Kathryn Davidson v. State of Indiana

FILED

Jun 21 2023, 9:35 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 22S-CT-318

Kathryn Davidson,

Appellant,

–v–

State of Indiana, et al.,

Appellees.

Argued: November 15, 2022 | Decided: June 21, 2023

Appeal from the Monroe Circuit Court

No. 53C01-2003-CT-621

The Honorable AmyMarie Travis, Special Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 21A-CT-1516

Opinion by Justice Slaughter

Chief Justice Rush and Justices Massa and Molter concur.

Justice Goff concurs in the judgment with separate opinion.

Slaughter, Justice.

The Indiana Comparative Fault Act does not apply to “tort claims”

against government defendants. But it does require the factfinder to

consider the fault of “all persons who caused or contributed to cause” the

plaintiff’s alleged injury. Here, after obtaining a judgment in Lake County

against a non-government defendant for injuries sustained in a highway

collision, the plaintiff sued again in Monroe County, seeking relief against

other defendants (both government and non-government) for injuries

arising out of the same accident. We hold that the claims asserted in

Monroe County are barred by the doctrine of issue preclusion. To avoid

this result, a plaintiff seeking tort damages from both government and

non-government defendants must sue all such tortfeasors in one lawsuit.

I

A

In April 2018, Kathryn Davidson was a passenger in a semi-truck

driven by her boyfriend, Brandon Nicholson, who at the time was acting

within the scope of his employment with J Trucking, LLC. While driving

northbound on State Road 37 in Monroe County, Nicholson fell asleep,

lost control, and collided with an overpass-bridge pier. As a result of the

collision, Davidson was ejected from the semi-truck, sustained serious and

permanent injuries, and is now quadriplegic.

Davidson sent a timely tort-claim notice to the State. Her notice alleged

(1) the collision occurred in a construction zone within the Interstate 69

construction project, and (2) the Indiana Department of Transportation’s

negligence caused her injuries. Specifically, she claimed the department

was at fault in planning and setting up the construction zone and for

failing to place a barrier before the bridge pier to prevent or lessen any

impact. Davidson also sought various public records from the department

concerning traffic control, the construction project, her own accident, and

any other accidents at the site. The State denied her tort claim in

November 2018.

The next month, Davidson, who lives in Lake County, filed a

negligence action against J Trucking in the Lake Superior Court.

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According to Davidson, the sole purpose of the Lake County lawsuit was

to obtain a final judgment against J Trucking to satisfy the requirements

for obtaining insurance coverage from J Trucking’s insurer, Progressive

Southeastern Insurance Company. After a bench trial, the trial court

entered judgment in favor of Davidson and against J Trucking for more

than $3.2 million. The court found that “Nicholson’s negligence was a

proximate cause of the motor vehicle collision . . . [and] of [Davidson’s]

claimed injuries, medical treatment, and medical expenses.” The court

further found that “[a]ll of [Davidson’s] past treatment and medical

charges were reasonable, necessary, and caused by the negligence of

Nicholson in the collision at issue.” And it found J Trucking vicariously

liable for Nicholson’s negligence.

In January 2020, Davidson and Progressive settled her insurance claim

for $725,000, which was $25,000 short of policy limits. The settlement

discharged all liability, liens, damages, and costs against J Trucking. The

parties voluntarily dismissed the Lake County action in February 2020.

B

In March 2020, Davidson again sued for the same injuries she sustained

in the same I-69 construction zone. This time she sued in the Monroe

Circuit Court against six other defendants: State of Indiana; Indiana

Department of Transportation; I-69 Development Partners, LLC; DLZ

Indiana, LLC; Aztec Engineering Group, Inc.; and Walsh Construction

Company II, LLC. Davidson alleged these defendants were responsible for

designing, planning, building, and operating section 5 of the I-69 project,

as well as maintaining traffic and planning and placing barriers in front of

the bridge pier at the accident scene.

The defendants moved to dismiss Davidson’s action for failure to state

a claim upon which relief can be granted. One of the defendants, Aztec,

also moved for judgment on the pleadings. These Rule 12 motions argued

the Lake County judgment for Davidson barred her Monroe County

claims under the doctrines of claim splitting, collateral estoppel, and

judicial estoppel. The defendants attached materials in support of their

motions, and Davidson attached materials to her response. Davidson

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moved to strike the defendants’ attached materials or, alternatively, to

consider the Rule 12 motions as motions for summary judgment.

