*1 pre imposition at her. yelling mani this case is not

sumptive sentence

festly unreasonable. af- of the trial court is judgment

firmed. SULLIVAN,

SHEPARD, C.J., and RUCKER, JJ.,

BOEHM, concur.

Amy NEHER, Appellant-Defendant, N. and Emma D. HOBBS J.

Hobbs, Appellee-Plaintiffs.

No. 92A04-0008-CV-316. Appeals of Indiana.

Court of

April 2001.

Publication Ordered June September

Transfer Granted *3 Brown, Geisleman, R. H. Dennis

Dennis Geisleman, H. Law of Dennis Fort Office IN, Attorneys Appellee. Wayne, OPINION ROBB, Judge. appeals the trial court's

Amy Neher a Motion to Correct Errors grant of setting and Emma Hobbs favor of *4 ordering a new aside the verdicts against Neher. trial in the Hobbs' action with instructions. reverse and remand We Issues1 following restated is- Neher raises sues for our review: special the trial court's 1. Whether sufficiently complied fact findings of of Trial Rule requirements with the 59(J)(7); and damage award 2. Whether the a inadequate, thereby warranting new 59(J)(7). pursuant trial to Trial Rule History Facts and Procedural 11, The facts reveal that on October . 1995, driven Neher col- an automobile by Gregory with a van driven lided G.T.E. Gregory was County, Indiana. Whitly scope of his within the operating the van technician or employment as a service for G.T.E. On October "troubleshooter" Emma filed Gregory and his wife alleging negligence against Neher suit At the and services. loss of consortium trial, jury entered a of the conclusion in favor of negligence claim verdict on awarded zero against Neher but Lew, Kerry Hultquist, ($0.00) R. M. to the loss regard Branch damages. With claim, and services of consortium Kalamaros, LLP, Sudehoff, Hunt, Fort Emma in favor of against IN, entered a verdict Attorneys Appellant. Wayne, the trial court's we reversed argue Because have cross-appeal, the Hobbs 1. On Errors, we granting grant the Motion to Cor- to Correct trial court's order of the Motion grant rect Errors should have limited address this issue. need not damages only. the new trial to the issue 52 Bros., Thereafter, Inc., filed a rio v. the Hobbs Mo- Werker

Neher. with the trial court. Errors tion Correct (Ind.Ct.App.1994). review the ree- We grant- the trial court Following hearing, (a) a only ord to see if: the trial court motion and ordered that the (b) ed the Hobbs' discretion; flagrant injus a abused its (c) be vacated and a new trial be judgment occurred; appellant tice has or has pursuant held to Indiana Trial Rule a very strong case for relief 59(J)(7). appeal This ensued. Additional granting from the trial court's order a new provided necessary. facts will be when Hixson, trial. 711 N.E.2d at 70. Howev er, reweigh we neither the evidence nor and Decision Discussion judge credibility Id. witnesses. 59(J) I. Standard of Review Trial Rule The trial court has broad discretion to granted The trial court Hobbs' grant deny or a motion for a new trial. and ordered a Motion to Correct Schuh, Errors 581 N.E.2d at 927. The trial pursuant trial to Indiana Trial Rule new court's action in a trial granting new is 59(J). considering When Motion to given strong presumption of correctness. request Errors and a for new Correct Mendus, Keith v. N.E.2d *5 trial, governed by a trial court is Indiana den ied=. trans. 59(J)(7), provides in Trial Rule which Therefore, it to affirm duty is our part: grant court a trial "[The shall new the trial court's order for a trial un new if it determines that the verdiet of a non- clearly by less it is demonstrated Neher advisory jury clearly is ... erroneous as that the trial court abused its discretion. contrary supported by not the evi to or judge dence...." The trial sits as a Findings II. Sufficient of Fact juror" "thirteenth and must determine whether the minds of reasonable men Neher first contends that the trial court contrary a verdict should have been in setting erred aside the verdicts and Mach., reached. Precision Screen Inc. v. granting special a new trial because find- Hixson, (Ind.Ct.App. 711 N.E.2d 59(I)(7) ings by of fact Trial required Rule 1999). judge, The trial as a "thirteenth disagree. were insufficient. We juror," along hears the case with the Rule 59(J)(7)2 provides Trial jury, observes the witnesses for their pertinent part that: wisdom, credibility, intelligence and and court, prejudi- if it determines the against determines whether verdict is cial or harmful error has been commit- weight the of the evidence. Id. ted, shall take such action as will cure granted Once the trial court has error, including the without limitation trial, a new we will reverse this decision following respect the with to all or some only for an abuse of discretion. Schuh v. parties of the and all or some of the Silcox, (Ind.Ct.App. errors: 1991). An of discretion will be abuse (1) trial; a new Grant found when the trial court's action is #o oh ok against logic the and effect of the facts and it granted

