*1 Family Company v. Life Insurance United Ray Fultz, Fultz, Fultz, Fultz, Jr., Leon Thomas C. John Jr., Cone, Fultz, Ad Litem Guardian of Robert Ray John Fultz 1, Rehearing April denied June 1978. 1-277A25.Filed 1978. [No. August Transfer denied 1978.] *2 Hand, Hin- Indianapolis, George W. Scotten & E. Spencer, of Frank Free, Brand, shaw, Castle, A. Ging, Free & of Green- Stephen of New Evans, Bose, McKin- field, William M. Wayne, Clagg, Thomas L. of Ft. Evans, for of Indianapolis, ney & appellant. Dunsmore, White, James R. R. Clark Knightstown,
E. Edward of Castle, Allen, for appellees. of New THE
STATEMENT OF CASE Life Family Bureau Defendant-appellant LYBROOK, P. United Farm J. (Farm Bureau) in from a favor Company appeals Insurance (Chris), who punitive Chris Fultz was awarded plaintiff-appellee policy. action to recover benefits under an insurance damages in an
FACTS (Robert), Fultz, the husband of was insured under Robert Fultz Chris $30,000 year decreasing term life insurance which had been policy, ten 1973, a.m., 5, July 2:00 approximately issued Farm Bureau. On killed as he on the in the mysteriously slept shot and sofa Robert was in which he and were After living. front room of the trailer Chris funeral, Chris, beneficiary who was the of Robert’s Farm Robert’s to collect the of that policy, sought proceeds Bureau life insurance policy. application
Before Bureau acted her for the upon proceeds, Farm had Chris, when she that she had been the bedroom sleeping who said Robert, was, neverthless, by the shot that killed indicted was awakened tried Robert’s murder. When her trial ended acquittal and November, collect Robert’s again sought proceeds Chris policy. life insurance effect, Bureau, counsel, Chris, its told
Farm the advice of the issue charge dispositive her of the criminal was not acquittal life insurance of the beneficiary proceeds to receive the proper of the designated Robert had Bureau Chris explained Farm policy. John, sons, Robert, Jr., and estate, three which included Robert’s his if for Leon, beneficiary policy, of the life insurance to be an alternate beneficiary the policy. under not to be a eligible reason was some Chris of the policy pay proceeds that it could not Bureau told Farm Chris ineligible she was an existed that long possibility as the to her as beneficiary of the proper estate was the beneficiary and that Robert’s policy. 28,1974, against action January brought an
On Chris to recover punitive the insurance and policy recover the for, to pay Bureau’s bad faith refusal alleged, of Robert’s after she had been policy acquitted her the proceeds the face amount of the In its answer Farm Bureau tendered murder. court, Robert’s that Robert’s estate and requested and policy Fultz, heirs, Fultz, Jr., Leon Fultz be Ray statutory John Procedure, defendants; and, to Ind. Rules party pursuant made cross sought interpleader so Trial Rule beneficiary eligi- litigate estate could the issue of which Robert’s *3 Interpleader of the life insurance policy. ble to receive the of the estate nor granted, personal representative was but neither in the A ad litem1 guardian ap- Leon Fultz made action. Appearances Robert, in the action to the interest of Jr. and John. represent peared Bureau was not to withdraw from the action even permitted Farm for the reason though policy it had tendered the face amount and the of concerning punitive damages payment that certain issues complaint. additional interest were raised Chris’ portion Bureau a motion to dismiss the of com- Farm made Chris’ contending complaint which failed sought punitive damages plaint bar, appointed of the action the case Chris 1. At the commencement Fultz, Ray proceedings, Later in the and John Fultz. guardian litem of Robert Jr. ad litem, Chris, trial, guardian not ad could the trial court determined that but before Robert, of in- because of her conflict adequately protect the interests of Jr. and John Therefore, guardian party to be the ad litem appointed a disinterested terest. Court Robert, guardian subsequent ad place. It was not until this and for Jr. John Chris’ Robert, appeared in the action and made a claim and John appointed that Jr. litem was policy. insurance proceeds of Robert’s for the to state a could have been punitive damages claim award- complaint ed. to amend her and was to do so sought permitted Chris fraudulent, malicious, specific in order to include of and allegations activity on the Farm oppressive part of Bureau. Farm Bureau filed a motion to strike II of amended paragraph complaint alleging Chris’ activity it was insufficient to raise the of fraudulent on question of The Farm Bureau. court sustained Farm Bureau’s motion to strike.
