Harris v. Jones

143 N.E.3d 1012

Marlo HARRIS, Appellant-Plaintiff,

v.Joe JONES, Jr., and Allstate Insurance Company, Appellees-Defendants

Court of Appeals Case No. 19A-CT-1196

Court of Appeals of Indiana.

FILED March 20, 2020

Attorney for Appellant: Andrew A. Crosmer, Rubino, Ruman, Crosmer & Polen, Dyer, Indiana

Attorneys for Appellee Joe Jones, Jr. : Shawn C. Swope, Cassandra J. Neal, Swope Law Offices, LLC, Dyer, Indiana

Attorney for Appellee Allstate Insurance Company: Harold G. Hagberg, Hagberg & Associates, Crown Point, Indiana

Crone, Judge.

Case Summary

[1] Marlo Harris filed a complaint for damages against Joe Jones, Jr., and Allstate Insurance Company (collectively "Defendants") following a motor vehicle collision. A jury returned a verdict in favor of Harris in the amount of $10,000. The trial court subsequently entered an order assessing attorney's fees against Harris in the amount of $1000 due to her rejection of Jones's qualified settlement offer. Unsatisfied with these results, Harris now appeals, raising several issues that revolve around whether the trial court abused its discretion in instructing the jury and in excluding and admitting certain evidence. Finding reversible instructional error, we reverse and remand for a new trial on damages only. We also vacate the trial court's assessment of fees against Harris.

Facts and Procedural History

[2] In the early morning hours of November 30, 2013, Harris was driving a vehicle owned by her grandmother on Interstate 80 in Hammond when she was involved in a collision with Jones. Jones struck the back of Harris's vehicle, causing minimal damage to Harris's vehicle. Thereafter, Harris filed a complaint for damages against Jones and her grandmother's insurer, Allstate, alleging negligence, recklessness, and willful and wanton misconduct against Jones and breach of contract against Allstate. Specifically, Harris alleged that Jones negligently and recklessly caused the collision to occur, and that he committed misconduct by driving while intoxicated and impaired, failing to keep a proper lookout, and endangering the welfare of others. Harris further alleged that Allstate breached the contract of insurance and was liable for any damages caused by Jones as an uninsured/underinsured motorist. Harris sought both compensatory and punitive damages.

[3] A jury trial began on May 8, 2019. Portions from the transcript of the video deposition of Dr. Ilesh Kurani were read to the jury. Dr. Kurani testified that her predecessor, Dr. Patel, Harris's treating physician, saw Harris after the accident and diagnosed her with "acute lumbar disk disease with left radiculopathy [,]" which is a soft tissue injury that "c[a]me on suddenly without any prior chronic incidence onset." Tr. Vol. 2 at 152, 156, 198. Dr. Patel referred Harris for an MRI in order to determine the cause of her radicular symptoms. Reviewing Harris's medical records, Dr. Kurani confirmed that Harris never completed the MRI because she "became claustrophobic, so could not finish the test." Id. at 151. Dr. Kurani stated that an MRI is a diagnostic tool that "could" have shown whether "there was a disk injury" and/or whether there were "pre-existing degenerative" spinal issues. Id. at 195. During trial, Harris testified that she experienced lower back pain following the accident that continued to worsen, so she went to see Dr. Patel. Harris stated that Dr. Patel treated her with pain medication and injections. Although Dr. Patel originally placed certain restrictions upon her return to work, Harris was eventually released by Dr. Patel "with no restrictions" in February 2014. Id. at 157. Harris admitted that while she continued to experience pain, she did not have any medical treatment during the four years prior to trial. She stated that not a day goes by when she does not have back pain and that she also often experiences tingling and numbness in her legs.

[4] After hearing from additional witnesses and closing arguments of counsel, the jury found Jones to be 100% at fault and awarded Harris compensatory damages in the amount of $10,000. The jury awarded Harris zero punitive damages. Jones subsequently filed a motion for attorney's fees pursuant to Indiana Code Section 34-50-1-6 based upon Harris's rejection of a pretrial settlement offer of $25,000. The trial court granted the motion and awarded $1000 in fees to Jones. This appeal ensued.

Discussion and Decision

The trial court abused its discretion and committed reversible error in giving a failure to mitigate instruction to the jury.

