Newton v. Yates

• Decision Date: 31 August 1976
• Docket Number: No. 1--975A160,1--975A160
• Citation: 170 Ind.App. 486,353 N.E.2d 485
• Parties: Julia NEWTON, Appellant (Plaintiff below), v. George A. YATES and United Farm Bureau Mutual Insurance Company, Appellees(Defendants below).
• Court: Indiana Appellate Court

Page 485

353 N.E.2d 485

170 Ind.App. 486

Julia NEWTON, Appellant (Plaintiff below), v. George A. YATES and United Farm Bureau Mutual Insurance

Company, Appellees(Defendants below).

No. 1--975A160.

Court of Appeals of Indiana, First District.

Aug. 31, 1976.

Rehearing Denied Oct. 8, 1976.

Buena Chaney, Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, for appellant.

Jerdie D. Lewis, Stephen L. Trueblood, Lewis, Lewis & Trueblood, Terre Haute, for United Farm Bur. Mut. Ins. Co.

John C. Kite, Terre Haute, for George A. Yates.

LYBROOK, Judge.

Plaintiff-appellant Julia Newton appeals from a negative judgment following trial by jury in her action to recover damages for personal injury.

The facts of the case indicate that plaintiff's alleged injuries were sustained as the result of a collision between an automobile operated by her sister, Helen Prall, and an automobile operated by defendant-appellee George Yates, an uninsured motorist. Plaintiff was a passenger in Prall's automobile at the time of the collision. Defendant-appellee, United Farm Bureau Mutual Insurance Company, (Farm Bureau) had issued a policy of insurance to Prall providing uninsured motorist coverage for Prall and passengers in her automobile. At trial, Farm Bureau admitted that by reason of its contract of insurance with Prall, it would be liable to the extent of its policy limits for any judgment rendered in plaintiff's favor against Yates.

Prior to trial, plaintiff served notice that she would assert a claim against Farm Bureau for punitive damages based upon its alleged misconduct in handling plaintiff's claim. Farm Bureau moved for and was granted a separate trial on the issue of punitive damages.

Trial upon the issue of Yates' liability resulted in a jury verdict in favor of Yates and Farm Bureau. Following entry of judgment against her, plaintiff filed her motion to correct errors which was overruled. For the reasons hereinafter stated, we conclude that plaintiff has demonstrated reversible error. Accordingly, we reverse the judgment and remand for a new trial.

As a result of our disposition of this appeal, we deem it necessary to address the following five of plaintiff's eleven alleged errors:

(1) Whether the court erred in granting Farm Bureau's motion for separate trial on plaintiff's asserted punitive damages issue.

(2) Whether the court erred in failing to order production by Farm Bureau of certain documents and evidence within Farm Bureau's control.

(3) Whether the trial court erred in granting Farm Bureau's motion to prevent plaintiff from taking depositions of Farm Bureau and two of its agents.

(4) Whether the court erred in granting Farm Bureau's motion to quash certain of plaintiff's witness subpoenas served upon Farm Bureau and two of its agents.

(5) Whether the court erred in granting Farm Bureau's motion to quash plaintiff's subpoena duces tecum served on defendant Farm Bureau.

I.

Plaintiff's first alleged error is based on the trial court's granting of Farm Bureau's motion for a separate trial on the plaintiff's claim for punitive damages.

Less than two months prior to trial, plaintiff notified both defendants of her intention to assert a claim against Farm Bureau for punitive damages for its alleged malice, fraud, oppressive conduct and heedless disregard of the consequences in its handling of plaintiff's damage claim. Farm Bureau's motion for separate trial was granted following voir dire and swearing of the jury, but prior to opening statements and admission of any evidence.

The granting of a motion for separate trial is governed by Ind. Rules of Procedure, Trial Ruel 42(B):

'(B) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues, always preserving inviolate the right of trial by jury.'

