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 is
brought to recover damages for injury or death to a person or harm
to property, except as provided in subsection (b).
(b) This chapter does not apply to an action:
(1) brought against a qualified health care provider under
IC 16-9.5 (before its repeal), IC 27-12 (before its repeal), or
IC 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 claims
against 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 34-4-33
before 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, a
defendant may be treated along with another defendant as a single
party where recovery is sought against that defendant not based upon
the defendant's own alleged act or omission but upon the defendant's
relationship 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 fault
chargeable to the claimant diminishes proportionately the amount
awarded as compensatory damages for an injury attributable to the
claimant's contributory fault, but does not bar recovery except as
provided 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 single
party;
the claimant is barred from recovery if the claimant's contributory
fault is greater than the fault of all persons whose fault proximately
contributed to the claimant's damages.
(b) In an action based on fault that is brought against two (2) or
more defendants, the claimant is barred from recovery if the
claimant's contributory fault is greater than the fault of all persons
whose 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 more
defendants who may be treated as a single party; and
(2) tried to a jury.
(b) The court, unless all the parties agree otherwise, shall instruct
the jury to determine its verdict in the following manner:
(1) The jury shall determine the percentage of fault of the
claimant, of the defendant, and of any person who is a nonparty.
The jury may not be informed of any immunity defense that is
available to a nonparty. In assessing percentage of fault, the jury
shall consider the fault of all persons who caused or contributed
to cause the alleged injury, death, or damage to property,
tangible or intangible, regardless of whether the person was or
could have been named as a party. The percentage of fault of
parties to the action may total less than one hundred percent
(100%) if the jury finds that fault contributing to cause the
claimant's loss has also come from a nonparty or nonparties.
(2) If the percentage of fault of the claimant is greater than fifty
percent (50%) of the total fault involved in the incident which
caused the claimant's death, injury, or property damage, the jury
shall return a verdict for the defendant and no further
deliberation of the jury is required.
(3) If the percentage of fault of the claimant is not greater than
fifty percent (50%) of the total fault, the jury then shall
determine the total amount of damages the claimant would be
entitled to recover if contributory fault were disregarded.
(4) The jury next shall multiply the percentage of fault of the
defendant by the amount of damages determined under
subdivision (3) and shall then enter a verdict for the claimant in
the 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 instruct
the jury to determine its verdict in the following manner:
(1) The jury shall determine the percentage of fault of the
claimant, of the defendants, and of any person who is a
nonparty. The jury may not be informed of any immunity
defense that might be available to a nonparty. In assessing
percentage of fault, the jury shall consider the fault of all
persons who caused or contributed to cause the alleged injury,
death, or damage to property, tangible or intangible, regardless
of whether the person was or could have been named as a party.
The percentage of fault of parties to the action may total less
than one hundred percent (100%) if the jury finds that fault
contributing to cause the claimant's loss has also come from a
nonparty or nonparties.
(2) If the percentage of fault of the claimant is greater than fifty
percent (50%) of the total fault involved in the incident which
caused the claimant's death, injury, or property damage, the jury
shall return a verdict for the defendants and no further
deliberation of the jury is required.
(3) If the percentage of fault of the claimant is not greater than
fifty percent (50%) of the total fault, the jury shall then
determine the total amount of damages the claimant would be
entitled to recover if contributory fault were disregarded.
(4) The jury next shall multiply the percentage of fault of each
defendant by the amount of damages determined under
subdivision (3) and shall enter a verdict against each defendant
(and such other defendants as are liable with the defendant by
reason of their relationship to a defendant) in the amount of the
product of the multiplication of each defendant's percentage of
fault times the amount of damages as determined under
subdivision (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 without
a jury, the court shall make its award of damages according to the
principles 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 convicted
defendant
Sec. 10. In the case of an intentional tort, the plaintiff may recover
one hundred percent (100%) of the compensatory damages in a civil
action for intentional tort from a defendant who was convicted after
a 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 that
require only the disclosure of:
(1) the percentage of fault charged against each party and
nonparty; and
(2) the amount of the verdict against each defendant.
If the evidence in the action is sufficient to support the charging of
fault to a nonparty, the form of verdict also shall require a disclosure
of the name of the nonparty and the percentage of fault charged to
the 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 its
repeal), 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 34-4-33
before its repeal), whenever a jury returns verdicts in which the
ultimate amounts awarded are inconsistent with its determinations of
total 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 the
inconsistencies; and
(3) instruct the jury that the jury is at liberty to change any
portion 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 a
defense that the damages of the claimant were caused in full or in
part by a nonparty. This defense is referred to in this chapter as a
nonparty 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 the
defendant, who must affirmatively plead the defense. However, this
chapter does not relieve the claimant of the burden of proving that
fault on the part of the defendant or defendants caused, in whole or
in 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 when
the defendant files the defendant's first answer shall be pleaded as a
part of the first answer. A defendant who gains actual knowledge of
a nonparty defense after the filing of an answer may plead the
defense with reasonable promptness. However, if the defendant was
served with a complaint and summons more than one hundred fifty
(150) days before the expiration of the limitation of action applicable
to the claimant's claim against the nonparty, the defendant shall plead
any nonparty defense not later than forty-five (45) days before the
expiration of that limitation of action. The trial court may alter these
time limitations or make other suitable time limitations in any
manner that is consistent with:
(1) giving the defendant a reasonable opportunity to discover
the existence of a nonparty defense; and
(2) giving the claimant a reasonable opportunity to add the
nonparty as an additional defendant to the action before the
expiration 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 insurance
commissioner under IC 16-9.5 (before its repeal), IC 27-12 (before
its repeal), or IC 34-18 against a qualified health care provider, with
the exception that the pleading of a nonparty defense, as required by
sections 15 and 16 of this chapter must occur not later than ninety
(90) days after the filing of the claim with the insurance
commissioner. However, this time limitation may be enlarged or
shortened by a court having jurisdiction over the claim in such matter
as will give:
(1) the qualified health care provider reasonable opportunity to
discover the existence of a nonparty defense; and
(2) the claimant reasonable opportunity to assert a claim against
the nonparty before the expiration of the period of limitation
applicable 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 providers
and who are not qualified health care providers; delay; joinder
Sec. 18. (a) This section applies to an action based on fault that is
brought by the claimant against:
(1) one (1) or more defendants who are qualified health care
providers under IC 34-18; and
(2) one (1) or more defendants who are not qualified health care
providers.
(b) Upon application of the claimant, the trial court shall grant
reasonable delays in the action brought against those defendants who
are not qualified health care providers until the medical review panel
procedure can be completed as to the qualified health care providers.
(c) When an action is permitted to be filed against the qualified
health care providers, the trial court shall permit a joinder of the
qualified health care providers as additional defendants in the action
on 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's
recovery is diminished
Sec. 19. If a subrogation claim or other lien or claim that arose out
of the payment of medical expenses or other benefits exists in respect
to a claim for personal injuries or death and the claimant's recovery
is diminished:
(1) by comparative fault; or
(2) by reason of the uncollectibility of the full value of the
claim for personal injuries or death resulting from limited
liability insurance or from any other cause;
the lien or claim shall be diminished in the same proportion as the
claimant's recovery is diminished. The party holding the lien or claim
shall bear a pro rata share of the claimant's attorney's fees and
litigation expenses.
As added by P.L.1-1998, SEC.47.