Curtis v. Clem

• Decision Date: 18 December 1997
• Docket Number: No. 45A04-9605-CV-191,45A04-9605-CV-191
• Citation: 689 N.E.2d 1261
• Parties: Billy R. CURTIS, Appellant-Plaintiff, v. Patrick P. CLEM, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1261

689 N.E.2d 1261

Billy R. CURTIS, Appellant-Plaintiff, v.Patrick P. CLEM, Appellee-Defendant.

No. 45A04-9605-CV-191.

Court of Appeals of Indiana.

Dec. 18, 1997.

James T. Walker, James T. Walker, P.C., Merrillville, for Appellant-Plaintiff.

David R. Phillips and Ricardo A. Hall, Spangler, Jennings & Doughtery, P.C., Merrillville, for Appellee-Defendant.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Billy R. Curtis appeals a trial court order reducing a judgment entered upon a jury verdict awarding compensatory damages against Patrick P. Clem in the amount of pretrial payments made by Clem's insurance carrier.

We reverse.

ISSUES

Whether the trial court erred in reducing the judgment entered upon a jury verdict awarding compensatory damages.

FACTS¹

On May 26, 1994, Billy Curtis sustained personal injuries when his semi-tractor and trailer collided with an automobile operated by Patrick Clem.On October 7, 1994, Curtis filed a complaint against Clem.In his answer, Clem raised the defense of satisfaction, alleging in part that he was "entitled to credit for payments received by [Curtis] as compensation for damages" and requesting an "allowance of a pro tanto credit."(R. 17).The parties participated in a pretrial conference, and on October 2, 1995, filed a stipulated pretrial order subject to the approval of the trial court.In this pretrial order, Curtis contended that Clem's insurance carrier had paid him "$4,169.12 toward income loss and $2,490.25 toward property damage," and that Clem was "entitled to credit for both [ ] payments."(R. 32).Clem contended, in part, as follows:

Mr. Clem ... contends that the fault or contributory fault of the plaintiff, including plaintiff's failure to mitigate damages, were proximate causes of the plaintiff's claimed injuries and damages.

Mr. Clem also disputes the nature, extent and origin of plaintiff's claimed injuries and damages.Regarding the property damage, there has been a full satisfaction and accord of any debt arising from this accident.Specifically Mr. Clem's insurer ... paid Mr. Curtis $2,490.25 ... and $4,169.12....These amounts represent full compensation for the decrease in the fair market value of Mr. Curtis' vehicle, and also full compensation for any loss of use.Mr. Clem contends he is entitled to a credit or set off for these funds forwarded on his behalf.

(R. 33).The trial court approved this pretrial order.

A jury trial was held on February 12, 15 and 16, 1996.During opening statement, Curtis' counsel stated as follows:

As far as damages are concerned, the--the--most of the property damage has been paid for already on Mr. Clem's behalf.There was a payment of approximately $2,490 that's already been paid.And that's fine.We're not contesting that.There was some additional property damages for front end damage to the vehicle in terms of frame damage and other minor front end damage.That's--a portion of that is still unpaid.The downtime on the truck was paid on Mr. Clem's behalf, and that's not really an issue in this case.That figure was [$]4,169 was paid for that.

(R. 114).During the presentation of evidence, the jury was made aware of the property damage to Curtis' semi-tractor and trailer (including the property damage for which Curtis had already been compensated) and his loss of use of the vehicle.The jury was also made aware of the pretrial payments of $2,490 and $4,192 made by Clem's insurance carrier toward certain property damage and loss of use of the vehicle, respectively.During closing argument, Curtis' counsel made the following comments to the jury regarding the pretrial payments:

... we've been saying to you throughout the whole trial, we're not making any claim for downtime on the truck.And frankly, I don't know what all this stuff is about the downtime on the truck.State Farm are the ones that came up with the figures, and now, they want to complain about it.They never asked for the money back, and when we come to trial, they're screaming and yelling that they paid too much.Well, I don't know what that means.

