*1
ence
robbery
prosecutorial
the armed
of the
verdict on
misconduct does
jury
not
necessarily
because there
constitute
Myers,
Mrs.
reversible
employee,
error.
second
Only
prosecutorial
was “in fear” at the
where the
proof
no
that she
misconduct
was
places
While it is true
“in
money
position
grave
was taken.
defendant
time her
testimony
equivocal peril”
judge’s
was
will the
decision
Myers’s
Mrs.
be
reversed.
State, (1976)
she first became Maldonado v.
the exact moment
265 Ind.
as to
afraid,
reasonably
of fear can
N.E.2d 843. Even if error
by
an inference
occurred
not
robbery.
granting
an act of
Burton
a motion for mistrial
be drawn from
not
State, (1973)
adequately admonishing
n. color The pattern. improper remarks that it The defendant next contends directed toward the alibi witnesses would deny court to his was error for the trial persuasive not have much effect on the jury fail to admonish the motion for mistrial and light unequivocal of this identification alleged instances of miscon testimony. after two No reversible error has been During the deputy prosecutor. shown. duct Jimmy Spearman, the
direct examination of foregoing For all the reasons there was questions two deputy prosecutor asked judgment no trial court error and the trial for the same Spearman’s prior about trial court should be affirmed. trial been Spearman said his had crime. Judgment affirmed. charges against that the him continued and ar dropped. The defendant had then been GIYAN, J., DeBRULER, PREN- C. been admon gues that the should have PIVARNIK, JJ., TICE and concur. disregard time to these two ished at this they since bolstered questions and answers credibility of the state’s witness. alleged prosecutori- other instance of during the cross-ex-
al misconduct occurred witness, Harvey
amination of the defense deputy prosecutor Cummings. CO., INDEMNITY TRAVELERS Cummings testimony about his questioning Defendant-Appellant, prior why trial and it was Spearman’s at testimony his at this trial. different from ARMSTRONG, Orrie L. he could not re- Harvey stated that After Plaintiff-Appellee. testimony, deputy previous member his said, recall. You “You can’t prosecutor No. 3-1075A228. then, Harvey Cummings, lying were Indiana, Appeals Court of objected The defendant you’re lying now.” Third District. and moved for a mis- to these comments Jan. 1979. motion was overruled. trial. This improper for it is true that it is While personal opin- his express
either advocate to witnesses, the exist- veracity
ion *4 including home the installation of a new
furnace, kitchen cabinets and aluminum sid- ing. Armstrongs moved into a new home after Armstrong retired, John but they ownership farmhouse, retained which was rented to a family with six chil- dren. Armstrong Orrie continued to modernize Hughes, Winfield L. Houran and John E. after farmhouse her husband’s death. Clifford, Houran, Wagner Hoeppner, & Ev- These improvements included: the addition
ans, for Valparaiso, defendant-appellant. closets; of two the installation of hardwood George Douglas Doug- H. W. and James paneling ceiling living room, tile to the las, Douglas, Douglas Douglas, Valparai- & dining room, four, second-floor bed- so, plaintiff-appellee. rooms; and new floor tile the dining room. Armstrong Orrie testified that the HOFFMAN, Judge. very good house was in condition. Armstrong (plaintiff-appellee; Orrie L. In July Orrie Armstrong renewed Insured) owned farmhouse which suffered for three years a pol- farmowners insurance severe interior fire on October icy issued Indemnity the Travelers Com- 1972. A of insurance issued pany, through the John R. Eppl Insurance Indemnity (defendant- Company *5 Hammond, Agency of Indiana. Prior to the appellant; Travelers) provided coverage for renewal Eppl date advised the insured to $15,000. the house to a limit of A Travel- increase the amount of coverage applicable adjuster surveyed damaged ers’ claims the to the farmhouse because the of cost build- premises repairs and estimated the of cost ing materials had escalated. The coverage the by necessitated fire. When Travelers accordingly $15,000. was raised to a limit of to the pay offered to Insured an amount of On the 10,1972, afternoon of October fire money substantially less than the estimated caused extensive interior repairs, cost of she refused offer the and day farmhouse. Within a the Insured noti- brought alleging this action of con- breach agent fied her the