Board of Com'rs of Cass County v. Nevitt, 4-782A221

Docket NºNo. 4-782A221
Citation448 N.E.2d 333
Case DateMay 09, 1983
CourtCourt of Appeals of Indiana

Tom F. Hirshauer, Jay T. Hirschauer, Logansport, for appellants.

John D. Proffitt, Judith S. Proffitt, Campbell, Kyle & Proffitt, Noblesville, for appellees.

YOUNG, Presiding Judge.

Gregory Nevitt and Rebecca Nevitt (now Spitznogle) brought suit against the Cass County Board of Commissioners (the Board) and Christopher Cart for injuries sustained by Gregory when his car collided with a Cass County snow plow driven by Cart. After a bench trial, the court entered judgment for Gregory against Cart in the amount of $2,750,000; and found for Rebecca against both Cart and Cass County in the amount of $100,000. Appealing these judgments, Cart and the Board raise the following issues:

I. Whether Gregory's action against Cart was barred, under the Indiana Tort Claims Act, after Gregory amended his complaint to remove the Board as a defendant;

II. Whether Gregory's inability to recover from Cart or the Board for his injuries precluded Rebecca's recovery for loss of consortium;

III. Whether the court erred in not finding Gregory contributorily negligent as a matter of law;

IV. Whether Cart and the Board were denied a fair trial because:

A. The court erroneously denied their motion for transfer of venue;

B. The court erroneously denied Cart's motion for a continuance;

C. The court erroneously allowed an attorney for the Nevitts to make an appearance for the first time on the day of trial without prior notice to opposing counsel;

D. The court erroneously denied Cart's motion for a view of the scene of the collision; and

E. The court improperly considered Cass County's liability insurance coverage in ruling on the motions for remittitur and to correct errors;

V. Whether the damages awarded to Rebecca for her loss of consortium were excessive and contrary to law.

We affirm the judgment for Rebecca, but reverse the judgment for Gregory.

The facts relevant to this appeal are as follows: At approximately 1:00 P.M. on February 25, 1978, Gregory Nevitt was driving his car south on Morgan Hill Road, in Cass County. The pavement was dry and the weather was clear. At the same time, Christopher Cart, operating a Cass County snow plow was driving west on County Road 300 South toward Morgan Hill Road. Reaching a stop sign at the intersection, Cart stopped, then proceeded into the intersection as Gregory approached him from his right (north). Gregory, seeing the plow pull into the intersection from his left, applied his brakes, but was unable to stop. Gregory's car rammed the snow plow blade, and Gregory was seriously injured. He was in a coma for approximately eight months following the collision, and is permanently unable to leave his bed, control his bowels, or speak.

Gregory and his wife Rebecca filed claims for personal injuries and loss of consortium, respectively, against both Cart and the Board. For tactical reasons, however, on the day before trial, Gregory's attorneys moved for leave to file an amended complaint, excluding the Board of Commissioners as a defendant. The court granted this motion on the same day. Cart's first notice of these steps came the next day, on the morning of trial, when the amended complaint was given to his attorneys. Cart's motion for a continuance of the trial to examine the effect of this amendment was denied, and the matter proceeded to trial, culminating in the judgments for Gregory and Rebecca.


In challenging these judgments, Cart first contends that, when Gregory amended his complaint to remove the Board of Commissioners as a defendant, the action against Cart was barred. This contention is based upon Ind.Code 34-4-16.5-5(a), which provides: "A judgment rendered with respect to or a settlement made by a governmental entity bars an action by the claimant against an employee whose conduct gave rise to the claim resulting in that judgment or settlement." Specifically, Cart contends that the removal of the Board as a party defendant after the statute of limitations had expired constituted a determination that the Board could not be liable to Nevitt in this case, tantamount to a "judgment" barring Nevitt's action against Cart. In response, Nevitt contends that the court's order allowing the removal of the Board of Commissioners was not a "judgment" under Ind.Code 34-4-16.5-5(a). Although we do not agree with Cart's reasoning on this issue, we do agree with his conclusion that the trial court's order dropping the Board of Commissioners from the complaint was a "judgment" under the Tort Claims Act that barred any further action against Cart.

The correct interpretation of Ind.Code 34-4-16.5-5(a) has recently been discussed in Burks v. Bolerjack, (1981) Ind., 427 N.E.2d 887. In Burks, the court said:

The language of the statute is plain and unambiguous. If a governmental employee's conduct gives rise to a claim in tort against the employing governmental entity, any "judgment" rendered with respect to the governmental entity ... bars an action against an employee.

