Taliyah Brooks v. USA Track & Field, Inc.

• Court: Indiana Court of Appeals
• Decided: October 30, 2024
• Docket: 23A-PL-01685
• Status: Published

Opinion

FILED Oct 30 2024, 9:11 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Taliyah Brooks, Appellant-Plaintiff

v.

USA Track & Field, Inc., Appellee-Defendant

October 30, 2024 Court of Appeals Case No. 23A-PL-1685 Appeal from the Marion Superior Court The Honorable Patrick J. Dietrick, Judge Trial Court Cause No. 49D12-2211-PL-41124

Opinion by Judge Pyle Judge May concurs. Judge Brown concurs in part, dissents in part with opinion.

Pyle, Judge.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 1 of 44 Statement of the Case

[1] Taliyah Brooks (“Brooks”) filed a complaint for declaratory judgment and an

injunction against USA Track & Field, Inc. (“USATF”).1 Specifically, Brooks

sought to have the trial court declare that USATF’s online waiver, release of

liability, assumption of risk, and indemnity agreement (“the Waiver and

Indemnity Agreement”)2 contained in USATF’s membership documents was

unenforceable, and she sought to enjoin USATF from enforcing the Waiver and

Indemnity Agreement against her. In Brooks’ complaint, she did not

specifically raise a separate claim for negligence but addressed the elements of

negligence and made clear that she was planning to raise tort claims after she

had obtained a declaratory ruling about the enforceability of the Waiver and

Indemnity Agreement.

[2] Both parties moved for summary judgment on the question of the enforceability

of the Waiver and Indemnity Agreement, and they limited that question to

Indiana law. The trial court granted USATF’s summary judgment motion and

denied Brooks’ motion for partial summary judgment. Two days after the trial

court had entered the orders on summary judgment, Brooks filed a motion to

amend her complaint to add claims for gross negligence and willful misconduct

1 USATF was incorporated in Virginia and has its principal place of business and corporate headquarters in Indianapolis, Indiana. 2 The parties refer to the Waiver and Indemnity Agreement as the WIA.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 2 of 44 and to add two additional defendants. The trial court denied Brooks’ motion to

amend her complaint.

[3] In this consolidated appeal, Brooks appeals from the following trial court

orders: (1) the orders denying Brooks’ motion for partial summary judgment

and granting USATF’s motion for summary judgment on Brooks’ declaratory

judgment claim regarding the enforceability of the Waiver and Indemnity

Agreement under Indiana law; (2) the order denying Brooks’ motion to amend

her complaint. Concluding that the trial court did not err in its rulings on the

summary judgment motions but that it did abuse its discretion by denying

Brooks’ motion to amend her complaint, we affirm in part, reverse in part, and

remand to the trial court for further proceedings.

[4] We affirm in part, reverse in part, and remand.3

Issues

1. Whether the trial court erred in its rulings on the parties’ summary judgment motions regarding the enforceability of the Waiver and Indemnity Agreement under Indiana law.

2. Whether the trial court abused its discretion by denying Brooks’ motion to amend her complaint.

Facts

3 We held an oral argument in this case on August 7, 2024 at the Indiana Statehouse. We thank the parties for their able advocacy.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 3 of 44 [5] In November 2022, Brooks, who is an athlete member of USATF, filed, in the

Marion Superior Court, a complaint against USATF. Brooks filed the

complaint after she had suffered heat-related injuries while competing in

heptathlon events in the 2020 U.S. Olympic Track and Field Time Trials (“the

Olympic Time Trials”) in Eugene, Oregon on June 26-27, 2021.4 In Brooks’

complaint, she sought declaratory and injunctive relief. Specifically, she

sought: (1) a declaratory judgment, under INDIANA CODE § 34-14-1-1, that the

online Waiver and Indemnity Agreement contained in USATF’s membership

documents5 was unenforceable in law or in equity because, if it were

enforceable, it would prevent her from bringing any negligence claims and from

suing for damages she had suffered at the Olympic Time Trials; and (2) an

injunction preventing USATF from enforcing the Waiver and Indemnity

Agreement against her if she were to raise any negligence claim against

USATF.

[6] The provisions of the Waiver and Indemnity Agreement that are at issue in this

underlying case and on appeal are paragraph 2 and paragraph 4 and are set

forth as follows:

For and in consideration of USA Track & Field, Inc. (“USA Track & Field” or “USATF”) allowing me, the registrant, to participate in the USA Track & Field sanctioned event I am

4 Due to the COVID-19 pandemic, the 2020 Olympic Games and trials were held in 2021. 5 Brooks had completed USATF’s online registration form and had e-signed the registration form in June 2021.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 4 of 44 registering for herein (the “Event” or “Events”); I, for myself, and on behalf of my spouse, children, guardians, heirs and next of kin, and any legal and personal representatives, executors, administrators, successors and assigns, hereby agree to and make the following contractual representations pursuant to this Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement (the “Agreement”);

*****

2. I understand and acknowledge that participation in track & field, road running, race walking, cross country, mountain, ultra, and trail running Events is inherently dangerous and represents an extreme test of a person’s physical and mental limits. I understand and acknowledge the risks and dangers associated with participation in the Event and sports of track & field and related activities, including without limitation, the potential for serious bodily injury, sickness and disease (including communicable disease), permanent disability, paralysis and loss of life; loss of or damage to equipment/property; exposure to extreme conditions and circumstances; contact with other participants, spectators, animals or other natural or manmade objects; dangers arising from adverse weather conditions; imperfect course or track conditions; land, water and surface hazards; equipment failure; inadequate safety measures; participants of varying skill levels; situations beyond the immediate control of the Event Organizers (as defined in Section 4 below); and other undefined, not readily foreseeable and presently unknown risks and dangers (“Risks”). I understand that these Risks may be caused in whole or in part by my own actions or inactions or the actions or inactions of others participating in or organizing the Event, and I hereby expressly assume all such Risks and responsibility for damages, liabilities, losses or expenses which I incur as a result of my participation in any Event, except to the extent caused by the gross negligence and/or willful misconduct of any of the Released Parties (as defined in Section 4 below).

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 5 of 44 *****

4. I hereby release, waive and covenant not to sue, and further agree to indemnify, defend and hold harmless the following parties, as relevant and applicable in each instance: USATF, its members, clubs, associations, sport disciplines and divisions; United States Olympic Committee (USOC); the event directors, the host organization and the facility, venue and property owners and operators upon which the Event takes place; and any other organizers, promoters, sponsors, advertisers, coaches and officials for this Event; law enforcement agencies and other public entities providing support for the Event; and each of their respective parent, subsidiary and affiliated companies, officers, directors, partners, shareholders, members, agents, employees and volunteers (Individually and collectively, the “Released Parties” or “Event Organizers”), with respect to any liability, claim(s), demand(s), cause(s) of action, damage(s), loss or expense (including court costs and attorneys’ fees) of any kind or nature (“Liability”) which may arise out of, result from, or relate in any way to my participation in the Event, except to the extent caused by the gross negligence and/or willful misconduct of any of the Released Parties. I further agree that if, despite this Agreement, I, or anyone on my behalf, makes a claim for Liability against any of the Released Parties, I will indemnify, defend and hold harmless each of the Released Parties from any such Liabilities which may be incurred as the result of such claim, except to the extent caused by the gross negligence and/or willful misconduct of any of the Released Parties, as relevant and applicable in each instance.

(App. Vol. 6 at 165). Brooks incorporated the challenged language of

paragraph 2 and paragraph 4 into her complaint by citing those paragraphs

verbatim.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 6 of 44 [7] Additionally, the Waiver and Indemnity Agreement contained the following

paragraph at the end of the agreement:

I hereby warrant that I (or the Guardian, if I am under the age of 18) am of legal age and competent to enter into this Agreement, that I have read this Agreement carefully, understand its terms and conditions, acknowledge that I will be giving up substantial legal right by accepting it (including the rights of my spouse, children, guardians, heirs and next of kin, and any legal and personal representatives, executors, administrators, successors and assigns), acknowledge that I have accepted this Agreement without any inducement, assurance or guarantee, and intent for my acceptance to serve as confirmation of my complete and unconditional acceptance of the terms, conditions and provisions of this Agreement. This Agreement represents the complete understanding between the parties regarding these issues and no oral representations, statements or inducements have been made apart from this Agreement. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

(App. Vol. 6 at 165).

