ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
RICHARD R. SKILES WILLIAM N. IVERS
Skiles & Cook RICHARD P. WINEGARDNER
Indianapolis, Indiana KELLI KELLER
Stewart & Irwin
ARLENE ROCHLIN Indianapolis, Indiana
The Law Offices of the Cincinnati Ins. Co.
Indianapolis, Indiana J. DAVID HOLLINGSWORTH
Hollingsworth & Meek
COURT OF APPEALS OF INDIANA
KIMBERLY STEPHENS and )
THE CINCINNATI INSURANCE COMPANIES, )
vs. ) No. 12A02-9910-CV-684
DEREK W. IRVIN, MISSY HODGE, and )
SENTRY INSURANCE, )
APPEAL FROM THE CLINTON SUPERIOR COURT
The Honorable Kathy R. Smith, Judge
Cause Nos. 12D01-9501-CP-26 & 12D01-9611-CP-333
June 30, 2000
OPINION - FOR PUBLICATION
Appellants-Defendants Kimberly Stephens (Stephens) and Cincinnati Insurance Companies (CIC) bring this consolidated interlocutory
appeal challenging the trial courts decision to grant Appellees-Plaintiffs Derek Irvins (Irvin), Missy
Hodges (Hodge) and Sentry Insurances (Sentry), collectively referred to herein as Plaintiffs, respective
Motion[s] to Correct Error, thereby permitting Plaintiffs to add Stephens as a defendant
to the underlying causes. We affirm.
We restate the dispositive issues raised on appeal as follows:
I. Whether the trial court erred in considering certain affidavits submitted with Plaintiffs respective
motions captioned Motion[s] to Correct Error; and,
II. Whether the trial court abused its discretion by granting Plaintiffs motions for leave
to amend their complaints by adding Stephens as a defendant after the expiration
of the two-year statute of limitations.
The facts most favorable to the judgment indicate that on November 19, 1994,
Irvin and his passenger, Hodge, were driving in Frankfort, Indiana, when their automobile
was struck by another vehicle owned by Patricia Brashear (Brashear) and insured by
CIC. The driver of the Brashear vehicle fled the scene of the
accident before the police arrived. The passenger in the Brashear vehicle, Ralph
Bailey (Bailey), told the police that the car belonged to him
the driver of the vehicle had his permission to drive the car, but
that he did not know the drivers name as he had only met
her earlier that evening. Frankfort Police Officer Boyd Martin (Officer Martin) arrived
on the scene, investigated the accident, and prepared an Indiana Officers Standard Crash
Report (Accident Report). The Accident Report listed the driver of the Brashear
vehicle as Unknown.
During his investigation of the accident, Officer Martin became aware of some information
that led him to suspect that Stephens had been the operator of the
Brashear vehicle. Officer Martin therefore completed a LAW Incident Table on the
day of the accident and included Stephenss name as the suspected driver of
the Brashear vehicle. The LAW Incident Table was not attached to or
mentioned in the Accident Report, but was made available to the public within
twenty-four hours of the accident.
On January 18, 1995, Irvin and Hodge filed a complaint seeking damages arising
out of the collision and naming Bailey and Jane Doe as defendants in
their negligence action. In July of 1995, Irvin and Hodge deposed Bailey,
who testified that he was not sure, but he thought the drivers name
was Loretta Huff (Huff) and that she was from Lafayette, Indiana. After
deposing Bailey, Irvin and Hodge filed a Motion to Amend Complaint on February
5, 1996, in order to substitute Loretta Huff for Jane Doe as the
driver of the Brashear car. Plaintiffs were unable to ascertain the location
of Huffs residence, so service was made by publication.
On November 12, 1996, Sentry filed its complaint naming Huff as the driver
in its insurance subrogation claim to recover property damage payments and medical payments
issued to its insureds, Irvin and Hodge. On June 13, 1997, Sentry
filed its motion for default judgment against Huff, and on June 17, 1997,
default judgment was entered against Huff in the sum of $10,482.84.
