Collins v. Covenant Mut. Ins. Co.

• Decision Date: 30 November 1992
• Docket Number: No. 48A02-9109-CV-390,48A02-9109-CV-390
• Citation: 604 N.E.2d 1190
• Parties: Kathy COLLINS, Appellant/Cross-Appellee-Defendant, v. COVENANT MUTUAL INSURANCE CO., Appellee/Cross-Appellant-Plaintiff.
• Court: Indiana Appellate Court

Page 1190

604 N.E.2d 1190

Kathy COLLINS, Appellant/Cross-Appellee-Defendant, v. COVENANT MUTUAL INSURANCE CO., Appellee/Cross-Appellant-Plaintiff.

No. 48A02-9109-CV-390.

Court of Appeals of Indiana,

Second District.

Nov. 30, 1992.

Arthur R. Baxter, Jr., Robert W. York, York, Schrager & Baxter, Indianapolis, for appellant.

Irwin B. Levin, David J. Cutshaw, Cohen & Malad, P.C., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Defendant-appellant/cross-appellee Kathy Collins (Collins) appeals from the entry of summary judgment for plaintiff-appellee/cross-appellant Covenant Mutual Insurance Company (Covenant), claiming that she was not a proper party to Covenant's declaratory judgment action and that the trial court erred when it entered summary judgment. Covenant cross-appeals, claiming that the trial court erred when it granted Collins' motion for relief from judgment and reentered summary judgment at a later date.

We reverse.

FACTS

The facts most favorable to the nonmoving party (Collins) reveal that Collins became a patient of Dr. Pravin Thakkar (Thakkar) in March, 1984. Collins became involved in a sexual relationship with Thakkar and in January, 1988, was concerned that she might be pregnant by him. On January 9, 1988, after office hours, Thakkar examined Collins to determine whether she was pregnant. Thakkar told Collins that she was not pregnant and then performed some act with a medical instrument during a vaginal examination that caused Collins excruciating pain. She was then left unattended in the examination room for over an hour and she eventually sought medical attention elsewhere. She was told that she was pregnant and that she was having a miscarriage. She was eventually hospitalized for a dilatation and curettage (D & C). Thakkar was subsequently convicted of certain crimes for his acts relating to Collins and several other women.

Collins filed suit against Thakkar in the Hancock Superior Court for the wrongful abortion of their fetus, assault and battery and intentional infliction of emotional distress. The trial court in that action granted Thakkar's motion to dismiss Collins' complaint because she had not complied with the provisions of Indiana's Medical Malpractice Act (Ind.Code 16-9.5-1) by submitting her claim to a medical review panel before filing suit.

That decision was reversed on appeal by this court in Collins v. Thakkar (1990), Ind.App., 552 N.E.2d 507 (Judge Sullivan dissenting), trans. denied. We concluded that Collins' claims based on theories of intentional tort, on the facts alleged in her complaint, were not torts based on health care or professional services rendered by a health care provider and therefore Collins was not required to submit those claims to a medical review panel before bringing her action against Thakkar. In our opinion, we observed that Collins had filed a medical malpractice complaint with the Indiana Insurance Commission based upon the same fact allegations supporting her intentional tort claims. Id. at 509.

Collins filed a second suit against Thakkar alleging that Thakkar's acts constituted medical malpractice. Her second action was consolidated with her first suit alleging intentional torts, and the entire case was venued to the Shelby Circuit Court, where it is currently pending.

Covenant, Thakkar's insurer, brought the present action, seeking a declaratory judgment of its obligations for Thakkar's acts under its insurance contract. Covenant's declaratory judgment action included Thakkar, Collins and several other of Thakkar's victims as defendants. Collins unsuccessfully moved to dismiss the action "Plaintiff's Motion for Summary Judgment is hereby GRANTED, as there are no genuine issues of material fact. Plaintiff CMIC is entitled to judgment as to Count I of its declaratory judgment complaint, as a matter of law. A review of the uncontested factual basis of Defendant Collins' claims against defendant Thakkar, a review of the terms of the subject insurance policy issued to defendant Thakkar by CMIC and its predecessor, and a review of Collins v. Thakkar, 552 N.E.2d 507 (Ind.App.1990), transfer denied, --- N.E.2d ---- (Ind.1990), decided on identical facts as presented by this record, compel the conclusion that there is no coverage under the subject insurance policy for the claims of defendant Collins against defendant Thakkar. Therefore, defendant Collins has no right to or interest in any proceeds of the subject insurance policy."

against her. A default judgment was entered against Thakkar, and Covenant settled its claim with several of Thakkar's other victims and they were voluntarily dismissed from the action. Covenant also moved for summary judgment against Collins. On January 31, 1991, the trial court entered summary judgment in favor of Covenant, concluding:

Record at 186-87.