[8] In Brooks’ complaint, she asserted that USATF had been “negligent” in the

manner that it had conducted the Olympic Time Trials. (App. Vol. 2 at 47).

Brooks further asserted that USATF owed her and her fellow USATF member

athletes a “duty to promote, plan for, and protect the health, safety, and well-

being of its member athletes[,]” that USATF had breached that duty, and that

she had suffered injuries and losses as a result of that breach. (App. Vol. 2 at

39). Brooks, however, did not include a separate count or claim for negligence

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 7 of 44 in her complaint. Brooks asserted that, given the language and potential

enforceability of the Waiver and Indemnity Agreement, she could not proceed

with any negligence claims against USATF or related entities without exposing

herself to serious financial loss.

[9] In December 2022, USATF filed a motion to remove Brooks’ case to federal

court. Brooks then filed a motion to remand the case back to state court, and

she sought payment of costs, expenses, and fees for filing her remand motion.

On March 7, 2023, the federal court entered an order in which it remanded the

case back to the Marion Superior Court and granted Brooks’ request for

attorney fees and expenses.

[10] After the case had returned to the Marion Superior Court, Brooks filed a

motion for partial summary judgment on her declaratory judgment claim in

April 2023. Specifically, Brooks sought to have the trial court enter a

declaratory judgment on the enforceability of the Waiver and Indemnity

Agreement, which she asserted was impeding her from amending her complaint

to add negligence and other tort claims against USATF. Brooks argued that the

Waiver and Indemnity Agreement was contained in a contract of adhesion, was

unconscionable, and was unenforceable as a matter of law under Oregon law.

Brooks asserted that she sought expedited relief on this declaratory judgment so

that she could pursue her negligence and tort claims against USATF prior to the

relevant statute of limitations. Specifically, she requested the trial court to rule

on her partial summary judgment motion before June 26, 2023 so that she

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 8 of 44 could amend her complaint to pursue negligence, gross negligence, and other

tort claims against USATF.

[11] In May 2023, USATF filed a motion to dismiss Brooks’ complaint with

prejudice. USATF argued that Brooks had failed to comply with Indiana Trial

Rule 9.2(A) by failing to attach a copy of the Waiver and Indemnity Agreement

to her complaint. On May 11, 2023, the trial court held an emergency pretrial

hearing. During that hearing, the parties noted that no discovery had yet

occurred in the case. Brooks stated that she had had difficulty getting copies of

documents because the forms she had completed had been online. She stated

that she had received the language of the Waiver and Indemnity Agreement

from USATF’s insurer, who had informed Brooks that it intended to enforce

the language therein. Brooks stated that she had recited verbatim the language

in the complaint and had attached USATF’s insurer’s letter as an exhibit.

[12] Also during the hearing, the parties recognized that the statute of limitations

deadline for Brooks’ potential tort claims would run in June 2023. The trial

court asked the parties if they were going to “get a tolling agreement put in[to]

place on this or not?” (Tr. Vol. 2 at 6). The parties indicated that they had

discussed a potential tolling agreement. USATF acknowledged that it

“underst[oo]d” that Brooks “intend[ed] on someday bringing a negligence or a

tort action against [USATF.]” (Tr. Vol. 2 at 7). USATF stated that Brooks’

tort action would trigger USATF’s ability to name nonparties and that it

believed that a tolling agreement would negatively affect its ability to name

nonparties. The trial court asked the parties whether a ruling granting Brooks’

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 9 of 44 partial summary judgment motion was a prerequisite to Brooks’ ability to file a

tort claim. USATF responded that a summary judgment ruling in Brooks’

favor was not a prerequisite. The trial court also asked Brooks what would

prevent her from seeking to amend her complaint to add her potential tort

claims. Brooks stated that she was seeking the summary judgment ruling to get

a declaratory judgment that the Waiver and Indemnity Agreement was

unenforceable because she did not want to be subjected to the indemnification

provision. Brooks added that a requirement to pay USATF’s “entire cost of

defense” was an “insurmountable barrier to her moving forward.” (Tr. Vol. 2

at 12). Brooks further stated that if the trial court were to declare the Waiver

and Indemnity Agreement to be enforceable, then she was “not going to go

forward[,]” but if the trial court were to declare the Waiver and Indemnity

Agreement to be unenforceable, then her intent was to file an amended

complaint. (Tr. Vol. 2 at 12).

[13] On June 2, 2023, USATF then filed a response and cross-motion for summary

judgment, asserting that Indiana law applied to the question of the

enforceability of the Waiver and Indemnity Agreement because the USATF’s

online membership registration contained a provision that Indiana law would

govern any agreements between USATF and its members. USATF asserted

that Brooks had agreed to the Indiana law provision and to the Waiver and

Indemnity Agreement when she had completed the USATF online membership

registration. USATF argued that the trial court should rule that the Waiver and

Indemnity Agreement was enforceable as a matter of law under Indiana law

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 10 of 44 and should grant summary judgment to USATF. Alternatively, USATF argued

that the Waiver and Indemnity Agreement was valid and enforceable under

Oregon law. USATF also filed a motion to strike portions of Brooks’ affidavit

and memorandum in support of her motion for partial summary judgment.

[14] Thereafter, on June 9, 2023, Brooks filed a response to USATF’s summary

judgment motion. Brooks titled her motion as a cross-motion for summary

judgment. In her motion, Brooks argued, in part, that the Waiver and

Indemnity Agreement was unconscionable and unenforceable under Indiana

law. Specifically, she argued that Indiana law required an indemnification

provision to be strictly construed and that the Waiver and Indemnity

Agreement’s indemnification provision did not contain language that expressly

stated in clear and unequivocal terms that Brooks was to indemnify USATF for

USATF’s own negligence. Brooks also argued that the Waiver and Indemnity

Agreement was contrary to public policy. Additionally, Brooks argued that the

Waiver and Indemnity Agreement was unenforceable under Oregon law. She

requested the trial court to declare that the Waiver and Indemnity Agreement

did not bar her from asserting negligence and other tort claims against USATF

for the injuries she had sustained when participating in the Olympic Time

Trials. Brooks requested the trial court to issue an order on the summary

judgment motions by June 24, 2023.

[15] USATF then filed a response to Brooks’ summary judgment response on June

20, 2023. In that response, USATF argued that Brooks had misinterpreted the

language of the Waiver and Indemnity Agreement. USATF asserted that the

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 11 of 44 Waiver and Indemnity Agreement required Brooks to release claims against

USATF for USATF’s own negligence under Indiana law, and it acknowledged

that the Waiver and Indemnity Agreement did not exclude gross negligence and

willful conduct from the exculpation and indemnification requirements.

[16] Also on June 20, 2023, the trial court held a summary judgment hearing on the

parties’ motions. During the summary judgment hearing, USATF noted that

the case was in “its infantile stages” and that “[n]o discovery ha[d] occurred

between the parties[.]” (Tr. Vol. 2 at 37). The parties agreed that the trial

court’s review of the summary judgment motions should focus only on whether

the Waiver and Indemnity Agreement was enforceable under Indiana law.

Brooks stated that her “position [wa]s appropriately characterized as simply the

converse of [USATF’s] position; [USATF’s] position being that the

indemnification agreement applies, and [Brooks’ position] being [that] it’s not

enforceable.” (Tr. Vol. 2 at 38).