of loss. On October deceitful, oppres- tract and fraudulent and 1972, Wayne Bognar, a investigator claims sive conduct. Travelers, for Corgich and Mike of General a plain- The returned verdict for the Repair inspected Contractors damaged the compensatory damages tiff which included premises in to order estimate the cost of $8,729.62 punitive in the amount of and repair and by restoration the occasioned $25,000. by damages stipulated of As the Bognar fire. Corgich surveyed and each parties, court computed the trial interest at room noting required all items which re- per the rate of annum on amount of 8% the placement, repair, painting cleaning. or compensatory damage award. The Bognar Within a week telephoned the judgment court then entered on verdict. Insured and her that told the estimated cost appeals judgment. that $8,729.62. repair of Bognar was offered to judgment The facts favorable to the most $4,200 pay approximately cash In- logically and the reasonable inferences $6,400 repair, sured if she not to chose to disclose Orrie L. flowing therefrom that a repair contractor if Insured to were Armstrong was owner of an old farm- Armstrong Bognar house. Orrie asked Hebron, house one mile of offer, located west explain and he that responded husband, Armstrong Indiana. Mrs. and her except he did not it understand himself that John, in who died March of lived in something there “was in the pol- ... twenty years icy raised a percentage-wise” house for that was the prop- living While house the family erty sufficiently there. was not insured to take (cost Armstrongs improvements repair). made various care of it of $4,288.58, and com- because the condition refused the offers Insured The effect, was that she Bognar, house warranted a 50% mented to across-the-board de- Insured a fair The than deal. getting less reduction. preciation attorney. then retained Travelers, supervisor A for Kevin Wein- Wayne Bognar testified that The Insured the Insured’s berg, attorney by contacted although she courteously, her dealt with letter on June 1973. Enclosed with the by offered with the settlement disagreed a letter was draft in the amount of him. $6,497.22 repairs to the Insured’s dwell- explained The letter that this ing. figure of bank- McGinley years had 39 Robert S. reducing the original was determined Hebron, For a Indiana. ing experience repair estimate a 25% across-the-board fire, McGin- prior period years depreciation factor so as to avoid better- Hebron property in the ley appraised had one-hundred-year-old ment of house. a or three times average two area on the opined Weinberg depreciation that a reduc- appraiser McGinley and another week. very just 25% only produced tion of farmhouse fol- inspection made an inspec- fair offer to Insured. The The offer was purpose the fire. lowing refused, value of the and the was returned. to determine the draft tion was cost of and to house estimate damaged initial of the attempted The disclosure livable condition. restoring the house reduction was made Travel- house was serious- McGinleynoted 1, 1973, letter, ers in the June more than required ex- ly and all rooms damaged seven months after the fire. dam- as a result of the fire tensive past experience his McGin- age. Based on ISSUES:1 repair to ley estimated the cost of roughly judgment the trial court is com- value of $8,500. The estimated be parts: compensatory of three prised dam- the fire of the land before house exclusive ages, punitive interest thereon and dam- value of the $15,000. The estimated appellant ages. alleges judg- $6,500. McGinley fire after the house is,, parts, in all contrary ment to the evi- *6 de- fire expressed opinion the that Appellant and to law. contrary dence also by value of the house creased the claims error the admission of certain repair the money necessary to amount of testimony and in giving the trial court’s and damage. give to failing certain tendered instructions. he and a Bognar that Wayne testified the dam- thoroughly inspected contractor I. COMPENSATORY DAMAGES inspection that aged Based on premises. payable The loss by clause contract at repair cost of necessitated estimated $8,729.62. was bar states: estimate This fire and and to be fair reasonable [Tjhis admitted . Company “. . ... to following components: of the sum amount(s) an amount not exceeding the specified, above does insure the Insured $1,688.45 Material 5,465.61 to the extent of the actual cash