|
View Case
|
|
Cited Cases
|
|
Citing Cases
|
|
Comment (0)
|
 |
|
|
|
|
|
|
|
KIMBERLIN v. DeLONG
613 N.E.2d 46 (1993)
Brett Coleman KIMBERLIN, Appellant-Defendant,
v.
Sandra Sue DeLong, Personal Representative for Carl David DeLong, Deceased, and Sandra Sue DeLong, Appellees-Plaintiffs.
No. 2-384-A-72.
Court of Appeals of Indiana, Second District.
May 3, 1993.
Transfer Denied August 20, 1993.
Rehearing Denied September 24, 1993.
Arend J. Abel, Barnes & Thornburg, Indianapolis, for appellant-defendant.
Paula Thrun Kight, Indianapolis, for appellees-plaintiffs.
FRIEDLANDER, Judge. CASE SUMMARYAppellant-defendant Brett Coleman Kimberlin (Kimberlin) appeals from a jury verdict which awarded the plaintiff Sandra Sue DeLong (Sandra) $360,000 for injuries she sustained in an explosion allegedly caused by Kimberlin, and for a wrongful death claim she brought as personal representative on behalf of her husband, Carl David DeLong (Carl) [hereinafter collectively referred to as the DeLongs], claiming among other things, that the trial court erred in granting the DeLongs motion for partial summary judgment on the issue of liability, and that it was error to deny Kimberlin's
motion to dismiss Sandra's wrongful death claim. We affirm in part and reverse in part. FACTSThe facts most favorable to the judgment are that on September 6, 1978, Sandra and Carl were injured by an explosion which occurred at Speedway High School in Speedway, Indiana. The DeLongs were walking through the parking lot after leaving a football game. The explosive device was concealed in an abandoned gym bag. The bomb exploded as the DeLongs walked passed it. Carl and Sandra were seriously injured in the blast. Carl's right leg was nearly severed from the explosion. Physicians eventually amputated such leg above the knee; and a skin graft was performed and Carl was fitted with an artificial leg. Carl also was treated for a perforated eardrum. After Carl's wounds healed, he received physical therapy and learned how to walk with an artificial limb. While Carl's recovery proceeded remarkably well, pieces of shrapnel eventually worked their way to the surface of his skin. The shrapnel had to be surgically removed on a continuing basis. Carl also suffered from a pre-existing back injury which may have been aggravated by the use of the artificial limb. Sometime in 1982, Carl became depressed. He had Vietnam "flashbacks," and resented wearing the artificial limb. On several occasions, Carl removed the limb, beat it on the ground, and told others that he hated it. He withdrew from his family, began drinking heavily, and marital difficulties developed with Sandra. On February 23, 1983, Carl committed suicide by carbon monoxide poisoning while sitting in his car. Carl left suicide notes to several members of his family.
1. Kimberlin also raises the following issues that we need not address: 1. The trial court abused its discretion in allowing the DeLongs to amend their complaint to include a wrongful death claim on the morning of damages-only trial and in denying Kimberlin's motion for a continuance to prepare for and to respond to this theory, and 2. that the trial judge improperly admitted evidence of Carl's pain and suffering as to the wrongful death claim. 2. Prior to the supreme court's decision in Hawkins which adopted Federal Rule of Evidence 803(22), a judgment of conviction in a criminal prosecution was not admissible in a civil case for the reason that the provisions of I.C. 34-3-18-1 which allowed such evidence directly conflicted with the supreme court's rules expressly forbidding the admission of that evidence. See Brooks v. State (1973), 259 Ind. 678, 291 N.E.2d 559; Montgomery v. Crum (1928), 199 Ind. 660, 161 N.E. 251. 3. While this court is bound to follow the law announced by the majority opinion in Hawkins, we observe that Justice Dickson's separate opinion has some merit. He suggested that the trial court exceeded its broad discretion in summarily entering a final judgment in favor of Auto-Owners (the criminal defendant's insurance company) without holding a trial when the record clearly reflected that a genuine issue of material fact existed as to the defendant's intent. See Hawkins, supra, at 1361.
The plain language of I.C. 34-3-18-1 provides that the existence of a criminal conviction may be admissible as relevant evidence in a subsequent civil proceeding which in no way implies that a conclusive presumption is established. 4. The notes were coherent, and they were not indicative of "the result of an uncontrollable influence, or [that the suicide was] accomplished in delirium or frenzy... ." See Brown, supra, 43 Ind. App. at 572, 88 N.E. at 85. The handwritten notes provided in their entirety as follows:
"Sandy, I am going to write several thing's that may not make sense. But I'm trying to do my best, whatever you think of me or don't think of me. I want you to know that I do love you. I love DeDe Steve Eddy & Melissa very much. This sound's like an easy way out but it's not. I have done you so many misjudgement's and I don't know how else to set it straight. Don't think of me to bad, because I am not all that tough or bad. Sometimes people that live together take each other for granted. I guess that's the way I have been doing to you. I don't have any real explanation for my actions and I don't expect you to understand them. Please try to love me a little.
LOVE YOU David
(over)
You have been a wonderful wife and Mother and I know I don't deserve you and you sure didn't deserve me.
I STILL LOVE YOU"
Record at 1197, 98.
"Melissa, One day your Mom and Grand Ma will tell you about me. I hope that when you grow older your Mom and Dad will read this to you. Melissa I love you like I do some little blonde headed girl that your Grand Mother and I knew when she was little, your Mother.
Your Grand Pa"
Record at 1199.
"Eddy,
Take care of DeDe and Melissa, just use your common sense and you will be allright. Take care Ed.
David"
Record at 1200.
"DeDe,
I know what you think of me, and I am sorry for that. Don't ever cut your self short. Take care of Melissa and every now and then give Eddy a prod not to hard, but gently. DeDe I'm sorry everything turned out this way. I really and truly did not want it to. In one way or another just try to love me a little.
I will always be your
Dad"
Record at 1201.
"Steve, Just want you to understand son. I don't know, what to really say except, Steve I am very proud of you and I hope you never make the mistakes that your Dad has. Forgive me please Steve, take care of your Mother she need's you very much.
Love Ya,
Dad
P.S. Keep on with your band one of these days you will make it." Record at 1196. 1. In Hawkins, supra, the transcript of evidence from the criminal proceeding was before the civil court so as to provide factual predicate for the ultimate conclusion reached in the criminal case. No evidence in the criminal proceeding was submitted to the civil court here.
|
|
|
|
|