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.
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. Clayton appeals, asking that we set aside
the judgment entered upon the jury verdict and remand for a
new trial. We affirm.
Clayton presents four issues for review:
I. Whether the trial court abused its discretion in making
evidentiary rulings pertaining to prior conduct of Clayton
II. Whether the trial court abused its discretion in
admitting testimony from Smith's three expert or skilled
III. Whether Smith was improperly awarded prejudgment
IV. Whether Clayton is entitled to post-verdict credit for
and Procedural History
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.
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.
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.
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.
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.
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.
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. Clayton raised a non-party defense, naming
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.
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.
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.
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.
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,
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.
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.
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
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.
"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.
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.
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. 73 N.E.3d at 706.
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
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