Indiana case law on constructive fraud is, quite frankly, a mess. There are at least two types of constructive fraud. One form of constructive fraud requires five elements. The five elements include:

(i) a duty owing by the party to be charged to the complaining party due to their relationship; (ii) violation of that duty by the making of deceptive material misrepresentations of past or existing facts or remaining silent when a duty to speak exists; (iii) reliance thereon by the complaining party; (iv) injury to the complaining party as a proximate result thereof; and (v) the gaining of an advantage by the party to be charged at the expense of the complaining party.

Those injured may look to the utility for potential recovery. Electric cooperatives must be prepared to investigate and defend claims that may be brought even up to two years after the accident.

Electric cooperatives, like other utilities, typically have the authority to locate poles and structures in the road right-of-way. Often the available right-of-way is limited, resulting in the pole being close to the road’s edge. Some traffic safety engineers contend that utility poles (as well as mailboxes, bridge culverts, fences, trees, etc.) should be further from the roadway. A few of those safety engineers will testify against utilities in litigation..

In a recent Indiana Municipal law case, the presence of a police officer during the service of a wrongful eviction notice did not affect the police officer’s governmental employee immunity because the officer was present for the purpose of preventing a possible breach of the peace.

Mark Harness Jr. appealed from a grant of summary judgment in favor of the Town of Winona Lake and one of its police officers, Paul Schmitt. On January 12, 2007, Hunter Carlile went to the police station to enlist the help of Paul Schmitt to serve an eviction notice on Harness as well as to change the locks on Harness’s home. At the time, Harness was purchasing the house on contract from Carlile and had possession of the home. When Carlile and Schmitt arrived at the property, Harness was not present; however, Daniel Linton was. When Linton questioned the eviction, he noticed that Schmitt placed his hand on his gun. Linton decided not to resist or challenge the eviction because he felt threatened by Schmitt. So, Linton helped Carlile remove property from the house. Carlile also changed the locks.

The next question is what can employers do to protect their employees or to avoid being in the headlines for the CBS Evening News? Employees should have zero tolerance policy towards workplace violence against or by employees, whether the violence originates inside or outside the workplace. Employers should establish a workplace violence prevention program and incorporate that into an accident prevention program, employee handbook, and/or standard operating procedures.

An employer should consider establishing and implementing a written workplace violence prevention program that includes and/or provides for the following:

§ Workplace Violence Policy Statement (statement should include that there is zero tolerance for work place violence and encourage reporting without retaliation)
§ Management commitment and employee involvement (involvement by all and system of accountability)¹
§ Worksite analysis (identify existing hazards)
§ Hazard prevention and control (practice controls and procedures in the event of a violent incident)
§ Training and education for supervisors and employers
§ Incident reporting, investigation, follow up
§ Recordkeeping evaluation program (OSHA 300 log and analyze impact)

According to the Occupational Safety and Health Administration (“OSHA”), approximately 2 million American workers are victims of workplace violence each year. See www.osha.gov. In 2008, homicide was the third leading cause of fatal occupational injury in the U.S. and the second leading cause of death for females in the workplace. See Bureau of Labor Statistics, Census of Fatal Occupational Injuries Summary 2008, available at http://www.bls.gov/news.release/cfoi.nr0.htm.

The National Institute for Occupational Safety and Health (“NIOSH”) defines workplace violence as follows: “violence acts, including physical assaults and threats of assaults, directed towards a person at work or on duty.” See NIOSH, http://www.cdc.gov/niosh/about.html. OSHA expands the definition as follows: “Workplace violence is a physical assault, threatening behavior or verbal abuse occurring in the work setting. It includes, but is not limited to, beatings, stabbings, suicides, shootings, rapes, near suicides, psychological trauma, such as threats, obscene phone calls, and intimidating presence, harassment of any nature, such as being followed, sworn at or shouted at.” See OSHA, www.osha.gov.

The sad part about a catastrophe such as a fire is that it leaves the insured always in a worse position than they were before the fire. In addition to the obvious emotional toll, the time needed to devote to the developing of a claim is substantial and impossible to replace. Additional living expense, usually a maximum of $5,000.00, would provide some immediate cash to replace clothing and living essentials necessary within a few days of the fire. Then comes the issue of where does the insured live? Initially there would be accommodations provided by the insurance company in a hotel that may or may not be adequate for the insured’s needs. Longer term requirements include the renting of a house or other facilities, as well as furniture and household goods necessary to maintain a living during the pendency of the claim. Depending upon the policy, additional living expenses can be for a “reasonable period of time” or a specific limitation of one year or more depending upon the terms of the contract.

Insurance provided by any fire insurance policy is either an indemnification policy that indemnifies the insured for the loss, or a replacement policy. Depending on coverage, the loss can be based on the actual cash value of the property loss or on the replacement cost of rebuilding and replacing the lost buildings and property.