[17] Brooks noted that her “statute of limitations period . . . [wa]s quickly

evaporating” and argued that the interpretation of the Waiver and Indemnity

Agreement stood between her and “her ability to submit a tort claim against

[USATF.]” (Tr. Vol. 2 at 41). Brooks asked the trial court to “focus on the

language of the [Waiver and Indemnity Agreement] and “to conclude that

[Brooks] ha[d] not agreed to indemnify [USATF] for its own negligence” and

that the Waiver and Indemnity Agreement did “not prevent her from bringing

her claims forward.” (Tr. Vol. 2 at 41). Brooks also asserted that, under the

principles of contract interpretation and Indiana law, an indemnification

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 12 of 44 provision was required to be specific, unambiguous, and unequivocal. Brooks

argued that none of those requirements had been met in the Waiver and

Indemnity Agreement. She asserted, most notably, that the Waiver and

Indemnity Agreement did not refer to the term negligence and did not expressly

provide that USATF was exempting itself from its own negligence. Brooks also

asserted that Indiana law requires indemnification agreements and exculpatory

clauses to be strictly construed and argued that the language of the Waiver and

Indemnity Agreement did not exempt USATF from its own negligence.

[18] Additionally, Brooks argued that the language of the Waiver and Indemnity

Agreement provided that the risks that Brooks assumed were only the situations

beyond the immediate control of the event organizers and those situations that

were not readily foreseeable or were unknown risks and dangers. Brooks

contended that USATF knew the risks presented by the extremely hot weather,

that the weather was foreseeable, and that USATF was able to control the

timing of the track events. Lastly, Brooks argued that the Waiver and

Indemnity Agreement was unconscionable and against public policy.

[19] USATF argued that the waiver provision and the indemnification provision in

the Waiver and Indemnity Agreement were both valid and enforceable.

USATF acknowledged that the Waiver and Indemnity Agreement did not

contain the words “of our own negligence” in these provisions but argued that

the Waiver and Indemnity Agreement was nevertheless specific enough to meet

the Indiana standard for an enforceable waiver provision and indemnity

provision. (Tr. Vol. 2 at 65). USATF asserted that the indemnity provision in

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 13 of 44 the Waiver and Indemnity Agreement did not need to state that a party was

going to indemnify a defendant for the defendant’s own negligence “as long as

[it] use[d] the language of negligence[.]” (Tr. Vol. 2 at 66). Additionally,

USATF argued that the waiver provision was enforceable because the Waiver

and Indemnity Agreement set forth some of the risks inherent to competing in

an outdoor Olympic track event. Lastly, USATF argued that the Waiver and

Indemnity Agreement was not unconscionable or against public policy because

Brooks had voluntarily engaged in a recreational activity and that the Waiver

and Indemnity Agreement did not relate to a public interest or a basic necessity

of life.

[20] The following day, on June 21, 2023, the trial court issued two general

summary judgment orders (“the June 2023 Orders”). In one order, the trial

court denied Brooks’ motion for partial summary judgment, and in the other

order, the trial court granted USATF’s summary judgment motion. The trial

court also denied USATF’s motion to dismiss and motion to strike.

[21] Two days later, on June 23, 2023, Brooks filed the following motions: (1) a

motion to certify the June 2023 Orders for an interlocutory appeal; (2) a motion

to amend her complaint to add additional claims and parties; and (3) a motion

to stay the proceedings on her newly filed tort claims. In her motion to amend

her complaint under Indiana Trial Rule 15, Brooks sought to add claims against

USATF for negligence, gross negligence, recklessness, and willful and wanton

conduct. Brooks also sought to add two additional defendants, Track Town

Events, LLC (“Track Town Events”) and Track Town USA, Inc. (“Track

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 14 of 44 Town USA”), both of whom were Oregon entities. Brooks attached her

proposed amended complaint to her motion to amend. The clerk of the trial

court served summonses on Track Town Events and Track Town USA.

[22] Thereafter, on July 10, 2023, USATF filed a motion to oppose Brooks’

motions. USATF argued that the trial court should deny Brooks’ motion to

certify for an interlocutory appeal because the trial court’s June 2023 Orders

constituted final appealable orders and resolved all pending claims.

Additionally, USATF asserted that, under INDIANA CODE § 34-14-1-1 of the

Declaratory Judgment Act, an order in a declaratory judgment action is treated

as a final judgment. USATF also argued that the trial court should deny

Brooks’ motion to amend her complaint because it was a nullity given the entry

of a final judgment on her declaratory judgment claim. Alternatively, USATF

argued that, if the trial court were to allow Brooks to amend her complaint, the

causes of action in Brooks’ amended complaint (negligence, gross negligence,

recklessness, willful and wanton misconduct) were futile, prejudicial, and

would cause undue delay. USATF argued that the trial court had ruled that the

Waiver and Indemnity Agreement released and exculpated USATF from

Brooks’ negligence claims, thereby barring her from raising a negligence claim.

USATF asserted that Brooks’ gross negligence claims were futile because the

allegations in her amended complaint did not rise to the level of gross

negligence and because the claims would not survive a motion for summary

judgment.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 15 of 44 [23] Subsequently, on July 17, 2023, Brooks filed a reply in support of her motions

to amend her complaint and for an interlocutory appeal. In regard to her

amendment motion, Brooks asserted that the trial court had retained

jurisdiction to rule on and permit her motion to amend her complaint. Brooks

argued that the trial court should not allow USATF to use its summary

judgment ruling to serve as a complete bar to Brooks’ claims in her amended

complaint. Additionally, Brooks pointed out that the Waiver and Indemnity

Agreement did not bar her claims for gross negligence, recklessness, or willful

and wanton misconduct and that USATF had acknowledged that fact in its

summary judgment briefing.

[24] In regard to her interlocutory motion, Brooks disagreed that the June 2023

Orders were final orders, and she argued that the order granting summary

judgment to USATF had not resolved all claims and issues in the case. Brooks

pointed out that USATF’s summary judgment motion had sought only a ruling

that the Waiver and Indemnity Agreement was valid and enforceable under

Indiana law, and she noted that the summary judgment motion did not seek to

dismiss Brooks’ complaint or to apply the Waiver and Indemnity Agreement to

Brooks’ claims. She also asserted that her original complaint had included the

allegations necessary for a negligence claim. Brooks indicated that, despite her

disagreement that the June 2023 Orders were final orders, she planned to file a

notice of appeal to protect her appellate rights.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 16 of 44 [25] On July 20, 2023, Brooks filed a notice of appeal with this Court to commence

an appeal of the June 2023 Orders. That appeal of the trial court’s summary

judgment orders was filed under Cause Number 23A-PL-1685 (“First Appeal”).

[26] On July 21, 2023, the trial court issued a general order addressing Brooks’

pending motions. The trial court denied Brooks’ motion to certify the June

2023 Orders for interlocutory appeal, denied Brooks’ motion to amend her

complaint, and denied her motion to stay the proceedings on her newly filed

tort claims (“July 2023 Order”). The trial court did not provide any specific

explanation on its reasoning for denying Brooks’ motion to amend her

complaint.

[27] Shortly thereafter, on August 7, 2023, an attorney for Track Town Events and

Track Town USA filed an appearance and sought an extension of time to

respond to Brooks’ amended complaint. The following day, the trial court

granted the extension of time motion.

[28] On August 18, 2023, Brooks then filed a motion to correct error or a clerical

mistake in the trial court’s July 2023 Order (“motion to correct error”). In her

motion, she noted that the trial court had granted Track Town Events and

Track Town USA’s motion for an extension of time to respond to Brooks’

amended complaint and that, therefore, it appeared that the trial court had

actually intended to grant Brooks’ motion to amend her complaint. As a result,

Brooks requested the trial court to correct the record to reflect that it had

granted Brooks’ motion to amend her complaint.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 17 of 44 [29] On August 22, 2023, Track Town Events and Track Town USA filed a motion

for leave to withdraw their appearance and for the trial court to vacate its

August 8, 2023 order that had granted their motion for extension of time to

respond to Brooks’ amended complaint. They asserted that they had been

unaware that the trial court had previously denied Brooks’ motion to amend her

complaint. That same day, the trial court granted Track Town Events and

Track Town USA’s motion.

