Bailey v. State Farm Mut. Auto. Ins. Co., 88A01-0707-CV-306.

Decision Date28 February 2008
Docket NumberNo. 88A01-0707-CV-306.,88A01-0707-CV-306.
Citation881 N.E.2d 996
PartiesNoah BAILEY, Appellant-Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee-Defendant.
CourtIndiana Appellate Court

Daniel L. Brown, Allen, Allen & Allen, Salem, IN, Attorney for Appellant.

Kenneth G. Doane, Jr., George A. Budd, V, Ward, Tyler & Scott, LLC, New Albany, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Noah Bailey appeals following a jury trial at which the jury found for the defendant below, State Farm Mutual Automobile Insurance Company ("State Farm"). Bailey raises two issues, which we restate as whether the trial court abused its discretion in denying Bailey's Motion to Conform Pleadings to the Evidence and in refusing to give Bailey's tendered instruction regarding a theory of negligent entrustment. Concluding that the trial court did not abuse its discretion in either regard, we affirm.

Facts and Procedural History

On July 3, 1998, Bailey and Matt Caudill set off in Bailey's pickup truck to go to a quarry to buy gravel for Caudill's driveway. Based on Caudill's testimony,1 at some" time in the morning, they stopped at a bar and watched bull riding for roughly an hour, and consumed "some alcohol," and "might have" taken some beer with them from the bar. Transcript at 7. After arriving at Caudill's house, the two were "drinking beer," and then decided to go on "what [they] called a road trip, just driving around talking." Id. at 8. They then drove to a bar in Medora where they ate lunch and Caudill "believe[s]" they consumed more alcohol. They then returned to Caudill's home where Caudill mowed his grass with a riding lawn mower he had borrowed from his sister. After finishing, he decided to drive the mower back to his sister's house, as it was not possible to get the mower into Caudill's truck. Apparently, Bailey followed in Caudill's truck. On the way, the two came upon a mutual friend, Troy Roop, who was mowing his lawn, and Caudill stopped to help. After Roop and Caudill finished mowing, the three sat and talked for "maybe fifteen minutes." Id. at 15. Caudill could not recall if the three consumed any alcohol. Caudill then proceeded to his sister's house, where he mowed her grass until Bailey arrived roughly ten or fifteen minutes later. Caudill got in his truck, and Bailey set off for Caudill's house. Caudill described the accident as follows:

So as we were coming down the hill, Rush Creek Road right before you get to the greenhouses it cuts a little back to the left as you're going down the hill and the passenger side tire got off in the grass just a little bit and then [Bailey] had been overcorrecting, he jerked the wheel and the whole truck spun around in the road and, uh, I reached up to ... grab . . . [a] handle to brace myself and the next thing I know we slammed backwards and I blacked out and the next thing I'm coming to and I'm on the ground behind the truck.

Id. at 16-17.

Caudill later clarified that he owned the vehicle Bailey was driving and had control "[a]s far as giving permission or allow[ing] [people] to drive [it]." Id. at 38. Caudill then testified that both he and Bailey had been drinking that day, and in response to the question "[y]ou pretty well drank all day, hadn't you?", Caudill responded "Pretty much." Id. at 39.2 Bailey sustained serious injuries in the accident.

On June 27, 2000, Bailey and his wife filed a negligence suit against Caudill. On August 12, 2003, Bailey filed a Motion for Joinder of Necessary Party and Motion to Amend Complaint in order to add State Farm, whom Bailey alleged was liable for damages caused by Caudill pursuant to the underinsured motorist provision of Bailey's insurance policy. On October 7, 2003, Caudill was dismissed, with prejudice, as a party to the lawsuit. In the initial complaint and in the amended complaint including State Farm, Bailey alleged that Caudill had been driving the truck at the time of the accident. On September 23, 2005, Bailey filed another motion to amend complaint. In this third amended complaint, Bailey deleted the phrase "and the vehicle he was operating" from the following allegation: "That Matthew Caudill and the vehicle he was operating at the time of the accident, were underinsured by the terms of the policy issued by the Defendant, [State Farm], and that the Defendant, [State Farm], is liable to the Plaintiff for the injuries and damages suffered in said accident." Appellant's App. at 106. This Third Amended Complaint still contained the allegation that Bailey "was in a vehicle ... that was being driven by Matthew Caudill." Id. at 108.