On June 18, 1997, CIC filed its Motion for Leave to Intervene and
Motion for Stay of Proceedings or to Reconsider, which was granted on June
20, 1997. On December 11, 1998, Sentry filed its Motion to Lift
Stay regarding the default judgment against Huff, which was granted on January 5,
1999. However, the stay was reinstated on January 21, 1999, after Sentry
withdrew its motion
A third cause of action relating to this automobile collision was initiated by
CIC when it filed a complaint for declaratory judgment in federal district court
to determine its duty of coverage, if any, owed to Huff in the
state cases. This federal declaratory judgment action
was scheduled to be tried on March 18, 1999.
While preparing for
trial, CICs counsel noticed that the Accident Report prepared by Officer Martin did
not contain the usual identifying number. Counsel therefore called the Frankfort Police
Department on March 3, 1999, and learned of the existence of the Law
Incident Table and its contents, which reflected Officer Martins suspicion that Stephens had
been the driver of the Brashear vehicle.
Shortly thereafter, Stephens, who was contacted by one of CICs attorneys,
came forward and executed an affidavit in which she admitted she was the
woman who had driven the Brashear vehicle and then fled the scene on
the day of the collision. Stephens also admitted that she had been
Baileys girlfriend at the time of the collision and that Bailey had recently
contacted her and told her not to talk to anybody about the accident.
On March 24, 1999, the trial court vacated and nullified the default
judgment entered in favor of Sentry and against Huff.
Irvin and Hodge filed their Plaintiffs Second Motion for Leave to Amend Complaint
on April 3, 1999, this time requesting that Stephens be added as a
defendant. Likewise, Sentry filed its Motion to Amend Complaint in order to
add Stephens as a defendant in its cause. The trial court denied
both motions, finding that Plaintiffs had failed to exercise due diligence by relying
on Baileys testimony, which identified Huff as the driver, and in failing to
investigate the involvement of Stephens, whose name appeared on the LAW Incident Table.
The trial court also granted Huffs Trial Rule 12(C) Motion to Dismiss,
dismissing Huff from Irvin and Hodges negligence action as well.
On May 28, 1999, Irvin and Hodge filed a motion designated Motion to
Correct Error, essentially reasserting the same case law and arguments contained in their
second motion requesting leave to amend their complaint. With their Motion to
Correct Error, Irvin and Hodge filed, for the first time, an affidavit from
their attorney, J. David Hollingsworth (Hollingsworth). In his affidavit, Hollingsworth stated (1)
that he had personally contacted the Frankfort Police Department in December of 1994
to obtain any information the department may have had in regard to the
collision, (2) that he had been informed that all the information the department
had was contained within the Accident Report, and (3) that the Accident Report
had been conveyed to him shortly thereafter. Hollingsworth further stated in his
affidavit that at no time did anyone from the Frankfort Police Department inform
him of the existence of the LAW Incident Table or mention Kimberly Stephenss
On June 1, 1999, Sentry likewise filed its Motion to Correct Errors.
Therein, Sentry also reasserted case law and arguments raised in its prior Motion
to Amend Complaint. Sentry also included, for the first time, an affidavit
of its attorney, William Ivers (Ivers), who stated that he, too, had contacted
the Frankfort Police Department to obtain information regarding the collision, that he had
received only the Accident Report listing the driver of the Brashear vehicle as
Unknown, and that prior to filing his Motion to Amend Complaint, he had
been unaware of any information identifying Stephens as the driver of the Brashear
On June 23, 1999, the trial court granted the Plaintiffs Motion[s] to Correct
Error, and in both cases, permitted them to add Stephens as a defendant,
despite the fact the applicable statute of limitations for the underlying offense had
run. In both orders, the trial court stated that it could consider
the affidavits of counsel in making its decision, but further stated it had
not found the affidavits dispositive.
Stephens and CIC subsequently filed their petitions for certification for interlocutory appeal for
both cases, which the trial court granted on September 3, 1999. This
Court granted Stephenss and CICs petition to entertain jurisdiction of this interlocutory appeal
on October 19, 1999. The following appeal ensued.
