Farm Bureau Ins. Co. v. Crabtree

• Decision Date: 27 August 1984
• Docket Number: No. 2-483A115,2-483A115
• Citation: 467 N.E.2d 1220
• Parties: FARM BUREAU INSURANCE COMPANY, Appellant (Defendant Below), v. James C. CRABTREE and Ella D. Crabtree, Appellees (Plaintiffs Below), J.C. Ollie and Kenneth P. Gootee, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1220

467 N.E.2d 1220

FARM BUREAU INSURANCE COMPANY, Appellant (Defendant Below), v. James C. CRABTREE and Ella D. Crabtree, Appellees (Plaintiffs Below) J.C. Ollie and Kenneth P. Gootee, Appellees (Defendants Below).

No. 2-483A115.

Court of Appeals of Indiana Third District.

Aug. 27, 1984.

Glenn E. Davis, Sr., Davis, Davis & Langan, Indianapolis, Louis Denney, Hynes, Denney & Hall, Muncie, for appellant.

Harry A. Wilson, Jr., Wilson & Kehoe, Indianapolis, J. David Haynes, Davis, Jones & Haynes, Muncie, John M. Choplin, II, Peter A. Schroeder, Norris, Choplin & Johnson, Indianapolis, for appellees James C. Crabtree and Ella D. Crabtree.

HOFFMAN, Judge.

On March 1, 1979, at approximately 10:00 A.M., Ella Crabtree was driving her car south in the southbound lane of Interstate Highway 465 in Marion County. Highway 465 is a three-lane divided highway which loops around Indianapolis. On the day of the accident, the area was foggy and the road damp with patches of snow and ice. Crabtree was driving behind a Ford automobile operated by J.C. Ollie. Kenneth Gootee was driving behind Crabtree in a tractor-trailer owned by Capital City Fence Company. All three persons were driving at approximately 50 miles per hour with 60 to 70 feet separating each vehicle.

Ollie's Ford automobile began to fishtail and then veered off the road and struck a cement guardrail. Crabtree checked her rearview mirror before changing into the center lane to avoid being involved in Ollie's accident. Ollie's car then bounced off the guardrail and spun out in front of Crabtree. Crabtree struck Ollie's car and was subsequently struck from behind by Gootee who had also changed lanes in hope of avoiding an accident.

Crabtree suffered serious injury in the accident and was taken to the hospital. An investigation revealed that Ollie was operating his car while intoxicated and was the cause of the accident. It was also discovered that Ollie had no automobile insurance.

Within a few days Crabtree informed her insurer, Farm Bureau Insurance Company, of the accident. At this time Crabtree tendered a written accident report and damage claim. Farm Bureau agreed to pay $2,604 for the total loss of Crabtree's car. In addition Farm Bureau paid $1,000 of Crabtree's medical expenses.

After turning in her initial claim on March 5, 1979, Crabtree attempted to obtain insurance information from Ollie and Gootee. Crabtree then discussed with a Farm Bureau agent whether her insurance policy provided any further coverage for the additional damages she had incurred, primarily medical expenses. First, Crabtree was informed she had no uninsured motorist coverage. Then Crabtree was informed her uninsured motorist coverage operated to benefit the uninsured motorist. Finally, Crabtree was informed the uninsured motorist provision in her policy did not provide coverage in this particular case until it was determined whether Gootee, an insured motorist, was liable for any of Crabtree's damages.

Farm Bureau denied Crabtree's claim under the uninsured motorist provision of her policy. Crabtree and her husband brought suit against Farm Bureau and Gootee. Mrs. Crabtree sought compensatory damages for her medical expenses and lost wages. Mr. Crabtree sought to recover for loss of consortium. Both Crabtrees sought punitive damages. The jury returned a verdict for Mrs. Crabtree for compensatory damages in the amount of $75,000. The jury found against Mr. Crabtree but awarded the Crabtrees, jointly, $925,000 in punitive damages. ¹ The jury also found in favor of Gootee expunging him of any liability. Farm Bureau appeals.

Farm Bureau presents several issues for review which have been restated and reorganized for purposes of review:

(1) whether the trial court erred in denying Farm Bureau's motion for separate trials;

(2) whether the jury was correctly instructed as to the burden of proof necessary to support an award of punitive damages;

(3) whether the court erred by instructing the jury on the theories of estoppel and waiver;

(4) whether the judgment of the trial court is supported by insufficient evidence and contrary to law; and

(5) whether the number and form of the verdict forms submitted to the jury were confusing and misleading resulting in prejudice to Farm Bureau.

