Cincinnati Ins. Co. v. Young

• Decision Date: 07 August 2006
• Docket Number: No. 18A02-0502-CV-150.,18A02-0502-CV-150.
• Citation: 852 N.E.2d 8
• Parties: CINCINNATI INSURANCE, CO. in its capacity as Excess insurer of Tri-Etch, Inc. d/b/a Sonitrol Security Systems of Muncie, Inc., Appellant-Intervenor, v. Ruby YOUNG, Personal Representative of the Estate of Michael Young, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 8

852 N.E.2d 8

CINCINNATI INSURANCE, CO. in its capacity as Excess insurer of Tri-Etch, Inc. d/b/a Sonitrol Security Systems of Muncie, Inc., Appellant-Intervenor, v. Ruby YOUNG, Personal Representative of the Estate of Michael Young, Appellee-Plaintiff.

No. 18A02-0502-CV-150.

Court of Appeals of Indiana.

August 7, 2006.

Donald J. Tribbett, Scott L. Starr, Starr Austen Tribbett Myers & Miller, Logansport, IN, Attorneys for Appellant.

James R. Fisher, Ice Miller, LLP, Indianapolis, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Intervenor-Appellant-Cross-Appellee, Cincinnati Insurance Co. (Cincinnati), appeals the trial court's grant of Plaintiff-Appellee-Cross-Appellant, Ruby Young's, Personal Representative of the Estate of Michael Young (the Estate), Motion for Judgment Against Tri-Etch, Inc. (Tri-Etch) on Non-Party Allocation of Fault.

We reverse.

ISSUES¹

Cincinnati raises three issues on appeal and the Estate raises three issues on cross-appeal. We find two issues raised on cross-appeal to be dispositive and restate them as follows:

(1) Whether Cincinnati timely filed its notice of appeal; and

(2) Whether the trial court abused its discretion by granting Cincinnati the right to intervene in the proceedings pursuant to Indiana Trial Rule 24(A)(2) after judgment had been rendered and a settlement had been reached by the parties.

FACTS AND PROCEDURAL HISTORY²

On July 6, 1992, Tri-Etch entered into a written contract with MLS, Inc., the owner of Muncie Liquors, to monitor the security alarm system that Tri-Etch had sold to and installed at the Muncie Liquors' store located on Tillotson Avenue, in Muncie, Indiana. Tri-Etch's obligation under the contract was expressly limited to monitoring (1) the night alarm system while it was activated after business hours and (2) a panic or hold up alarm which could be activated by the store clerk pushing one of the several hidden panic buttons located at various places throughout the store during business hours. Additionally, there was evidence that Tri-Etch provided a separate service to Muncie Liquors not described in the contract. Specifically, if the store's alarm had not been set within a certain amount of time after the store's usual closing time, Tri-Etch would contact the store. If no employee answered, Tri-Etch would first notify the store's general manager, and then call the police. The store's usual closing time was midnight. In the event the alarm was not activated by this closing time, Tri-Etch customarily notified the store or, if no answer, its general manager, by 12:30 a.m.

On August 12, 1997, Michael Young (Young) was employed as a clerk at Muncie Liquors' Tillotson Avenue location. At some time after 11:50 p.m. but before Young could activate the store's alarm, Michael Moore (Moore) robbed the store at gunpoint, and kidnapped Young. Moore drove Young to a nearby park, beat him severely, and left him tied to a tree. The alarm was never set. Tri-Etch failed to call the store or the general manager to notify that the alarm had not been activated until approximately 3:15 a.m. Young was found alive at approximately 6:00 a.m. the next morning but died as a result of his injuries later that day. The Estate presented evidence that had Young been found earlier, he might have survived.

At the time of the robbery, Tri-Etch's liability was covered by three insurance policies. Scottsdale insurance company (Scottsdale) had issued a common general liability (CGL) insurance policy with a $1,000,000 limit of liability, while Cincinnati had issued two policies to Tri-Etch: (1) a CGL policy with a $1,000,000 limit of liability and (2) a commercial umbrella liability policy providing $1,500,000 in excess insurance.

On August 6, 1999, the Estate filed a wrongful death action against Tri-Etch and Sonitrol Corporation,³ which was amended on March 28, 2000, alleging that Tri-Etch had assumed a duty to notify Muncie Liquors by 12:30 a.m. if the alarm was not activated by that time. Scottsdale elected to pursue Tri-Etch's defense under its CGL policy. On January 30, 2001, Tri-Etch filed its Motion for Summary Judgment asserting that the Estate's wrongful death action was barred by a one-year limitations period contained in the contract between Muncie Liquors and Tri-Etch. On May 22, 2001, after briefing and argument, the trial court granted Tri-Etch's motion upon finding that the Estate's claim was governed by the terms of the contract and that more than one year had passed between Young's murder and the filing of the complaint.