By motion to reconsider its requested ruling court on Farm Bureau’s motion to strike II of amended paragraph complaint. Chris’ The court and its changed prior ruling reconsidered Farm overruling Bureau’s strike II motion to amended paragraph complaint. dismissal, moved for again pursuant Rules of Pro- 12(B)(6). cedure, Trial A hearing Rule was held Farm and Bureau’s motion was denied.
A trial was held on August 1976. At the close of Chris’ evidence, evidence Farm Bureau on filed a motion for judgment seeking to have the question punitive damages removed from the jury’s Such consideration. motion was overruled. renew- its ed motion for judgment on the evidence at the close of all the evidence, and, such again, motion was overruled. $20,784
The jury found for awarded her actual $15,000. plus punitive damages 8% interest The trial court entered accordance with the jury’s verdict and ordered Farm Bureau to the costs of pay the action and to for the pay services fees) attorney Fultz, (including guardian ad litem for Robert Jr. Ray and John Fultz who brought had been into the action Bureau’s request interpleader.
ISSUES The issues raised for our consideration are as follows: (1) Whether the court erred in II reinstating paragraph of Chris’ *4 complaint,
amended such reinstatement in substance allow- ing the issue of punitive damages to be tried.
(2) Whether the court overruling erred in Farm Bureau’s motion thereby
to dismiss and in the keeping case even
221 though policy proceeds and some interest in the amount $21,245.58 court, been paid had into the all of the persons who might have a claim or interest in policy allegedly joined had been parties, and Farm Bureau allegedly had no further interest in the cause.
(3) Whether the court erred overruling Farm Bureau’s motion
for judgment on the evidence when it was renewed at the close of all the evidence for the reason that there was no willful, evidence that Farm Bureau had been guilty of malicious, conduct, oppressive grossly fraudulent eviden- a cing wanton disregard rights of others or heedless disregard the consequences.
(4) Whether the court erred in overruling the objection of Farm
Bureau and permitting testify witness to as to the net worth Bureau, of Farm objection being made on the ground that there was no evidence with respect subject of punitive damages.
(5) Whether the court erred refusing give Farm Bureau’s 2,3 tendered Instructions No. and which would have remov-
ed the issue of punitive damages from the jury. (6) Whether the court erred in refusing give Farm Bureau’s
tendered Instructions No. and 8 and in their giving place 8, which, the court’s own Instruction No. it contain- although ed the same elements as those found in Instruction 4 Bureau, tendered also instructed the jury that Farm Bureau had the burden of proving that Chris had wrongfully and intentionally killed Robert.
(7) Whether the court erred in giving Plaintiff’s Instruction No.
5, over objection, the instruction allowing to award interest from the date of the claim made until the present, year, per objection 8% being that there is no statutory authority for payment of such interest.
(8) Whether the verdict as to computation and allowance of 8% claim,
interest from the date of and allowance of punitive evidence, damages, was supported sufficient and whether contrary verdict was to law in that the damages were excessive.
(9) Whether the court erred in ordering Farm Bureau to pay, *5 222 action, $1,600
as costs of this the sum guardian ad Fultz, litem for his services representing Jr. and Fultz, Ray John the minor children of Robert and Fultz. AND
DISCUSSION DECISION Issues One and Two
Farm Bureau contends that the trial court erred in reinstating the for request punitive damages contained II paragraph amend
ed complaint motion upon Chris’ to reconsider Farm Bureau’s motion to strike. In reinstating II of paragraph Chris’ amend ed complaint trial court out pointed that an allegation a complaint which adequately notifies the other party plaintiffs claim for relief is sufficient to withstand a motion to dismiss or a mo Procedure, tion to strike under Ind. Rules of Trial Rule 12. In McCar (1971), 640, 276 thy v. McCarthy 891, 895, 150 Ind. App. N.E.2d this court stated the following:
“... adoption Our of notice pleading under Indiana Rules of Trial Procedure contemplates that a complaint need not state a detail- ed cause of action alleging such specific facts as performance myriad all the terms and conditions of a agreement. settlement The framers of the new rules went to great pains to circumscribe this practice paper inundation and have adopted a and compact uncomplicated form of pleading which requires plaintiff merely to make a clear and concise statement in order to put defen- dant on notice that plaintiff has a justiciable claim and is entitled Insurance Co. v. Clinton to relief under some legal theory. Trial Rule Trial Rule 782. No more is required to withstand a motion to dismiss under 12(B)(6)____” (1971), [149] Ind. App. [36],269 N.E.2d 8(A); (1973), Our Supreme State v. Rankin Court N.E.2d 604, 606, further clarified whereby the method sufficiency of one or more allegations in a complaint is challenged when it stated: 12(B)(6)situation, “This Court has noted that in a typical a com-
plaint
is not subject
to dismissal unless it appears to a certainty
that
the plaintiff would not be entitled to relief under any set of
facts.
