State Farm Mut. Auto. Ins. Co. v. Shuman

• Decision Date: 22 December 1977
• Docket Number: No. 1-276A29,1-276A29
• Citation: 370 N.E.2d 941,175 Ind.App. 186
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant (Defendant below), v. Hattie SHUMAN, as Administratrix of the Estate of Billy L. Greenlee, and Hattie Shuman, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 941

370 N.E.2d 941

175 Ind.App. 186

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant (Defendant below), v. Hattie SHUMAN, as Administratrix of the Estate of Billy L Greenlee, and Hattie Shuman, Appellee (Plaintiff below).

No. 1-276A29.

Court of Appeals of Indiana, First District.

Dec. 22, 1977.

Rehearing Denied Jan. 25, 1978.

Myrl O. Wilkinson, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for appellant.

John A. Kesler, Terre Haute, for appellee.

LYBROOK, Judge.

Appellant State Farm Mutual Automobile Insurance Company appeals from an adverse judgment awarding appellee Hattie Shuman, as administratrix of her brother's estate, the face amount of the insurance policy sued upon in the sum of $10,000 plus interest and punitive damages in the sum of $10,000.

We affirm.

To understand the posture of this appeal it is necessary to recount in some detail the procedural background of the case and the factual circumstances which gave rise to the litigation. Hattie Shuman, as administratrix of her brother's estate, brought the action to recover a $10,000 accidental death indemnity under an automobile insurance policy owned by her brother, Billy Greenlee. She also sought an award of punitive damages for State Farm's refusal to honor the claim. In her personal capacity, Shuman sought to recover for damages to her automobile.

According to the parties' stipulation of facts, "the decedent Billy L. Greenlee died on or about August 19, 1968, when the vehicle he was in was struck at a railroad crossing on the Indiana/Illinois line by a railroad train." Decedent's automobile insurance policy with State Farm afforded an accidental death benefit of $10,000 payable to his estate under the following conditions:

". . . in event of the death of . . . insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile . . ."

The policy elsewhere contained a specific exclusion to the effect that the "insuring agreement IV (accidental death indemnity) does not apply . . . to bodily injury due to suicide, sane or insane."

Following State Farm's denial of the claim, Shuman brought suit on August 18, 1970, to recover the face amount of the policy plus interest (and automobile damages), but did not at that time allege a claim for punitive damages. State Farm's answer, filed on December 22, 1970, denied the complaint's allegations. A pretrial conference was held finally on May 17, 1972. After several changes in the trial date, the cause was set for trial on October 1, 1974.

On September 20, 1974, Shuman moved to amend her complaint by adding a claim for punitive damages (Count II). Leave to amend was granted, over State Farm's objection, and the trial was again rescheduled.

On October 28, 1974, State Farm successfully attacked the claim for punitive damages with a motion to dismiss for failure to state a claim. Thereafter, on June 10, 1975, Shuman filed another motion to amend Count II and, over State Farm's objection, the court granted her leave to plead over the amended complaint. State Farm subsequently filed motions to strike and to dismiss Count II pursuant to Ind. Rules of Procedure, Trial Rule 12(F) and 12(B)(6), both of which were overruled. On July 25, 1975, State Farm filed an answer to the amended complaint and a motion to dismiss for failure to prosecute in the name of the real party in interest, which motion was overruled. Trial by jury finally commenced on September 16, 1975.

The contested factual issue at trial was whether Billy Greenlee committed suicide or died as a result of an accident. The record discloses that on the evening of August 18, 1968, Greenlee had dinner with Hattie and Melvin Shuman. Greenlee and Melvin Shuman each had a few drinks ("a couple of vodkas and squirts and maybe a beer or two"), watched TV and talked about going hunting and fishing the following weekend. Melvin Shuman conveyed a message to Greenlee that Walter Fortune had a job for him and wanted to see him. Greenlee left around 11:30 P.M. to go to the store for cigarettes and to purchase something for his sister and also to see "a friend" in W. Terre Haute. Rather than drive his car, which had a defective radiator hose, Greenlee borrowed the Shuman's car, a 1961 Dodge, which was described as a "pile of junk", with loose battery terminals, that had "died" on previous occasions.

