Petition for Writ of Certiorari — Ritter v. Stanton
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_~ Supreme Court, U.S.
FI
Uv LED
U11456 APR 1 2002
OFFICE OF THE CLARK
No. 01-
IN THE
Supreme Court of the Anited States
IRA C. RITTER AND THE KROGER Co.,
Petitioners,
Vv.
JERRY STANTON AND RUTH A. STANTON,
Respondents.
Petition for a Writ of Certiorari to the
Court of Appeals of Indiana
PETITION FOR A WRIT OF CERTIORARI
KARL L. MULVANEY
DAVID C. CAMPBELL
NANA QUAY-SMITH
BINGHAM MCHALE LLP
2700 Market Tower
10 West Market Street
Indianapolis, Indiana 46204
(317) 635-8900
*Counsel of Record
JOHN G. ROBERTS, JR.*
CHRISTOPHER T. HANDMAN
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5810
Counsel for Petitioners
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001
QUESTION PRESENTED
A jury awarded respondents $55 miilion in compensatory
damages, roughly $53 million of which was for “loss of
consortium” and “pain and suffering.” Petitioners appealed,
arguing that the award—the largest by far in Indiana his-
tory—was grossly excessive. In doing so, they urged the
Court of Appeals of Indiana to conduct a “comparability
analysis,” an approach endorsed by many federal and state
courts whereby damage awards in similar cases are compared
to determine whether a particular award is excessive. The
Court of Appeals refused to adopt this method of review,
ruling that it would improperly second-guess jury decisions
“in a manner not permitted by the Seventh Amendment.”
The question presented is:
Whether the Court of Appeals correctly held—in clear
conflict with this Court’s established precedent that the
Seventh Amendment applies only to the federal courts—that
the Seventh Amendment constrains a state appellate court
when reviewing a jury award for excessiveness?
(1)
ii
PARTIES TO THE PROCEEDINGS
AND RULE 29.6 STATEMENT
Petitioners Ira C. Ritter and The Kroger Company were the
defendants and appellants below. Pursuant to S. Ct. Rule
29.6, petitioner The Kroger Company notes that it has no
parent corporations and that no publicly traded company
owns 10% or more of its stock.
Respondents Jerry Stanton and Ruth A. Stanton were the
plaintiffs and appellees below.
TABLE OF CONTENTS
Page
QUESTION PRESENTED ................:cccceeessseeeeeeseeeees
PARTIES TO THE PROCEEDINGS AND RULE
29GB STATEMENT cccccccncsssseccscessscesssssssssoscsccccsnees il
TABLE OF AUTHORITIEG...................:::ceeeeseeeeeeeeees Vv
COPTINIOING BELIIW, cccscscsceccccssssseressscssercscscccsscessesensees l
PEs 6 RG onncccnscrincccscceceesvensasensnsscsnennscessessscononess l
CONSTITUTIONAL PROVISION INVOLVED ...... 2
DT I FIN vccoccccccccccssccsescccncssenccsccsecssssoseccnscasees 2
STATEMENT OF THE CASE....................sseessseseseeees 3
REASONS FOR GRANTING THE WRIT ................ 8
THE DECISION BELOW SQUARELY CON-
FLICTS WITH THIS COURT’S SETTLED PRE-
CEDENT THAT THE SEVENTH AMENDMENT
APPLIES TO FEDERAL, NOT STATE COURT
PRI vcccccccncsccsnnsccemececcssscssesesscccsasssccceces 8
PE A PIED ocasnscncancdusseecessnensbiascastecenenensnecscnssosenanes 18
iV
TABLE OF CONTENTS—Continued
Page
APPENDICES
APPENDIX A:
Opinion of the Court of Appeals of Indiana,
I OU i ciccccastimenccteuienssnnsenen la
APPENDIX B:
Judgment of the Superior Court of the State
of Indiana, County of Marion, dated
III UNE, BP ciceccincesenicicnnsiseconsnscmias 49a
APPENDIX C:
Order of the Superior Court of the State of
Indiana, County of Marion, Denying
Defendants’ Motion to Correct Errors,
dated December 17, 1999.00.00... Sla
APPENDIX D:
Order of the Supreme Court of Indiana De-
nying Transfer of Jurisdiction, dated
I ies A cidinsatsntiadsiahsapiadinimiaciane: 52a
TABLE OF AUTHORITIES
Page
Cases:
Arizona v. Evans, 514 U.S. | | SR ae 11, 12,15
Arizona v. Mauro, 481 U.S. 520 1 RDO 8
Arkansas v. Sullivan, 532 U.S. 769 (2001) (per
COTTII iainssansntcsinussntatossosacpaccanstnniassesscs.... 13,15
Barker v. Kansas, 503 U.S. a |: | OED 8
Boyd v. Bulala, 877 F.2d | 191 (4th Cir. Ree 16
Buffalo Athletic Club v. New York State Div. of
Human Rights, 672 N.Y.S.2d 210 (N.Y. App.
