Craig v. Whiteford Nationalease, Inc.

• Decision Date: 24 May 1989
• Docket Number: No. 34A04-8811-CV-362,34A04-8811-CV-362
• Citation: 538 N.E.2d 283
• Court: Indiana Appellate Court
• Parties: Gregory CRAIG and Kim Craig, Appellants (Petitioners Below), v. WHITEFORD NATIONALEASE, INC., Whiteford Truck Lines, Inc., and Frederick E. Stevens, et al. Appellees (Defendants Below).

Page 283

538 N.E.2d 283

Gregory CRAIG and Kim Craig, Appellants (Petitioners Below), v. WHITEFORD NATIONALEASE, INC., Whiteford Truck Lines, Inc., and Frederick E. Stevens, et al. Appellees

(Defendants Below).

No. 34A04-8811-CV-362.

Court of Appeals of Indiana,

Fourth District.

May 24, 1989.

Kelly Leeman, Logansport, for appellants.

Robert B. Clemens, Les W. Meredith, Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.

CONOVER, Presiding Judge.

Plaintiffs-Appellants Gregory and Kim Craig (Craigs) appeal an order granting a summary judgment motion made by Defendants-Appellees Whiteford Nationalease, Inc., Whiteford Truck Lines, Inc. and Frederick E. Stevens (together Whiteford).

We reverse.

Craigs present three issues. We rephrase them as whether there are genuine issues of material fact and whether, if there are no genuine issues of material fact, the Defendant is entitled to judgment as a matter of law.

Craigs' complaint alleged Plaintiff Gregory Craig was a nurse at St. Joseph's Hospital who rode in a Howard Community Hospital Ambulance to accompany a patient from Kokomo to Indianapolis. The complaint alleged that on the return trip to Kokomo the ambulance responded to a highway accident caused by the negligence of Frederick Stevens, Whiteford's driver. Further, it alleged, in route to the scene of the accident the ambulance had to take evasive action to avoid a collision. As a result, the complaint alleged, Gregory Craig was injured. Thus, the complaint alleged, Craig's injuries were proximately caused by the negligence of Whiteford's driver, Defendant Stevens. Kim Craig claimed loss of consortium.

Whiteford answered by admitting those facts alleged in Craigs' complaint concerning the identification of the parties. It admitted Gregory Craig was damaged and it admitted Stevens was an employee of Whiteford. Whiteford denied all other allegations of fact and asserted defenses of incurred risk, contributory negligence, failure to state a claim, and the nonparty defense available under IND.CODE 34-4-33-10.

Whiteford's answer thus put at issue every allegation of fact upon which Craigs based their claims of liability. E.g. State ex rel Klutey v. Daviess Circuit Court, (1964), 245 Ind. 400, 407, 199 N.E.2d 335, 338; Ind. Rules of Procedure, Trial Rule 8.

Whiteford moved for summary judgment. Whiteford accompanied its motion for summary judgment with only a memorandum. It submitted no exhibits, affidavits, or other evidence. It relied instead upon only the pleadings.

Craigs responded with a "motion in opposition to Whiteford's motion for summary judgment." In it Craigs argued, inter alia, Whiteford's motion should be denied because fact issues remained to be determined. In it Craigs also moved to publish certain depositions. Craigs attached Stevens's answers to interrogatories.

Defendants Whiteford responded with a "reply to plaintiff's response to defendants' motion for summary judgment," referring therein to the depositions Craigs had moved to publish and arguing a legal basis for the summary judgment in Whiteford's favor.

Craigs responded to the reply, again with a memorandum arguing law, this time attaching pages of interrogatories and answers, pages from a training manual, and pages of a deposition. Craigs filed a supplement to its memo and related responses.

Apparently the court first denied Whiteford's motion for summary judgment, then upon Whiteford's motion to reconsider, granted it. Craigs appeal.

With consistent regularity we note summary judgment is appropriate only in limited situations. The moving party carries the burden of establishing there is no issue as to any...