Crabtree Ex Rel. Kemp v. Estate of Crabtree

Jacelyn And Crab Alicia CRABTREE By Kimberly

tree, Their Next Friend (Plaintiffs

KEMP, below), Appellants CRABTREE, L. OF Jackie

ESTATE below). (Defendant

Jr., Appellee

No. 55S01-0409-CV-431.

Supreme Court Indiana. 9, 2005.

Nov. Martinsville, Oliver, Ap- for A.

Stephen pellants. Lahn, Appel- Indianapolis, M.

Séth lee.

BOEHM, Justice. injured plaintiffs in this case were in a car driv- passengers in an accident as intoxicated. by en their father while he was causes, father of unrelated After their died his brought children this suit hold that Indiana law does not estate. We permit also hold that

a decedent's estate. We the final policy, under the terms of this damages includ- judgment should exclude already in the verdict that were satis- ed the defendant's by payments fied under expenses coverage. History Facts and Procedural Jacelyn pas Alicia and were Crabtree by the car driven their fa sengers when ("Crabtree") Crabtree, Jr., ther, Jackie in an was involved accident. Crabtree's alcohol breath test indicated .15% blood investigating officer's re content and the at fault port concluded that Crabtree was yield oncoming vehicle. for failure to to the by The car was insured Allstate Insurance made Company,1 and Allstate Payments coverage under the Medical 24(A) any party. Appellate provides: parties, but Rule 1. The was issued to third Rules, using provided these all apparently the car with "Unless otherwise Crabtree was Appellant's Appen- other documents tendered to the Clerk for permission. the owners' filing upon parties all who Committee has must be served dix at 80-82. Our Rules Appellant's Summary Court have filed an Case or an called to attention an order of the our 16, any per- appearance 15 or Cas. Ins. under Rules in Theobald Hartford status, seeking party any persons sons Co., (Ind.Ct.App.2002), trans. 762 N.E.2d 785 excep- required by denied, statute to be served." The reports has been the Committee providing appendix need not be appellant has no obli- tion that the taken to hold that an attorney by Ap- general applies gation appendix required served on the to serve the parties appeal. appeals To the extent Theobald criminal Rule 50 on other pellate suggests appellant's appen- that service of the 49(A), That Pursuant to Rule is not correct. required supplement is not in civil appendix required to be filed dix or cases, is disapproved. appellant supplements be filed it . $8,203.05 for Alicia and de novo the trial court's order dismissing amounts $3,648.75 Jacelyn.2 claim because it in pure question volves a of law. Niksich v. later, year Approximately one Crabtree Cotton, (Ind.2004); 810 N.E.2d unrelated to the accident. died causes Inc., Randolph Hosp., v. Methodist 793 children, mother, Kimberly their The 231, (Ind.Ct.App.2003), N.E.2d 234 trans. Kemp, compen- Crabtree's estate for sued denied. will affirm We the trial court's satory punitive damages. The trial grant of a motion to dismiss for failure to motion granted court Estate's to dis- state a claim if complaint states a claim, punitive damages miss the and the which, set of proved, facts even if do not compensatory damages claim for was tried support requested the relief in the com jury, resulting to a in an award of Reichhart, plaint. City New Haven v. $11,500.00 to each child. On the Estate's of (Ind.2001). 374, motion, 748 N.E.2d 377-78 judg- the trial court reduced the by the that ments amounts Allstate had plaintiffs The cite Indiana's Sur paid pro- to the children's medical service Statute, chapter vival Indiana Code 34-9-3 Payments viders under the Medical cover- (2004). 1 Section of the Survival Statute age of policy insuring the car that designed to overrule the common law driving. Crabtree was evaporated rule that a claim with the death plaintiffs appealed, challenging The of the defendant. It provides that if "an trial court's dismissal of their claim for individual ... who is liable a cause of punitive damages and also the reduction of dies, action the cause of action survives their for payments. awards medical The 34-9-8-1(a). ..." I.C. Based on this Court of punitive held statutory language, contend death, damages claim survived Crabtree's punitive damages their claim for sur and that the medical were not vives Crabtree's death. section This does payments" per "advance under the statute punitive not address the issue of damages mitting reduction of award to the extent way one or the other. It contains no payments by of advance an insurer. Rath explicit punitive damages. mention of er, Allstate was entitled to be reimbursed This implicit itself can be viewed as an subrogee as a for the medical rejection of punitive damages, which ordi Jacelyn, made to Alicia and required which narily statutory are a recoverable under proportionate that it bear a share of the only by explicit statutory cause of action litigation collecting children's Rights authorization. Ind. Civil Comm'n from the Estate. A.C. v. Estate Crab (Ind.1999). Alder, 632, v. 714 N.E.2d 638 tree, 433, 438, 809 N.E.2d 442 (Ind.Ct.App. importantly, More its terms this statute 2004). granted We transfer. Crabtree v. preserves a "cause of action." There is no Crabtree, (Ind.2004). 822 N.E.2d 977 action" punitive damages. "cause of Damages I. Punitive damages remedy, Punitive are a separate cause of action. Allstate Ins. plaintiffs sought Co. recover (Ind.Ct. Axsom, 482, punitive damages from 696 N.E.2d 485 Crabtree's estate. allegations complaint App.1998), pur We take the trans. denied. Successful purposes appeal compensatory true for of this of a review suit cause action paid gy Indianapolis. 