Carroll v. Statesman Insurance Co.
493 N.E.2d 1289
Ind. Ct. App.
1986
Check Treatment

*1 appellant review is whether voluntarily consented to the search.

The voluntariness of a ques consent is a

tion of fact to be determined from all the State,

circumstances. Brames v. at present case,

255. In the the State Police

officer read the consent to search form to

appellant, asked if any questions he had

and specifically told him that he was not

required sign the form. Appellant clear

ly and unequivocally acknowledged his

understanding and then willingly cooperat

ed.

In light circumstances, this Court appellant's

finds that given consent was and therefore the consent to

voluntarily

search was appellant also valid. Since vol-

untarily search, consented to the police required

were not to obtain a warrant and proper. search was

For all the reasons stated above the con-

viction is affirmed.

Affirmed.

STATON, P.J., GARRARD, J., con-

cur.

Gina Louise CARROLL and Albert B.

Carroll, Appellants,

(Plaintiffs Below), COMPANY,

STATESMAN INSURANCE (Defendant Below).

Appellee,

No. 3-485 A 86.

Third District.

June *2 Oberfill, Palmer, May, Helling

Robert J. Bend, Iemma, Lorber, Anthony South J. & Killoren, Elkhart, appellants. for Glenn E. Brown, Tamulonis, E. Peter G. Michael ap- Kightlinger Gray, Indianapolis, for & pellee.

HOFFMAN, Judge. Plaintiffs-appellants Gina and Albert Carrolls) (the appeal an adverse Carroll damage denying punitive their jury verdict Compa- against Insurance claim Statesman (Statesman). compensato- ny The Carrolls' prior to damage disposed of ry claim was judg- through summary on trial an award ment. appeal this dis- relevant to

