Richardson v. Calderon

• Decision Date: 30 June 1999
• Docket Number: No. 50A03-9811-CV-469.,50A03-9811-CV-469.
• Parties: Jennifer M. RICHARDSON and Plymouth Community Schools, Appellants-Defendants, v. Elisa CALDERON, Appellee-Plaintiff.
• Court: Indiana Appellate Court

713 N.E.2d 856

Jennifer M. RICHARDSON and Plymouth Community Schools, Appellants-Defendants, v. Elisa CALDERON, Appellee-Plaintiff.

No. 50A03-9811-CV-469.

Court of Appeals of Indiana.

June 30, 1999.

Rehearing Denied August 17, 1999.

Steven D. Groth, Peter J. Agostino, Philip E. Kalamaros, Peter J. Bagiackas, Edward N. Kalamaros & Associates, Professional Corporation, South Bend, Indiana, Attorneys for Appellants.

Paul B. Kusbach, Paul Kusbach Attorneys, South Bend, Indiana, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge

Jennifer M. Richardson and Plymouth Community Schools bring an interlocutory appeal claiming that the trial court erred in denying their motions for summary judgment in this negligence case filed by Elisa Calderon which arose as a result of an automobile accident that occurred on May 30, 1996. The following restated issues are presented in this appeal:

1. Did the trial court err in denying Richardson's motion to strike portions of the affidavit of William H. Youngs, Ph. D.?

2. Did the trial court err in denying Richardson's motion to strike certain newspaper articles relating to the accident involving Calderon, her injuries, and her recovery?

3. Did the trial court err in denying the motions for summary judgment on the basis that there are genuine issues of material fact that preclude the granting of such motions?

4. Should summary judgment have been entered in favor of Richardson upon her claim that Calderon failed to return the consideration she received from Richardson's insurer in exchange for the release?

We affirm. On May 30, 1996, Calderon was a passenger in the bed of a pickup truck being driven by Richardson. Richardson and Calderon, who had just graduated from Plymouth High School, were taking part in a senior class parade through downtown Plymouth when Richardson made a sharp turn at an intersection, causing Calderon to fall from the truck and hit her head on the pavement. Calderon sustained serious head and brain injuries. During the course of a two-week stay at Memorial Hospital in South Bend, Calderon was diagnosed with a closed head injury and a traumatic brain injury and was prescribed an anti-seizure medication, which she continued to take throughout 1996. According to Calderon, she experienced a number of side effects while taking the anti-seizure medication, including "drowsiness, increased difficulty in concentration, shortened attention span, and [a] general feeling of being medicated." Record at 164.

Upon her discharge from Memorial Hospital on June 14, 1996, Calderon was admitted to Memorial Hospital's traumatic brain injury outpatient rehabilitation program. While in the outpatient rehabilitation program, Calderon came under the care of William H. Youngs, Ph.D., a licensed psychologist and clinical neuropsychologist who practices at Memorial Hospital's Independent Living Center. Dr. Youngs treated Calderon throughout the month of June 1996, and his last clinical contact with her was in July 1996. Against medical advice, Calderon discharged herself from the outpatient rehabilitation program in mid-August 1996.

In an affidavit designated by Calderon in support of her claim that summary judgment would be inappropriate because material issues of fact exist, Dr. Youngs stated that "[t]here were clear indications from Elisa Calderon's behavior during the clinical contacts, as well as the neuropsychological evaluation that there were difficulties in frontal lobe system executive functioning regarding planning, organization, self-monitoring, and judgment." Record at 170.

Calderon attended Bethel College in the fall of 1996. Although Calderon stated in her affidavit that she struggled while at Bethel College, she took six classes and earned a cumulative grade point average of 3.199 during the fall semester. In one class, English 101: Written Communication II, Calderon received the grade of B+.

Cincinnati Insurance insured the vehicle that Richardson was driving at the time of the May 30, 1996 accident. On December 16, 1996, Jeffrey Guy, a claims adjuster for Cincinnati Insurance, contacted Calderon by telephone to discuss a possible settlement of her claim against Richardson. During the telephone conversation, Guy and Calderon discussed Calderon's concerns over her unpaid medical bills. Calderon told Guy that she wanted the bills to be paid. A meeting was set for December 18, 1996, and Guy asked Calderon to bring her medical bills to the meeting so that he could verify the extent of her injuries.

The meeting took place on December 18 at an insurance company office. Calderon, a Hispanic woman for whom English was her second language, was accompanied at the meeting by her mother, who did not speak English. After reviewing Calderon's medical bills, Guy filled in details on a form entitled, "RELEASE OF ALL CLAIMS". Record at 286. Guy presented the release to Calderon and offered, if she signed the release, to issue her a check for $32,263.69, which was approximately $1,000.00 more than the total of Calderon's medical bills. The release stated:

KNOW ALL MEN BY THESE PRESENTS:

That the Undersigned, being of lawful age, for the sole consideration of Thirty Two Thousand Two Hundred Sixty Three and 69/100 Dollars ($32,263.69) to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does hereby and for my/our/its heirs, executors, administrators, successors and assigns release, acquit and forever discharge John Glaub and Mary Pat Glaub and Jenny Richardson and The Cincinnati Insurance Co. and his, her, their, or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 30th day of May, 1996, at or near Berkley & Columbus Streets in Plymouth, Indiana in Marshall County Indiana.

It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy peace.

The undersigned hereby declare(s) and represent(s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned rely(ies) wholly upon the undersigned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.

The undersigned further declare(s) and represent(s) that there may be unknown or unanticipated injuries resulting from the above stated accident, casualty or event and in making this Release it is understood and agreed that this Release is intended to include such injuries.

The undersigned further declare(s) and represent(s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital.

This Release expressly reserves all rights of the person, or persons, on whose behalf the payment is made and the rights of all persons in privity or connected with them, and reserves to them their right to pursue their legal remedies, if any, including but not limited to claims for contribution, property damage and personal injury against the undersigned or those in privity or connected with the undersigned.

THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT.

Record at 286. The release was signed by Calderon, but not dated. It was also notarized by Shawna Thomas. However, the notation by Thomas on the bottom of the release states that Calderon appeared before her and executed the release on January 18, 1996, not December 18, 1996.

Calderon filed her complaint against Richardson, the City of Plymouth,¹ and Plymouth Community Schools on June 10, 1997. In her answer, Richardson asserted, among other things, the release as an affirmative defense. Likewise, Plymouth Community Schools asserted as an affirmative defense that Calderon had received compensation from collateral sources and was not entitled to recover a second time.

Richardson and Plymouth Community Schools thereafter filed motions for summary judgment pursuant to Ind. Trial Rule 56. In support of her motion for summary judgment, Richardson designated her memorandum in support of summary judgment as well as the complaint, Richardson's answer to the complaint, and the affidavits of Guy and Thomas. Richardson later supplemented her T.R. 56(C) designation to include an affidavit of Sharon M. Snyder, the Registrar for Bethel College, and a copy of Calderon's official transcript from Bethel College. In support of its motion for summary judgment, Plymouth Community Schools designated the release signed by Calderon on December 18, 1996. In response to the motions for summary judgment, Calderon argued that

There is a genuine issue of material fact as to whether Elisa Calderon was competent on December 18, 1996, to sign the "release" submitted as Defendant's Exhibit A and Plaintiff's Exhibit "C", and thus whether she made a knowing and willful release of her claim against the...