Discussion and Decision
I. Motion to Correct Error/Motion to Reconsider
We first address Stephenss and CICs allegations that the trial court erred when
it considered the attorney affidavits submitted by Plaintiffs with their Motion[s] to Correct
Error. To make this determination, we must further scrutinize the pertinent procedural
On April 29, 1999, the trial court granted Huffs Motion to Dismiss, stating
Comes now Defendant, Loretta Huff, by counsel, having moved to dismiss this cause
of action against her pursuant to Indiana T.R. 12.
And the court, having examined the same and being duly advised in the
premises, now finds that the prayer thereof should be granted.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the above-captioned cause of action
is dismissed with prejudice as against Loretta Huff.
(Irvin/Hodge R. 108.) On the same day, the trial court also denied
Plaintiffs respective motions requesting leave to amend their complaints and, in so doing,
stated, in pertinent part:
Plaintiffs file their Second Motion to Amend Complaint. Court does not find
that concealment applies. At first blush, equitable estoppel seems to apply.
Stephens affirmatively left the scene. Some months later the passenger (Stephens[s] boyfriend
and car owners son) testified at deposition that Loretta Huff was driving.
Huff is non-existent.
Had Stephens[s] affidavit of March, 1999 been the first knowledge for Plaintiff, leave
should be granted. . . . However, the Frankfort Police Law Incident
at the time of the 1994 accident, identified Kimberly Stephens as
Suspect Driver #1.
Plaintiffs were obligated to take due diligence at least to investigate the involvement
of Kimberly Stephens, but did not do so. Instead, they apparently relied
on her boyfriend passenger . . . .
Court cannot find under these circumstances that Plaintiffs exercised due diligence.
IT IS THEREFORE ORDERED that Plaintiffs Second Motion to Amend Complaint be denied.
(Irvin/Hodge R. 106; Sentry R. 117.)
On May 28, 1999, Plaintiffs filed their respective motions captioned Motion to Correct
Error, alleging that the trial court had erred in both denying their earlier
request for leave to name Stephens as a defendant and in finding that
they had failed to exercise due diligence. In support of these assertions
of error, Plaintiffs essentially repeated the arguments that they had raised previously in
their second motions for leave to amend. Plaintiffs also attached, for the
first time, the attorney affidavits at issue in this case.
Counsel for Huff and CIC objected to the admission of the attorney affidavits
and requested that they be stricken, citing Indiana Trial Rule 59. However,
on June 23, 1999, the trial court granted Plaintiffs Motion[s] to Correct Error
thereby granting their requests for leave to amend their complaints and add Stephens
as a defendant. In so doing, the trial court stated, in pertinent
The Court having reviewed designated materials such as the standard Officers Report (driver
unknown) and deposition of car owners son mis-identifying driver, finds that It erred.
Alleged driver Stephens was apparently Baileys girlfriend who fled the scene, then
later the state.
In the interest of justice, Court can consider counsels untimely affidavit, but does
not find it dispositive in this matter.
IT IS ORDERED that Plaintiffs Motion to Correct Errors be granted, and that
Motion to Amend Complaint be granted.
(Irvin/Hodge R. 134; Sentry 142.)
Standard of Review
In support of their contention that the trial court erred when it considered
the attorney affidavits submitted by Plaintiffs, Stephens and CIC point out that, pursuant
to Indiana Trial Rule 59, Indiana law does not permit a party to
offer evidence, by way of affidavit, which was previously known but which the
party merely neglected to submit at a prior proceeding. Stephens and CIC
further assert that the affidavits in question simply contain facts that were known
to the Plaintiffs when they filed their prior motions for leave to amend
their complaints to add Stephens as a defendant. Thus, Stephens and CIC
conclude that the belated affidavits were erroneously accepted and considered by the trial
Plaintiffs recognize that Indiana Trial Rule 59 would preclude the trial court from
considering their affidavits if a final judgment had been entered. However, Plaintiffs
counter that the trial courts initial order denying their requests for leave to
add Stephens as a defendant was not a final judgment, but was an
interlocutory order. Thus, Plaintiffs conclude that (1) the trial court had the
inherent power to modify its order until such time as it issued a
final order, (2) Indiana Trial Rule 59 is inapplicable, and (3) the affidavits
were properly considered. We agree.
