Chrysler Corp. v. Alumbaugh, 3-1173A152

• Decision Date: 10 March 1976
• Docket Number: No. 3-1173A152,3-1173A152
• Citation: 168 Ind.App. 363,342 N.E.2d 908
• Parties: CHRYSLER CORPORATION, Defendant-Appellant, v. Frederick L. ALUMBAUGH, Plaintiff-Appellee, and Edward E. York, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 908

342 N.E.2d 908

168 Ind.App. 363

CHRYSLER CORPORATION, Defendant-Appellant, v. Frederick L. ALUMBAUGH, Plaintiff-Appellee, and Edward E. York, Defendant-Appellee.

No. 3-1173A152.

Court of Appeals of Indiana, Third District.

March 10, 1976.

On Rehearing, see 348 N.E.2d 654.

Joel C. Levy, Steven R. Crist, Tinkham, Beckman, Kelly & Singleton, Hammond, for appellant.

Michael C. Harris, Robert A. Welsh, Harris & Welsh, Chesterton, for appellee Frederick L. Alumbaugh.

William S. Spangler, Spangler, Jennings, Spangler & Dougherty, Gary, for appellee Edward E. York.

GARRARD, Judge.

Chrysler appeals from a judgment entered upon a verdict for the plaintiff in a suit for personal injuries arising from an automobile collision.

On February 4, 1969, the plaintiff, Alumbaugh, was travelling west on U.S. Highway 20, a four-lane highway. Alumbaugh was driving in the outside (right) lane, and a vehicle driven by Steven Lesicko was in the inside (left) lane in the process of passing. At this point Edward York, who was operating a new 1969 Dodge pickup truck, approached Alumbaugh from the rear. Since the passing lane was occupied, york applied his brakes to avoid striking Alumbaugh. When he did this, the pickup veered suddenly to the left and struck Lesicko's vehicle. This, in turn, caused Lesicko to strike Alumbaugh's trunk. Alumbaugh lost control. His vehicle left the highway and struck a tree, causing the injuries complained of.

Subsequently, Alumbaugh sued York, Lesicko, Chrysler Motors Corporation and Grieger Motors, Inc. Lesicko and Grieger Motors, Inc. were later dismissed as defendants. Shortly before trial, Alumbaugh moved to substitute as a defendant Chrysler Corporation for Chrysler Motors Corporation. This motion was granted.

On appeal Chrysler questions this substitution of defendants. It also urges error in the trial court's application of strict liability, in the failure to grant a mistrial over an insurance disclosure, in the court's treatment of certain requested instructions, and in the admission and exclusion of evidence. We affirm.

I. Substitution of Parties

Alumbaugh's original complaint, which was filed prior to the inception of our present rules of civil procedure, named Chrysler Motors Corporation as a defendant. Although an amended complaint was filed in 1971, this identification continued. In May 1972, more than two years after the collision, answers to interrogatories filed by Chrysler Motors Corporation denied manufacture of the vehicle and disclosed that the manufacturer was Chrysler Corporation. When Alumbaugh moved to substitute Chrysler Corporation as a party defendant, objection was made that the statute of limitations had expired and the substitution was impermissible.

Admittedly, the court's action in granting the motion is not within the purview of Indiana Rules of Procedure, Trial Rule 25, which provides for substitution of parties in certain situations.

Alumbaugh urges, however, that the substitution was permitted by the provisions of TR 15(C). The relevant portion of this rule provides:

'Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment

(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and

(2) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him. . . .'

(Emphasis added)

In this case it is apparent that the liability asserted against Chrysler Corporation '. . . arose out of the conduct, transaction or occurrence' set forth in the original and amended complaints. ¹ It is equally apparent that Chrysler Corporation knew or should have known that but for a mistake in identity, suit would have been initiated against it. Finally, there was evidence before the court from which it could determine that Chrysler Corporation had notice of the action within the limitation period and that its defense on the merits was not prejudiced. Chrysler does not argue these points. Instead, its position is that TR 15(C) is limited in application to changing the name of a party against whom a complaint was served.

To date, only two Indiana cases have spoken of the rule. ² In Ryser v. Gatchel (1972), 151 Ind.App. 62, 278 N.E.2d 320, a plaintiff had erroneously named a driver's insurance agent, rather than the driver, as the defendant. The error was discovered more than two years after the collision, and the correct defendant was then named. He set up the statute of limitations in a motion for summary judgment. On appeal the plaintiff urged that TR 15(C) permitted the substitution, but this court refused to consider its application since plaintiff's affidavits, etc. in opposition to the summary judgment failed to set forth facts showing compliance with the conditions prescribed in the rule.