The Estate appealed and we affirmed the trial court's decision. After granting transfer, our supreme court reversed and remanded to the trial court for further proceedings upon holding that the Estate's claim sounded in tort, not in contract, and therefore the contractual limitation period did not apply to the Estate because Young, as an employee, was not a party to the contract.

On or before March 17, 2004, Tri-Etch, by counsel, made a written demand upon Cincinnati to defend Tri-Etch under its CGL policy. Cincinnati denied coverage and instead filed a declaratory judgment action in the United States district court for the southern district of Indiana against its insured seeking a declaration that Cincinnati did not have to provide coverage for Tri-Etch under either of its two policies.⁴

On April 5 until April 8, 2004, a jury trial was held. Prior to the commencement of the trial, the Estate filed a Motion and Memorandum for Judgment on the Evidence as to Affirmative Defense of Non-Party Fault against Moore. On April 8, 2004, the trial court denied the motion. On April 15, 2004, the trial court granted a mistrial nunc pro tunc April 8, 2004 when the jury told the court they were unable to reach a verdict. On December 6 through December 10, 2004, a second jury trial was held. At the close of the evidence, the jury found in favor of the Estate and assessed 40% of the fault to Tri-Etch and 60% of the fault to the non-party, Moore, with total damages of $2,500,000. That same day, the trial court entered judgment against Tri-Etch pursuant to the jury's verdict, in the amount of $1,000,000.

On December 28, 2004, the Estate filed its Motion for Judgment Against Tri-Etch on Non-Party Allocation of Fault, requesting that judgment be entered against Tri-Etch for the total amount of damages of $2,500,000 based on the argument that Tri-Etch was responsible for the fault assessed against the non-party, Moore. On January 7, 2005, after receiving Tri-Etch's response, the trial court entered its Order granting the Estate's motion and directing that judgment be entered against Tri-Etch for the full amount of the damages.

Thereafter, on January 10, 2005, Tri-Etch filed its Motion to Correct Error. On January 21, 2005, counsel for the Estate notified Cincinnati in writing that a settlement had been reached with Tri-Etch and Scottsdale. The agreement provided for payment of $1,000,000 by Scottsdale, as Tri-Etch's CGL insurer, to the Estate with assignment of Tri-Etch's breach of contract claim against Cincinnati to the Estate. Furthermore, this agreement specifically provided Cincinnati with the opportunity to reconsider its previous denial of coverage to Tri-Etch and permitted Cincinnati to assume control of the defense of this matter, including the right to pursue an appeal on behalf of its insured. On January 27, 2005, Cincinnati was again requested to assume the defense of Tri-Etch and pursue an appeal under either or both of its insurance policies by January 28, 2005. If Cincinnati refused, Tri-Etch would withdraw its motion to correct error and consummate its agreement with the Estate not to appeal from the adverse judgment. On February 2, 2005, Tri-Etch withdrew its motion to correct error and, that same day, Cincinnati moved to intervene for the purpose of appealing the judgment in its own name only. The next day, February 3, 2005, Cincinnati reaffirmed to its insured that it would not acknowledge coverage under either of its insurance policies.

On February 17, 2005, the trial court granted Cincinnati leave to intervene. Thereafter, on April 7, 2005, the Estate filed a motion with this court to dismiss Cincinnati's appeal. Meanwhile, on May 20, 2005, the Estate and Tri-Etch filed a state court action against Cincinnati to recover the unpaid portion of the final judgment against Tri-Etch. On June 9, 2005, the court of appeals' motions panel denied the Estate's request for dismissal.

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

As the Estate's issues on cross-appeal strike at the core of Cincinnati's right to appeal, their resolution soundly disposes of the case without requiring this court to address the merits of Cincinnati's appeal. However, in analyzing the Estate's issues, we are presented with a procedural minefield in which we will tread lightly and carefully.

We note at the outset that both of the Estate's contentions raised on cross-appeal were already the subject of its Motion to Dismiss Appeal filed with this court on June 9, 2005. After review, our motions panel denied the Estate's motion to dismiss. Even though the motions panel has already ruled on the issues developed by the Estate in its cross-appeal, the Estate is not precluded from presenting its arguments to us. See Smith v. Deem, 834 N.E.2d 1100, 1103 (Ind.Ct.App.2005), trans. denied. It is well established that we may reconsider a ruling by the motions panel. Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 1141 (Ind.Ct.App.2003). However, "we decline to do so in the absence of clear authority establishing that it erred as a matter of law." Id.

I. Timeliness of Cincinnati's Notice of Appeal

First, the Estate contends that we lack jurisdiction due to Cincinnati's untimely appeal. Specifically, the Estate asserts that because Cincinnati filed its notice of appeal prior to becoming a party to the instant cause,...