[30] Thereafter, USATF filed a response to Brooks’ motion to correct error.

USATF objected to Brooks’ motion and requested the trial court to strike

Brooks’ motion to correct error based on a lack of jurisdiction. USATF

asserted that Brooks’ motion to correct error was filed to challenge the final

judgment entered by the trial court in its June 2023 Orders. USATF noted that

Brooks’ appeal of the June 2023 Orders was pending before the Court of

Appeals, which had acquired jurisdiction on July 28, 2023, when the clerk of

the trial court issued its Notice of Completion of Clerk’s Record in Brooks’ First

Appeal. Therefore, USATF argued that the trial court did not have jurisdiction

to enter a ruling on Brooks’ motion to correct error and that it should strike her

motion from the record.

[31] On September 1, 2023, the trial court issued an order in which it granted

USATF’s motion to strike Brooks’ motion to correct error. Following the trial

court’s ruling, Brooks filed a notice of appeal with this Court, on September 11,

2023, to appeal the trial court’s July 2023 Order denying her motion to amend

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 18 of 44 her complaint (“Second Appeal”). Brooks then filed a motion to consolidate

her Second Appeal with her First Appeal.

[32] USATF subsequently filed a motion to dismiss Brooks’ Second Appeal, arguing

that the July 2023 Order on Brooks’ motion to amend her complaint was a

nullity and void and that our Court lacked subject matter jurisdiction over the

Second Appeal. Specifically, USATF asserted that the July 2023 Order on

Brooks’ motion to amend her complaint was a nullity and void because the trial

court had been “divested of its jurisdiction” to consider Brooks’ motion to

amend where Brooks had filed her motion after the entry of a final judgment

(the June 2023 Orders). (Appellee’s App. Vol. 2 at 27). USATF argued that

Brooks was improperly attempting to amend “her then-already dismissed

complaint.” (Appellee’s App. Vol. 2 at 27).

[33] USATF also argued that, even if the July 2023 Order was not void, our Court

lacked subject matter jurisdiction over the Second Appeal because the July 2023

Order denying Brooks’ motion to amend her complaint was not a final

judgment under Indiana Appellate Rule 2(H) and was instead an interlocutory

order. Additionally, USATF argued that Brooks’ filing of a motion to correct

error following the July 2023 Order was an improper filing because her motion

was filed after the entry of an interlocutory order. USATF also asserted that

her motion to correct error, therefore, equated to a motion to reconsider and

that it did not extend the time period for Brooks to appeal the July 2023 Order.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 19 of 44 [34] Our Court, via our motions panel, denied USATF’s motion to dismiss. The

motions panel also granted Brooks’ motion to consolidate her Second Appeal

into her First Appeal.

[35] Thereafter, we held an oral argument in August 2024. Following the oral

argument, USATF filed a notice of stipulation regarding indemnity, in which it

“formally stipulate[d], in writing, that it will not seek indemnification from

Taliyah Brooks for the declaratory-judgment action she filed against [USATF]

on November 29, 2022, thereby commencing lower court Case Number 49D12-

2211-PL-041124 and this appeal.” (USATF’s Notice of Stipulation).

[36] Brooks now appeals the June 2023 Orders and the July 2023 Order.

Decision

[37] In this consolidated appeal, Brooks argues that the trial court erred when ruling

on the following orders: (1) the June 2023 Orders granting summary judgment

to USATF and denying summary judgment to Brooks on Brooks’ declaratory

judgment claim regarding the enforceability of the Waiver and Indemnity

Agreement under Indiana law; and (2) the July 2023 Order denying Brooks’

motion to amend her complaint to add claims against USATF for negligence,

gross negligence, recklessness, and willful and wanton conduct and to add two

additional defendants. We will, in turn, review the parties’ arguments under

the challenged orders.

(1) The June 2023 Orders Granting and Denying Summary Judgment

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 20 of 44 [38] Brooks’ complaint set forth, in part, a claim for declaratory relief, in which she

requested the trial court to enter a declaratory judgment that the Waiver and

Indemnity Agreement was unenforceable. The parties filed summary judgment

motions on the declaratory judgment issue and argued whether the Waiver and

Indemnity Agreement was enforceable under Indiana law. The trial court

entered the June 2023 Orders, granting USATF’s summary judgment motion

and denying Brooks’ partial summary judgment motion. Therefore, the trial

court determined or declared that the Waiver and Indemnity Agreement was

enforceable under Indiana law.

[39] Before we proceed to the summary of the parties’ arguments under the

challenged June 2023 Orders, we pause to briefly review the purpose of a

declaratory judgment. The Indiana Declaratory Judgment Act provides trial

courts with the “power to declare rights, status, and other legal relations

whether or not further relief is or could be claimed.” I.C. § 34-14-1-1. “The

purpose of the Uniform Declaratory Judgment Act is to ‘settle and to afford

relief from uncertainty and insecurity with respect to rights, status and other

legal relations.’” ResCare Health Servs., Inc. v. Indiana Family & Soc. Servs. Admin.

- Office of Medicaid Policy & Planning, 184 N.E.3d 1147, 1155 (Ind. 2022) (quoting

I.C. § 34-14-1-12). “When considering a motion for declaratory judgment, the

test to be applied is whether the issuance of a declaratory judgment will

effectively solve the problem, whether it will serve a useful purpose, and

whether or not another remedy is more effective or efficient.” ResCare, 184

N.E.3d at 1155 (cleaned up). “The primary purpose of declaratory relief is to

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 21 of 44 permit a plaintiff to obtain a declaration of its rights and liabilities before

proceeding with a course of conduct for which it might be held liable[.]” Mid-

Century Ins. Co. v. Estate of Morris ex rel. Morris, 966 N.E.2d 681, 688 (Ind. Ct.

App. 2012) (emphasis added) (cleaned up), trans. denied. “The declaratory

judgment statute was not intended to eliminate well-known causes of action or

to substitute an appellate court for a tribunal of original jurisdiction, where the

issues are ripe for litigation through the usual processes.” Ferrell v. Dunescape

Beach Club Condominiums Phase I, Inc., 751 N.E.2d 702, 707 (Ind. Ct. App.

2001). Instead, “the purpose of a declaratory judgment action is to quiet and

stabilize legal relations and thereby provide a remedy in a case or controversy

when there is still an opportunity for peaceable judicial settlement.” Id.

[40] On appeal, Brooks challenges the June 2023 Orders in which the trial court

granted USATF’s summary judgment motion and denied Brooks’ partial

summary judgment motion on the declaratory judgment issue of whether the

Waiver and Indemnity Agreement was enforceable under Indiana law. In

Brooks’ appellate brief, she initially raised a procedural question and asserted,

as she had below, that the trial court’s June 2023 Orders did not constitute a

final judgment because those orders did not resolve all claims and issues in the

case. Specifically, Brooks asserted that the summary judgment ruling did not

resolve her tort claims and that the trial court and the parties had agreed during

the summary judgment hearing that the issues regarding the applicability of

Oregon law were not being presented to the trial court for resolution. However,

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 22 of 44 during the oral argument before this Court, Brooks duly conceded that the June

2023 Orders did constitute a final judgment.

[41] The June 2023 Orders constituted a final judgment under INDIANA CODE § 34-

14-1-1 of the Declaratory Judgment Act. Indiana Appellate Rule 2(H)(5)

provides that “[a] judgment is a final judgment if . . . it is otherwise deemed

final by law.” INDIANA CODE § 34-14-1-1 provides, in part, that a trial court’s

order on a declaratory judgment claim or “declaration has the force and effect

of a final judgment or decree.” Additionally, our Court has held that

“[d]eclaratory orders have the force and effect of a final judgment, and we

review them in the same manner as other judgments.” 2444 Acquisitions, LLC v.

Fish, 84 N.E.3d 1211, 1214 (Ind. Ct. App. 2017). Therefore, we move to the

parties’ substantive argument regarding the June 2023 Orders.

