Hudson v. Tyson
| Decision Date | 20 May 1980 |
| Docket Number | No. 2-377A88,2-377A88 |
| Citation | 404 N.E.2d 636 |
| Parties | H. Pete HUDSON, Insurance Commissioner of Indiana, Appellant (Garnishee defendant below), v. Eric L. TYSON, Appellee (Judgment plaintiff below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Jane M. Gootee, Deputy Atty. Gen., Indianapolis, for appellant.
Miller & Miller, William B. Miller and Jacob S. Miller, Indianapolis, for appellee.
Hudson appeals the judgment of the trial court applying funds deposited with the Indiana Insurance Department in satisfaction of a judgment obtained by Tyson against Imperial Insurance Company. We affirm with modifications.
Tyson was shot by his bail bondsman in the latter's attempt to bring him into court on an outstanding bench warrant. In an action for damages, Tyson recovered a $10,000 judgment against the bondsman's principal, Imperial Insurance Company. Tyson sought to satisfy his judgment by proceedings supplemental under Indiana Rules of Procedure, Trial Rule 69(E). Tyson alleged Hudson, as Indiana Insurance Commissioner, held property owing to Imperial Insurance Company in the form of a deposit "to secure the payment of judgments on defaulted bail bonds." Hudson was ordered to appear to testify as to property he held belonging to Imperial Insurance Company available for satisfaction of Tyson's judgment. After a hearing, the trial court ordered funds deposited by Imperial with the Insurance Department applied to satisfy the judgment.
Tyson argues procedural errors made by Hudson in seeking appellate review require either the dismissal or summary affirmance of this appeal. This court previously considered Tyson's motion to dismiss in which he argued certain procedural errors precluded Hudson from appellate review. See Hudson v. Tyson, (1978) Ind.App., 383 N.E.2d 66.
Along with his motion to dismiss Tyson requested an extension of time to file his appellee's brief, which was granted in part because of Tyson's averment in his verified petition that his brief would consider only the merits of the appeal, all motions to dismiss having been filed. By requesting an extension of time to file his brief on the merits, Tyson waived consideration of any procedural errors not alleged in his motion to dismiss. See Indiana Rules of Procedure, Appellate Rule 14(B); Clyde E. Williams and Associates, Inc. v. Boatman, (1978) Ind.App., 375 N.E.2d 1138, 1140.
Hudson initially urges the trial court erroneously denied his motion to dismiss 1 challenging Tyson's failure to join an indispensable party under Indiana Rules of Procedure, Trial Rule 19. Hudson has waived any error, however, by failing to assert it in his motion to correct errors. Indiana Rules of Procedure, Trial Rule 59(G), Appellate Rule 7.2(A)(1)(a). By choosing to perfect his appeal of the order in proceedings supplemental through a motion to correct errors, Hudson must limit his appeal to errors asserted therein. See Hudson v. Tyson, 383 N.E.2d at 72.
Hudson next attacks the judgment of the trial court as contrary to law and unsupported by the evidence. 2 In proceedings supplemental to execution, the trial court is empowered
" . . . (u)pon the hearing, . . . (to) order any property . . . of the judgment debtor, not exempt from execution, in the hands either of himself or of any other person, or any debt due to the judgment debtor, to be applied to the satisfaction of the judgment . . . ." IC 34-1-44-7 (Burns Code 1973 Ed.)
Tyson, as judgment creditor, at the hearing had the burden of proving the funds in question were available for execution. Malbin and Bullock, Inc. v. Hilton, (1980) Ind.App., 401 N.E.2d 719; Hopple v. Star City Elevator Co., Inc., (1967) 140 Ind.App. 561, 224 N.E.2d 321. However, on appeal, the trial court's judgment is presumed correct and Hudson must establish error. See e. g. Indiana Broadcasting Corp. v. Star Stations of Indiana, (1979) Ind.App., 388 N.E.2d 568, 573.
Hudson challenges the trial court acted contrary to IC 34-1-44-7 and IC 35-4-5-35 (Burns Code 1979 Ed.) concerning insurer deposits, 3 by finding Imperial's deposit was not exempt from execution. He additionally charges that because the deposit was only a contingent obligation the evidence failed to establish Imperial's deposit with the Insurance Commissioner was a debt due judgment debtor under IC 34-1-44-7.
