*1 KIMBERLIN, Appellant Brett Coleman
(Defendant Below),
v. DeLONG, Represen- Personal
Sandra Sue DeLong, Deceased,
tative for Carl David DeLong, Appellees
and Sandra Sue Below).
(Plaintiffs
No. 49S02-9406-CV-524.
Supreme Court of Indiana.
June
Rehearing Denied Dec.
123 *2 vacated, except
Appeals is portions those ex- pressly adopted summarily affirmed 11(B)(3).1 Ind.Appellate this Court. Rule Upon grant transfer, appeal *3 Court, fully before this and we therefore face originally all the of issues raised before the Appeals. of In appeal Court his from the court judgment, trial Kimberlin has claimed following various errors related to the issues: 1. partial summary the judgment find- ing liability civil conclusively established by proof felony of a criminal judg- final pursuant 34-3-18-1; ment to Ind.Code Hamilton, Thornburg, F. Barnes David & 2. the to refusal consider suicide as an Indianapolis, appellant. for intervening as a cause of law matter to action; preclude wrongful the death Eight, Indianapolis, appel- Thrun
Paula for granting 3. plaintiffs the of the motion lees. complaint just prior to amend her to the commencement of trial to a claim add for ON TO PETITION TRANSFER death, wrongful and grant the to refusal DICKSON, Justice. continuance; the defendant a Following grant plaintiffs- the trial court of 4. of admission of evidence the de- appellees’ judg- motion partial summary pain suffering; cedent’s and and liability, jury ment on the issue of a trial 5. damages. the extent of the in judgments against defendant-ap- resulted explosion This lawsuit arises from an on pellant Brett Coleman Kimberlin in the sum 6, September 1978.2 Carl Sandra and De- $860,000 personal injuries to Sandra injured Long walking through were while $1,250,000 DeLong wrongful Sue and for the School, Speedway Indiana, High Speedway, DeLong. death Carl David The Court parking leaving lot game after a football Appeals partial summary judg- affirmed the gym when bomb concealed in an abandoned judgment DeLong’s ment and Sandra exploded. bag DeLongs sought The dam- injuries, but reversed ages resulting injuries for their in a civil judgment, holding that Carl sui- damage alleging action that Kimberlin manu- an intervening cide was cause as a matter of factured, placed, placed or caused to DeLong Ind.App., law. Kimberlin v. explosive homemade device with the intent to 46. bodily injury. severe cause Record at Appellant Petition to Transfer convicted, 741. Kimberlin was after part Appeals asserts in Court of jury trial in the United States District Court giving erred in prior criminal conviction Indiana, of, for the Southern District of inter effect conclusive to establish his civil alia, maliciously damaging destroying, grant as a matter law. We transfer. personal explosive, means real and rule, general
As a property causing personal injury when transfer is to the granted, opinion DeLongs DeLongs entire of the Court the incident. The express approval portion delay To of all or a of an 2. The unusual in this case results from the opinion Appeals, practice of the Court of our intervening appellate proceedings trial and relat- grant "adopted” transfer and declare attempt ed resolution Kimberlin's "expressly adopted incorporated by refer- appeal public expense. prae- this The initiate contrast, portion ence.” In we state that a of the cipe timely February for the record was filed Appeals “summarily opinion Court af- pursuant enlargements but of time declining firmed” indicate that we are to re- defendant, granted to the of Proceed- Record issues, partial view certain in essence denial of ings July was not filed until transfer. partial summary judg- judgment criminal thereafter moved for renders such evidence as liability, proof on the issue of Kimberlin’s conclusive of a fact essential to sustain- ment submitting copies judgment. of Kimberlin’s in- certified the civil dictment, verdict, judgment of conviction In Hawkins v. Auto-Owners Ins. Co. respond- from the criminal trial. Kimberlin (1993), Ind., this Court denying by submitting ed sworn affidavits that, unanimously notwithstanding pri- ruled explosive placed that he device which law, apply expressed or case we will the rule injured DeLongs. DeLong commit- Carl in Ind.Code 34-3-18-1 “which allows the February 1983. The trial ted suicide on judgment admission of a criminal as evidence summary granted partial court thereafter (cid:127) in a civil case.” Id. at 1359. This view morning judgment motion. On the *4 comports majority jurisdictions with the in of trial, 18, 1983, damages-only the tri- October 803(22), the United States and Fed.R.Evid. granted DeLong’s al court Sandra motion to subsequently adopted as Ind.Evid. R. Kimberlin, complaint against the con- amend 803(22). principal Id. reaffirm this We verting the cause of action for Carl premise permitting of Hawkins the admissi- injuries to an action his bility felony of evidence of a conviction in a motion a continu- and denied Kimberlin’s civil trial. ance.
