MID-CENTURY INSURANCE COMPANY, Appellant-Plaintiff, v. THE ESTATE OF Ryan MORRIS, by its Personal Representative, Kimberly MORRIS, Appellee-Defendant.
No. 49A02-1105-PL-432.
Court of Appeals of Indiana.
April 4, 2012.
966 N.E.2d 681
In its reply brief, Mid-Century argues that “[t]here can be no question that by its action, Mid-Century was seeking a determination of its rights and obligations stemming from the contract of insurance given its insured‘s breach of the cooperation clause and Mid-Century‘s extension of a defense under the policy even after this breach.” Appellant‘s Reply Brief at 9. Mid-Century maintains that it “does not seek a determination of liability but a construction of a contract after it was breached to determine the insured‘s breach of the policy and coverage obligations thereunder.” Id. at 10.
The record reveals that Mid-Century sought a declaratory judgment relating to whether its past conduct was performed in good faith. In other words, Mid-Century essentially attempts to preemptively defend against a claim of breach of duty of good faith. Under the circumstances and given the claims involved, we cannot say that declaratory relief is appropriate or that the trial court abused its discretion in granting the Estate‘s motion to dismiss. See Volkswagenwerk, A.G., 181 Ind.App. at 162, 390 N.E.2d at 1086 (holding that the movant for a declaratory judgment was improperly attempting to try issues or determine the validity of defenses in pending cases); Morgan v. Guar. Nat‘l Cos., 268 Ga. 343, 345, 489 S.E.2d 803, 806 (1997) (“Because [the insurer] has not demonstrated a need for a legal judgment that would control its future action, in that its defenses to any claim under the policy can be presented when suit is entered by [the insured], a declaratory judgment action was inappropriate.“); cf. Chicago & E. Ill. R.R. Co. v. Reserve Ins. Co., 99 Ill.App.3d 433, 437-438, 54 Ill.Dec. 564, 425 N.E.2d 429, 433 (1981) (holding that the rationale for concluding that it is generally an abuse of discretion to grant declaratory relief relating to nonliability for past conduct is that such proceedings deprive an aggrieved party of the right to decide if, when, and where to file an action to redress the wrong which it allegedly suffered and holding that it was an abuse of discretion to grant declaratory relief on the issue of whether the insured breached the provisions of its insurance policies), reh‘g denied.
For the foregoing reasons, we affirm the trial court‘s grant of the Estate‘s motion to dismiss Mid-Century‘s complaint for declaratory judgment.
Affirmed.
MAY, J., and CRONE, J., concur.
Melanie WEBSTER, Appellant-Plaintiff, v. WALGREEN CO., Appellee-Defendant.
No. 55A01-1110-CT-442.
Court of Appeals of Indiana.
April 4, 2012.
Jeffrey D. Hawkins, Beth A. Schenberg, Crystal G. Rowe, Kightlingher & Gray, LLP, Indianapolis and New Albany, IN, Attorneys for Appellee.
OPINION
CRONE, Judge.
Case Summary
Melanie Webster filed a complaint against Walgreen Co. by certified mail. Her first attempt at mailing the complaint was returned due to insufficient postage. By the time Webster resent and filed the complaint, the statute of limitations had run. Webster filed a motion to amend the filing date of her complaint to the date that she had originally sent the complaint, which was within the statute of limitations. The trial court denied the motion and thereafter granted Walgreen judgment on the pleadings because the complaint was untimely. Webster appeals the denial of her motion to amend the filing date. We conclude that “mailing” for purposes of the Indiana Trial Rules requires the sender to affix sufficient postage. Therefore, Webster‘s complaint was not filed until her second attempt at mailing and was untimely. We affirm the judgment of the trial court.
Facts and Procedural History
Webster‘s complaint alleges that on December 17, 2008, she slipped and fell at Walgreen‘s Mooresville store due to Walgreen‘s negligent failure to remove ice and snow from the sidewalk. On December 13, 2010, Webster‘s attorney, C. Stuart Carter, placed the complaint, summons, appearance, and filing fee in an envelope, which he weighed himself. Carter‘s postage scale indicated that the envelope weighed six ounces. Carter used Stamps.com to determine that the appropriate amount of postage to send the envelope by certified mail was $6.83. Carter printed the stamp and deposited the envelope in the mail.