The actual cash value of property typically is not defined in the policy. Indiana courts employ the “Broad Evidence Rule” to determine the actual cash value of property subject to a loss. See, Travelers Insurance Co. v. Armstrong, 442 N.E.2d 352 (1982). In simplest terms, this means that any information that is available to the insured can be included in a determination of what constitutes actual cash value. The insurance company will attempt to limit the actual cash value to the cost of the item less depreciation. It is a mistake to let them determine the actual cash value on that basis. For example, a couch lost in a fire in a home with four active children has had a lot more wear and tear and the actual cash value is significantly reduced when compared to the same couch purchased at the same time by an elderly, retired couple. Actual cash value should be determined on a case-by-case, item-by-item basis and not by broad determinations of depreciation as determined by the insurance company’s adjuster for each item in the loss.

Within a day or so of the fire, an insurance adjustor will provide to the insured claims forms for what is called the “Proof of Loss.” The Proof of Loss itself is a one page document in which the insured summarizes the amount of the loss and then signs it and swears to it that it is accurate and does not contain any fraud, etc. The insured needs to be careful when sending in the Proof of Loss and must make sure that it is reasonably accurate. This does not mean, however, that the Proof of Loss can’t be amended; it can and should if new evidence indicates that the loss is greater than initially anticipated. Also along with the Proof of Loss will be a great many pages of forms provided by the insurance company in which the insured is obligated to identify the items of personal property that were lost in the course of the fire as well as the extent of the damage to the structure.

If, after taking the statement under oath and conversing with the fire or police authorities, the insurance adjustor calls in the Special Investigations Unit (SIU), look out. It’s time to seriously begin protecting your own interests. The insurance company’s SIU investigator is there for the sole purpose of attempting to find the cause and origin of the fire to be the insured and to deny coverage. That is the sole purpose of his existence. If not before, it is now time for the insured to hire a cause and origin expert of his own to obtain a balanced approach to determining the cause and origin of the fire. In order to do so, it is important that the fire scene remain intact and no efforts be made for cleanup until your investigator has an opportunity to view the fire scene. There are many competent cause and origin investigators available.

There will be one, and very well may be two insurance adjustors assigned to your claim. One adjustor may specialize in structural damage while a second adjustor may deal with the loss of household goods and personal property.

It is now time for you to be careful. In many instances, indeed most instances, the insurance adjustor may very well show up at the scene with a contractor or a company that specializes in dealing with insured fire claims. The first step will be securing the premises and preserving the remains of the fire for two purposes. First, for making the determination as to the cause and origin of the fire, and secondly, to make an initial determination as to the personal property, furniture, household goods and appliances that the insured owns and may be the subject of future adjustment to the claim.

The insurance agent has dictated the information contained in the application, photographs submitted to the company, and the desires of the insured to obtain maximum coverage. It is important, on the other hand, that the coverage provided has a relationship with the fair market value or actual cash value of the building being insured. That is to say, if the building is over-insured for its value, the insured may bear some of the risk of the loss, or have coverage denied. The same is true if the building is insured for less than its actual cash value as then the 80/20 provision applies which dictates that the insurance coverage must be at least 80% of the actual cash value of the property.

Short of a death or serious personal injury, the most devastating thing that can befall a family is to have their home or business destroyed by fire. It is hard to imagine the emotional upheaval to stand by and watch the fire department attempt to save your hopes and dreams as they go up in smoke. It is at this juncture you would expect your homeowners or commercial insurance policies to step in and provide the protection for which you have paid insurance premiums for those many years. Unfortunately, there are many pitfalls which you must be aware of if you are going to protect your interests and receive just compensation from the insurance company for the loss that you have suffered. It is important to understand that the damage to your home or business is not only caused by the fire, it is also caused by the smoke, the water and the destruction created by the fire department in an attempt to put out the flames. As the fire department leaves the scene, your thoughts must go from the smoldering ashes to what’s next.

House Enrolled Act 1065 authorizes individuals to bring a civil action against any employer or other person who has violated this statute by attempting to enforce an ordinance, regulation or policy against firearms locked in an employee’s vehicle. A civil action can result in actual damages, costs, attorney fees and an injunction against the employer. The statute, however, specifically prohibits the jurisdiction of the court for an action against an employer who complies with the statute (presumably an action brought by an individual who is harmed by an employee who brings a firearm to work although that section is not clear).

The statements contained herein are for informational purposes 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.

The EEOC guidance states that a waiver in a severance agreement will generally be valid when the employee “knowingly and voluntarily consents to the waiver.” To determine whether the employee actually did know of and voluntarily waived his or her potential discrimination claims, most courts look beyond the language of the contract and consider the totality of the circumstances in order to determine whether the employee knowingly and voluntarily waived his or her right to sue. The following factors have been used by courts to determine the totality of the circumstances: (1) whether it was written in a manner that was clear and specific enough for the employee to understand based on his or her education and business experience; (2) whether it was induced by fraud, duress, undue influence or other improper conduct by the employer; (3) whether the employee had enough time to read and think about the advantages and disadvantages of the agreement before signing it; (4) whether the employee consulted with an attorney or was encouraged or discouraged by the employer from doing so; (5) whether the employee had any input in negotiating the terms of the agreement; and (6) whether the employer offered the employee consideration that exceeded what the employee already was entitled to by law or contract and the employee accepted the offered consideration.