GEICO INSURANCE COMPANY, as subrogee of RALPH HEITKAMP, Appellant-Plaintiff,
DIANNA GRAHAM, Appellee-Defendant
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Cynthia Ayers, Judge. Cause No. 49D04-1109-CT-37292.
ATTORNEYS FOR APPELLANT: ROBERT G. GRANT, T. BLAKE ORNER, Grant & Grant, Indianapolis, Indiana.
MATHIAS, Judge. FRIEDLANDER, J., and PYLE, J., concur.
Insured motorists are called upon every day to pay their deductibles in order for their carriers to cover the necessary repairs to their motor vehicles after accidents. Many carriers refuse to include
those deductibles in the subrogated claims they make against the other motorists involved in accidents with their insureds. Because they are left on their own, insured motorists often later sue the other motorist(s) involved in those accidents in a small claims court to recover the deductible amounts they paid. And, almost as often, these insured motorists are successful in the small claims action for their deductibles. But here, Geico Insurance Company's (" Geico's" ), insured, Ralph Heitkamp (" Heitkamp" ), lost his claim for his deductible in the Small Claims Division of the St. Joseph Superior Court. As a result, Geico now appeals the order of the Marion Superior Court granting a motion filed by the other motorist involved in the accident at issue, Dianna Graham (" Graham" ), seeking to set aside the court's earlier entry of summary judgment in favor of Geico. On appeal, Geico claims that the trial court erred in concluding that a prior small claims judgment in favor of Graham acted as res judicata to bar Geico's claims against Graham.
Facts and Procedural History
On October 2, 2009, Graham and Heitkamp's wife, Janet Heitkamp (" Janet" ), were involved in an automobile accident. Janet was insured by Geico under her husband's policy. Geico paid $7,540.22 to Heitkamp under the policy, and Heitkamp and Janet signed a release in which they released all claims against Geico and promised not to compromise Geico's subrogation rights.
Heitkamp, however, filed a small claims action in St. Joseph County against Graham in August 2011, claiming that Graham was at fault in the accident and seeking to recover the $500 deductible he had paid to Geico almost two years earlier. Little more than a month later, on September 26, 2011, Geico, as Heitkamp's subrogee, filed a claim in Marion Superior Court against Graham seeking to recover the $7,540.22 it had paid to Heitkamp, again claiming that Graham was at fault in the accident.
Janet and Graham subsequently appeared before the Small Claims Division of St. Joseph Superior Court, and, on October 25, 2011, the small claims court entered judgment in favor of Graham, finding that Janet, not Graham, was at fault in the accident. Graham then sent a letter to the Marion Superior Court filed October 26, 2011, informing the court that there was a case " relating to this one [in Marion County] in South Bend, In," and maintaining that she was not at fault in the accident. Appellant's App. p. 13. The chronological case summary shows that a copy of this letter was sent to Geico's counsel.
Nevertheless, on February 13, 2012, Geico filed its motion for summary judgment in the Marion Superior Court case and a hearing was held on April 17. Although Graham appeared in person, she presented no designated evidence. On June 28, 2012, the Marion Superior Court entered summary judgment in favor of Geico.
On February 4, 2013, Graham, this time with the assistance of counsel, filed a motion to set aside the entry of summary judgment pursuant to Indiana Trial Rule 60(B)(6). The trial court held a hearing on the matter on June 12, 2013, and on October 1, 2013, entered an order granting Graham's motion to set aside the grant of summary judgment and dismissing Geico's claim. The trial court concluded that Heitkamp's unsuccessful small claims action against Graham acted as res judicata to
bar the claim against Graham by Geico. Geico now appeals.
I. Prima Facie Error Rule
Before addressing the merits of the current appeal, we note that Graham has not filed an appellee's brief. When the appellee fails to submit a brief, we will not undertake the burden of developing an argument on her behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Instead, we will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. Id. In this context, prima facie error is defined as, " 'at first sight, on first appearance, or on the face of it.'" Id. (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App. 1999)). This " prima facie error rule" protects the court on appeal and takes from us the burden of controverting arguments advanced for reversal, a duty which remains with the appellee. Mikel v. Johnston, 907 N.E.2d 547, 551 n.3 (Ind.Ct.App. 2009). But even under the prima facie error rule, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required. Id. And if the appellant is unable to meet the burden of establishing prima facie error, we will affirm. Trinity Homes, 848 N.E.2d at 1068.
We first observe that Geico chose to file the underlying suit in this appeal, regarding an accident that occurred in Mishawaka and that involved two St. Joseph County residents, in Marion County, 150 miles and almost three hours by auto away from the site of the accident at issue. It is clear to any lay person, let alone an attorney, that either Elkhart County or St. Joseph County was the commonsense county of preferred venue. See Ind. Trial Rule 75(A) (providing that preferred venue lies in " the county where the greater percentage of individual defendants included in the complaint resides, or, if there is no such greater percentage, the place where any individual defendant so named resides," or " the county where the accident or collision occurred, if the complaint includes a claim for injuries relating to the operation of a motor vehicle[.]" ). Absolutely nothing in the facts or circumstances of the accident would indicate that Marion County is a county of preferred venue.
In the case before us, Graham was uninsured, and therefore without the representation of insurance counsel normally provided under an auto insurance policy, counsel who would have immediately challenged Geico's choice of venue. And since Geico's subrogation claim was for an amount in excess of the jurisdiction of an Indiana small claims court, it was legally entitled to file its suit in the Marion Superior Court, or in any other county, for that matter. A plenary case like the one at issue here may be filed and tried in any county, although a case must be transferred to a county of preferred venue if a party files a motion to dismiss for improper venue. Ind. Trial Rule 75(A); Bostic v. House of James, Inc., 784 N.E.2d 509, 511 (Ind.Ct.App. 2003).
If Graham had filed a motion to transfer venue to St. Joseph County, the Marion Superior Court would have had no choice but to grant the motion. But she was unrepresented, did not know to do so, and this is not whet happened. Graham instead
notified the Marion Superior Court of the small claims action in St. Joseph County, filing a letter that stated in pertinent part:
I am writing this letter to inform you that because of a case related to this one in South Bend, In on 10/25/11, I did not get my response in before the said date. I wanted to wait until after the above court date was finished. I am asking ...