Labor Profit, Overhead, 1,575.56 value of the the time Taxes property at of the loss, exceeding but not the amount adjust- mistakenly that he Bognar stated cost replace it would or policy inapplicable under an ed this claim property with like set- material of kind and offer a provision which caused him to Bog- quality within reasonable time It was a after to the Insured. tlement choice . against a such loss . all DIRECT authorized opinion policy that nar’s BY . . no more than LOSS FIRE payment to the Insured of questions appellant which fact presented involve common of law and have 1. Issues purpose been combined for of discussion. parties that the stated that the “contract of the undisputed by the insurer is It is that, burned, if property not contain coinsurance not is contract did he will value; clause. pro pay or a rata its market but that he will clause assured, is, indemnify the that save him Indemnity Company accu- The Travelers harmless, put good condition, him in as liability under the its rately claims practicable, so far as as he would have been to the actual cash value of policy is limited Washington in if no fire had occurred.” by the in- loss fire suffered the direct v. Weymouth Mills Manuf. Co. Ins. Co. Nevertheless, phrase plaintiff. sured 503, (1883), 135 Mass. 506-507. nowhere defined in cash value” is “actual insurance, parties and this it is well settled that the con Since disputed meaning. its contract have cept indemnity every underlies fire in value, argues that actual cash contract, surance it is clear the indemnity policy, replacement in this means as used pervasively interpretation affects the cost—minus—depreciation. The Insured operation payable of loss clauses in such actual cash value is an ex- contends contracts. While Indiana courts have not the full monetary terms of di- pression pass meaning had occasion to on the contemplated by as rect loss fire payable disputed, loss clause here courts in the insurance con- indemnity concept jurisdictions other have considered the that a The Insured further contends tract. meaning phrase “actual cash value” factually is not for deduction in the context of similar contracts and fac case, to hold other- supported in this settings. tual produce a result far short of wise would In Fed as v. Insurance Co. of State indemnity. (1930), 555, Pennsylvania 300 Pa. 151 A. prepared An insurance contract Supreme Pennsylvania Court of compa solely by the insurance and drafted reviewed an action on a poli fire insurance and, thus, subject bargaining no real ny cy partial dwelling for the destruction of a Freeman v. Com a contract of adhesion. goods. and household The clause in the monwealth policy was identical to that in the at case (transfer denied) “ 259 Ind. N.E.2d 177 except bar the measure of loss was ‘[a]ctu Therefore, when a court is 396. 286 N.E.2d (ascertained proper al cash value with de contract, ” interpret an insurance required depreciation) ductions . . . against will be construed ambiguities Notwithstanding the mention of deprecia the insured. Id. and in favor of the insurer policy, tion in the the court held that actual rea ambiguous contract is if An insurance cash value means what it would cost to men, reading the intelligent upon sonably building chattel replace a or a at date of *7 contract, honestly as to its would differ the fire. The court reasoned that in the v. American Ins. meaning. O’Meara States partial case of a loss the determination of 563, 109. (1971), Ind.App. 268 N.E.2d 148 Co. actual cash value must consider the use and ambiguo contract at bar is The insurance property integral of and its function us.2 position in an entire structure. Since policy contemplates recovery a sufficient to policy A insurance is a contract fire insurer, replace nearly as as property in ex indemnity whereby the of to the as of the date of money (premi possible consideration condition change for a fire, payment whole of a lesser amount um), to make the insured undertakes indemnifying would defeat the essential property of insured caused for the loss See, purpose policy. g.: Boston Insur e. Farber v. First National Bank v. fire. 159, (1952), 480, (1958), 149 Perkiomen Mut. Ins. Co. 370 Pa. Ill.App.2d 17 ance Co. 776; 420; (1934), Ins. Co. 88 A.2d Metz v. Travelers Fire Ins. Co. Butler v. Aetna N.E.2d 342, 764, (1946), 711. 214. It has also been 355 Pa. 49 A.2d 64 N.D. 256 N.W. Insurance 915. § 2. See: 45 C.J.S.