However, majority opinion the in Haw- kins, by implication express and without dis- 1. Use Criminal Conviction of cussion, also affirmed the civil trial court’s Liability to Establish Civil (not transcript just use of criminal the trial (a). Conclusiveness judgment) entry final judg- the of final that trial ment without further at Kimberlin contends the evidence trial. issues, erroneously granted DeLongs’ Upon court the mo these this Court was not unani- consideration, summary Upon partial judgment by today tion for mous. further mis we construing provide implied holdings § retreat from our Ind.Code 34-3-18-1 to in Haw- felony regarding prior that evidence of a criminal final kins the conelusiveness of the judgment judgment admissibility creates a conclusive and irrebutta the of the crimi- Thus, presumption proceed transcript. ble of in a civil nal trial while a criminal felony ing. part, provides: judgment may In relevant the in statute be admitted evi- judging person guilty ble one after a trial Evidence [1] death or a year, of a or shall be admissible in upon imprisonment final a judgment, aof crime plea of in guilty, excess punisha- entered any ad- issues determined clusive and the evidence admissible. dence, such conviction is not proof in the civil trial of the factual transcript the criminal is not necessarily necessarily judgment, con- prove any civil action to fact essential to
sustaining judgment, (b). the and is not exclud- Retroactivity hearsay regardless ed from admission as separately Kimberlin contends that it whether the declarant is a available as retroactively error apply was to Indiana witness. § Code 34-3-18-1 to authorize consideration Ind.Code 34-3-18-1. federal argues criminal conviction. He urges plain language Kimberlin that apply the that the 1982 statute not should to the merely provides this statute that evidence of use of 1981 federal criminal conviction in felony judgment a criminal upon final should be the trial of in lawsuit filed 1980 based prove any in a DeLong responds admissible civil action to fact 1978 incident. that sustaining judgment, plaintiffs’ essential to partial summary judg but that motion for not, se, per proof such evidence is conclusive ment was filed after the effective date of the any Plaintiff-appellee DeLong procedural such fact. statute which she contends is argues phrase prove” that “to in than rather substantive and thus retroactive interpreted statute pending should be to mean unam- to all actions at the time of the biguously that of a admission evidence statute’s effective date.
125
Conceding
procedural
new
estoppel may
that
rules and
Collateral
bar
applied
re-litigation of
generally
subsequent
can
rules
evidence
same fact
cases,
necessarily adjudicated
was
retroactively
pending
Appellant’s
issue which
prior lawsuit.
Support
of Petition' to
Sullivan v. American
Brief
Transfer
Casual
(1992),
134,
9,
ty
argues
Co.
Ind. 605
retroac
page Kimberlin
such
Col
when,
estoppel
lateral
is termed
application
improper
in the na
“offensive”
tive
when
present case,
“plaintiff
as in the
citing
seeks to
presumption,
of a
Coll
ture
conclusive
litigating
foreclose
defendant from
(1920),
v.
well
Stone & Constr. Co.
Bedford
previously
issue the defendant
439,
litigated
has
Ind.App.
126
N.E.
unsuccessfully in an action with
par
another
holding
Because we
narrowed
have
ty.”
Parklane
v.
