Smith v. Midwest Mut. Ins. Co.

• Decision Date: 01 December 1972
• Docket Number: No. 1271A256,1271A256
• Citation: 154 Ind.App. 259,289 N.E.2d 788,33 Ind.Dec. 705
• Parties: Roger Ray SMITH, Plaintiff-Appellant, v. MIDWEST MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 788

289 N.E.2d 788

154 Ind.App. 259

Roger Ray SMITH, Plaintiff-Appellant, v. MIDWEST MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 1271A256.

Court of Appeals of Indiana, Second District.

Dec. 1, 1972.

Rehearing Denied Jan. 22, 1973.

Alfred H. Plummer III, Plummer, Tiede, Magley & Metz, Wabash, for plaintiff-appellant.

Albert C. Harker, Kiley, Osborn, Kiley & Harker, Marion, for defendant-appellee.

SULLIVAN, Judge.

The basic issue of this appeal concerns the status of an insurer-intervenor in a suit by the plaintiff-insured against a motorist but in which plaintiff makes no allegation concerning whether the defendant is or is not insured.

Roger Ray Smith was injured when the motorcycle he was driving and an automobile operated by Ross D. DeLong collided. Smith filed his complaint for personal injuries against DeLong, a non-resident, on March 28, 1969. Process was served upon DeLong's agent, the Secretary of State of Indiana. The complaint neither alleges that DeLong is an uninsured motorist nor names Midwest Mutual Insurance Co. (Midwest) as a party. On April 15, 1969, the law firm of Kiley, Osborn, Kiley & Harker, together with another law firm, entered a Special Appearance on behalf of DeLong to challenge the jurisdiction of the court over his person. The challenge was unsuccessful.

Following other proceedings not pertinent to this appeal, Midwest, also represented by Kiley, Osborn, Kiley & Harker, filed a Motion to Intervene on January 5, 1970. The Motion to Intervene reads in part as follows:

'3. That there are questions of law and/or fact common to plaintiff-insured, ROGER RAY SMITH, the defendant-uninsured motorist, ROSS D. DeLONG, and the petitioner-insurer, MIDWEST MUTUAL INSURANCE COMPANY, in that the liability of both the defendant-uninsured motorist ROSS D. DeLONG, and the petitioner-insurer, MIDWEST MUTUAL INSURANCE COMPANY, is predicated upon whether the plaintiff-insured, ROGER RAY SMITH, is legally entitled to recover damages from said defendant-uninsured motorist, ROSS D. DeLONG; and that the plaintiff-insured, ROGER RAY SMITH, asserts some right to relief against both the defendant-uninsured motorist, ROSS D. DeLONG, and the petitioner-insurer, MIDWEST MUTUAL INSURANCE COMPANY, which relates to and arises out of a single occurrence: an automobile accident on June 19, 1966 at the intersection of United States Highway 31 with Nyona Lake Road in Fulton County, Indiana, wherein a motorcycle driven by the plaintiff-insured, ROGER RAY SMITH, collided with the automobile driven by the defendant-uninsured motorist, ROSS D. DeLONG.

'4. That petitioner-insurer, MIDWEST MUTUAL INSURANCE COMPANY, seeks to intervene as a defendant in the above entitled cause in order to assert the defenses set forth in its proposed Answer, a copy of which is attached hereto, on the ground that the plaintiff-insured, ROGER RAY SMITH, was contributorily negligent, that the defendant-uninsured motorist, ROSS D. DeLONG, was not negligent, and that the plaintiff-insured, ROGER RAY SMITH, failed to arbitrate his uninsured motorist claim in accordance with the terms of the aforesaid insurance agreement.'

The trial court allowed Midwest to intervene as a defendant and allowed Midwest to file an answer to Smith's complaint.

The law firm which represented both DeLong and Midwest then filed a petition to withdraw their appearance for DeLong alleging lack of authority to represent him and also to withdraw the answer previously filed on behalf of Midwest. In addition, they requested the court's permission to file a new answer. The court granted the request to withdraw and permission was granted to file a new answer on behalf of midwest. Midwest filed a new answer, the pertinent part of which follows:

'On June 19, 1966, there was in effect between the Defendant, Midwest Mutual Insurance Company, and the Plaintiff, Roger Ray Smith, an insurance agreement, Policy No. 239--176, with Endorsement No. 55, uninsured motorist coverage endorsement, attached thereto, a copy of which is attached hereto, marked Exhibit 'A' and made a part hereof. This Defendant, Midwest Mutual Insurance Company, intervened, as an insurer, because the Plaintiff, Roger Ray Smith, contends that Ross D. DeLong was an uninsured motorist at the time of his accident on June 19, 1966, and that it is liable to him under the uninsured motorist coverage endorsement aforesaid. The Plaintiff, Roger Ray Smith, is not entitled to recover from the Defendant, Midwest Mutual Insurance Company, under the terms and provisions of the Endorsement No. 55, uninsured motorist coverage endorsement, attached to Policy No. 239--176; and therefore, the Defendant, Midwest Mutual Insurance Company, is not liable to the Plaintiff, Roger Ray Smith, in this cause of action.'

