                                                                          FILED
                                                                  Aug 19 2019, 9:00 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
Jerry Garau                                                Curtis T. Hill, Jr.
Barbara J. Germano                                         Attorney General of Indiana
Garau Germano, P.C.                                        Thomas M. Fisher
Indianapolis, Indiana                                      Solicitor General
                                                           Bryan R. Findley
                                                           Julia C. Payne
                                                           Mollie A. Slinker
                                                           Kian J. Hudson
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana
                                                           A. Richard M. Blaiklock
                                                           Charles R. Whybrew
                                                           Lewis Wagner, LLP
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Garau Germano, P.C., and                                   August 19, 2019
Faith Fenner,                                              Court of Appeals Case No.
Appellants-Plaintiffs,                                     18A-CT-2739
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable James A. Joven,
Stephen W. Robertson                                       Judge
(Commissioner of the Indiana                               Trial Court Cause No.
Department of Insurance and                                49D13-1710-CT-37220
Administrator of the Indiana
Patient’s Compensation Fund),
Indiana Department of


Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                           Page 1 of 23
      Insurance, and Indiana Patient’s
      Compensation Fund,
      Appellees-Defendants.



      Mathias, Judge.


[1]   The law firm of Garau Germano, P.C., (“Garau Germano”) and its client Faith

      Fenner (“Fenner”) (collectively “the Plaintiffs”) filed a complaint for

      declaratory judgment and mandate against the Indiana Patient’s Compensation

      Fund (“PCF”), the Indiana Department of Insurance (“IDOI”), and Stephen

      W. Robertson, the Commissioner of the IDOI and the Administrator of the

      PCF (“the Commissioner”) (collectively “the Fund Defendants”). In their

      complaint, the Plaintiffs sought to prevent the Fund Defendants from requiring

      that a claimant’s periodic payments agreement with a qualified health care

      provider pay out the provider’s maximum liability under the Indiana Medical

      Malpractice Act (“MMA”) before the claimant can gain access to the PCF. The

      Plaintiffs appeal the trial court’s order granting the Fund Defendant’s motion to

      dismiss and present three issues for our review, which we reorder and restate as:


        I.    Whether the Plaintiffs’ claim for declaratory judgment is ripe for review;
       II.    Whether the Plaintiffs’ claim is justiciable under the Declaratory
              Judgments Act; and
      III.    Whether Fenner, individually, and Garau Germano, on its own behalf,
              have standing to bring a complaint for mandate against the Fund
              Defendants seeking to force them to comply with what they contend to
              be the requirements of the MMA.



      Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019       Page 2 of 23
[2]   We affirm.


                                             Statement of Facts1
[3]   Garau Germano is a law firm that represents over one hundred clients with

      medical malpractice claims, one of whom is Fenner. Garau Germano’s fees are

      based on the amount its clients recover from the health care providers and the

      PCF. At the time of the Plaintiffs’ complaint in the instant case, Fenner was

      seventy-three years old. Represented by Garau Germano, Fenner is pursuing a

      claim for medical malpractice under the MMA, alleging that her husband’s

      death in February 2016 was caused by the negligence of various qualified health

      care providers.

[4]   The MMA, codified at Title 34, Article 18 of the Indiana Code, allows a patient

      or the representative of a patient to bring a malpractice claim for bodily injury

      or death. Atterholt v. Robinson, 872 N.E.2d 633, 639 (Ind. Ct. App. 2007) (citing

      Ind. Code § 34-18-8-1; Goleski v. Fritz, 768 N.E.2d 889, 891 (Ind. 2002)). The

      MMA was designed to curtail liability for medical malpractice. Id. (citing

      Chamberlain v. Walpole, 822 N.E.2d 959, 963 (Ind. 2005)).


[5]   For an act of malpractice that occurs after June 30, 1999 and before July 1,

      2017,2 such as the malpractice alleged by Fenner, the MMA provides that the



      1
       We take the facts from the Plaintiffs’ complaint as true. Thomas v. Blackford Cty. Area Bd. of Zoning Appeals,
      907 N.E.2d 988, 990 (Ind. 2009) (citing Huffman v. Ind. Office of Envtl. Adjudication, 811 N.E.2d 806, 814 (Ind.
      2004)).
      2
        Indiana Code section 34-18-14-3 was amended effective July 1, 2017 to provide that, for acts of malpractice
      that occur after June 30, 2017 but before July 1, 2019, the total amount recoverable for an injury or death of a

      Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                                 Page 3 of 23
      total amount recoverable for an injury or death of a patient may not exceed

      $1,250,000. Ind. Code § 34-18-14-3(a)(3). A qualified health care provider is

      liable for the initial $250,000 of damages,3 and the remainder of the judgment or

      settlement amount is paid from the PCF.4 Id. § 34-18-14-3(b)(1), (c); Robinson,

      872 N.E.2d at 639. Thus, if a plaintiff obtains a judgment against a health care

      provider in excess of this $250,000 limit, the remainder of the judgment, up to

      $1,000,000 (for a total recovery of $1,250,000), is paid from the PCF. See M.O.

      v. Ind. Dep’t of Ins. Patient’s Comp. Fund, 968 N.E.2d 254, 259 (Ind. Ct. App.