Although the trial court's judgment was issued on January 31, 1991, a computer error prevented Collins' counsel from receiving notice of the ruling. While counsel made several calls to the court to check the case docket, he was misinformed each time that no ruling had been made on the summary judgment motion. On March 13, 1991, counsel for Covenant sent Collins' counsel a letter discussing the entry of summary judgment, but because the body of the letter referred to another of Thakkar's victims and not to Collins, the letter was routed to another attorney in the firm. Collins' counsel first learned of the entry of summary judgment on May 31, 1991.

On June 5, 1991, Collins' counsel filed a motion for relief from judgment pursuant to Ind.Rules of Procedure, Trial Rule 60(B), claiming that he had not received notice of the January 31, 1991 judgment. A special judge appeared and was qualified. The special judge granted the motion for relief from judgment and changed the date of the summary judgment entry from January 31, 1991 to May 31, 1991, which gave Collins the opportunity to seek appellate review of the entry of summary judgment.

ISSUES

1. Whether the special judge erred when it granted Collins' motion for relief from judgment?

2. Whether Collins was a proper party to Covenant's declaratory judgment action?

3. Whether the trial court properly entered summary judgment?

DECISION

ISSUE ONE--Did the special judge err by changing the date of the summary judgment entry?

PARTIES' CONTENTIONS--Covenant argues that the special judge abused his discretion when he granted Collins' motion for relief from judgment because the special judge should have concluded that the March 13, 1991, letter constituted actual notice of the entry of summary judgment. Collins replies that the evidence supports the special judge's decision.

CONCLUSION--The special judge properly granted Collins' motion.

The decision of whether to grant relief under T.R. 60(B) is left to the equitable discretion of the trial judge and we will not reweigh the evidence. We will reverse the trial court's decision only for an abuse of discretion. Shotwell v. Cliff Hagan Ribeye Franchise, Inc. (1991), Ind., 572 N.E.2d 487.

Covenant's arguments that the special judge should have considered the receipt of the March 13, 1991 letter as constituting "actual knowledge" of the trial court's entry of summary judgment and that it might be prejudiced by the granting of the motion are simply requests for us to reweigh the evidence and substitute our judgment for that of the special judge. The evidence before the special judge demonstrated that Collins' counsel did not actually know about the entry of judgment until May 31, 1991 and Covenant has not demonstrated any prejudice resulting from the special judge's decision.

In light of the computer malfunction which prevented the initial notice from being sent, the misinformation repeatedly given to Collins' counsel by the court's clerk, and the fact that Collins' counsel did not actually know of the ruling until May 31, the granting of Collins' T.R. 60(B) motion was not an abuse of discretion. See Soft Water Utils., Inc. v. Le Fevre (1973), 261 Ind. 260, 301 N.E.2d 745.

ISSUE TWO--Is Collins a proper party to Covenant's declaratory judgment action?

PARTIES' CONTENTIONS--Collins claims that because she has no interest in Covenant's insurance contract with Thakkar, she should not be included in Covenant's action. Covenant responds that it has the right to maintain a declaratory judgment action to find out to whom its insured may be liable within the coverage of its policy.

CONCLUSION--Collins was properly included in Covenant's action.

In Cromer v. Sefton (1984), Ind.App., 471 N.E.2d 700, this court took judicial notice of the general practice of insurance companies of filing separate declaratory judgment actions to determine their liability for their insured's torts. "Clearly the policy of the law is to keep the issue of insurance out of personal injury litigation. The usual method, initially pursued by Westfield, is that the insurer filed a separate declaratory judgment suit to determine coverage." Id. at 704. Thus it seems settled that Covenant has a right to bring suit against Collins, Thakkar and his other victims to determine the coverage of its policy with Thakkar and the extent to which it is liable for his torts. Id. see also Hawkins v. Auto-Owners (Mut.) Ins. Co. (1991), Ind.App., 579 N.E.2d 118; Fowler v. Farm Bureau Mut. Ins. Co. (1965), 137 Ind.App. 375, 209 N.E.2d 262. We can find no merit to Collins' objections.

ISSUE THREE--Did the trial court properly enter summary judgment in Covenant's favor?

PARTIES' CONTENTIONS--Collins maintains that because her claims against Thakkar encompassed more than the intentional torts considered in Collins, supra, the trial court should not have relied on the analysis in Collins to conclude that Thakkar's actions were not covered by Covenant's policy. Covenant responds that Thakkar's actions were not covered by the policy and that the trial court properly granted its motion for summary judgment.

CON...