are victims of the state’s negligence that results in injuries to multiple people and people who are the sole victims of the state’s negligent acts – are subject to the individual and aggregate caps. Therefore, there is not a classification in this case that implicates the equal privileges clause, May wrote.

Jennifer Nelson for www.theindiana;lawyer.com

Finding that a judge was clearly influenced by a jury’s not-guilty decision on another drug charge when he sentenced a defendant for cocaine possession, the Indiana Court of Appeals ordered the man’s sentence reduced.

Corey Phelps was charged with Class A felony dealing in cocaine and Class C felony possession of cocaine. The jury only found him guilty of the Class C felony. At sentencing, Marion Superior Judge Daniel Pflum stated that if Phelps had had a bench trial, he would have found the defendant guilty of dealing in cocaine, as Phelps was “clearly” guilty. The judge then sentenced Phelps to eight years, the maximum sentence for possession of cocaine.

“Here, the State does not dispute that the trial court expressed disagreement with the jury verdict. Instead, the State argues the trial court appropriately enhanced Phelps’s sentence by relying on other proper aggravating circumstances. We believe, however, that the presence of aggravating circumstances justifying an enhanced sentence does not wash away the stain left by a trial court’s blatant disagreement with the jury verdict at sentencing,” Judge Margret Robb wrote in Corey Phelps v. State of Indiana, 49A02-1401-CR-30.

The appearance of fairness and the need to promote public confidence in the integrity of the judicial system are considerations carrying as much weight as any other, Robb continued, noting the sentence in this case is suspect.

Instead of ordering Phelps to be sentenced to the advisory sentence of four years, the COA remanded for the trial court to sentence him to six years and to correct the order of