City of Indianapolis, Appellant-Defendant v. L.P., a minor, b/n/fs Julie Pochik and Franklin Pochik, Appellees-Plaintiffs (2026)

MEMORANDUM DECISION

Case Summary

[1] L.P. sustained injury while riding an electric scooter owned by Bird Rides, Inc. (Bird). Later, L.P., by his next friends Julie and Franklin Pochik (collectively, the Pochiks), filed suit against the City of Indianapolis (the City). Around the same time, Bird filed for bankruptcy, and an order was issued in that case permanently staying certain claims involving Bird. The City filed notice of this order in the trial court, arguing the Pochiks’ claim must be stayed pursuant to that order. The trial court ultimately disagreed and allowed the case to proceed. Finding the claim is barred, we reverse and remand with instructions.

Facts and Procedural History

[2] In August 2023, nine-year-old L.P. was driving a Bird electric scooter in downtown Indianapolis when he hit a piece of uneven pavement on the street and was ejected from the scooter. He suffered a fractured jaw and clavicle. On January 31, 2024, the Pochiks filed suit against the City alleging negligence in maintaining the street.

[3] Meanwhile, in December 2023, Bird filed for Chapter 11 bankruptcy in the Southern District of Florida, Miami Division (the Bankruptcy Court). See In re Bird Global, Inc., No. 23-20514-CLC (the Bankruptcy Case). The Pochiks received notice of the Bankruptcy Case on January 2, 2024, several weeks before filing their state tort claim. In August 2024, the Bankruptcy Court issued an order partially titled, “Bar Order and Channeling Injunction” (the Bar Order). App. Vol. III p. 134 (formatting altered). The Bar Order “permanently and forever barred, estopped, stayed, and enjoined” certain claims involving Bird, including claims against “cities in which [Bird] previously operated and ․ is contractually obligated to indemnify[.]” Id. at 186-87 (formatting altered).

[4] The City filed a notice of the permanent injunction with the trial court and requested the Pochiks’ claim be permanently stayed. A hearing was held in April 2025, after which the trial court issued an order staying the case “until such time that [the Pochiks] provide[ ] evidence that the Bankruptcy Court has ordered that this case may proceed.” App. Vol. IV p. 201. The Pochiks filed a motion to reconsider, asserting they were unable to proceed with their claim in the Bankruptcy Case and thus a stay in state court would prevent their claim from going forward at all.¹ The court granted the motion to reconsider without explanation, vacating its order staying the case and directing the case to proceed. The City then sought and received permission to file this interlocutory appeal.

Discussion and Decision

[5] We first note the Pochiks did not file a brief. “When the appellee fails to submit a brief, we will not develop an argument on [their] behalf but, instead, we may reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.” Perez v. Mounce, 110 N.E.3d 404, 408 (Ind. Ct. App. 2018). “Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (quotation omitted).

[6] Indisputably, if the Bankruptcy Court's Bar Order applies to the Pochiks’ claim, then it cannot proceed. Our Supreme Court has explained,

[u]nder the U.S. Constitution, the federal government enjoys the exclusive power to promulgate bankruptcy laws. U.S. Const., art. I, § 8. “Because bankruptcy law is federal law, enacted pursuant to the constitutional grant of bankruptcy power, it preempts state law ․ pursuant to the supremacy clause ․” Renges, Inc. v. PAC Financial Corp., (1987), Ind. App., 515 N.E.2d 563, 566 (quoting In Re Safren, 65 B.R. 566, 573 (Bankr. C.D. Cal.1986)). Both Congress and the U.S. Supreme Court have recognized the preeminent nature of federal court jurisdiction over bankruptcy matters. Congress enacted 28 U.S.C. § 1334(a), which provides that federal courts have original and exclusive jurisdiction in all bankruptcy matters. “[T]here should be no legitimate question about the legislative intent to vest the [federal court] with a complete, pervasive, jurisdiction over all matters that have to do with a bankruptcy case ․” George Treister, Fundamentals of Bankruptcy Law § 2.01 (2d ed. 1988). In addition, in Pepper v. Litton, the U.S. Supreme Court concluded that “the jurisdiction of the bankruptcy court is exclusive of all other courts.” Pepper v. Litton, 308 U.S. 295, 304, 60 S. Ct. 238, 244, 84 L. Ed. 281 (1939). Finally, this court has also recognized the “supremacy of the federal courts in matters related to bankruptcy proceedings.” Carpenter v. Farm Credit Services (1995), Ind., 654 N.E.2d 1125, 1127.

Hammes v. Brumley, 659 N.E.2d 1021, 1027 (Ind. 1995).

[7] The City points to the following language in the Bar Order to support its contention that the Pochiks’ claim against it is barred:

All Persons and Entities holding a Barred Claim, including without limitation all Barred Persons, shall be permanently and forever barred, estopped, stayed, and enjoined from taking any action, directly or indirectly, or commencing or continuing any suit, action, or other proceeding on, or asserting, enforcing, or attempting to assert or enforce, any Barred Claim against any of the Insurance Settlement Released Parties, or any of their property or assets[.]