      2012) (citing Atterholt v. Herbst, 902 N.E.2d 220, 222 (Ind. 2009), clarified on

      reh’g, 907 N.E.2d 528 (2009)), trans. denied.


[6]   If a health care provider decides to settle a claim with a plaintiff, there are two

      ways in which that plaintiff may be eligible to recover additional damages from

      the PCF. The provider may simply pay the first $250,000. Green v. Robertson, 56

      N.E.3d 682, 691 (Ind. Ct. App. 2016) (citing Ind. Code § 34-18-15-3(b)), trans.

      denied. The provider may alternatively agree to a settlement involving what is

      termed a periodic payments agreement.5 If a provider opts to discharge its



      patient may not exceed $1,650,000. Id. at § 3(a)(4). And for acts of malpractice that occur after June 30, 2019,
      the total amount recoverable may not exceed $1,800,000. Id. at § 3(a)(5).
      3
        For acts of malpractice that occur after June 30, 2017 but before July 1, 2019, a qualified health care
      provider is liable for the first $400,000, and for acts occurring after June 30, 2019, the provider is liable for the
      first $500,000. Id. at § 3(b)(1), (3).
      4
       The IDOI, which administers the PCF, funds the PCF by levying an annual surcharge on all health care
      providers. See Ind. Code §§ 34-18-5-1 to 35-18-5-4.
      5
          A “periodic payments agreement” is defined by statute as:
               a contract between a health care provider (or its insurer) and the patient (or the patient’s estate),
               under which the health care provider is relieved from possible liability in consideration of:

      Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                                     Page 4 of 23
      possible liability through such a periodic payments agreement, then “the

      amount of the patient’s recovery from a health care provider in a case under this

      subsection is the amount of any immediate payment made by the health care

      provider or the health care provider’s insurer to the patient, plus the cost of the

      periodic payments agreement to the health care provider or the health care

      provider’s insurer.” Ind. Code § 34-18-14-4(b).

[7]   In cases, such as this one, where the act of malpractice occurred after June 30,

      1999 but before July 1, 2017, to determine the limitations on recovery stated in

      Indiana Code subsections 34-18-14-3(b) and -(3)(d):


               the sum of the present payment of money to the patient (or the
               patient’s estate) by the health care provider (or the health care
               provider’s insurer) plus the cost of the periodic payments
               agreement expended by the health care provider (or the health
               care provider’s insurer) must exceed:

                   (1) one hundred eighty-seven thousand dollars ($187,000)[.]


      I.C. § 34-18-14-4(b).6




               (1) a present payment of money to the patient (or the patient’s estate); and
               (2) one (1) or more payments to the patient (or the patient’s estate) in the future;
            whether or not some or all of the payments are contingent upon the patient’s survival to the
            proposed date of payment.
      Ind. Code § 34-18-14-2.
      6
        If a provider opts to enter into a periodic payments plan to discharge its possible liability for an act of
      malpractice that occurs after June 30, 2017, the limitation on recovery is “(2) seventy-five percent (75%) of
      the maximum amount a health care provider is responsible for under section 3(b) and 3(d) of this chapter[.]”

      Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                               Page 5 of 23
[8]   In other words, to determine whether a provider has reached the limits on its

      liability, thereby triggering access to the PCF, the total cost of the present

      payment to the patient plus the cost of procuring a periodic payments

      agreement must exceed $187,000. See Herbst, 902 N.E.2d at 222 (“Recovery of

      excess damages from the Fund is allowed only after a health care provider or

      the provider’s insurer has paid the first $250,000, or made a settlement in which

      the sum of the present cash payment and cost of future periodic payments

      exceeds $187,000.”) (citations omitted); Green, 56 N.E.3d at 691 (noting that a

      claimant may gain access to the PCF by agreeing to a settlement in which the

      present payment of money and the cost of future payments exceeds $187,000)

      (citing Ind. Code § 34-18-14-4(b)).

