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Gilday v. Motsay

Court of Appeals of Indiana

February 13, 2015

Karan L. Gilday, and James K. Gilday, Appellants-Plaintiffs,
v.
Jeanine L. Motsay, and Edward W. Ochoa, Appellees-Defendants

Page 124

Appeal from the Marion Superior Court; The Honorable David Dreyer, Judge; 49D10-1206-CT-22314.

ATTORNEY FOR APPELLANTS: James K. Gilday, Gilday & Associates, P.C., Indianapolis, Indiana.

ATTORNEYS FOR APPELLEES: Stephen E. Arthur, Richard L. McOmber, Harrison & Moberly, LLP, Indianapolis, Indiana.

May, Judge. Barnes, J., and Pyle, J., concur.

OPINION

Page 125

May, Judge.

[¶1] Karan L. Gilday and James K. Gilday appeal the final judgment on their claims for damage to their vehicle. They raise three issues, which we reorder and restate as:

[¶2] 1. Whether the trial court erred in entering final judgment on the Gildays' Motion for Summary Judgment;

[¶3] 2. Whether the trial court should have ruled on the Gildays' Motion to Compel; and

[¶4] 3. Whether they were entitled to attorney's fees.

[¶5] We affirm.

Facts and Procedural History

[¶6] On June 3, 2010, a 2008 Toyota 4Runner owned by the Gildays and driven by Karan L. Gilday collided with a vehicle owned by Edward W. Ochoa and Jeanine L. Motsay, and driven by Jeanine L. Motsay. Motsay admitted at the scene she did not stop at a red light in time to avoid the collision. As a result of the damage to the 4Runner, James and Karan, at various times, communicated with Motsay's insurer, Ameriprise Auto and Home Insurance (" Ameriprise" ) in an effort to resolve their property damage claim. The Gildays were not satisfied with the initial offers Ameriprise made, and they took the 4Runner to a Toyota dealer to be repaired. The bill was $6,257.83, and the Gildays paid it. They also paid Enterprise Leasing Company $1,332.00 for car rental.

[¶7] Further negotiations between the parties were unsuccessful, and on May 31, 2012, the Gildays sued Motsay and Ochoa in the Marion Superior Court.[1] On June 8, 2012, the Gildays filed an amended complaint that alleged Motsay was at fault and they sought damages including property damage, repair of the vehicle, related expenses, lost revenue, and pre-judgment interest.

[¶8] Motsay and Ochoa answered and asserted as affirmative defenses that the Gildays' damages were caused by Karan's own carelessness and negligent acts or omissions, and that the Gildays may not have mitigated their damages. In their Reply to Affirmative Defense/Counterclaim, the Gildays also asserted affirmative defenses, which are not at issue in this appeal.

Page 126

[¶9] Motsay and Ochoa amended their Answer and Affirmative Defenses. They admitted the allegations in the Gildays' Amended Complaint except that there was any entrustment of the vehicle by Ochoa. They acknowledged Motsay was liable to the Gildays for property damage and cost of repair but they denied they were liable for " related ...


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