[42] In the trial court’s June 2023 Orders, it granted USATF’s summary judgment

motion and denied Brooks’ partial summary judgment motion on the

interpretation of the Waiver and Indemnity Agreement under Indiana law. Our

standard of review for summary judgment cases is well-settled. When we

review a trial court’s grant of a motion for summary judgment, our standard of

review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45

N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the

moving party has shown that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000,

1003 (Ind. 2014). A trial court’s grant of summary judgment is “clothed with a

presumption of validity,” and an appellant has the burden of demonstrating that

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 23 of 44 the grant of summary judgment was erroneous. Williams v. Tharp, 914 N.E.2d

756, 762 (Ind. 2009) (cleaned up).

[43] Construction of a written contract, such as the Waiver and Indemnity

Agreement in this case, is a question of law for which summary judgment is

particularly appropriate. Rusnak v. Brent Wagner Architects, 55 N.E.3d 834, 840

(Ind. Ct. App. 2016), trans. denied. “When summary judgment is granted based

on the construction of a written contract, the trial court has either determined as

a matter of law that the contract is not ambiguous or uncertain, or that any

contract ambiguity can be resolved without the aid of a factual determination.”

Id. at 840-41. Because the interpretation of a contract involves a question of

law, we review de novo such interpretation. Id. at 840.

[44] Therefore, in this appeal from the trial court’s summary judgment orders on

Brooks’ declaratory judgment claim to interpret whether the Waiver and

Indemnity Agreement is enforceable under Indiana law, we will conduct a de

novo review of the Waiver and Indemnity Agreement. Accordingly, we will

apply the relevant rules of contract interpretation. See Henthorne v. Legacy

Healthcare, Inc., 764 N.E.2d 751, 757 (Ind. Ct. App. 2002) (“Indemnity

agreements are contracts subject to the rules and principles of contract

construction.”). We will “attempt to determine the intent of the parties at the

time the contract was made by examining the language used to express their

rights and duties[,]” and we will give the words used in a contract “their usual

and common meaning unless, from the contract and the subject matter thereof,

it is clear that some other meaning was intended.” GKN Co. v. Starnes Trucking,

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 24 of 44 Inc., 798 N.E.2d 548, 552 (Ind. Ct. App. 2003). Additionally, we note that

“[w]ords, phrases, sentences, paragraphs, and sections of a contract cannot be

read alone[,]” and “[t]he entire contract must be read together and given

meaning, if possible.” Id.

[45] In regard to the June 2023 Orders, Brooks argues that the trial court erred in its

summary judgment rulings on the enforceability of the Waiver and Indemnity

Agreement under Indiana law. Brooks does not contend that waiver and

indemnification provisions are not allowed. Instead, she argues that USATF’s

waiver and indemnification provisions within the Waiver and Indemnity

Agreement were unenforceable as a matter of law because the provisions did

not contain clear and unequivocal language referring to negligence and did not

explicitly provide that Brooks would be obligated to indemnify USATF for

USATF’s own negligence.

[46] Absent prohibitive legislation, “no public policy prevents the parties from

contracting as they desire.” Moore Heating & Plumbing, Inc. v. Huber, Hunt &

Nichols, 583 N.E.2d 142, 145 (Ind. Ct. App. 1991). Indeed, in Indiana,

exculpatory and indemnification agreements are not against public policy. See

id. (discussing indemnification agreements); Anderson v. Four Seasons Equestrian

Ctr., Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006) (discussing exculpatory

agreements), trans. denied. “Generally, parties are permitted to agree that a

party owes no obligation of care for the benefit of another, and thus, shall not

be liable for consequences that would otherwise be considered negligent.”

Anderson, 852 N.E.2d at 581. See also Avant v. Cmty. Hosp., 826 N.E.2d 7, 10

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 25 of 44 (Ind. Ct. App. 2005) (“In the absence of legislation to the contrary, it is not

against public policy in Indiana to enter into a contract that exculpates one

from the consequences of his own negligence.”), trans. denied. Moreover, “a

party may contract to indemnify another for the other’s own negligence.”

GKN, 798 N.E.2d at 552. “However, in order to ensure a party’s knowing and

willing acceptance of this harsh burden, we have held that such exculpatory

[and indemnification] clauses must specifically and explicitly refer to the

negligence of the party seeking release from liability.” Avant, 826 N.E.2d at 10.

See also Moore, 583 N.E.2d at 145 (explaining that such clauses must “define the

area of application, that is, negligence,” and “also define the cause of damages

in terms of physical or legal responsibility, that is, to whom the clause applies”).

[47] Therefore, we first must determine whether the Waiver and Indemnity

Agreement “expressly defines negligence as an area of application in clear and

unequivocal terms.” See Moore, 583 N.E.2d at 146. Here, the Waiver and

Indemnity Agreement provides that Brooks agreed to “release, waive and

covenant not to sue, and further agree to indemnify, defend and hold harmless”

the “Released Parties”6 or “Event Organizers” “with respect to any liability,

6 The Waiver and Indemnity Agreement defined the “Released Parties” or “Event Organizers” to include the following: USATF, its members, clubs, associations, sport disciplines and divisions; United States Olympic Committee (USOC); the event directors, the host organization and the facility, venue and property owners and operators upon which the Event takes place; and any other organizers, promoters, sponsors, advertisers, coaches and officials for this Event; law enforcement agencies and other public entities providing support for the Event; and each of their respective parent,

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 26 of 44 claim(s), demand(s), cause(s) of action, damage(s), loss or expense (including

court costs and attorneys’ fees) of any kind or nature (“Liability”) which may

arise out of, result from, or relate in any way to [her] participation in the Event”

of the Olympic Time Trials. (App. Vol. 6 at 165). Our Court has explained

that an exculpatory or indemnification clause “may be found sufficiently

specific and explicit on the issue of negligence even in the absence of the word

itself.” Avant, 826 N.E.2d at 10. See also Moore, 583 N.E.2d at 146. For

example, in Moore, the indemnification clause at issue used words such as

“liability,” “damages,” “actions,” “omissions,” “duties,” and “causations[,]”

and we explained that these words constituted the “language of negligence” and

“clearly, unequivocally, and expressly provide[d] that the indemnification

clause applie[d] to negligence” in context of the indemnification clause. Moore,

583 N.E.2d at 146. See also Avant, 826 N.E.2d at 10 (concluding that the

exculpatory clause’s use of words generally associated with negligence—such as

“claims,” “causes of action,” “acts,” “damage,” “responsibility,” and

“injury[,]”—"clearly demonstrate[d] that the [r]elease encompasse[d]

negligence” in the “context of the entire exculpatory clause”). Because the

Waiver and Indemnity Agreement used terms that constituted the “language of

negligence,” we conclude that the agreement sufficiently defined negligence as

an area of application. See Moore, 583 N.E.2d at 146.

subsidiary and affiliated companies, officers, directors, partners, shareholders, members, agents, employees and volunteers ([i]ndividually and collectively . . .)[.] (App. Vol. 6 at 165).

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 27 of 44 [48] Next, we must determine whether the Waiver and Indemnity Agreement

contains language that clearly and unequivocally provides that Brooks agreed to

waive and indemnify USATF for USATF’s own negligence. See Moore, 583

N.E.2d at 146. We conclude that it does. In reviewing the Waiver and

Indemnity Agreement, we again note that the “[w]ords, phrases, sentences,

paragraphs, and sections of [the Waiver and Indemnity Agreement] cannot be

read alone[,]” and we must read the entire contract together and give it

meaning. GKN, 798 N.E.2d at 552.

[49] Here, the Waiver and Indemnity Agreement, which includes the language of

negligence, also set forth a list of specific “risks and dangers associated with

participation in the Event” of the Olympic Time Trials. (App. Vol. 6 at 165).