circumstances before and inferences a new trial is because the When verdict, which may be drawn therefrom. or not ac- findings judgment DeVitto do 2. We note that a new version of Trial Rule 59 when the trial court entered its order on Errors, we Hobbs' Motion to Correct have January became effective 2001. Because applied the older version of the trial rule was in effect the old version of this rule. evidence, sulted from the collision and for which the court cord with the shall special findings upon of fact each alleges make he [Neher] was at fault.

material issue or element of the claim or -[Emmal, spouse, 4. his has a derivative upon grant- trial defense which new is against claim [Neher] loss consor- finding shall indicate whether ed. Such tium and services. against weight the decision is of the clearly it evidence or whether is errone- During presentation of the case contrary supported by ous to or not as Jury, to the [Neher] conceded that evidence; if the decision is found to [Gregory], was not at fault in the acci- evidence, against weight be dent. shall relate the findings supporting Further, evidence to opposing each issue evidence was upon trial if granted; Jury regarding stipulated which new is Worker's Compensation clearly paid decision is found to be erroneous benefits to [Grego- ryl, contrary supported by as to or not as a result of accident. evidence, findings why [Gregory's] shall show exhibit 322 sets forth this judgment upon stipulation, was not entered the evi- which is attached hereto incorporated herein. dence. procedural requirements outlined Jury 9. The found the Defendant at 59(J)(7) By stipulation, fault for the accident.

Trial Rule have character been "paramount," process ized and the as medical expenses were incurred entering requisite findings as "arduous and he [Gregory], permanently im- *6 McKenzie, time-consuming." and v. State paired. damages These resulted from 576 N.E.2d 1260 the accident. purpose special trans. denied. The damages 10. The award of to [Greg- $0 findings provide parties of fact is to the evidence, ory], contrary clearly is to the with reviewing theory and the court the of erroneous, contrary and to law. DeVittorio,

the trial court's decision. 634 11. Harmful error has been committed findings may N.E.2d at 531. The summa [Gregory]. as to long summary rize the evidence so as the Regarding 12. derivative [Emma's]} complete enough appellate is to facilitate claim, Jury the found that was [Neher] Malacina, Malacina v. review 616 . not at fault. (Ind.Ct.App.1993). N.E.2d 1063 on the 13. verdict derivative claim . 21, 2000, The trial court's June Jury's is inconsistent with the determi- order on the Hobbs' Motion to Correct primary nation of fault on the claim. provides pertinent part: Errors 14. Harmful error occurred as to has 11, 1995, [Gregory], 1. October was On- [Emmal. operating seope a van of his em- in an

ployment easterly direction on Where, case, present R. as in the 16-17. Highway Whitley County, 830in U.S. a trial on grants trial court new Indiana. jury basis that the decision of the is "clear [Gregory's] company van was struck ly contrary sup erroneous as to or not by operated in the rear a vehicle by ported by findings then the evidence" only why judgment need "show was not [Neher]. [Gregory] sought dam- 59(J)(7); recover upon entered the evidence." TR. Motors, Inc., alleges from which he re- Wedmore v. 589 ages [Neher] Jordan 54 enied. Thus, 1180, 1183 at 922. even where the evidence is

N.E.2d (Ind.Ct.App.1992), trans. nature, d conflicting variable or as injury, jury extent and source of the is

Although may the trial court not have position in the best to determine the testimony the trial and evidence discussed damages, line, amount of and we will not dis that the order line we believe sets summary Barrow, a of the basis of forth sufficient turb the award. 417 N.E.2d at jury to set aside the verdicts gen its decision 922. Indiana does subscribe to "the grant and a new trial. We therefore hold principle damages eral of tort law that all the trial sufficiently court's order directly wrong to the done are attributable complies requirements with the of Trial recoverable." 506 N.E.2d at 485. Burris 59(J)(T). Rule Furthermore, undisputed a victim's actual expenses compensable. medical are Man