Hein, ee 17
Bush v. Palm Beach County Canvassing Bd.,
aaa les ge: 12
Cade v. Walker, 771 So. 2d 403 (Miss. Ct.
POD. MOO css ncisasssnsiaintsinssdatssseperie titse asccscs cceccce, 17
Davis v. Omitowoju, 883 F.2d 1155 (3d Cir.
ROOT Sisceihinciinhsendeaiotaiaindiegegh gl oad 16
Fowler v. Park Corp., 673 S.W.2d 749 (Mo.
RY ossessrmssineniranesersisssesomielld duapucg tis a de 17
Gasperini v. Center for Humanities, Inc., 518
PR AE I i sisiscensincsamaisie 7,9, 10, 16
Greene vy. Georgia, 519 U.S. 145 (1996) (per
CUPIMET) osssssssssorsesccesssssssesessessssrsssterssorsnsestecssa,......... 14,15
Groves v. First Nat’l Bank of Valparaiso, 518
N.E.2d 819 (Ind. Ct. ee | 6
Grunewald vy. United States, 353 U.S. 392
(LIST) -sncsssceenedédtgnnsessessssenssssasanussesenssetnesecsoseeseces.c... 14
Gumbs v. Pueblo Int 7%, Inc., 823 F.2d 768 (3d
ate: Ce RT UL ee 16, 18
Hetzel v. County of Prince William, 89 F.3d
169 (4th Cir.), cert. denied, 519 U.S. 1028
CB RD) -nsierssnsinisstdaasaieratenigaotesdhigeaciian acca 16
Hoffman v. United States, 341 U.S. 479 ES Piiincisniceictinn 14
Illinois v. Rodriguez, 497 U.S. 177 (1990) oooeecccecceccccee.. 11
Kentucky v. Stincer, 482 U.S. 730 (1987) ooo. 1]
(v)
vl
TABLE OF AUTHORITIES—Continued
Page
Cases:
Maryland v. Dyson, 527 U.S. 465 (1999) (per
QUIT cccecccrancstbinnsntistentsansimniaidiaiinandiadantaditamaimaaitaeeealions 13
Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997)................... 16
Michigan v. Long, 463 U.S. 1032 (1983).............. 10, 11, 12
Miksis v. Howard, 106 F.3d 754 (7th Cir.
SU FP ccctalthsccetecntsnetsnnnnnntntenesdiaaliamandamiceasnas maaan ciiameames 7
Minnesota v. National Tea Co., 309 U.S. 551
CE cnicinssicnsnsstatisenstamnniinbsiciasiaieamanmiuiahtisstaa tiie cama 12
Ohio v. Reiner, 532 U.S. 17 (2001) (per cu-
TERI .cecsncocessctstnsseiehaebanniemaasiaaeencans 8, 10, 14, 15
Palenkas v. Beaumont Hosp., 443 N.W.2d 354
CREDO, Wie cschacctneptnnscsinsssensiseuinisinnnitemanndemeatandnedemiatens 17,18
Pearson v. Yewdall, 95 U.S. 294 (1877) ...............cccee0e —
Pennsylvania v. Goldhammer, 474 U.S. 28
(ES SOOT CUTIES occcececerssecsscensseunssinionsictignnicsoncnnieanintan Ss
Pennsylvania v. Labron, 518 U.S. 938 (1996)
GOO? CUTTD ccicssinncsedintenninma 11-12
Perkins v. Benguet Consolidated Mining Co.,
REE of , . , Rn i Ne Rae x cane 12
Red Cross Line v. Atlantic Fruit Co., 264 U.S.
PGP CES EED sicesniesscetenernsateaae —_
Reimer v. Illinois Dep't of Transp., 148 F.3d
BOO CHEN Gal Ci cidechuicicacinncteanistaninenansanien eae 16
Scala v. Moore McCormack Lines, Inc., 985
ae GE Ce Ge He ichcaveshsctncecunnaecistaninnatetminiceaacieee 18
Soto v. United States, 11 F.3d 15 (1st Cir.
SODED cevecocescnssacnctinnpeaabiuiaseneuneddemiiamnaaieiaasaniaananannne 17
State Tax Comm'n v. Van Cott, 306 U.S. 511
OC FED snncencecesssksniatisidieassentediandiomemaiannanaueaenaaaee 10
State v. Thompson, 385 N.E.2d 198 (Ind. Ct.
