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Family Law Case Review 2/25/11

Case: Stephanie L. Cotton v. Charles C. Cotton

Case Summary by Mike Kohlhaas, Bingham McHale LLP

HELD: To comply with the Indiana Trial Rules and Due Process, the summons served with a petition for dissolution of marriage must include a clear statement to the Respondent of the risk of default for failure to appear or otherwise respond.

FACTS AND PROCEDURAL HISTORY:

Husband and Wife married in 2002. In March 2009, Husband filed a petition for dissolution of marriage. Wife was served with a summons and copy of the petition, but she did not appear personally or by counsel, nor did she respond to the petition. Husband continued to live in the marital residence for five months after filing, leading Wife to believe that the parties were working on reconciliation and that Husband was not pushing finalization of the dissolution.

However, in September 2009, Husband and his counsel attended a final hearing. Wife had not appeared personally or by counsel, and she received no notice of the final hearing. In Wife’s absence, and following only Husband’s testimony, the trial court defaulted Wife and entered a final dissolution decree that included an award of joint legal and physical custody of the parties’ son, and divided the marital estate. Wife subsequently learned of the Decree, hired counsel, and filed a T.R. 60 motion to set aside the Decree, which was denied. Wife appealed.

On appeal, Wife contended that the Decree was void because it was entered without personal jurisdiction over her, due to insufficiency of process; specifically, the summons used by Husband included language to Wife that she “may personally appear” and that “[y]ou must appear before the Court if directed to do so pursuant to a Notice, Order of the Court, or Subpoena,” but no language articulating a risk of default for doing nothing. In reviewing the summons, the Court of Appeals summarized the applicable law of insufficiency of process, and concluded: “We hold that due process requires that, at a minimum, a respondent in a dissolution proceeding be notified of the risk of default for failure to appear or otherwise respond.”

In this instance, the subject summons presented Wife with the option of appearing or responding to the petition, but did not provide notice to her that the trial court could take further and final action without further notice to her. The Court of Appeals added, “the command of Trial Rule 4(C)(5), grounded in due process, is that the respondent in a dissolution proceeding must be given notice in a ‘clear statement’ of the risk of default for failure to appear or other respond . . . ” Concluding that the subject summons did not comply with Trial Rule 4(C)(5), or the Due Process Clause, the dissolution decree was reversed and remanded for further proceedings.

To view the text of this opinion in its entirety, click here: Stephanie L. Cotton v. Charles C. Cotton

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Law Tips: Fire Suppression and Alarm Systems – How Much Blame Do They Merit in Fire Litigation?

…Fault allocation, underlying events, owner’s responsibilities, cause of the explosion, liability picture, contractor’s employment, design and installation, damage differentiation problems, local jurisdiction standards….What are the unique issues in each fire litigation case?

Today we are welcoming to Law Tips Thomas J. Jarzyniecki, Jr., Kightlinger & Gray, LLP, Indianapolis. TJ is chair of the firm’s Product Liability Practice Group and routinely deals with the issues of fire-related property damage and fatalities. He warns practitioners about the tendency to put all the blame on fire suppression and alarm systems when litigating fire cases:

There are several types of fire suppression and alarm systems in wide use in the United States. Most jurisdictions have laws, codes, or some type of regulations that govern the requirement for such systems in new construction, as well as the design parameters for systems being installed. Often states adopt, in whole or in part, relevant portions of the National Fire Protection Association (“NFP A”) rules applicable to such systems. The NFP A may be adopted as part of a building code or fire code of a given state, but even if not specially adopted it is recognized in the industry as authoritative on minimum standards of care based on years of testing and experience.

NFP A 13 (and its subparts) provides the standard for installation of Sprinkler Systems and NFP A 25 provides the standard for the regular inspection, testing and maintenance of waterbased fire protection systems. These two standards cover the majority of sprinkler systems in use today. Other portions of the NFPA address particular hazards (storage of flammable liquid or aerosols) and the various means of providing fire protecting beyond water (foams or dry chemicals). In all, the NFPA providers the starting point for analyzing the performance or lack thereof for any litigation wherein the adequacy of a suppression system or alarm system has been called into question.

Fire suppression devices come in a variety of shapes and sizes. From a single hand held fire extinguisher, to the restaurant hood system, to large wet or dry sprinkler systems all the way to specialized industrial fire suppression systems for large industrial machinery or equipment. These various devices and systems are somewhat unique on the fire litigation landscape since they are never the initial cause of a fire or explosive event but they often times may end up receiving all the blame.

Another consistent feature of cases wherein some shortcoming of an alarm or suppression system has been raised is involvement of multiple players regarding the system. Often the system has been in place for a substantial period of time and the original designer, installer or maintenance company have long since departed. In addition, there is invariably other equipment or items involved that can significantly impact the effectiveness of the fire suppression system. For example, the restaurant hood and associated filters must be regularly cleaned to allow the suppression system the opportunity to perform adequately. Another example involves the warehouse that ends up stacking storage too high or too dense, reducing the effectiveness of the suppression system.

