Simmons v. Erie Ins. Exchange

• Decision Date: 11 August 2008
• Docket Number: No. 32A04-0710-CV-552.,32A04-0710-CV-552.
• Citation: 891 N.E.2d 1059
• Parties: Elwood SIMMONS and Lila Simmons, Appellants-Plaintiffs, v. ERIE INSURANCE EXCHANGE, Appellee-Defendant.
• Court: Indiana Appellate Court

891 N.E.2d 1059

Elwood SIMMONS and Lila Simmons, Appellants-Plaintiffs, v. ERIE INSURANCE EXCHANGE, Appellee-Defendant.

No. 32A04-0710-CV-552.

Court of Appeals of Indiana.

August 11, 2008.

Michael E. Simmons, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, IN, Attorney for Appellants.

Robert A. Smith, Peter G. Wenzl, Smith & Wade, LLP, Carmel, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Elwood and Lila Simmons appeal following a judgment awarding them each $10,000 following an automobile accident. The Simmonses raise two issues, but we find dispositive the issue of whether the trial court abused its discretion by instructing the jury on the affirmative defense of failure to mitigate damages.¹ Concluding that insufficient evidence exists to support this instruction, we reverse and remand for a new trial.

Facts and Procedural History

On April 28, 2001, Elwood was involved in an automobile accident with a second vehicle driven by Billie Jo Wilcox. Neither party disputes that Wilcox was 100 percent at fault for this accident. Wilcox had insurance with a bodily injury coverage limit of $50,000, and Wilcox's insurer paid this full amount to Elwood. At the time of the accident, the Simmonses held an automobile insurance policy with Erie. This policy included underinsured motorist bodily injury protection.

Shortly after the accident, Elwood sought treatment from Dr. David Gurvis, who diagnosed Elwood with plantar fasciitis, an ailment causing Elwood pain in his right foot. Dr. Gurvis treated Elwood with anti-inflammatory medicine, foot orthotics, and finally cortisteroid injections. These injections temporarily relieved Elwood's pain, but did not provide permanent relief. Dr. Gurvis administered the second and final injection on December 12, 2001.

At some point, Elwood began walking with his right foot turned out in order to avoid putting pressure on the sore parts of his foot. The doctors who testified in this case referred to this walking style as a "learned gait."

In January 2002 Elwood sought treatment from Dr. Karl Raynor. Dr. Raynor treated Elwood with oral prednisone, a cast, and a walking boot. Elwood testified that after he was in a cast for four to six weeks, his foot "got better." Transcript at 129. In September 2002, Elwood saw Dr. Michael Kramer in relation to hip pain. Dr. Kramer prescribed physical therapy. Elwood did not see Dr. Kramer again until June 2004, when he reported "knee popping" in his right knee. Dr. Kramer examined him and determined that the knee condition was not related to Elwood's gait.

In July 2002, Dr. Raynor referred Elwood to Dr. Theodore Nukes, a neurologist. Dr. Nukes diagnosed Elwood with peripheral neuropathy, which causes, among other things, numbness or tingling in the legs and feet. Dr. Nukes indicated that the pain from Elwood's plantar fasciitis was unrelated to his symptoms from his peripheral neuropathy, as "they're two very separate conditions with separate pathologies." Tr. at 351. Elwood saw another neurologist, Dr. James Cook, who also diagnosed Elwood with peripheral neuropathy. Neither doctor had any reason to believe that Elwood's neuropathy was connected to the accident.

Elwood testified that as a result of his injury, he was required to close the business in which he was a fifty-percent owner because he couldn't "carry [his] load." Id. at 138. He also testified that prior to his injury he had been extensively involved in the raising, training, and showing of dogs, but that he was unable to do so now. The Simmonses both testified that they began caring for a relative's two children in 2000. These children have special needs and require continuous care and attention. Elwood and Lila both testified that Elwood is now less able to care for the children.

On March 23, 2004, the Simmonses filed their complaint seeking underinsured motorist insurance benefits from Erie. Elwood sought compensation for damages suffered as a result of his injuries and Lila sought damages for loss of services and consortium.

Before trial, in 2006, Elwood returned to Dr. Gurvis so that Dr. Gurvis could "evaluate [Elwood] for [Dr. Gurvis's] deposition." Id. at 181. Elwood reported that he had undergone various treatment plans with other physicians and "has had enough." Id. at 181. Dr. Gurvis stated that Elwood was "[f]rustrated with being in pain for that long and apparently he's seen other doctors. Nothing has helped so he figures he's just going to have to live with it." Id. Dr. Gurvis testified that surgery or shock therapy could provide Elwood relief, but did not state that he informed Elwood of these treatment options.

