In 2009, a severe windstorm collapsed the staging at the Indiana State Fair, killing seven people and injuring 58 more.  Jordyn Polet, then aged 10, was there with her mother, sister and a family friend.  The friend was killed, while the mother and sister suffered severe injuries.  Jordyn’s physical injuries were relatively minor, but she was diagnosed with traumatic stress syndrome from the experience. The State of Indiana decided to settle its liability with all potential claimants.  Invoking the aggregate cap in the state tort claims act, the State hired mediator Kenneth Feinberg to distribute the act’s maximum liability of $5 million among the victims.  Feinberg implemented a scale that paid 65 percent of the then-existing medical and hospital expenses to each victim, while also paying at least $300,000 in each of the wrongful death cases.  For Jordyn, the settlement offer was $1,690.65. She turned the offer down.  As a result, the State then distributed that amount among the remaining settling claimants.  Later, after legislative action, the State sweetened the settlement pot by another $6 million that would be distributed in like manner only among the settling claimants.  When Jordyn filed her complaint in court under the tort claims act, the State asserted an affirmative defense that it was immune from suit because it had paid out its maximum liability of $5 million. When Jordyn challenged that affirmative defense on constitutional grounds, the trial court denied her motion for partial summary judgment.

The case now moves to the appellate court, where CCL’s Robert S. Peck filed an opening brief that asserts that Indiana’s unaccepted settlement cannot eviscerate Jordyn’s valid, accrued cause of action to which the tort claim act constitutes consent. The brief argues that the termination of her claim by the trial court violates Indiana’s open courts guarantee.  Moreover, because the act contains both an individual cap of $700,000 and an aggregate cap of $5 million, implementation of the act violates the state constitution’s equal privileges provision by treating those who have the misfortune of being injured with many others differently from those who are injured alone and eligible for up to a $700,000 recovery.  The unequal treatment of tort claimants raises an issue similar to one resolved in March by the Florida Supreme Court in another case argued by Peck, where it held the state’s aggregate cap in medical-malpractice wrongful death cases violated the state constitution’s equal protection guarantee.