In the final analysis, spread of fire cases present some unique challenges but a thorough investigation of the involved suppression or alarm system and the underlying event itself, will provide plenty of available defenses applicable to the claim. The cause of the fire or explosion will still be of great significance to a jury and must be factored into the liability picture and analysis. The scope of an alarm or suppression system contractor’s employment will also play a significant role where an existing poor design or installation is attempted to be foist upon the last company to touch the system. While owners can rely to a degree on the fact that they “hired an expert” to perform work on the involved system they cannot by so doing, turn a blind eye to their own responsibilities and duties as identified by statute, ordinance, codes or standards.

A complete understanding of the applicable codes and standards from the local jurisdiction to universally accepted standards, like the NFPA, will allow you to gain an advantage during the course of discovery, especially during expert depositions. Evaluating how your state will handle some of the thorny fault allocation issues and damage differentiation problems can greatly assist in defending these types of claims and assess your client’s true exposure

Thanks to TJ Jarzyniecki for his contribution to Law Tips. TJ’s CLE presentation during the Litigating Fire Cases seminar delves into a thorough discussion of other important issues, such as, types of systems and alarms, potentially responsible parties, fault allocation and damages. Litigating Fire Cases is available anytime, anywhere as an On Demand Seminar and available statewide as Video Replay Seminars.

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About our Law Tips faculty participant:
Thomas J. Jarzyniecki, Jr., Kightlinger & Gray, LLP, Indianapolis, Indiana.  TJ Jarzyniecki is a senior partner and the chair of the firm’s Product Liability Practice Group.  He has extensive experience dealing with fire-related matters. TJ routinely handles subrogation cases dealing with fire-related property damage and fatalities. He also uses this knowledge to handle product liability cases relating to the defense of fire suppression system installation and the defense of fire suppression system inspectors.  Mr. Jarzyniecki serves as Co-Chair of the Indiana chapter of the National Association of Subrogation Professionals (NASP) and is an active member of the organization.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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2014 Year In Review – Dec. 9-10

For over 20 Years, ICLEF’s Year in ReviewTM has provided an effective forum for Indiana attorney’s to hear and discuss the most relevant cases and issues in over a dozen areas of law. In addition to our traditional areas of interest such as Tort Law, Business Litigation, Criminal Law, Estate Planning, and Employment Law; this year’s review will also address some interesting topical issues including attorney John Papageorge (Taft Stettinius & Hollister, Indianapolis) will address developments in eDiscovery.

Our two-day seminar returns to the comfortable and conveniently located Ritz Charles in Carmel on Tuesday & Wednesday, December 9-10, but this year you may also attend the seminar at one of our many Group Webcast locations.

Join us and make the Year in ReviewTM an annual part of your CLE calendar.

To see a full agenda and faculty list or to register, click any of the links below.

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2014 YEAR IN REVIEWTM
12 CLE / 1 E – Tuesday & Wednesday, December 9-10, 2014
9:00 A.M. – 4:30 P.M  Both Days (Eastern)

LIVE IN-PERSON SEMINAR
- Ritz Charles Conference Facility, Carmel

LIVE GROUP WEBCASTS:
RhineErnst LLP, Law Office, Evansville
Grand Wayne Center, Fort Wayne
Radisson Star Hotel, Merrillville
DeFur Voran, LLP Law Office, Muncie
Taft Law Office, Indianapolis
ICLEF Conference Facility, Indianapolis

LIVE INDIVIDUAL WEBCASTS OF DAY 1 or 2
- From your home or office computer

VIDEO REPLAY SEMINARS
- Available statewide after Live date

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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2014 Indiana Law Update On Demand & Video Replay Seminars

Albion - Nov. 10-11
Avon/Danville - Dec. 11-12
Bloomington - Oct. 30-31
Chicago SE
      Day 1 - Nov. 14
      Day 2 - Nov. 17
Corydon - Nov. 5-6
Evansville - Oct. 27-28
Fort Wayne - Nov. 13-14
Gary - Dec. 4-5
Indianapolis - Nov. 3-4
Jeffersonville - Oct. 29-30
Lafayette - Nov. 6-7
Marion - Dec. 18-19
Merrillville - Nov. 13-14
Michigan City - Dec. 8-9
Muncie - Oct. 30-31
Nappanee - Nov. 6-7
New Castle - Nov. 13-14
Richmond - Nov. 13-14 
Salem
      Day 1 - Dec. 4
      Day 2 - Dec. 11 
Valparaiso 
      Day 1 - Jan. 9
      Day 2 - Jan. 16
Versailles - Nov.25-26
Vincennes - Dec. 11-12

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