The collision occurred on the State Line Road crossing, west of W. Terre Haute and 1 1/2 to 2 miles from the Shuman home. The railroad crossing, located at the bottom between two hills, was so overgrown with weeds that you "have to be almost on the track before you could see if a train was coming." There were no automatic flasher lights and the only warning was a railroad crossing sign.

The locomotive engineer testified that the train approached the crossing, at 60 miles per hour, from a righthand curve. He activated the whistle and bell at the whistling post, around 1500 feet from the crossing. From where he first noticed the vehicle straddling the tracks, he kept blowing the whistle thinking the car would move; it then took the train 18-21 seconds to reach the crossing. During this time, he observed the car parked, without any lights, and did not detect anyone in or about the car. Following the collision, he inspected the car's engine block and radiator and found that "it was warm, slightly warm cool, actually, to the touch."

The coroner's report stated that the cause of death was accidental.

Much of the testimony at trial concerned Billy Greenlee's state of mind. Greenlee was 38 years old, unemployed, and only recently divorced for the second time. He previously had been working as manager of a local tavern, but his second wife got the job when their marriage ended. In July, 1969, he moved into the Shuman house. He first learned that his wife had sued for divorce on July 11th, when he saw the divorce notice in a newspaper. He had a girl friend whom he had been seeing since then. Several weeks before his death, Greenlee initiated a change in his ordinary life insurance policy to name Hattie Shuman beneficiary, instead of his ex-wife, because "he didn't want his ex-wife to get it." The week before his death he was taking care of his mother's house while she was away on vacation. Greenlee talked and joked with her on the telephone and said he would see her on Tuesday.

Greenlee had been hospitalized in March, 1968, for acute gastritis, inflammation of the stomach, and other symptoms of chronic alcoholism. The attending physician testified that Greenlee had a long history of alcoholism, duodenal ulcer, and cirrhosis of the liver; the prognosis as of Greenlee's last examination in April was that he would do well without alcohol. The physician also stated that Greenlee had no suicidal tendencies or other symptoms which would call for psychiatric treatment and that on his discharge from the hospital, Greenlee was doing better. The physician did not recall having prescribed medicine, except vitamins, or attending to Greenlee thereafter other than for a routine checkup. State Farm's insurance agent, Daniel Evers, testified that when he saw Greenlee at a bar three weeks prior to the collision, Greenlee had lost weight, was dejected and drinking, and mentioned he had only one month to live. At the time Evers thought Greenlee had cancer but learned later, from the physician's medical report, that this was not the case.

The other testimony at trial pertained to State Farm's handling of the claim. The evidence most favorable to the appellee reveals that Shuman made four or five trips to see insurance agent Daniel Evers before they "finally got down to business." At these meetings, prior to October 10, 1968, it is unclear whether Shuman discussed anything other than the damage to her car, but Evers did not offer any information about the death benefit. She first became aware of the accidental death benefit shortly before the October 10th meeting, when she discovered the policy among her brother's papers. At that meeting, Evers attempted to get Shuman to sign a release "giving up all claims to everything" in return for $200 on the car. When Shuman asked about the accidental death benefit, Evers "hummed and hawed around and then went through his papers" and, after agreeing that there was one, asked if she would be willing to settle for half because "Bill was an alcoholic and under the law we don't have to pay off on him being an alcoholic." Evers continued to press for a settlement by indicating the consequences she would face if she brought suit. He said the insurance company would try to prove suicide and, even if she did win, the lawyers would get most of it and "besides you can't beat an insurance company." At the time of this conversation, Evers was aware that Shuman had been appointed administratrix of Greenlee's estate and was represented by an attorney.

The jury's verdict was in Shuman's favor on both counts, judgment thereon was entered on September 22, 1975, and State Farm subsequently perfected this appeal.

The various specifications of error relate to the following: (1) rulings on certain pretrial motions; (2) the failure to issue a pretrial order following the pretrial conference; (3) the reception of evidence at trial; (4) the refusal to give certain requested instructions; and (5) whether there was sufficient evidence to support the verdict on both counts.

I. RULINGS ON PRETRIAL MOTIONS

State Farm contends that the trial court abused its discretion in granting Shuman leave to amend her complaint by adding a claim for punitive damages. The original complaint was filed on August 18, 1970. Shuman's motion to amend, on September 20, 1974, came nearly four years after the issues had been closed by answer, almost two and a half years after the pretrial conference and within two weeks of the scheduled...