III. Damage Award zo, (citing 689 N.E.2d at 476 Cox Wink Neher also contends that the trial court Ind.App. lepleck, N.E.2d 737 setting jury's erred in aside the verdicts (1971)). granting pursuant a new trial to Trial 59(J) damage Rule because the award was seope of

within evidence therefore Damage B. The Hobbs' Award adequate. agree. We Here, Gregory brought negli a A. Standard of Review gence brought claim and Emma a deriva appellate employs court claim of of tive loss consortium and ser reviewing strict standard claim when against jury vices Neher. The returned a damages inadequate, that an award of is verdict in on negli- favor evidence, reweigh and we neither will genee cause of action but awarded zero judge credibility nor of the witnesses. ($0.00) damages. regard to Emma's With (Ind. Estep, Manzo v. cause of action for loss of consortium and Ct.App.1997). only We consider the evi services, returned a verdict dence favorable to the award. Id. More Because Neher favor Neher. conceded over, we must not substitute our idea of a liability, only issue before the *7 proper jury. award for that the Prange of damages the amount of attributable to the (Ind.Ct. Martin, 915, 629 922 N.E.2d automobile accident that occurred on Octo Further, App.1994), trans. denied. we will 11, ber damage not reverse a award long so as the damages scope are the within of the evi parties stipulated The to the fol Riester, 484, dence. Burris v. 506 N.E.2d lowing at trial: (Ind.Ct.App.1987), 485 A trans. denied. parties stipulate The that the worker's only upon verdict will be reversed a find compensation paid carrier to the health- that, ing evidence, upon based the the providers [Gregory] care the sum of amount of damages awarded indicate that $4,234.37 expenses for medical incurred jury the by prejudice, pas was motivated paid directly [Gregory] to the sum sion, partiality, corruption or consideration $2,500.00 compensation of in improper some of for his 5% element. Barrow v. rating. parties stipu- PPI Talbott, further 917, (Ind.Ct.App. 417 N.E.2d 922 1981). [Gregory] We will not deem a to be late that if a verdict should recover the improper case, result of considerations un in then the verdict this worker's compensation carrier is entitled to be explained any less it cannot on be other grounds. Prange, any reasonable 629 reimbursed for verdict. N.E.2d

55 compensation practitioners. various medical As of Although R. 18. worker's Janu- 8, 2000, Gregory, ary Gregory's we do not medical bills totaled paid were benefits $5,812.65. proves experts that Medical testified at tri- conclusively that this believe Gregory occipital al that an Grego suffered nerve automobile accident resulted injury and that the cause of the injury was injuries. In order to recover dam ry's possibly the automobile collision which oc- prove had to all of the ele ages, Gregory 11, negligence the tort of at trial. curred ments of on October 1995. Evidence presented at trial Gregory established that negligence consists of three The tort of primarily complained of chronic and (1) severe duty plaintiff owed to the elements: treating physicians. headaches to his (2) defendant; by duty a breach of that (8) defendant; by injury presented testimony Neher no medical that plaintiff proximately caused However, at trial. on cross-examination of Corp., Bloemker v. Detroit Diesel breach. witnesses, Gregory and his Neher elicited 753, 756 720 N.E.2d testimony Gregory complained that of se- trans. denied. vere headaches before the automobile acci- Therefore, dent on October act determining

