Scott v. Krueger

Decision Date28 March 1972
Docket NumberNo. 471A59,471A59
Citation151 Ind.App. 479,280 N.E.2d 336
PartiesGarnal SCOTT, Defendant-Appellant, v. Donald KRUEGER, Plaintiff-Appellee, Ruben Rodriguez, Defendant-Appellee.
CourtIndiana Appellate Court

Joseph T. Bumbleburg, John K. McBride, Lafayette, Geoffrey, Segar, Indianapolis, for appellant.

John F. Townsend, Jr., Indianapolis, Townsend, Hovde & Townsend, Indianapolis, of counsel, for appellee.

LOWDERMILK, Judge.

This appeal comes to us as the result of a suit by Donald Krueger against Garnal Scott and Ruben Rodriguez, co-defendants, for personal injuries sustained by the plaintiff, Krueger, and for which the jury returned its verdict in his favor in the amount of $80,000 against the defendants, jointly and severally.

Defendant-appellant Scott has not troubled himself to set out in his brief an adequate statement of facts of the case, except that he does state therein that the plaintiff-appellee recovered a judgment in the amount of $80,000; following the return of the jury's verdict defendant-appellant Scott learned for the first time that plaintiff-appellee and Scott's co-defendant, appellee, Ruben Robriguez, had made an agreement between themselves for the disposition of the lawfuit between them for a consideration of $9,000. This agreement was made between Krueger and Rodriguez on July 2, 1970, after the cause had been submitted to the jury and while the jury was deliberating the case. The agreement between Krueger and defendant-appellee Rodriguez was for the disposition of Krueger's claim against Rodriguez and was subsequently reduced to writing and designated a 'Covenant Not to Execute.'

Appellee Krueger, in his brief, admits appellant Scott's Statement of the Issues Presented for Review are substantially correct.

Defendant-appellant Scott did not set out a Statement of the Facts; however, plaintiff-appellee Krueger has done so in his brief. Krueger contends therein that appellant Scott's Statement of the Facts is incomplete, misleading, argumentative and contains statements at variance with the evidence, especially concerning the Covenant Not to Execute.

He further says, that Scott's statement that 'an agreement has been made between Donald Krueger and Ruben Rodriguez for disposition of the lawsuit between them for a consideration of $9,000' which agreement was made at a time 'when the jury was deliberating with respect to the rendering of their verdict in this cause' is a wholly inaccurate and incomplete description of the transactions which occurred between Krueger and Rodriguez.

In defendant-appellant Scott's reply brief he charges that appellee Krueger's statement of the case and statement of the facts set forth many facts irrelevant to the issues presented on appeal and are filled with conclusions with respect to the record, rather than the record itself. However, he contents himself to say 'Since they are irrelevant defendant Garnal Scott will not deal further with such statements.'

This court disagrees with appellant Scott in his stating that the statement of facts is irrelevant to an appeal, as the Supreme Court Rule expressly provides for the same and they are very material to an appeal. We shall, therefore, take the statement of facts from appellee Krueger's brief as being true, since appellant Scott has not objected to their accuracy in his reply brief, but has only contended many facts set out in the answer brief are irrelevant to the issues presented on appeal.

The parties hereto have given but very little consideration to the facts of the occurrence in question which resulted in appellee Krueger's injuries and the material issues argued are:

1. The trial court's forcing Garnal Scott to answer interrogatories propounded by plaintiff-appellee Kruger over Scott's objections as to liability insurance and liability insurance limits;

2. Instructions given the jury to which written objections were timely made, and

3. The agreement referred to herein as 'Covenant Not to Execute' entered into by and between Krueger and Rodriguez during the jury's deliberations.

The facts are, briefly, that on the night of October 8, 1967, between 7:30 and 8:00 o'clock P.M., the plaintiff-appellee Krueger was riding his motorcycle north on State Road 43, a two-lane, blacktop highway, about .9 mile south of Lafayette, Indiana, when he collided with appellant Scott's automobile. Scott had, some twenty to thirty minutes previously, been involved in a collision with appellee Rodriguez's automobile, having struck the rear of the Rodriguez car as Rodriguez was attempting to turn into a driveway and had stopped, with the rear of his automobile out in the northbound driving lane. Scott's car, after striking the same, swung around and was setting cross-ways of both driving lanes of Road 43.

It was a dark, misty night and visibility was limited. Just south of the accident scene there is a rise that obscures the spot where the accident occurred from the view of northbound traffic until the northbound traffic is almost upon the location. (The words 'almost upon' was the only distance we were able to secure from the briefs.)

The parties involved in the first collision made no effort to remove either of the automobiles from the highway, although Scott had four rea flares in his car, one of which he lighted, and put it out at the road some 20 to 30 feet from the stalled vehicles, and which shortly thereafter went out. Neither of the parties attempted to light and set out another flare or any other warning for others lawfully using the highway.