2. The sum of the amounts Allstate Associates of The second 21, Jacelyn providers may payment, on behalf of which was made on December $3,852.75. actually According $204.00, total 2001 in the amount of have record, previous two were made to Radiolo- been omitted from calculations. eliminates the to an award of death of the tortfeasor damages prerequisite ability accomplish goal so damages. See Erie Ins. Co. v. court's punitive punitive damages are not recoverable Hickman, 515, (Ind.1993); 622 N.E.2d Pa., against the estate of a deceased tortfea-s Reading, v. Am. Cas. Co. Sullivan (Ind.1992). There is or.4 605 N.E.2d freestanding no claim for jurisdictions minority permit A re underlying of action. apart from the cause covery the tort- after Although on feasor's death. the decedent the Survival Statute is silent Because deterred, interpretation punished resort to can be neither nor point, we must damages have punitive As the Court of these courts found precedent. noted, sufficiently justified by first deterrence of oth question impression this is a of split authority engaging a of in ers from similar conduct.5 in Indiana. There is jurisdictions punitive potential to whether These courts take the view that other as from a will be deterred the knowl damages are recoverable deceased tortfeasors majority edge The view de that their estates be liable for tortfeasor's estate. majority punitive damages.6 The Some also note that punitive damages.3 nies damages punitive damages provide are additional com punitive view reasons in- wrongdoer. pensation to victims for remote punish intended to losses, damages punitive against award a See, 144, deceased Colligan, e.g., 3. Doe v. 753 P.2d 146 Gibson, 476, (Alaska 1988); estate). v. 220 Cal. Evans tortfeasor's 389, (1934); 31 P.2d Jonathan Woodner 395 Breeden, 929, (D.C.1995); Co. v. 665 A.2d 939 Evans, 395; Lohr, 4. at See 31 P.2d 522 So.2d 845, (Fla. Byrd, Lohr v. 522 So.2d 846-47 846; 408; Thompson, at 319 N.W.2d at Mar Transus, Inc., 1988); Sightler Ga.App. v. 208 Hein, 389, 196, Wyo. cante v. 51 67 P.2d 202- denied, 173, 81, (1993), S.E.2d cert. 430 81 (1937); (Second) 03 Restatement Torts of Duncan, 467, (citing Morris v. 126 Ga. 54 S.E. (1979); Barry a & 908 cmt. 1 J.D. Lee A. 1045, Rahm, (1906)); 1046 Wolder v. 249 Lindahl, (Rev. Modern Tort Law 21.35 630, (Iowa 1977); N.W.2d 632 Fehrenbacher Ed.1994); 1 James D. Ghiardi & J. John Quackenbush, 1516, F.Supp. v. 759 1521-22 Kircher, Damages Punitive Law & Practice (D.Kan.1991) law); (predicting Kansas Stew (1987 Cum.Supp.1993); § 9.10 & 25 C.J.S. 913, Cooper, art v. Estate 102 S.W.3d 916 of 125(3) (1966). Damages § 118, (Ky.2003); Levy, 47 Johnson v. 122 La. 422, (1908); Thompson So. 424 v. Estate of See, 100, e.g., Shirley Shirley, 5. v. 261 Ala. 73 (Minn.1982); 319 N.W.2d 408 400, Petroff, 77, (1954); So.2d 85 Haralson v. Fisher Sur 204, 487, Anderson, Allen v. 93 Nev. 562 P.2d veying, Inc., 1, 201 Ariz. 31 P.3d 117 114, (1977); 488-89 Jaramillo v. Providence Wash. (2001); Gordon, Estate Farrell v. 770 A.2d of (1994); Ins. Co., 337, 117 N.M. 871 P.2d 1343 517, (Del.2001); Price, Penberthy 521 v. 281 292, Wilson, Thorpe N.C.App. v. 58 293 16, 902, Ill.App.3d 216 Ill.Dec. 666 N.E.2d Blue, 675, (1982); S.E.2d 680 McAdams v. 3 352, (1996), Lippert, 356-57 Tillett v. 275 169, 490, N.C.App. 164 S.E.2d 494 1, 1158, (1996) (relying Mont. 909 P.2d 1162 Miller, 247, (citing Rippey 33 N.C. 250 v. provided on case law and statute which Gilbert, (1850)); Mongold v. Estate 114 judge jury may punitive "a or award ... Ohio 1249 32, 1245, Misc.2d 758 N.E.2d example" for the sake of to sustain a Barton, (Ohio Pl.2000); v. Ct. of Com. Morriss estate); punitive award v. G.J.D. 4, 451, (1947); 200 Okla. 190 P.2d 459-60 Johnson, 169, 1127, 552 Pa. A.2d 713 1129 254, Kilcoin, Olson-Roti v. 653 N.W.2d 260 Lavender, (1998); 470, v. 679 S.W.2d 39, (S.D.2002); Gill, Hayes v. 216 Tenn. 390 Hofer Melton, (Tex.1984); Perry 472-175 171 213, Johnson, (1965); S.W.2d 217 Dalton v. 397, 8, (1982). S.E.2d W.Va. 299 12 (1963); 204 Va. 102, 647, 129 S.E.2d 650-51 520, Artery, (Wyo. Parker v. 889 P.2d 525 3, Johnson, 340, 1995); (1984 Pa.Super. §§ 4 & 6. See G.J.D. v. 447 30 ALR.4th Supp.2005) (listing courts that have refused to (1995). 669 A.2d convenience, attorney's they exposed fees.7 At will deem themselves to that it inconsistent to possibility. least one court found To the extent the tortfeasor award to be collected allow thinks at all about the consequences of his dies, from an estate if the tortfeasor was alive tort after he recognize he will that he filed, not if complaint when the but and his obligation estate will have the after death.8 complaint was filed provide compensation full victim. If we ever encounter a case where a tort- majority believe the view is We feasor seems to have considered his own persuasive and hold that Indiana law does escape death as an from punitive damages permit punitive damages tort, incident to some intentional can we of a from the estate deceased tortfeasor. now, address that issue at that time. For purpose punitive damages The central we are content to hold that purposes punish wrongdoer and to deter him punitive damages are not served recov- misconduct, from future not to reward the ering them from a decedent. compensate plain and not to Moreover, noted, already plain- tiff. no right has enti "[The to an a right tlement award tiffs have to recover the full any amount. a claim for com damages Unlike amount of their from the dece- estate, pensatory damages, the trier of fact is not dent's and no is to entitled required punitive damages to award even a punitive damages recovery any de- might justify if the facts that an award are punitive damages fendant. The effect of a Pohle, against punish- award an estate is that the found." Cheatham v. 789 N.E.2d 467, (Ind.2003); 472 see also Stroud v. ultimately by ment will be borne the heirs (Ind.2003) Lints, 440, N.E2d 445 790 presumably wholly who are innocent of ("Neither any wrongdoing. plaintiff's think in- nor We affirmative right punitive to an of counsel has award justice by allowing thus would be done damages compensatory in addition to dam deceased's innocent to punished heirs be ages."). wrongdoing for the of the decedent. for the heirs of the decedent recognize punitive dam Concern