Vii
TABLE OF AUTHORITIES. Continued
Page
Cases:
Sykes vy. McDowell, 786 F.2d 1098 (11th Cir
IG) acsaccssscncassnsssesscsnssosessecesesssnsenscesesesesinessece.ac............ 17
The Justices v. Murray, 76 U.S. (9 Wall.) 274
(USO) .ssssssecssssnssnsnesssscossecesesssessrtsstcesessesoesesessesse....... 7)
Three Affiliated Tribes of Ft. Berthold Reser-
vation Vv. Wold Eng'g, P.C.. 467 U.S. 138
SEIU) oiisssnsnescesnenanssessnnbinnntserntonenaineansassisiesss, ic... passim
United Air Lines. Inc Vv. Mahin, 410 US. 623
CEPT) csncsesseussenssasasiensicbbonsbittintinasasanaeen. 3,10. 11
Wainwright v. Witt, 469 U.S. na ARE 14
Wakefield Vv. United States. 765 F.2d 55 (Sth
OO. USGS) ann assssesscsccssoscsonassssnsnrertvtsttseceseesesccccse.... 16
Walker vy. Sauvinet, 92 U.S. 90 | Ne 7,9
Wheat v. United States, 860 F.2d 1256 (Sth
Or, BSG) oan nsasssnascssonnsonsnsnsntntestnstneseeoesscc...... 7,16
Constitutional Provisions:
U.S. Const. amend. VID .........cccccesceececssssesse-. se Passim
Ind. Const. art. I, HF ocseseussrssnissscsnseatsttasseseeewmassseseese... 1]
Statutes:
28 U.S.C. DID MR sscaneesncnessscesnnssssesinsotsasesasssaneceseeecs........ 2
28 U.S.C. I itrecsiiinvaisnnibieisaidsac tics M Mr 14
Rules:
S. Ct. Rule 10(C)....scsessssscecssssssssssssssseessstsseeesesecccccg 8
IN THE
Supreme Court of the Anited States
No. 01-
IRA C. RITTER AND THE KROGER CoO.,
Petitioners,
V.
JERRY STANTON AND RUTH A. STANTON,
~ Respondents.
Petition for a Writ of Certiorari to the
Court of Appeals of Indiana
PETITION FOR A WRIT OF CERTIORARI
Ira C. Ritter and The Kroger Company (“Kroger’’) respect-
fully petition for a writ of certiorari to review the judgment
of the Court of Appeals of Indiana in this case.
OPINIONS BELOW
The opinion of the Court of Appeals of Indiana is reported
at 745 N.E.2d 828 and reprinted in the appendix hereto
(“App.”) at la. The order of the Supreme Court of Indiana
denying Kroger’s petition to transfer jurisdiction is unre-
ported and reproduced at App. 52a. ;
JURISDICTION
The judgment of the Court of Appeals was entered on
March 14, 2001. App. la. On January 31, 2002, the Su-
preme Court of Indiana, by a vote of 3-2, denied Kroger’s
2
timely petition to transfer jurisdiction. App. 52a. The
jurisdiction of this Court rests on 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Seventh Amendment to the United States Constitution
provides: “In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be
otherwise reexamined in any Court of the United States, than
according to the rules of the common law.”
INTRODUCTION
Petitioners Kroger and Ritter appealed a $55 million com-
pensatory damages award to the Court of Appeals of Indiana,
arguing that the award—by many multiples the largest
compensatory damages award in Indiana history—was
excessive and should be reduced. To prove the point, Kroger
and Ritter urged the Court of Appeals to follow the lead of
courts throughout the country and adopt a method for re-
viewing jury awards known as “comparability analysis,”
whereby the award under review is compared to awards
rendered in analogous cases to evaluate the challenged
award’s excessiveness. The Court of Appeals affirmed, and
in doing so rejected the comparability approach because it
thought that comparing awards amounted to “second-
guessing jury decisions in a manner not permitted by the
Seventh Amendment.” App. 30a.
The decision below is flatly contrary to this Court’s estab-
lished precedents and should be reversed. For more than a
century, this Court has consistently held that the Seventh
Amendment applies exclusively to the federal courts, con-
straining in no way the manner or degree to which state
appellate courts may review jury determinations. Certiorari
is therefore warranted to resolve this glaring conflict on an
issue of great importance to our federal system. Moreover,
“to avoid the risk of an affirmance of a decision which might
4
:
4
3
have been decided differently if the court below had felt free
* * * to do so,” United Air Lines, Inc. v. Mahin, 410 U.S.
623, 632 (1973) (quotation omitted)—a decision that will
otherwise cost petitioners $55 million—the Court should
grant the petition and follow its normal “practice to vacate
the judgment of the state court and remand the case so that
the court may reconsider the state-law question free of
misapprehension about the scope of federal law.” Three
Affiliated Tribes of Ft. Berthold Reservation v. Wold Eng’g,
P.C., 467 USS. 138, 152 (1984). Indeed, the error of the
court below is so blatant that summary reversal may be
appropriate.
STATEMENT OF THE CASE
This $55 million compensatory damages case arises out of
a claim for damages sustained in a tractor-trailer accident.
On May 6, 1995, respondent Jerry Stanton drove a tractor-
trailer to Kroger’s Indianapolis Distribution Center, where he
was to receive a shipment of milk destined for Illinois.
