# Dennerline v. Atterholt > Indiana Court of Appeals · May 16, 2008 · 886 N.E.2d 582 URL: https://www.frixlaw.com/law-library/cases/9742535 ## Case - **Full name:** Frederick W. DENNERLINE, III, and Fillenwarth, Dennerline, Groth & Towe, Appellants-Defendants, v. Jim ATTERHOLT, Insurance Commissioner of the State of Indiana as Liquidator of Indiana Construction Industry Trust (ICIT), Appellee-Plaintiff - **Court:** Indiana Court of Appeals - **Decided:** May 16, 2008 - **Citations:** 886 N.E.2d 582; 2008 Ind. App. LEXIS 1028; 2008 WL 2067030 - **Precedential status:** Published - **Opinion:** Concurrence by Darden - **Judges:** Crone, Darden - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9742535 ## How later opinions describe it (automated extraction) - finding waiver under similar circumstances based partly on the long-standing rule that a party cannot argue on appeal an issue not properly presented to the trial court ## Opinion text DARDEN, Judge, concurring and dissenting. I fully concur with the majority in all respects except for Issue VI; I respectfully dissent from their conclusion on that matter. Essentially, I am unable to support the approval of what I believe to be a windfall to a State agency. I would conclude that under the circumstances presented here — specifically, the statutory authority for the Commissioner’s collection of claims, the substance of the damages claim asserted by the Commissioner; and that the damages had been liquidated — it is inappropriate to default to the finding that Dennerline waived the issue of whether a set-off should be imposed. The trial court entered judgment for damages in the amount found by the jury to have been sustained: $17,991,043. On February 16, 2005, the trial court had entered an order approving the liquidator’s account reflecting total unpaid claims in this amount. Nevertheless, it is undisputed that by the time of trial, the Commissioner had already recovered $7,695,494.90 toward the damages sustained by ICIT’s insolvency. I find no authority whereby the Commissioner may collect the total damages awarded when that amount exceeds the actual damages after previous recoveries thereon are taken into account. The statute authorizes the Commissioner to “[pjrosecute any action that may exist in behalf of creditors, members, policyholders, or shareholders of the insurer, or any other person.” Ind.Code § 27-9-3-9(b)(13). The majority cites the statutory *604 provision whereby “unclaimed funds” recovered “shall be treated as if abandoned and shall be escheated” to the state. I.C. § 27-9-3-3(a). However, I cannot find that the difference between the total recovery by the Commissioner and the amount of liquidated damages constitutes either unclaimed funds or abandoned property. Therefore, inasmuch as the escheat provision does not include a reference to funds recovered upon the failure of an insurer in excess of the total claims, I read this provision to support Dennerline’s argument that the Commissioner lacks the authority to recover an amount exceeding the liquidated damages. That said, I would not accept Denner-line’s argument that the damages award should be reduced by the entire $7,695,474.90 previously collected. The statute authorizes the Commissioner to prosecute an action such as this. Therefore, I find it entirely appropriate that the damages award include the agency’s costs for the prosecution of this action. I would remand to the trial court for a further hearing, in which the trial court would establish whether there are any unsettled claims and the agency’s reasonable expenses in this matter (including attorney fees and interest); and I would direct that the damages award be adjusted accordingly. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9742535. Public record. Not legal advice.