We believe it imperative that the trial court be granted a wide degree of latitude in exercising its proper discretion in the granting of a motion made pursuant to TR. 42(B), for separation of trials.

The primary issues to be tried dealt with the negligence of defendant Yates and any damages which that alleged negligence had caused the plaintiff. The somewhat belated assertion of a punitive damages claim changed the character of the issues, facts and evidence to be presented. For these reasons alone the trial court was clearly within its discretion to grant a separate trial, even at the rather unusual time when the motion was granted in the case at bar. City of Indianapolis v. L & G Realty & Constr. (1960), 132 Ind.App. 17, 170 N.E.2d 908; Holt v. Granite City Steel Company (E.D.Ill.1957), 22 F.R.D. 65; Locicero v. Humble Oil & Refining Company (E.D.La.1971) 52 F.R.D. 28; 319 F.Supp. 1133.

In light of the possible prejudice and confusion which could be created in the minds of the jurors by a punitive damages claim tried simultaneously with the liability issue, the trial court was well within its discretion to grant a separation of trials.

II.

Newton's second issue for our review concerns the scope of discovery under the Indiana Trial Rules and the trial court's alleged error in excluding from discovery the vast majority of the documentary material requested. Newton requested the following items:

'(a) Investigation made and taken by employees, agents, and adjusters of, for, and on behalf of said insurance company of the automobile collision on January 8, 1972, between an automobile being driven by its insured Helen M. Prall (Policy No. 538959; membership No. 661091) and an automobile being driven by George A. Yates.

'(b) Contents of all statements taken and recorded by said insurance company (United Farm Bureau Mutual Insurance Company) from all witnesses and parties to said collision.

'(c) Estimates of damages done to the two automobiles involved in the collision, the repair orders, drafts issued by said company in payment for such repairs; and all photographs taken by said insurance company of said automobiles and the scene of the collision.

'(d) Subrogation agreements signed by Helen M. Prall in favor of said insurance company.

'(e) Correspondence from said insurance company to George A. Yates concerning said collision, and all correspondence received by said insurance company from George A. Yates concerning said collision.

'(f) All contracts, agreements, and statements in possession of said insurance company that were signed by George A. Yates concerning said collision.

'(g) Records of account kept by said insurance company showing monies paid to said insurance company by George A. Yates arising as a result of said collision.

'(h) All correspondence had between said insurance company and John C. Kite, Attorney for George A. Yates, concerning said collision.

'(i) All reports filed with said insurance company by its agent Dean Thomas concerning the investigation of said collision, including all correspondence to and from said agent sent and received by said insurance company.

'(j) All reports filed with said insurance company by its agent, Harry Jones, concerning the investigation of said collision and negotiations with Helen M. Prall, Julia Newton and attorney Buena Chaney, arising out of said collision, and all correspondence between said Harry Jones and said insurance company arising out of said collision.

'(k) All reports of liability evaluation made by agents of said insurance company concerning said collision.

'(l) All correspondence between said insurance company and Melvin M. Jennings, (the owner of the trailer parked near the scene of the collision) all investigation reports of interviews held by said insurance company with said Melvin M. Jennings, and all photographs of the trailer belonging to Jennings.'

Any discussion of the correctness of the trial court's ruling on a scope of discovery question must use as its foundation the Indiana Rules of Procedure and more specifically TR. 26(B):

'(B) Scope of discovery. Unless otherwise ordered by the court in accordance with these rules, the scope of discovery is as follows:

'(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that theinformation sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

'(2) Trial preparation: Materials. Subject to the provisions of subdivision (B)(1) and (3) of this rule, a party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing of good cause therefore, except that a statement concerning the action or its subject-matter previously given by the party seeking the statement may be obtained without such a showing. A statement of a party is

'(a) a written statement signed or otherwise adopted or approved by the party, or

'(b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement which was made by the party and contemporaneously recorded.'

Two key terms of TR. 26(B) provide the guidelines by which a trial court must rule in requiring the production of documents. Initially, there...