Farm Bureau Mut. Ins. Co. v. Dercach, No. 3-1081A263

• Docket Nº: No. 3-1081A263
• Citation: 450 N.E.2d 537
• Case Date: June 29, 1983
• Court: Court of Appeals of Indiana

Page 537

450 N.E.2d 537 FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant-Appellant,
v.
Nicholas DERCACH and Marcia Dercach, Plaintiffs-Appellees. No. 3-1081A263. Court of Appeals of Indiana,
Third District. June 29, 1983.

Page 538

Patricia O'Brien Cotter, South Bend, for defendant-appellant.

Darrell J. Hiatt, Elkhart, for plaintiffs-appellees.

GARRARD, Judge.

On October 10, 1977 Nicholas Dercach (Dercach) was involved in a collision while driving his dump truck on a Michigan highway. Dercach's truck was insured by Farm Bureau Mutual Insurance Co. (Farm Bureau). Farm Bureau secured an estimate of repair cost from an adjuster and selected a garage in Elkhart, Indiana known as I.N.E., Inc. (INE) to do the work. On November 17 Farm Bureau notified Dercach that work could commence as soon as he signed a repair order, which he did on November 30.

Dercach filed his original complaint against Farm Bureau on January 25, 1978. In it he alleged that Farm Bureau had delayed the return of his truck by refusing to authorize repairs and by refusing to acknowledge responsibility for repair costs.

INE completed an initial phase of repairs on June 9, but Dercach requested that additional, previously unauthorized work be done. Farm Bureau approved additional repairs on August 16. Having received no payment for any of its work, INE on August 22 filed notice of its intention to hold a garageman's lien and asserted that Dercach's truck would be sold at public auction if the repair bill was not paid. On September 28, approximately eleven and one-half months after the accident, Farm Bureau sent payment to INE and Dercach claimed his truck.

Dercach amended his complaint on December 23, 1980, alleging that the truck was not properly repaired and that Farm Bureau had refused to pay for repairs in an effort to exploit its superior bargaining position to obtain from Dercach a release from future liability. He sought $3,000 for additional repairs, $1,000 per week for loss of use, and $100,000 for mental anguish and punitive damages.

At a pre-trial conference held on April 22, 1981 Farm Bureau filed its motion for summary judgment on all elements of Dercach's complaint. The trial judge took the motion under advisement and informed Dercach that he could have until April 27, the first day of trial, to oppose it. On that day Dercach filed an affidavit in opposition to Farm Bureau's motion. The trial judge then stated that he would withhold judgment with regard to punitive damages and that he would permit the issue to go to the jury. He also stated that he would take the issue of loss of use under advisement until after evidence had been presented. A jury trial followed against Farm Bureau and co-defendant Michael P. Barnes (Barnes), administrator of the estate of the other driver involved in the collision.

On April 29, at the close of Dercach's case, Farm Bureau filed its motion for judgment on the evidence on the issue of punitive damages. The motion was denied. At the close of all evidence, Farm Bureau moved for judgment on the evidence on the issues of mental anguish, punitive damages, and loss of use. The motion was granted as to mental anguish but denied as to the other issues. On April 30 the jury returned its verdicts in favor of Dercach and against Farm Bureau in the amounts of $12,000 for

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loss of use and additional repairs and $25,000 for punitive damages.

We restate Farm Bureau's assigned errors as follows:

1. Did the court err in permitting a witness to read in evidence an affidavit he had given in 1978?

2. Did the court err in denying Farm Bureau's motion for continuance or for separate trials?

3. Did the court err in denying judgment on the evidence as to damages for loss of use?

4. Was the award of punitive damages contrary to law?

5. Did the court err in denying Farm Bureau subrogation in the judgment against the other driver?

I.

During the trial, the court permitted witness Leslie Hively to read into evidence the contents of an affidavit he had signed on June 28, 1978. Farm Bureau objected to Hively's use of the affidavit on the ground that it did not refresh his memory and that he testified from it rather than from personal memory.

At all relevant times Hively was an employee of INE. On direct examination by Dercach's attorney, Hively was shown two general release forms that released Farm Bureau from any and all future claims arising from the October 10 accident. With regard to each release Hively testified that a representative of Farm Bureau instructed him that INE would have to secure Dercach's signature before Farm Bureau would pay the repair bill.

When Hively was unable to specifically identify this representative he was shown his affidavit, in which he stated that it was Charles E. Ripley, regional claims manager for Farm Bureau, who had given him the "no release--no payment" instruction. However, even though Hively testified that he believed the statements contained in his affidavit reflected his true belief on the date he made them, he admitted that his memory was not refreshed regarding the specific identity of the Farm Bureau representative.

While we agree that this was not an instance of present memory refreshed, see DeArmond v. Carter (1956), 127 Ind.App. 34, 134 N.E.2d 239, the document was admissible as past recollection recorded. Gee v. State (1979), Ind., 389 N.E.2d 303, 309.

II.

Farm Bureau next contends that the trial court erred in denying its motions for continuance or separation of trials, which motions were made at pre-trial conference and on the first morning of trial. Farm Bureau believes that it was entitled to a continuance because the court (1) permitted Dercach to add a new exhibit to the list of exhibits contained in the pre-trial order, (2) signed the pre-trial order, and (3) ruled on Farm Bureau's motion for summary judgment, all immediately before trial. Because these actions were taken so late, Farm Bureau says it was unable to prepare an adequate defense.

The granting or denial of a motion for continuance lies within the trial court's discretion, and the moving party bears the burden of establishing good cause for postponing trial....