election of remedies doctrine in Indiana

2009Sadler responds by asserting that the election of remedies doctrine was designed to "prevent excessive and repetitive litigation" (citing Hoover v. Hearth & Home Design Center, Inc., 654 N.E.2d 744, 745 (Ind.1995)), and while designed to prevent double recovery by a claimant, the doctrine contemplates multiple remedies available to the claimant and does not prohibit pursuit of the same remedy against multiple parties.

2001Hoover v. Hearth & Home Design Center, Inc., 654 N.E.2d 744, 745 (Ind.1995).

2009Notwithstanding the above, Wood directs us to Cahoon v. Cummings, 734 N.E.2d 535, 542 (Ind.2000), where our Supreme Court discussed the election of remedies doctrine and determined that “a party who has two co-existing but inconsistent remedies and elects to pursue one remedy to a conclusion may not sue on the other remedy.” In light of this pronouncement, Wood claims that the constitutional determination of the punitive damages statute is necessary because he “must make a blind guess as to whether I.C. § 34-51-3-6 is constitutional in making his election of remedies between punitive and trebl

2009As the Cahoon Court observed, the election of remedies doctrine ordinarily applies “only when a party has elected to pursue one remedy to its conclusion and then attempts to pursue a subsequent claim on a second inconsistent theory.” 734 N.E.2d at 542 (emphasis added).

2000Moreover, the reformation claim did not, as the Petersons argue, invoke either the doctrine of election of remedies (which bars pursuit of a theory inconsistent with another theory prosecuted to a conclusion, Parke v. First National Bank of Elkhart, 571 N.E.2d 1317 (Ind.Ct.App.1991)), or of res judicata (which bars claims that were or could have been litigated on the merits in a prior proceeding between the same parties, U.S. Fidelity & Guaranty Co. v. DeFluiter, 456 N.E.2d 429 (Ind.Ct.App.1983)).

1999Bank of Elkhart, 571 N.E.2d 1317, 1319 (Ind.Ct.App.1991) (“The doctrine of election of remedies applies only where a party has chosen one remedy and later pursues another remedy which is repugnant to or inconsistent with the remedy selected.” (emphasis added)), reh’g denied, trans. denied; see also Farmers State Bank, 582 N.E.2d at 454 (stating that the doctrine of election of remedies “does not apply unless there are two or more coexistent remedies available to the litigant at the time of the election, from which a choice may be made, and one of which is chosen by the litigant.” (quoting Indi

1999It seeks to prevent double recovery. ⅜ ⅜ ⅜ ⅝ ⅜ That is all there is to the doctrine of election of remedies, viewed as a doctrine of the law of remedies rather than a pleading doctrine.” Olympia, 908 F.2d at 1371 (citations omitted).

1999It seeks to prevent double recovery. * * * * * That is all there is to the doctrine of election of remedies, viewed as a doctrine of the law of remedies rather than a pleading doctrine." Olympia, 908 F.2d at 1371 (citations omitted).

1999Bank of Elkhart, 571 N.E.2d 1317, 1319 (Ind.Ct.App.1991) (“The doctrine of election of remedies applies only where a party has chosen one remedy and later pursues another remedy which is repugnant to or inconsistent with the remedy selected.” (emphasis added)), reh’g denied, trans. denied; see also Farmers State Bank, 582 N.E.2d at 454 (stating that the doctrine of election of remedies “does not apply unless there are two or more coexistent remedies available to the litigant at the time of the election, from which a choice may be made, and one of which is chosen by the litigant.” (quoting Indi

1999Bank of Elkhart, 571 N.E.2d 1317, 1319 (Ind.Ct.App. 1991) ("The doctrine of election of remedies applies only where a party has chosen one remedy and later pursues another remedy which is repugnant to or inconsistent with the remedy selected." (emphasis added)), reh'g denied, trans. denied; see also Farmers State Bank, 582 N.E.2d at 454 (stating that the doctrine of election of remedies "does not apply unless there are two or more coexistent remedies available to the litigant at the time of the election, from which a choice may be made, and one of which is chosen by the litigant." (quoting IND

2010See UFG II, 848 N.E.2d at 365 (noting that specific performance is inconsistent with damages at law under the doctrine of election of remedies).

2010Our standard for equitable compensation is that a monetary award "be fairly and reasonably considered as naturally arising from a breach of contract, according to the usual course of things." Id. at 440 .

2008See, e.g., America’s Directories Inc., Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059, 1068 (Ind.Ct.App.2005); Smith v. Brown, 778 N.E.2d 490, 496 (Ind.Ct.App.2002); but see Safe Auto Ins.

2008See, e.g., America’s Directories Inc., Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059, 1068 (Ind.Ct.App.2005); Smith v. Brown, 778 N.E.2d 490, 496 (Ind.Ct.App.2002); but see Safe Auto Ins.

2003Chosnek v. Rolley, 688 N.E.2d 202, 207 (Ind.Ct.App.1997).

2000To support this claim, Hartig cites to an opinion denying rehearing in Cohoon wherein our supreme court allegedly "recognized that the election of remedies doctrine may apply even where there is not a final judgment." Reply Brief, p. 3; Cohoon v. Fisher, 146 Ind. at 588 , 45 N.E. 787 (1897).

2000To support this claim, Hartig cites to an opinion denying rehearing in Cohoon wherein our supreme court allegedly “recognized that the election of remedies doctrine may apply even where there is not a final judgment.” Reply Brief, p. 3; Cohoon v. Fisher, 146 Ind. at 588 , 45 N.E. 787 (1897).

1999June 30, 1999) slip op. at 16-27, - N.E.2d -, - - - (holding that plaintiff could pur *705 sue the inconsistent remedies prescribed by Indiana’s Wrongful Death Statute and Indiana’s Survivorship Statute but could not obtain a double recovery for the same injury); see also American International Adjustment Co. v. Galvin, 86 F.3d 1455, 1457 (7th Cir.1996) (noting that the doctrine of the election of remedies had been abolished under Fed.R.Civ.P. 8(e)(2) such that an Estate could prosecute inconsistent, alternate theories under Indiana’s Wrongful Death Statute and Survivorship Statute).

1998That provision “is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, hp is relieved of the prospect of large damage verdicts.” 6 Larson’s Workers’ Compensation Law, § 65.20 at 12-1 to 12-12 (1997); see also Baker, 637 N.E.2d at 1274 (“Workers compensation obviates the uncertainty, delay and expense of common law remedies by substituting a fixed compensation according to reimbursement sched *637 ules.”).

1995Burrus v. American Casualty Company, 518 F.2d 1267, 1269 (7th Cir.1975) (citing American Furniture Co. v. Town of Batesville (1894), 139 Ind. 77 , 38 N.E. 408 ).

1995See Tapia, supra at 1208 ; and Weldy, supra . [3] The Act provides, in pertinent part, that every employer and every employee, except as stated in I.C. 22-3-2 through I.C. 22-3-6, shall comply with provisions of I.C. 22-3-2 through I.C. 22-3-6 respectively to pay and accept compensation for personal injury or death arising out of and in the course of employment, and shall be bound thereby. [4] However, as indicated supra, by following the test set forth in Tapia and Weldy and determining that Hensler and Tippman were in the same employ at the time of Hensler's injuries, we conclude that no iss