Hosiery
Shore
Hawkins to eliminate the use
Ind.Code
U.S.
326 n.
99 S.Ct.
649 n.
presump-
34-3-18-1 to create an automatic
Determining
L.Ed.2d
559 n. 4.
ap
tion,
objection
retroactivity
propriateness of
estoppel
offensive collateral
compelling.
not
It was not error
1)
two
involves
considerations:
whether the
apply
pending
court to
the statute
ease
party
prior
in the
action had a full and fair
permit
prior
admission
criminal
2)
opportunity
litigate
the issue and
procedural
conviction.
It was a matter of
apply
whether
is otherwise unfair to
collat
*5
rather than
law.3
substantive
estoppel given
eral
particular
the facts of the
Tofany
Imaging Sys.,
case.
v. NBS
Inc.
(c).
Estoppel
Collateral
Ind.,
(1993),
616 N.E.2d
granting partial summary judg
In
in
Kimberlin’s criminal trial
federal district
liability,
ment on the
court
issue
the trial
court resulted in convictions later affirmed
only
Judgment
considered not
the Order of
(7th Cir.1986),
appeal.
on
U.S. v. Kimberlin
pro
and Conviction from the federal criminal
(1987),
cert.
F.2d
denied
483 U.S.
ceeding
op
but
in
also Kimberlin’s affidavits
107 S.Ct.
127 (Second) brought Restatement Torts 435A the harm is about in a manner (1965). position which no one in his possibly could expected have been to foresee or antici- person intentionally has Where invaded pate say .... This any is to harm another, legally protected interests of foreseeable, which is in itself as to which invasion, his intention to commit an the actor has created or increased the degree wrong acting, his moral in risk, recognizable always “proximate,” the seriousness of the harm which he in- about, brought no matter except how is important tended are in factors determin- intentionally where there is such tortious ing resulting whether he is liable for the intervention, or criminal and it is not with- unintended harm. scope of the risk created (Second) Restatement of Torts 435B original negligent conduct. (1965). Id. at cmt. b. emerged The rule has therefore that the Examples of this refusal to treat suicide as superseding inapplicable doctrine of cause is independent intervening cause are found Sarno, Gregory willful G. Annota- torts. arising Pennsylvania, eases Hamp- New tion, Liability Causing Physical Inju- One shire, and California. “While there is some Injured ries as a Result Party Which uncertainty respect with negli- to acts of Suicide, Attempts or Commits 77 A.L.R.3d gence, plain it is that where suicide results (1977). general 349 In accordance with wrong, an intentional ‘the trend of re- authority, proximate concept causation ” cent allowing recovery.’ cases toward superseding causes thus is discarded in favor (W.D.Pa.1990), Rowe v. Marder F.Supp. of a cause-in-fact test. Id. at 317. 718, 723-24, quoting Speiser, 1 Stuart M. effect, transposition This has the on the (1975 Wrongful Death 85 Supp.). suicide, liability issue of civil of obviat- Hampshire recognized New has queries the need for the court’s into involving death action a decedent’s suicide sanity of the tort victim and into the following alleged imprisonment, false as- foreseeability reasonable of his suicidal battery, sault Mayer and false arrest. v. becomes, question simply, acts. The Hampton Town 127 N.H. injury whether wilful tortfeasor’s was a Citing policy A.2d 1206. favoring imposi- substantial factor in bringing about tion of such for intentional torts as *7 tort attempt. victim’s suicide or suicide “compensating deterring the victim and in- (Sec- Id. 442B Section of the Restatement others,” 86, tentional harm to Id. at 497 A.2d ond) provides: of Torts 1210, recognized at court exception “an negligent Where the conduct of the actor general rule that there is no cause of particular creates or increases the risk of a wrongful by action for death suicide where harm and is a causing substantial factor in the conduct of the defendant was an inten- harm, that the fact that the harm is tional tort outrageous, and extreme and brought through about the intervention of where his conduct caused severe emotional another force does not relieve the actor of part distress on the of the victim which was a liability, except where the harm is inten- bringing substantial factor in about the vic- tionally by person caused a third and is not ensuing tim’s suicide.” Id. at 497 A.2d at scope by of the risk created within Similarly, permit- 1211. California has actor’s conduct. proceed ted a death action to where allegedly intentionally defendants caused ser- (Second) Restatement of Torts 442B physical ious and mental (1965). disturbance which Comment 442B b to further clari- bringing was a substantial factor in about the fies as follows: victim’s suicide. Tate v. Canonica If the actor’s conduct has in- created or Cal.App.2d Cal.Rptr. 180 5 28. particular creased the risk that a harm to occur, plaintiff case, present will and has been a complaint alleged harm, causing substantial factor in injury. that crimi- federal intentional conviction, liability is immaterial through estoppel, the actor’s that nal collateral 128 1(c), given broad discretion supra, establishes his trial court in Issue