The trial court granted the defendants’ Rule 12 motions and dismissed

Davidson’s action with prejudice, holding that collateral estoppel and

claim splitting barred her claims but judicial estoppel did not apply. The

court refused to treat the Rule 12 motions as motions under Rule 56. The

court took judicial notice of most of the attached materials the defendants

submitted, including the complaint, ruling, and stipulation for dismissal

in the Lake County action; the complaint in the present action; and the

public-records request. The court also took judicial notice of the tort-claim

notice, which Davidson attached in support of her response. But the court

did not take judicial notice of most of the evidence Davidson introduced,

including affidavits explaining why she did not sue the Monroe County

defendants in Lake County, evidence the department failed to respond to

requests for information, and her settlement agreement with Progressive.

The court denied her post-judgment motions to correct error and to

amend her complaint.

Davidson appealed, and the court of appeals reversed, holding that

neither collateral estoppel nor claim splitting barred her claims. Davidson

v. State, 187 N.E.3d 283, 285 (Ind. Ct. App. 2022). The defendants then

sought transfer, which we granted, 194 N.E.3d 602 (Ind. 2022), thus

vacating the appellate opinion, Ind. Appellate Rule 58(A).

II

Davidson raises two issues on appeal. First, she argues the trial court

erred in dismissing her action under doctrines of claim splitting (also

known as claim preclusion) and collateral estoppel (also known as issue

preclusion). We hold that claim preclusion does not apply here, but issue

preclusion does, and the trial court was correct in dismissing her action on

the latter ground. Second, she argues the court erred in refusing to treat

the Rule 12 motions as motions for summary judgment, in dismissing her

action with prejudice, and in violating her due-process rights under the

Fourteenth Amendment. We hold there was no error. The court was not

obliged to review the Rule 12 motions as motions under Rule 56. And it

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was entitled to dismiss the action with prejudice, so it did not violate her

due-process rights.

A

We begin with Davidson’s argument that the trial court wrongfully

dismissed her action under the doctrines of claim and issue preclusion.

We agree the court should not have dismissed her action based on claim

preclusion. But dismissal was warranted under issue preclusion.

1

The trial court erred in dismissing the Monroe County action based on

claim preclusion—a preclusive doctrine requiring four elements to be

satisfied: (1) the former judgment was rendered by a court of competent

jurisdiction; (2) the former judgment was rendered on the merits; (3) the

matter at issue in the present action was or might have been determined

in the prior action; and (4) the prior action was between the same parties

in the present action or their privies. Matter of Eq.W., 124 N.E.3d 1201, 1209

(Ind. 2019). Here, the fourth element was not met because none of these

defendants or their privies were parties in Lake County.

2

The trial court, though, was correct in dismissing the Monroe County

action based on issue preclusion. Issue preclusion bars relitigating the

same fact or issue when that fact or issue was necessarily decided in a

prior lawsuit by a court of competent jurisdiction. Nat’l Wine & Spirits, Inc.

v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012) (holding defensive

collateral estoppel barred plaintiff’s claim). The party to be estopped must

also have been a party (or its privy) in the prior suit. Ibid. Here, the

defendants argue that Davidson is barred from litigating the negligent

cause of her injuries and damages in Monroe County because this issue

was necessarily adjudicated in Lake County. We agree. Under our

comparative fault act, Ind. Code ch. 34-51-2, the Lake County court

determined, conclusively, that only J Trucking was at fault for Davidson’s

injuries.

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a

When applying issue preclusion to actions under the Act, we embrace

the approach of our court of appeals in Bornstein v. Watson’s of Indianapolis,

Inc., 771 N.E.2d 663, 666 (Ind. Ct. App. 2002). Bornstein held that because

the Act requires the trial court to apportion 100 percent of the fault for

both parties and nonparties, a judgment under the Act necessarily

adjudicates the negligent cause or causes of a plaintiff’s alleged injuries in

their entirety. Ibid. Under the Act, plaintiffs can recover damages only

from named defendants. Defendants, in turn, can limit their own liability

to plaintiffs by naming nonparties that contributed to plaintiffs’ loss. The

jury must determine “the percentage of fault of the claimant, of the

defendants, and of any person who is a nonparty.” Ind. Code § 34-51-2-8

(applies to two or more defendants); id. § 34-51-2-7 (single-party

defendant). The jury then multiplies the percentage of fault by the

claimant’s total damages regardless of fault and enters a verdict against

each defendant for its share of the damages. Ibid. When the action is tried

without a jury, the court sitting as factfinder must award damages

according to the same principles specified for juries. Id. § 34-51-2-9. The

result is that a single action under the Act necessarily adjudicates all the

liability and damages for the plaintiff’s alleged injury. Bornstein, 771

N.E.2d at 666.