Id. at 889. After further noting that the term "judgment" should be given its "common meaning," the court held that a summary judgment of dismissal is a "judgment" under the act. The court said: "[t]he dismissal of Burks's suit against St. Joseph County was a 'judgment' both final and appealable; it left nothing for resolution between the parties." Id. The cases cited in this context by the court hold that a judgment is an order that "puts an end to the particular case," Thompson v. Thompson, (1972) 259 Ind. 266, 269, 286 N.E.2d 657, 659, reserving "no further question for future determination." Id.; Seaney v. Ayres, (1958) 238 Ind. 493, 497, 151 N.E.2d 295, 297. These cases make it clear that a "judgment" is generally a final order that is appealable without reference to any provision for interlocutory appeals. Such a definition is also supported by Indiana Rules of Procedure, Trial Rule 54(A): " '[j]udgment' as used in these rules includes a decree and any order from which an appeal lies." Thus, the crucial question here is whether the court's order allowing Gregory to remove the Board of Commissioners from his complaint--thereby dropping his claim against the Board--constituted a final, appealable order.

The answer to this question, Gregory contends, is no. He argues that he merely amended his complaint as allowed by Trial Rule 15, and that an order under T.R. 15 has never been viewed as a judgment. Although this may be true, we question the procedure used to terminate the claim against the Board of Commissioners. We believe that a plaintiff who wishes to discontinue his claim against a defendant must seek a voluntary dismissal under T.R. 41(A). 1 The result sought here by Gregory--discontinuance of his claim against the Board of Commissioners--is precisely what T.R. 41(A)(2) was designed to allow. 2 Although the language of T.R. 15 might be construed to allow a plaintiff to achieve the same result by amending his complaint, such a construction would nullify the requirements of T.R. 41(A)(2). Specifically where a counterclaim has been filed, allowing the plaintiff to end his suit against the defendant by amending his complaint, rather than by dismissal, would deny the defendant the protection of T.R. 41(A)(2):

If a counterclaim or cross-claim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim or cross-claim can remain pending for independent adjudication by the court.

Further, T.R. 41(A)(2) empowers the court to grant a dismissal "under such terms and conditions as the court deems proper." This allows the court to guard the defendant from harassment by assessing costs of the litigation--if not attorney's fees--against the plaintiff seeking to dismiss. City of Indianapolis v. Central Railroad Co., (1977) 175 Ind.App. 120, 369 N.E.2d 1109; 3 W. Harvey, Indiana Practice Sec. 41.1 (1970). Trial Rule 15 contains no such provisions for protecting defendants. Thus, to ensure that the procedural safeguards of T.R. 41(A)(2) are not circumvented by enterprising plaintiffs' attorneys, we hold that a plaintiff who wishes to drop a defendant from his suit may not do so by amending his complaint, but must seek a voluntary dismissal under T.R. 41(A). 3 In light of this holding, we will treat the court's order in this case as one granting a voluntary dismissal under T.R. 41(A)(2).

What remains to be decided is whether such an order granting a voluntary dismissal is a final, appealable order, constituting a "judgment" under Ind.Code 34-4-16.5-5(a). We find that it is. Although there is no Indiana authority on this point, other jurisdictions dealing with identical versions of Rule 41 have uniformly found that such an order is a final judgment for purposes of appeal. Noonan v. Cunard Steamship Co., (2d Cir.1967) 375 F.2d 69, 70; Farrell v. Dome Laboratories, (1982) Alaska, 650 P.2d 380. In LeCompte v. Mr. Chip, Inc., (5th Cir.1976) 528 F.2d 601, the court stated the general rule as follows:

Where the trial court allows the plaintiff to dismiss his action without prejudice, the judgment, of course, qualifies as a final judgment for purposes of appeal. Ordinarily, though, plaintiff cannot appeal therefrom, since it does not qualify as an involuntary adverse judgment so far as the plaintiff is concerned.

Id. at 603 (quoting 5 Moore's Federal Practice p 41.05, (2d ed. 1975)); accord, Yoffe v. Keller Industries, Inc., (5th Cir.1978) 580 F.2d 126; 9 C. Wright & A. Miller, Federal Practice & Procedure: Civil Sec. 2376, at 247 (1971 &...

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