Rollins Burdick Hunter of Utah, Inc. v. Board of Trustees of Ball State University, 18A02-9409-CV-569
| Decision Date | 20 May 1996 |
| Docket Number | No. 18A02-9409-CV-569,18A02-9409-CV-569 |
| Court | Indiana Appellate Court |
| Parties | 110 Ed. Law Rep. 373 ROLLINS BURDICK HUNTER OF UTAH, INC., Appellant-Defendant, v. The BOARD OF TRUSTEES OF BALL STATE UNIVERSITY, Appellee-Plaintiff. |
Rollins Burdick Hunter of Utah, Inc. (RBH), appeals from a jury verdict in favor of The Board of Ball State University (Ball State) in Ball State's action against RBH for breach of contract regarding the procurement of insurance. RBH presents the following restated issues for review:
I. Did the trial court have personal jurisdiction over RBH?
II. Did the trial court err in ordering the exclusion of evidence that Ball State received reimbursement for its losses from a collateral source?
III. Did the trial court err in denying RBH's motion to join two additional parties?
IV. Did the trial court err in permitting Ball State to amend its complaint on the first day of trial for the purpose of adding a claim?
V. Was the jury's verdict supported by sufficient evidence?
VI. Did the trial court err in awarding prejudgment interest to Ball State?
We affirm.
The facts favorable to the judgment are that in March of 1990, Ball State began negotiating with the Aebli Group, Inc., a Florida corporation doing business as a sports promoter, about the possibility of playing a football game with Ohio University in Killarney, Ireland at the end of the 1990 regular season. James Aebli (Aebli) was a principal promoter who served as the Aebli Group's primary contact with Ball State. Stanley Wadman, Ball State's Director of Finance and Assistant Treasurer, informed Aebli that Ball State would not enter into a contract with the Aebli Group unless there was an insurance contract in the nature of a performance bond insuring Ball State in the event that the game was not played.
Aebli informed Ball State that he would contact RBH to discuss procuring the insurance coverage that Ball State required. In July, 1990, Ball State was being pressured by Aebli to execute the contract, but Ball State had not yet been provided with the requisite proof of insurance. At Aebli's suggestion, Wadman telephoned RBH and informed Jess Hurtado, an RBH official, of Ball State's insurance needs as follows:
I first called Mr. Hurtado and introduced myself and identified myself. We talked briefly about the fact there was this activity taking place in Ireland and it was my understanding that he would be providing the insurance that Ball State needed. I told him about the difficulty I was having with getting the insurance from Mr. Aebli and that Mr. Aebli had suggested I talk directly to him because there was an urgency on the part of Mr. Aebli in getting the contract signed. I explained to him that we had not done business with Mr. Aebli in the past and therefore we wanted to make sure, that since there was a lot of dollars to be involved from Ball State, and it, since we had a common practice of getting certain types of coverage for certain types of events, that I was looking for certain types of insurance.
Record at 1148-49. Hurtado confirmed that RBH would procure the insurance required by Ball State. On July 20, RBH sent to Ball State a telefax which included the following:
[TO: Ball State] FROM: M. Jess Hurtado, Asst. Vice Pres
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City City Salt Lake City, Utah
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Subj. Sports Marketing Group Date July 20, 1990
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This will confirm Liability coverage for the above for the Ireland football game between Ball State and Ohio University. Coverage to include:
General Liability 1,000,000
aggregate including
Products/Completed Ops. 500,000
Personal Injury 500,000
Property Damage 500,000
Non Appearance/Non performance: This coverage will be written, however, the underwriter cannot complete his underwriting today.
Based on this, please release the contract to Jim Aegli [sic].
Record at 1157. RBH had contacted Lloyd's of London, which tentatively agreed to issue the insurance policy. Believing that RBH had procured or would soon procure the insurance coverage Ball State had requested, Wadman executed the contract with Aebli on behalf of Ball State.
From late July until late October or early November, Aebli engaged in activities associated with promoting the football game and the associated tour of Ireland and by late October, Aebli had collected approximately $160,000 from various individuals and entities. In late October, however, Aebli demanded additional fees and threatened to cancel the game if the additional money was not paid. Both universities refused Aebli's demand. Wadman informed RBH of the possibility that Ball State would make a claim against the coverage for non-performance by Aebli. Realizing that Ball State did not have a copy of the policy, Wadman called RBH and requested one.