(1972),
(1971),
Sacks v. Trust Co.
Bank and American Fletcher National
[149]
[258]
Ind.
Ind.
App. [466],
[189],
Ind. Rules of Trial Rule states part: “If, motion, on a the defense number to dismiss asserting for failure of the to state claim pleading relief can be granted, matters outside the are pleading presented to and not sum-, court, excluded the motion shall be treated as one for mary judgment and disposed provided Rule 56. In such case, all shall be parties given reasonable opportunity present all pertinent material made to such a motion Rule 56.” 56(C) Procedure, Rules Trial Rule states in part:
“. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answer interrogatories, and admissions file, on together with the testimony, any, affidavits and if show that there is no genuine issue as to material fact and that the moving party entitled to a judgment as a matter of . . .” law. evidentiary hearing Since the trial court held an on Farm Bureau’s pleadings, second motion to dismiss and considered matters outside the 12(B) the trial court was TR. to treat such motion as a required 56(C), summary motion judgment. Accordingly to TR. before the summary trial court could grant party favor of either it *7 any had to find that there was no issue as to material genuine fact. Farm Bureau contends that an examination of all the evidence at the reveals that no issue of presented hearing genuine material fact existed, summary and that the trial court erred in not granting judg ment in favor of Farm Bureau. The record does not transcript contain a hearing of evidence from the which was held Farm concerning Bureau’s second motion to dismiss. Because Farm Bureau has failed to preserve matter, its record this Farm Bureau has waived error which may in ruling have been committed Farm Bureau’s second motion to dismiss.3 (1975), 248, Dependable Delivery, 3. In Inc. App. 167 Ind. 338 N.E.2d Kerkhof v.
this court stated: Issue Three in denying
Farm Bureau contends that
the trial court erred
Bureau’s motion for
on the evidence made at the close of all
the evidence for the reason that there was no evidence
dur-
presented
by
trial which would
an award of
ing
support
punitive damages
jury.
Farm Bureau contends
it was
justified
circumstances
paying
proceeds
policy
not
to
when she first made ap
Chris
plication
proceeds
July,
agree
receive such
1973. We
that Farm
justified
Bureau was
in not
time
paying Chris at that
because Chris
had,
indeed,
If
suspected
having murdered Robert.
Chris
intentionally
and
wrongfully
killed Robert she would have been ineligi
ble to receive
beneficiary
as the
primary
Robert’s life
insurance
policy
the reason that the law will not permit wrongdoer
a
to profit from his or her
If
wrong.
paid
Farm Bureau had
the proceeds
time,
if,
fact,
at that
had been ineligible
to receive
estate,
such
then
proceeds,
secondary
Robert’s
beneficiary of his
life
policy,
insurance
could have attempted to collect the amount of the
Bureau, and, thus,
proceeds from Farm
subjected
Bureau to multi
ple
and to
litigation
possible
liability.5
multiple
appellant
provide
“It is basic and fundamental that an
has the burden to
the review-
ing
permit
court with a
sufficient to
record
consideration of the claimed error or
errors.
appellants
support
Since the record filed herein
does not
the claimed er-
(Citations omitted.)
, nothing
presented
point.”
. . .
ror
is
to us for review on this
290, 63
App.
4. See
v.
Beene Gibraltar Industrial
Ins. Co.
Life
299.
Prac.,
Harvey,
5. See TR. 22 and 2
Rules of
Proc. Anno. 319-320
Civil
Procedure,
following
concerning
where the
22,
comments are made
Fed. Rules of
Rule
Civil
essentially
which is
identical to Ind.
22:
TR.
purpose
interpleader
prevent
multiplicity
“The
is to
the vexation of a
of ac
prevent
obtaining
advantage
tions
obtaining
one creditor from
of first
Robinson, C.C.A.5th, 1946,
judgment. Maryland Casualty
Glassel-Taylor
Co. v.
