In a reply brief filed October 3, CCL told the Indiana Court of Appeals that the State’s brief misunderstands the issue raised in CCL’s challenge to the aggregate cap in the state’s Tort Claims Act.  The State’s brief defended the right of the State to limit its damages on both a per-individual and per-occurrence basis, even if that results in different limits for similarly injured persons.  CCL’s opening brief argued that the differential treatment of claimants constituted a violation of the state constitution’s Equal Privileges and Immunities Clause.

The case arises from the stage collapse at the 2009 Indiana State Fair after a tornado suddenly appeared as crowds were gathered for an evening concert.  Seven people were killed, and another 58 were injured in the incident. The Tort Claims Act limits the State’s liability to $700,000 per person and $5 million per incident. Because of the large number  of people injured, the State attempted to settle claims by distributing the $5 million aggregate cap on a pro rata basis, after allocating $350,000 to every wrongful death claim.  Plaintiff Jordyn Polet, who was offered about $1,600 on a claim estimated to be worth $100,000, was the only claimant who refused the settlement offer. Her offer was then redistributed among the settling claimants, who later received another $6 million appropriated by the legislature after it determined the original $5 million was insufficient. When Polet sought to sue under the Tort Claims Act, the State asserted an affirmative defense, claiming that she lost her cause of action when she refused the settlement offer and that the overall $5 million cap means that the State has expended its entire responsibility, foreclosing further claims.

In reply, CCL argues that Polet has an accrued, valid cause of action because the Tort Claims Act unequivocally waived the State’s immunity and that a rejected settlement offer cannot divest her of that claim. Citing the state constitution’s Open Courts provision, the brief indicates that her interest in making a claim vested at the time of the injury and could not be alienated from her by the State’s attempts to settle the case. In response to the State’s claim that its interest in protecting the public fisc overrode all other considerations, CCL’s brief pointed out that this would give the State plenary authority  to set up its tort claims act caps any way it wants, including on a first come, first served basis. Thus, the CCL brief points out, if the day before the present tragedy at the State Fair, only five people were injured when the same stage collapsed and were thus eligible for up to $700,000 in compensation each, the State was free to settle with six of them for $200,000 apiece, and a lone claimant who refused that settlement would still have a cause of action to prove liability and damages above the $200,000 offer because the aggregate cap would not kick in. However, if the stage collapses again the following day after a failure to remedy the previous day’s problem, rendering the negligence more egregious, and 65 more people are injured this time, it is the State’s position that they are free to offer each an even pro rata settlement of less than $77,000 each, redistribute the leftover $77,000 to those willing to settle, and leave the single claimant who refused the settlement without any recourse, solely because the aggregate cap now applies and changes everything. CCL contends that such an approach is inconsistent with the Equal Privileges right.

CCL’s Robert S. Peck is counsel for Polet, along with Anthony Patterson of Indianapolis.  A date for oral argument has not yet been set.