The first issue discussed by the court involves the trial court's denial of Farm Bureau's motion for separate trials. It is Farm Bureau's contention that this ruling, combined with the trial court's grant of Gootee's motion in limine to exclude evidence of his insurance, denied Farm Bureau a substantial defense. A theory of defense raised by Farm Bureau was that the uninsured motorist provision of Crabtree's policy excepted recovery where the insured could recover against an insured third party. Thus, according to Farm Bureau trying it in the same action as Gootee was unnecessarily confusing and denied Farm Bureau this theory of defense because Gootee's insurance could not be mentioned.

The grant or denial of a party's motion for separate trials pursuant to Ind.Rules of Procedure, Trial Rule 42(B) rests within the trial court's exercise of sound judicial discretion and will be reversed only for an abuse of that discretion. Indiana State Highway Com'n v. Vanderbur, (1982) Ind.App., 432 N.E.2d 418. A showing of prejudice is a prerequisite to establishing that a trial court erred in denying a motion for separate trials. Jessop v. Werner Transp. Co., Inc., (1970) 147 Ind.App. 408, 261 N.E.2d 598.

Farm Bureau has shown no prejudice resulting from the trial court's ruling on the two motions at issue. The trial court reversed its ruling on the motion in limine during Farm Bureau's case-in-chief allowing it the opportunity to introduce evidence of Gootee's insurance. Farm Bureau argues it was still prejudiced because the motion in limine was not removed until a substantial portion of its evidence had been presented.

While it is not clear why the timing of the introduction of Gootee's insurance resulted in prejudice, there is no doubt that any error in that regard is chargeable to Farm Bureau. A motion in limine is not a final ruling on the admissibility of evidence. In order to preserve a challenge to the trial court's ruling on the admissibility of certain evidence, that evidence must be offered at trial and objection timely made to the trial court's ruling on the admissibility of the evidence. Marsh v. Lesh, (1975) 164 Ind.App. 67, 326 N.E.2d 626.

In the case at bar the trial court reversed its ruling on the motion in limine and allowed Farm Bureau to introduce evidence of Gootee's insurance at the first point in time Farm Bureau attempted to do so. Consequently any prejudice which resulted from the fact that evidence of Gootee's insurance was not admitted until a substantial portion of Farm Bureau's case had been presented is the fault of Farm Bureau and not the trial court. It is equally clear the trial court did not abuse its discretion in denying Farm Bureau's motion for separate trials, as that would have resulted in inefficient and cumbersome trial proceedings.

The Court next addresses Farm Bureau's challenge to the trial court's instruction of the jury on the burden of proof necessary to support an award of punitive damages. In the case at bar, the jury was instructed that Crabtree's claim for punitive damages need only be proved by a preponderance of the evidence. One day prior to the trial court's instruction of the jury the Supreme Court of Indiana handed down its decision in Travelers Indem. Co. v. Armstrong, (1982) Ind., 442 N.E.2d 349 which changed the applicable burden of proof. Pursuant to Travelers, punitive damages must be supported by clear and convincing evidence.

The issue in this case centers on the retroactive effect of the standard of proof set out by the Supreme Court in Travelers. This Court has on several occasions applied the Travelers standard retroactively. Lloyds of London v. Lock, (1983) Ind.App., 454 N.E.2d 81; Tuthill Corp. Fill-Rite Div. v. Wolfe, (1983) Ind.App., 451 N.E.2d 72; Farm Bureau Mut. Ins. Co. v. Dercach, (1983) Ind.App., 450 N.E.2d 537; Don Medow Motors, Inc. v. Grauman, (1983) Ind.App., 446 N.E.2d 651. In these cases the court held the issue of punitive damages should be remanded for retrial even though no objection had been made to the court's instruction on the wrong burden of proof. Such a holding was necessary since Travelers was pending appeal while those cases were proceeding at trial.

In the case at bar the decision in Travelers was rendered one day prior to the instruction of the jury. The Crabtrees argue this is sufficient time to become aware of the new ruling and to apply the same standard in this case as in the earlier decisions would result in an unworkable standard of review to be applied on a case by case basis.

The Crabtrees' concern is appreciated. However, this Court believes the more equitable approach requires a case by case analysis. In the present case Farm Bureau contends it was not...