614 persuaded’by v. Breeze This Court is not the rea- Falls Ins. Co. Gulf
In Glens
828,
Fla.,
soning
the Flor-
or the rule of the Braddock case
(1949),
38 So.2d
Cottages
accomplish
the measure
because it fails to
the essential
Supreme Court considered
ida
purpose of the insurance
ten-year-old
indemnifying
a loss to a
con-
indemnity for
bought
hurricane.
tract. Plaintiff Braddock
insurance
by hailstorm and
caused
roof
protection against casualty.
meant the
A
actual cash value
windstorm
said
The court
roof,
destroyed
fifteen-year-old
to make the
his
and the
money required
amount of
replace the
repairs
place
so as to
cost to
roof was
His
$247.
economical
most
company arbitrarily
in the same condi-
insurance
reduced the
nearly
possible
as
as
roof
loss,
replacement by a depreci-
without allow-
estimated cost of
existing before
tion
then further
for materials used. See
ation factor and
reduced
ing depreciation
by subtracting
Mutual Insurance
settlement
a
deductible
Liberty
Sperling
$50
also:
297, (fire
Fla.,
provided
amount
(1973),
policy.
281 So.2d
as
The re-
Company
figure,
sultant
loss).
offered to Braddock
set-
tlement, was
While Braddock had a
$11.
case of Braddock v.
offers the
loss,
fifteen-year-old roof before the
Tenn.,
Corp. (1973),
493
Fire Ins.
Memphis
protection provided by
his insurance
453,3
a
support
deduction
S.W.2d
him with
building
left
a roofless
and $11
a class action
The case was
depreciation.
subtracting
after the loss. Without
the de-
companies,
insurance
against numerous
suit
amount,
loss,
ductible
the value of the
as
all
sought to set aside
plaintiffs
wherein
insurer,
contended
Braddock’s
was $61.
any depreci-
in which
insurance settlements
replace
sum
was insufficient
$61
The Tennessee
employed.
ation factor
efficiency
the functional
of Braddock’s roof.
acknowledged that a fire
Supreme Court
Thus,
construed,
policy,
as
failed to
indemnity.
policy is a contract
insurance
indemnify Braddock.
replacement
that the
determined
The court
and the
The Insured offers the case of General
-less—depreciation formula
cost—
Rlty. (1966),
ac-
Adv. v.
operate
would
Outdoor
LaSalle
evidence rule4
broad
Although
reasoned that a
pra.
record establish that the house was nearly
policy
insurance
serves to insure
However,
years
one hundred
old.
the fire
exceeding the amount stat
against loss not
damage
primarily
confined to the inte
limit,
of
policy
payment
and the
ed
house,
complete
rior of the
which had been
limit, which is not
an amount less than the
ly
during
ten-year
refurbished
period
the
replace
to restore or
the function
sufficient
fire,
preceding the
majority
and the
of the
efficiency provided by
property
the
be
al
improvements
eighteen
were made within
loss,
comply with the
does not
fore
months of the fire. The Insured testified
policy. Id.
good
prior
that the
was in
condition
house
by the
fire. Her statement conflicts with
The risk of loss underwritten
at the issuance of the Wayne Bognar’s testimony
age
is not fixed
that the
insurer
rather,
subject
the risk is
to fluctua
policy,
condition
home
warranted a 50%
wrought by
passage
of time and
tions
depreciation reduction.
affecting the
changes in circumstances
responsibility
It was the
result,
the risk is nec
thing insured. As
weigh
conflicting
and resolve
evidence and
by changing economiccon
essarily affected
upon
to reach a conclusion based
the evi
ditions,
as,
increasing
of labor
costs
such
they
dence
found most credible. Fruehauf
it is the insurer’s
materials. Because
Trailer
v.