By establishing a system that apportions all liability and damages in the

same lawsuit, the Act functionally requires plaintiffs to name all

defendants in a single suit. Otherwise, serial suits against different

tortfeasors in connection with the same injury could lead to inconsistent

judgments. Id. at 667. For example, a Monroe County judgment

apportioning any fault to Davidson or the six defendants here would be at

odds with Lake County’s assignment of all fault to J Trucking. The Act

does not countenance such inconsistencies. Tort claimants in a later

lawsuit are thus foreclosed from recovering from tortfeasors omitted from

the first lawsuit. Ibid.

At the same time, defendants bear the burden of naming nonparties

against which the jury can apportion fault. “The burden of proof of a

nonparty defense is upon the defendant, who must affirmatively plead the

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defense.” I.C. § 34-51-2-15. A nonparty defense limits the defendant’s

liability to the plaintiff to the proportion of the defendant’s own fault.

Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005). To assert a

nonparty defense, the defendant must name the nonparty when filing its

answer, or with reasonable promptness if the defendant discovers the

nonparty after filing its answer, to give the plaintiff the opportunity to

add the nonparty as a defendant. I.C. § 34-51-2-16; Owens Corning

Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 913 (Ind. 2001) (interpreting

similar provision in Products Liability Act). While the defendant must

name all nonparties to limit its liability to the plaintiff, the plaintiff must

still sue all responsible persons to maximize her own recovery from

tortfeasors. A nonparty has no liability to the plaintiff.

Here, both the Lake County and Monroe County lawsuits are subject to

the Act because in both suits Davidson has sought damages for injuries to

her person resulting from the collision. The Act “governs any action based

on fault that is brought to recover damages for injury or death to a person

or harm to property”. I.C. § 34-51-2-1(a). In the Lake County action, after a

bench trial, the trial court found Nicholson’s negligence, which it imputed

to his principal, J Trucking, was a proximate cause of Davidson’s claimed

injuries. The court apportioned all fault to J Trucking. The court found

only Nicholson a proximate cause of Davidson’s injuries, attributed all of

Davidson’s damages to Nicholson’s negligence, and entered a verdict

against J Trucking for the full judgment amount. The Lake County court

could not apportion fault to any Monroe County defendant named below

because none was a party or named nonparty in Lake County. In effect,

then, Davidson seeks to relitigate in Monroe County the apportionment of

fault already adjudicated in Lake County.

Davidson counters that defensive issue preclusion does not apply here

because she did not “lose” her suit in Lake County. We disagree.

Defensive issue preclusion, to be sure, applies when the plaintiff

previously litigated the issue and lost. Hayworth v. Schilli Leasing, Inc., 669

N.E.2d 165, 167 n.3 (Ind. 1996). But relevant here, when a plaintiff fails to

name a potential defendant in an action under the Act, as Davidson failed

to do in Lake County, the plaintiff “loses” against the unnamed defendant

by failing to obtain an allocation of fault against that defendant. For

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example, in Bornstein, defensive issue preclusion barred the plaintiff’s

wrongful-death claim against the later-sued defendant because 100

percent of the fault had been apportioned in a prior suit the plaintiff

brought for the same underlying incident, leaving no fault to apportion to

the subsequent defendant. 771 N.E.2d at 666. In suits brought under the

Act, “a plaintiff is obliged to name all alleged joint tortfeasors as

defendants in one suit or face the possibility of being estopped from

pursuing a remedy against the unnamed tortfeasor in a subsequent

lawsuit.” Id. at 667. Thus, Davidson really did “lose” on the issue of

whether to apportion any fault to persons omitted as defendants or

nonparties in Lake County.

b

Next, Davidson argues that even if the Lake County suit necessarily

adjudicated who caused the injuries of which she complains, that suit

could not adjudicate any such cause vis-à-vis the State and the department

because government tort claims are excluded from the Act. Again, we

disagree.

The Act’s plain language shows it applies here to the Monroe County

suit and to all its defendants, including the government defendants. By its

terms, the Act has far-reaching scope. It “governs any action based on

fault that is brought to recover damages for injury or death to a person or

harm to property, except as provided in subsection (b).” I.C. § 34-51-2-1(a).