discussed area, permissible “[a]mendment thus intentional this malicious and conduct as trial, Moreover, during ‘regardless of whether a De- even negligent. Carl’s rather than ” might change in the cause of action result.’ death, occurring than Long’s although more Ass’n, High Inc. v. Indiana Sch. Athletic explosion, was within the years after the four (1992), Ind.App., N.E.2d scope harm intended Kimberlin’s inten- Schafer (1991), Ind. quoting Palacios v. Kline Under such circum- tional criminal conduct. stances, App., 576. A trial court will as inde- we decline to treat suicide only high- be reversed for abuse of discretion and intervening protecting cause pendent any if rational basis his will be affirmed there is ly culpable defendant from Id. As with amendment of that an action its decision. victim’s death. We hold pleadings, ruling on a motion injury a trial court’s for death or from a be maintained only continuance will be reviewed to de- attempt where a defen- suicide or suicide has an abuse of intended termine whether there been dant’s willful tortious conduct was Farm Bureau Mut. Ins. Co. v. physical harm and where discretion. to cause victim (1983), Ind.App., 450 N.E.2d in Dercach intentional tort is a substantial factor a motion for 539. A trial court’s denial of bringing about the suicide. unless the continuance will not be disturbed Complaint Amendment S. preju- he was movant can demonstrate that to Grant Continuance Refusal diced the denial. Id. that Kimberlin asserts ease, present In the the suicide occurred by permitting discretion court abused its approximately eight months before trial. plaintiff morning damages-only on the The defendant received formal notice of De- by adding complaint trial to amend her a Long’s approximately five months be- wrongful death. Kimberlin claims count of plaintiffs’ fore trial in motion for substitution. preju that this amendment created serious preceding at 659. For the 28 months Record previously dice because the suicide had not death, parties proceeding were subject an issue and had not been the been that included Carl trial a cause of action discovery. Kimberlin contends that the trial severe, multiple, per- claim for by refusing grant court also erred injuries manent from the bomb blast includ- trial, motion for continuance. At to the ex disintegration right “virtual of the lower tent that his continuance motion related leg; leg; loss of the left extensive soft tissue sought complaint, Kimberlin the amended scrotum, multiple fragment wounds to the respond— only “in order to the continuance abdomen, hand, neck; right [and] face and pleadings prepare responsive and file to the drum,” right lost perforated ear as well as procedurally amended Count III. Both and wages inability and the claim to work as a substantive answer.” Record DeLong ultimately be unable to that “will DeLong *8 counters Ind.Trial Rule work.” Record at 13. We also observe that permits pleadings of as a matter pending years amendment this case had been over three DeLong emphasizes of trial court discretion. by litigation of trial that of this the time and proper- wrongful that the added death count exceptionally protracted, in- cause had been ly complaint to conform to the discovery disputes, allowed the volving numerous re- presented orders, to be and that the suicide quests protective evidence motions for compensable sanctions, result of her husband’s contempt proceedings, was mo- and injuries. continuances, by as evidenced over tions for pages pre-trial of record exclusive of underlying with an Consistent depositions. purpose to facilitate decisions on the merits traps, recognize appellate Trial asser- pleading and to avoid the Indiana We complaint generally implement policy of liberal tion that the amendment of the Rules presented him pleadings, prejudice of and denial of a continuance amendment absent “against Harp Dep’t defending opponent. v. Indiana with difficulties allegation injuries caused the Highways Ind.App., 585 N.E.2d new that the Reply Appellant suicide.” Brief of suffering, contemporane- there were neither However, Appeals