Before leaving, Stanton stopped to take a break. In what is
known as the “ready line,” Stanton parked his vehicle beside
an idle stand-alone trailer. By the time he had finished
parking his vehicle, however, Ira Ritter, a 38-year employee
of Kroger, had begun backing his semi-tractor toward the idle
trailer beside which Stanton had parked. As Stanton walked
between Ritter’s oncoming tractor and the trailer to which
Ritter intended to connect, Stanton paused to read a manu-
facturer’s tag on the trailer. Unaware that Ritter was ap-
proaching, Stanton became pinned between Ritter’s tractor
and the idle trailer, suffering severe injuries, including a
crushed pelvis, broken ribs, punctured lungs, loss of-sight in
one eye, and other internal injuries.
Two months after the accident, Stanton and his wife filed
suit against Ritter and Kroger in the Superior Court of
Indiana, Marion County. The complaint alleged that Ritter’s
negligence caused serious and permanent injuries to Stanton
4
and deprived his wife of his services, society, companion-
ship, and consortium. Respondents sought unspecified
damages against Ritter individually and against Kroger under
the doctrine of respondeat superior.
At trial, Kroger and Ritter disclaimed liability, arguing that
Stanton’s own negligence was the proximate cause of his
injuries. Putting aside issues of fault, however, the parties
did agree that Stanton had in fact incurred special damages in
the amount of $1,281,741. That figure covered Stanton’s
past medical expenses, lost earnings, and lost future pension
benefits.
Respondents, however, sought much more—almost 60
times more—in general damages. Although it is not clear
from where he derived these sums, respondents’ counsel
urged the jury to award $30 million for future pain and
suffering, $7 million for past pain and suffering, $10 million
for future loss of consortium, $2 million for past loss of
consortium, $10 million for future disfigurement, $3 million
for past disfigurement, and $2 million for future medical
expenses. All told, respondents sought a verdict amounting
to $65,281,741.
After deliberating for less than two hours, the jury con-
cluded that respondents had actually understated their
damages, finding the proper figure to be roughly $3.5 million
more, or $68,750,000. Nonetheless, believing that Stanton
bore 20 percent comparative fault for the accident, the jury
discounted its calculation accordingly and awarded respon-
dents an even $55 million. The Superior Court entered
judgment on the verdict, see App. 49a-50a, and denied
Kroger and Ritter’s subsequent motion to correct errors, in
which they sought a remittitur and a new trial. See id. Sla.
Kroger and Ritter appealed.
On appeal, Kroger and Ritter contended that the award was
grossly excessive and should be reduced. In doing so, they
urged the Court of Appeals to adopt a method for reviewing
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5
jury awards known as “comparability analysis.” Under that
approach—which many state courts, as well as their federal
counterparts, apply—an appellate court compares the award
under review to awards rendered in Similar cases to deter-
mine whether the challenged award is so far outside the range
of past damages calculations as to be presumptively exces-
sive. Based on that approach, Kroger and Ritter demon-
strated how the colossal award in this case exceeded by a
factor of nearly 10 what had previously been Indiana’s
largest verdict for similarly grievous injuries and accompa-
nying loss of consortium. Not that this Came as a surprise; as
Kroger and Ritter explained, the award below was not just
the largest of its kind, but it was also the single largest
compensatory damages award ever rendered in Indiana.
The Court of Appeals refused to engage in comparability
analysis and accordingly affirmed. Its principal reason for
refusing to do so was to avoid a perceived conflict with the
Seventh Amendment’s prohibition on reexamining a jury’s
findings of fact—even though no party ever cited, much less
briefed, the Seventh Amendment. The court initially ex-
plained that “{i}n examining the question of the proper
method of analysis, we have reviewed the role of the jury in
awarding compensatory damages,” and from that “(t]he
relationship between judge and jury with respect to compen-
sation is clear[:] The Seventh Amendment generally requires
that the jury determine compensatory damages.” App. 23a.
Underscoring the federal constitutional dimension to the
decision, the court went on to state that “Supreme Court
doctrine, historical practices prior to the adoption of the
Seventh Amendment, and functional considerations all
indicate that determination of compensation lies at the heart
of the jury’s constitutional province.” /d. And based on this
understanding, the court concluded that “once the jury makes
a decision about compensation, the Seventh Amendment
constrains the ability of the judge to alter the award.” Id.
(emphasis added).
6
The court felt bound by first principles of Seventh
Amendment law because the propriety of using comparabil-
ity analysis remained an open question under Indiana law.
See id. 25a (“Indiana has not heretofore adopted the compa-
rability analysis for evaluating compensatory damage
awards”); id. 28a (“It is clear that Indiana courts have \not
previously adopted a comparability analysis for evaluating
compensatory damage claims.”). Although one prior deci-
sion of the Court of Appeals had tacitly endorsed the compa-
rability approach, see id. 25a-26a (citing Groves v. First
Nat'l Bank of Valparaiso, 518 N.E.2d 819, 831 (Ind. Ct.
App. 1988)), other decisions had emphasized the individual-
ity of damages determinations, though none remotely fore-
closed the possibility of analyzing comparable awards on
appeal. See id. 26a-27a (citing State v. Thompson, 385
N.E.2d 198, 214 (Ind. Ct. App. 1979)).
