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Preferred Prof'l Ins. Co. v. Crystal West

Court of Appeals of Indiana

December 16, 2014


Page 717

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather A. Welch, Judge. Cause No. 49D12-1209-CT-37783.

ATTORNEYS FOR APPELLANTS: KAREN R. ORR, Stuart & Branigin LLP, Lafayette, Indiana.



KIRSCH, Judge. BAKER, J., concurs. ROBB, J., concurs in result with separate opinion.

Page 718



Crystal West (" Crystal" ) was injured in a workplace accident, when her coworker (" Michael" ), while operating heavy machinery, hit the cherry-picker truck in which Crystal was riding, causing Crystal to fall twenty-nine feet and sustain catastrophic and permanent injuries. Crystal and her husband William West (collectively, " the Wests" ) filed a complaint for declaratory judgment in the Marion Superior Court (" Marion County action" ) against Preferred Professional Insurance Company (" PPIC" ), Hills Insurance Company (" Hills" ), Indiana Department of Insurance (" IDOI" ) and the Patient's Compensation Fund (" PCF" ), seeking a declaration that Indiana's Medical Malpractice Act (" MMA" ) did not apply to the Wests' claims of negligence, which the Wests were pursuing against Michael's health care providers by way of a complaint filed and pending in the St. Joseph Circuit Court (" St. Joseph action" ) and a proposed complaint simultaneously filed with the IDOI. In the Marion County action, the Wests and defendant PCF each filed a motion for summary judgment, seeking a determination that the MMA was not applicable to the Wests'

Page 719

claims, and PPIC and Hills (collectively, " Insurance Defendants" ) filed a cross-motion for summary judgment, asserting that the Wests' claims fell within the purview of the MMA. The Marion County trial court granted the Wests' and PCF's motions for summary judgment and denied the Insurance Defendants' motion, finding that the Wests' allegations constituted claims of common law negligence, not medical malpractice, and thus do not fall within the MMA. The Insurance Defendants appeal and raise the following restated issues:

I. Whether it was permissible for Marion County to issue a declaratory judgment on the applicability of the MMA to the Wests' pending claims in the St. Joseph action; and
II. Whether the trial court's grant of summary judgment, which determined that the Wests' claims do not fall within the purview of the MMA, was erroneous.

We affirm.


On February 19, 2010, Crystal suffered injuries as a result of a workplace accident in Crawfordsville, Indiana. She was working on an elevated mechanical platform, often called a " cherry picker," twenty-nine feet from the ground, when the cherry picker was hit and knocked over by a Turret truck, similar to a fork lift, operated by Michael. Crystal sustained serious injuries. At that time, Michael was taking narcotic pain relief medication for cervical strain, due to an injury unrelated to work. Michael was under the medical care of his physician, Dr. M.

On February 2, 2012, the Wests filed the St. Joseph action, namely an anonymous complaint for negligence and damages against Michael's healthcare providers, Dr. M, Nurse P, and health care provider entities X, Y, and Z (collectively " Healthcare Defendants" ).[1] The complaint alleged a failure to advise Michael of the risks and known side effects of his narcotic prescription for pain, to address and discuss the effects of the medication, and to warn Michael of the impairment expected to be produced by the narcotic pain medication, all of which caused the accident that injured Crystal.[2] The Wests simultaneously filed a proposed complaint against the same Healthcare Defendants with the IDOI (" Proposed Complaint" ). As is common in medical malpractice actions, the St. Joseph trial court ordered that the Healthcare Defendants would not be required to answer the St. Joseph complaint or otherwise respond until the medical review panel had rendered a decision, and the Wests had amended the St. Joseph complaint to identify the Healthcare Defendants by name.

