Michael v. Indiana Ins. Co.

• Decision Date: 31 October 1984
• Docket Number: No. 1-1283A386,1-1283A386
• Parties: Bonnie MICHAEL, Defendant-Appellant, v. INDIANA INSURANCE COMPANY, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1222

469 N.E.2d 1222

Bonnie MICHAEL, Defendant-Appellant, v. INDIANA INSURANCE COMPANY, Plaintiff-Appellee.

No. 1-1283A386.

Court of Appeals of Indiana,

First District.

Oct. 31, 1984.

Dean E. Richards, Richards Caress Vargo Light & Brown, Indianapolis, for defendant-appellant.

Loren J. Comstock, Indianapolis, for Alamander Rudell Adams.

James R. Earnshaw, Crawfordsville, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Bonnie Michael appeals from the entry of a declaratory judgment finding Indiana Insurance Company not liable under an insurance policy issued to the City of Crawfordsville.

We affirm.

FACTS

The facts most favorable to the trial court's judgment show that on February 5, 1978 Bonnie Michael sustained serious injuries when her vehicle collided head-on with a truck owned by the City of Crawfordsville and being driven by Alamander Rudell Adams. Shortly after the collision, a criminal action was filed against Adams charging him with criminal recklessness. The criminal action went to trial prior to this civil action and members of Bonnie Michael's family testified during that proceeding. This testimony tended to prove Adams, who had been romantically involved with Mrs. Michael, intentionally drove his vehicle into hers because of differences which arose in their relationship. Indiana Insurance admitted this prior testimony into evidence at the declaratory judgment trial because by showing Adams acted intentionally it could avoid liability pursuant to the insurance policy issued to the City of Crawfordsville, the truck's owner.

Bonnie Michael and Adams had dated for quite some time. It is uncontroverted that the two argued often. Pam Dale, Bonnie's sister, testified at the criminal trial that Adams had threatened to kill Bonnie in the past and heard the same threat on February 4, 1978, the day before the collision. Pam also stated Adams had beaten Bonnie in the past. Record at 728. Paul Michael, Bonnie's son, substantially corroborated this testimony and stated he had talked with Adams on the day of the collision and Adams reiterated his threat to kill Bonnie. Record at 557, 728. Both Pam and Paul stated Adams had been drinking when he spoke with them. Record at 728.

Pam was also an eyewitness and during the criminal trial testified to the facts surrounding the incident. She was in a car travelling southbound on highway 47 toward Crawfordsville when she saw Adams, driving the city truck, approaching in the northbound lane. Bonnie was travelling in the same direction as Pam but some distance behind her. After passing by Pam, Adams continued toward Bonnie and swerved into the southbound lane. Bonnie attempted to avoid the collision by veering into the northbound lane but Adams also veered his vehicle and the two met near the middle of the highway in a head-on crash.

At the time of the crash, the roads were wet but neither ice nor snow was present. Adams gave a statement to the police, after the accident, and conceded the road conditions were clear and that he had no After hearing testimony during the declaratory judgment action and considering the transcribed testimony of witnesses from the criminal trial, the judge entered findings of fact and conclusions of law absolving Indiana Insurance of liability. The trial court found that the policy did not apply where a driver acts intentionally. It further found Adams intentionally collided with Bonnie Michael. Other relevant facts will be supplied as needed.

trouble seeing any other cars. Record at 610. Furthermore, in a letter dated March 2, 1978 Bonnie and her attorney stated that her injuries were proximately caused by the intentional acts of Adams. Record at 368.

ISSUES

Restated, the issues are as follows:

1. Was there sufficient evidence to support the trial court's judgment that the collision between Alamander Rudell Adams and Bonnie Michael was expected or intended?

2. Did the trial court err in finding Alamander Rudell Adams was not a permittee under the provisions of the insurance policy, thereby, relieving Indiana Insurance of liability?

DISCUSSION AND DECISION

Issue One

Our standard of review when an appellant raises the question of whether there was sufficient evidence to support the trial court's judgment is clear. "[T]his court does not reweigh the evidence nor rejudge the credibility of the witnesses. The determination of the trial court will be affirmed unless the evidence viewed in the light most favorable to the trial court leads uncontrovertibly to a conclusion opposite the one reached." Kokomo Veterans Inc., VFW v. Schick, (1982) Ind.App., 439 N.E.2d 639, 643, trans. denied (1983). We have already set out the evidence most favorable to the judgment and believe it is more than sufficient to support the trial court's finding that the collision was intended or expected. Therefore, pursuant to the express terms of the insurance policy, Indiana Insurance is not obligated to pay any amount for the injuries sustained by Bonnie Michael.

The appellant argues, however, that no testimony during the trial of the declaratory judgment action supports the trial court's decision. This contention is based on the fact that the same witnesses who testified during the criminal trial testified during the trial of the action now being appealed and either stated they did not remember their previous testimony or contradicted it. Obviously, the trial judge chose to believe the witnesses' transcribed testimony, from the criminal trial, and ignored or disbelieved the testimony during the instant trial. Bonnie Michael now asks that we reweigh this conflicting testimony and substitute our judgment for that of the trial judge regarding the credibility of these witnesses. Our...