GEICO Ins. Co. v. Rowell

• Decision Date: 13 January 1999
• Docket Number: No. 45A03-9806-CV-253,45A03-9806-CV-253
• Citation: 705 N.E.2d 476
• Parties: GEICO INSURANCE COMPANY, Appellant-Defendant, v. Freda ROWELL, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 476

705 N.E.2d 476

GEICO INSURANCE COMPANY, Appellant-Defendant, v. Freda ROWELL, Appellee-Plaintiff.

No. 45A03-9806-CV-253.

Court of Appeals of Indiana.

Jan. 13, 1999.

Rehearing Denied Feb. 18, 1999.

David W. Pera, Buoscio, Pera, Krammer & Nowak, Merrillville, for Appellant.

James W. Myers, III, Valparaiso, Christina L. Maas, Valparaiso, for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant GEICO Insurance Company (GEICO) brings this interlocutory appeal of the trial court's grant of appellee-plaintiff Freda Rowell's various motions for extension of time to respond to GEICO's motion for summary judgment. GEICO also appeals from the trial court's denial of its motion for summary judgment on Rowell's claim for uninsured/underinsured coverage and requests sanctions against Rowell pursuant to Ind. Trial Rule 11(A).

FACTS

The facts most favorable to Rowell reveal that on October 17, 1995, Rowell sustained injuries in an automobile collision. While stopped in traffic, Rowell's vehicle was struck from behind by a vehicle driven by Jean Poulos. Thereafter, Poulos' vehicle was hit by a vehicle operated by Deborah Stasiak, causing Rowell to again be impacted. At the time of the collision, Rowell had uninsured/underinsured motorist coverage through GEICO. Additionally, Stasiak was uninsured, and Poulos was insured by American States Insurance Company (American States).

Thereafter, on March 19, 1996, Rowell filed a complaint for declaratory judgment against Stasiak, Poulus, American States and GEICO, seeking recovery for her injuries. Negotiations with American States and Poulos proved successful and, on September 18, 1997, Rowell received a letter from American States containing an offer to settle for $50,000, the amount representing Poulos' policy limit. This correspondence also included a release and stipulation for dismissal. A copy of this correspondence was sent to GEICO on the same day. On September 24, 1997, GEICO by letter waived any underinsured motorist subrogation rights and agreed not to assert any claim for medical payments against the settlement proceeds. R. at 184. Rowell then executed the release she received from American States on September 25, 1997 which read, in pertinent part, as follows:

I, FREDA ROWELL, ... hereby release and forever discharge JEAN L. POULOS and AMERICAN STATES INSURANCE COMPANY, their heirs, executors, administrators, agents and assigns, together with all other persons, firms and corporations, from all claims, demands, debts, suits, actions and causes of action, and for any injuries, damages, costs, loss of services, expenses, and compensations whatsoever, at law or in equity, and however arising, on account of or in any way growing out of an accident, casualty, or event that occurred on or about the 17th day of October, 1995, at 5201 Indianapolis Boulevard in East Chicago, Lake County, State of Indiana, and on account of which is asserted that the undersigned sustained injuries, damages, and losses for which the parties hereby released are legally liable, all of which is denied and disputed by them.

R. at 185. Rowell's counsel, Christina L. Maas, retained the release pending a review of the stipulation for dismissal and order drafted by counsel for American States, Harry J. Jennings.

After reviewing the stipulation and order, Maas contacted her co-counsel, James W. Myers, and advised him that it appeared that the stipulation and order forwarded with the release would result in a dismissal of the entire case. Therefore, on September 25 and October 1, Maas contacted Jennings and advised him that another stipulation and order was necessary to correctly state that only American States and Poulos were dismissed. R. at 147. GEICO's counsel, David Pera, was advised several times by telephone that Maas would be redrafting the stipulation and order to make clear that the claims against Stasiak and GEICO were still pending. R. at 147. In one of these conversations, Pera jokingly indicated to Maas that he would not mind GEICO being released but that she might mind such a result. R. at 147. At no time did Pera raise any objections to the redrafting.