On November 1, 1990, Ball State declared Aebli to be in breach of the contract and refused to participate in the game. On that same day, RBH telefaxed to Ball State a copy of an insurance policy issued by Lloyd's of London, providing $199,000 non-performance/non-appearance coverage to the Aebli Group. Ball State contacted Hurtado and RBH about Ball State's policy and made a demand on the insurance policy issued by Lloyd's of London. Only then did Ball State discover that RBH had failed to procure the non-appearance/non-performance coverage which Ball State had requested, and therefore Ball State was not insured against non-performance by the Aebli Group.
Ball State filed a complaint against RBH alleging negligence, estoppel, and breach of contract. The matter proceeded to trial, which commenced on April 26, 1994. The jury found in favor of Ball State and judgment was entered against RBH in the amount of $188,094.68, including prejudgment interest. 1
RBH contends that the trial court erred in denying its motion to dismiss based upon lack of personal jurisdiction. In considering a challenge to personal jurisdiction where the contacts themselves serve as the basis for jurisdiction, we review the nature and quality of the contacts, the relationship between the contacts and the cause of action, convenience, and Indiana's interest in providing a forum for its residents. Fetner v. Maury Boyd & Assoc., Inc., 563 N.E.2d 1334 (Ind.Ct.App.1990), trans. denied.
When a party seeks affirmative relief from a court before interposing a timely objection to the court's jurisdiction over his person, he has voluntarily submitted himself to the court's jurisdiction and is estopped from challenging the lack of personal jurisdiction. Schneider v. Schneider, 555 N.E.2d 196 (Ind.Ct.App.1990). The filing of a motion for change of judge constitutes seeking affirmative relief from the court. Id. In the instant case, RBH filed a motion for change of judge on September 21, 1992. RBH's first challenge to the court's in personam jurisdiction was not raised until the answer was filed, which occurred more than three weeks later. By requesting affirmative relief from the court before challenging the court's jurisdiction, RBH is estopped from raising the defense. Id.
During opening statement to the jury, Ball State's counsel made the following assertion:
Ball State expended about a hundred and four thousand dollars ($104,000.00) in its reimbursement of its tour subscribers, and you will hear evidence concerning why they did that. Ball State itself had spent about fifty-six thousand dollars ($56,000.00) in money it sent to Jim Aebli that it never got a dime back of.
Record at 754-55. During RBH's cross-examination of John Worthen, Ball State's vice president, RBH attempted to introduce evidence that the two payments referred to above were made by allegedly independent entities, the Ball State Alumni Association and the University Foundation. Ball State objected to the line of questioning and the trial court sustained the objection upon its determination that the source of the funds was not relevant. RBH contends that the court erred in so ruling.
Only the real party in interest may bring suit to recover damages allegedly resulting from breach of contract. See Cook v. City of Evansville, 178 Ind.App. 20, 381 N.E.2d 493 (Ind.Ct.App.1978). RBH contends that the evidence was relevant to show that Ball State did not make payments and therefore, to the extent the reimbursements were recoverable as damages, Ball State was not a real party in interest and was not entitled to damages.
Ball State disputes the contention that the Foundation and the Alumni Association can be characterized as separate entities in this context. Vice President Worthen testified that the Alumni Association was "a part of" Ball State University, Record at 1062, and the Alumni Association was accountable to the University. Indeed, it appears that the Alumni Association's activities in the instant case were carried out largely at the direction of the University, including reimbursement of funds. Therefore, the reimbursements may have been paid by the Alumni Association, but ultimately University funds were utilized. In any event, the court's decision was correct under the collateral source rule.
According to the collateral source rule, evidence of a collateral source is irrelevant and prejudices the jury on the questions of damages and liability and cannot be used to mitigate damages. See Nahmias Realty, Inc. v. Cohen, 484 N.E.2d 617 (Ind.Ct.App.1985), trans. denied; Aldridge v. Abram...
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