We here, especially significant ages may purpose punish serve a dual of where the of to ment the tortfeasor and deterrence award, fees, attorney's less would be to the punitive decedent's children. Because Intern'l, others. v. 745 Durham U-Haul generally are in- (Ind.2001) excluded from 755, N.E.2d 762 ex (citing State any coverage, pre- surance award would Stevens, 55, 59, 2 Scobey rel. v. 103 Ind. sumably pockets (1885)). come from the of Crab- 214, however, think, N.E. 216 We little, will, any, if if there is additional deterrence tree's heirs. Crabtree's there is supplied by prospect that one's estate one, is not the record. If his heirs are children, may any recovery if of punitive damages be liable for one his the net effect does not survive. in the them would funds from Most tortfeasors be take them themselves, presum pay attorney's case of an accident less fees. such as this Moreover, ably pursuant only twenty- not to statute contemplate do their own demise. all, they percent punitive damages If consider at five of a award damages against 475; nitive the estate of a tort- Hofer, Perry, 7. 679 at 299 S.E.2d S.W.2d actually punish the heirs of feasor does at 12. they the decedent much more than would be 8. Pa. See, Bates, 162, Schwab 12 D. & C.4th alive"). punished if the tort-feasor was still (Pa.Com.Pl.1991) ("the imposition pu- 165 140 go plaintiffs situation, to the children as