On December 30, 2010, Webster filed a motion to amend the filing date to December 13, the date it had initially been sent by certified mail. Walgreen filed an objection to Webster‘s motion, and Webster filed a reply. Webster attached several exhibits to the reply, including a printout of the postal service‘s track and confirm records for the envelope and an affidavit from Carter explaining the actions that he had taken to file the complaint. After a hearing on March 4, 2011, the trial court denied Webster‘s motion.
Thereafter, Walgreen filed a motion for judgment on the pleadings, asserting that the complaint had been filed outside the statute of limitations. Webster did not dispute that with a filing date of December 22, 2010, the complaint was untimely. Therefore, on September 6, 2011, the trial court granted Walgreen‘s motion for judgment on the pleadings. Webster now appeals the court‘s underlying ruling denying her motion to amend the filing date.
Discussion and Decision
As a preliminary matter, we address Walgreen‘s argument that Webster has waived review of the March 4, 2011 order denying her motion to amend the filing date. Walgreen notes that Webster identified the September 6, 2011 judgment on the pleadings as the appealed order in her notice of appeal and amended appellant‘s case summary. Further, Walgreen notes that Webster included the September 6 order in her brief and appendix, but not the March 4 order. Thus, Walgreen argues that Webster has not appealed the March 4 order and cannot challenge the September 6 order because she did not oppose it in the trial court.
Webster‘s arguments on appeal are clearly addressed to the March 4 order and not the September 6 order. There is no requirement that an interlocutory appeal be taken; a party may elect to wait until the end of litigation and raise the issue on appeal from the final judgment. Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind.2003). Furthermore, we have previously declined to find waiver of review of an interlocutory order based on the failure to include it in the notice of appeal. See Newman v. Jewish Cmty. Ctr. Ass‘n of Indianapolis, 875 N.E.2d 729, 734 (Ind.Ct.App.2008) (on appeal from final judgment, plaintiff challenged interlocutory order dismissing some of the defendants, but did not attach that order to her notice of appeal; we declined to find that review of the interlocutory order had been waived), trans. denied.
Webster should have included the March 4 order in her appendix. See
Our decision turns on the interpretation of the Trial Rules; therefore, our review is de novo. See Gulf Stream Coach, Inc. v. Cronin, 903 N.E.2d 109, 111 (Ind.Ct.App.2009) (interpretation of the Trial Rules presents a legal question to be reviewed de novo). Webster argues that her complaint was filed in compliance with
The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the following methods:
. . .
(3) Mailing to the clerk by registered, certified or express mail return receipt requested;
. . .
Filing by registered or certified mail and by third-party commercial carrier shall be complete upon mailing or deposit[.]
Webster argues that a straightforward reading of this rule indicates that her complaint was filed on December 13, 2010, when it was first placed in the mail.
Walgreen argues that a pleading has not been “mailed” unless it has adequate postage. In support, Walgreen cites Comer v. Gohil, 664 N.E.2d 389 (Ind.Ct.App.1996), trans. denied. In Comer, the plaintiff placed a medical malpractice complaint in the mail shortly before the expiration of the statute of limitations. The postage was insufficient, and the complaint was returned to the plaintiff after the Department of Insurance declined to pay the postage due. By the time the plaintiff had resent the complaint, the statute of limitations had run.
The trial court held that the complaint was untimely filed, and we affirmed on appeal. Citing
In support of its holding, Comer cited Boostrom v. Bach, 622 N.E.2d 175 (Ind.1993), cert. denied. In Boostrom, the plaintiff mailed a small claims complaint by certified mail on day the statute of limitations was to run, but did not include the filing fee. The clerk received the complaint, but did not file it until the fee was paid. Our supreme court ruled that the complaint was not filed until the fee was paid. Id. at 176-77. In reaching this conclusion, the court noted that payment of the filing fee “is wholly in the hands of the plaintiff,” id. at 177, and that the court‘s “desire to dispose of appeals on the merits whenever possible does not displace the legislative policy which undergirds the statute of limitations,” that is, to spare courts from stale claims and insure that
Webster argues that Comer and Boostrom are not on point; the decision in Comer was based on interpretation of the Medical Malpractice Act, and Boostrom was a small claims case and did not turn on when the complaint was mailed. Nevertheless, we find the rationale of Comer and Boostrom persuasive. The language in the Medical Malpractice Act that was interpreted in Comer is similar to the language of
Webster has presented us with no authority suggesting that sending a complaint with insufficient postage constitutes “mailing” for purposes of
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.