Marshall v. Erie Ins. Exchange

• Decision Date: 10 March 2010
• Docket Number: No. 20A03-0908-CV-366.,20A03-0908-CV-366.
• Citation: Marshall v. Erie Ins. Exch., 923 N.E.2d 18 (Ind. App. 2010)
• Parties: J. John MARSHALL and Marjorie Marshall, Appellants, v. ERIE INSURANCE EXCHANGE a/s/o Cindy Cain, Appellee.
• Court: Indiana Appellate Court

923 N.E.2d 18

J. John MARSHALL and Marjorie Marshall, Appellants, v. ERIE INSURANCE EXCHANGE a/s/o Cindy Cain, Appellee.

No. 20A03-0908-CV-366.

Court of Appeals of Indiana.

March 10, 2010.

COPYRIGHT MATERIAL OMITTED

Donald E. Wertheimer, South Bend, IN, Attorney for Appellants.

Gregory J. Haines, Rowe & Rowe, South Bend, IN, Attorney for Appellees.

OPINION

ROBB, Judge.

Case Summary and Issue

John and Marjorie¹ Marshall appeal the trial court's denial of their motion to correct error following its judgment in favor of Erie Insurance Exchange ("Erie") on Erie's claims for damages resulting from the Marshalls' negligent maintenance of a tree located on their property, which fell and damaged the home of Cindy Cain. For our review, the Marshalls raise five issues, which we consolidate and restate as whether the trial court abused its discretion when it denied their motion to correct error. Concluding the trial court did not abuse its discretion, we affirm.

Facts and Procedural History

John and Marjorie owned many properties, some individually and some jointly. In addition, John and Marjorie are partners in a business known as Multivest Properties, which manages rental properties.² John routinely made management decisions regarding properties owned by Marjorie especially after Marjorie became seriously ill early in 2006. For example, when contacted by the City of Elkhart regarding the need to clean up debris on a particular property, John would often take care of the issue without checking to see whether it was he or Marjorie who actually owned the lot. John admitted he could not tell whether he or Marjorie or both of them owned a particular property without checking the property records.

Marjorie owned a vacant lot located next to Cain's home in Elkhart. A tree stood near the boundary of the two lots on Marjorie's property. From the time she purchased the home Cain had concerns about the health of the tree and the danger it posed to her home. Cain telephoned Elkhart code enforcement officer Mayfield Timmons regarding her concerns about the tree. Timmons determined the tree was likely located on Marjorie's property and contacted Marjorie's property manager to inform him the tree needed to be taken down. Timmons also spoke directly with John. John told Timmons he would have someone look at the tree and would get back to Timmons. Cain also informed a man who claimed to be the Marshalls' maintenance worker and a woman who claimed her husband was the Marshalls' new maintenance worker about her concerns regarding the tree. The man Cain spoke to agreed the tree should be taken down and told her he would speak with John about it.

Jake Denlinger, a professional arborist, testified John asked him to look at the tree on Marjorie's vacant lot. Denlinger inspected the tree visually but did not take any samples of the tree's core. Denlinger testified he did not see enough evidence of decay in the tree to warrant removing the tree. After his initial testimony in the case, Denlinger returned to the vacant lot to look at the tree stump so he could determine what type of tree had fallen on Cain's house. Denlinger testified again later in the trial, stating the tree was a Basswood tree. Denlinger further testified it is difficult to judge the health of a Basswood tree without internal sampling because the trees do not show many exterior signs of decay. John did not contact Timmons after having Denlinger look at the tree.

On December 31, 2006, the tree fell onto Cain's house knocking over the chimney and causing damage to the roof and structure of the house. Cain filed an insurance claim with Erie, which held her homeowner's insurance policy. Erie reimbursed Cain for the necessary repairs to her home minus Cain's deductible. Thereafter, Erie, acting as a subrogee for Cain, brought suit against the Marshalls for damages stemming from the Marshalls' negligent maintenance of the tree.³ Erie served notice upon Marjorie by first class mail addressed to the post office box number listed on the tax records for the vacant lot. John's counsel entered his appearance on behalf of Marjorie and filed Marjorie's answer to Erie's amended complaint.