Division
Thornton
Ind.
whole
undertaking to make the insured
App.,
Clearly,
ance. Farber
Robert
a bank officer in He-
McGinley,
supra.
bron, Indiana,
that he and another
testified
appraiser surveyed
damaged premises
Therefore,
actual cash
phrase
that the
McGinley
after the fire.
estimated
value,
of the fire insur
within the context
(excluding
fair market value of the house
bar,
at
means
policy in the case
ance
$15,000.
land)
the fire was
before
limit,
within the
money,
amount
past experience
roughly
he
Based on his
restore,
repair,
replace
sufficient
$8,500.
repair
estimated the cost of
to be
Falls Ins. Co.
destroyed. Glens
property
McGinley
expressed
opinion
then
Fedas v. In
Cottages, supra;
Breeze
Gulf
the value of the
the fire
decreased
Pennsylvania, su
surance Co.
State
money
the amount of
needed to
house
Equita
of American
pra; Third Nat. Bank
testified
damage. McGinley
also
Co., supra; Cf.: General Outdoor
ble Ins.
appraised property in the He-
supra.
that he had
Rlty.,
Adv. v. LaSalle
*9
jury. Accordingly, no abuse of dis-
for the
of two or three
average
on the
area
bron
demonstrated.
He was
has been
twenty years.
cretion
a week for
times
it
and knew
the farmhouse
with
familiar
the verdict is
next claims
Travelers
he
although
recently remodeled
had been
evidence.
supported by
not
sufficient
years
the house five
inside
been
had last
determining
judg
whether a
In
the fire.
before
evidence,
by sufficient
supported
ment
is
opinions
value
objected
weighs the evidence nor
Court neither
this
McGinley
claiming that
McGinley
by
stated
Rather,
credibility.
of
questions
resolves
he
expert
as an
because
qualified
not
only the evidence most
views
this Court
condition of the
with the
familiar
was not
judgment,
together with
favorable to the
prior to the fire.
immediately
home
flowing therefrom.
logical
inferences
all
to tes
of a witness
The qualification
Inc. v.
Rieth-Riley
Company,
Construction
of
is for the determination
expert
tify as
N.E.2d 844.
(1975), Ind.App., 325
McCarrell
court,
will be set
whose decision
the trial
evidence that
jury
The
heard
abuse of
there is manifest
only where
aside
estimate of cost to re
fair and reasonable
Kuechenberg
v.
McCraney
discretion.
$8,729.62.
damage was
Other
171;
pair the fire
629, 248 N.E.2d
Ind.App.
(1969), 144
damage
established that
the fire
evidence
v. Monesmith
R. Co.
Chicago & Erie
house,
to the interior of the
was confined
281, N.E.2d 724.
extensively
recently
which had been
517,
(1901), 157 Ind.
v.
In Isenhour
State
appraiser
An
testified that the
remodeled.
the court said:
62 N.E.
fire
decreased the value of the
up
to set
undertaken
have never
“Courts
money necessary to
by
house
the amount of
knowledge by
of scientific
a standard
its
liveable con
restore the house to
former
may
a witness
competency of
which the
dition.
determined,
gone to the
and have not
be
witness
evidence in the trial
a scientific
There is sufficient
holding that
extent of
men
facts learned
from which reasonable
could
testify from
record
only
can
The
property
demonstration.
conclude that
the insured
personal
from
him
state,
cases,
$8,729.62.
at
in this
the amount of
damaged by
rule in such
fire in
general
that,
witness
least,
where a
seems to be
was instructed that
knowledge,
degree
exhibits such
policy
required
of insurance
the defendant
observation,
experiments,
gained from
plaintiff
the full direct loss
pay
to
source,
books, or other reliable
standard
within
limits
occasioned
fire
opinion is of
appear that his
to make it
as
provi
contained no
policy, and
leav-
value,
testify,
entitled to
he is
some
required
or authorized a reduc
sions
court,
in the exercise
the trial
ing to
the amount of the
coverage
tion of
below
when
discretion,
right
say
sound
loss.
full direct
shown,
is
and to
knowledge
such
objected to this in-
Defendant Travelers
opinion
what
right
say
incorrect
calling
struction
it “an absolute
worth; and,
of dis-
all other cases
as in
interpretation”
policy.
