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Clayton v. Smith

Court of Appeals of Indiana

October 26, 2018

Nolan Clayton, Appellant-Defendant,
Gregory Smith, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable James B. Osborn, Judge Trial Court Cause No. 49D14-1606-CT-21431

          Attorneys for Appellant William H. Kelley, Thaddeus C. Kelley Kelley Law Offices LLC Bloomington, Indiana.

          Attorneys for Appellee Ann Marie Waldron Waldron Law Indianapolis, Indiana Michael E. Simmons Hume Smith Geddes Green & Simmons, LLP Indianapolis, Indiana.

          Bailey, Judge.

         Case Summary

         [¶1] Upon the trial of a personal injury action brought by Gregory Smith ("Smith") against Nolan Clayton ("Clayton"), a jury found Clayton liable for $21, 000, 000.00, and the trial court subsequently awarded Smith a portion of the prejudgment interest he requested. Clayton moved for post-verdict credit for advance payments purportedly made by insurers on his behalf, but the trial court did not contemporaneously reduce the verdict.[1] Clayton appeals, asking that we set aside the judgment entered upon the jury verdict and remand for a new trial. We affirm.


         [¶2] Clayton presents four issues for review:

I. Whether the trial court abused its discretion in making evidentiary rulings pertaining to prior conduct of Clayton and Smith;
II. Whether the trial court abused its discretion in admitting testimony from Smith's three expert or skilled witnesses;
III. Whether Smith was improperly awarded prejudgment interest; and
IV. Whether Clayton is entitled to post-verdict credit for advance payments.

         Facts and Procedural History

         [¶3] Smith and Clayton met as Stacked Pickle co-workers and became friends who socialized a few times per week, typically going to a gym to work out or to bars to drink and watch televised sports. As of February 2016, Smith was the manager of a Stacked Pickle bar in Fishers. He volunteered to work a few hours on the evening of February 17, 2016 at a special event at the Stacked Pickle near downtown Indianapolis. Smith asked Clayton to accompany him and wait while Smith worked.

         [¶4] Smith drove his truck to the Indianapolis Stacked Pickle, with Clayton as his passenger. At that time, it was anticipated that Smith would be driving himself and Clayton home. Smith began his work and Clayton sat down at a bar table. Clayton ordered his first alcoholic drink around 10:30 p.m. About one hour later, Smith was told that there were sufficient employees to cover the special event without him. Smith sat down at Clayton's table and began to consume alcoholic drinks also.

         [¶5] After several hours of drinking, Smith and Clayton apparently realized that they should not drive. They had some discussion about calling a ride-sharing service, but Clayton was unable to get his telephone application to work. Ultimately, a Stacked Pickle employee asked that Smith leave. He and Clayton complied with the request, but both were unable to walk steadily. On the way out, the pair crashed into a hostess stand and broke it. A Stacked Pickle employee locked the door and called for a cab to pick up the men outside.

         [¶6] Smith and Clayton began to bang on the glass and yell that a coat had been left behind. Someone handed a coat out to Smith or Clayton and they moved away from the door. Thereafter, some Stacked Pickle patrons or employees saw Smith and Clayton wrestling around on the pavement, but their words were not audible inside the building. As the summoned cab arrived, Smith's truck passed the cab and headed north. Clayton was the driver and Smith was the passenger. Neither would later remember how Clayton obtained the truck keys or what discussion preceded Clayton taking the wheel.

         [¶7] Minutes later, at around 3:52 a.m. on February 18, Smith's truck crashed into a tree near 10th Street and White River Parkway. Clayton was not seriously injured. However, Smith was ejected from the truck and suffered a broken neck. He was rendered quadriplegic, deprived of sensation below his neck and lacking control of his extremities, other than some limited bicep function. Blood tests revealed that, at 4:52 a.m., Smith's blood alcohol content was 0.245 and, at 6:20 a.m., Clayton's blood alcohol content was 0.208. Clayton was arrested and ultimately pleaded guilty to driving while intoxicated.

         [¶8] Smith had liability coverage through a policy issued by Progressive Southeastern Insurance Company ("Progressive"). Progressive denied that its policy provided bodily injury coverage for a single vehicle accident in which its named insured was the injured party; however, Progressive tendered $5, 000.00 for medical payments. Clayton's parents had a policy with Allstate Insurance ("Allstate"). Stacked Pickle was insured by Erie Insurance ("Erie"). Allstate and Erie provided payments to Smith pursuant to settlement agreements. Clayton assigned any cause of action he might have against Progressive, for bad faith or other claims, to Allstate. Additionally, Smith agreed that he would not execute recovery upon Clayton's personal assets.

         [¶9] On June 15, 2016, Smith filed a personal injury complaint against Clayton in Marion County Superior Court, seeking both compensatory and punitive damages. Allstate and Progressive intervened to provide legal representation for Clayton.[2] Clayton raised a non-party defense, naming Stacked Pickle.

         [¶10] In January of 2017, Progressive filed a declaratory judgment in a Marion County court, seeking a declaration that it had no liability for bodily injury incurred in the single vehicle collision. In the instant matter, the trial court denied motions to stay pending resolution of the declaratory action or to bifurcate the personal injury trial. The matter proceeded to a jury trial on December 4, 2017.