In the exercise of its police power, the State may impose reasonable regulations upon businesses affecting the welfare of its citizens. See Vernon Fire and Casualty Insurance Co. v. Sharp, (1976) 264 Ind. 599, at 616, 349 N.E.2d 173, at 184; J. Appleman, 19 Insurance Law and Practice § 10321 (1946). In supervising the conduct of insurance business, the State requires divers deposits with the insurance department. See e. g. IC 27-1-12-11, 27-7-3-7. The availability of these funds for execution under IC 34-1-44-7 therefore initially depends upon the provisions of the regulating statute.
Creation and utilization of insurer deposits made pursuant to IC 35-4-5-35 insure prompt payment of all bond forfeitures. As a prerequisite to obtaining a license to engage in bail bond business, IC 35-4-5-35 (Burns Code 1979 Ed.) requires insurers to deposit $75,000 with the Insurance Commissioner "out of which the commissioner shall satisfy judgment on all forfeitures which have not been paid." 4 Indiana Code 35-4-5-12 (Burns Code 1979 Ed.) requires "the commissioner . . . shall . . . (w)ithin fourteen (14) days of receipt of the notice from the clerk satisfy the judgment from funds the insurer . . . has on deposit with the department of insurance." The commissioner is further required to revoke an insurer's license immediately if payment under 35-4-5-12 causes the deposit to fall below the $75,000 minimum required by IC 35-4-5-35. 5
Effective operation of the state's bail system is enhanced by these requirements which provide the insurer with a very real interest in defendants' appearance in court. Thus, the Department of Insurance is statutorily authorized to release these funds only for the limited purpose for which the deposit was designed payment of bond forfeiture judgments. 6 Payment of Tyson's judgment against Imperial in a tort action would not therefore be permitted under the above statutes.
In creating the bond-forfeiture deposit, the legislature deferred to general statutory insurance provisions in Title 27 for administration of the funds, IC 35-4-5-35 stating these deposits "shall be subject to all laws, rules and regulations as are deposits by domestic insurance companies." When the purpose for any deposit required by Title 27 is fulfilled, IC 27-1-20-11 (Burns Code 1975 Ed.) requires the department to return any remaining funds to the insurance company.
Emphasis added. IC 27-1-20-11.
The evidence reveals Hudson revoked Imperial's license to do business in Indiana in September, 1975. Thus the contingent event had occurred entitling Imperial to establish its right to return of the deposit and Tyson to establish his right as judgment creditor.
Hudson urges, however, Imperial's right to the funds had vested in a California liquidator. When seeking to enforce a foreign judgment, proponent must establish its existence. Shane v. Koehler, (1976) 168 Ind.App. 552, 343 N.E.2d 818. Hudson did testify at the hearing that Imperial "was placed in liquidation" in September, 1975 and alluded to a California court order requiring Imperial to cease operation. 7 However Hudson failed to produce any evidence that this purported order was a valid judgment, in force, or to set forth its contents to enable the trial court to initially determine, and this court to later review, its effect, if any, upon the present proceedings. In fact, Hudson testified that, other than bond forfeiture judgments received since revocation of Imperial's license, he had received no order or lien attaching the funds. Hudson did not meet his burden of establishing the effect of any intervening order.
Cessation of Imperial's business establishes the funds as a debt available for execution under IC 34-1-44-7. At the time of the hearing, the exact amount of the funds due Imperial was unknown, Hudson testifying that, although it was "potentially correct" that his department had been notified of all outstanding bond forfeiture judgments in the few months since Imperial's cessation of business, his experience as Insurance Commissioner would indicate notification of these judgments would require two to five years. 8 The trial court therefore erred by ordering immediate attachment of the funds to satisfy Tyson's judgment.
In framing an order of execution, the trial court may utilize its equitable powers. Indiana Code 34-1-44-7 allows it "full power to enforce all orders and decrees . . . by attachment or otherwise." Therefore the trial court should have entered a final order attaching any funds due Imperial under IC 27-1-20-11 when payment has been made of all bond forfeiture judgments for which Imperial is liable in accordance with its...
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