Travelers ob-
cretion,
the action
will review
this court
further, claiming
policy says the
jected
discre-
only when that
the trial court
“replace
property
with ma-
insurer shall
to have been
clearly appears
tion
quality
terial of like kind and
within
abused.”
being impossible,
reasonable time” and
ap
extensive
McGinley’s
view of
In
was entitled to a reduction
defendant
general
his
familiari
experience and
praisal
unjust enrichment.
damages on the basis of
house,
objec
apparent
it is
ty with
on
Travelers did not tender an instruction
at the
by Travelers is directed
posed
tion
chose,
damages
but
proper
measure
expressed in
As
weight of the evidence.
instead,
ten-
object
to the instruction
State,
oth
supra, and numerous
Isenhour
objection
plaintiff.
dered
cases,
weighing evidence
the task of
er
*10
$6,400
policy
merit. The
approximately
is without
to a
instruction
contractor for
$4,200
repairs
the insurer shall “re-
or
does not state
cash to her if she chose
” Rather,
.
.
.
property
repair.
Insured,
the
not to
place the
The
believing the
company
the
insures “to
policy
coverage
states that
insurance
pay
sufficient to
the
actual cash value of the
the extent of the
repair,
entire cost of
adjuster
asked the
loss,
at the time of the
but not
property
explain his offers. Wayne Bognar, the ad-
which it would cost
exceeding the amount
juster, said that he did not completely un-
repair
replace
property
with mate-
himself,
derstand it
but there was some-
quality
kind and
.
.
.
rial of like
thing
policy percentage-wise
and the
Whereas,
there
no evidence
es-
insurance
high enough.
was not
He further
impossibility
with
tablished
explained
policy provision required
that a
quality,
objec-
material of like kind
the reduced offers.
posed by
properly
Travelers was
de-
tion
The Insured refused the offers. The
nied,
error was committed. There
and no
same offers were extended in December
awarding of compensatory
was no error in
January
1972 and
1973 and on both dates
damages.
were
by
refused
the Insured’s attorney.
Weinberg,
Kevin
a
supervisor,
Travelers
II. PUNITIVE DAMAGES
attorney by
contacted the Insured’s
letter
$25,000
jury
punitive
The
awarded
1,1973,
on
enclosing
June
therein a draft in
plaintiff.
Travelers
damages to
claims
$6,497.22
the amount
repairs
for
punitive
award is erroneous for the
dwelling.
figure
Insured’s
This
was deter-
following reasons:
by reducing
mined
original repair
esti-
(1)
overruling
the trial court’s
defend-
by
mate
deprecia-
25% across-the-board
judgment
motions for
on the
ant’s
tion factor so as to avoid betterment of the
error;
evidence was
one-hundred-year-old house. The offer was
(2)
supported by
verdict is not
suffi-
refused, and the draft was returned. This
law;
contrary
and is
cient evidence
by
letter marked the first disclosure Travel-
attempted
ers of
reduction.
erroneously
(3)
instructed.
admitted, by
interroga-
Travelers
written
per-
following
summary
is a
facts
tories
by testimony,
read into evidence and
raised
Travelers:
tinent
to the issues
that there were no policy provisions which
interior
Fire caused severe
required the offers first extended to Mrs.
by the Insured. The en-
farmhouse owned
Armstrong.
$15,-
was insured to a limit of
property
tire
judgment
Travelers moved for
on
evi-
Indemnity Company.
the Travelers
plaintiff’s
dence at the close of the
case-in-
previously been insured
property
had
chief and at the
all
conclusion of
the evi-
amount,
Eppl,
but John
for a lesser
dence.
alleges
error in the denial
Travelers, advised the Insured to
agent for
claiming
of those motions
there was abso-
guard against
limit to
increase the
lutely
oppressive, malicious,
no evidence of
materials. A
increasing
building
cost of
or fraudulent conduct.
Travelers, accompanied
adjuster for
claims
contractor, surveyed
damaged
The law is clear in Indiana that a
by a
repairs
(di
motion
judgment
and determined that
on the evidence
premises
verdict)
rected
where there
by the
fire would cost
must be denied
necessitated
$8,729.62.
any
legitimate
esti-
evidence or
This fair and reasonable
inference
materials,
tending
support
cost of
therefrom
at least one of
mate was the sum of the
taxes, overhead,
allegations. Where there is
labor,
profit.