would In tortfeasor's insurer. seventy-five percent go payment" would to the State. is one advanced "advance as, effect, apparently 34-51-3-6. The See I.C. an interim tortfeasor's insurer would be net losers to plaintiffs successful payment potential payment down the tune of at least three-fourths damages for which the tortfeasor award, damage and the win- Pay purpose liable. The of the Advance attorney the State. ners would be their prevent ment statute is to double easy why a claim It is not to see such payment if an advance has been made. per- on should ever be asserted behalf Strecker, 100, Ind.App. See Monroe v. presumably who are the beneficiaries sons (1976). 418, N.E.2d The stat of the Estate. reducing ute also has the effect of against the defendant judgment Payments

II. Medical Payments" of the advance See I.C. amount "Advance exposure This eliminates 34-44-2-3. plaintiffs The contend that the trial against judgment the defendant whom the wrongly granted court the Estate credit (as insurer) opposed is entered to his judgments for Allstate's medi already paid by the amount the insurer. requiring than cal benefits rather subrogation rights, Allstate to seek which Statute, Subrogation Indiana Code give would benefit 84-53-1-2, provides section that: provisions cost allocation of the insurer claiming subrogation An insurer or re- subrogation They calculate the statute. rights chapter imbursement under this $2,288.93. difference to be pay, shall out of the amount received Resolution of this issue turns on the insured, pro the rata the insurer's interplay provision poli- between the necessary share the reasonable and cy statutory provisions. and two The "Ad- asserting costs the third expenses and statute, Payment" vance Indiana Code see- party claim. These reasonable and nec- 34-44-2-3, provides: tion essary expenses costs and include and If plaintiff it is determined that the is following: are not limited to the entitled to in an described recover action (1) depositions. The cost of chapter: in section 1 of this (2) fees. Witness the defendant introduce evi- (38)Attorney's fees to the lesser of: made; any payment dence of advance (A) amount contracted the thg and portion insured for the insured's (2) the court the award shall reduce claim; the or to the plaintiff extent the (B) thirty-three per- and one-third paid by