&
meritorious;
multiple
litigation
* * * * liability may multiple interpleader “A defendant threatened with have cross- Co., Supp. claim or counterclaim. 40 F. Harris Travelers Ins. D.C. Pa. 154. *8 226 that, arguendo justified Farm Bureau was assuming contends
Chris murder, her tried for being while she was withholding proceeds in be claim dispositive in the criminal trial would acquittal intentionally wrongfully in civil trial she had killed Therefore, Bureau should Robert. contends that Farm immediately her and that acquittal, have her the after paid proceeds time faith and Farm Bureau’s refusal her at that bad pay We do not with oppressive agree amounted to fraudulent and conduct. contention, because in a criminal trial does not render acquittal 6 Therefore, judicata. res liability proper an issue of civil 22, ly by tendering to TR. the face amount sought interpleader, pursuant brought to have the claimants policy seeking potential cross-party into the action as defendants.
However, justified in not paying even Farm Bureau was though to receive the right proceeds, that she had the until it was established was, nevertheless, evidence as to whether there arises question in awarding have relied jury trial which the could presented punitive damages. 5,1973. ex- July After suicide had been Fultz was killed on death, owed Bureau knew that it as the cause of Robert’s
cluded
Chris,
beneficiary,
or to Robert’s
primary
to either
estate,
beneficiary. The
arises as to whether
secondary
question
was evidence from which
delay
seeking interpleader
Bureau’s
could have been inferred.
bad faith or fraudulent and
conduct
oppressive
when related to an action
punitive damages,
While the exact basis for
uncertain,
contract,
we
is somewhat
can. find no evidence
on a
would
the verdict of the
support
the case at bar which
by the In
possible guidelines expressed
under either of the
Insurance
Casualty
Vernon Fire &
In
Supreme
diana
Court.
599,
173,
(1976),
349 N.E.2d
the court appeared
Sharp
Co. v.
264 Ind.
independent
with the
of an
tort for allowance
dispense
requirement
Kirkevold, C.C.A.9th,
may
interplead
parties.
also
third
Home Ins. Co.
He
of N.Y.
938____”
F.2d
160
Gibraltar,
City
supra; and National
Bank
Evansville v. Bledsoe
6. See Beene v.
page
Under fraud, malice, faith. or bad gross negligence, oppression, of any inference on ac- light of events in this case sheds the comprehensive A list the of Bureau: tions 5,
July 1973 —Robert Fultz was murdered. 11, the insurer. July Fultz contacted 1973 —Chris 3,1973 Jury by for Fultz was indicted the Grand August —Chris of Fultz. the murder 13, began. of Fultz 1973 —The murder trial November 22, murder. acquitted Fultz was of November —Chris 27,1973 George sent letter to W. Hand December a —Farm case) (its attorney stating that: local the (2) (1) matter; it contacted investigated . it the had been had (3) them; legal that family might be sued deceased’s beneficiary was of proper that the the question research indicated (4) con- acquittal; not a result of the criminal judicata res as as he attorney for James R. White might flict interest exist (which was receive both Fultz and the estate represented (5) thereto); found not entitled the should Chris be (6) heirs; only safe course minor children were involved (either way of answer interpleader action would be to seek an action). The letter included affirmative complaint through to a $21,245.58 Henry to the payable sum Clerk a check (The from the time amount included interest above Court. Circuit 1974). 1, January until of the claim unknown) —(exact contacted George date Hand January, 1974 (Chris’ attorney) White regard dispersing James R. money. 28,
January punitive Fultz filed suit requesting 1974—Chris damages. 1,
March 1974—Farm Bureau answered. 11,1974 Bureau tendered payment March court and —Farm to withdraw from the attempted case. finding support punitive damages The sole basis for evidence to However, purported delay award must be the in seeking interpleader. found, any delay if can be it must be calculated from the time of Chris (November 1973) (January Fultz’ until the of suit acquittal filing 1974). This over two months was more than period slightly considering reasonable of the law in complexity regard pay- ment of murder related life insurance proceeds, especially light of were negotiations proceeding fact an to settle the attempt matter.
The imposition punitive of would in effect in- damages require the immediately surer to file interpleader an when learning that the dece- dent was murdered. That would no doubt been followed have a con- tinuance until the criminal At proceedings ended. that time the civil action could continue.
The record reveals no evidence of independent an tort separate from the contract. The record further reveals no evidence of “a mingling fraud, malice, gross negligence or oppression controversy.” Therefore, Farm Bureau’s motion on the evidence as to the punitive issue should have been granted. We therefore reverse the punitive allowance of damages and the submission of the issue to the jury.
Issue Four
Farm Bureau contends that the trial court erred in allowing certain evidence of Farm Bureau’s net worth to be admitted into evidence on the ground there was no evidence with respect to punitive therefore, damages, and that Farm Bureau’s net worth was irrelevant to being the case tried.