The evidence operat- that a restaurant owned closes damaged by heavily by ed the Carrolls was of the fire April 1977. At the time fire through insured States- the restaurant was building, man, damage against to the interruption. contents and business Payment of the insurance of an arson inves- delayed initially because Statesman, tigation and later because agree the amount parties could not on investigation into the The of the loss. discontinued source of the fire was After the appraisals, independent parties obtained umpire. to an submitted the matter was ap- umpire agreed with the Carrolls' The proper praisal $106,518.88 The and awarded standard governing the for dam- age $125,000.00 building, damage assessment damages was an $57,756.28 to the contents and for business nounced in Travelers Indem. Co. v. Arm interruption. strong Ind., and recently reaffirmed in Orkin Extermi umpire's award for contents and Co., nating (1986),Ind., Inc. v. Traina *3 interruption paid by business was States- Supreme Our Court in man; however, Statesman tendered a check stated, Travelers for less than one half of the award for the damages should not be "[Plunitive allow- building. July In the Carrolls insti- upon able evidence that is merely consist- tuted suit to recover the balance of the hypothesis ent with the malice, fraud, of umpire's and punitive damages award gross negligence oppressiveness. or alleging bad faith in Statesman's refusal to Rather some evidence required should be pay the claim. In the trial that is inconsistent hypothesis with the granted court the Carrolls' motion for sum- that the tortious conduct was the result mary judgment as compensatory to dam- fact, a mistake of law or honest error ages. judgment was entered for the judgment, over-zealousness, neg- mere Carrolls for the umpire's balance of the ligence or other such noniniquitous hu- interest, award, plus Only the issue of failing." man punitive damages trial, remained for which 442 N.E.2d at 362. resulted in a verdict for in Statesman De- cember 1984. Further, punitive damages award of must be established by clear and convine- appeal, On the Carrolls raise five issues ing evidence upon and is based finding for review: the complained conduct of "was so | (1) whether the trial court erred in ex- requires obdurate that punishment] [it cluding testimony by Dr. Martin general the benefit of the public." Orkin, Blinder regarding the effects of supra, 486 N.E.2d at 1022. Statesman's conduct on the Carrolls The ground Carrolls' first for error is general public; and the upon based the trial court's determination (2) whether the trial court in erred in- psychiatrist, Blinder, that a Dr. Martin structing jury the that Statesman had testify regarding could not the effects of duty pay no insurance upon Statesman's conduct the Carrolls or co-insured; an innocent the type effects of that of conduct the (8) whether the trial court erred in in- general public. opposing In testimony, the structing the that Statesman argued that it was irrelevant to entitled presumption was to a that it punitive damages preju- and that it was good acted faith and whether re- dicial. peated regarding the Car- The testimony trial court ruled that the proof rolls' burden of prejudicial; compensatory damages was relevant to but (4) the whether trial court erred in re- competent punitive was not evidence as to fusing to reread a preliminary in- damages. expressed The trial court some struction which contained the conten- willingness accept testimony regarding parties tions of the as a final instruc- public if harm it could tailored to the requested by Carrolls; tion when area where fire occurred and where the * Indiana, resided, Elkhart, Dr. (5) whether the trial court erred in re- practice Blinder's was limited to California. fusing to instruct testify regarding Because he was unable to pro- Statesman had a Elkhart, public solely the effects on the ceeds of the insurance within testimony Dr. Blinder's was inad- appraisal. according missible to the trial court. conduct, wrongful provide damages requi- is to future goal aspects deterring relevancy site to render Dr. Blind- public interests serve testimony er's admissible. Given that the in the future wrongful conduct relevant, testimony was Statesman com- similarly situated.1 wrongdoer and others plains prejudicial. that it was 358; Travelers, 442 N.E.2d at Ver Sharp Ins. Co. et al. v. non Fire & Cas. rule, general As a admission of mar 264 Ind. ginally potential relevant evidence which is impact of such conduct 180. The adverse ly prejudicial lies within the sound discre is not public interests limited on Rosenogle tion of the trial court. Gates v. persons bringing community in which Ind.App., 452 N.E.2d 471. Dr. complaint reside. testimony Blinder's was direct on evidence punitive damages. an essential element of testimony Blinder's could have Dr. such, more than As the evidence was mar factors: that actual harm established two ginally relevant and its relevance out *4 the Statesman's was caused to Carrolls weighed prejudice any to Statesman. conduct; general pub the and the harm to Additionally, argues any in the that lic if such conduct were continued Statesman the no cases deter error was harmless because Carrolls future. Because Indiana present not can did sufficient evidence meet mining type the of evidence which be proof convincing standard of to establish adverse effects on the the clear used Travelers, A found, supra. set out in review of general public could be a review of conflicting the record discloses evidence jurisdictions is instruc decisions from other subject interpretation by which was the tive. jury. ruling allowing admission of Our (1982), Kan.App.2d Taylor In 7 Lynn v. finding evidence that as additional belies 369, 131, 136, of 642 P.2d the Kansas Court present of the did not a matter law that the extent of the determined convincing clear and evidence. injury proper subject inquiry is a of when Next, challenge the tri damages. Similarly, the Carrolls assessing punitive the jury al court's instruction to the that Kentucky Appeals noted that the had no insurance damages recovery amount of proceeds to an innocent co-insured. The consideration cannot be determined without jury that: trial court instructed the injury. Hensley of the seriousness Ford, (1974), Ky.App., AND v. Paul Miller Inc. THE FACTS CIRCUM "UNDER CASE, THE DE STANCES OF THIS In recent deci 508 S.W.2d two (1985), Ala., sions, FENDANT, v. Ammons STATESMANINSURANCE Roberson COMPANY, HAD NO LEGAL DUTY 957, 961, 477 So.2d and Todd v. United Ala., (1983), TO PAY ANY POR America OR OBLIGATION Steelworkers of MARITAL TION OF CLAIM TO ONE 889, 893, Supreme So.2d the Alabama puni PARTNER WHILE IN that a should assess OR BUSINESS Court found THE MARITAL damages upon enormity "the of VESTIGATING OTHER based tive PARTNER CONCERN wrong upon plaintiff, inflicted to OR BUSINESS necessity preventing a ING SUSPICIOUS CIRCUMSTANCES gether of with AN INSURANCE wrong being committed in the WITH RESPECT TO similar from Todd, MADE ON JOINTLY OWNED supra, 441 So.2d at 893. CLAIM future." PROPERTY." coupled jurisdictions, in other The views previous opinions by punitive damages as Pursuant to two purpose with cases, that is to deter Court, stated in Indiana the instruction was erroneous.2 this argu- purpose refutes Statesman's why 1. The stated It is somewhat difficult to determine vice-presi- Statesman's goal punish is to for the exact act ment that the investiga- that depending upon dent, Vernon testified complained whether that act Day, any claim for arson was discontinued tion of the general public. any had adverse effect on approximately five months af- In American Economy Ins. Co. Liggett v. actly comport with' the language used in (1981), App., Ind. Orkin, this Court the instruction was not erroneous. adopted the trial court's decision that un Also three, under issue the Carrolls less an insurance specifically ex contend that the instruction unduly empha cludes coverage any once party poli sized their proof, burden of in that the jury cy deliberately loss, causes the an innocent was advised in separate four instructions co-insured is entitled to recover. The party on the Carrolls' burden proof. In Perry presumed who was to have caused the loss Goss Ind. in American perished Economy fire; in the Supreme our Court noted thus, obviating the need to fashion a reme that some repetition of instructions will dy which would not benefit the wrongdoer. occur and they are not erroneous un specific That question was less repetition addressed in is so frequent and emp hatic Fuston v. National impress as to Mut. Ins. Co. with a particu Ind. phase 751. This lar Court cited the law. Two of the four approvingly a decision from juris- another instructions set out the clear and convine- - finding diction it would evidence against standard announced in Travel- public policy ers, deny any supra. recovery to 'Two of the instructions ex party innocent panded upon upon based marriage to a standard. The instruc guilty co-insured. tions could be repetitive considered and in all likelihood could be consolidated; how appeal, On this Court must assume ever, they do appear not to reach the de that an instruction based an incorrect *5 gree of emphasis undue set out in Perry, statement of the law result, influenced the supra. No error occurred. unless a review of the evidence reveals that The Carrolls' fourth predi issue proper a instruction could not have cates error on the trial court's refusal to changed judgment. Zimmerman v. reread a preliminary instruction, which con (1982), Moore Ind.App., 441 N.E.2d tained the parties, contentions of the as a 693. Whether the Carrolls have demon final instruction request after a was made strated harm requiring reversal need not Carrolls, by the Ind. Procedure, Rules of be addressed because reversal and remand Trial 51(A) Rule states: for a new trial is required under dispo "General Instructions at Commencement sition of the first issue. In the eventuality of Action. When the jury has been trial, a new the erroneous instruction sworn the court shall writing instruct in should not be as trial, to the issues for the burden of The third issue by raised the Car- proof, the credibility witnesses, and questions rolls propriety of an instruc the manner of weighing the testimony to tion which allowed Statesman a presump be received. party Each shall have rea tion that it good acted in faith. Our Su sonable opportunity to examine such in preme recently Court stated Orkin that structions and specific state his objec a defendant is entitled to an instruction tions thereto out presence of the of the purpose "'that the punitive damage] [a and any before party has stated his award is not to reward plaintiff but to case. The may court of its own motion penalize punish or defendant, and, for the if requested by party, either shall public good, and that the pre defendant is reread to the jury all any part or of the sumed to be innocent of charge until given instructions so along with the oth proven guilty by clear and convincing evi er given instructions to the jury at the Orkin, dence." supra, 486 N.E.2d 1024. close of the case. parties shall be Although the given instruction did not ex- given reasonable opportunity to submit ter the fire. fully The claim paid was not until party claim that either committed arson. years fire,

