City of Muncie v. Peters

• Decision Date: 28 April 1999
• Docket Number: No. 18A04-9807-CV-372,18A04-9807-CV-372
• Citation: 709 N.E.2d 50
• Parties: CITY OF MUNCIE, Appellant-Defendant, v. James PETERS, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 50

709 N.E.2d 50

CITY OF MUNCIE, Appellant-Defendant, v. James PETERS, Appellee-Plaintiff.

No. 18A04-9807-CV-372.

Court of Appeals of Indiana.

April 28, 1999.

Alan K. Wilson, Marianne L. Vorhees, Beasley Gilkison Retherford Buckles & Clark, Muncie, Indiana, Attorneys for Appellant.

Michael K. Sutherlin, Kristopher N. Kazmierczak, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

DARDEN, Judge

STATEMENT OF THE CASE

The City of Muncie appeals from the trial court's grant of summary judgment in favor of James Peters as a result of the City's failure to indemnify him under Ind.Code § 34-4-16.7-1. ¹

We affirm in part, reverse in part, and remand.

ISSUES

I. Whether the trial court abused its discretion in denying the City's motion to withdraw admissions.

II. Whether I.C. § 34-4-16.7-1 confers on public employees a right of action for indemnification against the State or any of its political subdivisions.

FACTS

On or about April 1, 1989, James Peters, while acting within the scope of his employment as a police officer for the City of Muncie, was involved in an altercation with Jeffrey Kemezy. As a result of this altercation, Kemezy brought an action against Peters and the City in the United States District Court of the Southern District of Indiana. The City's insurance carrier provided legal counsel to Peters during the lawsuit. Following a jury trial, the district court entered a judgment in favor of Kemezy and against Peters in the amount of $40,000 upon a verdict that assessed the following damages: (1) $10,000 in compensatory damages for the tort of battery; (2) $10,000 in compensatory damages for violation of Kemezy's civil rights under 42 U.S.C. § 1983; and (3) $20,000 in punitive damages under 42 U.S.C. § 1988. The district court entered a judgment in favor of Kemezy and against the City upon a jury verdict in the amount of $10,000 for the tort of battery under the theory of respondeat superior. On April 12, 1995, the district court ordered Peters to pay Kemezy $103,499.74 for attorney's fees and expenses pursuant to federal law. The district court subsequently ordered the attorney's fees awarded to Kemezy to be supplemented to $200,000.

The City, through its insurance carrier, paid the $10,000 award against Peters for the tort of battery and the $10,000 award assessed against Peters for the civil rights violations. However, the City refused to indemnify Peters for the punitive damage award and the attorney's fees assessed against him.

On October 10, 1995, Peters initiated the instant cause against the City, seeking damages for the unsatisfied federal judgment. In Count I, Peters sought indemnification for the unsatisfied judgment against him under I.C. § 34-4-16.7-1. In Count II, Peters sought an order declaring his right to indemnity, if any, under I.C. 34-4-16.7-1. In Counts III and IV, Peters alleged breach of contract ² and estoppel, ³ respectively. Subsequently, the trial court granted Kemezy's petition to intervene.

On February 27, 1998, Peters served a request for admissions on the attorney of record for the City, Alan Wilson. Peters sought an admission that Peters was the only Muncie police officer whom the City had declined to indemnify for damages and attorney's fees attributed to conduct performed within the scope of an officer's duties. On April 17, 1998, Peters filed and served upon Wilson a Notice to the Court, informing the trial court that the City had failed to answer or object to the request for admissions within thirty days and, therefore, the requested admission was deemed admitted. ⁴

On April 22, Peters served a second request for admissions, by certified mail, on the City. Peters sought admissions on the following matters:

(1) James Peters was acting within the scope of his employment when he arrested Kemezy in 1989.

(2) The City has a duty to indemnify an officer who was acting within the scope of his employment and who is deemed liable by virtue of a judgment.

(3) The City of Muncie is liable for the judgment and all costs associated with the prosecution of the claim under 42 U.S.C. § 1988.

(4) "The City of Muncie deemed that it was in the best interest of the governmental entity to pay all the judgment costs pursuant [to] I.C. 34-4-16.7-1 when officer Peters was found liable by a jury and was found to be acting within the scope of his employment."

(5) The City, by virtue of its insurance coverage, agreed to indemnify the actions of Peters, and in so doing agreed to indemnify for all costs and ancillary expenses provided under 42 U.S.C. § 1988.

