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09/30/87 ROGER SMITHERS v. JAMES C. METTERT

Filed: September 30, 1987.

ROGER SMITHERS, PLAINTIFF-APPELLANT,
v.
JAMES C. METTERT, DEFENDANT-APPELLEE, MILWAUKEE INSURANCE COMPANY, GARNISHEE-DEFENDANT-APPELLEE



APPEAL FROM THE HENRY CIRCUIT COURT, The Honorable John L. Kellam, Judge, Cause No. 81-C-70.

Ratliff, C.j., wrote the opinion, Robertson, J., concurs, Sullivan, J., Dissents with separate opinion.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

Roger Smithers appeals from the Henry Circuit Court the denial of his motion for payment of insurance proceeds through proceedings supplemental. We reverse.

FACTS

On April 25, 1979, a car owned and operated by James C. Mettert (Mettert) swerved off the road and flipped over. Three passengers were in the car with Mettert: Mary Daffron, Jack Duffy, and Roger Smithers (Smithers). Smithers was injured. Mettert was insured by Milwaukee Insurance Company (Milwaukee) under an automobile liability insurance contract that contained standard conditions for coverage.

After obtaining treatment for his injuries, Smithers contacted an attorney, who in turn contacted Milwaukee and asserted Smithers's claim. Milwaukee retained the services of Thomas Forshee (Forshee), an independent adjuster, to investigate Smithers's claim. In investigating the claim, Forshee sent two (2) letters to Mettert's Indiana address, one (1) in January, and one (1) in February of 1980. Apparently, Mettert was out of state at the time. Finally, in March of 1980 Mettert responded and telephoned Forshee from New Castle, Indiana, and gave a statement concerning the accident. Forshee then attempted, but failed, to contact the other passengers. Forshee did not obtain a police report. Finally, on January 26, 1981, Forshee wrote to Milwaukee and stated that Mettert was apparently in California and that Forshee was unable to locate the other passengers.

On February 5, 1981, Smithers filed a complaint for damages against Mettert based on the 1979 accident. Milwaukee retained David S. Wallace (Wallace) who filed an appearance and answer on behalf of Mettert on May 7, 1981. After filing the appearance Wallace attempted to contact Mettert. Wallace sent a letter to Mettert in care of Pat Ballard which indicated he entered an appearance in the suit and requested that Mettert contact him. Wallace did not receive a response. Accordingly, on May 11, 1981, Wallace sent a second letter by certified mail, return receipt requested. The letter was accepted and signed by Ella Foat on May 16, 1981. However, Wallace did not receive a response from Mettert.

Wallace continued his attempts to contact Mettert by calling Mettert's mother who resided in New Castle, Indiana. Wallace requested that she have Mettert contact him. On September 11, 1981, Wallace requested investigative assistance from Milwaukee. Milwaukee retained Kane-Weber, an investigative agency, to locate Mettert. On November 11, 1981, Wallace received Kane-Weber's report which indicated that Mettert was temporarily staying at the residence of his brother and sister-in-law in Largo, Florida. The report contained an address and telephone number where Mettert could be contacted.

Wallace attempted to contact Mettert at the Largo address by sending a letter by certified mail, return receipt requested. The letter was returned unclaimed. Wallace also attempted to telephone Mettert, but the telephone rang without answer. Wallace sent a second certified letter to the Largo address on November 10, 1982. On the same day duplicate letters were sent to a Clearwater, Florida, address and to Mettert's mother in New Castle. On November 29, 1982, Wallace filed a verified petition to withdraw his appearance on behalf of Mettert due to his inability to contact Mettert. The court granted the petition.

On January 4, 1983, the trial court entered a default judgment in favor of Smithers and against Mettert who failed to appear for trial. A hearing on damages was held on January 11, 1983. Mettert again failed to appear. Judgment was entered in favor of Smithers for Seventy-Five Thousand Dollars ( $75,000).

On January 26, 1983, Smithers filed a motion to enforce judgment by proceedings supplemental and filed interrogatories to be answered by Milwaukee. The court ordered Milwaukee to appear and answer. On March 1, 1983, Milwaukee entered its appearance and filed answers to the interrogatories. On June 2, 1983, Smithers filed a garnishment motion for a court order directing payment of insurance proceeds. On October 3, 1983, Milwaukee filed an answer to the garnishment motion. On October 21, 1983, a hearing was held, and the trial court took the motion under advisement. Post hearing briefs were filed. On April 9, 1986, Smithers filed a renewed garnishment motion. Finally, on November 26, 1986, more than three (3) years after the garnishment hearing, the trial court entered an order denying Smithers's motions for payment of insurance proceeds. The trial court also issued a memorandum decision in support of the order. Smithers appeals the denial.

ISSUES

The following rephrased issues ...


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