Having determined that the propriety of comparability
analysis remained unsettled, the court proceeded to resolve
the question, noting that “the obvious concern raised on the
face of this verdict is the great disparity between it and other
compensatory damage awards in Indiana cases.” Jd. 28a.
Although the Court of Appeals “recognize[d] that variability
among awards is a problem primarily because it undermines
the legal system’s claim that like cases will be treated alike,”
id., it found that “[a] certain level of inconsistency * * * is
inherent in the jury system.” Jd. 29a. And that inconsis-
tency, the court reasoned, “‘is unlikely to be eliminated
because the discretion exercised by juries supports basic
democratic values recognized in the Seventh Amendment
right to a jury trial and similar provisions in most state
constitutions.” /d.'
1 Although the court referred generically to “state constitu-
tions,” it did not cite a specific state constitution. More impor-
tantly, nowhere in the decision did the court cite the Indiana
constitution.
7
In the end, although the Court of Appeals found it “tempt-
ing to engage in such a comparative analysis to aid us in the
difficult task of evaluating such a large award as is at issue in
this case,” id. 32a, it found the Seventh Amendment prohib-
ited such a practice. Specifically, the court held: “Because a
comparability analysis effectively places a ‘cap’ on the jury’s
award regardless of the evidence, it can be considered to be
second-guessing jury decisions in a manner not permitted by
the Seventh Amendment.” /d. 30a. Thus, in the court’s
view, were it to adopt comparability analysis, ‘[t]he right to
jury determination of compensatory damages would become
a hollow guarantee.” /d.
Following the Court of Appeals’ decision, Kroger and
Ritter filed a petition to transfer with the Supreme Court of
Indiana, arguing that the decision below “erroneously con-
cludes that the 7th Amendment constrains the ability to
perform a post-verdict alteration of the award.” Pet. for
Transfer 3.2 Citing this Court’s decisions in Gasperini v.
Center for Humanities, Inc., 518 U.S. 415, 432 (1996), and
Walker v. Sauvinet, 92 U.S. 90, 92 (1876), Kroger and Ritter
explained that, for more than a century, it has been well
established that the Seventh Amendment applies only to
federal, not state court proceedings. Moreover, Kroger and
Ritter argued that, even were it applicable, the Seventh
Amendment would raise no bar to the comparability ap-
proach; for years, federal courts have employed comparabil-
ity analysis to review “monstrously excessive” verdicts,
Miksis v. Howard, 106 F.3d 754, 764 (7th Cir. 1997), and to
provide “an objective frame of reference,’ Wheat v. United
States, 860 F.2d 1256, 1259 (Sth Cir. 1988), without ever
suggesting that doing so violates the Reexamination Clause
of the Seventh Amendment. Pet. for Transfer 3.
2 A “petition to transfer” is the standard means of invoking the
Indiana Supreme Court’s discretionary jurisdiction to review
decisions of the state Court of Appeals. See Ind. R. App. P. 57.
8
On January 31, 2002, by a 3-2 vote, the Supreme Court of
Indiana denied without comment the petition to transfer.
App. 52a.
REASONS FOR GRANTING THE WRIT
THE DECISION BELOW SQUARELY CONFLICTS
WITH THIS COURT’S SETTLED PRECEDENT
THAT THE SEVENTH AMENDMENT APPLIES TO
FEDERAL, NOT STATE COURT PROCEEDINGS.
One of the principal considerations governing the exercise
of this Court’s discretion to grant certiorari is whether a state
court “has decided an important question in a way that
conflicts with relevant decisions of this Court.” S. Ct. Rule
10(c). See, e.g., Ohio v. Reiner, 532 U.S. 17, 18 (2001) (per
curiam); Barker v. Kansas, 503 U.S. 594, 597 (1992);
Arizona v. Mauro, 481 U.S. 520, 525 (1987); Pennsylvania
v. Goldhammer, 474 U.S. 28, 29 (1985) (per curiam). As we
explain below, the decision of the Court of Appeals in this
case directly contravenes decisions of this Court, which, for
more than a century, have consistently held that the Seventh
Amendment plays no role in state appellate proceedings.
Certiorari is warranted to resolve this fundamental conflict,
particularly given the importance of the issue—not to men-
tion the staggering size of this damages award—and the need
to reaffirm that state courts of appeals may continue to
review jury verdicts free from federal constitutional con-
straints. Indeed, the error in the decision below is so plain
that plenary review may well be unnecessary and summary
reversal more appropriate.
1. By its terms, the Reexamination Clause of the Sev-
enth Amendment applies only to the “Court[s] of the United
States.” U.S. Const. amend. VII. For more than 100 years,
that plain language has led this Court to hold time and again
that the Seventh Amendment means just what it says: that it
“governs proceedings in federal court, but not in state court.”
Gasperini, 518 U.S. at 432. See Pearson v. Yewdall, 95 U.S.
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9
294, 296 (1877) (“We have held over and over again that art.