In Gibson v. Miami Valley Milk Producers, Inc. (1973), Ind.App., 299 N.E.2d 631, the court noted the relevance of federal decisions construing Federal Rules of Civil Procedure 15(c). Following a line of federal cases, the court held that the rule would not permit the addition of another party after expiration of the limitation period.

Where, however, the plaintiff seeks to substitute a party as defendant for one whom he erroneously named within the statutory period, the federal decisions have generally held the substitution permissible if the conditions of the rule are met. Craig v. United States (9th Cir. 1969), 413 F.2d 854; Williams v. United States (5th Cir. 1968), 405 F.2d 234; Travelers Indemnity Co. v. United States (10th Cir. 1967), 382 F.2d 103. See also, Bernstein v. Uris Bldg. Corp. (S.D.N.Y.1970), 50 F.R.D. 121; Meredith v. United Airlines (S.D.Cal.1966), 41 F.R.D. 34; 6 Wright & Miller, Federal Practice and Procedure (1971), §§ 1497, 1498.

In Travelers Indemnity Co. v. United States, supra, the court noted the underlying philosophy of the federal rules to facilitate decisions on the merits and avoid pleading traps. The court stated:

'This purpose is not furthered by giving Rule 15 lip service rather than full fealty. Nor is the purpose of the federal rules furthered by denying the addition of a party who has a close identity of interest with the old party when the added party will not be prejudiced. The ends of justice are not served when forfeiture of just claims because of technical rules is allowed. Thus the reasons (sic) amendments are to be granted freely as justice requires, and the trial court's decision to allow amendment will not be upset unless a clear abuse of discretion exists.' (citations omitted)

382 F.2d 103, 106.

The same philosophy applies in the interpretation of our rules. TR 1. That our Civil Code Study Commission had this view in mind in the adoption of TR 15(C) may be gathered from the official comment to this section of the rule:

'If the requirements are met, an amendment changing a party defendant is not a new proceeding which would be subjected to the statute of limitations as of its filing date. This portion of the new rule will alter prior Indiana case law.'

Accordingly, we hold the substitution was proper.

II. Disclosure of Insurance Coverage

The defendant York had employed Packer Laboratories to conduct tests upon the Dodge pickup truck. During the course of pretrial discovery, Alumbaugh took the deposition of Dr. Packer. In the pretrial order, all of the parties included Dr. Packer as a potential witness to be used at trial. However, this evidence was not presented during plaintiff's case. When plaintiff rested, Chrysler introduced a portion of the deposition as its first item of evidence. During the reading of the deposition to the jury by Chrysler's attorneys, the following occurred:

'MR. LEVY: Page 85 at the bottom. (Reading.)

Q. 'Involving or regarding the 1969 Dodge and the file you have before you, did you do anything in regards to accident reconstruction as to that vehicle or as to the accident in question?'

MR. CRYIST: (Reading.)

A. 'Well, I initiated an accident reconstruction program, gathered a limited amount of information, but did not pursue this to the end.'

Q. 'Did you or any member of your staff view the scene of the accident?'

A. 'No, sir, except through photographs.'

MR. LEVY: Page 92. (Reading.)

Q. 'Did you ever have any contact with anyone on behalf of American States Insurance Company?'

A. 'Yes, sir."

At this point counsel for York moved to strike the answer and stated:

'All Mr. Levy is trying to do is prejudice this jury. Now, there is no purpose for that to put that in. We have already indicated to the jury, and Mr. Levy, if you want to know, yes, we represent--we represent American States Insurance Company, and we have got $15,000.00 worth of coverage. You put it before the jury, you have done it intentionally, and you have been trying for three days to get this in. You have invited it.'

Chrysler then moved for a mistrial. The court denied the motion, but strongly admonished the jury to disregard the insurance reference.

On appeal, Alumbaugh urges that any error was invited. Chrysler asserts that it was entitled to establish that Packer was employed by York and the amount he was paid. Since the employment was actually secured by York's insurance carrier (American States), Chrysler urges that its reading of the question was proper and the statement made by York's counsel was reversible error.

We initially note that the statement by York's counsel may be viewed in two ways.

Because the statement was made by counsel, it may be...