In response, Smith filed a Motion for a More Definite Statement, a Motion to Strike, and a Motion to Dismiss, all directed toward the above paragraph of the answer. The trial court overruled all of Smith's motions. Thus confronted, Smith submitted interrogatories to Midwest with respect to Midwest's 'defense'.

Unsatisfied with Midwest's answer to one of his interrogatories concerning 'the facts upon which (Midwest) intend(s) to rely', Smith requested an order to require Midwest to answer pursuant to Rule TR. 37, IC 1971, 34--5--1--1.

After the jury trial commenced, the court refused to give Smith's preliminary instructions with respect to Midwest's 'admission' that DeLong was uninsured and further determined that Smith would have the burden of proving that DeLong was an uninsured motorist. During the trial, the court refused to allow testimony concerning statements made by DeLong to be admissible against Midwest. Similarly, the court refused to allow Smith to testify about an alleged conversation he had with a representative of Midwest a few days after the collision had taken place.

At the conclusion of Smith's evidence, Midwest filed a Motion for Judgment on the Evidence which was sustained by the court. The jury returned a verdict for Midwest pursuant to the court's instructions and also brought back a verdict for Smith against DeLong in the amount of $15,000.00.

Smith filed a Motion to Correct Errors which was subsequently overruled. Smith submits six issues to this court on appeal, only one of which need be treated herein:

1) Whether the trial court erred in overruling Smith's Motion for More Definite Statement, Motion to Strike and Motion to Dismiss Midwest's second defense of its amended answer?

In its answer brief, Midwest argues that Smith has waived all errors because his brief does not comply with the requirements of Rule AP. 8.3(A). However, the record shows that on February 7, 1972, Midwest requested an extension of time within which to file its answer brief. The extension was granted. The issue of the sufficiency of appellant's brief was not raised prior to appellee's answer brief. Consequently, Midwest has waived all technical objections to Smith's brief and must limit the scope of its answer brief to the merits of the cause. See Leuck v. Goetz (1972) Ind.App. 280 N.E.2d 847.

Midwest in its brief states that since the appellant's substantial rights were not affected by the trial court's ruling, the denial of the Motion to Strike amounts, at most, to harmless error. However, we have held that the overruling of a motion to strike is reversible error if prejudice is shown. Ellis et al v. Haines (1962) 134 Ind.App. 528, 533, 188 N.E.2d 835. When Smith's motion was denied, he was thereby obligated to assume the burden of proof concerning an issue he neither raised nor was apparently prepared to litigate. It is obvious that the trial court's ruling on Smith's Motion to Strike, if incorrect, prejudiced his case.

Next, Midwest argues that a Motion to Dismiss part or all of an answer because the answer fails to state a sufficient defense (Rule TR. 12(B)(6)) is inappropriate. This contention is based principally upon Farm Bureau Insurance Co. v. Clinton (1971) Ind.App., 269 N.E.2d 780 and Theis v. Heuer (1971) Ind.App., 270 N.E.2d 764, cases in which the trial courts had granted the defendants' motions to dismiss paragraphs of plaintiffs' respective complaints. We must first note in distinction that here the trial court overruled the plaintiff's motion to dismiss a paragraph of answer raising for the first time an issue not material to plaintiff's claim against defendant.

The primary basis for the holding in Theis with respect to the ruling upon the Motion to Dismiss is noted in the following statement from Judge Sharp's opinion:

'The motion to dismiss for failure to state a claim on which relief can be granted is viewed with disfavor in federal courts because of the possible waste of time in case of reversal of a dismissal of the action, and because the primary objective of the law is to obtain a determination of the merits of the claim.' 270 N.E.2d 764, 766.

Further, the Court in Theis quoting from 1A Barron & Holtzoff (Wright ed.) § 356, noted the difference between a Motion to Dismiss under Rule 12(B)(6) and a Motion to Strike as follows:

"(A Motion to Dismiss) applies to claims, not defenses, but at times has been used in testing the sufficiency of defenses before trial on the merits, although under amended Rule 12(f) a motion to strike is the specific method for attacking a defense."

The Theis and Farm Bureau Insurance Co. cases are therefore sufficiently distinguished from the case before us so as to permit, if not require, our consideration of plaintiff's assertion of error.

With reference to the Motion to Strike, Midwest in its own brief citing federal authority, sets forth the test as follows:

'(F)irst, the averments under attack must be so unrelated to plaintiff's claim as to be unworthy of any consideration as a defense; and second, the presence of such allegations in the pleading must be prejudicial to the movant.'

As heretofore and hereinafter noted, the injection of...