229 to unnecessary discuss deem it three we to our resolution of issue Due this matter. Five
Issue this court provide issue its failure to has waived this Farm Bureau authority to this issue. germane citations argument with succinct 8.3(A)(7). Procedure, Rule Appellate See Ind. Rules issue, However, our resolu- Bureau not waived this even had Farm error. alleged of this dispositive three would be tion of issue Six Issue refusing give to contends that the trial court erred 4 and in their giving Instructions No. 8 and
Farm Bureau’s tendered 8, which, it contained although own Instruction No. court’s place 8 4 and tendered same as those found Instructions No. elements Bureau, Bureau also instructed the that Farm had intentionally had killed proving wrongfully burden Robert. 8 con-
Farm Bureau has admitted the court’s Instruction No. elements Farm Bureau’s tendered Instructions No. tains same Therefore, correct, if 4 and 5. the court’s Instruction No. 8 is then the No. court did not err Farm Bureau’s tendered Instructions refusing 8. 279 210. 4 and See Ashton Anderson N.E.2d may has waived which the court have com error mitted in No. 8 of Farm Bureau’s giving court’s Instruction because object such See Indiana Rules
failure instruction trial. 51(C) Procedure, Trial Rule v. Wood Weenig The App. purpose 235. underlies object rule party to an erroneous instruction is to requiring *11 out the error to the court so the court point opportunity has and, thereby, necessity having to correct the error avoid the another (1957), 505, See v. 127 Ind. 143 450. App. trial. Love Harris N.E.2d In- object In the at bar Farm Bureau’s failure to court’s case 8 court to cor- precluded having opportunity struction No. from may rect an instruction which have been erroneous. that,
Farm Bureau contends it failed to although object to the court’s Instruction No. shifting the burden of proving that Chris wrongfully intentionally killed Robert from interpleaded cross- defendants, John, party clearly Jr. and to Farm Bureau deprived law, Bureau of a fair trial and process due and that such depriva- tion of error, due process constituted fundamental which error can be raised on appeal without first having objected at trial.
Concerning fundamental error our Supreme in Malo Court (1977), 1201, 1204-5, State 361 N.E.2d states the following: correctly
“Defendant asserts that fundamental error is an excep tion to the rules requiring proper objection in-trial as a prerequisite raising the issue on appeal, citing Kleinrichert v. State 537, 297 260 Ind. N.E.2d 822. That the error complained of relates to the not, violation of a right guaranteed by the constitution does itself, in and of render it fundamental error requiring us to go Rather, against well established rules of procedure. fundamental rectified, error is error which if not deny would the appellant ‘fun damental due process.’ Webbv. State 812.” Farm Bureau contends that the error contained in the court’s In- struction No. 8 was prejudicial so to Farm Bureau’s case that Farm Bureau was denied a fair trial. Farm Bureau misconstrues the mean- ing fundamental error. Fundamental synonymous error is not with prejudicial error. It is say correct that fundamental error always error, prejudicial or harmful but prejudicial error is always not fun- were, damental error. If it every then time an error was committed case, prejudicial to party’s party could raise such er- ror for the first time on appeal without having made effort to ob- ject at trial. As a result the trial court would not have had oppor- an tunity to correct the error before judgment was entered. A rule of law which equates fundamental error with prejudicial error place would unduly heavy an burden upon trial court judges and give would generous lazy accommodation to or incompetent lawyers.