A trial court has the inherent power to reconsider, vacate, or modify any
previous order so long as the case has not proceeded to final judgment.
Wabash Grain, Inc. v. Bank One, Crawfordsville, NA, 713 N.E.2d 323, 324
(Ind. Ct. App. 1999). Additionally, a trial court may base its decision
to modify an order upon any theory supported in the designated materials.
Squires v. Utility/Trailers of Indianapolis, Inc., 686 N.E.2d 416, 419 (Ind. Ct. App.
Indiana Trial Rule 59(C) provides that a motion to correct error . .
. shall be filed not later than thirty (30) days after the entry
of final judgment . . . . (Emphasis added.) This rule
has been held to be mandatory and jurisdictional. See In re Barnetts
Estate, 159 Ind. App. 491, 307 N.E.2d 490, 493 (1974). Thus, a
motion to correct error may only be made after a trial court has
issued a final judgment. T.R. 59. Moreover, we have previously held
that a trial court entry sustaining a motion (to dismiss) but going no
further is not sufficient to constitute a final judgment. Parrett v. Lebamoff,
179 Ind.App. 25, 383 N.E.2d 1107, 1108 (1979); see also Phipps v. First
United Sav. Bank, 601 N.E.2d 13, 15-16 n.1 (Ind. Ct. App. 1992) (holding
that a motion to dismiss does not operate as a final adjudication and
the grounds raised therein may still be argued and again considered in the
appeal on the merits of the case).
Our review of the record indicates that there was no final judgment entered
following the trial courts order granting Huffs motion to dismiss. Moreover, there
has been no disposition of this case on its merits. We recognize
that the practical effect of the trial courts April 29, 1999, rulings dismissing
Huff from the cause of action and denying Plaintiffs request to add Stephens
as a defendant was to end the litigation due to the fact there
were no longer any viable defendants. However, procedurally speaking, the cause of
action had not concluded, in that there was no final judgment. Thus,
after reviewing the substance of the motion itself in light of the procedural
posture of the case, we find that Plaintiffs motions, although each was labeled
a Motion to Correct Error, could not have been so. Rather, we
find the motions were in the nature of a motion to reconsider.
See St. Margaret Mercy Healthcare Centers, Inc. v. Lake County, 714 N.E.2d 272,
274 (Ind. Ct. App. 1999) (stating that partys pleading, while designated a motion
to correct error, could not have been so in light of the fact
the court had not made a final judgment and thus pleading was in
the nature of a motion for clarification or a motion to reconsider), trans.
denied. The record also reveals that, in its order, the trial court
stated that it could consider the affidavits but that it did not find
them to be dispositive. This statement further supports our conclusion that the
trial court was treating Plaintiffs motions as motions to reconsider. See Boone
County Rural Elec. Membership Corp. v. Layton, 664 N.E.2d 735, 739 (Ind. Ct.
App. 1996) (holding that appellate courts presume the trial courts know and will
follow the law). Consequently, we find that the trial court did not
err when it considered the attorney affidavits. Moreover, as stated previously, a
trial court is permitted to reconsider and/or modify an order based upon any
theory supported by the designated materials. The record reveals that, in vacating
its previous order and allowing Plaintiffs to add Stephens as a defendant, the
trial court based its decision on the Accident Report and Baileys deposition.
We find that this evidence supports the trial courts decision. However, our
inquiry does not end here in light of Sentrys and CICs additional contention
that the applicable statute of limitations pertaining to Plaintiffs claims had expired.