On January 16, 2007, a jury trial commenced. Following voir dire, State Farm moved for, and was granted, a motion in limine prohibiting Bailey from presenting evidence regarding a theory of negligent entrustment. On January 18, 2007, following the introduction of evidence, Bailey filed a Motion to Amend Pleadings to Conform to the Evidence, seeking to add an allegation that Caudill had negligently entrusted Bailey with the truck. The trial court denied this motion. Bailey also tendered the following jury instruction on negligent entrustment:

If you determine from the evidence that Noah Bailey was driving the vehicle at the time of the accident, then you shall consider whether the tortfeasor, Matthew Caudill, negligently entrusted his vehicle to Noah Bailey. In determining whether or not Matthew Caudill negligently entrusted his vehicle to Noah Bailey, Noah Bailey must show by a preponderance of the evidence all of the following elements.

(1) Matthew Caudill entrusted his truck;

(2) to an incapacitated person or one who is incapable of using due care;

(3), with actual and specific knowledge that the person is incapacitated or incapable of using due care at the time of the entrustment;

(4) that the entrustment was the proximate cause of an injury; and

(5) that damages resulted from the entrustment

Id. at 45. The trial court refused to give this instruction.

The jury returned a verdict indicating that it found Bailey fifty-one percent at fault and Caudill forty-nine percent at fault. The trial court subsequently entered judgment in favor of State Farm. On February 16, 2007, Bailey filed a Motion to Correct Errors, arguing that the trial court improperly denied Bailey's motion to conform the pleadings to the evidence. On April 16, 2007, the trial court held a hearing on this motion. On April 26, 2007, the trial court issued an order denying the motion. Bailey now appeals.

Discussion and Decision
I. Motion to Amend the Pleadings To Conform to the Evidence

A. Standard of Review

Amendments to conform the pleadings to the evidence presented at trial are governed by Indiana Trial Rule 15(B), which states:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the `objecting party to meet such evidence.

The rationale behind this rule "is to promote relief for a party based upon the evidence actually forthcoming at trial, notwithstanding the initial direction set forth by the pleading." Curtis v. Clem, 689 N.E.2d 1261, 1264 (Ind.Ct.App.1997). A party's ability to amend the pleadings is broad but is not without limitation. See Showalter v. Brubaker, 650 N.E.2d 693, 701 (Ind.Ct.App.1995). "A party should be able to amend where the facts are sufficiently pleaded to put the other party on notice as to the evidence to be presented at trial.'" Id. (quoting Bahre v. Metro. Sch. Dist., 400 N.E.2d 197, 201 (Ind.Ct. App.1980)). A party should also be permitted to amend its pleadings to change its theory of recovery if that theory is supported by the facts as presented at trial. Id. We have traditionally applied this rule liberally "to permit amendment of pleadings at any point in the proceedings where the parties have consented, as attested by the evidence admitted without objection; to a trial upon issues not raised by the pleadings." Midway Ford Truck Ctr., Inc. v. Gilmore, 415 N.E.2d 134, 137 (Ind.Ct.App. 1981). However, we have also recognized that the trial rule allowing amendment "was intended to permit amendment to the pleadings only when evidence on an unpleaded issue is `unequivocally clear' to the opposing party but is nevertheless admitted without objection." Elkhart County Farm Bureau Co-op. Ass'n, Inc. v. Hochstetler, 418 N.E.2d 280, 285 (Ind.Ct.App. 1981) (quoting Aldon Builders, Inc. v. Kurland, 152 Ind.App. 570, 580, 284 N.E.2d 826, 832 (1972)). Also, a trial court should not grant a motion to amend where "the objecting party establishes that amendment would prejudice him in maintaining his action or defense." Colonial Mortgage Co. of Ind., Inc. v. Windmiller, 176 Ind.App. 535, 542 n. 3, 376 N.E.2d 529, 534 n. 3 (1978). We review a trial court's ruling on a motion to amend the pleadings to conform to the evidence for an abuse of discretion. See Schoemer v. Hanes & Assocs., Inc., 693 N.E.2d 1333, 1340 (Ind.Ct. App.1998).3

Here, Bailey sought to amend the pleadings to include a claim for negligent entrustment. As a threshold requirement, we must determine whether sufficient evidence was introduced at trial to...

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