As subsection 1(a) explains, the Act presumptively applies to any

negligence action to “recover damages for injury”. Davidson’s Monroe

County action is clearly subject to the Act under this definition. And

nothing in subsection 1(b) exempts the Monroe County action from its

coverage. The only actions the Act does not govern are those it expressly

exempts. Subsection 1(b) lists only two categories of exempt actions: (1)

those “brought against a qualified health care provider . . . for medical

malpractice” and (2) those accruing before 1985. Id. § 34-51-2-1(b). Stated

differently, the Act specifies which “actions” it excludes from coverage

and, notably, does not exclude actions against government defendants.

While the Act thus applies to “actions” against government defendants,

it does not apply to “tort claims” asserted within such actions against

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government defendants. “This chapter [the comparative fault act] does not

apply in any manner to tort claims against governmental entities or public

employees under IC 34-13-3[.]” Id. § 34-51-2-2 (emphasis added). But the

jury must nevertheless consider the fault of “all persons who caused or

contributed to cause the alleged injury” regardless of whether they could

be named as parties. Id. §§ 34-51-2-7(b)(1), 34-51-2-8(b)(1). Thus, if one

claim is subject to the Act, the method of apportioning fault requires

joinder of all claims against persons “who caused or contributed to cause

the alleged injury” for full apportionment of fault. Ibid.

In practice, when a plaintiff brings a mixed-theory case that alleges both

government and non-government defendants are at fault for the plaintiff’s

injuries, the Act applies to require the jury to apportion a percentage of

fault and damages to all defendants and nonparties. But this

apportionment of damages has no effect on the underlying government

tort claims, which are still governed by common-law principles such as

contributory negligence.

We disagree with Davidson that applying issue preclusion to the claims

against the government defendants here would contradict our holding in

State v. Snyder, 594 N.E.2d 783 (Ind. 1992). Snyder is inapposite for two

reasons. First, Snyder did not address issue preclusion but whether a new

trial was required because of inconsistent verdicts. Id. at 785–87. Second,

although the majority in Snyder declined to review the verdicts’

inconsistency, the concurrence noted the verdicts were not inconsistent

because the jury could have found the plaintiff incurred a risk against the

non-government defendant without also finding the plaintiff incurred a

risk against the State. Id. at 788–89 (Dickson, J., concurring).

Government defendants are not excluded from actions (as opposed to

claims) governed by the Act. Relevant here, that means the Lake County

court needed to consider the fault of both the State and the department of

transportation if Davidson wanted to recover from them. Thus, the

apportionment of fault solely to J Trucking in Lake County necessarily

determined that these government defendants had no fault—and thus no

liability—to Davidson for purposes of issue preclusion.

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c

A court applying issue preclusion must also consider (1) whether the

party against whom the prior judgment is being asserted—here

Davidson—had a full and fair opportunity to litigate the issue in the first

suit; and (2) whether it would be unfair under the circumstances for the

Monroe County defendants to use issue preclusion against her in the

second suit. Sullivan v. Am. Cas. Co. of Reading, Pa., 605 N.E.2d 134, 138

(Ind. 1992). Davidson argues a question of fact remains on whether issue

preclusion should apply under these two factors. We disagree.

First, because Davidson was able to discover the defendants through

reasonable, diligent investigation before obtaining a judgment in Lake

County, she had a full and fair opportunity to litigate against the

defendants there. Typically, even a meritorious defense is not a basis for

dismissal under Rule 12(B)(6) unless a plaintiff has pleaded herself out of

court by alleging, and thus admitting, the essential elements of the

defense. Bellwether Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 464

(Ind. 2017). Davidson relies on the Rule 12(B)(6) standard in only one

portion of her brief where she argues the tort-claim notice was not

conclusive evidence of a full and fair opportunity to litigate her claims

against Walsh, DLZ, Aztec, and I-69 Development. But Davidson

conceded in both the trial and appellate courts that she discovered the

defendants in this case by meeting with a construction-zone expert and an

accident reconstructionist. And she offers no reason why she could not

have consulted these experts in the initial investigation of her claims

before she sued and obtained a judgment in Lake County.