II. Indianas Fraudulent Concealment Statute
Stephens and CIC next contend that the trial court abused its discretion in
granting Plaintiffs motions captioned Motion[s] to Correct Error, thereby allowing Plaintiffs to add
Stephens as a defendant after the two-year statute of limitations for tort actions
had expired. In support of this contention, Stephens and CIC assert that
Indianas fraudulent concealment statute is inapplicable to the present case because the existence
of the underlying cause of action was not concealed, but indeed was known
to the Plaintiffs at its inception. Stephens and CIC also point out
that Stephenss identity as the suspected driver of the Brashear car was available
two years before the statute of limitations expired and thus argue that Plaintiffs
failed to use due diligence in investigating Stephenss potential involvement and therefore should
be precluded from seeking equitable relief. Finally, Stephens and CIC assert that
the doctrine of fraudulent concealment affords no relief to Plaintiffs because Stephens made
no representations or misrepresentations to any party and engaged in no affirmative act
to conceal the Plaintiffs cause of action.
Standard of Review
Consistent with an underlying purpose to facilitate decisions on the merits and to
avoid pleading traps, the Indiana Trial Rules generally implement a policy of liberal
amendment of pleadings, absent prejudice to an opponent. Kimberlin v. DeLong, 637
N.E.2d 121, 128 (Ind. 1994). Thus, a trial court is given broad
discretion in this area and, absent an abuse of discretion, will be affirmed
if there is any rational basis for its decision. Id.
Indianas Fraudulent Concealment Statute reads as follows:
If any person liable to an action shall conceal the fact from the
knowledge of the person entitled thereto, the action may be commenced at any
time within the period of limitation after the discovery of the cause of
Ind. Code § 34-11-5-1. There is a split of opinion on this
Court, however, as to whether the concealment discussed in this statute refers solely
to the case where a wrongdoer conceals the cause of action itself, or
whether the statute may be applied when concealment or misrepresentation of the party
against whom a cause of action has arisen occurs.
Stephens and CIC rely on
Landers v. Evers, 107 Ind. App. 347, 24
N.E.2d 796 (1940), in support of their contention that the concealment recognized by
our Statue of Fraudulent Concealment pertains solely to the concealment of the cause
of action and not to the identity of the party against whom the
cause of action may be brought. In Landers, plaintiff Landers brought an
action to recover damages for personal injuries alleged to have been received by
her as a result of an automobile collision with Evers. However, Landers
filed her complaint after the two-year statute of limitations had run. In
an attempt to avoid the statute of limitations, Landers alleged that on the
night of the accident, her husband, with whom she had been riding, asked
Evers his name and address and that in response thereto, Evers replied Harold
Evers, instead of giving his true name, Howard Evers. Landers further asserted
that she did not learn of this misrepresentation until after the two-year statute
of limitations had run. Thus, Landers claimed that because Evers had misrepresented
his true name, Evers had concealed his identity and should therefore be estopped
from claiming the benefits of the statute of limitations, either by operation of
our statute or by the doctrine of equitable estoppel.
In rejecting Landerss contention, the
Landers court opined that [t]here is a distinction
between concealment or misrepresentation of the identity of the party against whom a
cause of action has arisen and a concealment of the cause of action.
Id. at 797. The court went on to state that Landers
had full knowledge of her cause of action and that the concealment or
misrepresentation complained of referred exclusively to the identity of the party against whom
the cause of action may have been brought. The court then concluded
that Everss concealment of his true name was not a reason or ground
recognized by the statute for the tolling of the running of the statute
of limitations. The concealment recognized by our statute relates to the cause
of action and not the identity of the party against whom the action
may be brought. Id.
Plaintiffs, on the other hand, direct our attention to two more recent cases
where we have taken a position contrary to the holding in Landers.
In Sutton v. Sanders, 556 N.E.2d 1362 (Ind. Ct. App. 1990), Sanders was
injured in an automobile accident while he was a passenger in Suttons car
that was being operated by a third party, Purlee. Sutton was one
of five occupants in the car. All of the cars occupants had
been drinking prior to the accident. After a head-on collision, the five
occupants of the car agreed to state that Sutton was driving the car
rather than Purlee, the actual driver. Sanders and his mother thereafter filed
a timely complaint against Sutton, alleging that Sutton was the driver of the
car in which Sanders was riding at the time of the collision.
