Indiana Summary Judgment Standard Changing?
by: Arend J. Abel, Attorney
On February 10, the Indiana Court of Appeals issued an opinion that has the potential to remake summary judgment procedure in the Indiana state courts. The opinion, Commissioner of the Indiana Department of Insurance v. Estate of Black, No. 64A05-1104-CT-240, holds that a party moving for summary judgment is not required to negate an element of the opponent’s case, but can simply assert that the opponent does not have enough evidence to create a jury question on one or more elements. That holding appears to conflict with the decision of the Indiana Supreme Court in Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind. 1994), and review of the issue by the Indiana Supreme Court on transfer, either in Black or in another case now seems highly likely.
More than twenty-five years ago, the United States Supreme Court adopted the “no evidence” summary judgment procedure under Fed. R. Civ. P. 56 in Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Eight years later, the Indiana Supreme Court decided Jarboe and explicitly refused to follow Celotex. The Indiana Supreme Court in Jarboe held that “Under Indiana’s standard, the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence.” 644 N.E.2d at 123 (Ind. 1994). “In this respect,” the Jarboe decision explained, “Indiana’s summary judgment procedure abruptly diverges from federal summary judgment practice. Under the federal rule, the party seeking summary judgment is not required to negate an opponent’s claim.” Id. The Court then held “Indiana does not adhere to Celotex and the federal methodology.” Id.
Six years later, then-Justice Boehm and Chief Justice Shepard urged the court to permit “no evidence” summary judgment motions, in at least some circumstances. Lenhardt Tool & Die Co., Inc. v. Lumpe, 722 N.E.2d 824, 825 (Ind. 2000) (Boehm, J. dissenting from the denial of transfer). However, a majority of the Court refused to do so. Although Justice Boehm suggested that doing so would represent merely a clarification of Jarboe, it is difficult to view such a step as anything less than a practical overruling of the case.
Now, in Black, the Indiana Court of Appeals has taken up the cause, stating that “Today, we accept Justice Boehm’s views on this subject expressed in his dissent from the denial of transfer in Lenhardt Tool & Die Co., Inc. as the better reasoned interpretation of Indiana Trial Rule 56 and explicitly adopt it to apply it to the unique circumstances before us.” Ironically, although adopting the Lenhardt/Celotex standard for finding the absence of a genuine issue of material fact, the Court in Black held that there was in fact a genuine issue precluding summary judgment. Specifically, the Court held that the plaintiff in a medical malpractice case had not satisfied his burden of showing entitlement to reach the Patient’s Compensation Fund because he had not produced a copy of a settlement agreement that would have permitted plaintiff to do so. The court could simply have held that there was a genuine issue of fact on the issue absent evidence establishing plaintiff’s claim, without the need to address the tension between Jarboe and Celotex. Thus, there is a good argument that the discussion and adoption of the new standard was not necessary to the opinion. Still, until the Supreme Court grants transfer, litigants and lower courts will be left to wonder what sort of showing is necessary to obtain summary judgment in the Indiana State Courts.