Indiana’s Commercial Courts: A New Forum to Resolve Construction Disputes

In 2016, Indiana established commercial courts in certain counties throughout the state. These courts apply special rules designed to make the resolution of commercial disputes more efficient. In addition, judges presiding over these courts receive specialized training to prepare them to address issues that frequently arise in commercial disputes. These procedures and training make Indiana’s commercial courts an attractive place to resolve construction disputes. 

The Rationale

In Indiana’s state courts most judges hear both civil and criminal cases. In some larger counties, such as Marion County, the courts are a bit more specialized as they are divided into criminal and civil divisions, but on a typical morning, a civil judge may hear arguments regarding a slip and fall tort case, a child custody issue and a million dollar commercial dispute. Each of these cases presents vastly disparate issues and must be managed differently by the judge, especially with respect to discovery. In the last 20 years many states have formed commercial courts, applying special procedures designed to more efficiently resolve commercial disputes, with the goal of making the state more business friendly. In the Midwest, Michigan, Ohio and Wisconsin have formed commercial courts.

Indiana debuted its commercial courts in 2016 via the Indiana Commercial Court Pilot Project. The Project implemented commercial court dockets in six courts throughout the state, located in Allen, Floyd, Elkhart, Lake, Marion and Vanderburgh counties. The purposes of the Commercial Courts, as articulated by the Indiana Supreme Court, are to:
 

1. Establish judicial structures that will help all court users by improving court efficiency;
2. Allow business and commercial disputes to be resolved with expertise, technology, and efficiency;
3. Enhance the accuracy, consistency, and predictability of decisions in business and commercial cases;
4. Enhance economic development in Indiana by furthering the efficient, predictable resolution of business and commercial law disputes; and
5.  Employ and encourage electronic information technologies, such as e-filing, e-discovery, telephone/video conferencing, and also employ early alternative dispute resolution interventions, as consistent with Indiana law.

Since its inception, more than 300 cases have been filed in the commercial courts, with over 60 percent filed in Marion County. See Indiana Commercial Court Final Report and Recommendations (Nov. 1, 2018). While personal injury lawsuits related to construction projects cannot be heard in the commercial courts, other construction-related disputes do qualify, such as breach of contract, breach of warranty and mechanic’s lien claims. At least ten lawsuits related to construction projects have been filed in the commercial courts, including a number of multi-million dollar disputes involving high profile Central Indiana projects.
 
The Procedures
 
One advantage of commercial courts is the expertise of the six judges participating in the pilot program. All have extensive experience handling commercial disputes. In addition, they receive training on matters relevant to commercial disputes such as e-discovery. Unlike most state court judges, commercial court judges have clerks to help them address motions and other issues. As a result, commercial courts typically rule on motions very quickly, which helps move the litigation along. For instance, on average, commercial courts rule on motions for summary judgment within 24 days, which compares favorably to other courts.

Special procedures designed to efficiently advance the litigation are also used in the commercial court, including the following:
 

• Discovery must not only be relevant to a claim or defense but also proportional to the needs of the case. This rule can be used to limit costly requests for electronic data.

• Like the federal rules, depositions are limited to ten per party, with a seven hour limit on each deposition.

• The court holds an initial case management conference 30 to 60 days after the case is filed to discuss the issues in an effort to create a plan that will expeditiously move the case forward.

The commercial courts also have broader powers than traditional state courts to appoint special masters to address issues requiring technical knowledge. At this point, the parties must consent to the appointment of a special master. However, a pending rule change would allow the court to appoint a special master without the parties consent if it believes (1) the appointment will materially assist the court in resolving the case and (2) the anticipated costs of the special master are proportionate to the value of the case and are not unduly burdensome to any party.

How to Have Your Dispute Heard by a Commercial Court
 
The easiest way to have your next dispute heard in an Indiana commercial court is to stipulate to it as the dispute resolution forum in your contracts. The provision should state that lawsuits will be resolved in state court and assigned to a commercial court. Even lawsuits involving projects outside the six counties where the commercial courts are based can be assigned to a commercial court provided the parties agree to it.

Like any dispute resolution provision, it is important to make sure each project participant stipulates to the same forum for dispute resolution. Otherwise, related disputes on a project could end up in different forums, leading to duplication of efforts and a risk of inconsistent results.

Disputes may be heard in a commercial court even if the parties did not identify it as the dispute resolution forum in the contract. To do so, when a case is filed, the plaintiff must request it be docketed in the commercial court, and if the defendant does not object within 30 days, then the case remains in the court. However, if the defendant objects, then the case will be moved off the commercial court docket and into another court employing traditional procedures. 

The commercial courts are authorized until May 30, 2019. It is anticipated that in the near future this term will be extended for a few more years. Eventually, they may be made permanent. Given the expertise of the judges and their procedures designed to expeditiously address commercial disputes, you should consider resolving your next construction dispute in Indiana’s commercial courts.

Nate Uhl and Rebecca Seamands are attorneys with Ice Miller LLP. Ice Miller's Construction Practice is ranked as a National Tier 1 Practice in U.S. News & World Reports' Best Law Firms. Uhl and Seamands practice construction law with a focus on assisting clients in preparing and negotiating construction and design contracts as well as handling construction disputes. Seamands can be reached at rebecca.seamands@icemiller.com or (317) 236-5889, and Uhl can be reached at nate.uhl@icemiller.com or (317) 236-2383.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.