In whether an jury was with evidence that injury, of another's proximate is the cause Gregory's injury pain and resulting from injury this court considers whether pre-existed chronic and severe headaches probable consequence was a natural and of the automobile collision. which, in negligent light act of the cireumstances, attending could have been apparent It is from the amount anticipated. reasonably foreseen or Golds damage award that be (Ind. Grubbs, berry v. 479 Gregory's injury pre-exist- lieved that Thus, Ct.App.1996), to be trans. denied. ing and not the result of the collision. cause, proximate negli considered a Furthermore, it is clear that the con chain of gent act must have set motion a cluded that Emma's loss of consortium and in natural and contin- cireumstances which upon its services claim should fail based sequence resulting injury. vous lead to the determination that was entitled to Lindbloom, City Portage v. N.E.2d 655 ($0.00) A damages. zero claim of a loss of (Ind.Ct.App.1995), trans. denied. nature; consortium is derivative cause policy underlying proximate cause is of action for loss of consortium derives its we, society, only assign legal aas validity of the claim of viability from the responsibility to those whose acts actors injured spouse against wrongdoer. closely resulting inju are connected to the Denkins, N.E.2d Nelson v. ries, imposition liability such that is *8 Moreover, (Ind.Ct.App.1992). jury is to justified. Township Adams Hamilton of in great making be afforded latitude dam Sturdevant, 87, 570 N.E.2d 90 County v. Kimberlin v. age award determinations. A tort- (Ind.Ct.App.1991), trans. denied. (Ind.1994), 121, 129 DeLong, 637 N.E.2d generally feasor takes a victim as he finds 829, 98, denied. 516 116 S.Ct. cert. U.S. White, him. Brokers Inc. v. 513 See (1995). pain, 133 L.Ed.2d 53 Awards for 200, (Ind.Ct.App.1987). N.E.2d 204 and mental suffering, fright, humiliation accident, prov particularly within the Immediately following anguish are they involve the jury the van back to ince of the because Gregory drove G.T.E. credibility of evidence and of wit headquarters weighing and then went to receive nearby facility. Landis, at a medical He treatment 664 N.E.2d nesses. Landis v. 754, follow-up (Ind.Ct.App.1996), treatments from 757 trans. denied. later received 56 damage physical suffering believe that c. The and mental

We seope experienced reasonably [and award was within of evidence certain that at trial and the trial court experienced to be in the to future] due province improperly invaded the injuries. pursuant trial jury when it ordered new expense d. The reasonable of neces- 59(J)(7). addition, Trial In we find to Rule care, sary medical treatment and ser- jury no evidence that the was motivated expenses vices [and reasonable of prejudice, passion, partiality, corruption or care, future medical treatment and improper consideration of some element. services]. Supreme mandated Indiana Court has appeal, presume R. 66. On we will judg and reinstatement of the reversal jury followed the law contained within the ment where "the court overrides the [trial] trial applied court's instructions and

jury special its domain and substitutes to the evidence law before them. Griffin its verdiet for theirs without a clear show Acker, 659, (Ind.Ct.App.1995), v. 659 N.E.2d 664 ing justice required that the ends of it." ns. denied. tra White, (Ind. 474 State v. N.E.2d 1000 1985). cases, plaintiff may A personal injury In recover trier reasonable required of fact is value the medical services not award substantial income, him injury, pro rendered to because of an damages permanent for lost im pairment, pain necessary. or vided were Smith suffering; an award services damages only Inc., (Ind. of no or damages nominal Syd's, v. 598 N.E.2d 1992). possible It was for the may appropriate for these items be if the plaintiff's conclude that a actual evidence so warrants. Baker medical See Co., expenses were not Champion Motor Home reasonable neces sary and damages award an amount less 149-150 trans. de expenses, although than those the actual nied. paid expenses amount for medical can be Furthermore, the trial court ten evidence of the reasonable value of the following jury: dered the instruction to the Becker, provided. services Dee v. See you If preponderance find from a of all (Ind.Ct.App.1994). N.E.2d It is the evidence that the defendant is Hable jury's responsibility to evaluate the plaintiffs plaintiffs to the and that have plaintiffs reasonableness of a claimed suffered damages, you then must decide damages. Id. Based on the court's ten money fairly the amount of that will instruction, may dered we assume that the compensate plaintiffs proven for each jury determined that Grego the amount of damages. element of ry's expenses contested medical were not In deciding damages, you these must Therefore, necessary. reasonable or we consider the following: granting reverse the trial court's order a. The nature inju- and extent of the Motion to Correct Errors favor by plaintiffs. ries sustained Hobbs' and remand with instructions to injuries b. Whether the tempo- are the trial court to reinstate the verd *9 icts.3 rary permanent. or

3. We Estep, note that this court in direct result of an accident v. automobile caused Manzo negligence. by the defendant's We affirmed (Ind.Ct.App.1997), reversed ($0.00) jury's damages ($0.00) the verdict of zero for jury's damages the award of zero to plaintiff injuries injuries argued pre- she incurred as a defendant at trial stipulation as to certain pay- medical