After the statute of limitations had run, Sutton was deposed, at which time
Sanders learned that Purlee, not Sutton, had been driving the car. The
trial court allowed Sanders to amend his complaint to show Purlee was the
driver of the car. On appeal, Purlee and Sutton argued that the
amended complaint had not been filed within the statute of limitations and therefore
the trial court had erred in denying their motion for summary judgment.
The Sutton court disagreed, holding that Indianas concealment statute will extend a partys
time to file suit only when the opposing party actively and intentionally conceals
the cause of action. Id. at 1366. It further found that
Purlee actively concealed the cause of action when he participated in the statement
to the police officer that Sutton was driving the vehicle. Id. at
1368. The court went on to note that Purlee did not inform
the police officer investigating the accident or Sanderss mother that he had been
driving, and thus, the statute of limitations did not begin to run until
he admitted the fact during a March 1989 deposition. Accordingly, the Sutton
court concluded that Sanders action was timely filed.
The second case Plaintiffs rely on is Ayers v. State Farm
Mut. Auto Ins. Co, 558 N.E.2d 831 (Ind. Ct. App. 1990). In
Ayers, plaintiff Ayerss vehicle was struck by another vehicle, which fled the scene
and was not later identified. At the time of the accident, Ayers
was insured by State Farm. Thus, after the accident, Ayers began to
negotiate a settlement with State Farm for her injuries pursuant to her insurance
contracts uninsured motorist provision. However, State Farm denied coverage, and Ayers thereafter
State Farm filed a motion to dismiss, alleging Ayerss action was not timely
filed. Specifically, State Farm argued that because Ayers did not bring her
action against the unknown driver of the vehicle that caused the accident within
the limitation period for personal injury actions, she was no longer legally entitled
to recover damages from the driver, and therefore State Farm was no longer
liable under the insurance contract. The trial court agreed and dismissed the
case. On appeal, Ayers argued that her action was not barred by
the statute of limitations. This Court agreed, stating that the doctrine of
fraudulent concealment rescues Ayers from the impasse posed by State Farm. Id.
at 833. The Ayers court went on to state that the doctrine
operates as an equitable device to estop a defendant from asserting a statute
of limitations when he has, either by deception or by violation of duty,
concealed from the plaintiff material facts preventing the plaintiff from pursuing a potential
cause of action. Id. The Ayers court also noted that a
driver of a vehicle involved in an accident has a statutory duty to
stop and be identified pursuant to Indiana Code sections 9-4-1-40 and 41
by leaving the accident scene, the unknown driver in
Ayers fraudulently concealed his
or her identity in violation of this statutory duty, thereby preventing Ayers from
pursuing her cause of action. Thus, the Ayers court concluded that Ayerss
potential claim against the unknown driver was not barred by the statute of
limitations and that Ayers should have been permitted to attempt to collect damages
from State Farm under its insurance contract.
We agree with the reasoning in Sutton and Ayers and, after careful consideration,
decline to follow Landers. In the instant case, Stephens had an affirmative
statutory duty to remain at the scene of the accident and to identify
herself to the authorities. See Ind. Code §§ 9-26-1-1 and 2.
Stephens failed to fulfill her statutory duty. Moreover, Stephenss duty to report
her involvement was a continuing obligation, which she chose
to ignore at the
expense of Plaintiffs well beyond the statute of limitations, which she now seeks
to use as a shield against prosecution. The failure to speak when
there is a duty to disclose will toll the running of the statute
Lambert v. Stark, 484 N.E.2d 630, 632 (Ind. Ct. App.
1985). By fleeing the scene and concealing her identity for more than
two years, Stephens purposefully and affirmatively concealed material facts that prevented Plaintiffs from
pursuing their respective causes of action. We cannot condone Stephenss conduct and
hold that such behavior is prohibited by Indianas Fraudulent Concealment Statute.
The subterfuge by Stephens and Bailey did not end with Stephens fleeing the
scene. Bailey also had a duty to truthfully and accurately report the
events surrounding the collision, including providing authorities with Stephenss name.