The body damage on the truck, I told you at the beginning, is paid and we accept that.No problem.The front end damage was not totally paid, but it's a little tiny item, and it's--it started out like this, permanent damage was $1,699.And then a hundred dollars of it was paid by--actually, 250 of that was already paid by State Farm.So, you take off, minus 250, and we get $1,449, I think ...

(R. 698).

Without separating out or making any distinction between paid and unpaid property damage claimed by Curtis and without mentioning the pretrial payments made to Curtis, the trial court gave a final instruction to the jury to calculate Curtis' total damages.On February 16, 1996, the jury returned a verdict in favor of Curtis in the sum of $25,000, and the trial court entered a judgment thereon.

Neither party appealed the judgment or filed a motion to correct error.However, on April 4, 1996, Clem filed a motion for satisfaction of judgment, requesting that the trial court reduce the $25,000 judgment to $18,521.08 in accordance with the pretrial order wherein the parties agreed that the defendant was entitled to a credit of $6,659.37.On May 9, 1996, after hearing arguments by counsel, the trial court entered an order finding that Clem was entitled to a credit of $6,659.37 against the judgment.The trial court's order reads in part as follows:

The jury trial in this matter resulted in a verdict in favor of the Plaintiff and against the Defendant in the sum of $25,000.00.In the Pre-Trial Order, each party contended and therefore agreed that the Defendant was entitled to partial satisfaction of the judgment in the sum of $6,659.37.The credit was by reason of payments made toward property damage and lost income by the Defendant's insurance carrier prior to trial.

During the trial, the jurors were made aware of the partial payments.The Court instructed the jury on the Plaintiff's measure of damages.Counsel were both aware of the agreement regarding reduction of the judgment by virtue of the payments throughout the trial and the Court now finds no basis to change the contentions.

IT IS NOW THEREFORE ORDERED that the Defendant's Motion for Partial Satisfaction of Judgment is hereby GRANTED.Defendant is entitled to credit of $6,659.37 against the judgment entered in this case upon the jury's verdict.The Clerk shall therefore show a reduction of the judgment amount by $6,659.37 effective the date of the entry of judgment.Plaintiff is entitled to collection of the balance of the judgment, plus costs, together with interest from the date of judgment until paid in full.

(R. 97-98).Additional facts are supplied as necessary.

DECISION

Before addressing the merits of Curtis' contentions on appeal, we note that pre-trial payments, such as the ones made in this case, are generally inadmissible at trial.Payments made to a plaintiff in advance of trial by a defendant or a defendant's insurer constitute "advance payments" and are inadmissible in evidence during the trial.Ind.Code § 34-3-2.5-1;Barnes v. Barnes, 603 N.E.2d 1337, 1346(Ind.1992).²In the event of a verdict awarding a plaintiff compensatory damages, the defendant may present proof of his advance payments, whereupon the court is required to reduce the verdict to the extent that said award includes an amount paid by any such advance payment.Id. at 1347;Ind.Code § 34-3-2.5-2.

Contrary to the aforementioned law, the jury in the case at bar was presented substantial information and evidence throughout the trial regarding advance payments.During opening statement, Curtis' counsel stated (1) that Curtis was satisfied with the pretrial payments of $2,490 and $4,169 made on Clem's behalf for certain property damage to, and downtime of, his vehicle; and (2) that these payments were not an issue in the case.Curtis' counsel also stated that Curtis was only seeking a portion of property damage which remained unpaid by Clem.Clem did not object to these statements.

During the presentation of evidence, David McCann, the body shop manager at Great Lakes Peterbilt GMC Truck, testified that he prepared a body damage estimate for Curtis' vehicle in the amount of $2,490.25.McCann further testified that the estimate did not include hidden damage.On cross examination of McCann, Clem's counsel brought to the jury's attention that Curtis had already been paid $2,490 for this body damage estimate.(R....