Second, it is not unfair on this record to find Davidson’s Monroe

County claims barred by issue preclusion. She argues the fairness factors

weigh in her favor, and the government defendants concealed evidence

thereby preventing Davidson from suing them in the Lake County suit. In

fact, Davidson named the State and the department in the tort-claim

notice months before she sued in Lake County. Davidson argues she could

not raise her claims against the defendants in Lake County without being

subject to sanctions under Trial Rule 11. But what she alleged in Monroe

County is no more detailed than what she alleged in the tort-claim notice,

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which she filed before suing in Lake County. Both the tort-claim notice

and the Monroe County complaint allege the department was at fault in

planning and maintaining the construction area and in failing to place a

barrier before the bridge pier. Thus, when Davidson served her tort-claim

notice, she had “reasonable cause to believe the existence” of the State’s

and the department’s negligent acts she alleged in her complaint. Ind.

Trial Rule 11. The trial court below did not consider Davidson’s

designated evidence concerning the State’s eventual denial of her tort

claim and its failure to respond to her public-record requests, so we

likewise decline to consider them here.

Davidson also argues that financial and health considerations make it

unfair to apply issue preclusion here. But materials supporting these

considerations were not before the trial court, and we decline to consider

them here in the first instance. The trial court considered only the

pleadings, certain filings in the Lake County action, the tort-claim notice,

and the public-records request. None of these documents concern her

financial and health considerations when she sued only J Trucking in the

first suit.

B

Finally, we consider whether the trial court erred by refusing to treat

the Rule 12 motions as motions for summary judgment and by dismissing

Davidson’s action with prejudice. We hold it did not. And because there

was no error, there was no violation of Davidson’s Fourteenth

Amendment due-process rights.

1

Davidson argues the trial court erred when it judicially noticed some

materials without taking judicial notice of Davidson’s opposing evidence

or converting the Rule 12 motions to motions for summary judgment.

Under Trial Rule 12, if “matters outside the pleading[s] are presented to

and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56”. T.R. 12(B),

12(C). A trial court converts a Rule 12 motion to a motion for summary

judgment “by its consideration of extraneous matters” regardless of

Indiana Supreme Court | Case No. 22S-CT-318 | June 21, 2023 Page 11 of 15

whether the court converts the motion to one for summary judgment

expressly. Milestone Contractors, L.P. v. Ind. Bell Tel. Co., 739 N.E.2d 174,

176 (Ind. Ct. App. 2000).

Here, the trial court correctly declined to consider the Rule 12 motions

as summary-judgment motions because it considered only the pleadings

and materials of which it took judicial notice and no outside materials.

When deciding the Rule 12 motions, the trial court took judicial notice of

certain materials, including the filings in the Lake County action, the

public-records request, and the tort-claim notice. The trial court did not

consider any other outside materials. In the context of Rule 12 motions,

“materials of which a trial court may take judicial notice . . . are not

considered ‘matters outside the pleading.’” Moss v. Horizon Bank, N.A., 120

N.E.3d 560, 563 (Ind. Ct. App. 2019). Thus, the trial court did not consider

any extraneous materials that would require converting the Rule 12

motions to motions under Rule 56.

Davidson waived any argument that the court should not have

judicially noticed these materials by failing to raise the argument in her

opening appellate brief. See Monroe Guar. Ins. v. Magwerks Corp., 829

N.E.2d 968, 977 (Ind. 2005) (finding waiver of issues not raised in

appellant’s initial brief). Davidson also waived her argument that the trial

court should have taken judicial notice of her opposing evidence because

she insufficiently developed the argument and cited no authority that her

evidence fell within the judicial-notice rule. “A litigant who fails to

support his arguments with appropriate citations to legal authority and

record evidence waives those arguments for our review.” Pierce v. State, 29

N.E.3d 1258, 1267 (Ind. 2015); see also App. R. 46(A)(8) (providing that

appellant’s brief must support each contention with cogent reasoning and

citations to authorities, statutes, and the record).

2

Davidson also argues the trial court erred by dismissing her action with

prejudice. We disagree. A plaintiff has the right to amend her pleading as

of right within ten days after a trial court grants a motion to dismiss under

Rule 12(B)(6). Rule 12(C) does not provide the same automatic right to

amend. Thus, unlike under Rule 12(B)(6), a first-time dismissal with

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prejudice under Rule 12(C) is not improper. Davis ex rel. Davis v. Ford

Motor Co., 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001).

In the Monroe County case, defendant Walsh filed a motion to dismiss,

which defendants DLZ, the State, the department, and Aztec joined.

