Parr Richey Frandsen Patterson Kruse LLP Parr Richey Frandsen Patterson Kruse LLP 2026-07-28T07:00:46Z https://www.parrlaw.com/feed/atom/ WordPress /wp-content/uploads/sites/1404612/2025/02/cropped-ParrOG-32x32.png On Behalf of Parr Richey Frandsen Patterson Kruse LLP <![CDATA[Indiana Appeals Court Affirms Bad-Faith Claim Against Erie Insurance]]> https://www.parrlaw.com/?p=50274 2026-05-18T13:45:48Z 2026-05-18T13:44:19Z Appellate Court Affirms Bad-Faith Claim When Erie Insurance Opportunistically Avoided Paying the Uninsured Motorist claim and Court Declared UM/UIM Coverage Limits Do Not Apply to the Breach of Policy Damages Claims The Indiana Court of Appeals largely affirmed the jury’s finding that Erie Insurance acted in bad faith toward Christine and Roy Cosme after denying uninsured motorist coverage following a 2017 rear-end collision. The court detailed how Erie attempted to cancel the Cosmes’ automobile policy after mistakenly believing their son’s driver’s license had been suspended, even though the suspension resulted from an administrative error and the family had actively attempted to correct the issue before the purported cancellation became effective. After the accident, Erie denied coverage and maintained that the policy had been cancelled, despite conflicting internal documentation suggesting the policy remained active.  The appellate court rejected Erie’s arguments that the bad-faith claim should have been dismissed on summary judgment. The court found there were genuine issues of material fact regarding whether Erie properly cancelled the policy and whether its denial of coverage constituted an “unfounded refusal to pay policy proceeds” or deceptive conduct under Indiana bad-faith law. The opinion emphasized that Erie’s own records conflicted on whether the policy was actually cancelled and that evidence supported the claim that Erie opportunistically relied on the confusion surrounding the son’s license suspension to avoid paying the uninsured motorist claim.  The court also upheld the admission of expert testimony characterizing Erie’s conduct as “opportunistic fraud,” concluding that the testimony was not a surprise opinion because the insurer had long been aware the expert intended to testify that Erie failed to act forthrightly and attempted to justify improper claims-handling conduct after the fact. However, the appellate court determined the trial court improperly reduced portions of the jury’s damages award. Specifically, the court held that while uninsured motorist policy limits properly capped damages arising directly from the accident itself, those limits did not necessarily apply to damages caused by Erie’s separate breach of contract in failing to pay the claim. The matter was therefore remanded for further proceedings on damages.  For the claimants, the opinion is highly favorable and provides substantial leverage going forward. The appellate court validated the core theory that Erie’s handling of the cancellation and denial process could constitute actionable bad faith, preserved the punitive damages award, and reopened the possibility of reinstating significant breach-of-contract damages beyond the policy limits. Claimants should continue pressing the distinction between contractual uninsured motorist benefits and consequential damages flowing from Erie’s wrongful conduct, while emphasizing the appellate court’s repeated recognition that factual disputes existed concerning the legitimacy of the cancellation and the insurer’s claims-handling practices.  James A.L. Buddenbaum and Michael L. Schultz are partners in the Indiana law firm of Parr Richey Frandsen Patterson Kruse LLP and regularly litigate claims for insurance policy holders in state and federal courts. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.]]> On Behalf of Parr Richey Frandsen Patterson Kruse LLP <![CDATA[What If Evidence Is Destroyed In A Lawsuit?]]> https://www.parrlaw.com/?p=50173 2026-03-25T13:36:14Z 2026-03-25T13:36:14Z Recently, the Indiana Supreme Court dealt with the issue to handle potential evidence which is not preserved and the Court declared that the issue is within the discretion of the trial court.  The case involved a person who was injured when she tripped on a lobby floormat while leaving Community Hospital and sued for negligence. Plaintiff’s counsel sent a letter shortly after the fall requesting the all video evidence be preserved. The hospital security only preserved a short clip of approximately 10–12 seconds from a camera that captured the fall which was produced to plaintiff’s counsel.  The hospital admitted there were three cameras that covered the area, but only one captured the fall.  The footage from the other cameras, and earlier footage from the camera that captured the fall were not preserved. The Plaintiff moved for sanctions arguing that by not preserving all of the cameras the hospital committed spoilation and requested a jury instruction allowing an adverse inference if a party fails to preserve evidence. The trial court denied sanctions and the adverse-inference instruction and the jury returned a verdict for the hospital. The Court of Appeals reversed, in part, finding potential spoliation and error in refusing the instruction. The Supreme Court granted transfer and vacated that opinion. The majority of the Indiana Supreme Court held that that the trial court did not abuse its discretion in finding no spoliation even though the Plaintiff argued that the preserved video was distant and pixelated so earlier footage which was not preserved would likely shown the small, foot-sized raised portion of the mat. Ultimately, the Supreme Court majority affirming the trial judgment for the hospital. However, Justice Goff wrote a dissenting opinion arguing the trial court abused its discretion by declining to give Plaintiff’s adverse-inference instruction. as Justice Goff stated.  He emphasized the factual sensitivity of spoliation determinations and stated “[s]poliation is a ‘discovery abuse that involves the intentional or negligent destruction, mutilation, alteration, or concealment of physical evidence’ in pending or reasonably foreseeable litigation”.  He argued that the question of whether evidence was spoliated and the inference to drawn is better decided by a jury after evidentiary presentation. Justice Goff argued this would be classic jury factual question given the Plaintiff’s preservation letter shortly after the fall, the preserved video’s poor angle and pixelation blocking the relevant portion of the mat, the unpreserved footage from two other cameras which might have shown the mat condition before the fall. While the plaintiff did not prevail, this case is a reminder of the need for a carefully crafted preservation letter in cases where evidence might be change or be deleted.   