Kimberlin v. DeLong, 2-384-A-72
| Citation | 613 N.E.2d 46 |
| Decision Date | 03 May 1993 |
| Docket Number | No. 2-384-A-72,2-384-A-72 |
| Parties | Brett Coleman KIMBERLIN, Appellant-Defendant, v. Sandra Sue DeLONG, personal representative for Carl David DeLong, deceased, and Sandra Sue DeLong, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Arend J. Abel, Barnes & Thornburg, Indianapolis, for appellant-defendant.
Paula Thrun Kight, Indianapolis, for appellees-plaintiffs.
Appellant-defendant Brett Coleman Kimberlin (Kimberlin) appeals from a jury verdict which awarded the plaintiff Sandra Sue DeLong (Sandra) $360,000 for injuries she sustained in an explosion allegedly caused by Kimberlin, and for a wrongful death claim she brought as personal representative on behalf of her husband, Carl David DeLong (Carl) [hereinafter collectively referred to as the DeLongs], claiming among other things, that the trial court erred in granting the DeLongs motion for partial summary judgment on the issue of liability, and that it was error to deny Kimberlin's We affirm in part and reverse in part.
motion to dismiss Sandra's wrongful death claim.
The facts most favorable to the judgment are that on September 6, 1978, Sandra and Carl were injured by an explosion which occurred at Speedway High School in Speedway, Indiana. The DeLongs were walking through the parking lot after leaving a football game. The explosive device was concealed in an abandoned gym bag. The bomb exploded as the DeLongs walked passed it. Carl and Sandra were seriously injured in the blast. Carl's right leg was nearly severed from the explosion. Physicians eventually amputated such leg above the knee; and a skin graft was performed and Carl was fitted with an artificial leg. Carl also was treated for a perforated eardrum. After Carl's wounds healed, he received physical therapy and learned how to walk with an artificial limb. While Carl's recovery proceeded remarkably well, pieces of shrapnel eventually worked their way to the surface of his skin. The shrapnel had to be surgically removed on a continuing basis. Carl also suffered from a pre-existing back injury which may have been aggravated by the use of the artificial limb.
Sometime in 1982, Carl became depressed. He had Vietnam "flashbacks," and resented wearing the artificial limb. On several occasions, Carl removed the limb, beat it on the ground, and told others that he hated it. He withdrew from his family, began drinking heavily, and marital difficulties developed with Sandra. On February 23, 1983, Carl committed suicide by carbon monoxide poisoning while sitting in his car. Carl left suicide notes to several members of his family.
Sandra's injuries were not as extensive as Carl's. A piece of shrapnel from the explosion severed an artery in her leg which caused injury and considerable pain. Sandra had surgery, and she spent almost two weeks in the hospital. She had physical therapy, and in January of 1979, Sandra walked without a limp and the pain had diminished; however, she still experienced some pain and numbness in her foot.
On February 28, 1979, a federal grand jury indicted Kimberlin for crimes including causing the explosion, for damaging property, and for injuring the DeLongs. Kimberlin was convicted on all counts. On September 4, 1980, the DeLongs filed an action against Kimberlin to recover damages for their injuries. On October 18, 1982, the DeLongs moved for partial summary judgment on the issue of liability. The DeLongs submitted certified copies of Kimberlin's indictment, verdict, and the judgment of conviction from the criminal trial, claiming that the convictions conclusively established Kimberlin's liability. (The DeLongs did not submit a transcript of the criminal trial). Kimberlin submitted affidavits to the court on November 20, 1982, and on September 22, 1983, denying under oath that he placed the explosive device that injured the DeLongs. The affidavit submitted by Kimberlin's criminal defense counsel September 22 alleged that the issues of the injuries to the DeLongs and causation thereof were not addressed at the criminal trial. On September 28, 1983, the DeLong's motion for partial summary judgment was granted and trial was scheduled to proceed on the damages claim.
On the morning of trial, Sandra moved for leave to amend the complaint to add a wrongful death count. Kimberlin moved to strike this amendment on the grounds that Carl's suicide was an intervening cause as a matter of law. The trial judge permitted Sandra to amend her complaint and add the count for wrongful death, and the court also granted Kimberlin's motion in limine as to evidence of Carl's pain and suffering. Throughout the trial, however, several witnesses testified as to Carl's pain and suffering over Kimberlin's continuing objection.
Kimberlin moved for a mistrial on the grounds that the evidence of Carl's pain and suffering was improperly admitted, and he moved for a directed verdict claiming that Carl's suicide was a superseding intervening cause. Both motions were denied and following the trial, the jury awarded
Sandra personally $360,000 for the injuries she sustained in the explosion, and to Sandra, as personal representative, $1,250,000 on the wrongful death claim.
In light of our disposition of this case, we need address only the following issues: 1
1. Did the trial court properly grant summary judgment in favor of the DeLongs on the issue of liability?
2. Was Carl's suicide a superseding intervening cause which defeated Sandra's claim for wrongful death?
ISSUE ONE--Did the trial court properly grant the DeLongs' motion for partial summary judgment?
PARTIES' CONTENTIONS--Kimberlin argues that his submission of affidavits denying that he placed the explosive device which injured the DeLongs, and an affidavit submitted by his counsel that the issues of the injuries and causation to the DeLongs were not addressed at trial, created a genuine issue of material fact, and the trial court's reliance upon Kimberlin's criminal conviction as a conclusive presumption of liability in this civil matter was erroneous. Sandra responds that the grant of partial summary judgment was proper because Kimberlin admitted being convicted of the charged criminal offense, and that conviction conclusively established civil liability.
CONCLUSION--The trial court properly entered partial summary judgment in Sandra's favor.
The trial court's order entered on October 13, 1983 provided in pertinent part that:
When the trial judge entered summary judgment for the DeLongs, he relied upon Ind.Code 34-3-18-1 which provides that:
Our supreme court recently granted transfer in Hawkins v. Auto-Owners Ins. Co. (1993), Ind., 608 N.E.2d 1358, and determined that the trial court acted properly in admitting the transcript of a defendant's attempted murder trial into evidence in a subsequent civil trial. In Hawkins, the decedent's guardian brought suit against the defendant who was previously convicted of attempted murder, claiming that the defendant negligently shot the victim. The defendant was insured by Auto-Owners, and such policy contained a clause which precluded coverage for the insured's deliberate acts. The trial court examined the transcript and determined that Auto-Owners was not responsible under the insurance policy because the action of the defendant had been adjudicated to be deliberate. While the trial court denied Auto-Owners' motion for summary judgment and concluded that a genuine issue of material fact existed as to whether Stephens' actions were intentional, the judge nonetheless entered judgment for Auto-Owners after considering the transcript of evidence from Stephens' criminal trial.
On appeal, this court reversed and determined that it was error for the trial court to have admitted the transcript and the judgment of conviction of the prior criminal proceeding into evidence at the subsequent civil trial in light of existing Indiana law. 2
Our supreme court in Hawkins recognized that "both the federal jurisdiction and our legislature have viewed the rule to cause a conflict within the judicial system and to create an intolerable situation." Id. at 1359. In affirming the trial court's entry of judgment, Justice Givan, in writing for the majority, observed that:
The majority determined that the admissibility of Stephens' transcript and criminal conviction...
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Kimberlin v. DeLong
...reversed the wrongful death judgment, holding that Carl DeLong's suicide was an intervening cause as a matter of law. Kimberlin v. DeLong (1993), Ind.App., 613 N.E.2d 46. Appellant Kimberlin's Petition to Transfer asserts in part that the Court of Appeals erred in giving his prior criminal ......
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