Appellee Krueger's motorcycle ran into the Scott vehicle, throwing Krueger into the air, where he landed on the pavement as the result of which he sustained several injuries to his person, including broken bones and permanent brain damages which caused him to incur medical and hospital expense, as well as loss of income.

The first alleged error which defendant-appellant Scott argues in his brief is that during the pre-trial proceedings Krueger filed interrogatories directed to both defendants. Interrogatories propounded by plaintiff Krueger to defendant Scott included interrogatories relating to (1) whether or not the defendant at the time of the accident had a public liability insurance coverage on the automobile involved in the accident; (2) the name of the policy, its number and general information relating thereto, and (3) whether or not there was collision insurance in effect at the time of the accident on the vehicles involved in the accident. Defendant-appellant Scott objected to all of these interrogatories and their sub-parts on the ground that it was immaterial, irrelevant and did not seek to expose the existence of books, documents or other tangible items or the identity of persons.

Defendant-appellant cites the case of Bisserier v. Manning, (D.C.N.J.1962), 207 F.Supp. 476, and other cases for authority supporting his objection.

This court takes judicial notice of the fact that the case at bar was tried before Trial Rule 26(B)(4) was adopted. However, in view of Trial Rule 16(C) (5) and Trial Rule 26(B)(4) and 13 A.L.R.3rd 822, and the citation of authorities therein indicating numerous states which have adopted just the opposite result that the defendant-appellant contends and his cited cases support, we cannot agree that it was error for the court to compel defendant-appellant to divulge the name and extent of his insurance coverage, if any.

TR. Rule 16--Pre-trial Procedure; Formulating Issues * * * (C) Conference of attorneys. * * *, Section 5, provides as follows:

'(5) Discuss settlement. The possibility of compromise settlement shall be fully discussed and explored.'

This rule was in effect in Indiana at the time the case at bar was tried.

Thereafter, under our Rules of Trial Procedure--Depositions and Discovery--TR. Rule 26 provides methods of discovery and (B)(4) thereof reads as follows:

'(4) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement. Added eff. March 1, 1971.'

Our Supreme Court saw fit to augment the rules of discovery and provide that a defendant or defendants must disclose the existence and contents of an insurance agreement under which a person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment is required to give the amount of insurance coverage, the name of the carrier, et cetera.

This additional provision of 'discovery' was to further enable litigants to know the amount of coverage of an insurance policy so that they would better know and the trial court would better know of the possibility of a settlement to avoid further litigation. The Rule itself provided that any information concerning the insurance agreement is not, because of its disclosure, admissible in evidence at trial.

This court can readily see and understand that attorneys can better evaluate a lawsuit when they know the worth of the defendant, including insurance coverage, and what they may expect to recover in the event they are successful in the trial against such defendant.

It stands to reason that if an insured who is a defendant has only the minimum coverage required under our Indiana statute and has no other property on which an execution can be run and has no expectancy from an inheritance, et cetera, that a plaintiff involved in such litigation is better...

To continue reading

Request your trial
29 cases
  • American Optical Co. v. Weidenhamer
    • United States
    • Indiana Appellate Court
    • 23 Abril 1980
    ...the jury. Otherwise he has no opportunity to reexamine his position and correct possible errors or misstatements. Scott v. Krueger, (1972) 151 Ind.App. 479, 280 N.E.2d 336; Conley v. Lothamer, (1971) 150 Ind.App. 356, 276 N.E.2d Weidenhamer's Instruction No. 6 as modified provided: "A manuf......
  • Hundt v. Lacrosse Grain Co., Inc., 3-1278A317
    • United States
    • Indiana Appellate Court
    • 21 Septiembre 1981
    ...to the jury." American Optical Co. v. Weidenhamer, (1980) Ind.App., 404 N.E.2d 606, 621 (transfer pending), citing Scott v. Krueger, (1972) 151 Ind.App. 479, 280 N.E.2d 336; Conley v. Lothamer, (1971) 150 Ind.App. 356, 276 N.E.2d 602. Moreover, there clearly was evidence supporting the givi......
  • State v. Thompson
    • United States
    • Indiana Appellate Court
    • 29 Enero 1979
    ...American Transport Company v. Central Indiana Railway Company (1970), 255 Ind. 319, 264 N.E.2d 64, 65-67; Scott v. Krueger (1972), 151 Ind.App. 479, 280 N.E.2d 336, 339, 350-358; Burkett v. Crulo Trucking Co., Inc. (1976), Ind.App., 355 N.E.2d 253, 258-261; City of Boomington v. Holt (1977)......
  • Shell Oil Co. v. Meyer, 79A04-9512-CV-470
    • United States
    • Indiana Appellate Court
    • 19 Agosto 1997
    ...order to preserve error to an opponent's instruction, an objection must be lodged before the instruction is given. Scott v. Krueger, 151 Ind.App. 479, 280 N.E.2d 336 (1972). Objections to instructions must be specific and state why the instruction is misleading, confusing, incomplete, irrel......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT