Indiana Commissioner of Insurance Stephen W. Robertson, on behalf of Indiana Patient's Compensation Fund v. Kimi Clark, Personal Representative of the Estate of William Troy Clark

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, Jul 18 2014, 9:00 am
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES F. BLEEKE JOHN J. SULLIVAN
CAROL A. DILLON NATHAN MILLER
RACHEL A. EAST Indianapolis, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

INDIANA COMMISSIONER OF INSURANCE )
STEPHEN W. ROBERTSON, on behalf of )
INDIANA PATIENT’S COMPENSATION )
FUND, )
)
Apellant-Respondent, )
)
vs. ) No. 49A04-1401-CT-7
)
KIMI CLARK, Personal Representative of the )
Estate of William Troy Clark, Deceased )
)
Appellees-Claimant. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable John F. Hanley, Judge
Cause No. 49D11-1205-CT-018199

July 18, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
 The Indiana Patient’s Compensation Fund (“the Fund”) appeals the Marion

Superior Court’s award of damages to the estate of William Troy Clark (“the Estate”)

following remand. The Fund presents two issues on appeal, which we restate as: (1)

whether the trial court exceeded its authority on remand and (2) whether the trial court

clearly erred in its award of damages for lost earnings.

We affirm.

Facts and Procedural History

On July 29, 2001, William Troy Clark (“Clark”) died in Vigo County jail as a

result of symptoms related to alcohol withdrawal syndrome. At the time of his death,

Clark was an unmarried adult with two noncustodial children, Lacee Clark, who then was

nine years old, and Trey Clark, who was seven years old.

Prior to his death, Clark had worked as a union ironworker. In 1998, Clark began

to drink alcohol excessively. He and his wife, Kimi, divorced on December 1, 1998. He

was ordered to pay child support, but fell behind in the payments. In November 1999,

Clark was diagnosed with alcohol dependency and bipolar personality disorder. In

December 1999, the Vigo Superior Court issued an order directing Clark’s employer to

withhold a portion of Clark’s income to pay his $7,900 child support arrearage.

In early 2000, Clark moved to Georgia to live with his mother. While in Georgia,

he was convicted of possession of stolen goods and served a ten-month sentence in the

George State Penitentiary. He was released in December 2000. While Clark was living

in Georgia, he spoke with his children by telephone weekly.

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 On Father’s Day weekend of 2001, Clark visited his children in Indiana. He

returned to live in Indiana permanently approximately one month later, after he lost his

job in Georgia. On July 23, 2001, Clark was arrested for failure to appear for a hearing in

a case involving theft charges against him. While incarcerated in the Vigo County jail,

Clark suffered from alcohol withdrawal syndrome, which went untreated and which

ultimately led to his death on July 29, 2001.

The Estate brought a wrongful death claim against Vigo County and the Vigo

County jail physician pursuant to the Indiana Medical Malpractice Act. The county

settled the claim for $300,000, its maximum exposure under the Act. The jail physician

settled the claim for $250,000, also the maximum exposure. In 2012, the Estate filed a

petition to recover from the Fund the remainder of its damages pursuant to Indiana Code

section 34-18-14-3(c). Prior to trial, the parties stipulated that the Estate had recovered

the aggregate of $550,000 in the county and physician settlements.

The trial court held a bench trial on November 14, 2012, and issued its findings of

fact and conclusions thereon on December 21, 2012. In its order, the trial court found

that Clark paid child support in 2001 in the amount of $160 per week. The trial court

found Clark’s earning capacity at the time of his death to be $30,000 per year. The trial

court concluded that Clark’s estate should receive “excess damages in the amount of Four

Hundred Sixty-Five Thousand Dollars ($465,000) to be paid by the Fund to the Claimant

as excess damages[.]” Appellant’s App. p. 33. In calculating the amount of liability, the

trial court determined that the children were entitled to $309,000 in damages for the loss

of Clark’s “love, care, affection, companionship, and parental training for a period of

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10.3 years . . . based on Mr. Clark’s annual earnings at the time of his death[.]” Id. at 32.

