Attorneys for Appellant
Attorneys for Appellee Attorney for Amicus Curiae
Josef Musser Mark C. Guenin Indiana Trial Lawyers Assoc.
Kyle C. Persinger Emily C. Guenin-Hodson, Mark A. Scott
Spitzer Herriman Stephenson Graduate Legal Intern King, McCann & Scott, LLP
Holderead Musser & Conner, LLP Guenin Law Office, P.C. Kokomo, Indiana
Marion, Indiana Wabash, Indiana
Appeal from the Huntington Circuit Court, No. 35C01-9802-CP-43
The Honorable Mark A. McIntosh, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 35A02-0206-CV-436
March 30, 2005
In this automobile-van collision personal injury case, the trial court refused instructions the
defendant submitted on comparative fault, which would have permitted a jury to consider
mitigation of damages for purposes of fault allocation. The jury found for
the plaintiff. In a divided opinion, the Court of Appeals reversed.
We granted tran
See footnote and now affirm the trial court.See footnote
At the jury trial in this motor vehicle collision case, the defendant admitted
that he failed to yield the right-of-way, but denied that the accident caused
significant injury or damages to the plaintiff. He asserted that the plaintiff
failed to mitigate her damages on grounds that she made insufficient efforts to
find replacement part-time employment at a point in time after the accident.
The defendant tendered instructions under which the jury would make an allocation of
fault under the Act. The trial court refused the instructions, but did
instruct the jury that the plaintiff had the burden of proving damages, that
the defendant contended the plaintiff "was at fault for failing to mitigate her
damages," and that he claimed the plaintiff's "failure to mitigate her damages should
reduce or preclude [her] recovery of damages."
See footnote The trial court also e
to the jury that "[p]ersons claiming injury as a result of wrongs of
others must use reasonable care, commensurate with their age and experience, to mitigate
or minimize the damages resulting from a wrong, and not to enhance such
Under the Act, proportional liability is determined by the fact-finder allocating a percen
of "fault" to the claimant, the defendant(s), and any "nonparty."
See footnote "In assessing
percentage of fault, the jury shall consider the fault of all persons who
caused or contributed to cause the a
lleged injury, death, or damage to property
. . . ."
See footnote If the claimant's fault is fifty percent or
less, the fact-finder dete
rmines a verdict by multiplying the percentage of fault of
each defendant by the total amount of the claimant's damages.
See footnote "Fault" is
efined for the purposes of the Act to include:
any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure
to avoid an injury or to mitigate damages. See footnote
Deible, the defendant did not dispute the cause of an automobile collision
but challenged the necessity of much of the plaintiff's medical treatment and the
extent of her damages. Deible stated: "The issue before us in this
appeal is whether the defense of failure to mitigate damages may be used
as a defense to the ultimate issue of liability or whether it simply
concerns the amount of damages the plaintiff is entitled to recover when liability
has been determined."
See footnote Answering the question raised, the court stated:
Failure to minimize damages does not bar the remedy, but goes only to the amount of damages recoverable. Otherwise stated, if the act of the injured party does not operate in causing the injury from which all damages ensued, but merely adds to the resulting da mages, its only effect is to prevent the recovery of those damages which reasonable care
would have prevented. See footnote
Rejecting the defendant's argument that the mitigation of damages defense was expressly i ncluded within the statutory definition of "fault," the court concluded: "We hold that mitigation of damages is a defense to the amount of damages a plaintiff is entitled to recover after the defendant has been found to have caused the tort. Mitigation of damages is not a defense to the ultimate issue of liability." See footnote
As pointed out in
Deible, the obligation of a plaintiff to mitigate damages
customarily refers to the expectation that a person injured should act to minimize
damages after an injury-producing incident.
See footnote This concept is different from our statutory
process of assessing percen
tage of fault which considers "the fault of all persons
who caused or contributed to cause the alleged injury, death, or damage to
Deible explains that "[f]ailure to minimize damages does not bar the
remedy, but goes only to the amount of damages recoverable."
We observe that in the six years that have elapsed since
legislature has not modified its definition of "fault."
The trial court's refusal of the defendant's proposed comparative fault instructions was consistent
with our express adoption of Deible and should have been affirmed by the
Court of Appeals. We agree with Judge Vaidik's dissent.
See footnote In cases
arising under the Act, a defense of mitigation of damages based on a
plaintiff's acts or omissions occurring
after an accident or initial injury is not
properly included in the determination and allocation of "fault" under the Act.
The phrase "unreasonable failure to avoid an injury or to mitigate damages" included
in the def
inition of "fault" under Indiana Code § 34-6-2-45(b) applies only to
a plaintiff's conduct before an accident or initial injury.
See footnote An example of
such unreasonable failure to avoid an injury or to mitigate damages would be
a claimant's conduct in failing to exercise reasonable care in using a
devices, e.g., wearing safety goggles while operating machinery that presents a substantial risk
of eye damage.
While a plaintiff's post-accident conduct that constitutes an unreasonable failure to mitigate damages
is not to be considered in the assessment of fault, a plaintiff "may
not recover for any item of damage that [the plaintiff] could have avoided
through the use of reasonable care."
See footnote The resulting damages, excluding any caused
by a plaintiff's post-accident failure to use reaso
nable care, are then to be
multiplied by the defendant's percentage of fault to determine the verdict to be
entered under the Act.
The trial court did not err in refusing the defendant's tendered comparative fault
ination of the amount of an appeal bond lies within the discretion
of the trial court, and will not be disturbed absent an abuse of
See footnote The defendant does not provide any transcript of the trial court's
hearing on his motion to stay execution and request for bond less than
the full amount of the judgment. We have only the assertions in
the parties' filed m
otions, responses, and attachments. Upon this record, we cannot
find that the trial court abused its discretion.
We understand the defendant to be claiming that the plaintiff's agreement not to
execute or otherwise enforce the judgment against the defendant personally, retaining the right
to pursue the defendant's liability insurance company, constitutes a satisfaction of the judgment.
But the entire judgment remains unpaid. There exists only the plaintiff's
covenant not to execute on the judgment personally against the defendant but reserving
the right to recover the judgment from the defendant's insurance company. This
is not to say that, with our decision today affirming the judgment for
damages, the plaintiff is necessarily entitled to recover the full $250,000 proceeds of
the supersedeas bond at this time. That issue, and the respective rights
of the plaintiff, the surety, and the insurance company in the event the
plaintiff is unsuccessful in recovering more than coverage limits in her prosecution of
the assigned claim against the defendant's insurer, involve issues and parties not presented
in the case now before this Court.
We decline to find error in the trial court's order granting a stay of execution conditioned upon the filing of an appeal bond in the full amount of the judgment.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.