Defendant I-69 Development filed a separate motion to dismiss. And

Aztec filed a motion for judgment on the pleadings. Although no other

defendant filed a formal written notice joining Aztec’s 12(C) motion, the

court below found that all defendants were “considered to have joined in

and supported” both the Rule 12(B)(6) and 12(C) motions. No party,

including Davidson, objected to the trial court’s procedural treatment of

these motions, and so we likewise treat all defendants as having joined

Aztec’s 12(C) motion.

Davidson argues the Rule 12(C) motion should have been considered as

a Rule 12(B)(6) motion because it argued that she failed to state a claim for

relief. A 12(C) motion that argues the plaintiff’s allegations did not state a

claim for relief must be treated as a 12(B)(6) motion, but a 12(C) motion

that does not object to the legal sufficiency of the complaint’s allegations

need not be treated as a 12(B)(6) motion. Gregory & Appel, Inc. v. Duck, 459

N.E.2d 46, 49 (Ind. Ct. App. 1984). Aztec’s 12(C) motion argued that

Davidson’s claims are barred under the affirmative defense of collateral

estoppel, not that Davidson’s complaint fails to state a claim for relief.

And Aztec’s answer specifically asserted the affirmative defense of

collateral estoppel. Thus, the trial court did not err in denying Davidson

leave to amend her complaint after it granted the defendants’ 12(C)

motion.

3

Davidson last argues the trial court violated her due-process rights by

committing cumulative procedural errors when it declined to treat the

Rule 12 motions as Rule 56 motions. These errors, according to Davidson,

deprived her of the right to introduce her evidence in opposition to the

defendants’ judicially noticed materials and led the court erroneously to

dismiss her action with prejudice. Davidson’s argument fails because the

court did not err in declining to treat the Rule 12 motions as motions for

summary judgment, for the reasons discussed above in Section II.B.1,

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supra, at 11–12. Thus, the court did not err in dismissing her action with

prejudice.

* * *

For these reasons, we affirm the trial court’s judgment dismissing the

Monroe County action with prejudice and denying Davidson’s motions to

correct error and to amend her complaint.

Rush, C.J., and Massa and Molter, JJ., concur.

Goff, J., concurs in the judgment with separate opinion.

ATTORNEYS FOR APPELLANT KATHRYN DAVIDSON

Roberto Alejandro Mendoza

Alex Mendoza Law, LLC

Hammond, Indiana

William D. Beyers

Buchanan & Bruggenschmidt, P.C.

Zionsville, Indiana

ATTORNEYS FOR APPELLEES STATE OF INDIANA AND INDIANA

DEPARTMENT OF TRANSPORTATION

Theodore E. Rokita

Attorney General of Indiana

Benjamin M. L. Jones

Assistant Section Chief, Civil Appeals

Indianapolis, Indiana

Joshua T. Martin

Lewis and Wilkins LLP

Indianapolis, Indiana

Indiana Supreme Court | Case No. 22S-CT-318 | June 21, 2023 Page 14 of 15

ATTORNEYS FOR APPELLEE I-69 DEVELOPMENT PARTNERS, LLC

Anne K. Ricchiuto

Matthew C. Olsen

Jane Dall Wilson

Faegre Drinker Biddle & Reath LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE DLZ INDIANA, LLC

Richard R. Skiles

Carlo T. Girolamo

Skiles DeTrude

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE AZTEC ENGINEERING GROUP, INC.

William E. Kelley, Jr.

Alexander C. Trueblood

Drewry Simmons Vornehm, LLP

Carmel, Indiana

ATTORNEYS FOR APPELLEE WALSH CONSTRUCTION COMPANY

II, LLC

James P. Scheidler

Nicholas G. Brunette

Katherine M. Haire

Reminger Co., LPA

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE DEFENSE TRIAL COUNSEL OF

INDIANA

Lucy R. Dollens

Quarles & Brady, LLP

Indianapolis, Indiana

Crystal G. Rowe

Kightlinger & Gray, LLP

New Albany, Indiana

Indiana Supreme Court | Case No. 22S-CT-318 | June 21, 2023 Page 15 of 15

Goff, J., concurring in the judgment.

I agree with the Court that Kathryn Davidson is precluded from

relitigating the allocation of fault in this case. However, in the course of

ruling for the State, I believe the Court is making new law in a vexingly

complicated area: the interplay between Indiana’s common-law and

comparative-fault negligence schemes. Our predecessors recognized the

dangers lurking here. I would not lay down a hard and fast rule of

procedure in mixed-theory cases involving both private and

governmental defendants. Rather, I would encourage all parties to make

use of the flexibility provided by the Comparative Fault Act and to

consider how the difficulty of litigating cases like this may be eased.