Plaintiff Caryl Rosen v. Community Healthcare System d/b/a Community Hospital, Indiana, Supreme Court No. 25S-CT-217 (Decided March 11, 2026)   James A.L. Buddenbaum is a partner in the law firm of [nap_names id="FIRM-NAME-1"] with offices in Indianapolis and Lebanon, Indiana and has more than 35 years’ experience litigating in state and federal courts for utilities, local government, healthcare providers and businesses on a variety of issues. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.  ]]> by James Buddenbaum <![CDATA[The Number Of Remonstrators Controls Opposition To Establishemnt Of A Conservancy District]]> https://www.parrlaw.com/?p=50140 2026-03-16T01:35:23Z 2026-02-26T04:17:29Z James A.L. Buddenbaum is a partner in the law firm of Parr Richey Frandsen Patterson Kruse LLP with offices in Indianapolis and Lebanon, Indiana and has more than 35 years’ experience advising utilities, local government, healthcare providers and businesses on a variety of issues. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.]]> On Behalf of Parr Richey Frandsen Patterson Kruse LLP <![CDATA[Local Government Need Not Provide Health Insurance to Elected Official]]> https://www.parrlaw.com/?p=49680 2025-08-19T09:15:52Z 2025-08-19T09:15:52Z Perry County et. al. v. Huck, Case No. 24S-PL-297 (Ind. 2025). Chief Justice Loretta Rush agreed in the result but filed a separate “concurring opinion” of note. Justice Rush wrote that conflicting provisions of the statute lead to the conclusion that elected officials are not an employee of Perry County [local government]. Justice Rush’s analysis that elected officials are not employees is one shared by many practitioners in the government law practice. Local government should review its policies and implementation of those policies in light of this case. James A.L. Buddenbaum is a partner in the law firm of Parr Richey Frandsen Patterson Kruse LLP with offices in Indianapolis and Lebanon, Indiana and has 25 years’ experience advising local government. He advises and litigates for local government, businesses, healthcare providers, utilities, individuals and insurance policy holder clients and in the areas of real estate, corporate, commercial transactions, health insurance law matters. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.]]> On Behalf of Parr Richey Frandsen Patterson Kruse LLP <![CDATA[FERC Legal – Blog Post: Duke Energy Corp. v. FERC, 2018 U.S. App. LEXIS 16108]]> https://www.parrlaw.com/?p=49671 2025-08-19T07:35:26Z 2025-08-19T07:35:26Z Jeremy Fetty is a partner in the law firm of Parr Richey with offices in Indianapolis and Lebanon. Mr. Fetty is current Chair of the Firm Utility and Business Section and often advises businesses and utilities (for profit, non-profit and cooperative) on regulatory, compliance, and transactional matters. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.]]> On Behalf of Parr Richey Frandsen Patterson Kruse LLP <![CDATA[FERC Legal – Old Dominion Elec. Coop. v. FERC, 2018 U.S. App. LEXIS 16105]]> https://www.parrlaw.com/?p=49669 2025-08-19T07:32:35Z 2025-08-19T07:32:35Z I. Introduction and Case Summary   In January 2014, a so-called “Polar Vortex” scourged the Eastern United States, causing a significant amount of property damage and several fatalities. While many industries were impacted by the Polar Vortex, electrical utilities were dealt an especially devastating financial blow. The increased demand for electricity to heat homes and businesses during the Polar Vortex caused a corresponding increase in operational costs for many electrical utilities. Due to a federal tariff that caps the amount an electrical utility may charge for its services, many providers and generators, including Old Dominion Electric Cooperative, were temporarily forced to sell electricity at a substantial loss. After the Polar Vortex subsided, Old Dominion requested that the Federal Energy Regulatory Commission (FERC) waive provisions of the governing tariff retroactively so that it could recover some of its losses. The FERC denied the request and Old Dominion appealed. On June 15, 2018, the U.S. Court of Appeals for the District of Columbia held that Old Dominion’s request was properly denied, as the rate cap imposed by the tariff could not be lifted even under extreme circumstances like the Polar Vortex. II. The Federal Power Act   The Federal Power Act empowers the FERC to prospectively fix or change the rates charged by public electrical utilities to ensure that they are just and reasonable. If a utility wants to change its own rates, it must notify the FERC at least sixty days before the change is to take effect. The FERC may waive the sixty-day notice requirement for good cause, but, as the court in Old Dominion Electric Cooperative v. FERC found, it does not have the authority to allow retroactive changes in the rates already charged to consumers. These requirements are collectively known as the “filed rate doctrine.” The Federal Power Act also prohibits the FERC from adjusting current rates to make up for an electrical utility’s over- or under-collection in prior periods. These rules are intended maintain the predictability of rates and prevent discriminatory or extortionate pricing. III. Key Takeaways Old Dominion Electric Cooperative v. FERC confirmed that under the Federal Power Act, the FERC has lacks the authority to make discretionary exceptions for electrical utilities, even in cases where the electrical utility’s motivation is not to gouge consumers, but simply to recoup lost profits, or at least break even, after natural disaster forces the utility to provide services at a loss. In order to avoid ending up like Old Dominion, an electrical utility may be able to adjust its rates accordingly by notifying the FERC at least sixty days before a disaster is likely to occur. However, from a practical standpoint, it is unlikely that an electrical utility could predict an event like the Polar Vortex so far in advance. Jeremy Fetty is a partner in the law firm of Parr Richey with offices in Indianapolis and Lebanon. Mr. Fetty is current Chair of the Firm Utility and Business Section and often advises businesses and utilities (for profit, non-profit and cooperative) on regulatory, compliance, and transactional matters. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.]]> Parr Richey Frandsen Patterson Kruse LLP <![CDATA[Indiana Supreme Court Clarifies Compensation Owed in Takings Relating to Road Construction]]> https://www.parrlaw.com/?p=46142 2025-02-04T17:19:50Z 2024-11-19T06:00:00Z In October 2024, the Indiana Supreme Court held that property owners cannot recover damages for traffic flow reduction to their property caused by roadway projects if the project leaves the property’s access points unchanged because no taking of a property right would occur.[1]