The trial court also awarded $6,089.85 for funeral expenses and $150,000 for the Estate’s

attorney’s fees.

The Fund appealed the damage award, arguing that the trial court did not offset

$550,000 already received by the Estate in settlements with other defendants. On appeal,

another panel of this court held that the trial court’s order was ambiguous because (1) it

failed to specify whether the judgment accounted for a set-off for the settlements received

by the Estate and (2) the trial court did not clarify what damages, if any, it awarded for

Clark’s lost earning capacity. In its opinion, this court observed:

In its order, the trial court states that the children are entitled to $309,000,
the estate’s funeral expenses are $6,089.85, and the estate’s attorney’s fees
are $150,000. Thus, the total liability of all defendants in this case would
be $465,089.85. Once the trial court arrived at this figure, it should have
then subtracted the amount the estate received from the defendants who
settled. If the court determines that $465,089.85 is the total liability of all
defendants, then subtracting the $550,000 settlement received by Clark’s
estate should result in no additional damages for the estate.

However, the trial court’s order also states that the “total allowable excess
damages in this cause of action are $465,000.” Similarly, conclusion of
law seven states that the [Fund] “is responsible for up to an additional
$700,000, in excess of the payments made by the underlying health care
provider and the Vigo County jail . . . .” If the trial court intended to award
$465,000 to Clark’s estate, it should actually account for $1,015,000 in
damages—the $465,000 damages plus the $550,000 settlement amount.
Because the judgment enumerates only $465,089.85 in damages but
specifically states that this amount is in excess of the settled amount, it is
unclear whether the trial court actually offset the total damages by the
amount received in the settlements with the Vigo County jail and the prison
health-care provider.

Robertson ex rel. Indiana Patient's Comp. Fund v. Clark, No. 49A04-1212-CT-652, slip

op. (Ind. Sept. 24, 2013). (“Clark I”) (internal citations omitted).

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 This court therefore reversed the trial court’s judgment and remanded with

instructions to “calculate the total damages to which Clark’s estate is entitled and to

offset those damages by the amount received from the settling defendants.” Id. The

court further directed the trial court on remand to “determine whether Clark’s estate is

entitled to damages for Clark’s lost-earning capacity.” Id.

On remand, on December 20, 2013, the trial court calculated the value for the loss

of Clark’s earning capacity at $309,000 and the value of his love, care, affection,

companionship, and parental training at $550,000. Its award of funeral expenses and

attorney’s fees remained the same, for a total judgment of $1,015,089.15. With the set-

off for the Estate’s settlements with the defendants, the excess damages payable by the

Fund were $465,089.85.

The Fund, by Indiana Commissioner of Insurance Stephen Robertson, now appeals.

Standard of Review

The trial court entered findings of fact and conclusions thereon pursuant to Indiana

Trial Rule 52(A). We therefore apply a two-tiered standard of review: we first determine

whether the evidence supports the trial court’s findings, and, second, we determine

whether the trial court’s findings support the judgment. Anderson v. Ivy, 955 N.E.2d

795, 800 (Ind. Ct. App. 2011), trans. denied. The trial court’s findings and conclusions

will be set aside only if they are clearly erroneous, i.e., if the record contains no facts or

inferences supporting them. Redd v. Redd, 901 N.E.2d 545, 549 (Ind. Ct. App. 2009).

The party appealing the trial court’s judgment must establish that the findings are clearly

erroneous. Anderson, 955 N.E.2d at 800.

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 The trial court’s findings are clearly erroneous only when a review of the record

leaves us firmly convinced that a mistake has been made. Id. In reviewing the trial

court’s findings, we neither reweigh the evidence nor assess the credibility of witnesses,

but consider only the evidence most favorable to the judgment. Redd, 901 N.E.2d at 549.

We do not, however, defer to the trial court’s conclusions of law, which we review de

novo. Anderson, 955 N.E.2d at 800; Redd, 901 N.E.2d at 549.