App. Vol. III p. 187 (formatting altered). The Bar Order includes the following definitions:

Barred Claims means all Claims against [Bird] and/or the Insurance Settlement Released Parties.

***

Insurance Settlement Released Parties means the Settling Insurers’ Parties, all Named Insured, Additional Insured, the Purchaser Parties and [Bird], and is intended to include each Municipality.

Municipality means all of the cities in which [Bird] previously operated and which is either a Named Insured, Additional Insured, or otherwise an entity [Bird] is contractually obligated to indemnify[.]

***

Tort Claims means all Claims, whether asserted or unasserted, held by any Person or Entity against [Bird], the Settling Insurers’ Parties, the Purchaser Parties or any Person or Entity who may claim to be an Insured, Additional Insured, or otherwise claim to be entitled to coverage under any of the Insurance Policies or any Insurance Program for bodily or personal injury, tort claim, or property damage related to, or arising out of the use, placement, operation, transportation, renting, leasing, and/or recovery of [Bird's] micro-mobility vehicles and/or arising out of the operation of [Bird's] businesses.

Id. at 185-87.

[8] The City further contends it has an indemnification agreement with Bird as codified in Chapter 905 of the Marion County Municipal Code, which applies to “shared mobility device[s]” including a “[s]cooter” and provides,

Any shared mobility device operator issued a license under this chapter shall, as a condition of the issuance and continued validity of the license to operate a shared mobility system, indemnify, hold harmless and defend, by counsel of the city's choosing, the Consolidated City of Indianapolis and Marion County and their respective officers, agents, officials and employees for any and all third party claims, actions, causes of action, judgments and liens to the extent they arise out of any negligent or wrongful act or omission, or violation of any provision of this Code or other law by an operator or any of its officers, agents, employees and users arising from the operation, maintenance, or use of the shared mobility system and the operator's shared mobility devices.

Marion Cnty. Mun. Code § 905-105; see also App. Vol. IV p. 197 (Operator Agreement between the City and Bird).

[9] The City contends it is a Municipality that Bird is obliged to indemnify and therefore is an Insurance Settlement Released Party. As such, the City argues the Pochiks’ claim against it is a Barred Claim and should be permanently stayed. Given the language above, we agree.

[10] We acknowledge the trial court's equity concerns that the Pochiks can no longer proceed with their claim in state court. However, the Bankruptcy Court specifically acknowledged this effect in its Bar Order.

[T]he Tort Claims, whether asserted directly against [Bird] and/or the Municipalities, are clearly interrelated. As the Court has recognized throughout these Chapter 11 Cases, a Tort Claim against a Municipality, whether or not [Bird is] joined, is effectively a Tort Claim against [Bird] because there is an obligation by [Bird] to indemnify the Municipalities pursuant to the permits to operate in the applicable Municipalities. Moreover, both Tort Claims against [Bird] and against the Municipalities share the same insurance coverage, as named insureds or beneficiaries, such that a Tort Claim against a Municipality or [Bird] share coverage in a similar fund to the extent of available insurance.

***

Litigation over [Bird's] or Municipalities’ liability with respect to the Tort Claims would be lengthy, complex, and costly with the costs of litigation in over two hundred personal injury cases. These cases are complex and involve multiple issues with liability, including contributory negligence, apportionment of fault, etc. with no guarantee that the Tort Claimants would ultimately prove liability or obtain a judgment against [Bird] and/or the Municipalities.

***

All of this protracted litigation, including arbitrability and coverage litigation, would without question result in increased costs, reducing the funds available for distribution to Tort Claimants, making it highly unlikely that the result of such litigation would be more favorable than the proposed terms of the Insurance Settlement Agreements. Finally, there is no doubt that [Bird] lack[s] the funds necessary to satisfy the Tort Claims, or even defend the Tort Claims, and any further litigation would cause all remaining assets to be depleted. [Bird] similarly do[es] not have the funds to litigate coverage issues with the Insurers or defend claims related thereto. As a result, the Court is satisfied that the proposed Insurance Settlement Agreements set forth in the Plan, including the required Bar Order and Channeling Injunction in connection therewith, are both fair and equitable.

App. Vol. III pp. 49-51.

[11] Ultimately, pursuant to the Bar Order, the Pochiks’ claim is barred. We reverse and remand with instructions to stay the case.

[12] Reversed and remanded with instructions.

FOOTNOTES

1.   Whether the Pochiks could proceed with their claim in the Bankruptcy Case through the Bird Bankruptcy Tort Claims Trust was a source of confusion at the hearing. Following the hearing, the City filed a memorandum with the court indicating the Pochiks were eligible to proceed in the Bankruptcy Case. See App. Vol. IV pp. 91-95. However, in the Pochiks’ motion to reconsider they asserted that, while they may have previously been eligible, the time limit for asserting the claim had passed, and thus they could no longer proceed. See id. at 202-03. Ultimately, the Pochiks’ eligibility in the Bankruptcy Case is a matter for that court and has no bearing on our holding today.

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.