I. All the fault for Davidson’s injuries has already

been adjudicated.

As the majority opinion relates, Davidson was seriously injured as a

passenger in a motor accident. She first brought suit against the driver’s

employer, J Trucking. This claim went to trial and resulted in a judgment

that held J Trucking at fault for Davidson’s injuries and liable for her

damages. Because J Trucking was an ordinary private defendant, the

action was subject to Indiana’s Comparative Fault Act, Indiana Code

chapter 34-51-2. Pursuant to statute, the verdict in that first suit

adjudicated “the fault of all persons who caused or contributed to cause

the alleged injury” and implicitly allocated “one hundred percent” of that

fault. Ind. Code § 34-51-2-7(b)(1); see also Mendenhall v. Skinner and

Broadbent Co., Inc., 728 N.E.2d 140, 142 (Ind. 2000) (a comparative fault

judgment allocates shares of the “total fault contributing to the injury”).

The Act requires that any nonparty who might share fault be named if

they are to be considered by the factfinder. I.C. § 34-51-2-15. No nonparty

was named or allocated fault in Davidson’s suit. Therefore, the verdict

held J Trucking at sole fault for Davidson’s injuries.

This judgment has preclusive consequences in Davidson’s present,

successive action against new private defendants and the State. The

Restatement (Second) of Judgments indicates that relitigation is precluded

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when an issue was “actually litigated and determined by a valid and final

judgment, and the determination is essential to the judgment.” Am. Law

Inst., Restatement (Second) of Judgments § 27 (1982). Looking to the

Restatement for guidance on the law of preclusion, as this Court does,

NIPSCO Indus. Grp. v. N. Indiana Pub. Serv. Co., 100 N.E.3d 234, 244 (Ind.

2018), it is notable that Section 27 says nothing about whether the party to

be precluded must have been a loser in the previous suit. Granted, this

Court has phrased the test as requiring the party to have “lost” on the

issue concerned. Tofany v. NBS Imaging Sys., Inc., 616 N.E.2d 1034, 1037

(Ind. 1993). The opinion of the Court reasons that Davidson “really did

‘lose’” when she failed to pin any fault on persons not named as

defendants in her first suit. Ante, at 8. In the comparative-fault context,

however, I find it immaterial that Davidson previously won on the issue.

A plaintiff cannot reasonably expect to pin the same fault on multiple

defendants in series. There cannot be more than one hundred percent of

the fault to allocate. Here, the allocation of all the fault for Davidson’s

injuries was litigated, determined, and essential to the judgment against J

Trucking, meaning it cannot be relitigated.

Of course, issue preclusion (previously called “collateral estoppel”) will

not apply in a subsequent action against new defendants when the party

to be precluded “lacked full and fair opportunity to litigate the issue in the

first action or other circumstances justify” permitting relitigation.

Restatement (Second) of Judgments § 29. But I agree with the Court that

Davidson had a fair opportunity to sue all of the defendants involved in

this suit at the time of her suit against J Trucking. Ante, at 10–11. Her

present claims against both the private defendants and the State are

therefore precluded.

I am concerned, however, that the Court’s explanation of how the

Comparative Fault Act applies to the State will cause difficulties.

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II. The Court should not lay down a hard and fast

rule for handling mixed-theory cases.

Indiana’s Comparative Fault Act went into effect in 1985. Penn Harris

Madison School Corp. v. Howard, 861 N.E.2d 1190, 1193 (Ind. 2007). Its

provisions differed in numerous ways from the common law of

negligence that had developed up to that time. For example, the doctrine

of contributory negligence, which “barred recovery on a plaintiff’s

negligence claim if the plaintiff was even slightly at fault,” was

substantially revised, so that a plaintiff would be barred recovery only if

their “own fault was greater than fifty percent.” Id. Joint and several

liability for damages was abolished in favor of liability in proportion to

fault. Indiana Dep’t. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind. 2012).

However, the common law of negligence was retained for governmental

defendants. Howard, 861 N.E.2d at 1193. The Act “does not apply in any

manner to tort claims against governmental entities or public employees.”

