Chemco Transport, Inc. v. Conn
| Decision Date | 25 August 1988 |
| Docket Number | No. 09S02-8808-CV-774,09S02-8808-CV-774 |
| Citation | 527 N.E.2d 179 |
| Parties | CHEMCO TRANSPORT, INC., Appellant (Defendant below), v. James J. CONN, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
This cause comes to us on a petition to transfer from the Court of Appeals of Indiana, Second District, brought by Appellee James J. Conn. Appeal to the court of appeals was brought by Chemco Transport, Inc., following a judgment against them awarding James Conn damages for loss of his motor vehicle, loss of use of his motor vehicle, and personal injuries. The Court of Appeals reversed the awards for loss of use and value of the motor vehicle but affirmed the award for personal injuries.
The facts show that on September 28, 1982, Conn was driving his 1977 International tractor with trailer attached west on US Highway 224 in Wells County. Conn struck a trailer backing onto the highway in order to turn around. The trailer was owned by Chemco and driven by one of Chemco's employees. Conn's trailer was totalled. He suffered cuts from flying glass and was taken to the Caylor-Nickel Clinic in Bluffton, Indiana, where he was treated and released. Subsequently Conn experienced pain in his legs and back and sought treatment from several doctors.
Following the accident Conn entered into arbitration proceedings with his insurance carrier, Protective Insurance Company, which resulted in his receiving from Protective $40,500.00 for the value of the tractor, and $2,500 for partial loss of use. Conn subsequently filed this action in the Cass Circuit Court on March 9, 1983, seeking damages from Chemco for loss of the tractor, loss of its use, and personal injuries. On September 27, 1984, Protective, pursuant to its right of subrogation, filed suit against Chemco, with Conn also named as a plaintiff, in the Superior Court of Marion County, seeking the same damages as sought by Conn in the Cass County action. The Marion County action was settled by Protective and Chemco's carrier and that cause was dismissed with prejudice on January 7, 1985. Based on the dismissal of the Marion County case, Chemco moved for summary judgment in this cause in the Cass Circuit Court on the questions of damages for the loss of the tractor and damages for loss of use. The trial court denied Chemco's summary judgment motion and the jury returned awards of $33,000 for the loss of the tractor, $30,000 for loss of use, and $27,000 for personal injuries.
Chemco appealed the denial of summary judgment, the introduction of medical evidence by Conn in the Cass County suit, the introduction of a memorandum as evidence, and the action of the trial judge questioning the witnesses during the trial. The court of appeals affirmed the trial court as to all matters except the denial of summary judgment. The court of appeals determined the Marion County suit served as res judicata regarding damages to the truck and loss of use, holding Conn should have been prevented from raising these issues in his Cass County suit. The court of appeals then remanded the case to the trial court with directions to enter summary judgment in favor of Chemco on these issues. We find the trial court properly denied Chemco's motion for summary judgment in the Cass County suit and accordingly grant transfer and vacate the opinion of the court of appeals on this issue. We summarily affirm the holding of the court of appeals on all other issues and adopt it as part of this opinion.
The issue presented to this court is whether the court of appeals erroneously determined that Conn was sufficiently a party to the Marion County action that his failure to object to the Marion County court's lack of jurisdiction constituted a waiver of his claim of lack of jurisdiction to allow the court of appeals to determine the action was res judicata regarding issues addressed by the Marion County court. The court of appeals held the amount of damage had been addressed in the Marion County action and as such, res judicata prevented its re-litigation in Cass County and on this basis the trial court should have rendered summary judgment for Chemco on this issue.
The sequence of events shows Conn filed his suit in the Cass Circuit Court for damages arising out of personal injury, property damage, and loss of use of his truck. Subsequently, Conn reached an agreement with his own insurance carrier, Protective, in which Conn was given $40,500 for property damage to his truck and $2,500 for partial loss of use of his truck. Conn then executed a release of all claims against Protective in which he recognized Protective had the right of subrogation for the $43,000 it had paid for the damage to his vehicle and loss of its use. Conn also agreed he would take no action which would jeopardize the right of subrogation of Protective to recover the full amount Protective had paid to Conn and further that he would pay to Protective any sums or damages he recovered by way of judgment or settlement against any other person or party for the same damages up to the $43,000 they had paid to him. Conn also dismissed with prejudice a cause of action he had in Cass Circuit Court in Logansport against Protective on his contract of insurance. At this point, Protective had the right of subrogation in the amount of the $43,000 it had paid to Conn under its insurance contract and had the right to sue in Conn's name to recover this amount from Chemco. Conn had the right to pursue recovery of damages over and above that received from Protective not only for personal injuries but for any amounts of damage or loss of use to his vehicle not paid by Protective. He obligated himself not to take any action to frustrate Protective's efforts to recover the $43,000 and bound himself to reimburse them for up to the $43,000 for any amount he received from Chemco. He had, at that time, this action on file seeking such damages.
Ten months later Protective filed an action in the Marion Superior Court for damages and loss of use to the vehicle against Chemco, naming Conn as a plaintiff. It is Conn's position that he received no notice of the filing of this suit and therefore took no part in it as a party, including the settlement agreement and dismissal with prejudice. In response to the motion for summary judgment by Chemco in the trial court, Conn filed his affidavit in which he stated:
3. That the Marion...
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