Attorneys for Appellant Attorneys for Appellee Attorney for
Amicus Curiae
Josef Musser Mark C. Guenin Indiana Trial
Lawyers Assoc.
Kyle C. Persinger Emily C. Guenin-Hodson,
Mark A. Scott
Spitzer Herriman Stephenson Graduate Legal Intern King, McCann
& Scott, LLP
Holderead Musser & Conner, LLP Guenin Law Office, P.C.
Kokomo, Indiana
Marion, Indiana Wabash, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 35S02-0312-CV-602
Kevin Kocher, Appellant (Defendant
below),
v.
Alva Lynne Getz, Appellee (Plaintiff
below).
_________________________________
Appeal from the Huntington Circuit Court, No. 35C01-9802-CP-43
The Honorable Mark A. McIntosh, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 35A02-0206-
CV-436
_________________________________
March 30, 2005
Dickson, Justice.
In this automobile-van collision personal injury case, the trial
court refused instructions the defendant submitted on comparative fault,
which would have permitted a jury to consider mitigation of damages for
purposes of fault allocation. The jury found for the plaintiff. In a
divided opinion, the Court of Appeals reversed.[1] We granted transfer,[2]
and now affirm the trial court.[3]
I.
The principal issue presented by this appeal is whether the defense
of mitigation of damages under the Indiana Comparative Fault Act[4] (the
"Act") is considered as comparative fault in determining liability. This
identical issue was addressed and decided in the Court of Appeals in Deible
v. Poole,[5] which we expressly adopted.[6] In the present case, a
different panel of the Court of Appeals majority declined to follow Deible.
At the jury trial in this motor vehicle collision case, the defendant
admitted that he failed to yield the right-of-way, but denied that the
accident caused significant injury or damages to the plaintiff. He
asserted that the plaintiff failed to mitigate her damages on grounds that
she made insufficient efforts to find replacement part-time employment at a
point in time after the accident. The defendant tendered instructions
under which the jury would make an allocation of fault under the Act. The
trial court refused the instructions, but did instruct the jury that the
plaintiff had the burden of proving damages, that the defendant contended
the plaintiff "was at fault for failing to mitigate her damages," and that
he claimed the plaintiff's "failure to mitigate her damages should reduce
or preclude [her] recovery of damages."[7] The trial court also explained
to the jury that "[p]ersons claiming injury as a result of wrongs of others
must use reasonable care, commensurate with their age and experience, to
mitigate or minimize the damages resulting from a wrong, and not to enhance
such damages."[8]
Under the Act, proportional liability is determined by the fact-
finder allocating a percentage of "fault" to the claimant, the
defendant(s), and any "nonparty."[9] "In assessing percentage of fault,
the jury shall consider the fault of all persons who caused or contributed
to cause the alleged injury, death, or damage to property . . . ."[10] If
the claimant's fault is fifty percent or less, the fact-finder determines a
verdict by multiplying the percentage of fault of each defendant by the
total amount of the claimant's damages.[11] "Fault" is specifically
defined for the purposes of the Act to include:
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
enforceable express consent, incurred risk, and unreasonable failure
to avoid an injury or to mitigate damages.[12]
In Deible, the defendant did not dispute the cause of an automobile
collision but challenged the necessity of much of the plaintiff's medical
treatment and the extent of her damages. Deible stated: "The issue before
us in this appeal is whether the defense of failure to mitigate damages may
be used as a defense to the ultimate issue of liability or whether it
simply concerns the amount of damages the plaintiff is entitled to recover
when liability has been determined."[13] Answering the question raised,
the court stated:
Failure to minimize damages does not bar the remedy, but goes
only to the amount of damages recoverable. 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.[14]
Rejecting the defendant's argument that the mitigation of damages defense
was expressly included within the statutory definition of "fault," the
court concluded: "We hold 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."[15]
As pointed out in Deible, the obligation of a plaintiff to mitigate
damages customarily refers to the expectation that a person injured should
act to minimize damages after an injury-producing incident.[16] This
concept is different from our statutory process of assessing percentage of
fault which considers "the fault of all persons who caused or contributed
to cause the alleged injury, death, or damage to property."[17] Deible
explains that "[f]ailure to minimize damages does not bar the remedy, but
goes only to the amount of damages recoverable."[18]
We observe that in the six years that have elapsed since Deible, the
legislature has not modified its definition of "fault."