Fundamental or plain only error results where a statement is made or an act is done which results in prejudicial error goes
231 or act very party’s heart of a case and where statement wholly of powers is or corrective preventive outside party. The was not fundamental error complained error Farm Bureau or, least, for easily preserved because it could have been corrected has timely if had Farm Bureau objection. Farm Bureau made a appeal, trial, on of its counsel at general incompetence not asserted trial, preserved Bureau has objection and since no was made at error for this court to review. no
Issue Seven plaintiffs erred in giving that the trial court
Farm Bureau contends 5, in- jury to award prejudgment No. which allowed Instruction judgment. date the claim to the time of from the terest authority a statutory empowers there is no contends interest. We disagree. award prejudgment 1977) (Burns Ed., 1971, as follows: states Supp. 24-4.6-1-103 IC Code per annum shall per “. . . at the rate of cent eight Interest [8°/o] be allowed:
(a) money on in- on due From date settlement interest not a rate of specify which does writing strument — 1971, 24-4.5 and which not covered IC [24-4.5-1-101 or [24-4.6-1-101-24-4.6-1-202]; this article 24-4.5-6-203] (b) shall have been And from the date an itemized bill stated, ac- on an account payment rendered and demanded the use of money had and received for count closed 1971, without his consent. another 24-4.6-1-103, retained [IC 115, 1974, 2, P.L. p. Acts added § 468.]” 24-4.6-1-103, this court Indiana Concerning supra, IC Inc. TelephoneCompany, v. Indiana Bell TelephoneCorporation (1976), 171 358 N.E.2d said: App. Ind. basis that of this section on the application contests the “ITC claims, involves the while this case
it pertains ‘liquidated claim.’ from discovery alleged arising disputed indebtedness sufficiently authority We decline to since Indiana agree must is whether allowing interest that the crucial factor amplifies 232 of evidence and [497], chants Nat’l Bank & Trust Co. Co. v. damages Roper were N.E.2d (1911), were ascertainable liquidated. accepted 833, 838; New Portgage Indiana School Construction standards of 497, 506, York, in accordance with fixed rules Indiana Chicago 96 N.E. valuation, & St. 468; [166] Hirsch v. Mer Louis not whether Ind. App. Railway Corp. A.V. Stackhouse Co. App.
564, 567.
Where the terms of the
contract make
claim ascertainable
*13
and the amount of the claim rests
mere
upon
computation, pre
interest
computed from the time the
amount
principal
statutory
was demanded
due is allowable at the permissible
rate,
in the absence of an express
provision specify
contractual
rate. Independent Five & Ten Cent Store v. Heller
ing the interest
(1920),
554, 561, 127
439;
City
v. McCarter
189 Ind.
N.E.
of Vincennes
76, 77,
Kuhn v. Powell
142 Ind. App.
131, 133,
App.
According eight IC interest at the rate of per was per properly proceeds cent annum assessed until the of the policy actually paid had been either to or to the court in an interpleader Therefore, action.7 the court erred to the it calculated the extent amount of interest owed Farm Bureau as prejudgment beginning continuing to accrue from the date of claim and to the date of Chris’ it judgment; should have calculated the interest from the prejudgment July, date of claim in to the time when Farm Bureau original actually money tendered the into court as a of its for part request interpleader. Co., (5th 1976). Cir., Murphy v. Travelers Ins.
7. See also 534 F.2d 1155 Eight Issue com- to the allowance verdict as that the contends claim, and allowance of the from the date interest of 8%
putation evidence by sufficient not supported was damages punitive were excessive. damages in that contrary to law was the verdict was supported interest the allowance 8% above As discussed incor- evidence, computed interest prejudgment but the sufficient date that from the the interest calculated court should have rectly. The Bureau tendered when Farm to the time became due proceeds interpleader. of its request as a above, the issue punitive disposition In our light of become damages questions excessive the evidence and sufficiency of here. discuss them we will not moot and Nine Issue ordering the trial court erred
Farm Bureau contends $1,600 action, the guardian sum of this as costs of pay, Fultz, and John Jr. representing for his services ad litem Fultz, We agree. Fultz. of Robert and Chris Ray the children brought after interpleader to seek Bureau was entitled necessary ap- for the trial court It was Farm Bureau. against suit *14 the con- legal properly dispose in order to a ad litem point guardian Judge Bingham, Keating at bar. In State ex rel. troversy the case 727, 730, said: Supreme our Court 121 N.E.2d “ in which by a court litem” is one appointed ‘A ad “guardian unborn a ward an répresent pending, litigation particular . . . litigation.’ particular person * * * services rendered ad litem for administration, guardian of a compensation “The the or out of as an
may expense be allowed the court in such amount as in the proceedings interest ward’s . . . shall determine. within its discretion * * * attorney, of an position is not the guardian “... ad litem] [A main a to the party is not to a guardian----He services
rendering action but is an officer of the brought court into the case the court, appointment order of the and the services which he has rendered were pursuant duty imposed upon him the (Citations omitted.) court. . . .” As our Supreme Keating, State ex ret. points Court out in supra, guardian ad litem is appointed by the court to represent the interests of a minor or incompetent ward in certain legal proceedings. Most of the statutes and cases which discuss the compensation guardian of a ad litem involve probate law and the administration of pursuant estates thereto.8
The laws probate empower the trial court to compensate a guardian ad litem for his services either from the estate in toto or from the ward’s Therefore, interest in the estate. it follows if the result of the litiga- tion reveals that the ward does not fact have a valid claim estate, the the trial court in its discretion is still empowered to compensate the guardian ad litem for his body services from the of the estate. The policy reason behind such is to ensure that an officer court, court, who has been appointed will not have to render services without compensation.