As part of new I-69 construction, the state in 2019 sought to purchase a narrow strip of land from an undeveloped parcel belonging to Franciscan where another nearby property owner, SCP, owned a drainage easement for its CVS storefront.[2] The new interstate would also remove the nearest intersection, which would soon place plaintiffs’ properties at the dead-end of a road and abutting the new interstate.[3] Unsuccessful in negotiations, the state filed for eminent domain, and plaintiffs asserted damages including a reduction in their properties’ commercial value.[4] The state, in turn, argued that damages stemming from traffic reduction are barred as a matter of law.[5] The trial court disagreed, leading to a jury verdict over two million dollars.[6] The Court of Appeals reversed the jury determination of damages for error, and the Supreme Court granted transfer.[7]

When an Indiana government entity uses eminent domain to take property, it owes compensation to the property owner including “‘fair market value’” and “damages ‘to the residue of the property’ that the owner retains.”[8] But a compensable taking requires taking a property right.[9] While condemning the narrow strip of property at hand indisputably created a taking, the traffic issues arising from removing the nearby intersection required a separate analysis.[10]

Indiana common law on damages from loss of property access shows two salient legal principles. First, “a landowner cannot recover damages for changes in traffic flow past their property[.]”[11] Second, “a landowner can recover damages when ingress and egress to their property is actually or constructively eliminated.”[12] And as further refined in State v. Kimco of Evansville, Inc., loss-of-access damages do not include road improvements that prevent expansion of public access.[13]

