CHAPTER 2. COMPENSATORY DAMAGES: COMPARATIVE FAULT
IC 34-51-2
Chapter 2. Compensatory Damages: Comparative Fault
IC 34-51-2-1
Applicability of chapter
Sec. 1. (a) This chapter governs any action based on fault that isbrought to recover damages for injury or death to a person or harmto property, except as provided in subsection (b).
(b) This chapter does not apply to an action:
(1) brought against a qualified health care provider underIC 16-9.5 (before its repeal), IC 27-12 (before its repeal), orIC 34-18 for medical malpractice; or
(2) that accrued before January 1, 1985.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-2
Governmental entities and public employees excepted
Sec. 2. This chapter does not apply in any manner to tort claimsagainst governmental entities or public employees under IC 34-13-3(or IC 34-4-16.5 before its repeal).
As added by P.L.1-1998, SEC.47.
IC 34-51-2-3
Causation
Sec. 3. In an action brought under this chapter (or IC 34-4-33before its repeal), legal requirements of causal relation apply to:
(1) fault as the basis for liability; and
(2) contributory fault.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-4
Defendant as single party
Sec. 4. For purposes of sections 6 through 10 of this chapter, adefendant may be treated along with another defendant as a singleparty where recovery is sought against that defendant not based uponthe defendant's own alleged act or omission but upon the defendant'srelationship to the other defendant.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-5
Effect of contributory fault
Sec. 5. In an action based on fault, any contributory faultchargeable to the claimant diminishes proportionately the amountawarded as compensatory damages for an injury attributable to theclaimant's contributory fault, but does not bar recovery except asprovided in section 6 of this chapter.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-6
Barring of recovery; degree of contributory fault Sec. 6. (a) In an action based on fault that is brought against:
(1) one (1) defendant; or
(2) two (2) or more defendants who may be treated as a singleparty;
the claimant is barred from recovery if the claimant's contributoryfault is greater than the fault of all persons whose fault proximatelycontributed to the claimant's damages.
(b) In an action based on fault that is brought against two (2) ormore defendants, the claimant is barred from recovery if theclaimant's contributory fault is greater than the fault of all personswhose fault proximately contributed to the claimant's damages.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-7
Jury instructions; single party defendant
Sec. 7. (a) This section applies to an action based on fault that is:
(1) brought against one (1) defendant or two (2) or moredefendants who may be treated as a single party; and
(2) tried to a jury.
(b) The court, unless all the parties agree otherwise, shall instructthe jury to determine its verdict in the following manner:
(1) The jury shall determine the percentage of fault of theclaimant, of the defendant, and of any person who is a nonparty.The jury may not be informed of any immunity defense that isavailable to a nonparty. In assessing percentage of fault, the juryshall consider the fault of all persons who caused or contributedto cause the alleged injury, death, or damage to property,tangible or intangible, regardless of whether the person was orcould have been named as a party. The percentage of fault ofparties to the action may total less than one hundred percent(100%) if the jury finds that fault contributing to cause theclaimant's loss has also come from a nonparty or nonparties.
(2) If the percentage of fault of the claimant is greater than fiftypercent (50%) of the total fault involved in the incident whichcaused the claimant's death, injury, or property damage, the juryshall return a verdict for the defendant and no furtherdeliberation of the jury is required.
(3) If the percentage of fault of the claimant is not greater thanfifty percent (50%) of the total fault, the jury then shalldetermine the total amount of damages the claimant would beentitled to recover if contributory fault were disregarded.
(4) The jury next shall multiply the percentage of fault of thedefendant by the amount of damages determined undersubdivision (3) and shall then enter a verdict for the claimant inthe amount of the product of that multiplication.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-8
Jury instructions; multiple defendants
Sec. 8. (a) This section applies to an action based on fault that: (1) is brought against two (2) or more defendants; and
(2) is tried to a jury.
(b) The court, unless all the parties agree otherwise, shall instructthe jury to determine its verdict in the following manner:
(1) The jury shall determine the percentage of fault of theclaimant, of the defendants, and of any person who is anonparty. The jury may not be informed of any immunitydefense that might be available to a nonparty. In assessingpercentage of fault, the jury shall consider the fault of allpersons who caused or contributed to cause the alleged injury,death, or damage to property, tangible or intangible, regardlessof whether the person was or could have been named as a party.The percentage of fault of parties to the action may total lessthan one hundred percent (100%) if the jury finds that faultcontributing to cause the claimant's loss has also come from anonparty or nonparties.
(2) If the percentage of fault of the claimant is greater than fiftypercent (50%) of the total fault involved in the incident whichcaused the claimant's death, injury, or property damage, the juryshall return a verdict for the defendants and no furtherdeliberation of the jury is required.
(3) If the percentage of fault of the claimant is not greater thanfifty percent (50%) of the total fault, the jury shall thendetermine the total amount of damages the claimant would beentitled to recover if contributory fault were disregarded.
(4) The jury next shall multiply the percentage of fault of eachdefendant by the amount of damages determined undersubdivision (3) and shall enter a verdict against each defendant(and such other defendants as are liable with the defendant byreason of their relationship to a defendant) in the amount of theproduct of the multiplication of each defendant's percentage offault times the amount of damages as determined undersubdivision (3).