award includes an amount the (834%) cent of the amount of the advance settlement. payments" "Advance are defined to include designed to This statute also is address the plaintiff by the made plaintiffs normal situation where the in- defendant or the defendant's insurance payments coverage surer has medical and company. typical I.C. 34-6-2-3. In the Hability the defendant's insurer has cover- injured in plaintiff case the is one vehicle age. judg- recovers a med- When the tortfeasor is another. The expenses for both medical and other payments coverage supplied by ical is the ment insurer, damages, plaintiff's who has plaintiff's insurer of the car and the rele- liability coverage already paid expenses, vant is insured for medical is enti- Specifically, pay if the subrogee, Payment statute. that amount as to recover tled payment" as an "advance of the cost of ment is treated bear its share also should but 34-44-2-3(2) from the defen recovering expenses those section then Indiana Code require would the court to "reduce I.C. 34-53-1-2. dant. award to the to the extent that the policy on the car Crab- The insurance paid by award includes an amount pay- driving includes tree was payment." respond Plaintiffs advance injured coverage passengers ments of their medical payments includes to fault. It also regard without benefits," to party were "first insurance (as a coverage person for Crabtree liability entitled, they payments which were permission) with the owners' operating made a defendant as the defendant's The rele- liability parties. to third reason that insurer. The policy pro- provision vant the insurance l Payments coverage Automobile Medical vides: " person(s) that an "insured means: states Liability Limit of any person bodily . other who sustains code ok took injury your in ... insured auto while while duplication no There will be by you any as a vehicle ... or being used under the ... Automobile Medical made your permission." Be person other with policy. All Payments coverage of this driving per cause Crabtree was with the to or on behalf of payments made owner, Jacelyn mission of the Alicia and coverage will con- person under this be they persons" were "insured under claim to that sidered as advance Payments cover Medical Automobile Any damages under person. payable they correct were age. They are Liability Bodily Injury Insurance this does not make persons," but "msured coverages of this Uninsured Motorists contract. parties them to the insurance by that will reduced amount. Rather, paid were the medical concluded "Allstate The Court of contract between Allstate because of a has not party appeal not a to this There is a debate whether the owners. pres- to intervene sought permission plaintiffs the injured passengers, such as did not ent the Estate [and] action.... case, third-party in this are beneficiaries at issue." A.C. pay payments the medical policy" "entitled under a or otherwise Crabtree, N.E.2d at 442. v. Estate from the defendant's contractual benefits Therefore, Appeals the Court of reasoned Liberty Donald v. Mut. Ins. insurer. See by cannot claim an offset rea- the Estate (7th 1994); Co., 474,482 Cir Cain 18F.3d relationship the contractual between son of (Ind.Ct. 41, 44 n. 1 Griffin, N.E.2d the and Allstate. The plaintiffs Court granted. Regardless of App.2005), trans. also concluded that the contract issue, that it is clear the resolution this provision Subrogation conflicted with the in injured a car owned and person Statute, and was ineffective. therefore to the by party else not a someone sured provides pay- contract that medical The if they And even were owner's policy.. ments "shall be considered" to be an ad- parties third-party beneficiaries that payment. vance The Estate contends contract, of the contract would the terms policy payments under this the medical claim. any limit pay- plaintiffs made to the were advance any that amounts policy provides and The ments made on Crabtree's behalf person for a under the medical against judgment paid the to or therefore credit to the Advance appropriate pursuant the coverage operate to reduce payments damages payable person payments to that amount of its medical from it- limits Rather, liability coverage Payments the and are to the Advance under be self. stat- payments. pay- applies treated advance These ute in this case and as resolves problem. Payment ments are "to be considered" as advance- The Advance statute liability award, against any jury ments future for the reduces the amount of the injuries plaintiffs' might imposed Subrogation that therefore takes the Statute upon play. judgment the defendant or the defendant's lia- out of Once the is reduced In bility company. by payments, insurance this case the amount of the medical plainly paid by longer any subrogee, medical were there is no claim as policy covering the car that no conflict policy insurance between the and the driving. Subrogation Crabtree was The statute defin- Statute. ing payments require advance does not sum, In we think that the terms any that be made under contrac- control policy here. The "Limit of obligation provides tual at all. The statute Liability" provision quoted above stated simply payment by that the defendant or any payments "will be consid company will be treated as his insurance payments" ered as advance reducing any judg- advance thus liability coverage under the of the Allstate ment to the extent that the award includes policy by "will be reduced that amount." paid amount advance agree policy provision We do not that this policy pro- see no conflict between We explained conflicts with statute. As