[9]   The Plaintiffs claim that the Fund Defendants do not follow the language of the

      statute as explained in Herbst and Green and impose an additional non-statutory

      requirement before allowing a claimant access to the PCF. Specifically, they

      allege that the Fund Defendants also require that a periodic payments

      agreement pay out the provider’s maximum liability before allowing a claimant

      to access the PCF. In other words, not only must the cost of the present

      payment plus the cost to procure a periodic payments agreement exceed

      $187,000, but the amount of the present payment plus total amount paid out

      over time must also equal $250,000.7




      7
       Garau Germano sent a letter to the IDOI’s counsel advising it of Garau Germano’s interpretation of the
      periodic payments statute. In response, the IDOI informed Garau Germano that the Fund Defendants would

      Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                        Page 6 of 23
[10]   The Plaintiffs assert that the MMA does not require a periodic payments

       agreement to pay out the health care provider’s maximum liability and instead

       contend that a claimant may gain access to the PCF merely by entering into a

       settlement agreement where the present payment, plus the cost to the provider

       to procure a period payments agreement, costs more than $187,000. See Herbst,

       902 N.E.2d at 222; Green, 56 N.E.3d at 691.


[11]   Such periodic payments are usually procured by the provider purchasing an

       annuity.8 Interest rates are now very low. Thus, in order to purchase an annuity

       where any present payment plus the total amount paid out of the annuity over

       time amounts to $250,000 requires the future payments to be paid out over

       decades. This is an issue with an elderly plaintiff such as Fenner, who, in order

       to gain access to the PCF, might agree to a settlement including an annuity that

       would not pay out over her expected lifetime. This, the Plaintiffs contend,

       “forces older claimants to forfeit a portion of a recovery which is already

       limited by the terms of the [MMA],” whereas “younger victims of medical

       malpractice can structure their annuities in such a way that they likely will

       receive the payments in their lifetime[.]” Appellants’ Br. at 10.




       not grant claimants access to the PCF “unless the periodic payments agreement results in a payout of the
       health care provider’s maximum liability.” Appellants’ App. p. 34.
       8
         Both parties agree that a common arrangement in such cases includes the immediate payment of $150,000
       to the claimant plus purchasing an annuity for $37,001 that will, over time, pay out the remaining $100,000.
       This meets the $250,000 limit required of provider liability and, according to the Fund Defendants’
       interpretation, triggers access to the PCF.

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                              Page 7 of 23
[12]   Garau Germano alleges that it often settles claims with health care providers

       via periodic payments agreements that grant its clients access to the PCF.

       Garau Germano represents Fenner and many similarly situated clients “who

       face the effective forfeiture of a portion of their already limited settlements

       because of the Fund Defendants’ requirement that periodic payments

       agreements pay out the health care provider’s maximum liability.” Id. at 11.

       Because of the Fund Defendants’ policy, Garau Germano claims that it cannot

       advise its clients to accept a periodic payments agreement that costs over

       $187,000 but that does not pay out the health care provider’s maximum liability

       over time.


[13]   Fenner claims she is therefore unable to evaluate any potential settlement offers

       or options because of the Fund Defendants’ interpretation of the MMA. Fenner

       alleges that if she were to purchase an annuity as part of a settlement, she “may

       be required to essentially forfeit a portion of any settlement she receives from

       the defendant health care providers in her action.” Appellants’ App. p. 35. She

       does not, however, allege that she has received any actual settlement offers.


                                            Procedural History
[14]   On October 3, 2017, Garau Germano filed a verified complaint for mandate

       against the Fund Defendants, which sought a mandate to prohibit them from

       requiring that a claimant’s periodic payments agreement pay out the health care

       provider’s maximum liability before granting that claimant access to the PCF.




       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019        Page 8 of 23
[15]   On January 12, 2018, the Fund Defendants filed a motion to dismiss Garau

       Germano’s complaint for lack of standing. In response, on March 20, 2018,

       Garau Germano filed an amended complaint, adding Fenner as a plaintiff and

       the Commissioner as a defendant. The amended complaint also included a

       request for declaratory judgment. On April 29, 2018, the Fund Defendants

       again moved to dismiss the complaint.

[16]   The trial court held a hearing on the motion to dismiss on August 14, 2018, and

       issued an order dismissing the case on October 26, 2018. The trial court

       concluded that Garau Germano lacked standing to bring the suit, that Fenner’s

       claim was not ripe for review because she had not alleged that she was entitled

       to access to the PCF, and that the Plaintiffs’ claims were not the appropriate

       subject of an action for mandate because they were not alleging that they were

       entitled to a ministerial act. The Plaintiffs now appeal.