These risks included, in part, “the potential for serious bodily injury[;] . . .

exposure to extreme conditions and circumstances; . . . dangers arising from

adverse weather conditions; imperfect course or track conditions; . . .

inadequate safety measures; . . . and other undefined, not readily foreseeable

and presently unknown risks and dangers (‘Risks’).” (App. Vol. 6 at 165). The

Waiver and Indemnity Agreement also provides that Brooks “underst[oo]d that

these Risks may be caused in whole or in part by [her] own actions or inactions

or the actions or inactions of others participating in or organizing the Event” of

the Olympic Time Trials. (App. Vol. 6 at 165). She agreed to “assume all such

Risks and responsibility for damages, liabilities, losses or expenses which [she]

incur[red] as a result of [her] participation in any Event, except to the extent

caused by the gross negligence and/or willful misconduct of any of the

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 28 of 44 Released Parties[.]” (App. Vol. 6 at 165). Additionally, the Waiver and

Indemnity Agreement also provides that Brooks agreed to “release, waive and

covenant not to sue, and further agree to indemnify, defend and hold harmless”

the “Released Parties” “with respect to any liability, claim(s), demand(s),

cause(s) of action, damage(s), loss or expense (including court costs and

attorneys’ fees) of any kind or nature (“Liability”) which may arise out of, result

from, or relate in any way to [her] participation in the Event” of the Olympic

Time Trials, “except to the extent caused by the gross negligence and/or willful

misconduct of any of the Released Parties.” (App. Vol. 6 at 165). The Waiver

and Indemnity Agreement contains yet another provision regarding

indemnification, wherein it provides that Brooks “further agree[s] that if,

despite this Agreement, [she], or anyone on [her] behalf, makes a claim for

Liability against any of the Released Parties, [she] will indemnify, defend and

hold harmless each of the Released Parties from any such Liabilities which may

be incurred as the result of such claim, except to the extent caused by the gross

negligence and/or willful misconduct of any of the Released Parties[.]” (App.

Vol. 6 at 165).

[50] We find that Moore is instructive in our interpretation and analysis of the

Waiver and Indemnity Agreement. In Moore, a subcontractor agreed to

indemnify and hold harmless a general contractor “from any and all liability . . .

from any claim or cause of action of any nature arising while on or near the Job

Site[,]” including “claims relating to its . . . employees, or by reason of any

claim or dispute of any person or entity for damages from any cause directly or

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 29 of 44 indirectly relating to any action or failure to act by [the subcontractor], its

representatives, employees, subcontractors or suppliers” and claims “whether or

not it is alleged that [the general contractor] in any way contributed to the

alleged wrongdoing or is liable due to a nondelegable duty.” Moore, 583 N.E.2d

at 144. Additionally, the indemnification clause provided that the

subcontractor would “not be obligated to indemnify [the general contractor] for

the sole negligence or willful misconduct where such indemnification is

contrary to law, but otherwise it is the intent of the parties that [the

subcontractor] shall indemnify [the general contractor] to the fullest extent

permitted by law for such liability[.]” Id. On appeal, our Court explained that

“the words of the indemnification clause as a whole . . . unquestionably and

expressly address the subject of a subcontractor’s indemnification of [the

general contractor] for [the general contractor’s] own negligence” where the

indemnification clause provided for “an expansive coverage of liability” and

then stated “an exception for indemnification” for the general contractor’s

negligence. Id. at 147. Our Court also explained that the parties were “free to

contract as they desired” and were free to include a provision in the contract

that the one party would indemnify the other party for the other party’s own

negligence. Id. We determined that the language in the indemnification clause

put the subcontractor on notice of the terms and that, when the subcontractor

accepted the contract, it “knowingly and willingly accepted the burden to

indemnify [the general contractor] for [the general contractor’s] own

negligence.” Id.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 30 of 44 [51] Similar to Moore, we conclude that the Waiver and Indemnity Agreement,

when reviewed as a whole, clearly addresses the subject of Brooks’ agreement

to indemnify USATF for USATF’s own negligence. The plain language of the

agreement reveals that it provides for an expansive coverage of liability related

to negligence and then specifically excludes Brooks’ waiver and indemnification

for USATF’s gross negligence and willful misconduct. The Waiver and

Indemnity Agreement’s inclusion of the exculpatory and indemnification

language put Brooks on notice of those terms, and her acceptance of the Waiver

and Indemnity Agreement resulted in her agreement to indemnify USATF for

USATF’s own negligence but not for USATF’s gross negligence or willful

misconduct. Because the Waiver and Indemnity Agreement as a whole defines

negligence as an area of application and clearly addresses the subject of Brooks’

indemnification of USATF for USATF’s own negligence, we conclude that the

trial court did not abuse its discretion by granting USATF’s summary judgment

motion and denying Brooks’ partial summary judgment motion on the

declaratory judgment issue of whether the Waiver and Indemnity Agreement

was enforceable under Indiana law.

[52] Brooks also argues that the trial court erred in its summary judgment rulings on

the enforceability of the Waiver and Indemnity Agreement under Indiana law

because the Waiver and Indemnity Agreement was against public policy and

was unconscionable where the agreement was a contract of adhesion and

USATF had superior bargaining power. We disagree.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 31 of 44 [53] “Whether a contract is against public policy in a particular situation is a

question of law dependent on the circumstances of the particular case.” Hi-Tec

Properties, LLC v. Murphy, 14 N.E.3d 767, 773 (Ind. Ct. App. 2014), trans. denied.

As stated above, exculpatory and indemnification agreements are not against

public policy in Indiana. See Moore, 583 N.E.2d at 145 (discussing

indemnification agreements); Anderson, 852 N.E.2d at 581 (discussing

exculpatory agreements). “Our courts have long recognized and respected the

freedom of parties to enter into contracts, and it is generally accepted that

parties may allocate risk by contract as a matter of such freedom.” McAdams v.

Foxcliff Estates Cmty. Ass’n, Inc., 92 N.E.3d 1144, 1149 (Ind. Ct. App. 2018)

(cleaned up). Moreover, our supreme court has “emphasized the very strong

presumption of enforceability of contracts that represent the freely bargained

agreement of the parties.” Cont’l Basketball Ass’n, Inc. v. Ellenstein Enterprises,

Inc., 669 N.E.2d 134, 139 (Ind. 1996) (citing Fresh Cut, Inc. v. Fazli, 650 N.E.2d

1126, 1129-30 (Ind. 1995)). “However, some exceptions do exist where the

parties have unequal bargaining power, the contract is unconscionable, or the

transaction affects the public interest such as utilities, carriers, and other types

of businesses generally thought to be suitable for regulation or which are

thought of as a practical necessity for some members of the public.” McAdams,

92 N.E.3d at 1149 (cleaned up).7 An adhesion contract is “a standardized

7 Additionally, our supreme court has explained that courts may refuse to enforce private agreements if the agreements “contravene statute, clearly tend to injure the public in some way, or are otherwise contrary to the declared public policy of Indiana.” Fresh Cut, 650 N.E.2d at 1130. When determining whether a contract

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 32 of 44 contract, which, imposed and drafted by the party of superior bargaining

strength, relegates to the subscribing party only the opportunity to adhere to the

contract or reject it.” Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411,

417 (Ind. Ct. App. 2004) (cleaned up), trans. denied. However, “[a] contract is

not unenforceable merely because one party enjoys advantages over another[,]”

and an adhesion contract “is not per se unconscionable.” Id. To be considered

unconscionable, the contract “must be such as no sensible man not under

delusion, duress or in distress would make, and such as no honest and fair man

would accept.” Id. (cleaned up).

