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Denson v. Estate of Dillard

Court of Appeals of Indiana

December 18, 2018

Wanda Denson, Appellant-Plaintiff,
v.
The Estate of Delmer Dillard and Indiana Farmers Mutual Insurance Company, Appellees-Defendants

          Appeal from the Johnson Superior Court The Honorable Kevin M. Barton, Judge Trial Court Cause No. 41D01-1705-CT-64

          Attorney for Appellant Katherine Karres Hensley Legal Group, PC Indianapolis, Indiana

          Attorney for Amicus Curiae Indiana Trial Lawyers Association Edward B. Mulligan V Cohen & Malad, LLP Indianapolis, Indiana

          Attorneys for Appellee The Estate of Delmer Dillard Grover B. Davis James T. Flanigan Susan J. McGinty McClure McClure & Davis Indianapolis, Indiana

          CRONE, JUDGE.

         Case Summary

         [¶1] Wanda Denson was severely injured when Delmer Dillard had a heart attack and lost consciousness while driving a vehicle in which Denson was a passenger. Dillard ran the vehicle off the road and struck a home. Dillard died. Denson filed a negligence claim against Dillard's estate ("the Estate") as well as an underinsured motorist claim against her automobile insurer, Indiana Farmers Mutual Insurance Company ("the Insurance Company"). The Estate subsequently moved for summary judgment, claiming that Dillard's sudden loss of consciousness or medical emergency negated the element of breach on Denson's negligence claim. Following a hearing, the trial court entered summary judgment in favor of the Estate. Denson appeals that ruling, claiming that the trial court erred. Under the narrow and specific circumstances presented here, we conclude that the designated evidence negates the element of breach, and we therefore affirm the trial court's entry of summary judgment in favor of the Estate.

         Facts and Procedural History

         [¶2] On November 20, 2016, Dillard was driving a vehicle in which Denson was a passenger. They were traveling to Bloomington to celebrate Thanksgiving. While driving westbound on State Road 252 near Morgantown, Dillard suddenly declared that he was not feeling well and immediately slumped over and passed out. Because Dillard's foot was on the accelerator when he passed out, the vehicle sped up, went off the left side of the road, and crashed into a house. Dillard died. Denson suffered severe injuries, including fractures to her back, a fractured sternum, broken ribs, and a broken left arm. Her medical expenses exceeded $404, 997.99. It was determined that Dillard had suffered a massive heart attack while driving and that his cause of death was "Hemopericardium Due to Ruptured Myocardial Infarction[.]" Appellant's App. Vol. 2 at 220.

         [¶3] Medical records indicate that approximately six weeks prior to the accident, on October 7, Dillard went to the Johnson Memorial Hospital emergency room after experiencing chest pain the night before that had extended into the morning. He was later admitted to the hospital and diagnosed as having suffered a "subacute inferior ST segment elevation myocardial infarction [heart attack]" on October 5 or 6, 2016. Id. at 64. A cardiac nuclear stress test performed in the hospital revealed "a fixed inferior defect with normal ejection fractions." Id.

         [¶4] Dillard was discharged from the hospital on October 11, 2016. When discharged, Dillard was prescribed home health care. He was given a prescription form dated October 9, 2016, signed by his attending physician, Ali T. Abedali, M.D., that provided: "Not driving for recovery to be completed." Id. at 155.

         [¶5] Dillard had a follow-up appointment with Dr. Abedali on October 13, 2016. At that time, Dillard was doing well, had no chest or epigastric pain, and had no palpitations, fainting, dizziness, confusion, or headaches. He had normal heart sounds, no heart murmurs, and a normal heart rate. Dr. Abedali did not advise Dillard that he could not drive or operate a motor vehicle. Dr. Abedali's decision to place no restrictions on Dillard's driving was based upon a review of Dillard's hospital records, cardiologist notes, stress test, and functional capacity. A follow-up appointment was scheduled for December 2016.

         [¶6] Dillard had a cardiology appointment with Ibed U. Ansari, M.D., on November 11, 2016. Dr. Ansari's notes indicate that Dillard was doing well and denied having "any recurrence of chest pain, shortness of breath, palpitation or dizziness." Id. at 175. The notes provided, "Will follow up in 3 months." Id. at 180.

         [¶7] Dillard was released from home health care on November 16, 2016. The discharge summary listed the type of discharge as a "complete" discharge and gave the reason as "GOALS MET." Id. at 203. The notes further provided, "[Patient] NOW BACK TO BASELINE STATUS, [Patient] IS NOW DRIVING SELF TO CHURCH AND MD APPTS." Id. Accordingly, specifically regarding transportation, the notes provided, "No assistance needed in this area." Id. at ...


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