Deible v. Poole, 45A03-9706-CV-211

• Decision Date: 04 March 1998
• Docket Number: No. 45A03-9706-CV-211,45A03-9706-CV-211
• Citation: 691 N.E.2d 1313
• Parties: Kathleen DEIBLE, Appellant-Plaintiff, v. Steven POOLE, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1313

691 N.E.2d 1313

Kathleen DEIBLE, Appellant-Plaintiff, v. Steven POOLE, Appellee-Defendant.

No. 45A03-9706-CV-211.

Court of Appeals of Indiana.

March 4, 1998.

Rehearing Denied June 19, 1998.

Charles R. Deible, Hammond, for Appellant-Plaintiff.

Robert M. Green, Timothy M. Swan & Associates, Merrillville, for Appellee-Defendant.

OPINION

GARRARD, Judge.

Kathleen Deible ("Deible") appeals the trial court's denial of her motion to correct error, claiming the trial court abused its discretion when it did not order a new trial.

We reverse and remand for a new trial.

FACTS

While stopped at a stop light on January 7, 1989, Deible was struck from behind by a car driven by Steven Poole ("Poole"). At the time of the accident, Poole was not wearing his glasses as required by his driver's license and was not looking at the road. The rear passenger side fender on Deible's car was damaged in the collision and Deible began to feel pain in her chest, right shoulder, and back. Deible did not immediately seek medical treatment, but three days later went to the emergency room to remedy her pain. The following day Deible went to her family physician and began what was to become more than seven years of treatment for the pain Deible claimed was caused by the accident.

Deible filed her negligence suit against Poole on April 21, 1989. For reasons not made clear by the record, Poole did not file his answer until June 8, 1994. More than two years later, on December 2, 3, and 4, 1996, a jury trial was held. At trial, Poole did not dispute the cause of the accident ¹, but instead challenged the necessity of much of the medical treatments Deible underwent. Poole did not, however, deny that Deible was entitled to some damages for her initial medical treatments. ² The jury returned a verdict in favor of Poole which stated: "We, the Jury assess the percentages of fault as follows: Plaintiff, Kathleen Deible, 100 percent; Defendant, Steven Poole, zero percent, and we, therefore, find for the Defendant, Steven Poole, and against the Plaintiff Kathleen Deible." Record at 677.

Deible filed a motion to correct error following this verdict, seeking judgment notwithstanding the verdict or a new trial. The trial court denied Deible's motion to correct error. In its order, the trial court stated that though it was unreasonable for the jury to have found Deible 100% at fault, the evidence supported a finding that Deible was at least 50% at fault. Because Deible would not have been entitled to recover when her fault was greater than 50%, the trial court found that although the jury's finding of 100% fault was erroneous, it was not grounds for setting aside the verdict or ordering a new trial. Deible appeals this decision.

ISSUE

Deible raises one issue ³ which we restate as:

I. Whether the trial court erred by refusing to grant a new trial.

DISCUSSION

Deible claims that under Indiana Trial Rule 59(J), the trial court was required to grant a new trial because Poole admitted that he caused the accident and that Deible was entitled to recover for at least some of her medical bills. In essence, Deible argues that first the jury and then the trial court misinterpreted Poole's failure to mitigate damages defense to find that Deible was at fault for the accident. Poole, on the other hand, argues that the jury and trial court correctly applied the law concerning mitigation of damages to find that Deible's failure to mitigate her damages made her at fault for the accident and her damages.

The trial court has broad discretion to grant or deny a motion for a new trial and that determination will be reversed only for an abuse of discretion. Schuh v. Silcox, 581 N.E.2d 926, 927 (Ind.Ct.App.1991). "An abuse of discretion will be found when the trial court's action is against the logic and effect of facts and circumstances before it and the inferences which may be drawn therefrom." DeVittorio v. Werker Bros., Inc., 634 N.E.2d 528, 530 (Ind.Ct.App.1994). Before a trial court can grant a new trial under Indiana Trial Rule 59(J), the trial court must first find prejudicial or harmful error which can be corrected by an appropriate remedy. Id. at 532.

The issue before us in this appeal is whether the defense of failure to mitigate damages may be used as a defense to the ultimate issue of liability or whether it simply concerns the amount of damages the plaintiff is entitled to recover when liability has been determined. Deible argues that because Poole admitted to causing the accident, Poole's mitigation of damages defense dealt only with the amount of damages Deible was entitled to recover, not whether Deible was at fault for the accident. Poole contends that Deible failed to mitigate her damages by continuing to seek medical treatment for seven years after the accident and, therefore, under Indiana Code § 34-4-33-2 Deible could be found at fault.

"The issue of mitigation of damages is a matter of defense with the burden on the party held liable to respond in damages." Colonial Discount Corp. v. Berkhardt, 435 N.E.2d 65, 67 (Ind.Ct.App.1982). Generally, the non-liable party must mitigate its damages, but the burden lies with the liable party to prove that the non-liable party has not used reasonable diligence to mitigate its damages. Id. "[T]he principle of mitigation of damages addresses conduct by an injured party that aggravates or increases the party's injuries. The principle does not address the measure of damages resulting from injuries occasioned by the tortfeasor's conduct." Wiese-GMC, Inc. v. Wells, 626 N.E.2d 595, 599 (Ind.Ct.App.1993), trans. denied. Poole acknowledges that the burden rests with him to prove Deible's failure to mitigate, but argues that under Indiana Code § 34-4-33-2 this defense concerns issues of liability as well. Indiana Code § 34-4-33-2(a)(1) provides:

'Fault' includes any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.

It is this last sentence that Poole relies upon to support his argument that the jury could have found Deible at fault for failing to mitigate her damages.

At its core, the issue before us is whether mitigation of damages solely concerns the amount of recoverable damages or whether, under Indiana Code § 34-4-33-2 and the Comparative Fault Act, the defense of mitigation of damages also concerns the issue of liability. By finding Deible 100% at fault and by not granting a new trial, the jury and trial court appear to have believed that Poole's mitigation defense was a defense to the issue of liability. Deible argues that the jury's verdict was clearly erroneous and that the trial court abused its discretion by not granting a new trial.

Normally, mitigation of damages is used to refer to situations where a conceded or assumed cause of action does not entitle the plaintiff to recover as large an award of damages as is sought. 22 AM.JUR.2D Damages § 492 (1988). Here, by raising the defense of mitigation of damages, Poole is, in essence, arguing that Deible did not minimize her damages and, therefore, cannot recover for all the damages sought.

Failure to minimize damages does not bar the remedy, but goes only to the amount of damages recoverable. Otherwise stated, if the act of the injured party does not operate in causing the injury from which all damages ensued, but merely adds to the resulting damages, its only effect is to prevent the recovery of those damages which reasonable care would have prevented.

22 AM.JUR.2D Damages § 497 (1988) (footnotes omitted). The evidence at trial showed that Deible's actions did not operate in causing the accident. Deible was simply stopped at a red light when Poole struck her from behind. Poole's mitigation defense concerns Deible's act of continuing to seek allegedly unwarranted medical treatments, not any act contributing to the accident itself. Relying upon Indiana Code § 34-4-33-2, Poole argues that under Indiana law a failure to mitigate damages is defined as fault and, therefore, the jury's verdict and the trial court's denial of the motion to correct errors were justified.

The unreasonable failure to mitigate damages can be apportioned as fault under comparative fault statutes if the statutes provide that contributory negligence only diminishes the damages in proportion to the plaintiff's negligence. 22 AM.JUR.2D Damages § 497 (1988). In this context, fault is used to describe to which party the claimed damages are attributable. That was the issue before the...