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VanDam Estate v. Mid-America Sound

Court of Appeals of Indiana

January 14, 2015

VanDam Estate
v.
Mid-America Sound, et al., 49D02-1111-CT-044823-001, Urschel
v.
Mid-America Sound, et al., 49D02-1111-CT-044823-002, Brennon
v.
Mid-America Sound, et al., 49D02-1111-CT-044823-003, Porter
v.
Mid-America Sound, et al., 49D02-1111-CT-044823-004, Santiago Estate
v.
Mid-America Sound, et al., 49D02-1111-CT-044823-005, BigJohny Estate
v.
Mid-America Sound, et al., 49D02-1111-CT-044823-006, Vinnegar
v.
Mid-America Sound, et al., 49D02-1111-CT-044823-007, Indiana Farmers
v.
Dave Lucas Ent., et al., 49D02-1111-CT-044823-008

Page 166

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Theodore M. Sosin, Judge. Cause No. 49D02-1111-CT-44823.

ATTORNEYS FOR APPELLANT: ANTHONY W. PATTERSON, Lebanon, Indiana, ROBERT S. PECK, Washington, D.C.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, THOMAS M. FISHER, Solicitor General, HEATHER HAGAN MCVEIGH, Deputy Attorney General, Indianapolis, Indiana.

MAY, Judge. VAIDIK, C.J., and FRIEDLANDER, J., concur.

OPINION

Page 167

MAY, Judge

Jordyn Polet was injured when the stage collapsed at a concert at the Indiana State Fair. Polet declined the State's settlement offer, and the State distributed, to the claimants who were willing to settle, all the money available under the Indiana Tort Claims Act (ITCA) cap of five million dollars. After her parents sued the State and others, the State asserted, as an affirmative defense, that the ITCA made it immune to Polet's claim.

Polet moved for partial summary judgment on the State's affirmative defense it was immune under the ITCA. The trial court denied her motion. Polet argues the limits on the State's aggregate tort liability, as applied to her, violate the Indiana Constitution's open courts and equal privileges guarantees. We affirm.

FACTS AND PROCEDURAL

Page 168

HISTORY[1]

Before a concert at the Indiana State Fair in 2011, there was severe weather and the stage roof collapsed, causing a number of deaths and injuries. Some of the victims sued the State of Indiana, the Indiana State Fair Commission, the Indiana State Police (collectively, " the State" ), and various private entities. Ind. Code § 34-13-3-4 provides that when a governmental entity or employee is not immune from liability, the combined aggregate liability of all governmental entities and of all public employees is capped at seven hundred thousand dollars for injury to or death of one person in any one occurrence and at five million dollars for injury to or death of all persons in that occurrence.

The five million dollar limit was made available to settle the victims' claims. Polet was offered $1690.75, which she declined. She was the only claimant who did not settle. The other sixty-four claimants accepted the State's settlement offers, and those settlements exhausted the five million dollar cap.

The following year the legislature made available an additional six million dollars to compensate the victims, but it specified the money was available only to victims who had already released the State from liability: " To receive a distribution under this chapter for an occurrence, an eligible person must have already released all governmental entities and public employees from any liability for loss resulting from the occurrence." Ind. Code § 34-13-8-6. Polet was therefore not eligible for any of that money either.

The trial court determined the statutory liability cap did not violate Polet's constitutional rights, and it denied ...


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