The court distilled previous law into an analytical framework:

When a property’s ingress and egress points remain unchanged, the landowner cannot recover damages based only on increased circuity of travel between the property and a public roadway because those damages do not result from the taking of a property right. . . . But when a property actually or constructively loses ingress and egress points between the property and a public roadway, the landowner can recover damages because they result from the taking of a property right.[14]

Accordingly, the court abrogated any case before Kimco that fails to tie a property interest taking to eminent domain damages.[15]

Applying this framework, the court held that the Franciscan plaintiffs failed to show a property right taking.[16] While “[t]akings cases are fact-sensitive,” plaintiffs’ concerns solely involved traffic flow, and no ingress-egress points were affected by removing the nearby intersection.[17] Thus, the court remanded the remaining valuation decision to the trial court with restrictions to appropriated land value alone.[18]

Moving forward, property owners affected by roadway construction should take care to frame their property interests through access instead of traffic concerns. Even a constructive access issue, like the bridge weight limits in Tolliver,[19] creates a compensable taking. Otherwise, unfortunately, legislative change may be required to ensure compensation for traffic-related damage to business and commercial value.

__________________________________________

[1] State v. Franciscan All., Inc., No. 24S-PL-118, 2024 Ind. LEXIS 660, at *2–3 (Ind. Oct. 31, 2024).

[2] Id. at *3–5.

[3] Id.

[4] Id. at *5–6.

[5] Id. at *4–5.

[6] Id. at *6–7.

[7] Id. at *7–8.

[8] Id. at *8 (quoting Ind. Code § 32-24-1-9).

[9] Id. at *8–10 (citing State v. Ensley, 164 N.E.2d 342, 348 (Ind. 1960)).

[10] Id.

[11] Id. at *11–12 (citing Ensley, 164 N.E.2d at 348, 350).

[12] Id. at *11–13 (citing Ensley 164 N.E.2d at 348; State v. Tolliver, 205 N.E.2d 672, 677–78 (Ind. 1965) (holding that constructive taking existed where traffic change required access to industrial business over bridge without weight capacity for business’s trucks)).

[13] 902 N.E.2d 206, 208, 214 (Ind. 2009); Franciscan, 2024 Ind. LEXIS 660, at *13–14 (also discussing lack of consideration for whether damages are “special and peculiar” and inapplicability of a change to “a property’s ‘highest and best use’”).

[14] Id. at *14–15 (cleaned up).

[15] Id. at *15.

[16] Id. at *16–17.

[17] Id. at *17–18.

[18] Id. at *19. Trial court-appointed appraisers disagreed on Franciscan’s land valuation, but a previous settlement precluded SCP’s easement valuation. See id. at *7.

[19] See supra note 12.

 

Authors:

Erin Borissov and Andy Eddington

Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Indianapolis and Lebanon, Indiana. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance, and corporate compliance.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.