I.C. § 34-51-2-2. Sharp legal minds foresaw that complications would arise

in Indiana’s “dual system of liability.” Lawrence P. Wilkins, The Indiana

Comparative Fault Act at First (Lingering) Glance, 17 Ind. L. Rev. 687, 729

(1984). Defendants subject to different legal regimes might be involved in

the same case, leading to “uncertainty and confusion.” Id. at 732.

This problem came to a head in State Highway Department. v. Snyder, 594

N.E.2d 783 (Ind. 1992). In that case, the plaintiff sued both a private driver

and the State after a motor accident. Id. at 784–85. The jury found in the

driver’s favor, indicating that the plaintiff was more than fifty percent at

fault. Id. at 785. However, the same jury found against the State, which

then appealed on the grounds of verdict inconsistency. Id. If the plaintiff

was more than fifty percent at fault, the State argued, then he was

necessarily contributorily negligent. Id. This Court refused to entertain the

State’s claim, stating that “[b]ecause the legal theories under which the

two claims were prosecuted are not consistent, we will not reverse the

judgments entered pursuant to these legal theories merely because such

verdicts may appear to be inconsistent.” Id. at 786. Noting the “confusion

created by this predicament” of dual negligence rules, the Court refrained

from trying to “reconcile inconsistencies which are not necessarily

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reconcilable.” Id. at 786–87. The Court would “not review the consistency

of verdicts rendered under the Comparative Fault Act and verdicts

rendered under common law principles in cases such as this.” Id. at 787.

Additionally, the Court advised “[p]arties who find themselves faced with

prosecuting or defending mixed-theory cases such as this” on how to

proceed. Id. They could “file separate law suits or request separate trials.”

Id. Snyder predated this Court’s adoption of non-mutual issue preclusion

in Sullivan v. American Casualty Co. of Reading, Pa., 605 N.E.2d 134 (Ind.

1992). And that explains why the Snyder Court considered it obvious that

the verdicts rendered in separate suits or trials need not “be consistent.”

594 N.E.2d at 787. But nor would the Court so require when two verdicts

were rendered in the same trial. Id.

I agree with the Court that today’s case differs from Snyder. Ante, at 9. It

involves a successive suit, rather than parallel trials. And issue preclusion

is now established law. As discussed above, this doctrine generally bars

relitigation of any fault that has already been allocated by a judgment.

Here, the allocation of all the fault to J Trucking precludes attribution of

any fault to the State. I am also persuaded that Davidson did not rely on

Snyder in choosing not to sue the State in her first suit. Rather, she made

this decision believing she lacked sufficient information to initiate a claim.

There was wisdom, however, in the Snyder Court’s reluctance to try to

bring order out of confusion. The dual-system conundrum has not been

resolved to this day. The majority attempts a solution, directing that

“when a plaintiff brings a mixed-theory case that alleges both government

and non-government defendants are at fault for the plaintiff’s injuries, the

Act applies to require the jury to apportion a percentage of fault and

damages to all defendants and nonparties.” Id. at 9. But this procedure

would break down in practice because it conflicts with the comparative-

fault scheme itself.

As Snyder suggested, the trial court in a mixed-theory case may

minimize the jury’s perplexity by conducting separate trials, one for

common-law defendants, such as the State, and one for comparative-fault

private defendants. 594 N.E.2d at 787. See also Ind. Trial Rule 42(B). But

then, how could the State’s fault be determined in the comparative-fault

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trial? The State would not be a nonparty whom the defendants might

name, for a nonparty must be a person “who has not been joined in the

action as a defendant.” I.C. § 34-6-2-88. Nor could the State be a defendant

in the comparative-fault trial, for the Act does not apply “in any manner”

to a tort claim against a governmental defendant. I.C. § 34-51-2-2. And the

State would defend itself only in the common-law trial. Professor Wilkins

foresaw the two sides of this paradox. See Wilkins, supra, at 730.

In light of this problem, and the risk of confusing the jury by asking it

to apply two bodies of law to the same defendant, I would not lay down a

single mode of proceeding in mixed-theory cases. Instead, I would point

to Indiana Code subsections 34-51-2-7(b) and 34-51-2-8(b), which allow the

parties to vary the usual rules for comparative-fault adjudications and

thus devise procedures that make sense in a given case.

Because Davidson is precluded from relitigating the fault for her

injuries, I concur in the Court’s judgment. However, I would encourage

the bench and bar, and my colleagues in the General Assembly, to

consider how the confusing predicament of litigating mixed-theory cases

may be eased.

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