7 of the amendments to the Constitution of the United States
relating to trials by jury applies only to the courts of the
United States.”); Walker v. Sauvinet, 92 U.S. at 92; The
Justices v. Murray, 76 U.S. (9 Wall.) 274, 278 (1869). So
fundamental is this principle that as long ago as 1869, this
Court thought it obvious that “the Seventh Amendment could
not be invoked in a State court to prohibit it from re-
examining, on a writ of error, facts that had been tried by a
jury in the court below.” The Justices v. Murray, 76 U.S. (9
Wall.) at 278.
That, however, is precisely what the Court of Appeals did
here. Without the benefit of briefing from any of the parties,
the court sua sponte invoked the Seventh Amendment,
concluding that the Amendment’s prohibitions on reexamin-
ing jury determinations foreclosed it from comparing the
astronomical sum awarded in this case to awards rendered in
similar cases. The Court of Appeals reasoned that “[b]ecause
a comparability analysis effectively places a ‘cap’ on the
jury’s award regardless of the evidence, it can be considered
to be second-guessing jury decisions in a manner not per-
mitted by the Seventh Amendment.” App. 30a. See id.
(“The right to jury determination of compensatory damages
would become a hollow guarantee.”); id. 23a (“once the jury
makes a decision about compensation, the Seventh Amend-
ment constrains the ability of the judge to alter the award”’).
Even if the court below were right that comparability
analysis does, in fact, amount to “second-guessing jury
decisions in a manner not permitted by the Seventh Amend-
ment’’—-which, as we explain later, it plainly does not—that
is no reason for a state court to reject the comparability
approach. For whatever its prohibitions, the Seventh
Amendment simply does not “govern[{] proceedings * * * in
state court.” Gasperini, 518 U.S. at 432. The Court of
Appeals’ decision flatly conflicts with this settled legal
principle and should be reversed.
10
2. It does not matter that the court’s ultimate conclu-
sion—that Indiana courts should not engage in comparability
analysis—may be regarded as announcing a rule of state law.
“It is * * * well established * * * that this Court retains a role
when a state court’s interpretation of state law has been
influenced by an accompanying interpretation of federal
law.” Three Affiliated Tribes of Ft. Berthold Reservation v.
Wold Eng’g, P.C., 467 U.S. at 152. Accord Ohio v. Reiner,
532 U.S. at 20. That role is particularly important here,
where “‘a state court [has] construe[d] state law narrowly to
avoid a perceived conflict with federal statutory or constitu-
tional requirements.” Three Affiliated Tribes, 467 U.S. at
152. See, e.g., United Air Lines, Inc. v. Mahin, 410 US. at
630-632; State Tax Comm'n v. Van Cott, 306 U.S. 511, 513-
515 (1939); Red Cross Line v. Atlantic Fruit Co., 264 U.S.
109, 120 (1924). In refusing to adopt comparability analysis,
the Court of Appeals narrowly construed its common-law
authority to review jury awards to avoid a perceived conflict
with the Seventh Amendment. As we demonstrated above,
the court’s perceived conflict was just that; for the Seventh
Amendment does not constrain in any way the degree to
which state appellate courts can review jury compensatory
damages awards. See, e.g., Gasperini, 518 U.S. at 432.
Nor is there any doubt that the decision below “fairly ap-
pears to rest primarily on federal law, or to be interwoven
with the federal law.” Michigan v. Long, 463 U.S. 1032,
1040 (1983). The court below expressly and repeatedly
invoked the Seventh Amendment in explaining why it found
comparability analysis inappropriate. See App. 30a (“Be-
cause a comparability analysis effectively places a ‘cap’ on
the jury’s award regardless of the evidence, it can be consid-
ered to be second-guessing jury decisions in a manner not
permitted by the Seventh Amendment.”); id. 23a (“once the
jury makes a decision about compensation, the Seventh
Amendment constrains the ability of the judge to alter the
award’’). And nowhere in its decision did the court “offer a
11
plain statement that its references to federal law were ‘being
used only for the purpose of guidance, and did not them-
selves compel the result that it reached.’ ” Arizona v. Evans,
514 US. 1, 10 (1995) (quoting Long, 463 U.S. at 1041).
In any event, the decision certainly does not contain a
“ “plain statement’ that [it] rests upon adequate and inde-
pendent state grounds.” Long, 463 U.S. at 1042. Not only
did the Court of Appeals “consistently refer[] to * * * the
[Seventh] Amendment to the Federal Constitution as sup-
porting its ruling,” Kentucky v. Stincer, 482 U.S. 730, 735
n.7 (1987), but it also did not “rely on (or even mention) any
specific provision of the [Indiana] Constitution, nor even the
[Indiana] Constitution generally.” J/linois v. Rodriguez, 497
U.S. 177, 182 (1990). Thus when the Court of Appeals
Stated that, were it to adopt comparability analysis, “[t]he
right to jury determination of compensatory damages would
become a hollow guarantee,” App. 30a, it is clear that the
court was referring to the right embodied by the Seventh
Amendment, not a state constitutional analog.3
To be sure, the court did cite several Indiana cases in the
course of discussing comparability analysis, see App. 25a-
28a, but it did so to demonstrate that “Indiana has not hereto-
fore adopted the comparability analysis for evaluating
compensatory damages awards.” Jd. 25a; accord id. 28a. It
was to answer that open question of Indiana law that the
court turned to the Seventh Amendment. Because the Court
of Appeals’ decision to reject comparability analysis is thus
“interwoven with the federal law, and * * * the adequacy
and independence of any possible state law ground is not
clear from the face of the opinion,’ * * * [this Court’s]
jurisdiction in [this] case is secure.” Pennsylvania v. Labron,
3 The jury-trial provision of the Indiana Constitution provides,
in full: “In all civil cases, the right of trial by jury shall remain
inviolate.” Ind. Const. art. I, § 20. That provision was never cited
by the Court below.
