Rieth-Riley Const. Co., Inc. v. Auto-Owners Mut. Ins. Co.
| Decision Date | 21 August 1980 |
| Docket Number | No. 3-1179A323,RIETH-RILEY,AUTO-OWNERS,3-1179A323 |
| Citation | 408 N.E.2d 640 |
| Parties | CONSTRUCTION CO., INC., Appellant (Defendant Below), v.MUTUAL INSURANCE COMPANY, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
David R. Melton, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for appellant.
Robert J. Konopa, Thomas J. Hall, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for appellee.
Michael Troyer, while riding on his motorcycle, was struck and injured by a truck being driven by Robert Smith (Smith). The truck was owned by Robert Hunt (Hunt). In an out-of-court settlement, 1 Troyer was paid $100,000 by Auto-Owners Mutual Insurance Company (Auto-Owners) on behalf of its insured, Hunt.
Auto-Owners was substituted as named plaintiff on the third party complaint of Hunt and Smith in their action for breach of a lease agreement against Rieth-Riley Construction Company, Inc. (Rieth-Riley). Auto-Owners alleged that the terms of the lease between Hunt and Rieth-Riley were in effect at the time of the accident and, as a result, Rieth-Riley was bound to procure public liability and property damage insurance on the leased truck.
By its payment of $100,000 to Troyer in settlement of the claims against Hunt and Smith, Auto-Owners claimed it had discharged a duty which was owed to its insured by Rieth-Riley, pursuant to the lease agreement with the company. It contended, therefore, that it was entitled to recover from Rieth-Riley the $100,000 it had paid to Troyer. The trial court found for Auto-Owners and against Rieth-Riley. It entered a judgment in the amount of $114,785.93. This sum included interest and reasonable attorney fees incurred by Auto-Owners in its defense of Troyer's claim against Hunt and Smith.
On appeal, Rieth-Riley raises three issues for our consideration:
(1) Was there sufficient evidence to support the court's finding that the lease was in effect at the time of the accident?
(2) Did the court err in finding that the terms of the lease were sufficiently definite as to render Rieth-Riley liable for the breach of a contract to procure insurance?
(3) Were the damages awarded by the court excessive?
We affirm.
The facts relevant to our disposition of the case indicate that Rieth-Riley, a road construction company, leases a number of trucks from independent owners for seasonal road construction and repair work. For the 1974-1975 season, it had presented a form lease, prepared by the company, to a number of truck owners, including Hunt, on a "take-it-or-leave-it" basis. 2 Pertinent terms of this lease, signed by Hunt, are as follows:
At the time of the accident, Smith was hauling a load of sand in Hunt's truck from the L-Bob Gravel pit to the Rieth-Riley stockpiling operation. The sand was to be dumped in the yard and then used by Rieth-Riley in the preparation of paving materials for its road construction work.
No request for findings of fact or conclusions of law was made and the trial court made none. Where no findings are made, the general judgment entered by the court is presumed to be based upon findings supported by the evidence. Ray v. Goldsmith (1980), Ind.App., 400 N.E.2d 176. In order to have found for Auto-Owners, the trial court must have concluded that Hunt's truck was under Rieth-Riley's supervision at the time of the accident and that the lease was, thereby, in effect. Rieth-Riley challenges this determination on appeal and argues that there is insufficient evidence to support the trial court's judgment.
Before directing our attention to the issues at hand, we note that "supervise" was given as a synonym for "superintend" in Booth v. State (1913), 179 Ind. 405, 100 N.E. 563, 565. There, the Court defined "superintend" as "to have the charge and direction of; especially some work or movement; regulate the conduct and progress of; responsible for; manage; supervise." Supervision is "an act of supervising." Black's Law Dictionary, 1290 (5th ed. 1979).
The company argues that Hunt's truck was not under its supervision while hauling sand from L-Bob Gravel to its stockpiling operation. It admits that the leased trucks were under its supervision and the leases were, thereby, in effect when the trucks were being used for certain types of jobs. Rieth-Riley contends, however, that stockpiling sand was not one of those jobs which was covered by the lease.
In making this argument, Rieth-Riley points to a complicated payment scheme whereby Hunt was paid by Ernsberger, the owner of L-Bob Gravel, on a per ton basis for the sand hauled from his pit. Ernsberger was, in turn, paid by Rieth-Riley for the sand hauled. The company claims that Hunt's truck was not under its supervision as it did not pay Hunt for the sand. Furthermore, it argued that it did not control Hunt's truck because it did not determine the amount of sand to be hauled, the hours to be worked or the route to be taken by Hunt's truck from L-Bob Gravel to the Rieth-Riley yard.
In reaching this conclusion that there was no Rieth-Riley supervision of Hunt during the stockpiling operation, the company overlooked a good bit of evidence. The record revealed that Rieth-Riley made the arrangements, including payment, for Hunt's trucks to haul sand from L-Bob Gravel to Rieth-Riley's yard. It kept detailed records and reports of the stockpiling operations which were then sent every several weeks to Hunt and Ernsberger.
Ernsberger testified that when Hunt's trucks came in to his pit during the season, he always knew they were hauling for Rieth-Riley. Hunt explained that he never hauled for anyone other than Rieth-Riley during the season. He said:
Rieth-Riley dispatched Hunt's trucks by calling him or instructing his drivers. Once engaged in stockpiling, Rieth-Riley could and would tell Hunt's driver when to stop hauling sand and when to start working on another company project. In addition, Rieth-Riley could and would instruct his driver when to resume the stockpiling operations. Often the leased trucks were involved in stockpiling for part of the day and then were sent by the company to a particular Rieth-Riley job site for the rest of the day.
The evidence indicated that Rieth-Riley exercised yet another type of supervision over the drivers of the independent truck owners. The company would not allow a driver to haul to its yard unless he was a member of the union. Upon occasion, it had refused to use a truck because the driver was not a union member.
In essence, Rieth-Riley is asking us to sift through the multi-volume record of evidence to ascertain whether Hunt's truck was "under the supervision" of Rieth-Riley at the time of the accident. This we will not do. In making a sufficiency determination, we are not at liberty to re-weigh the evidence, but may look only to that evidence which is most favorable to the appellee and the reasonable inferences to be drawn therefrom. Endsley v. Game-Show Placements, Ltd. (1980), Ind.App., 401 N.E.2d 768.
This Court cannot reverse on the basis of conflicting evidence. Franks v. Franks (1975), 163 Ind.App. 346, 323 N.E.2d 678, 680. In order for us to reverse the judgment of the trial court, the record must disclose that there are no facts or inferences drawn therefrom which support the trial court's judgment. Shuee v. Gedert (1979), Ind.App., 395 N.E.2d 804.
In viewing the evidence before us in the prescribed fashion, we conclude that there was a sufficient amount of evidence to support the judgment of the court. We, therefore, must agree with its conclusion that Hunt's truck was "under the supervision" of Rieth-Riley at the time of the accident and that the terms of the lease were, therefore, in effect.
Rieth-Riley next argues that no valid contract to procure insurance was created by the terms of the lease as the parties had failed to agree upon the amount of insurance to be supplied.
It relies upon Bulla v. Donahue (1977), Ind.App., 366 N.E.2d 233 3 for the proposition that "an oral or written contract of insurance requires a meeting of the minds of the parties upon the following essential elements of a contract: (1) the subject of insurance; (2) the risk or peril insured against; (3) the amount of...
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