vision and this statute. above, if provision the contract is honored plaintiffs also contend that and the medical are advance cannot claim an offset payments, judgment Estate rea is reduced amount, Subrogation son of the Statute. right Stated and there is no to re differently, contend that cover it a second time. There is therefore Allstate, subrogee, right can claim a subrogation right no to recover portion judgment that we as amount Subrogation and the Statute is not sume play. includes for medical The contract provision, reimbursement concert expenses. statute, Plaintiffs concede that Payments All with the Advance mere liability coverage pay judg ly state's will provides duplication for elimination of Thus, plain ment Crabtree. payments duplicate to the extent medical tiffs' contentionboils down a claimthat payable amounts liability under the cover subrogation Allstate assert rights age. must its Under a permitting the insur under Indiana Code section 34-538-1-2 er to offset under medical cov liability itself as insurer. erage against payments liability under Appeals agreed, concluding Court of coverage, the insurer has the burden of the contract could not override the establishing liability judgment statute. that a actu agree Subrogation We do not the ally included the advanced medical ex applies subroga Statute here. Exercise of penses. No offset is allowed where it rights tion trigger obligation would the not does sustain this burden. See 12 Allstate, subrogee, to pay (Third): proportion Couch on Insurance Automobile ate share of collecting the amount from (West 1998). Liability Insurance 170:22 paid voluntarily. itself that it had We do It is not clear on this record whether the legislature the jury portion believe intended the intended of its verdict to Subrogation compel to Statute insurer include the medical expenses that were attorney's fees to pay previously paid recover under Allstate's medical payments coverage. I coverage. post-ver- separately The Estate's write on payments emphasize es- this issue to supporting motion and documents the Advance dict coverage Payment statute does not independently that medical tablished apply had been advanced on behalf made under the medical thereof, payments coverage the amounts but of an and automobile insur- to whether these policy. make no reference ance amounts were included the evidence be- important It is to realize that jury. by ordering But the reduc-

fore holding Court's derives from the language tion, implicitly trial court so found. policy of the insurance contract between the decedent and his automobile insurance Conclusion company, and such result would not other- The trial court's dismissal required by wise be the Indiana "Advance damages claim and also the trial court's statute, Payment" pro- Section 3 of which motion to reduce the grant the Estate's vides: ad- compensatory judgments amounts If it is determined that the is vanced Allstate on of the Estate behalf entitled to recover an action described plaintiffs' for the under in section 1 chapter [limiting of this the terms of the insurance are af- chapter damages to actions to recover firmed. injuries, death, personal wrongful or property damage, involving only and one RUCKER, J., SHEPARD, C.J., and defendant]: concur. (1) may the defendant introduce evi DICKSON, J., Part I dissents from made; payment dence advance separate opinion. in Part II concurs with SULLIVAN, J., (2) from Part I dissents the court shall reduce the award in Part extent that the separate opinion with and concurs paid by award includes an amount IL. the advance DICKSON, Justice, concurring in part added). (emphasis Ind.Code 34-44-2-8 dissenting part. purposes Payment For the of the Advance because, part I dissent in on the issue of Statute, payment" the term "advance punitive damages, agree I with Justice as a made: defined separate opinion. Sullivan's by: concur, however, majority's I with (A) the in an action re- defendant to. holding that insurance terms personal injuries, cover operate contract to reduce death, wrongful damage; property or payable by bodily amount the Estate for injury liability damages by paid amounts com- by the Estate's automobile insurance (B) compa- the defendant's insurance ny; and pany under the medical payment chapter, tion of this evidence of an advance

9. that evidence of advance 3 Note permitted only it that a payment during is determined is not admissible the trial for after plaintiff is entitled to recover. This is further anypurpose by plaintiff either or defendant." 34-44-2-2(b). § Ind.Code 2(b) assured subsection of the Advance Payment "Except provided statute: as in sec- type for payments. offset the same any plaintiff to or for the other pre-suit payment Thus a person. for automobile liability property damage by a insurer is limited, § Ind.Code 34-6-2-3. As thus applied not to be to reduce an for award however, a shall an to court reduce award bodily injury liability. only "to the extent but an award includes" such advance it payments So is with made under con- 34-44-2-3(2). Ind.Code payments coverage. tractual medical A policyholder pays premium an additional usage the normal custom and Within coverage provides payment for this and it insurance, the field of the term automobile passengers of medical in the voluntary payments" "advance refers to regard lability. insured vehicle to without payments liability made a insurer in payments coverage Benefits under medical advance of final settlement with a independent liability coverage are thus claimant, which are intended to assist benefits, except where the terms meeting ongoing living claimant ex provide reason, otherwise. For this con- penses severity injury before coverage payments tractual medical are of fully can extent of assessed wholly a different nature than amounts negotiated and a settlement reached. liability due under a Graham, award a tort- Payment James L. Advance liability feasor or the insurer. The "to Claims, Injury THE Personal FORUM language [it] extent includes" of the ad- (1968); al., Hislop Frederick J. et 208-209 Rehabilitation, statute, alone, Payments payment Advance vance standing Ersp'nx therefore does not include contractual (1968). 25,Q. Or Ins. Couns. 30-81 previously benefits re- advantage A to principal the insurer is by personal injury plaintiff. ceived voluntary that it payments such make less likely legal the claimants will seek policyholder But where the and insurer representation advice and and rather set otherwise, agreed provided have here directly liability tle with the insurer. His express terms of the insurance lop, at supra, 46. The advent of the contract, payments made under medi- payments technique handling advance payments coverage operate cal to reduce by lability companies claims insurance bodily the limits of injury liability cover- prior general practice modified the age, Payment the Advance ap- statute will injured withholding all to an ply require to such advanced medical ex- claimant until the claimant willing to penses lability to be excluded sign a full and final release. Id. at 80. judgment against the insured. But merely advance do not ben I agree majority's also with the conclu- liability They quite efit insurers. are also statute, subrogation sion Indiana victims, advantageous personal injury 34-53-1-2, apply Code does not here injuries