On October 1, 1997, Maas faxed copies of the redrafted stipulation to Jennings and Pera. Maas received no objections when she spoke with either of them on the telephone. Later that day, Maas faxed the executed release and a copy of the stipulation to Jennings. R. at 191. Maas also sent correspondence to Pera, including a copy of the release and the originals of the redrafted stipulation and order. R. at 189. Maas requested that Pera: "review the enclosed, and if same meets with your approval, please sign same and forward the original Stipulation and Order to Mr. Jennings' office for his signature and so that he may cause same to be duly filed with the Court." R. at 189. Pera, on behalf of GEICO, executed the redrafted stipulation sometime between October 1 and October 6, 1997 and then forwarded it to Jennings. ¹ The stipulation was then signed by Jennings by October 10 and filed with the trial court on October 14, 1997. The check from American States for Poulos' policy limits was forwarded by Jennings on October 15, 1997.

On November 24, 1997, GEICO filed a motion for summary judgment, seeking to dismiss Rowell's claim pursuant to the release. Thereafter, on December 2, 1997, Rowell filed a motion for extension of time to respond to GEICO's motion for summary judgment, seeking an additional ninety days. The motion explained that "in order to properly respond to the motion, counsel may have to take 2-3 depositions and obtain additional or supplemental affidavits from individuals outside of counsel's immediate control." R. at 64. The same day, the trial court entered an order granting Rowell the ninety-day extension. On December 9, 1997, GEICO filed an objection to Rowell's motion. In her response to GEICO's objection, Rowell further explained the need for the extension as follows:

Issues in the case include, waiver, estoppel, equitable reliance, & equitable estoppel. To prove the issues it will be necessary to take the deposition of the attorneys who drafted the release as well as to discover any correspondence between counsel for American States and Geico. Counsel has spoken with attorneys for American States and they have agreed to be deposed and to produce documents. Counsel for the plaintiff is unable to set those deposition [sic] until after the holidays due to all counsel's schedule.

R. at 314. The trial court overruled GEICO's objection on December 19 and granted Rowell an additional ninety days to respond. On February 26, 1998, Rowell filed a second motion for extension of time, asserting the need to depose Pera and Pera's refusal to voluntarily appear for deposition. R. at 75. While the record is unclear, it appears that an extension was granted until April 2, 1998. R. at 72, 318. On March 23, 1998, GEICO filed a motion to strike Rowell's first and second motions for extensions of time. Rowell then filed a third motion for extension of time ² which was similar to her previous motion, alleging Pera's refusal to be deposed and adding that a power outage and a family vacation caused delay in preparing her response. R. at 317-18. On March 26, 1998, the trial court entered the following order:

The Court ... grants the plaintiff an amount of time of at least 30 days and/or an amount of time commensurate to obtain the deposition of David Pera and to respond to the motion for summary judgment. The Court further grants the plaintiff the right to take the deposition of David Pera....

R. at 320.

Finally, on April 27, 1998, Rowell filed her response to GEICO's motion for summary judgment. GEICO followed by filing a motion to strike Rowell's response as untimely. A hearing was held on May 4, 1998 and the following day, the trial court denied GEICO's motion to strike and its motion for summary judgment. The court found, in relevant part, that:

All counsel for the parties stipulated that the dismissal was only applicable to Defendant Poulos and Defendant American States. Thereafter, a release was given to Poulos and American States that specifically released Poulos and American States but contained additional language purporting to release anyone from any claims whatsoever. Defendant Geico knew full well that the release was specifically directed toward Poulos and American States according to the stipulation signed by Geico. Geico's attorney now claims that Geico was also released because of the general language in the release form.

The Court finds there to be no factual issue in this case, and that Geico's claim is without merit.

R. at 309-10. GEICO now appeals. ³

DISCUSSION AND DECISION

I. Extensions of Time

GEICO first argues that the trial court erred in granting Rowell's various motions for extension of time to respond to GEICO's motion for summary judgment. Specifically, GEICO relies on Ind. Trial Rule 56(F) and asserts that any requested extension of time based on the need to obtain affidavits or discovery must be supported by affidavit. ⁴ For this proposition, GEICO directs our attention to Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d 1070, 1073 (Ind.Ct.App.1995), and quotes the following sentence from the case:

Should the party show by affidavit that he is unable to oppose the motion without discovery, then T.R. 56(F) allows the court to order a continuance.

While we agree that a continuance pursuant to T.R. 56(F) requires the filing of an affidavit indicating why the facts necessary to justify opposition are unavailable, GEICO has ignored the next sentence in Seufert: "Similarly, T.R. 56(I) allows the court, for cause found, to alter time limits." ⁵ This rule specifically provides that "[t]he Court, for cause found, may alter any time limit set forth in this rule." T.R. 56(I) (emphasis added). As we noted in Seufert, the decision of whether to order a continuance or to alter any...