12
518 U.S. 938, 941 (1996) (per curiam) (quoting Long, 463
U.S. at 1040-41); Long, 463 U.S. at 1040-41 (“when the
adequacy and independence of any possible state law ground
is not clear from the face of the opinion, we will accept as the
most reasonable explanation that the state court decided the
case the way it did because it believed that federal law
required it to do so”). See also Bush v. Palm Beach County
Canvassing Bd., 531 U.S. 70, 78 (2000) (“ ‘it is * * * impor-
tant that ambiguous or obscure adjudications by state courts
do not stand as barriers to a determination by this Court of
the validity under the federal constitution of state action’ ’’)
(quoting Minnesota v. National Tea Co., 309 U.S. 551, 555
(1940)); accord Arizona v. Evans, 514 U.S. at 9.
3. | Where, as here, a “state-law determination appears to
have been premised” on a federal question and the “state
court has proceeded on an incorrect perception of federal
law, it has been this Court’s practice to vacate the judgment
of the state court and remand the case so that the court may
reconsider the state-law question free of misapprehension
about the scope of federal law.” Three Affiliated Tribes, 467
U.S. at 152. Thus where a state supreme court narrowly
construed a state tax statute to avoid a perceived, but false,
conflict with the Commerce Clause, this Court remanded the
case “to avoid the risk of ‘an affirmance of a decision which
might have been decided differently if the court below had
felt free, under our decisions, to do so.’ United Air Lines,
Inc. v. Mahin, 410 U.S. at 632 (quoting Perkins v. Benguet
Consolidated Mining Co., 342 U.S. 437, 443 (1952)).
That is the course this Court should take here. As we have
explained, the decision below rests on a demonstrably
“incorrect perception of federal law.” Three Affiliated Tribes,
467 U.S. at 152. To correct such a blatant misreading of its
established precedents is reason enough for this Court to
grant the petition. Yet the reason for doing so is heightened
further still by the fact that it would be grossly unfair to
saddle Kroger and Ritter with a $55 million judgment, based
13
on a decision “which might have been decided differently if
the court below had felt free” to ignore the Seventh Amend-
ment.
Indeed, the risk of letting stand a decision that might very
well have come out the other way, absent the court’s miscon-
ception of federal law, is particularly acute here. The Court
of Appeals specifically noted that it was “tempting to engage
in * * * comparative analysis to aid us in the difficult task of
evaluating such a large award,” App. 32a, and recognized
that “variability among awards is a problem primarily
because it undermines the legal system’s claim that like cases
be treated alike.” /d. 28a. It nonetheless resisted the tempta-
tion to use a comparability approach because of its fatally
flawed view that the Seventh Amendment prevented it from
doing so. The Indiana Supreme Court denied review of that
decision by the narrowest of margins. /d. 52a-53a. This
Court should not allow such an important decision based on
such a clear error of federal constitutional law to stand.
4. Although the question presented by the petition is
exceedingly important and merits review, the flagrant nature
of the error below may militate against plenary review. For
that reason, we urge the Court to summarily reverse the
decision below and remand for reconsideration free of any
misapprehension about the applicability of the Seventh
Amendment.
This Court will grant certiorari and summarily reverse
where, as here, a state court’s decision is “flatly contrary to
this Court’s controlling precedent.” Arkansas v. Sullivan,
532 U.S. 769, 771 (2001) (per curiam). As this Court has
explained, “a summary reversal does not decide any new or
unanswered question of law, but simply corrects a lower
court’s demonstrably erroneous application of federal law.”
Maryland v. Dyson, 527 U.S. 465, 467 n.* (1999) (per
curiam). Such dispositions are particularly appropriate in
cases such as this one, where a state court has interpreted
14
state law based on a manifestly incorrect view of federal law.
See, e.g., Ohio v. Reiner, 532 U.S. at 18; Greene v. Georgia,
519 U.S. 145, 146-147 (1996) (per curiam).
In Reiner, for example, the Supreme Court of Ohio held
that a witness had been wrongly granted immunity from
testifying under a provision of state law. That state-law
decision, however, rested on a determination that the witness
did not have a valid Fifth Amendment privilege because she
denied all culpability and claimed complete innocence.