I. The Trial Court’s Authority on Remand

The Fund first argues that “the trial court exceeded its authority on remand by

altering the amount awarded for lost love, care, affection, companionship and parental

training, even though that element of damage was not reversed by the Court of Appeals.”

Appellant’s Br. at 9. The Fund argues that principles of res judicata and the law of the

case doctrine preclude the trial court from awarding damages as it did.

The limitation upon a trial court’s jurisdiction after a remand is based upon the

expectation that the trial court will do what it was requested to do by the appellate court.

Skendzel v. Marshall, 263 Ind. 337, 330 N.E.2d 747, 749 (1975). An appellate court

“retains” jurisdiction “to see that its instructions are carried out.” Id.

The Fund contends that the trial court, on remand, made contradictory findings as

to damages for the children’s loss of Clark’s love and affection and therefore acted

outside of its authority on remand. We disagree. In Clark I, we held that the trial court’s

calculation and allocation of excess damages in its November 2012 order was unclear.

We therefore remanded for clarification of the total amount of damages, including the

set-off, and for clarification of the amount awarded for Clark’s lost earnings. We

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instructed the trial court on remand to do either of two things with respect to the setoff

amount: (1) if it intended $465,000.00 to be the total liability of all defendants, subtract

$550,000, the amount the Estate received in settlement, from its finding of damages,

thereby resulting in no excess damages to be paid by the Fund, or (2) if it intended to

award $465,000 to be awarded in excess damages, account for a total of $1,015,000 in

damages and subtract the setoff amount.

The trial court complied with our instructions by identifying its award of $309,000

as damages for lost earning capacity and clarifying the amount of damages for loss of

love and affection as $550,000, which, apparently, was the amount offset in the

November 2012 order. Because the trial court simply followed our instructions on

remand, the trial court did not exceed its jurisdiction in ruling on a post-judgment matter.

See Stepp v. Duffy, 686 N.E.2d 148, 152 (Ind. Ct. App. 1997); see also Holmes v.

Holmes, 726 N.E.2d 1276 (Ind. Ct. App. 2000) (holding that successor judge had

authority on remand to make nunc pro tunc entry with respect to former husband’s child

support arrearage, where initial arrearage calculation was made without considering

effect of Michigan order upwardly modifying former husband’s support obligation, and

would have resulted in former husband paying only 17 percent of amount actually owed).

The Fund’s argument regarding principles of res judicata and the law of the case

doctrine also have no merit. In Clark I, we expressly remanded with instructions for the

trial court to determine the amount of excess damages and to determine lost earnings

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damages. The trial court’s compliance with these instructions is certainly not barred by

res judicata or law of the case.1

II. The Trial Court’s Lost Earning Award

The Fund next argues that the trial court’s award of lost earnings damages

equaling Clark’s full earning capacity was clearly erroneous. The Fund maintains that

the award “should have been representative of the actual financial loss the Clark children

would have received.” Appellant’s Br. at 15. Citing Elmer Buchta Trucking, Inc. v.

Stanley, 744 N.E.2d 939, 943 (Ind. 2001), in which this court held that “the proper

measure of damages must include a deduction based on the costs of this personal

maintenance,” the Fund claims that the “maximum award for the Clark children that

could possibly be within the evidence is what they might have actually received in child

support.” Appellant’s Br. at 15. The Fund claims that the evidence was insufficient to

show that the Clark children could reasonably expect to receive any future support from

Clark, in light of evidence of his alcoholism, incarcerations, and prior delinquencies in

child support payment and that the trial court erred when it failed to adjust the amount of

lost earnings damages to account for Clark’s personal consumption.

1
The principles of res judicata are divided into two branches: claim preclusion and issue preclusion, the
latter also referred to as collateral estoppel. In re L.B., 889 N .E.2d 326, 333 (Ind. Ct. App. 2008).
Collateral estoppel bars the subsequent re-litigation of the same fact or issue where the fact or issue was
necessarily adjudicated in a former suit and the same fact or issue is presented in a subsequent action. Id.
Law of the case provides that an appellate court's determination of a legal issue is binding on the trial
court and in any subsequent appeal in the same case and on substantially the same facts. Dean V. Kruse
Found., Inc. v. Gates, 973 N.E.2d 583, 590 (Ind.Ct.App.2012), trans. denied. Essentially, law of the case
means all issues decided directly or by implication in a prior decision are binding in all further portions of
the same case. Id. However, only those issues conclusively determined are considered law of the case,
and the issue decided in the prior appeal must clearly be the only possible construction of an opinion. Id.
Because the trial court acted in accordance with instructions from this court, none of these doctrines bar
its judgment.

