dissenting.
I respectfully disagree Wit? the majority's holding that a party's failure to mitigate damages after an accident can be used to allocate fault between the parties. Indiana Code § 84-6-2-45 provides:
"Fault", for purposes of [the Indiana Comparative Fault Act], includes any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforce able express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.
Under the language contained in the statute, I would hold that only a party's acts or omissions before the accident constitute the type of mitigation of damages that can be used by a trier of fact to allocate fault.
In reaching this conclusion, I follow the holding reached by another panel of this Court in Deible v. Poole, which was adopted by the Indiana Supreme Court. In Deible, this Court held "that mitigation of damages is a defense to the amount of damages a plaintiff is entitled to recover after the defendant has been found to have caused the tort. Mitigation of damages is not a defense to the ultimate issue of liability." Deible v. Poole, 691 N.E.2d 1313, 1316 (Ind.Ct.App.1998), adopted on transfer, 702 N.E.2d 1076 (Ind.1998). Therefore under Deible, "fault" is limited to only those acts or omissions committed by parties and nonparties that contribute to the accident or the initial injury. See Deible, 691 N.E.2d at 1316. "Fault" would include a person's unreasonable failure to avoid an injury or to mitigate damages after the fault of another but before the conclusion of the accident. However, onee the accident is concluded, any additional acts or omissions on the part of the injured party go to the amount of damages the injured party should recover, not the ultimate issue of lability. See id. "Otherwise stated, if the act of the injured party does not operate in causing the injury from which all damages ensued, but merely adds to the resulting damages, its only effect is to prevent the recovery of those damages which reasonable care would have prevented." Id. (quoting 22 AM. JUR.2D Damages § 492 (1988)). Not only do I find that we are bound by the decision adopted by our supreme court, I believe that the Deible decision is fully consistent with the language and intent of the Indiana Comparative Fault Act.
In defining "fault," the Indiana General Assembly inserted the phrase "mitigate damages" in the clause that reads "unreasonable failure to avoid an injury or to mitigate damages." Ind.Code § 34-6-2-45. By pairing the phrases "mitigate damages" with "avoid injury" in the same clause, the General Assembly provided that "fault" only includes an injured party's unreasonable failure to take actions leading up to an accident that would mitigate the extent of the party's initial injury or avoid the injury all together. Thus, as our supreme court found in adopting Dei-ble, the Indiana Comparative Fault Act does contain a temporal limitation on when a plaintiff's act or omission can be considered fault.
I recognize that there are two definitions of "mitigate damages." The first definition of mitigation deals exclusively with acts or omissions that occur before an accident or initial injury. An example of this type of mitigation is a plaintiff's failure to attempt to slow down her car to avert an accident after observing a defendant run a stop sign. A plaintiff's failure to mitigate damages under the first definition goes to the issue of ultimate lability and fault. The second definition of mitigation encompasses acts or omissions that *430occur after an accident or initial injury. A plaintiff who fails to seek adequate medical treatment or continues to seek unwarranted medical treatment after the accident takes place is an example of this type of mitigation. A plaintiff's failure to mitigate damages under the second definition only goes to the amount of damages the plaintiff should receive. In drafting the Indiana Comparative Fault Act, I believe that the intent of the General Assembly was to define "fault" using the first definition of mitigation, that is, an injured party's acts or omissions before an accident that fail to minimize the party's initial injury.
The majority's holding turns on its head case law both before and after the enactment of the Indiana Comparative Fault Act regarding the effect of a plaintiff failing to mitigate her damages. Under the majority's holding, mitigation of damages always becomes a fault issue. Therefore, under the majority's theory, if the plaintiff's failure to mitigate damages constitutes over fifty percent of the total damages, regardless of whether that failure caused the initial injury or merely exacerbated it, then the plaintiff would not recover any award. Ind.Code § §4-51-2-6. Consider the example where a defendant rear-ends a plaintiff and is 100% liable for the accident. If the plaintiff has $100,000 in damages but the defendant proves that fifty-one percent of those damages resulted from the plaintiff not returning to work after the accident, then under the majority's interpretation, the plaintiff would be entitled to zero damages, not $49,000. This was not the intent of the legislature.
Tn this case, Kocher repeatedly admitted that he was entirely responsible for the accident and that the only issue before the jury was damages. Tr. p. 34-35, 111, 124-125, 274. Kocher's mitigation defense was that Getz failed to mitigate her damages by taking a part-time job after the accident and making no effort to replace her lost income after she then quit that job. Appellant's Br. p. 3, 6. This is not the type of "mitigate damages" referred to in the definition of "fault" found in Indiana Code § 34-6-2-45. Kocher's mitigation of damages defense went to Getz's acts or omissions after the accident was sustained; and therefore, it only went to the amount of damages that Getz could recover, not the ultimate issue of fault. Because fault was not an issue in this case, I find that the trial court acted within its discretion in refusing to give Kocher's instructions on comparative fault; and therefore, I respectfully dissent.