                                           Standard of Review

[17]   The trial court granted the Fund Defendants’ motion to dismiss, filed pursuant

       to Indiana Trial Rule 12(B)(6), for failure to state a claim upon which relief

       could be granted. We have noted before that:


               Indiana Trial Rule 12(B)(6) tests the legal sufficiency of a claim,
               rather than the facts supporting it. We review a trial court’s grant
               or denial of a Trial Rule 12(B)(6) motion to dismiss de novo,
               viewing the complaint in the light most favorable to the non-
               moving party and drawing every reasonable inference in favor of
               that party. We must stand in the trial court’s shoes, looking only
               at the complaint itself, and determine whether the trial court
               erred when it applied the law. Where it is clear that the facts
       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019        Page 9 of 23
                alleged in the complaint are insufficient to support relief under
                any set of circumstances, the trial court’s grant of the motion to
                dismiss is proper.


       Tillman v. Tillman, 70 N.E.3d 349, 351 (Ind. Ct. App. 2013) (citations omitted),

       trans. denied.


                    I. The Plaintiffs’ Claim for Declaratory Judgment Is Not Ripe

[18]   The Plaintiffs first argue that the trial court erred in concluding that their claim

       for declaratory judgment is not yet ripe9 under the Declaratory Judgment Act.

       The relevant portion of this Act provides:

                Any person interested under a deed, will, written contract, or
                other writings constituting a contract, or whose rights, status, or
                other legal relations are affected by a statute, municipal
                ordinance, contract, or franchise, may have determined any
                question of construction or validity arising under the instrument,
                statute, ordinance, contract, or franchise and obtain a declaration
                of rights, status, or other legal relations thereunder.


       Ind. Code § 34-14-1-2 (emphasis added). In order to obtain a declaratory

       judgment, the person bringing the action must have a substantial present

       interest in the relief sought. Redevelopment Comm’n of Town of Munster v. Ind. State




       9
         The Fund Defendants address the Plaintiffs’ argument on this issue as one of standing instead of ripeness.
       As explained by one commentator, “[t]he justiciability doctrine is broken down into four major categories:
       standing (who may sue), ripeness (when would the suit be appropriate), mootness (no longer an active
       dispute), and political question (controversy should be left to the political branches).” 4 Charles H. Koch,
       Administrative Law & Practice § 13:1 (3d ed. 2010); see also Hulse v. Ind. State Fair Bd., 94 N.E.3d 726, 732
       (Ind. Ct. App. 2018) (distinguishing standing from ripeness). Although these concepts are related, we
       consider the Plaintiffs’ argument as being that their claims are ripe.

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                              Page 10 of 23
       Bd. of Accounts, 28 N.E.3d 272, 276 (Ind. Ct. App. 2015) (citing Hibler v. Conseco,

       Inc., 744 N.E.2d 1012, 1023 (Ind. Ct. App. 2001)), trans. denied. “‘The basis of

       jurisdiction under the Declaratory Judgment Act is a justiciable controversy or

       question, which is clearly defined and affects the legal right, the legal status, or

       the legal relationship of parties having adverse interests.’” Id. (quoting Little

       Beverage Co., Inc. v. DePrez, 777 N.E.2d 74, 83 (Ind. Ct. App. 2002), trans.

       denied).


[19]   A court may not review an issue that is not ripe. Cavallo v. Allied Physicians of

       Michiana, LLC, 42 N.E.3d 995, 1001 n.3 (Ind. Ct. App. 2015) (citing Thomas ex

       rel. Thomas v. Murphy, 918 N.E.2d 656, 662–63 (Ind. Ct. App. 2009), trans.

       denied). “In essence, ‘ripeness relates to the degree to which the defined issues in

       a case are based on actual facts rather than on abstract possibilities[.]’” Brogan v.

       State, 925 N.E.2d 1285, 1289 (Ind. Ct. App. 2010) (quoting Rene ex rel. Rene v.

       Reed, 726 N.E.2d 808, 822 (Ind. Ct. App. 2000)). “The basic rationale behind

       our ripeness doctrine is ‘to prevent the courts, through avoidance of premature

       adjudication, from entangling themselves in abstract disagreements over

       administrative policies, and also to protect the agencies from judicial

       interference until an administrative decision has been formalized and its effects

       felt in a concrete way by the challenging parties.’” Ind. Gas Co. v. Ind. Fin. Auth.,

       977 N.E.2d 981, 989–90 (Ind. Ct. App. 2012), trans. granted, summarily aff’d in

       relevant part, 999 N.E.2d 63 (Ind. 2013) (quoting Ohio Forestry Ass’n, Inc. v. Sierra

       Club, 523 U.S. 726, 732–33 (1998)). As noted in Indiana Gas Co., “[a] claim is

       not ripe for adjudication if it rests upon ‘contingent future events that may not

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019        Page 11 of 23
       occur as anticipated, or indeed may not occur at all.’” Id. (quoting Texas v.