Conclusion having ments been made on his behalf. It we hold that the foregoing, on the Based jury regarding appropri- cites instructions special findings of fact suffi- trial court's jury's ate considerations as to the decision complied requirements with the of ciently damages. majority on The then reverses 59(J)(7). However, we hold Trial Rule the order for a new trial upon based its was within the damage that award conclusion that the evidence does not "con- and the trial court scope of the evidence clusively prove[ ] that the automobile acci- province improperly invaded injuries" in Gregory's dent resulted inas- pursuant in a new trial to jury ordering jury much as presented "was with 59(J)(7). Therefore, reverse Trial Rule we Gregory's ‘injury that evidence and result- to grant the trial court's of the Motion ing pain from chronic and severe head- Errors favor of the Hobbs' Correct pre-existed aches the automobile collision." with remand to the trial court instructions jury to reinstate the verdicts. returned a verdict for Gregory, finding negligent. that Neher was To and remanded with instruc- Reversed majority extent that the concludes that the tions. jury could have found that all medical expenses by Gregory RILEY, J., concurs. incurred did not nee- accident, essarily result from the I agree. DARDEN, J., opinion. with dissents However, undisputed given the evidence DARDEN, Judge, dissenting. that that this was a serious accident and Gregory immediately undergo did medi- respectfully I dissent. I believe that accident, at least cal examination after the upon finding negligence on the jury's must have been incurred as damages some defendant, its failure to award part of the may It a result of the accident. be plaintiff to the cannot be any damages in such a damages nominal would suffice evi- simply sustained unless there is no here, damages But no were awarded case. plaintiff any that the suffered dam- dence that it is not reasonable for one suggesting age whatsoever. accident to seek involved an automobile by majority, As noted after Neher's any injury a medical evaluation as driving, car the van was struck therefrom. Gregory "immediately" sought treatment case, I with majori- Upon agree the facts of this nearby facility." "at a medical damages "follow-up the trial court that the verdiet ty Gregory's *10 law, I affirm the order for a to and would In re the PATERNITY OF C.R.R. damages.

new trial on the issue of Peterson, Appellant-Petitioner, Karen ORDER having heretofore This handed Court Wallace, Appellee Leonard Walter appeal April in this opinion

down its -Respondent. Decision, Memorandum Not marked Publication; and, No. 49A04-0101-CV-37. counsel, Appellant, by Comes now the Appeals Court of Indiana. and files herein Petition Publish deci- May sion, therein that said decision alleging a rule of clarifies modifies law con- and/or July Publication Ordered validity of an of zero cerning award finds the defen- damages when prays this

dant liable Court order published,

the decision to be which said following

Petition is in the fig- words and

ures, to-wit:

(HL) Court, having

And the examined said advised, duly being

Petition and now finds granted

that said Petition should be opinion in appeal this Court's this published.

should now be ordered

IT IS THEREFORE ORDERED'as

follows: Appellant's

1. The Petition to Publish - granted opin-

Decision is and this Court's

ion heretofore handed down in this cause 18, 2001, April

on marked Memorandum

Decision, Publication, Not for is now or- published.

dered notes treatments $0 contrary contrary to the evidence and practitioners," from various medical and was injuries damages plaintiff for she incurred the automobile accident. Id. at 476. existed However, we of a work-related accident. as a direct result and ordered a new reversed regarding damages plaintiff trial that were a direct enti- We held in Hixson that the accident, undisputed undisputed med- actual medical dam- tled to the result of the actual present damages. However, at 477. In the ical Id. plaintiff's inju- ages. Id. at 71. case, the defendant evidence that clearly were a direct result of ries in Manzo injury pre-existed the automobile acci- Hobbs' work, pre- at no evidence was the accident actual undis- dent and that there did not exist complained that the sented the defendant puted damages. medical injuries pre-existed the accident. Id. Machines, Although and Hixson were both Recently Inc. Manzo in Precision Screen present helpful reaching decision in the our Hixson, 711 N.E.2d 68 case, opinions one of the have grant neither we the trial court's of a new affirmed ($0.00) pattern that exists here. awarded zero same fact trial where