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Wednesday, March 30, 2005

Ind. Decisions - Supreme Court posts two today

State of Indiana v. Loren Akins (3/30/05 IndSCt) [Criminal Law & Procedure]
Dickason, Justice

In this interlocutory appeal, the State challenges the decision of the trial court granting the defendant's motion to dismiss Count II, which charged as a class D felony that the defendant operated a vehicle while intoxicated while having a prior conviction for operating a vehicle while intoxicated. The issue is whether the defendant's prior conviction in Michigan qualifies to subject the defendant to the class D felony charge. The Court of Appeals affirmed the dismissal. State v. Akins, 795 N.E.2d 1093 (Ind. Ct. App. 2003). We granted transfer, 812 N.E.2d 796 (Ind. 2004), and now reverse. * * *

Therefore, because the defendant's prior Michigan conviction was under either or both subsections (a) and (b) of Michigan Compiled Laws section 257.625(1), and because these subsections are substantially similar to Indiana Code §§ 9-30-5-2(a) and 9-20-5-1(a), respectively, the State may properly proceed under Count II under Indiana Code § 9-30-5-3 on grounds that the defendant has a previous conviction of operating while intoxicated within the past five years in a jurisdiction in which the elements of the crime are substantially similar to the elements of a crime described in Indiana Code §§ 9-30-5-1 through 9-30-5-9.

We reverse the trial court order granting the defendant's motion to dismiss Count II and remand this cause for further proceedings.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

Kevin Kocher v. Alva Lynne Getz (3/30/05 IndSCt) [Torts]
Dickson, Justice
In this automobile-van collision personal injury case, the trial court refused instructions the defendant submitted on comparative fault, which would have permitted a jury to consider mitigation of damages for purposes of fault allocation. The jury found for the plaintiff. In a divided opinion, the Court of Appeals reversed. SWe granted transfer, and now affirm the trial court.

I. The principal issue presented by this appeal is whether the defense of mitigation of damages under the Indiana Comparative Fault Act (the "Act") is considered as comparative fault in determining liability. This identical issue was addressed and decided in the Court of Appeals in Deible v. Poole, which we expressly adopted. In the present case, a different panel of the Court of Appeals majority declined to follow Deible. * * *

The trial court's refusal of the defendant's proposed comparative fault instructions was consistent with our express adoption of Deible and should have been affirmed by the Court of Appeals. We agree with Judge Vaidik's dissent. In cases arising under the Act, a defense of mitigation of damages based on a plaintiff's acts or omissions occurring after an accident or initial injury is not properly included in the determination and allocation of "fault" under the Act. The phrase "unreasonable failure to avoid an injury or to mitigate damages" included in the definition of "fault" under Indiana Code § 34-6-2-45(b) applies only to a plaintiff's conduct before an accident or initial injury. An example of such unreasonable failure to avoid an injury or to mitigate damages would be a claimant's conduct in failing to exercise reasonable care in using a ppropriate safety devices, e.g., wearing safety goggles while operating machinery that presents a substantial risk of eye damage.

While a plaintiff's post-accident conduct that constitutes an unreasonable failure to mitigate damages is not to be considered in the assessment of fault, a plaintiff "may not recover for any item of damage that [the plaintiff] could have avoided through the use of reasonable care." The resulting damages, excluding any caused by a plaintiff's post-accident failure to use reaso nable care, are then to be multiplied by the defendant's percentage of fault to determine the verdict to be entered under the Act.

The trial court did not err in refusing the defendant's tendered comparative fault instructions. * * *

Conclusion. We affirm the judgment of the trial court.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

[Note: Here is the earlier Court of Appeals decision in Kocher v. Getz, from 4/29/05. As noted in the Supreme Court's decision, Judge Vaidik dissented. Judge Najam wrote the majority decision, Judge Darden concurred. Interestingly, Judge Najam also wrote the majority opinion yesterday in the fetal death case, and made a strong statement suggesting that the Supreme Court reverse a prior ruling: "Horn has no remedy for the death of her fetus unless she seeks and obtains transfer, and our supreme court reconsiders and overrules its interpretation of the statute, or the legislature repudiates Bolin."

Posted by Marcia Oddi on March 30, 2005 02:18 PM
Posted to Ind. Sup.Ct. Decisions