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 The Indiana wrongful death statute provides, in part:

When the death of one is caused by the wrongful act or omission of
another, the personal representative of the former may maintain an action
therefor against the latter, if the former might have maintained an action
had he or she, as the case may be, lived, against the latter for an injury for
the same act or omission. When the death of one is caused by the wrongful
act or omission of another, the action shall be commenced by the personal
representative of the decedent within two (2) years, and the damages shall
be in such an amount as may be determined by the court or jury, including,
but not limited to, reasonable medical, hospital, funeral and burial
expenses, and lost earnings of such deceased person resulting from said
wrongful act or omission. That part of the damages which is recovered for
reasonable medical, hospital, funeral and burial expense shall inure to the
exclusive benefit of the decedent's estate for the payment thereof. The
remainder of the damages, if any, shall, subject to the provisions of this
article, inure to the exclusive benefit of the widow or widower, as the case
may be, and to the dependent children, if any, or dependent next of kin, to
be distributed in the same manner as the personal property of the deceased.

Ind. Code § 34-23-1-1. The statute provides for recovery by three different

classes: (1) spouse or dependent children; (2) dependent next of kin; and (3) service

providers, and further provides that damages shall be in such an amount as may be

determined by the court, including, but not limited to, reasonable medical, hospital,

funeral, and burial expenses, lost earnings, and the costs of bringing the wrongful death

action, including attorney fees. Id. Only the first and second classes may recover

damages resulting from lost earnings and from the non-pecuniary loss of love, care, and

affection. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911-13 (Ind. Ct. App.

1994), adopted on trans., 678 N.E.2d 110 (Ind. 1997).

In applying the wrongful death statute to compensate the deceased’s beneficiaries

for losses they suffer, the defendant should be permitted to present evidence of the

deceased’s personal consumption. If the trial court cannot deduct the deceased’s personal

9
living expenses from lost earnings, the amount of the award will necessarily exceed the

actual financial loss experienced by the beneficiaries. This result is not one contemplated

by the statute. Therefore, the proper measure of damages must include a deduction based

on the costs of this personal maintenance. Elmer Buchta Trucking, 744 N.E.2d at 943.

We note that the Fund has not presented a record that includes a transcript of the

relevant proceedings. “It is a cardinal rule of appellate review that the appellant bears the

burden of showing reversible error by the record, as all presumptions are in favor of the

trial court’s judgment.” Marion-Adams School Corp. v. Boone, 840 N.E.2d 462, 468

(Ind. Ct. App. 2006). “The party claiming the error has the burden to establish a

complete and accurate record.” Smith v. Convenience Store Distributing Co., 583 N.E.2d

735, 739 (Ind. 1992).

“Although not fatal to the appeal, failure to include a transcript works a waiver of

any specifications of error which depend upon the evidence.” In re Walker, 665 N.E.2d

586, 588 (Ind. 1996) (citation omitted). See also Fields v. Conforti, 868 N.E.2d 507, 511

(Ind. Ct. App. 2007) (stating that our court may address issues on appeal that do not

challenge the sufficiency of the trial court’s findings of fact, but any arguments that

depend upon the evidence presented at trial are waived). Here, the Fund’s failure to

provide this court with an adequate record precludes us from properly reviewing the

Fund’s claim that the trial court clearly erred in failing to consider evidence of Clark’s

personal consumption and in its finding of damages for lost earnings.

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 III. Conclusion

For all of these reasons, we conclude that the trial court did not exceed its

authority on remand. We further conclude that the trial court did not clearly err in its

award of damages for lost earnings.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.

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