       United States, 523 U.S. 296, 300 (1998)). A court’s ruling on a ripeness challenge

       must consider “the fitness of the issues for judicial decision and the hardship to

       the parties of withholding court consideration.” Brogan, 925 N.E.2d at 1289

       (quoting Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev.

       Comm’n, 461 U.S. 190, 201 (1983)).


[20]   Here, the Plaintiffs argue that their claim is ripe for a declaratory judgment

       because Fenner is pursuing a claim for medical malpractice against several

       qualified health care providers under the MMA and does not know how to

       proceed. They claim that, if Fenner accepts a settlement that includes a periodic

       payments agreement that costs over $187,000, the Fund Defendants will deny

       her access to the PCF unless the total payout also equals the provider’s

       maximum liability of $250,000, contrary to what the Plaintiffs contend to be the

       plain language of the relevant statute. The Plaintiffs argue that to require

       Fenner to enter into a settlement now is to require her to take a “shot in the

       dark” and hope that she will be successful in arguing that their interpretation of

       the statute is correct. If so, she will have access to the PCF. But if not, she may

       be deprived of further benefits from the PCF, and Garau Germano may be

       liable for misadvising its client.


[21]   Our problem with this argument is that it presupposes that Fenner has a valid

       claim for medical malpractice, will eventually enter into a settlement agreement

       with the providers who she claims have committed malpractice, and that this

       settlement will include a periodic payments agreement that costs at least

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019        Page 12 of 23
       $187,000. Yet the Plaintiffs have not alleged that Fenner has even been offered

       a settlement, much less entered into a settlement agreement. Because Fenner

       has not yet received an offer of settlement from any of the providers, the

       Plaintiffs have no “rights, status, or other legal relations” to be determined

       under the Declaratory Judgment Act.


[22]   For all we know at this stage, Fenner’s claims may be meritless. They may also

       be wholly meritorious. And even if meritorious, her claims may not result in a

       settlement that includes a periodic payments agreement that costs at least

       $187,000. Indeed, it may not result in a settlement agreement at all and instead

       go to trial where the issue of damages will be for the jury to determine.

       Accordingly, the Plaintiffs’ arguments regarding the Fund Defendants’

       interpretation of the relevant statutes rests on a future contingency that might

       not occur as anticipated, or might not occur at all. See Ind. Gas Co., 977 N.E.2d

       at 989–90.


[23]   The cases relied upon by the Plaintiffs are therefore distinguishable. For

       example, in Indiana Education Employment Relations Board v. Benton Community

       School Corp., the court held that the case before it presented “not merely the

       ‘ripening seeds’ of a controversy, but present[ed] an already existing and actual

       controversy.” 266 Ind. 491, 496, 365 N.E.2d 752, 754 (1977). In that case,

       however, the Education Employment Relations Board had already scheduled a

       hearing on the appropriate collective bargaining unit. Id. Without declaratory

       relief, the plaintiff would have been required to proceed with a hearing from

       which, according to the statute at issue, there would have been no judicial

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019      Page 13 of 23
       review. Id. Thus, there was an actual administrative decision at issue, not

       merely the potential for a controversy, and the court therefore concluded that

       “[t]he plaintiff was not merely seeking an advisory opinion[.]” Id. at 497, 365

       N.E.2d at 754.

[24]   Here, however, the Plaintiffs merely allege that there might be an adversary

       administrative decision (denial of access to the PCF) if Fenner enters into a

       settlement agreement that contains a periodic payments agreement that costs

       over $187,000 but does not pay out $250,000 over time.

[25]   And in Indiana Department of Environmental Management v. Twin Eagle LLC, 798

       N.E.2d 839 (Ind. 2003), the developer already had a definite plan to develop the

       property, and regardless of the outcome of IDEM’s ultimate determination, the

       developer would still have to go through an administrative process to determine

       if its development project required a permit and, if so, whether it could obtain

       such a permit. Thus, our supreme court held that the developer’s claim

       presented a genuine controversy that was sufficiently ripe for adjudication. Id.

       at 844. In contrast, here, Fenner’s claims are still hypothetical because she has

       yet to obtain any offer for a settlement agreement, much less one that would

       cost in excess of $187,000. Her claims are, at this point, still purely speculative.