On June 7, 2004, a jury trial was scheduled for February 23, 2005. Over the next two years, the trial was continued nine times; three times on Erie's motion, three times on the Simmonses' motion, one time by joint motion, and two times on the court's own initiative. The last motion to continue set the trial for August 29, 2007. On August 8, 2007, the Simmonses' counsel received a report from Dr. Thomas Ambrose, whom Elwood consulted on June 11, 2007. Dr. Ambrose's report indicated that Elwood may need a partial or complete knee replacement, but that further testing was required to determine the course of treatment. On August 9, 2007, the Simmonses gave this report to Erie, and inquired whether the parties should attempt to depose Dr. Ambrose or continue the trial. On August 10 Erie responded with a motion to bar expert testimony. The trial court granted this motion on August 13. On August 16, the Simmonses filed a motion to continue. On August 17, the trial court denied this motion, stating: "The Court denies the Plaintiff's Motion for Continuance as this case has been continued nine (9) times." Appellant's Appendix at 151. The trial court subsequently denied the Simmonses' motion to reconsider and oral request for a continuance on the day of trial.

On the second day of trial, Erie tendered a proposed instruction on the affirmative defense of failure to mitigate damages. Erie had not raised this defense in the pleadings or included an instruction on the affirmative defense in its tendered preliminary instructions. The Simmonses objected, but the trial court ultimately read the following instruction to the jury:

The plaintiff must use reasonable care to minimize his damages. This is called mitigation of damages.

If you find the plaintiff failed to use reasonable care to minimize any of the damages he alleges he sustained and that failure was the proximate cause of any of the damages he claims, then such conduct would reduce the amount of damages that the plaintiff would otherwise recover.

The defendant has the burden of proving by a preponderance of the evidence that the plaintiff failed to use reasonable care to minimize his damages.

Tr. at 404-05. The jury returned a verdict awarding $10,000 each to Elwood and Lila, and the trial court reduced these verdicts to judgments. On September 13, 2007, Erie filed a Request for Nunc Pro Tunc Entry, requesting that Erie be permitted to set off the $50,000 previously received by the Simmonses from Wilcox's insurance company. The trial court granted this motion and issued an order stating that the Simmonses were not entitled to any payment from Erie. The Simmonses now appeal.

Discussion and Decision²

I. Standard of Review³

When we review a trial court's decision to give or refuse a tendered instruction, we consider whether: "1) the instruction correctly states the law; 2) the evidence in the record supports giving the instruction, and 3) the substance of the instruction is covered by other instructions." Hoosier Ins. Co. v. N. S. Trucking Supplies, Inc., 684 N.E.2d 1164, 1173 (Ind. Ct.App.1997). In determining whether sufficient evidence exists to support an instruction, we will "look only to that evidence most favorable to the appellee and any reasonable inferences to be drawn therefrom." Antcliff v. Datzman, 436 N.E.2d 114, 122 (Ind.Ct.App.1982). We review a trial court's decision to give or refuse to give an instruction for an abuse of discretion.⁴ See Griffin v. Acker, 659 N.E.2d 659, 662 (Ind.Ct.App.1995), trans. denied.

II. Failure to Mitigate Damages

"The principle of mitigation of damages addresses conduct by an injured party that aggravates or increase the party's injuries." Willis v. Westerfield, 839 N.E.2d 1179, 1187 (Ind.2006) (quoting Deible v. Poole, 691 N.E.2d 1313, 1315 (Ind.Ct. App.1998), aff'd 702 N.E.2d 1076 (Ind. 1998)). The failure to mitigate damages "is an affirmative defense that may reduce the amount of damages a plaintiff is entitled to recover after liability has been found." Id. That is, "the amount of damages a plaintiff is entitled to recover is reduced by those damages which reasonable care would have prevented." Id. This affirmative defense has two elements, both of which the defendant bears the burden of proving. Id. at 1188. "First, the defendant must prove that the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damage. Second, the defendant must prove that the plaintiff's failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant's negligent conduct." Id. In the context of a claim that the plaintiff failed to follow medical advice, "in order to establish a failure to mitigate, the defendant must also prove that the plaintiff's actions caused the plaintiff to suffer a discrete, identifiable harm arising from that failure, and not arising from the defendant's acts alone." Id. Although expert medical testimony is generally required to establish a failure to mitigate damages in this context, there is no bright line rule. Id. "A party presenting a failure to mitigate damages defense without expert testimony on causation will do so at his or her own peril." Id.

Erie argues that Elwood failed to mitigate damages due to his failure to...