Court of at 15. consider- ous motions to testimony strike such nor ing specific Kimberlin’s failure to articulate requests jury party admonishment. A prejudice judge, to the trial his extensive claim cannot error in the trial court’s failure opportunity fully prepare substantially to take action when he fails to make the damage all encompassed issues in the motions which given would have the court an action, wrongful death and the circumstances opportunity to Goodpaster act. v. State judge light faced the trial of acrimoni- (1980), Ind., 402 N.E.2d 1241. More- litigation repeated ous delays, and we decline over, testimony such clearly was relevant to to find an abuse of discretion the issue of whether the defendant’s inten- court in permitting the amendment of the tional tort was a substantial factor in bring- complaint denying and the continuance. ing about the decedent’s suicide. We there- fore decline to find error on this issue. Evidence Decedent’s Suffering Pain and Damages The defendant contends that the tri The defendant contends that the verdicts admitting testimony al court erred in regard were excessive as a matter of law. He ar- DeLong’s pain, suffering, disfig Carl and gues that neither bore rational connection urement, and that his motion for a mistrial to the evidence at trial only and could have granted. However, should have been he jury passion resulted from prejudice. and does not claim overruling trial court error in any response, motions to strike a "witness’s verdict, wrongful As to the death the de- nor does he having any even assert made fendant loss, asserts that economic plaintiff replies such motions. The that basis, wit continuing “on a could have been no nesses were never asked to describe the $50,000 year” per more than and that “the pain suffering only decedent’s but present value of the economic loss would injuries. describe his $800,000.” have been less than Appellant’s Appellate plaintiff responds Brief at 43. The parties agree Both that under case, wrongful that as to the the evi- ap death and survival statutes supports $35,- expenses dence medical plicable trial, at the time of the the dece 656.57, funeral expenses and burial pain suffering dent’s were not recovera $4,182.35, prospective and loss of income and damage. Apart ble items of from the issue $1,000,000. benefits of over She also notes however, damages, we that such note evi damages may be awarded for the loss of dence be relevant to show the causal care, affection, love and training connection between the defendant’s deliber guidance that provided by would have been ate subsequent tortious conduct and the sui the deceased. court, cide. A trial in considering the admis evidence, sion of controversial weigh must Appellate jury courts defer to lati probative any force of sought evidence making tude in damage award determina against danger preju introduced (1990), Ind., Corp. tions. FMC v. Brown City Indianapolis dice. v. Swanson reversal, 450. To warrant (1983), Ind., 671. We will damages appear amount of “must to be so only reverse judg the trial court when its outrageous impress as to the court at ‘first clearly against logic ment is and effect of enormity.” blush’ with its New York Cent. *9 the facts and circumstances before the trial (1955), 457, 466, R.R. Co. v. Johnson 234 Ind. court. Id. wrongful 127 N.E.2d A 608. death ver reviewing example In each cited only dict will be considered if excessive it is objectionable, the defendant as outrageous we do not so passion, preju as to indicate dice, find the rulings trial court’s to partiality have been or rather than reasoned as clearly contrary 451; to this standard. Corp., While the sessment. FMC 551 N.E.2d at responses (1986), witnesses’ in Dunkelbarger some instances con Constr. Co. v. Watts regarding tained information Ind.App., the decedent’s
130 (1983), years Ind., DeLong, age (affirming 44 of at N.E.2d 605 ver-
Carl the 446 death, $8,000 married to approximately spe- time his had been San dict 15 times the dra, years. couple then for The damages). present 23 had cial In the find case we son, age then lived in the one who De finding no basis the Mrs. verdict for home, Long daughter, approx a and married DeLong’s injuries to be excessive as a matter imately DeLongs’ of the and the mother of law. veteran, grandchild. A Vietnam Dé War Long employed years had for 17 been at Conclusion Division of Detroit Diesel Allison General granted. judgment Transfer is The the Corporation, recently parts Motors most as a trial court is affirmed. captain in
inspector, and was a
the United
Army
damages
Proof of
States
Reserves.