         [¶11] On December 11, 2017, the jury apportioned fault for Smith's injuries: 5% to Stacked Pickle, as a non-party, 35% to Smith, and 60% to Clayton. Smith's damages were found to be $35, 000, 000.00; accordingly, $21, 000, 000.00 was Clayton's share. The jury awarded no punitive damages. Smith was granted prejudgment interest in the amount of $714, 574.35, providing for a total judgment against Clayton of $21, 714, 574.35.

         [¶12] Clayton filed a motion to reconsider the award of prejudgment interest and a motion to correct error. Clayton also filed a motion for post-verdict credit for advance payments, seeking $5, 000.00 credit for sums paid by Progressive, and seeking credit in an amount equal to the payment received by Smith from Allstate in a confidential settlement. On February 14, 2018, the trial court conducted a hearing on the pending motions. Clayton's motions for reconsideration of prejudgment interest and correction of error were denied. Although the trial court heard argument on Clayton's motion for credit for advance payments, the parties acknowledged that resolution of the declaratory judgment was pending, and ultimately the trial court did not enter an order reducing the jury verdict against Clayton at that time. Clayton now appeals.

         Discussion and Decision

         Prior Conduct Evidence

         [¶13] Clayton contends that the trial court's evidentiary rulings denied him a fair trial on the matter of liability. Specifically, Clayton observes that the jury - tasked with apportioning fault - learned of his prior bad conduct but did not learn of Smith's criminal history.

         [¶14] During pretrial depositions, Clayton admitted to driving while intoxicated prior to the accident, although he had no alcohol-related arrests or convictions, and Smith admitted to having some criminal history. Smith's criminal history, which he sought to exclude via a motion in limine, [3] consisted of one conviction each for public intoxication, reckless driving, and battery. He was on probation at the time of the accident and one probationary term required that he not consume alcohol in an illegal manner.

         [¶15] A theory of Clayton's defense was that Smith, highly motivated to avoid further legal peril or violation of his probation, must have insisted upon Clayton driving. As such, he argued that the jury might apportion greater fault to Smith if advised of his criminal history. The trial court disagreed with Clayton's relevance argument and granted Smith's motion in limine.

         [¶16] During Smith's case-in-chief, Clayton was called as a witness. He testified that both he and Smith had driven while intoxicated on some prior occasions. Despite defense counsel's contention that Clayton's testimony had "opened the door" to evidence of Smith's criminal history, and the trial court's indication that this "might" have happened, ultimately the criminal history was not admitted into evidence. (Tr. Vol. II, pg. 104.) In sum, the jury heard about Smith's and Clayton's prior uncharged conduct of driving while intoxicated but did not hear about Smith's convictions, one of which was alcohol-related and two of which were allegedly committed while Smith was under the influence of alcohol.

         [¶17] A trial court exercises broad discretion in ruling on the admissibility of evidence, and an appellate court should disturb its ruling only where it is shown that the court abused its discretion. Sims v. Pappas, 73 N.E.3d 700, 705 (Ind. 2017). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

         [¶18] "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ind. R. Evid. 401. Pursuant to Evidence Rule 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." "Although evidence must be relevant to be admissible, not all relevant evidence is admissible." Sims, 73 N.E.3d at 707.

         [¶19] Smith contended that his and Clayton's lack of memory about the choice of driver and the absence of corroboration from bystanders rendered the jury unable to determine whether Smith influenced Clayton to drive. Accordingly, Smith claimed that his prior criminal history was not relevant to the determination of a fact in issue. Clayton argued the criminal history was admissible to show Smith's state of mind and was evidence of his habit. Clayton also argued that the criminal history was relevant to damages, specifically, lost wages, and to punitive damages.[4]

         [¶20] In Sims, our Indiana Supreme Court considered whether and under what circumstances a drunk driver's prior alcohol-related driving convictions could be introduced into evidence. The Court specified that evidence of the driver's prior convictions was "not relevant" with respect to the plaintiff's claims for compensatory damages and loss of consortium, and thus the Court addressed only whether the evidence was relative to the punitive damages claim.[5] 73 N.E.3d at 706.

         [¶21] In performing this narrow review, the Court agreed with the Court of Appeals that "evidence of similar acts may be admissible 'because of the light which it throws on the state of mind of a person, as for example, his knowledge, motive or intent.'" Id. (quoting Lindley v. Oppegaard, 275 N.E.2d 825, 827 (1971)). The Court concluded that evidence of the driver's two prior similar acts had a tendency to demonstrate whether his conduct at the time of the collision was a conscious and voluntary act committed in reckless disregard of the consequences to others. Id. The evidence was thus relevant within the meaning of Rule 401, but the Court "hasten[ed] to emphasize the evidence was relevant only on the issue of punitive damages." Id. at 706-07.

         [¶22] However, as Clayton observes, the Court left open the question of relevance in other situations:

Amicus curiae Indiana Trial Lawyers Association contends evidence of prior convictions is also relevant on the question of reasonable care and proximate cause, both of which are implicated in determining liability for a negligence claim. The parties do not explore this issue likely because liability was conceded. In similar fashion we ...

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