(R. 193-94). The City failed to respond to this request for admissions within thirty days. On June 1, 1998, Peters filed and served upon the City a Second Notice to the Court for the second request for admissions. The notice informed the trial court that the City had failed to answer or object to the second request for admissions and, therefore, the facts were deemed admitted. On June 5, 1998, Peters filed a motion for summary judgment based upon I.C. § 34-4-16.7-1 and the admissions made by the City.

Trial was scheduled for June 29, 1998. On June 26, 1998, the Friday before the scheduled trial date, the City filed a motion for leave to withdraw admissions. The trial court informed the parties that the motion to withdraw admissions and the motion for summary judgment would be heard and determined on the scheduled trial date before proceeding to a trial on the merits.

On the morning of trial, the trial court held a hearing on the motions. Wilson admitted that the City failed to respond to the first request for admission and stated that the City did not seek to withdraw that admission. In regard to the second request for admissions, Wilson admitted that the request came into his office and was placed into his office's case file. However, Wilson stated that he did not look into that file until he received notice from the trial court that he had failed to answer the request for admissions. Wilson said that "the error was simply mine." (R. 329). Nevertheless, Wilson claimed that he was unaware of the requests for admissions because they "didn't get to my desk, got directed to the file." (R. 330).

Peters' counsel represented to the trial court that the admissions had been relied upon in preparation of trial. Peters' counsel claimed that based upon these admissions, he had permitted the subpoenas of three of his witnesses to be quashed and had declined to depose a witness. Following the presentation of evidence and arguments by counsel, the trial court denied the motion to withdraw admissions, finding in part as follows:

Well, there's no question plaintiff has demonstrated how it would be prejudiced if I withdrew these, if I let Mr. Wilson withdraw these. The question, first question is whether or not Mr. Wilson has shown that the withdrawal will sub-serve the presentation of the merits.... You know, I've reviewed this whole file and I've looked through the whole docket sheet and it seems to the court that the City has taken a cavalier attitude toward the discovery requests in this case and regrettably, in fact, toward the court's own orders, to the extent that on ... more than one (1) occasion I've had to issue orders to compel, and in fact taken the extreme measure of issuing sanctions, which in (20) years as Judge I don't think I've done, on a sanction request, probably less than ten (10) times, I'm sure, in twenty (20) years.... It might be a closer question had that not been the case here. But the City, as I've indicated, has taken a cavalier attitude toward all requests for discovery. I don't think Mr. Wilson has shown, has met his burden in showing that withdrawal will assist in reaching in a just resolution. Mr. Wilson, I don't think your motion to withdraw the admissions is well taken. For those reasons, I'll show it denied.

(R. 365-66).

The trial court then proceeded to hear arguments on Peters' summary judgment motion. In its argument against summary judgment, the City argued that it could not be liable under I.C. 34-4-16.7-1 because the statute did not create a cause of action of the type brought by Peters. Following arguments by counsel, the trial court granted Peters' motion for summary judgment based on the admission made by the City and awarded Peters $220,000 in damages.

DECISION

I. Withdrawal of Admissions

The City claims that the trial court abused its discretion when it denied the City's motion to withdraw admissions. We disagree.

Under Ind. Trial Rule 36, the failure to respond in a timely manner to a request for admissions causes those matters to be admitted and conclusively established by operation of law. Corby v. Swank, 670 N.E.2d 1322, 1324 (Ind.Ct.App.1996). Requests for admissions under T.R. 36 may, in addition to seeking evidentiary matters, ask for admissions as to legal issues, contentions, and conclusions, if related to the facts of the case. General Motors Corp. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 888 (Ind.1991). Matters admitted under the rule are deemed "conclusively established," eliminating the need to prove them at trial. Id.

However, the party who has been deemed to have made those admissions may make a motion for withdrawal of those admissions to the trial court pursuant to T.R. 36(B). Id. at 888-89. The trial court cannot grant a motion to withdraw admissions unless it determines both (1) that withdrawal or amendment will subserve the presentation of the merits, and (2) that prejudice in maintaining the action or defense will not result to the party obtaining the admission. Id. at 889. The party seeking withdrawal has the burden of demonstrating that the presentation of the merits will be subserved by withdrawal, and the party who has obtained the admissions has the burden of demonstrating that it will be prejudiced if the trial court permits withdrawal. T.R. 36(B); Corby, 670 N.E.2d at 1326. Further, even if both of these conditions are satisfied, the rule does not...