Sexton v. Meridian Mut. Ins. Co., 1--175A21

• Decision Date: 19 November 1975
• Docket Number: No. 1--175A21,1--175A21
• Citation: 337 N.E.2d 527,166 Ind.App. 529
• Parties: Tommy R. SEXTON, Jr. and Naomi Sexton, Appellants (Plaintiffs-Below), v. MERIDIAN MUTUAL INSURANCE COMPANY, Appellee (Defendant-Below).
• Court: Indiana Appellate Court

Page 527

337 N.E.2d 527

166 Ind.App. 529

Tommy R. SEXTON, Jr. and Naomi Sexton, Appellants (Plaintiffs-Below), v. MERIDIAN MUTUAL INSURANCE COMPANY, Appellee (Defendant-Below).

No. 1--175A21.

Court of Appeals of Indiana, First District.

Nov. 19, 1975.

Cline, King & Beck, Columbus, for appellants.

Crump & Angermeier, Columbus, for appellee.

LYBROOK, Judge.

Plaintiffs-appellants Tommy and Naomi Sexton, husband and wife, appeal from the granting of defendant-appellee Meridian Mutual Insurance Company's motion for judgment on the evidence which removed from the jury's consideration the question of punitive damages. The propriety of that ruling forms the only issue for our review.

The facts most favorable to plaintiffs, the non-moving party, reveal that on January 23, 1973, plaintiffs' home in Scott County was damaged by fire. At the time of loss, plaintiffs were protected by a paid-up policy of fire insurance issued by Meridian in the sum of $20,000. The policy, standard in form, provided for an appraisement in the event a dispute arose as to the amount of any fire loss:

'In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.'

When a dispute arose as to the amount of loss sustained by plaintiffs from the fire, plaintiffs sought to have the matter settled pursuant to the above clause. Plaintiffs named one Riley Caudill as their appraiser and Meridian selected a Mr. Stanley Bott. When these two could not agree upon an umpire, the Sextons petitioned the Scott Circuit Court and a Mr. Arthur D. Mitchell was appointed on July 11, 1973. On July 18, 1973, Bott and Caudill met at the Sextons' home to itemize and appraise the loss. Thereafter, despite repeated requests and demands from the Sextons, Meridian refused to furnish Bott's appraisal. Then, on August 17, 1973, having not yet received a copy of Bott's appraisal, the Sextons submitted Caudill's appraisal of the fire loss in the sum of $19,502.00 to the umpire, Arthur Mitchell. Mitchell then approved Caudill's appraisal. Thereafter, on August 20, 1973, the Sextons submitted a demand to Meridian for payment of $17,768.54 this being the amount of the appraisal less the sum of $1,733.46 previously paid by Meridian.

When Meridian refused to pay this amount, and further refused to recognize the umpire's award, Sextons were forced to file this suit.

Sextons' complaint sought both compensatory ($17,768.54) and punitive ($200,000) damages for malicious breach of insurance contract. At the close of plaintiffs' evidence, the trial court granted Meridian's motion for judgment on the evidence as to the claim for punitive damages, thereby withdrawing that issue from the jury's consideration.

In determining the propriety of the ruling, we are limited to the standard of reviey as announced in Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 275 N.E.2d 849:

'When passing on a motion for a directed verdict, the court is merely called on to determine if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind.App. 279, 97 N.E.2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on conflicting evidence, then the question is for the jury. Hatmaker v. Elgin, Joliet & Eastern Railway Company (1956), 126 Ind.App. 566, 133 N.E.2d 86; Heiny v. Pennsylvania Railroad Company (1943), 221 Ind. 367, 47 N.E.2d 145; Robertson Brothers Department Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d 886; Oliver v. Clemons' Estate (1968), 142 Ind.App. 499, 236 N.E.2d 72.

'Therefore, a directed verdict is proper only when the evidence is without conflict and is susceptible of but one inference in favor of the moving party. State Farm Life Ins. Co. v. Spidel (1...