APPEAL FROM THE ELKHART SUPERIOR COURT. The Honorable Evan S. Roberts, Judge. Cause No. 20D01-1009-CT-61.
ATTORNEYS FOR APPELLANT: BENJAMIN D. ICE, WILLIAM A. RAMSEY, Murphy Ice & Koeneman LLP, Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEES: ROBERT J. PALMER, May . Oberfell . Lorber, Mishawaka, Indiana; EDWARD J. CHESTER, LAURA L. EZZELL, Chester Law Offices, Elkhart, Indiana.
BROWN, Judge. ROBB, J., concurs. BARNES, J., concurs with separate opinion.
GEICO General Insurance Company (" GEICO" ) appeals from the trial court's Findings of Fact and Conclusions of Law
Addressing Plaintiff's Motion for a New Trial, entered on March 21, 2013, as well as from the court's Final Order entered on June 5, 2013, in favor of Cheryl A. O'Mailia and James O'Mailia (collectively, the " O'Mailias" ). GEICO raises three issues, which we consolidate and restate as whether the court erred in awarding attorney fees to the O'Mailias based upon GEICO litigating in bad faith. Additionally, the O'Mailias request appellate attorney fees pursuant to Ind. Appellate Rule 66(E). We reverse and also deny the O'Mailias' request for appellate attorney fees.
FACTS AND PROCEDURAL HISTORY
On December 28, 2009, vehicles driven by Laura Coyne and Arlin Yoder were involved in an accident. Cheryl O'Mailia was a passenger in Coyne's vehicle, and she sustained physical injuries from the accident, including fractures of the second cervical vertibra, the seventh cervical vertibra, the sternum, multiple rib fractures, and the mid ulna on her left arm. At the time of the accident, the O'Mailias were insured by GEICO under a policy providing underinsured motorist coverage with a limit of $600,000. Cheryl brought a claim under the policy for damages sustained and James brought a claim under the policy for loss of consortium.
Approximately one week before trial, counsel for GEICO discovered on the Florida Department of Health's public website that James's medical license had come under investigation based on numerous allegations, including that he had forged prescriptions for his wife (the " Florida Information" ). The website noted that due to these allegations, the State of Florida arrested James on July 20, 2009, and charged him with thirteen counts of violating Fla. Stat. § 893.13(7)(a), by obtaining controlled substances by fraud. On September 1, 2009, James pled nolo contendere to five felony counts of violating Fla. Stat. § 831.02 by uttering a forged instrument. Also, on September 7, 2010, the Florida Surgeon General asked the Florida Board of Medicine to impose penalties including the revocation or suspension of James's medical license, and in January 2011 James entered into a settlement agreement under the terms of which he agreed to pay a $30,000 fine and reimburse the Department of Health costs of between $21,254.15 and $24,254.15, was prohibited from treating or prescribing medications to family members, and had his medical license placed on probation for three years.
GEICO did not alert the O'Mailias of the Florida Information it had found, and apparently the O'Mailias did not tell their counsel about the same. On October 31, 2012, a jury trial commenced, and on the second day of trial James testified regarding the accident's effect on him and his wife, as well as problems with his medical office. He testified that " had [his wife] not had the accident, I would suspect that this would have been nothing other than just a regular, American family -- just trying to do the best we could." Transcript at 187. On cross-examination, the following exchange occurred:
Q. But you said that before the accident you just had the problems of a regular, American family. Is that right?
A. I think so. Yes.
Q. Isn't it true that you guys had something else going on in your family that most families aren't dealing with?
A. What are you alluding to?
Q. You can't think of anything as you ...