The trial court conducted a bench trial on November 12, 2008, and January 7, 2009, after which it allowed the parties to file written closing arguments and took the matter under advisement. On February 2, 2009, Marjorie passed away. On March 11, 2009, the trial court entered its judgment in favor of Erie. The Marshalls filed a motion to correct error on April 13, 2009, arguing inter alia: the trial court erred by failing to address the issue of insufficient service of process upon Marjorie; the trial court erred in finding the Marshalls owed a duty of care to Cain; the trial court erred in finding the Marshalls breached a duty of reasonable care; and the trial court erred by assigning liability to John. The trial court held a hearing on the motion to correct error on May 21, 2009,⁴ and subsequently denied the motion on May 26, 2009. The Marshalls now appeal.

Discussion and Decision

I. Standard of Review

We review a trial court's denial of a motion to correct error for an abuse of discretion. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind.Ct.App. 2004). "An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or when the trial court has misinterpreted the law." Pfaffenberger v. Jackson County Reg'l Sewer Dist., 785 N.E.2d 1180, 1183 (Ind. Ct.App.2003).

The Marshalls raised several issues in their motion to correct error, which they also present in this appeal. We address the relevant issues in turn below.

II. Issues in the Marshalls' Motion to Correct Error

A. Sufficiency of Service of Process Upon Marjorie

The Marshalls argue Erie never achieved effective service of its complaint upon Marjorie, and therefore, the trial court lacked personal jurisdiction over her. Indiana Trial Rule 4 provides the trial court with jurisdiction over a party or person who "is served with summons or enters an appearance." Trial Rule 4.1 allows service upon an individual to be accomplished by "sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to the individual's residence, place of business , or place of employment with return receipt requested and returned showing receipt of the letter."

Service of process was made to Marjorie at the post office box address listed on the tax records for the vacant lot. John testified the post office box was the mailing address for Multivest Properties, the couple's rental business. Therefore, Erie properly mailed the summons and complaint to Marjorie's place of business. However, the Marshalls argue Marjorie never personally received service of process and John was not authorized to receive service as her agent. Under Indiana law, service by mail is effective even if someone other than the intended recipient ultimately signs the return receipt. See Precision Erecting, Inc. v. Wokurka, 638 N.E.2d 472, 474 (Ind.Ct.App.1994). The return receipt indicating the service of process was received at the proper post office box number was signed by an unidentified party.

In addition, Marjorie's attorney entered an appearance on her behalf and filed an answer. Although Marjorie's counsel raised the issue of improper service in her answer and mentioned it to the trial court prior to the beginning of the trial, counsel did not file a motion to dismiss for lack of personal jurisdiction or argue the issue to the trial court. Thereafter, counsel participated fully in the trial, although Marjorie was unable to personally attend due to her failing health. Therefore, Erie achieved effective service of process upon Marjorie, and the trial court obtained personal jurisdiction over Marjorie thereby. As a result, the trial court did not abuse its discretion when it denied the Marshalls' motion to correct error.

B. Existence of a Duty

To recover in negligence, a plaintiff must establish:

(1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure on the part of the defendant to conform his conduct to the requisite standard of care; and (3) an injury to the plaintiff proximately caused by the breach.

Patterson v. Seavoy, 822 N.E.2d 206, 211 (Ind.Ct.App.2005).

Absent a duty, there can be no breach and, therefore, no recovery in negligence. Id. In general, the existence of a duty is a question of law for the court to decide. Id. at 212. Surprisingly, this case presents an issue of first impression regarding whether an urban or residential landowner owes a duty to protect neighbors from damage caused by a tree which falls from the landowner's property. In Valinet v. Eskew, our supreme court adopted the Restatement (Second) of Torts section 363 (the "Restatement rule"), which states:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

574 N.E.2d 283, 285 (Ind.1991).

At first glance, then, it would seem the Restatement rule forecloses the issue of whether the Marshalls owed a duty to protect Cain from the fallen tree.⁵ However, to so hold would leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure an obviously decayed and dangerous tree simply because it was a natural condition...