363 N.E.2d 985 (Ind. 1977), 677S451, Huff v. Travelers Indem. Co.

Docket Nº:677S451.
Citation:363 N.E.2d 985, 266 Ind. 414
Party Name:Margaret L. HUFF, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
Case Date:June 22, 1977
Court:Supreme Court of Indiana

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363 N.E.2d 985 (Ind. 1977)

266 Ind. 414

Margaret L. HUFF, Plaintiff-Appellant,



No. 677S451.

Supreme Court of Indiana.

June 22, 1977

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[266 Ind. 417] Harry V. Huffman, Bobby Jay Small, Indianapolis, for plaintiff-appellant.

Timothy W. Woods, South Bend, for defendant-appellee.


HUNTER, Justice.

Margaret Huff made a claim against Travelers Indemnity Company for freezing damage to her home which was covered by a homeowner's insurance policy issued by Travelers. The claim was denied and Huff brought suit on the policy. After trial, a jury returned a verdict for $6,000 in Huff's favor. Travelers moved for judgment on the evidence in its motion to correct errors. The trial court granted the motion and entered judgment for Travelers. From the memorandum in support of his order, it is apparent that the trial court entered judgment for Travelers on the basis that the jury verdict was clearly erroneous on the issue of waiver and estoppel as to certain provisions of the policy. The court also found that a new trial was merited, the weight of the evidence favoring Travelers on the issue of due diligence. Huff appealed and the Court of Appeals affirmed the trial court's [266 Ind. 418] decision. Huff v. Travelers Indemnity Co. (1975), Ind.App., 328 N.E.2d 430, rehearing denied, Ind.App., 333 N.E.2d 786.

  1. Amended Answer

    On February 28, 1972, Huff filed her complaint against Travelers. On March 27, 1972, Travelers filed its original answer denying certain paragraphs and affirmatively pleading that the insured 'did not exercise due diligence to protect the property from loss.' On July 30, 1972, Huff's husband died; he was also a plaintiff at the inception of this action. Travelers thereafter sought a summary judgment on February 23, 1973, raising for the first time that the insured had failed to comply with conditions precedent to the policy. The only condition specified was a twelve-month limitation on the bringing of suit. Huff moved to strike this motion on the grounds that the limitation

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    was an affirmative defense not pleaded. Subsequently, Travelers sought to amend its answer on April 2, 1973. The amended answer asserted Huff's failure to give immediate written notice, failure to provide an inventory of the loss, failure to give a verified proof of loss within sixty days and failure to bring suit within twelve months of the loss. A hearing was held on the motion for summary judgment, the motion to amend and on Huff's motion to strike the motion for summary judgment. Subsequent to this hearing the trial court denied Travelers' motion for summary judgment and granted its motion to amend the answer.

    The Court of Appeals ruled that any error in permitting the amended answer was not preserved for appeal by Huff since no objection to the motion was made by her. We agree with the Court of Appeals opinion on rehearing that even construing Huff's motion to strike and the affidavit of Travelers' local agent as a sufficient objection, the trial court did not abuse its discretion in permitting the amended answer.

    Trial Rule 15(A) provides that pleadings may be amended once as a matter of course within thirty days after service [266 Ind. 419] of the pleading. Otherwise, and of greater moment to this case, amendment is allowed only by consent of the parties or by leave of court, and 'leave shall be given when justice so requires.' In its decisions on whether to permit amendments to pleadings, the trial court is vested with a broad discretion. Selvia v. Reitmeyer (1973), 156 Ind.App. 203, 295 N.E.2d 869; Civil Code Study Commission Comments in 2 Harvey, Indiana Practice 121 (1970). The policy generally and in this state is liberally to allow the amendment of pleadings, Higgins v. Swygman (1923), 194 Ind. 1, 141 N.E. 788, and leave to amend should be given unless the amendment will result in prejudice to the opposing party.

    'Whether the amendment will result in prejudice to a party is of prime consideration in determining a motion for leave to amend. . . .

    '. . . Indeed, unless there are complications arising by virtue of the statute of limitations, an amendment to the complaint may introduce a new or different claim.'

    Harvey, supra, at 130.

    Huff contends that she has been prejudiced by permitting Travelers' answer to be amended after the death of her husband. She states that since her husband died after the original answer and before the amended answer, there was an irretrievable loss of evidence with which to contradict the new defenses, much of the negotiation carried on with the local agent being done by her husband. Assuming that Huff's husband was possessed of evidence vital to her case, we cannot see how she is specifically prejudiced by the amendment of the answer. His testimony would seem to be equally material to a trial of this case regardless of the amendment. And it would seem that if a deposition had been possible, if, for example, her husband were known to be a 'going' witness, it would have been taken even if there were no amendment. Huff is no more prejudiced by the amendment than is anyone whose evidence disappears and is unable to refute a defense. There is no showing of any bad faith delay on the part of the defendant. Neither has Huff [266 Ind. 420] shown that anything could have been done by way of deposing Mr. Huff as a witness had a prompt answer preceded his death. The same reason to depose him existed prior to the amendment. The trial court did not exceed its discretion in permitting Travelers to amend its answer.

  2. Judgment on the Evidence

    Travelers moved for judgment on the evidence in its motion to correct errors, as provided for by Trial Rule 50(A)(4). Our rule governing the trial court's review of the evidence when considering a motion to correct errors provides:

    'In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines

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    that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or if the court determines that the findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence.'

    Ind.R.Tr.P. 59(E)(7) (emphasis added).

    Similarly, our rule concerning judgments on the evidence provides:

    'Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon...

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