four apparently after the any without 1294

requested prior instructions to the swear- Atlas, partiality. collusion or jury, object Ind.App. instructions at 309 N.E.2d at 813. Fur requested proposed given." ther, or policy pro the clause in the Carrolls' payment days vided for of a claim within giving The rule prelim mandates the of a appraisal after an award. inary instruction as a final requested by party. when a Additionally, by a The instruction tendered the Carrolls party is entitled to an instruction on his stated: theory of if the case warranted case, "In this the value of the loss was presented. issues and evidence pleadings, established, under the terms of the insur- Patrol, Inc.,

Indianapolis Corp. Horse A policy, by appraisal ance an award. (1966), 519, 525, et al. v. Ward 247 Ind. appraisal an Once award has been made careful appraisal umpire, review of an insurance evidentiary record demonstrates an basis company payment must make on that for the instruction.3 (60) sixty award within under the policy. terms of the insurance Unless a Statesman relies on Terre Haute party appraisal can show that the Regional Hosp., Inc. v. Ind. El-Issa fraud, mistake, award was the result of propo 1376 for the misfeasance, prejudicial defect, or other party specifically object sition that a must the amount of the award cannot be con- prior giving objectionable of an in sufficient, tested. It is not to contest the However, party spe struction. need not appraisal award, to show that some other cifically object to the refusal of a tendered appraisal might method of have been Sparacino instruction. Ernst v. used." Ind.App. proper The instruction contained a state- contrary ment of the law and to States- argues any Statesman also er man's assertion was relevant to the issue ror would be harmless because the Carrolls of bad faith. The substance of the instruc- adequately prejudice. did not demonstrate any tion was not contained in other instruc- Prejudice presumed is when a trial court given by tion Accordingly, the court. fails to follow a mandate of the trial rules. *6 refusing trial court erred in the instruction. (1981), Ind., Otte v. Tessman 426 N.E.2d judgment is reversed and remanded 660, 661; (1983), Ind. Armstrong v. Lake pursuant for a new trial to the dictates of Consequent 1155. this decision. ly, in the trial court committed error re Reversed and remanded. fusing preliminary to reread the as a final instruction. STATON, P.J., concurs. Finally, urge that the GARRARD, refusing J., trial court erred in to instruct the concurs in result with duty pay opinion. that Statesman had a policy of the insurance within 60 GARRARD, Judge, concurring in result. appraisal. of the In Atlas Constr. I concur in the result reached Ind.App. Co. v. Ind. Ins. Co. 3 majority agree I because that harmful er- this Court con ror was committed when the court refused policy provision to that identical strued concerning instruct the found issued to the Carrolls. appraisal award. umpire The Court determined that once the award, appraisal agree issued an it was not sub I do not that it error to ex- fraud, change ject testimony regarding the court absent clude Dr. Blinder's expressed opinion 3. No is as to the situation substance of the instruction is in oth- embraced support where the evidence does not reread- er instructions which are instruction, preliminary or where the effect of Statesman's conduct compensatory damages

Carrolls. Carrolls' issue,

were not psy- and the individual

chological impact upon them was not an damages. agree

element I general

more opinion testimony might be

admissible, but find no abuse of discretion

in the trial court's action here.

DEPARTMENT RE- OF NATURAL

SOURCES, Indiana, State of (Defendant

Appellant Below),

Sherry EVANS, Appellee

(Plaintiff Below).

No. 4-1283

Fourth District.

June