]]> Parr Richey Frandsen Patterson Kruse LLP <![CDATA[Indiana Utility Regulatory Commission Investigation of Public Utility Status of DER Aggregators]]> https://www.parrlaw.com/?p=46149 2025-06-20T08:27:44Z 2024-05-07T05:00:00Z [1] FERC Order 2222 gave DERs the right to participate in wholesale energy markets through aggregators and required regional transmission organizations such as MISO and PJM to file tariff changes to facilitate participation by DER aggregators. Over the past 18 months, the Commission has conducted stakeholder workshops relating to the implementation of in Indiana.[2]  The workshops have discussed interconnection of DERs to local distribution facilities, technical and operational concerns, cost allocation issues, and the extent to which DERs and Aggregators of DERs should be regulated or monitored.  After numerous workshops the Commission initiated the investigation to review the public utility status of DER aggregators in order to “facilitate rule development”. __________________________________ [1] Investigation into the Public Utility Status of Distributed Energy Regulators, Cause No. 46043 (IURC 4/17/24) [2] https://www.in.gov/iurc/home/implementation-re-ferc-order-2222/   Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Indianapolis and Lebanon, Indiana. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance, and corporate compliance. The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney. __________________________________ Status update (June 19, 2025): On December 18, 2024, IURC issued a Final Order in Cause No. 46043. The Commission found they lacked sufficient evidence to determine the public utility status of any or all DER aggregators that conduct, or may conduct, business in Indiana. As such, the Commission expressed concern with making a conclusive determination on the public utility status in light of the differences between existing DER aggregation models and the host of potential models. Furthermore, the Order states it is unnecessary for the Commission to make a determination as to the public utility status of DER aggregators because IC § 8-1-40.1 places DER aggregator activities that are conducted under FERC Order 2222 within the Commission’s jurisdiction through direct rulemaking authority. Neither FERC Order 2222 nor IC § 8-1-40.1 require the Commission to make a finding of the public utility status of DER aggregators to manage their participation in the wholesale market. In conclusion, the Commission found that moving forward to a determination based on this record that any or all DER aggregators are public utilities is an unnecessary step to accomplish the purpose of the investigation. The investigation was closed without any finding as to the public utility status of DER aggregators as a class. Following the December 18, 2024 Order in Cause No. 46043, the Commission resumed its pre-rulemaking stakeholder process to seek input on various issues that might be addressed in rules to implement FERC Order 2222. The most recent stakeholder meeting was May 29, 2025. Erin C. Borissov | Partner ]]> Parr Richey Frandsen Patterson Kruse LLP <![CDATA[The Role of Engineers in Insurance Claims]]> https://www.parrlaw.com/?p=46278 2025-02-04T17:20:02Z 2023-12-26T06:00:00Z Parr Richey Frandsen Patterson Kruse LLP <![CDATA[Indiana Utility Law – Ind. Office of Utility Consumer Counselor v. Duke Energy Indiana, LLC, 21A-EX-2702 (Ind. Ct. App. 2023)]]> https://www.parrlaw.com/?p=46153 2025-02-04T17:20:13Z 2023-07-10T05:00:00Z On February 21, 2023, the Indiana Court of Appeals reversed an Indiana Utility Regulatory Commission (“Commission”) order granting Duke Energy Indiana (“Duke”) recovery of costs pursuant to federal Environmental Protection Agency (“EPA”) rules for treating coal ash and remediating ash ponds because the Commission had not yet approved the project, which constituted impermissible retroactive ratemaking. The central issue before the court was whether the Commission’s order allowing Duke to recover costs incurred “before or during the pendency of the proceeding, [and] prior to the issuance of the [o]rder” violated the prohibition against retroactive ratemaking. Ind. Office of Utility Consumer Counselor v. Duke Energy Indiana, LLC, 21A-EX-2702 at 2 (Ind. Ct. App. 2023) (“Duke Energy”). The Commission’s order grating cost recovery was pursuant to Indiana’s Federal Mandate Statute, which permits utilities, subject to Commission approval, to “track and cover 80% of such federally mandated costs via periodic rate adjustments, with recovery of the remaining 20% deferred to the utility’s next general rate case.” Duke Energy, 21A-EX-2702 at 11. The court determined that this was a question of law because the focus of the challenge was “whether the Commission can approve the reimbursement of already incurred costs without violating the perceived prospective language of the Federal Mandate Statute.” Id. at 7-8.

The “perceived prospective language” was recognized by the Indiana Supreme Court in Duke’s traditional rate case, Ind. Off. Of Util. Consumer Couns. V. Duke Energy Ind. LLC., 183 N.E.3d 266 (Ind. 2022) (“DEI”), where it noted that the Federal Mandate Statute “is framed in the future tense and speaks of ‘projected’ costs for ‘proposed’ projects which would seem to require [C]omission approval before a utility incurs the cost.” DEI, 183 N.E.3d at 270 (internal citations omitted). While agreeing with Duke that the above language was ditca, the court viewed it as “an indication that our supreme court believes a utility can only recoup certain expenses incurred under the Statute after gaining authorization from the Commission to track the expenses.” Duke Energy, 21A-EX-2702 at 14. According to the court, this position “is grounded in the principle that ratemaking is prospective in nature, not retroactive, with the demarcation between retroactive and prospective costs being the date of the Commission’s order, not the filing date of the utility’s petition.” Id. at 9 (internal citations omitted). As such, because the Federal Mandate Statue does not specifically authorize the recovery costs prior to a utility receiving a certificate of public convenience and necessity (“CPCN”), id., permitting recovery of costs “incurred prior to the Commission’s authorization would undo the purpose of Commission oversight and would present a disservice to the utility’s customers.” Id. at 17.

Therefore, because the Federal Mandate Statute serves as an exception to the general prohibition against retroactive ratemaking and is only effective after a utility receive a CPCN from the Commission for the project, permitting Duke to recover costs it had incurred prior to the Commission’s order “failed to follow the prospective strictures of the Federal Mandate Statute,” requiring reversal. Id.

 

Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.

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