[5] Among other things, Harris asserts that the trial court abused its discretion in instructing the jury regarding her alleged failure to mitigate damages. Specifically, Defendants proffered a pattern final jury instruction that provided,

Marlo Harris must use reasonable care to minimize her damages after she is injured. Marlo Harris may not recover for any item of damage that she could have avoided through the use of reasonable care. Defendants have the burden of proving by the greater weight of the evidence that Marlo Harris failed to use reasonable care to minimize her damages. Do not consider failure to minimize damages as fault. Rather you may consider failure to minimize damages [to] reduce the amount of damages that Marlo Harris claims.

Tr. Vol. 3 at 99.¹ Harris objected and asserted that there was insufficient evidence to support the giving of a failure-to-mitigate instruction. Harris's counsel argued that Defendants had presented insufficient evidence of causation, that is, they failed to prove that Harris's post-injury conduct increased her harm, and if so, by how much. The trial court overruled the objection and permitted the instruction to be read to the jury.

[6] When reviewing a trial court's decision to give or refuse a tendered instruction, we consider whether: "1) the instruction correctly states the law; 2) the evidence in the record supports giving the instruction, and 3) the substance of the instruction is covered by other instructions." Humphrey v. Tuck , 132 N.E.3d 512, 515 (Ind. Ct. App. 2019) (citation omitted). "In determining whether sufficient evidence exists to support an instruction, we will look only to that evidence most favorable to the appellee and any reasonable inferences to be drawn therefrom." Id. This Court reviews a trial court's decision to give or refuse to give an instruction only for an abuse of discretion. Id.

[7] Regarding failure to mitigate specifically, our supreme court has explained,

[T]he principle of mitigation of damages addresses conduct by an injured party that aggravates or increases the party's injuries. .... [F]ailure to mitigate damages is an affirmative defense that may reduce the amount of damages a plaintiff is entitled to recover after liability has been found. Put simply, a plaintiff in a negligence action has a duty to mitigate his or her post-injury damages, and the amount of damages a plaintiff is entitled to recover is reduced by those damages which reasonable care would have prevented. The defendant bears the burden to prove that the plaintiff has not used reasonable diligence to mitigate damages. The defendant's burden includes proof of causation, that is, the defendant must prove that the plaintiff's unreasonable post-injury conduct has increased the plaintiff's harm, and if so, by how much.

Willis v. Westerfield , 839 N.E.2d 1179, 1187 (Ind. 2006) (citations and quotation marks omitted).

[8] In short, "[t]he affirmative defense of failure to mitigate damages has two elements, and as to both the defendant bears the burden of proof by a preponderance of the evidence." Id. at 1188. "First, the defendant must prove that the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages." Id. Next, "the defendant must prove that the plaintiff's failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant's negligent conduct. "It is not enough to establish that the plaintiff acted unreasonably." Id. The defendant must establish "resulting identifiable quantifiable additional injury." Id.

[9] Here, even assuming that there was sufficient evidence from which the jury could have determined that Harris failed to exercise reasonable care to mitigate her post-injury damages, we find a complete lack of evidence on the second element, which required Defendants to point to a resulting identifiable quantifiable injury. The only expert medical testimony presented at trial was the transcript of the video deposition of Dr. Kurani. In reviewing medical records from Harris's former physician, Dr. Patel, Dr. Kurani confirmed that Harris did not complete an MRI that was recommended by Dr. Patel following the accident. Dr. Kurani was not asked whether and never suggested that Harris's failure to obtain an MRI or to seek additional medical care caused her to suffer additional injury or any identifiable item of harm not attributable to the accident.

[10] Defendants² argue that expert testimony was not required to meet their burden of proof on the second element, and that the lay jury could simply conclude based upon the evidence presented that Harris's post-injury conduct aggravated or increased her injuries. Defendants are correct that although expert testimony will often be required to establish that the plaintiff's conduct caused additional harm, and the amount of such harm, expert testimony is not always required. Willis , 839 N.E.2d at 1188. Indeed, whether a failure-to-mitigate defense requires expert medical testimony to establish causation must be resolved on a case-by-case basis. Id. at 1189.

[11] As a general matter, expert testimony is required where the question involves medical factors beyond the common knowledge of a layperson such that the jury could only indulge in speculation in making a finding based thereon. Id. But, "on medical matters which are within the common experience, observation, or...