[54] Ultimately, we conclude that Brooks has not met her burden of showing that

the trial court’s grant or denial of summary judgment was erroneous on the

basis of her unconscionability and public policy argument. See McAdams, 92

N.E.3d at 1149 (“The party appealing a summary judgment decision has the

burden of persuading the appellate court that the grant or denial of summary

judgment was erroneous.”). Here, Brooks entered into the Waiver and

Indemnity Agreement with USATF so that she could compete in the Olympic

Time Trials. We “recognize[] and respect[] the freedom of [Brooks and

USATF] to enter into [this] contract[.]” See McAdams, 92 N.E.3d at 1149.

is prohibited by public policy, our Courts will balance the following relevant considerations: (1) the nature of the subject matter of the contract; (2) the strength of the public policy underlying the statute; (3) the likelihood that refusal to enforce the bargain or term will further that policy; (4) how serious or deserved would be the forfeiture suffered by the party attempting to enforce the bargain; and (5) the parties’ relative bargaining power and freedom to contract. Cont’l Basketball Ass’n,, 669 N.E.2d at 140 n.9; Fresh Cut, 650 N.E.2d at 1130.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 33 of 44 Additionally, we note that “[a] contract is not unenforceable merely because

one party enjoys advantages over another.” Sanford, 813 N.E.2d at 417. Based

on our review of the record before us, consideration of the parties’ arguments,

and the balancing of the relevant considerations, we conclude that the Waiver

and Indemnity Agreement is neither contrary to public policy nor

unconscionable. Accordingly, we affirm the trial court’s June 2023 Orders on

summary judgment.

(2) The July 2023 Order Denying Brooks’ Motion to Amend Complaint

[55] We next turn to Brooks’ challenge to the July 2023 Order. Brooks argues that

the trial court abused its discretion by denying her motion to amend her

complaint under Trial Rule 15(A). We agree.8

[56] Indiana Trial Rule 15(A) provides, in relevant part, that a party “may amend

[her] pleading once as a matter of course” if within a certain time frame. Ind.

Trial Rule 15(A). “Otherwise a party may amend [her] pleading only by leave

of court or by written consent of the adverse party; and leave shall be given

when justice so requires.” Id. “It is well settled that although the trial court

8 As a preliminary matter, USATF asks this Court to reconsider our motions panel’s decision to deny USATF’s motion to dismiss Brooks’ appeal of the July 2023 Order denying Brooks’ motion to amend her complaint. While it is within this Court’s “inherent authority” to revisit a decision of the motions panel, we decline USATF’s request to do so in this case. See Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 293 (Ind. Ct. App. 2013) (explaining that our Court has the inherent authority to reconsider any decision of the motions panel while an appeal remains pending). See also Robertson v. Robertson, 60 N.E.3d 1085, 1089 (Ind. Ct. App. 2016) (“We are reluctant to overrule orders issued by the motions panel unless we have determined that there is clear authority establishing that the motions panel erred.”); In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014) (discussing consideration of “extraordinarily compelling reasons” for determining whether an appeal should be considered on its merits).

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 34 of 44 retains broad discretion in granting or denying amendments to pleadings,

amendments should be liberally allowed, while giving proper regard for any

prejudice to the nonmoving party.” Matter of Sarkar, 84 N.E.3d 666, 675 (Ind.

Ct. App. 2017). See also Palacios v. Kline, 566 N.E.2d 573, 575 (Ind. Ct. App.

1991) (“Amendments to the pleadings are to be liberally allowed in order that

all issues involved in a lawsuit are presented to the jury.”). We review a trial

court’s decision on a motion to amend a complaint for an abuse of discretion,

“which occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court or when the trial court has

misinterpreted the law.” Rusnak, 55 N.E.3d at 842. “We judge an abuse of

discretion by evaluating several factors, including undue delay, bad faith, or

dilatory motive on the part of the movant, repeated failure to cure deficiency by

amendment previously allowed, undue prejudice to the opposing party by

virtue of the amendment, and futility of the amendment.” Id. (cleaned up).

Ultimately, we are guided by “[t]he stated policy of this [C]ourt and our

[Indiana] Supreme Court[, which] is to freely allow such amendments in order

to bring all matters at issue before the court[,]” and we are cognizant that

“[l]eave to amend should be granted unless the amendment will result in

prejudice to the opposing party.” Rusnak, 55 N.E.3d at 843.

[57] Here, on June 21, 2023, the trial court issued its two summary judgment orders

on Brooks’ declaratory judgment claim in the June 2023 Orders, essentially

concluding that the Waiver and Indemnity Agreement was enforceable under

Indiana law. Two days later, on June 23, 2023, Brooks filed her motion to

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 35 of 44 amend her complaint to add claims of negligence, gross negligence,

recklessness, and willful and wanton conduct and to add two defendants.

When the trial court denied Brooks’ motion to amend her complaint in the July

2023 Order, it did not provide any specific explanation on its reasoning for

denying Brooks’ motion to amend.

[58] The parties do not dispute that Brooks’ motion to amend was filed within the

statute of limitations for the tort claims contained in her amended complaint.

Furthermore, during the oral argument before our Court, USATF conceded

that Brooks could have amended her complaint to add her tort claims to her

declaratory judgment complaint; however, USATF asserted that Brooks was

required to add those tort claims prior to the entry of the June 2023 Orders on

summary judgment. Additionally, USATF has also asserted that because

Brooks filed her motion to amend her complaint after the entry of the June 2023

Orders on summary judgment, then she could have only filed those new claims

under a completely separate cause number.9 Thus, both of USATF’s assertions

are based on its argument—which it made to the trial court and which appears

the trial court relied upon to deny Brooks’ motion to amend her complaint—

that the trial court could not grant Brooks’ motion to amend her complaint

9 In its appellate brief, USATF asserted that “[i]f Brooks wanted to purse tort claims against USATF (irrespective of the [Waiver and Indemnity Agreement’s] enforceability), she needed to file a new cause of action[.]” (USATF’s Br. 40).

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 36 of 44 following the entry of the summary judgment on her declaratory judgment

claim because it constituted a final judgment.

[59] In support of USATF’s argument that the trial court could not grant Brooks’

motion to amend her complaint following the entry of the summary judgment

on her declaratory judgment claim, USATF cites to cases in which the plaintiffs

sought to amend a complaint well after a final judgment had been entered after

a trial. For example, USATF cites to Jackson v. Russell, 491 N.E.2d 1017 (Ind.

Ct. App. 1986) and Leeper Elec. Servs., Inc. v. City of Carmel, 847 N.E.2d 227 (Ind.

Ct. App. 2006), reh’g denied, trans. denied. In Jackson, a plaintiff filed a complaint

for tortious interference against a defendant and then recovered a $2 million

judgment against the defendant. Jackson, 491 N.E.2d at 1019. Thirteen months

later, the plaintiff sought to amend his complaint for tortious interference to add

another defendant, and the trial court granted the motion to amend. Id. at

1019-20. Our Court reversed the trial court, explaining that the plaintiff’s

tortious interference claim had already proceeded to a final judgment. Id. In

Leeper, a plaintiff, who had received a $1.12 million judgment on an inverse

condemnation, sought to amend its complaint more than two years later to add

claims that the trial court had already granted the defendant’s motions for

judgment on the evidence and directed verdict during the trial. Leeper, 847

N.E.2d at 228-31. The trial court denied the plaintiff's motion. Id. at 230. Our

Court affirmed the trial court’s ruling, noting that the plaintiff’s “proffered

amended complaint contain[ed] claims that [we]re virtually identical to those

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 37 of 44 that the trial court disposed of by judgment on the evidence and/or directed

verdict[.]” Id. at 231.

[60] Brooks asserts that “what USATF presented to the trial court (and later to this

Court) as a hard and fast rule against allowing amendments after a summary

judgment is not accurate.” (Brooks’ Br. 30). Brooks further argues that the

“trial court should have allowed [the] amendment in this case where no

discovery ha[d] been taken, the case had only been pending for a matter of

months, and the only proceedings prior to the motion to amend were in relation

to competing motions for summary judgment regarding the enforceability of a

waiver and indemnification agreement[.]” (Brooks’ Br. 23). Additionally,

Brooks contends that “authorizing [her] first amendment of her Complaint at

this early stage in the lawsuit before any discovery was in the interest of justice

and resolving claims on the merits[.]” (Brooks’ Br. 23).

[61] We agree with Brooks. The Jackson and Leeper cases relied upon by USATF are

inapposite to the facts of this case. The plaintiffs in those cases each had

received a final judgment following a trial on the respective plaintiff’s claims

and then sought to amend their complaints—more than one year later—on the

very claims that had already been adjudicated on the merits at trial.

