Kimberlin v. DeLong

• Decision Date: 13 June 1994
• Docket Number: No. 49S02-9406-CV-524,49S02-9406-CV-524
• Citation: 637 N.E.2d 121
• Parties: Brett Coleman KIMBERLIN, Appellant (Defendant Below), v. Sandra Sue DeLONG, Personal Representative for Carl David DeLong, Deceased, and Sandra Sue DeLong, Appellees (Plaintiffs Below).
• Court: Indiana Supreme Court

Page 121

637 N.E.2d 121

Brett Coleman KIMBERLIN, Appellant (Defendant Below), v. Sandra Sue DeLONG, Personal Representative for Carl David DeLong, Deceased, and Sandra Sue DeLong, Appellees (Plaintiffs Below).

No. 49S02-9406-CV-524.

Supreme Court of Indiana.

June 13, 1994.

Rehearing Denied Dec. 15, 1994.

David F. Hamilton, Barnes & Thornburg, Indianapolis, for appellant.

Paula Thrun Kight, Indianapolis, for appellees.

ON PETITION TO TRANSFER

DICKSON, Justice.

Following the trial court grant of plaintiffs-appellees' motion for partial summary judgment on the issue of liability, a jury trial resulted in judgments against defendant-appellant Brett Coleman Kimberlin in the sum of $360,000 for personal injuries to Sandra Sue DeLong and $1,250,000 for the wrongful death of Carl David DeLong. The Court of Appeals affirmed the partial summary judgment and the judgment for Sandra DeLong's injuries, but 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 conviction conclusive effect to establish his civil liability as a matter of law. We grant transfer.

As a general rule, when transfer is granted, the entire opinion of the Court of Appeals is vacated, except those portions expressly adopted or summarily affirmed by this Court. Ind.Appellate Rule 11(B)(3). ¹ Upon the grant of transfer, the appeal is fully before this Court, and we therefore face all of the issues originally raised before the Court of Appeals. In his appeal from the trial court judgment, Kimberlin has claimed various errors related to the following issues:

1. the partial summary judgment finding civil liability conclusively established by proof of a criminal felony final judgment pursuant to Ind.Code § 34-3-18-1;

2. the refusal to consider suicide as an intervening cause as a matter of law to preclude the wrongful death action;

3. the granting of the plaintiff's motion to amend her complaint just prior to the commencement of trial to add a claim for wrongful death, and the refusal to grant the defendant a continuance;

4. the admission of evidence of the decedent's pain and suffering; and

5. the extent of the damages.

This lawsuit arises from an explosion on September 6, 1978. ² Sandra and Carl DeLong were injured while walking through the Speedway High School, Speedway, Indiana, parking lot after leaving a football game when a bomb concealed in an abandoned gym bag exploded. The DeLongs sought damages for their resulting injuries in a civil damage action alleging that Kimberlin manufactured, placed, or caused to be placed a homemade explosive device with the intent to cause severe bodily injury. Record at 12, 741. In 1981, Kimberlin was convicted, after jury trial in the United States District Court for the Southern District of Indiana, of, inter alia, maliciously damaging and destroying, by means of an explosive, real and personal property and causing personal injury to the DeLongs in the incident. The DeLongs thereafter moved for partial summary judgment on the issue of Kimberlin's liability, submitting certified copies of Kimberlin's indictment, verdict, and judgment of conviction from the criminal trial. Kimberlin responded by submitting sworn affidavits denying that he placed the explosive device which injured the DeLongs. Carl DeLong committed suicide on February 23, 1983. The trial court thereafter granted the partial summary judgment motion. On the morning of the damages-only trial, October 18, 1983, the trial court granted Sandra DeLong's motion to amend the complaint against Kimberlin, converting the cause of action for Carl DeLong's injuries to an action for his wrongful death and denied Kimberlin's motion for a continuance.

1. Use of Criminal Conviction to Establish Civil Liability

(a). Conclusiveness

Kimberlin contends that the trial court erroneously granted the DeLongs' motion for partial summary judgment by misconstruing Ind.Code § 34-3-18-1 to provide that evidence of a prior criminal felony final judgment creates a conclusive and irrebuttable presumption of liability in a civil proceeding. In relevant part, the statute provides:

Evidence of a final judgment, entered after a trial or upon a plea of guilty, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, shall be admissible in any civil action to prove any fact essential to sustaining the judgment, and is not excluded from admission as hearsay regardless of whether the declarant is available as a witness.

Ind.Code § 34-3-18-1.