The trial court's refusal of the defendant's proposed comparative
fault instructions was consistent with our express adoption of Deible and
should have been affirmed by the Court of Appeals. We agree with Judge
Vaidik's dissent.[19] In cases arising under the Act, a defense of
mitigation of damages based on a plaintiff's acts or omissions occurring
after an accident or initial injury is not properly included in the
determination and allocation of "fault" under the Act.[20] The phrase
"unreasonable failure to avoid an injury or to mitigate damages" included
in the definition of "fault" under Indiana Code § 34-6-2-45(b) applies only
to a plaintiff's conduct before an accident or initial injury.[21] An
example of such unreasonable failure to avoid an injury or to mitigate
damages would be a claimant's conduct in failing to exercise reasonable
care in using appropriate safety devices, e.g., wearing safety goggles
while operating machinery that presents a substantial risk of eye damage.
While a plaintiff's post-accident conduct that constitutes an
unreasonable failure to mitigate damages is not to be considered in the
assessment of fault, a plaintiff "may not recover for any item of damage
that [the plaintiff] could have avoided through the use of reasonable
care."[22] The resulting damages, excluding any caused by a plaintiff's
post-accident failure to use reasonable care, are then to be multiplied by
the defendant's percentage of fault to determine the verdict to be entered
under the Act.[23]
The trial court did not err in refusing the defendant's tendered
comparative fault instructions.
II.
Separate from his claim of instruction error, the defendant contends
that the trial court
erroneously ordered an appeal bond in the full amount of the judgment plus
interest, arguing that the defendant "had satisfied all but the insured
portion of the judgment."[24]
The determination of the amount of an appeal bond lies within the
discretion of the trial court, and will not be disturbed absent an abuse of
discretion.[25] The defendant does not provide any transcript of the trial
court's hearing on his motion to stay execution and request for bond less
than the full amount of the judgment. We have only the assertions in the
parties' filed motions, responses, and attachments. Upon this record, we
cannot find that the trial court abused its discretion.
We understand the defendant to be claiming that the plaintiff's
agreement not to execute or otherwise enforce the judgment against the
defendant personally, retaining the right to pursue the defendant's
liability insurance company, constitutes a satisfaction of the judgment.
But the entire judgment remains unpaid. There exists only the plaintiff's
covenant not to execute on the judgment personally against the defendant
but reserving the right to recover the judgment from the defendant's
insurance company. This is not to say that, with our decision today
affirming the judgment for damages, the plaintiff is necessarily entitled
to recover the full $250,000 proceeds of the supersedeas bond at this time.
That issue, and the respective rights of the plaintiff, the surety, and
the insurance company in the event the plaintiff is unsuccessful in
recovering more than coverage limits in her prosecution of the assigned
claim against the defendant's insurer, involve issues and parties not
presented in the case now before this Court.
We decline to find error in the trial court's order granting a stay
of execution conditioned upon the filing of an appeal bond in the full
amount of the judgment.
Conclusion
We affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Kocher v. Getz, 787 N.E.2d 418 (Ind. Ct. App. 2003).
[2] 804 N.E.2d 760 (Ind. 2003).
[3] As part of an experiment, this opinion departs from the usual
style of citation and footnote use. Cf. Indiana Appellate Rule 22.
Generally adhering to the footnote recommendations of Bryan Garner, The
Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text
are placed in footnotes, and substantive matter that otherwise might appear
in footnotes is included in the text. This revised format does not meet
with universal approval. See Richard A. Posner, Against Footnotes, 38
Court Rev. 24 (Summer 2001). The public, the bench, and the bar are
invited to comment to the Supreme Court Administrator, 315 State House,
Indianapolis, IN 46204.
[4] Ind. Code § 34-51-2.
[5] 691 N.E.2d 1313 (Ind. Ct. App. 1998).
[6] Deible v. Poole, 702 N.E.2d 1076 (Ind. 1998).
[7] Appellant's App'x. at 40.
[8] Id. at 44.
[9] Ind. Code §§ 34-51-2-7, -8.
[10] Id.
[11] Id.
[12] Ind. Code § 34-6-2-45(b) (emphasis added).
[13] 691 N.E.2d at 1315.
[14] Id. at 1316.
[15] Id.
[16] Id. at 1316.
[17] Ind. Code §§ 34-51-2-7, -8.
[18] Deible, 691 N.E.2d at 1316, quoting 22 Am. Jur. 2d Damages § 497
(1988).
[19] Kocher, 787 N.E.2d at 429-30 (Vaidik, J., dissenting).
[20] Id. at 430; Deible, 691 N.E.2d at 1316.
[21] Kocher, 787 N.E.2d at 429.
[22] Indiana Pattern Jury Instruction No. 11.120 (2003).
[23] Ind. Code §§ 34-51-2-7, -8.
[24] Appellant's Br. at 10.
[25] Guardianship of C.M.W. v. White, 755 N.E.2d 644, 651 (Ind. Ct.
App. 2001); Kennedy v. Jester, 700 N.E.2d 1170, 1172 (Ind. Ct. App. 1998);
Dandy Co., Inc. v. Civil City, Etc., 401 N.E.2d 1380, 1385 (Ind. Ct. App.
1980).