particularly those whose involve policy language provides because the for a treatment, protracted uninsured medical limitation and not a or reimburse- expenses, or loss of income. The statute ment. Such limitation not in is thus encourages practice thus this humanitarian nature of "subrogation or reimbursement voluntary payments by advance tortfea- rights." sors and insurers. their SULLIVAN, Justice, concurring statute, by language provid- ° dissenting. ing that a court shall reduce an award to "to the extent" it includes such I concur in the opinion Court's with an payment, applies require advance respect the advance issue. however, dissent, Complaint I from its respectfully Disciplinary Ac- Verified tion, respondent we find that the holding permit engaged that Indiana law does not from a dece- punitive damages of in attorney misconduct. dent's estate. Facts: The trial appointed respon- court dent, defender, public as a appeal to a fairly presents both sides of The Court 20-year client's sentence. The clerk's ree- issue, conflicting authority including this ord and the transcript completed were on I jurisdictions, from other and will not 26, 25, 2003, February December 2002 and analysis the here. Suffice it to reiterate respectively. Though appellate the brief contrary authority I say that find the cited 2003, would early April have been due in allowing recovery the to be Court more May 2008 respondent advised the client points I persuasive. add made appeal and his wife that the was 70% that, first, I give the Court the value of 2008, In complete. July June or of he greater weight deterrence far than does advised them that his work was 75% com- that, second, the I think it Court 2008, plete. In August of he informed harm that greatly overstates the would be them that appeal 80% of the work on the "wholly if done to innocent" heirs 2008, In complete. September of damages were recoverable from estate. response to a call from the client's wife all, holding, After under the Court's seeking an update on the of status effect on a decedent's heirs would be ex- appeal, he advised them that he had filed actly paid puni- the same if the decedent a appeal with Appeals. the Court of day on the preceding tive award Though requested the client and his wife a guilty per- his or her death. Whether brief, copies respondent did not subject son's assets should be to an assess- provide copy, answering a and he ceased ment for should not turn fact, phone respondent their calls. In had guilty on the vicissitude of whether appeal. not filed the client's person happens to still alive at the date be Respondent Ind. Pro- Violations: violated of assessment or not. 1.3, requires fessional Conduct Rule which lawyer diligence

a to act with reasonable 1.4(a), promptness; Prof.Cond.R. requires lawyer keep which a client reasonably informed about status 1.4(b), representation; Prof.Cond.R. a mat- requires lawyer explain which reasonably necessary ter to the extent Jeffrey In the K. Matter of FETTERS. permit the client to make informed deci- No. 44S00-0502-DI-62. regarding representation; sions 8.4(c), prohibits Prof.Cond.R. a law- which Supreme Indiana. Court of yer engaging involving in conduct dishonesty, misrepresentation. Nov. 2005. deceit or herein; For the misconduct found ORDER MISCONDUCT AND FINDING respondent Court now finds that IMPOSING DISCIPLINE suspended practice should from the . Upon report hearing sixty days, effective period review the law a appointed by officer this Court to hear December 19, 2005, with automatic rein- pro- on of this Disciplinary evidence Commission's statement thereafter. Costs

Case Details

Case Name: Crabtree Ex Rel. Kemp v. Estate of Crabtree

Court Name: Indiana Supreme Court

Date Published: Nov 9, 2005

Citation: 837 N.E.2d 135

Docket Number: 55S01-0409-CV-431

Court Abbreviation: Ind.