Danes v. Automobile Underwriters, Inc.
| Decision Date | 11 March 1974 |
| Docket Number | No. 2--573A109,2--573A109 |
| Citation | 307 N.E.2d 902,159 Ind.App. 505 |
| Parties | Karen DANES, b/n/f Mary Danes, Plaintiff-Appellant, v. AUTOMOBILE UNDERWRITERS, INC., Attorneys in Fact for State Automobile Insurance Association, Defendant-Appellee. |
| Court | Indiana Appellate Court |
William R. McCain, Martinsville, for plaintiff-appellant.
David F. McNamar, Steers, Klee, Sullivan & LeMay, Indianapolis, for defendant-appellee.
On September 21, 1968, in Mooresville, Indiana, Karen Danes, age 11, was injured in an automobile accident involving an uninsured motorist. At the time, Karen was an additional insured under the uninsured motorist provision of an insurance policy issued by defendant-appellee (insurer) to Karen's father, George Danes. A settlement was reached between the insurer and George and Mary Danes, as parents of Karen, with respect to Karen's injuries. George and Mary executed a release to the company from any further claim for such injury.
Subsequently, in apparent dissatisfaction with the settlement, Mary brought suit for declaratory judgment in Karen's behalf seeking to set aside the release as void. The complaint alleged that the release had been obtained by fraud and additionally that it was 'void ab initio as against public policy.' Appellant (Danes) appeals from a judgment for defendant upon the plaintiff's complaint.
The pertinent evidentiary facts disclose that at the time of the automobile collision, Karen bumped her head and appeared to have injured her arm. After being transported by ambulance to an Indianapolis hospital and having x-rays taken, Karen was released by the hospital physicians. She was never under furer medical care as a result of injuries occasioned by the accident. The medical bill with respect to Karen's injuries totaled $21.00 ($16.00 for hospital charges and $5.00 for ambulance fee).
During his initial investigation, some three days following the accident, Harley Owens, a claims representative for insurer, telephoned the Daneses with reference to their claim. He was told that they had consulted an attorney. Owens thereupon declined to discuss the matter further directly with the Daneses.
One week later, on October 1, 1968, Owens was informed 'by the Home Office' that the Daneses 'had called in and weren't represented by an attorney and that they wanted to see us and wanted a settlement as they needed money.' The testimony of George Danes indicates that he had post-dated a $100.00 check in an automobile purchase arrangement and needed the settlement proceeds to cover the check. 1
Owens went to the Danes home on the same day, October 1. After obtaining a written statement signed by Mrs. Danes which represented that as of that date Karen had been released from a physician's care, Owens offered and the Daneses accepted, with respect to Karen's injuries, a settlement of $71.00, $50.00 more than the medical expense incurred. In return, Mr. and Mrs. Danes executed the release in question.
Although no medical testimony was introduced in the trial below, Mrs. Danes testified that some six to nine months following the accident, she noticed that Karen at times 'seemed inattentive', had headaches, would get a 'glazed look in the eye' and would tremble.
Two questions are presented for our resolution:
1. Does the evidence require a finding of actual or constructive fraud on the part of the insurance company in obtaining the release?
2. Was the release void as a settlement of a minor's claim without the court's approval as required by statute?
Insofar as Danes alleges that the decision of the trial court is not supported by sufficient evidence, no issue is presented for review.
As held in Houser v. Bd. of Comn. of DeKalb County (1969), 252 Ind. 312, 316, 247 N.E.2d 675, 678:
'A decision against a litigant with the burden of proof is a negative decision against him and may not be attacked on the ground that the evidence is insufficient to sustain the decision of the trial court. . . . Thus, the judgment of the trial court should be affirmed unless the evidence 'leads to but one reasonable conclusion and the trial court has reached a contrary conclusion'.'
Without recapitulating the evidence hereinbefore set out, suffice it to say that the testimony adduced at trial does not compel, as a matter of law, a conclusion that fraud, actual or constructive, was present in the obtaining of
the release. RELEASE NOT VOID BUT IS UNENFORCEABLE ABSENT
Indiana's Minor's Compromise Statute, IC 1971, 29--1--18--38, Ind.Ann.Stat. § 8--138 (Burns Code Edition), provides in pertinent part:
Had the plaintiff's complaint for declaratory judgment been phrased differently and couched in terms of unenforceability rather than voidness or had counsel below prior to or during trial specifically called the court's attention to the statute, the matter might well have been resolved differently. Although the trial brief of Danes submitted prior to judgment and the 'Statement of Facts' accompanying her Motion to Correct Errors assert that Karen's minority prevents 'anyone from acting for her without approval of the Courts', the statute itself is first referred to in appellant's brief in this court.
Insurer asserts that the citation of the statute gives rise to a new issue on appeal which was not before the trial court. We do not agree. This objection is couched in terms of an alleged change in the theory of the case. Without regard to whether or not such objections remain viable under the present Rules of Civil Procedure (See Ayr-Way Stores, Inc. v. Chitwood (1973), Ind., 300 N.E.2d 335) 2, it is our opinion that such argument is inapplicable to this case.
Danes' complaint alleged that:
'Said document was...
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