As added by P.L.1-1998, SEC.47.
IC 34-51-2-9
Trial without jury; award of damages
Sec. 9. In an action based on fault that is tried by the court withouta jury, the court shall make its award of damages according to theprinciples specified for juries in sections 7 and 8 of this chapter.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-10
Intentional torts; full recovery of damages from convicteddefendant
Sec. 10. In the case of an intentional tort, the plaintiff may recoverone hundred percent (100%) of the compensatory damages in a civilaction for intentional tort from a defendant who was convicted aftera prosecution based on the same evidence.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-11
Forms of verdicts; disclosure requirements
Sec. 11. The court shall furnish to the jury forms of verdicts thatrequire only the disclosure of:
(1) the percentage of fault charged against each party andnonparty; and
(2) the amount of the verdict against each defendant.
If the evidence in the action is sufficient to support the charging offault to a nonparty, the form of verdict also shall require a disclosureof the name of the nonparty and the percentage of fault charged tothe nonparty.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-12
Contribution; indemnity
Sec. 12. In an action under this chapter (or IC 34-4-33 before itsrepeal), there is no right of contribution among tortfeasors. However,this section does not affect any rights of indemnity.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-13
Inconsistent verdicts
Sec. 13. In actions brought under this chapter (or IC 34-4-33before its repeal), whenever a jury returns verdicts in which theultimate amounts awarded are inconsistent with its determinations oftotal damages and percentages of fault, the trial court shall:
(1) inform the jury of such inconsistencies;
(2) order the jury to resume deliberations to correct theinconsistencies; and
(3) instruct the jury that the jury is at liberty to change anyportion or portions of the verdicts to correct the inconsistencies.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-14
Nonparty defense; assertion
Sec. 14. In an action based on fault, a defendant may assert as adefense that the damages of the claimant were caused in full or inpart by a nonparty. This defense is referred to in this chapter as anonparty defense.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-15
Nonparty defense; burden of proof
Sec. 15. The burden of proof of a nonparty defense is upon thedefendant, who must affirmatively plead the defense. However, thischapter does not relieve the claimant of the burden of proving thatfault on the part of the defendant or defendants caused, in whole orin part, the damages of the claimant.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-16
Nonparty defense; pleadings
Sec. 16. A nonparty defense that is known by the defendant whenthe defendant files the defendant's first answer shall be pleaded as apart of the first answer. A defendant who gains actual knowledge ofa nonparty defense after the filing of an answer may plead thedefense with reasonable promptness. However, if the defendant wasserved with a complaint and summons more than one hundred fifty(150) days before the expiration of the limitation of action applicableto the claimant's claim against the nonparty, the defendant shall pleadany nonparty defense not later than forty-five (45) days before theexpiration of that limitation of action. The trial court may alter thesetime limitations or make other suitable time limitations in anymanner that is consistent with:
(1) giving the defendant a reasonable opportunity to discoverthe existence of a nonparty defense; and
(2) giving the claimant a reasonable opportunity to add thenonparty as an additional defendant to the action before theexpiration of the period of limitation applicable to the claim.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-17
Nonparty defense; medical malpractice claims
Sec. 17. This section applies to a claim filed with the insurancecommissioner under IC 16-9.5 (before its repeal), IC 27-12 (beforeits repeal), or IC 34-18 against a qualified health care provider, withthe exception that the pleading of a nonparty defense, as required bysections 15 and 16 of this chapter must occur not later than ninety(90) days after the filing of the claim with the insurancecommissioner. However, this time limitation may be enlarged orshortened by a court having jurisdiction over the claim in such matteras will give:
(1) the qualified health care provider reasonable opportunity todiscover the existence of a nonparty defense; and
(2) the claimant reasonable opportunity to assert a claim againstthe nonparty before the expiration of the period of limitationapplicable to the claim.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-18
Actions against defendants who are qualified health care providersand who are not qualified health care providers; delay; joinder
Sec. 18. (a) This section applies to an action based on fault that isbrought by the claimant against:
(1) one (1) or more defendants who are qualified health careproviders under IC 34-18; and
(2) one (1) or more defendants who are not qualified health careproviders.
(b) Upon application of the claimant, the trial court shall grantreasonable delays in the action brought against those defendants who
are not qualified health care providers until the medical review panelprocedure can be completed as to the qualified health care providers.
(c) When an action is permitted to be filed against the qualifiedhealth care providers, the trial court shall permit a joinder of thequalified health care providers as additional defendants in the actionon file against the nonhealth care providers.
As added by P.L.1-1998, SEC.47.
IC 34-51-2-19
Liens or claims to diminish in same proportion as claimant'srecovery is diminished
Sec. 19. If a subrogation claim or other lien or claim that arose outof the payment of medical expenses or other benefits exists in respectto a claim for personal injuries or death and the claimant's recoveryis diminished:
(1) by comparative fault; or
(2) by reason of the uncollectibility of the full value of theclaim for personal injuries or death resulting from limitedliability insurance or from any other cause;
the lien or claim shall be diminished in the same proportion as theclaimant's recovery is diminished. The party holding the lien or claimshall bear a pro rata share of the claimant's attorney's fees andlitigation expenses.
As added by P.L.1-1998, SEC.47.