[26]   In re Trust of Peeples, 37 N.E.3d 502 (Ind. Ct. App. 2015), trans. denied, is also

       distinguishable. In Peeples, the trial court approved the appointment of the

       Johnson County Community Foundation as trustee but capped the

       Foundation’s fees at 1.5% of trust assets annually and further required the


       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019        Page 14 of 23
       Foundation to obtain court approval before engaging the services of most third

       parties. The Foundation appealed, arguing that the trial court abused its

       discretion in imposing these restrictions. The trust beneficiaries countered that

       the Foundation’s argument was not ripe for appeal because the Foundation had

       presented no evidence that it would ever need more than 1.5% of the trust’s

       assets or ever engage the services of third parties. Our court rejected this

       argument, holding that the restrictions on the Foundation’s “decision-making

       as trustee will be affected by the limit, even if it does not go to the trial court

       seeking more money.” Id. at 512. Also, the Foundation would have to weigh

       the costs and benefits of petitioning the court to engage the services of third

       parties. Id. These restrictions were “more than abstract possibilities when

       viewed from [the Foundation’s] perspective.” Id.


[27]   Here, however, the Plaintiffs’ issues with the Fund Defendant’s interpretation

       of the periodic payments statute is still an abstract possibility, as Fenner has not

       yet even received an offer of any settlement agreement. Again, her concerns, as

       things currently stand, rest on a future contingency that might not occur as

       anticipated or even at all. See Ind. Gas Co., 977 N.E.2d at 990.


[28]   The same is true for the other cases cited by the Plaintiffs in support of their

       claim that they can bring a declaratory action. In these cases, the issues were

       more than abstract possibilities but actual controversies existing at the time of

       the action. See Cmty. Action of Greater Indianapolis, Inc. v. Ind. Farmers Mut. Ins.

       Co., 708 N.E.2d 882, 885–86 (Ind. Ct. App. 1999) (holding that the injured

       victim of an insured’s tort had standing under the Declaratory Judgment Act to

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019         Page 15 of 23
       seek a declaration of the insured’s coverage under an insurance policy before

       the tort claim was reduced to judgment), trans. denied; Sendak v. Allen, 164 Ind.

       App. 589, 592, 330 N.E.2d 333, 335 (1975) (holding that sheriff’s deputies

       running for sheriff had standing to bring declaratory judgment action regarding

       the applicability of statute prohibiting police officers from running for office

       because they were already running for office).

[29]   The bottom line is that the question presented by the Plaintiffs is still purely

       hypothetical. Fenner may enter into a settlement agreement with the providers

       against whom she is claiming medical malpractice. She may not. She may enter

       into a settlement including a periodic payments agreement that costs in excess

       of $187,000. She may not. But now, she has not even received any offers of

       settlement, much less entered into any agreement. Her ability to access the PCF

       is, at this stage, contingent upon her either obtaining a judgment against the

       providers after trial or by entering into a settlement agreement that meets

       certain requirements. This is not to say that Fenner must necessarily enter into a

       settlement agreement before her claims are ripe for determination. But there

       must be more than just the mere hope or anticipation of receiving such a

       settlement offer before she may seek declaratory judgment. We therefore

       conclude that the Plaintiffs’ claims are not yet ripe for declaratory judgment,

       and the trial court properly dismissed them for failure to state a claim upon

       which relief could be granted.




       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019       Page 16 of 23
                     II. The Plaintiffs Lack Standing to Seek Judicial Mandate

[30]   The Plaintiffs also argue that the trial court erred by concluding that they did

       not have standing to seek an action for judicial mandate. We have previously

       explained the requirement of standing as follows:


               Standing is defined as having a “sufficient stake in an otherwise
               justiciable controversy.” Ind. Civil Rights Comm’n v. Indianapolis
               Newspapers, Inc., 716 N.E.2d 943, 945 (Ind. 1999). The point of
               the standing requirement is to ensure that the party before the
               court has a substantive right to enforce the claim that is being
               made in the litigation. Pence v. State, 652 N.E.2d 486, 487 (Ind.
               1995). Standing is “a significant restraint on the ability of Indiana
               courts to act, as it denies the courts any jurisdiction absent an
               actual injured party participating in the case.” Id. at 488.

               The standing requirement obligates courts to act only in real
               cases and shun action when called upon to engage only in
               abstract speculation. Id. An actual dispute involving those
               harmed is what confers jurisdiction upon the judiciary . . . . Id.
               (quotation omitted). Put simply, in order to have standing, the
               challenging party must show adequate injury or the immediate
               danger of sustaining some injury. Ind. Civil Rights Comm’n, 716
               N.E.2d at 945.


       Redevelopment Comm’n of Town of Munster, 28 N.E.3d at 276.