In the case at bar the core of litigation is not an estate but rather from an insurance policy. If we analogize from probate
law, the estate, insurance proceeds would be analogous to the and the fee of ad litem should be extracted from guardian proceeds. that, Our legislature appears to have intended where the ward recovers nothing, fee of the guardian ad litem be taken from the core of the litigation, such as the insurance proceeds, and not from a Therefore, nonprevailing party, such as Farm Bureau. litem, we hold that the fee of the guardian ad case, in this should be taken from the proceeds of the policy. directed,
The trial judge is ordered and upon receipt of an official copy Court, of this opinion from Clerk this to amend judg- ment heretofore follows, entered of record in this cause to-wit: (Burns 1971, 29-1-1-20 Ed.), (Burns 1971, 29-1-18-1 8. See IC Code IC Supp. Code Ed. 1977), (Burns Ed.). 29-1-18-45 Keating, supra. State ex rel. IC Code See also
235 as determined 1. the amount of interest due Chris Recalculate issue No. of this opinion. this under 7 Court litem’s fee as ad charge guardian charged 2. Delete the of the the same the award to against to Farm Bureau and assess under issue No. 9 of this opinion. as determined punitive damages from the the allowance of judgment 3. Delete issue 3. as determined this under Court and reversed in part part. Affirmed Robertson, J., Concurs;
Lowdermilk, J., opinion. Dissents with
DISSENTING OPINION carefully majority After I find studying opinion J. Lowdermilk, necessary majority opin- it is for me to dissent to that recovery punitive damages. precluded ion dies, duty to company the insurance has a person When an insured time, of the proceeds policy proper within a reasonable pay, beneficiary can- beneficiary proper or to seek where interpleader safely ascertained. In the case at bar Farm Bureau did neither. not be else, Bureau, fully money belonged that the to someone knowing of the an amount in excess of proceeds policy, of the kept possession $20,000, money for its own benefit until such was tendered and used that March, to the clerk of the court in 1974. Farm Bureau knew that Chris’ probably murder trial would be affair and that it would protracted It knew take several months before could be rendered. also intentionally kill- wrongfully that even if was convicted of trial, been for her ing possible a criminal it still would have in the event that in a civil trial had proceeds recover intentionally kill Robert.1 Farm wrongfully found that she did not also knew in the criminal trial was not acquittal that Chris’ of her to recover right policy.2 determinative 290, 63 App. N.E.2d Industrial Ins. Co. See Beene v. Gibraltar 1. Life 299. 710. City v. Bledsoe Bank Evansville 2. See National *16 Therefore since Farm Bureau knew the outcome of Chris’ criminal trial would have had no determinative right effect her to recover the proceeds of the insurance policy, jury reasonably the could have inferred that Farm Bureau intended to keep proceeds, which it knew else, belonged to someone for its own use until Chris or Robert’s estate sued Farm Bureau to obtain the proceeds. Although Farm Bureau assets that it had intended to file an action in interpleader early jury could reasonably have dilatory inferred from Farm Bureau’s conduct that Farm Bureau did not intend to seek interpleader until after one of the claimants had brought against suit Farm Bureau.
In of Farm light long delay Bureau’s in seeking (July, interpleader March, 1974), 1973 to delay obviously which Farm Bureau knew work- detriment, ed to its benefit and to the beneficiary’s true say we cannot the trial court erred in allowing jury to weigh the evidence and determine whether or not such evidence constituted fraudulent and oppressive conduct on the of Farm Bureau. The jury was the Evidence, trier of fact. based upon theory of punitive con- tained complaint, Chris’ amended was presented to the jury. As the evidence, trier of fact jury weighed the judged credibility the witnesses and concluded that Farm Bureau’s conduct op- was pressive and not in good faith. court,
As an appellate we cannot weigh the evidence or judge the credibility of witnesses. See Monumental Insurance Company Life Hakey 171 Ind. App. N.E.2d 333. If there is evidence from which an inference can reasonably be drawn to support the ver dict, it duty is our to affirm. See Monumental Insurance Company Life v. Hakey, supra.