Code § 9-26-1-6. Our review of the record reveals that Bailey purposefully
misled investigating officers at the scene by telling Officer Martin that he did
not know who the driver of the Brashear vehicle was and that he
had only met the woman that evening. In so doing, Bailey committed
the offense of False Informing. See Ind. Code § 35-44-2-2(c)(1). Bailey
later committed Perjury by lying under oath and telling Plaintiffs attorneys, during his
deposition, that the name of the woman who left the scene was Loretta
Huff when he knew that the driver was Stephens, his girlfriend. See
Ind. Code § 35-44-2-1. Thus, there were at least three separate affirmative
acts taken by Stephens and Bailey to illegally conceal Stephenss identity in order
to evade prosecution. Despite these acts, CIC and Stephens have used the
court to try to avail themselves of a procedural technicality, asserting that Plaintiffs
should be denied their day in court for failing to use due diligence
in identifying and locating Stephens. We have no place for such abhorrent
conduct in our judicial system. Moreover, this Court will not reward Stephens
for her deceptive and unlawful conduct or allow CIC to rely upon this
conduct as a basis to support its motion to dismiss.
In todays society, where court dockets are congested and costs associated with litigation
are often exorbitant, it is increasingly important that any information garnered at the
scene of an accident be provided in a truthful and forthright manner in
accordance with the law, in order to promote efficient and economical judicial proceedings.
Attorneys cannot be expected to pursue every possible avenue and must able
to trust that any information provided by witnesses has been done so in
a truthful manner. In the case at bar, the attorneys for Plaintiffs
obtained a copy of the police report in which the driver of the
Brashear car was listed as Unknown. They then deposed Bailey, who was
the only witness who could have provided the name of the unknown driver
and who was under a duty to fully disclose any relevant information.
Based on Baileys false information, Plaintiffs attorneys made diligent but unsuccessful attempts to
locate the non-existent Loretta Huff, wasting valuable time and money.
Based on the forgoing, we find Stephenss and CICs argument that Plaintiffs were
not diligent to be disingenuous. We further conclude that the evidence supports
the trial courts ultimate determination that it had previously erred in finding Plaintiffs
had failed to exercise due diligence in locating Stephens. The policy in
our state is to freely allow amendments in order to bring all matters
at issue before the trial court.
Cox v. Indiana Subcontractors Assn, Inc.,
441 N.E.2d 222, 225 (Ind. Ct. App. 1982). Accordingly, we hold the
trial court properly allowed Plaintiffs leave to amend their complaints and add Stephens
as a defendant, despite the running of the statute of limitations.
MATTINGLY, J., and BROOK, J., concur.
In light of our resolution of this issue, we need not address
Stephenss and CICs additional contention that the doctrine of equitable estoppel is inapplicable
to the case at bar.
The two underlying state cases have been consolidated solely for purposes of
this interlocutory appeal, as both cases involve the same automobile accident, the same
defendant, related plaintiffs, and the same issues. The record for each underlying
cause was submitted to this Court in a separate, marked volume with a
Clerks certificate for each case. Hereinafter, we shall refer to the record
pertaining to the cause involving plaintiffs Irvin and Hodge as Irvin/Hodge R.
Likewise, we will refer to the record pertaining to the separate cause involving
plaintiff Sentry Insurance as Sentry R.
We note that the evidence shows Bailey was Brashears son and
that Bailey had permission to use Brashears vehicle.
Sentry initially named CIC as a party-defendant as well, but then voluntarily
dismissed CIC on December 16, 1996. CIC subsequently sought and obtained leave
to intervene in order to move to set aside the default judgment against
The trial courts order reinstating the stay of proceedings was not contained
in the record. However, the Chronological Case Summary contained in the Sentry
record confirms this fact. (Sentry R. 13.)
The federal district court declaratory judgment action is currently stayed, pending the
outcome of the state court cases.
We note that Ind. Code §§ 9-4-1-40 and 41 have since been
recodified at Ind. Code §§ 9-26-1-1 and 2 respectively.