In No-
evidence
differ,
adjuster
upon
might
contacted
which reasonable minds
1972 the claims
vember
con
telephone
improper,
and disclosed to
directed verdict is
and the
the Insured
flicting evidence should be left for the
repairs.
cost of
He then
her the estimated
pay jury’s resolution. Mamula v. Ford Motor
that Travelers would
told the Insured
case,
present
275 N.E.2d
(1971), 150
rea
Co.
In
*11
Procedure,
849;
fraud,
Trial Rule 50.
have
sonably
Ind. Rules of
could
found elements of
malice, gross negligence
oppression
or
min
which
jury
heard evidence
gled with the breach of contract. The evi
misrepresentation
to establish
tended
that
policy provisions
dence established
Travelers claims ad
by a
policy provisions
misrepresented
plaintiff.
were
to the
Al
to
was sufficient
juster. That evidence
though
misrepresenta
Travelers
claims
verdict.
avoid a directed
mistake,
tion was a
there is no evidence
that
the verdict
next contends
that the mistake
shows
was admitted
supported by
is not
punitive damages
Furthermore,
or corrected.
the offers
contrary
is
to law.
evidence and
sufficient
misrepresentation
on the
based
were twice
support
to
this con-
reasoning
advanced
Then,
reaffirmed.
seven months after the
gener-
are
punitive damages
tention is that
fire,
theory
Travelers advanced another
contract actions. Fur-
ally
allowed in
not
justify
pay
a steadfast
refusal to
the esti
evidence,
thermore,
as characterized
repair.
mated cost of
Travelers stated that
Travelers,
this case
clearly establishes
liability
policy language
its
under the
good
than a
entirety
nothing
less
in its
repair
limited
cost
minus a 25%
dispute.
faith
reduction,
depreciation
across-the-board
and
general
rule that
While it is
they
computed
offered
amount so
available in con
damages are not
punitive
Insured.
actions,
exceptions
there are
tract
theory
deprecia-
This
of across-the-board
party,
the conduct of
rule. Where
tion is outside the bounds of reason and
contract,
independently estab
breaching a
n
logic. Assuming arguendo
proper-
that the
tort,
a common law
lishes the elements of
ty damaged by fire had diminished in value
damages for the
punitive
the assessment
tear,
age,
as a result of
wear and
or inade-
Sales,
Auto
Inc. et
proper. Murphy
tort
maintenance,
quate
diminution
val-
709,
(1953),
Ind.App.
et al.
123
a l. v. Coomer
logical
ue would bear no
relevance to the
ages added). (Emphasis per annum.”
on at 8% in the interest .computed
The trial court $1,785.13 and included
amount of judgment.
amount that the trial court’s contends CARSON, Wyvonia Appellant any improper, and interest award of (Defendant below), in- computation is event, mathematical *13 accurate. any effectively removes stipulation The Indiana, Appellee STATE inter- legal propriety question .of (Plaintiff below). Further- case. present est award wholly failed to No. 1-478A102. more, has since inaccuracy the mathematical demonstrate Indiana, Appeals Court of, has been shown. no error complained District. First court in all of the trial judgment hereby affirmed. matters Jan. 1979. Affirmed. J., by desig-
ROBERTSON, participating
nation, concurs. J., opinion.
STATON, with concurs concurring.
STATON, Judge, how- majority opinion,
I with concur of “actual
ever, the definition I feel clarification. needs additional value”
cash ra- its definitional majority predicates aspect of indemnity upon the
tionale that indemni- policy. It assumes
insurance restora- a functional necessarily includes
ty of “actu- This definition of the whole.
tion practical result ignores the
al cash value” may have of a house interior restored new materials with accomplished
to be may in- than used materials
rather of the house. value
crease the market “actual cash not define did Since existed, the ambiguity and since
value” the insur- against
ambiguity was construed Furthermore, of some
er. of a house the interior parts of
structural