It can be observed that: Chris filed a complaint seeking to recover the proceeds of the policy, alleging bad faith and fraudulent and op- Bureau, pressive conduct on the part of Farm and seeking punitive damages. The evidence at trial showed that was tried and ac- quitted for the murder of Robert. Farm Bureau neither the life paid Chris, insurance proceeds to beneficiary, the primary nor sought in- terpleader when it was apparent that the deserving beneficiary could not be ascertained without litigation or agreement, but rather retain- ed the amount of the proceeds for its own use for more than seven only death and after sought interpleader months after Robert’s easily Farm Bureau could have brought against suit Farm Bureau. in this in- litigation seeking removed itself from future matter competing as soon as it became claims for terpleader apparent likely delay in- seeking were arise. Farm Bureau’s gave was that it Farm Bureau extend- terpleader purposeless, except use of the With the evidence in conflict it was a proceeds. being ed of fact to be determined whether Farm Bureau’s question fraudulent, dilatory conduct amounted to or bad faith con- oppressive, jury, duct. The been instructed on the issue of having properly punitive determined damages, guilty Bureau was fraudulent or conduct or faith oppressive bad and that under the facts of this case assessment of punitive damages proper. an
In light evidence and reasonable inferences which can be drawn *17 therefrom, said, law, it cannot be as a matter of that the evidence was insufficient the support verdict or that concerning punitive damages the court erred overruling Bureau’s motion for on the evidence. majority
The opinion stands for the that where the proposition beneficiary primary of an insurance is with policy charged causing insured, wrongful and intentional death of the and the proper ascertained, beneficiary cannot immediately be then the insurance com- court, pany interpleader need not file and tender the into proceeds but may retain the proceeds indefinitely, or at least until one of the company beneficiaries sues the insurance for the Then proceeds. after having money had the use of that longer several months than if had been filed when it interpleader first became unclear as to whom proceeds the insurance properly belonged, company only need wait beneficiaries, until it is sued one of the interpleader file and escape further The responsibility. inherent in such a inequities procedure are dilatory obvious. Such procedure encourages conduct on the insurance which works to the companies advantage of the insurer and disadvantage beneficiary. majority opinion delay
The states that Farm Bureau’s in- filing must be terpleader calculated from the date of acquittal Chris’ (November 22,1973) (January until against Chris filed suit
28, 1974). Such statement is without foundation. The outcome of legal criminal trial had no determinative effect her right Beene, receive proceeds policy. to Robert’s life insurance See supra, Evansville, It would City supra. and National Bank have been as economically unsound for Bureau to have paid after her as it was before. acquittal Nothing accomplished until after The time waiting proper Chris’ trial. for Farm Bureau to have filed its would have been when interpleader charg Chris was first 1973). (July ed with it murdering That when became doubt Therefore, beneficiary ful to who the proper was. Farm Bureau could delay July have been with properly charged filing interpleader from actually 1973 until interpleader was filed in March 1974. The majority states: opinion
“The imposition punitive would in effect require immediately insurer to file an when interpleader learning that the decedent was murdered. That no would doubt have been followed until a continuance the criminal proceedings ended. At that time the civil action could continue.” This is not correct. imposition The in the punitive damages case at bar would not require an insurer to file an interpleader upon learn- murdered, ing that insured was but rather it would an in- require surer to file interpleader an within a reasonable time after the primary beneficiary suspect became a causing wrongful intentional death of the Any insured. civil which litigation followed the filing an interpleader totally would exist from apart criminal litigation might transpire. necessary, No continuance would be and all litigation would terminate at an earlier date. that, majority
The is correct in stating where punitive damages based *18 issue, on necessary a contract are it is not to establish all the elements tort, necessary of an but it independent rather is to show that elements fraud, malice, gross negligence, con oppression mingle trovery and the public interest must be served the deterrent effect of the See punitive damages. Vernon Fire Casualty & Insurance Co. v. 264 Ind. Sharp N.E.2d 173 and Hibschman Pon tiac, Inc. v. Batchelor 362 N.E.2d 845. Farm Bureau retained the evidence reveals that In case at bar money for more else’s thousand dollars someone and used several trial would Bureau knew that criminal months. Farm than seven It knew that proceeds. to right no effect her receive have had vehicle which utilizing procedural Without inevitable. litigation they money so can tender to stakeholders provided been has Bureau, for some un- litigation, from future and withdraw reason, suit was for its own use until retained the proceeds explained proceeds. it to recover such brought against behavior, the ex- sufficient to establish though arguably not Such tort, elements of evinces substantial an independent istence of fraudulent, malicious, con- and bad faith oppressive, grossly negligent, controversy, up it should be to mingle in the Such elements duct. in such present are force whether such elements jury to determine Certainly it would damages. punitive to the assessment of require so as company using an from interest to deter insurance public in the be its own well promote money belonged another rightfully being. evidence conflicting from the
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