[31]   The judicial mandate statute provides:


               An action for mandate may be prosecuted against any inferior
               tribunal, corporation, public or corporate officer, or person to
               compel the performance of any:

                    (1) act that the law specifically requires; or


       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019          Page 17 of 23
                    (2) duty resulting from any office, trust, or station.


       Ind. Code § 34-27-3-1.


[32]   Our supreme court recently explained the narrowness of the remedy provided

       by this statute, writing:


               Our precedent cautions against issuing a mandate, calling it an
               extraordinary remedy, viewed with extreme disfavor. Judicial
               mandate is appropriate only when two elements are present:
               (1) the defendant bears an imperative legal duty to perform the
               ministerial act or function demanded and (2) the plaintiff has a
               clear legal right to compel the performance of [that] specific
               duty. These two elements represent the narrow limits placed
               upon judicial mandates. These strictures mean that judicial
               mandate should never [be] granted in doubtful cases.


       Price v. Ind. Dep’t of Child Services, 80 N.E.3d 170, 174–75 (Ind. 2017) (bold

       emphasis added) (citations and internal quotation marks omitted).


       A. Fenner Lacks Standing to Seek Judicial Mandate

[33]   Here, we agree with the Fund Defendants that Fenner has not alleged that the

       PCF bears an imperative legal duty to perform a ministerial act or function.

       Instead, Fenner seeks a mandate that the Fund Defendants comply with (what

       she claims to be) the plain language of the periodic payments statute. As noted

       by the Fund Defendants, granting a claimant access to the PCF is no simple

       ministerial act. Indeed, the PCF is not required to approve petitions for access

       to the PCF simply if they meet certain statutory requirements. That is, even if

       the claimant enters into a settlement agreement that meets the statutory

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019       Page 18 of 23
       requirements for access to the PCF, this does not guarantee that he or she will

       be awarded damages from the PCF.

[34]   Instead, after entering into a settlement agreement that meets the statutory

       requirements for access to the PCF, a claimant must file a petition in the trial

       court seeking court “approval of an agreed settlement” and “demanding

       payment of damages from the [PCF].” Ind. Code § 34-18-15-3(1)(A), (B). Then,

       the Commissioner and the health care provider (or its insurer) may agree or

       object to “a settlement with the claimant from the [PCF].” Id. at § 3(3). If any of

       these parties filed objections to the settlement, then the trial court must set the

       matter for a hearing “as soon as practicable.” Id. at § 3(4). At the hearing, the

       Commissioner, the claimant, the health care provider, and the health care

       provider’s insurer may “introduce relevant evidence to enable the court to

       determine whether or not the petition should be approved if the evidence is

       submitted on agreement without objections.” Id. at §3(5). If, however, the

       parties cannot agree on the amount to be paid out of the PCF, “the court shall,

       after hearing any relevant evidence on the issue of claimant’s damage submitted

       by any of the parties described in this section, determine the amount of

       claimant’s damages, if any, in excess of the health care provider’s policy limits .

       . . already paid by the insurer of the health care provider.” Id. The trial court

       “shall determine the amount for which the [PCF] is liable and make a finding

       and judgment accordingly.” Id. However, in determining the amount to be paid




       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019        Page 19 of 23
       from the PCF, “the court shall consider the liability of the health care provider

       as admitted and established.”10 Id.


[35]   Applying this process to the present case, it is clear that, even if Fenner entered

       into a settlement agreement that met the statutory requirements for access to the

       PCF, she still may not be granted damages from the PCF. Given this complex,

       judicial task of determining whether Fenner is entitled to excess damages from

       the PCF, we agree with the Fund Defendants that this case is not the proper

       subject of an action for judicial mandate because Fenner is not requesting that

       the Defendants perform a ministerial task that they have a duty to perform. See

       Price, 80 N.E.3d at 175. She is instead demanding that they interpret the

       relevant statutes in a specific way. Nor is it yet clear that Fenner has a clear

       legal right to compel the performance of this task. See id. Not only has she not

       yet entered into a qualifying settlement agreement, even if she had, her ability

       to receive damages from the PCF is far from established. Because Fenner lacks

       standing to seek a judicial mandate, the trial court properly dismissed her claim.


       B. Garau Germano Also Lacks Standing to Seek Judicial Mandate

[36]   Lastly, we agree with the trial court that Garau Germano also lacks standing to

       seek judicial mandate on its own behalf. First, we repeat that judicial mandate

       is not appropriate in this case as the Plaintiffs do not seek to compel the Fund

       Defendants to engage in any ministerial task and instead seek to compel the



       10
         The trial court must also consider many other factors, such as the patient’s risk of death and the degree of
       increased risk of harm caused by the malpractice. Herbst, 902 N.E.2d at 220–21.