On April 9, 2012, the Wests filed in the St. Joseph action a Motion for Preliminary Determination of Law, as provided for by the MMA,[3] asking the St. Joseph trial

Page 720

court to determine that the Wests' claims were not covered by the MMA. The PCF requested and was granted permission to intervene in the St Joseph action, siding with the Wests for the proposition that the MMA did not apply. The Healthcare Defendants opposed any preliminary determination of law, arguing that because they had not yet answered the Wests' St. Joseph complaint and discovery was not yet complete, the evidence and facts necessary to make a determination of the application of the MMA were not before the trial court. Insurance Defendants also asserted that the Wests' motion was not in an appropriate procedural posture, suggesting that the Wests' motion was effectively a motion to dismiss their own complaint. On August 29, 2012, the St. Joseph trial court denied the Wests' Motion for a Preliminary Determination of Law, stating, " At this stage of the proceedings, this Court, in the exercise of its discretion, declines to assert its statutory authority to make a preliminary determination of an issue of law in this cause of action." Appellant's App. at 73. However, it added the following in a footnote:

Had the Court decided to exercise its jurisdiction at this stage of the proceedings and entered a preliminary determination of law, based on the record before the Court, the Court would have likely ruled that the proposed complaint sounds in medical malpractice and is covered by the Indiana Medical Malpractice Act, Ind. Code § 34-18-1, et seq.

Id. The St. Joseph trial court denied pendente lite the Wests' Motion for Preliminary Determination.

About a month later, on September 26, 2012, the Wests filed the Marion County action, a complaint for declaratory judgment against Insurance Defendants and PCF.[4] The Wests asserted in their complaint, among other things:

A legal issue exists concerning whether the allegations of the Complaints filed in this matter fall within the provisions of the [MMA], and must be resolved pursuant to the procedural and substantive provisions of that Act, or whether the allegations instead state a common law action outside of that Act, which must be resolved pursuant to the substantive and procedural requirements established at common law.

Id. at 39. The determination of whether the Wests' claims were medical malpractice or were, instead, common law negligence would affect not only how and where the case would be litigated but also which insurance policies and coverage would be available to the Wests should they ultimately be successful in their claims.[5]

Page 721

In November 2012, the Insurance Defendants filed a motion to dismiss the Wests' declaratory judgment complaint under Indiana Trial Rule 12(B)(8), arguing that the same case was pending in the St. Joseph Circuit Court and that declaratory relief was improper because it would terminate the controversy. The Wests responded and argued that it was necessary that some court make the initial determination of whether the MMA applies to the Wests' claims. With a determination that the MMA does not apply, the medical review panel would be dismissed, and the medical review procedure, which could take a number of years to complete, would be avoided entirely; conversely, with a determination that the Wests' claims were within the scope of the MMA, the general liability claims would not be pursued. At the hearing on Insurance Defendants' motion to dismiss, the Wests' counsel opined, " [T]he medical malpractice case will determine only whether or not the doctor committed [medical malpractice] if the [A]ct applied. It's not going to [] determine whether or not the [A]ct does apply. The review panel is not gonna make [the] decision on whether they think the [A]ct applies." Tr. of Motion to Dismiss Hr'g at 19 (emphasis added). He continued,

So our only opportunities now are to ask for a declaratory judgment to ask for a court to resolve that issue, or go down one path till its conclusion. Then go through the proceedings supplemental till its conclusion. And then if we're correct on that one, we'd start down the second path -- my grandson will start down the second path to try to get this resolved. And that's just a crazy way [] to try to resolve this issue. This issue has to be resolved an[d] only one court has to resolve it but one court some place has to and it should be resolved [at the] beginning of the process not at the very end of one of the paths that might've been the wrong path to begin with.
The point is this court or some courts gotta decide which way we're going. Are we going to a panel, are we going to have the medical malpractice procedure followed, or are we going to use the rules applicable to civil action of general liability. And if we don't pick right, we're gonna do it twice.

Id. at 18, 24.

After a hearing, the Marion County trial court denied the Insurance Defendants' motion to dismiss on March 15, 2013. In its order, the Marion County trial court reasoned,

In this case, a declaratory judgment will significantly narrow the issues and will determine whether the [Wests'] claim for negligence and damages may be pursued under the [MMA] or whether it cannot, which determines which insurance policy would be applicable if the trier of fact found the healthcare providers liable. A preliminary determination as to which of the [Wests'] pending claims against the medical providers falls within the scope of the [MMA], if any, could serve the useful purpose of avoiding the delay and expense of proceeding under inapplicable procedural substantive rules. . . . At a ...

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