[62] Here, however, Brooks is not attempting to raise previously adjudicated claims

in her amended complaint. The June 2023 Orders on summary judgment had

“the force and effect” of final judgments, under INDIANA CODE § 34-14-1-1, on

Brooks’ declaratory judgment claim. See I.C. § 34-14-1-1. The June 2023

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 38 of 44 Orders were final judgments on the declaratory judgment claim, but they were

not final judgments on the merits of the tort claims that Brooks sought to bring

in her amended complaint.

[63] Moreover, we also reject USATF’s argument that Brooks could only file her

tort claims in her amended complaint under a separate cause number. Our

supreme court has explained that the “intent behind many of our Rules of Trial

Procedure is the avoidance of multiple lawsuits, which, along with judicial

economy and efficiency, has always been of significant concern in the

development of our legal principles.” ResCare, 184 N.E.3d at 1152 (cleaned up).

“In furtherance of these principles, our Trial Rules encourage liberal joinder of

claims and remedies.” Id. Our supreme court also explained that “[t]his

philosophy is evidenced by the broad scope of Trial Rule 18(A), which allows a

‘party asserting a claim for relief . . . [to] join, either as independent or as

alternate claims, as many claims, whether legal, equitable, or statutory as he has

against an opposing party.’” Id. (quoting T.R. 18(A)).

[64] In ResCare, a plaintiff petitioned for judicial review with the trial court and also

filed a claim for declaratory judgment. The trial court declined to rule on the

plaintiff’s declaratory judgment claim, in part, because the plaintiff had not filed

a separate complaint for declaratory judgment in a separate cause from his

judicial review cause. The Indiana Supreme Court reversed the trial court’s

ruling. Our supreme court explained that “Indiana generally disfavors multiple

lawsuits involving similar issues” and determined that “[t]he suggestion that

[the plaintiff] needed to file a separate complaint [wa]s flawed[] and [was] in

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 39 of 44 direct opposition to our judicial system’s principles of judicial economy and the

avoidance of multiple lawsuits where possible.” ResCare, 184 N.E.3d at 1152.

Additionally, our supreme court stated that “[w]hile [the plaintiff] could have

filed th[e] declaratory judgment request as a separate action, it did not have to

do so” and that “[t]o hold otherwise would needlessly incentivize numerous

lawsuits on related issues.” Id. (emphasis in original).

[65] Our review of the record before us reveals that there was no undue delay by

Brooks and no prejudice to USATF by Brooks filing her motion to amend.

From the time that Brooks first filed her initial declaratory judgment complaint,

she made it abundantly clear to USATF and the trial court that she intended to

file tort claims against USATF. Indeed, the purpose of Brooks filing her

declaratory judgment complaint was to ascertain the meaning and extent of the

Waiver and Indemnity Agreement under Indiana law before filing her tort

claims. See Mid-Century, 966 N.E.2d at 688 (explaining that “[t]he primary

purpose of declaratory relief is to permit a plaintiff to obtain a declaration of its

rights and liabilities before proceeding with a course of conduct for which it

might be held liable”) (cleaned up). Brooks filed her motion to amend to add

her tort claims to her complaint within the statute of limitations for those claims

and two days after the trial court entered the June 2023 Orders on summary

judgment on her declaratory judgment claim. Because there was no undue

delay by Brooks or prejudice to USATF, we conclude that the trial court abused

its discretion when it denied Brooks’ motion to amend her complaint to add her

tort claims. See, e.g., Rusnak, 55 N.E.3d at 844 (holding that the trial court had

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 40 of 44 abused its discretion by denying the plaintiffs’ motion to amend their complaint

to add an additional claim where there was no prejudice to the defendants).10

Accordingly, we remand this case to the trial court for further proceedings.11

[66] Affirmed in part, reversed in part, and remanded.

May, J., concurs. Brown, J., concurs in part, dissents in part with opinion.

ATTORNEY FOR APPELLANT William Bock, III Kroger, Gardis & Regas, LLP Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Crystal G. Rowe Kightlinger & Gray, LLP New Albany, Indiana John B. Drummy Jeffrey D. Hawkins Kightlinger & Gray, LLP Indianapolis, Indiana

10 We also reject USATF’s argument that the trial court did not abuse its discretion by denying Brooks’ motion to amend her complaint based on the futility of adding her tort claims. Essentially, USATF contends that either Brooks would not be able to prove her tort claims or that she was precluded from bringing some of her claims. If USATF has challenges to Brooks’ tort claims, it can raise any such challenges to the trial court in a motion for summary judgment or other motion on Brooks’ tort claims. 11 We direct the trial court to allow USATF and any additional defendants time to file their respective answer to Brooks’ amended complaint.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 41 of 44 Brown, Judge, concurring in part and dissenting in part.

[67] I fully concur with my colleagues that the trial court did not err in its ruling on

the parties’ summary judgment motions regarding the enforceability of the

Waiver and Indemnity Agreement under Indiana law. However, I disagree

with their conclusion that the trial court abused its discretion in denying

Brooks’ motion to amend her complaint.

[68] As noted by the majority, on June 21, 2023, the trial court issued its two

summary judgment orders on Brooks’ declaratory judgment claim, concluding

that the Waiver and Indemnity Agreement was enforceable under Indiana law.

Brooks filed her motion to amend her complaint two days later. The majority

states that, although the trial court did not provide any specific explanation or

its reasoning in denying the motion to amend, it appears the court denied the

motion because it believed it “could not grant Brooks’ motion to amend her

complaint following the entry of summary judgment on her declaratory

judgment claim because it constituted a final judgment.” Slip op. at 36-37. I

believe the trial court got it right.

[69] During oral argument before our Court, USATF conceded that Brooks could

have amended her declaratory judgment complaint to add her tort claims, but it

maintained that she was required to do so prior to the entry of final judgment,

in this case, summary judgment. To be clear, the parties agree that the entry of

summary judgment on Brooks’ declaratory judgment complaint was a final

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 42 of 44 [70] This Court has previously said, quite clearly and succinctly, that after final

judgment has been entered, “there is nothing left to amend.” Leeper, 847

N.E.2d at 231; accord Jackson, 491 N.E.2d at 1019 (observing that after final

judgment, the “case was over. There was nothing left to amend” and holding

that “a plaintiff may not seek to amend his complaint after judgment unless he

first has that judgment vacated or set aside under T.R. 59 or T.R. 60”). I am

not persuaded by the majority’s attempt to qualify this statement as dependent

upon the case proceeding to judgment following trial, as opposed to the entry of

summary judgment, as occurred here. In short, a final judgment is a final

[71] In my view, Brooks could have filed her motion to amend her declaratory

judgment complaint to add her tort claims against USATF any time prior to the

trial court’s entry of final judgment and, pursuant to Ind. Trial Rule 15(A), such

motion to amend would have been granted. However, after the trial court

entered final judgment, thereby disposing of her sole pending claim against

USATF, Brooks’ only options were to seek to have that judgment vacated or set

aside or to file her tort claims under a separate cause number. Her strategic

reasons for failing to do so prior to the running of the statute of limitations are

not our concern. The fact remains that at the time Brooks filed her motion to

amend, final judgment had already been issued and she had filed no motion to

vacate or set aside that judgment. The trial court properly denied the motion to

amend as there was nothing left for the court to amend as the complaint was at

that point a nullity.

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 43 of 44 [72] Upon review of the record, which includes the oral argument held before this

Court, and in light of our well-settled standard of review, I cannot say that the

trial court’s decision is clearly against the logic and effect of the facts and

circumstances before the court or that the court has misinterpreted the law.

Therefore, I respectfully dissent from the majority’s resolution of this issue and

would find no abuse of discretion in the trial court’s denial of Brooks’ motion to

Court of Appeals of Indiana | Opinion 23A-PL-1685 | October 30, 2024 Page 44 of 44