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                               Page 20 of 23
       defendants to adhere to what they believe to be the proper interpretation of the

       periodic payments plan statute. As noted above, this is not the proper grounds

       for an action for mandate.


[37]   We further agree with the trial court that Garau Germano lacks standing to

       seek mandate. We reached a similar conclusion in State ex rel. Steinke v. Coriden,

       831 N.E.2d 751 (Ind. Ct. App. 2005), trans. denied. In that case, Steinke was an

       attorney whose practice included representing clients before the Indiana

       Worker’s Compensation Board. Steinke filed a complaint for judicial mandate

       seeking to require the members of the Board to comply with various statutory

       guidelines he believed the members were ignoring.11 The members of the Board

       filed a motion to dismiss for lack of standing. Steinke then filed an amended

       complaint asserting that he also had standing as a member of the general public.

       The trial court granted the motion to dismiss, and Steinke appealed.

[38]   On appeal, Steinke argued that he had standing as an attorney representing

       clients before the Board and that he was injured because attorneys like him

       lacked access to a Board composed of full-time members whose “sole focus and

       loyalty [was] toward the proper administration” of the Worker’s Compensation

       statutes. Id. at 754 (record citations omitted). We rejected Steinke’s claim of

       standing, holding that although he presented a “hypothetical scenario in which




       11
          Specifically, he alleged that the members of the Board “fail[ed] to devote his/her entire time to the
       discharge of the duties of his/her office” and “[held] other position(s) of trust or profit, and/or engages in
       some occupation(s) or business(es) interfering with or inconsistent with the discharge of his/her duties.” Id.
       at 753 (record citations omitted).

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019                               Page 21 of 23
       the Board’s unavailability could or would delay payments to him,” he alleged

       no incidents where this harm had actually occurred. Id. We held that, “[i]n the

       absence of a showing that he has suffered or will immediately suffer a direct

       injury,” Steinke, as an attorney who represented clients before the Board, had

       no standing to seek judicial mandate. Id.


[39]   The same is true in the present case. Garau Germano is a law firm that

       represents clients in medical malpractice cases. It seeks a judicial mandate that

       the Fund Defendants follow what Garau Germano believes to be the correct

       interpretation of the periodic payments plan statute. Garau Germano claims

       that, given the number of clients it represents, many of these clients will

       eventually enter into settlement agreements, and that it is unable to advise its

       clients on how to proceed. But the validity of these clients’ claims, like

       Fenner’s, has yet to be determined at this stage. Garau Germano, like Steinke,

       presents hypothetical situations in which its clients may be denied access to the

       PCF, but has not shown that it will suffer from any direct injury if mandate is

       denied. Garau Germano attempts to distinguish the present case from Steinke,

       but we find none of these attempts convincing.

[40]   Garau Germano claims that Steinke is distinguishable because, in that case,

       Steinke sought relief only on behalf of all Indiana residents, whereas Garau

       Germano seeks relief on its own behalf. This is incorrect. The plaintiff in

       Steinke, in addition to claiming standing as a member of the public, also asserted

       standing “as an attorney affected by the Defendants’ failure to fulfill their

       duties.” Id. 753 (record citation omitted). Garau Germano further contends

       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019       Page 22 of 23
       that, unlike the plaintiff in Steinke, it is seeking specific action on the part of the

       Fund Defendants. But as we stated above, Garau Germano seeks to mandate

       the Fund Defendants to interpret the periodic payments statute in a particular

       way, not simply to require them to perform a ministerial act.

[41]   In short, Garau Germano does not seek a mandate to perform a ministerial act.

       An action for judicial mandate is therefore inappropriate. Furthermore, Garau

       Germano has not shown that it has been directly damaged by the Fund

       Defendants’ interpretation of the periodic payments plan statute. For these

       reasons, we affirm the trial court’s motion to dismiss Garau Germano’s

       complaint for judicial mandate for lack of standing.


                                                  Conclusion
[42]   The trial court properly dismissed the Plaintiffs’ complaint for failure to state a

       claim upon which relief could be granted. First, the Plaintiffs’ claims are not yet

       ripe for a declaratory judgment, as Fenner has yet to receive, much less accept,

       any proposed agreement to settle her medical malpractice claims. Furthermore,

       neither Fenner nor Garau Germano has standing to seek judicial mandate

       because they do not request the performance of a ministerial act and because

       neither has demonstrated that they have been or will be directly harmed. We

       therefore affirm the judgment of the trial court.

[43]   Affirmed.


       May, J., and Brown, J., concur.


       Court of Appeals of Indiana | Opinion 18A-CT-2739 | August 19, 2019          Page 23 of 23