SULLIVAN, J., concurs.
expenses
offered at trial included medical
$35,656.57
expenses
and funeral and burial
DeBRULER, J.,
1(a), 3,
in
concurs
Parts
$4,132.85.
His
income in
annual
the
and,
result,
although
concurring
in
death,
year preceding
approxi
his
totalled
1(b),
join
1(c),
declines to
in Parts
and 2.
mately $31,500.00
non-wage
in
addition
GIVAN,
1(a)
J.,
as to
but
dissents
Issue
per working
valued at
benefits
hour.
$4.75
concurs,
separate
otherwise
and files
opinion
projected
also
that
Evidence
indicated
concurring
dissenting.
age
annual retirement
income
65 would
$21,480.00.
have been
SHEPARD, C.J., concurs in result with
circumstances,
Considering
jury-
these
the
GIVAN, J.,
separate opinion which
$1,250,-
finding
damages
amount
concurs.
appear outrageous
000.00 does not
at first
passion,
blush. The verdict does not indicate
GIVAN, Justice, concurring and dissent-
prejudice,
partiality
or
than
rather
reasoned
ing.
assessment. We
find the
decline
Although
opin-
majority
I concur with the
judgment
be excessive.
court,
ion in
I
its affirmance
damages
As to the
awarded for Mrs.
respectfully dissent from the dictum in the
claim,
separate personal injury
the majority opinion limiting
application
$360,000
defendant asserts that
verdict
Hawkins v. Auto-Owners Ins. Co.
approximately
special
was
18 times her
dam
Ind.
majority’s
guilty reasonable inten- In the Matter of ANONYMOUS. victim, inflicting tionally injury on his should No. 49S00-9310-DI-1128. injury paid by perpe- costs of that be by Or should the costs borne Supreme trator? Court of Indiana. law-abiding through citizens thousands of 29, 1994. June premiums? own insurance Insurance their denying containing contracts clauses cover- (like
age for intentional acts
bombing) keep the designed are rest of us perpe- for their paying acts intended represent respecta-
trators. Such clauses policy concerning responsi-
ble allocation
bility: pay criminals like Kimberlin for their
crimes, law-abiding persons pro- are still they negli- their when
tected insurance injury.
gently damage cause opinion represents a
Justice DICKSON’s judicial
veiy policy. It different contem-
plates two trials rather different results. with trial, jury
In the first finds the defendant crime,
guilty of intentional and he convict- ed incarcerated. Such was the case of arid/or (a Kimberlin. trial
Brett the second trial coverage compensa-
on insurance or victim
tion) jury would be entitled find that perpetrator intend to did not harm his jail perpetrator
victim. The would still inbe
notwithstanding jury the fact that the second crime, he did
found not intend but he financially by
would be this shielded second
verdict. judicial policy promotes which two trials issue, contemplates conflicting
on the same
outcomes, and apportions responsi- financial
bility law-abiding policyholders crimes Moreover, very policy.
is not a attractive subject especially superflu- on this
dictum
ous in a case it is clear that victims where compensation can receive from the actual DISCIPLINARY ACTION perpetrator.
PER CURIAM. Respondent charged by here was verified GIVAN, J., joins opinion. in this complaint disciplinary violat- action with 7.3(c) ing Rule Rules of Professional Attorneys charge Conduct Law. The Respondent arises out of an incident wherein sent written solicitation to an individual shortly charged had who beforehand been Disci- driving with while intoxicated. The plinary Respondent and Commission