Kimberlin urges that the plain language of this statute merely provides that evidence of a criminal felony final judgment should be admissible in a civil action to prove any fact essential to sustaining the judgment, but that such evidence is not, per se, conclusive proof of any such fact. Plaintiff-appellee DeLong argues that the phrase "to prove" in the statute should be interpreted to mean unambiguously that admission of evidence of a criminal judgment renders such evidence as conclusive proof of a fact essential to sustaining the civil judgment.

In Hawkins v. Auto-Owners Ins. Co. (1993), Ind., 608 N.E.2d 1358, this Court unanimously ruled that, notwithstanding prior case law, we will apply the rule expressed in Ind.Code § 34-3-18-1 "which allows the admission of a criminal judgment as evidence in a civil case." Id. at 1359. This view comports with the majority of jurisdictions in the United States and Fed.R.Evid. 803(22), subsequently adopted as Ind.Evid. R. 803(22). Id. We reaffirm this principal premise of Hawkins permitting the admissibility of evidence of a felony conviction in a civil trial.

However, the majority opinion in Hawkins, by implication and without express discussion, also affirmed the civil trial court's use of the criminal trial transcript (not just the final judgment) and entry of final judgment without further evidence at trial. Upon these issues, this Court was not unanimous. Upon further consideration, we today retreat from our implied holdings in Hawkins regarding the conclusiveness of the judgment and the admissibility of the criminal trial transcript. Thus, while a criminal felony judgment may be admitted in evidence, such conviction is not necessarily conclusive proof in the civil trial of the factual issues determined by the criminal judgment, and the evidence transcript is not necessarily admissible.

(b). Retroactivity

Kimberlin separately contends that it was error to retroactively apply Indiana Code § 34-3-18-1 to authorize consideration of his federal criminal conviction. He argues that the 1982 statute should not apply to the use of a 1981 federal criminal conviction in the trial of lawsuit filed in 1980 based upon a 1978 incident. DeLong responds that the plaintiffs' motion for partial summary judgment was filed after the effective date of the statute which she contends is procedural rather than substantive and thus retroactive to all actions pending at the time of the statute's effective date.

Conceding that new procedural rules and rules of evidence can generally be applied retroactively to pending cases, Appellant's Brief in Support of Petition to Transfer at page 9, Kimberlin argues that such retroactive application is improper when in the nature of a conclusive presumption, citing Collwell v. Bedford Stone & Constr. Co. (1920), 73 Ind.App. 344, 349, 126 N.E. 439, 441. Because we have narrowed the holding in Hawkins to eliminate the use of Ind.Code § 34-3-18-1 to create an automatic presumption, Kimberlin's objection to retroactivity is not compelling. It was not error for the trial court to apply the statute to the pending case to permit admission of the prior criminal conviction. It was a matter of procedural rather than substantive law. ³

(c). Collateral Estoppel

In granting partial summary judgment on the issue of liability, the trial court considered not only the Order of Judgment and Conviction from the federal criminal proceeding but also Kimberlin's affidavits in opposition to the motion. Noting the felony conviction, the trial court concluded that "there exists no genuine issue of material fact on the issue of liability of the defendant, Brett C. Kimberlin, for the injuries to the plaintiff's Carl David DeLong and Sandra Sue DeLong." Record at 720. On appellate review a trial court's judgment may be affirmed even if sustainable on grounds different from those reflected in the trial court's findings. Douglass v. Irvin (1990), Ind., 549 N.E.2d 368, 371; Havert v. Caldwell (1983), Ind., 452 N.E.2d 154, 157. Although the fact of criminal felony conviction is not necessarily conclusive, as noted in issue 1(a), supra, it may potentially provide a basis for the offensive use of collateral estoppel. It is upon this basis that we affirm the partial summary judgment.

Collateral estoppel may bar the subsequent re-litigation of the same fact or issue which was necessarily adjudicated in a prior lawsuit. Sullivan v. American Casualty Co. (1992), Ind. 605 N.E.2d 134, 137. Collateral estoppel is termed "offensive" when, as in the present case, the "plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party." Parklane Hosiery v. Shore (1979), 439 U.S. 322, 326 n. 4, 99 S.Ct. 645, 649 n. 4, 58 L.Ed.2d 552, 559 n. 4. Determining the appropriateness of offensive collateral estoppel involves two considerations: 1) whether the party in the prior action had a full and fair opportunity to litigate the issue and 2) whether it is otherwise unfair to apply collateral estoppel given the facts of the particular case. Tofany v. NBS Imaging Sys., Inc. (1993), Ind., 616 N.E.2d 1034, 1038.

Kimberlin's criminal trial in federal district court...