This Court summarily reversed. Noting that it “ ‘retains a
role when a state court’s interpretation of state law has been
influenced by an accompanying interpretation of federal
law,” Reiner, 532 U.S. at 20 (quoting Three Affiliated
Tribes, 467 U.S. at 152), the Court emphasized that “we have
never held, as the Supreme Court of Ohio did, that the
privilege is unavailable to those who claim innocence.” /d. at
21. It therefore granted the petition and summarily reversed
“[b]ecause our precedents dictate that the privilege protects
the innocent as well as the guilty.” /d. at 18; accord id. at 21
(“The Supreme Court of Ohio’s determination that [the
witness] did not have a valid Fifth Amendment privilege
because she denied any involvement in the abuse of the
children clearly conflicts with” the Court’s precedents)
(citing Hoffman v. United States, 341 U.S. 479, 486 (1951),
and Grunewald v. United States, 353 U.S. 392, 421 (1957)).
Similarly, in Greene, the Supreme Court of Georgia cited
this Court’s decision in Wainwright v. Witt, 469 U.S. 412
(1985), as “controlling authority” for a rule that state appel-
late courts must defer to trial courts’ findings concerning
juror bias. Greene, 519 U.S. at 145-146. This Court summa-
rily reversed, because “Witt was a case arising on federal
habeas, where deference to state-court findings is mandated
by 28 U.S.C. § 2254(d)” and therefore “does not govern the
standard of review of trial court findings by” state appellate
courts. Jd. at 146. Thus, just as the Supreme Court of
Georgia did in Greene, the Court of Appeals below errone-
ee ee
15
ously limited its appellate review of state-law issues based on
a principle of federal law inapplicable to the States.
Summary reversal is appropriate here because the Court of
Appeals, in declining to engage in comparability analysis,
adopted a view of the Seventh Amendment that is “flatly
contrary to this Court’s controlling precedent.” Sullivan, 532
U.S. at 771. And as in Reiner and Greene, the court’s plain
misapprehension of federal law fatally infected its determi-
nation of the interwoven state-law issue. By requesting
summary reversal, we are not, of course, asking this Court to
compel the Court of Appeals to adopt comparability analysis
as a means of facilitating effective review of the excessive-
ness of damages awards. As this Court has recognized, a
State court on remand “‘is free to adopt the rule” it errone-
ously thought compelled by federal law, “but it need not do
so.” Greene, 519 U.S. at 147; accord Reiner, 532 U.S. at 22.
Summary reversal is therefore justified to allow the Court of
Appeals to reconsider its approach to comparability analysis,
“disabused of its erroneous view of what the United States
Constitution requires.” Arizona v. Evans, 514 U.S. at 8. The
court below found comparability review “tempting,” App.
32a, and declined to adopt it because of an erroneous view of
the Seventh Amendment. Reconsideration is thus plainly
warranted.
5. Although this Court need not reach the issue to decide
the narrow question presented by this petition, it bears
mention that the Court of Appeals was wrong not just on the
applicability of the Seventh Amendment, but also on its
substantive requirements. The court believed that “[b]ecause
a comparability analysis effectively places a ‘cap’ on the
jury’s award regardless of the evidence, it can be considered
to be second-guessing jury decisions in a manner not per-
mitted by the Seventh Amendment.” App. 30a. Compara-
bility analysis, however, does not establish a “cap” on how
much a jury may award; it merely provides an appellate court
with “an objective frame of reference” that is “helpful in
16
determining whether a particular award is excessive.” Wheat
v. United States, 860 F.2d at 1259. And while comparing
analogous awards “‘ ‘might serve as a point of reference,
*** such comparison is not controlling.”” Jd. at 1260
(quoting Wakefield v. United States, 765 F.2d 55, 59 (Sth Cir.
1985). | But more fundamentally, even if comparability
analysis did, in fact, effectively “cap” the amount of damages
a jury could award, there would still be no Seventh Amend-
ment violation. As this Court has recognized, the federal
“courts of appeals have held that district court application of
state statutory caps in diversity cases, postverdict, does not
violate the Seventh Amendment.” Gasperini, 518 U.S. at
429 n.9 (citing Davis v. Omitowoju, 883 F.2d 1155, 1161-65
(3d Cir. 1989); Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir.
1989)).
Moreover, a substantial number of the federal courts of
appeals—where the Seventh Amendment does apply—have
expressly adopted the comparability approach, with nary a
concern that doing so implicates the Seventh Amendment.
See, e.g., Mathie v. Fries, 121 F.3d 808,813 (2d Cir. 1997)
(“the determination of whether a damages award exceeds a
reasonable range should not be made in a vacuum, but should
include consideration of the amounts awarded in other,
comparable cases”) (citation and internal quotation omitted);
Gumbs v. Pueblo Int’l, Inc., 823 F.2d 768, 773 (3d Cir. 1987)
(“determining the excessiveness of verdicts with comparable
injuries offers us some guidelines”); Hetzel v. County of
Prince William, 89 F.3d 169, 172 (4th Cir.) (“That this award
is outrageous is confirmed by even a cursory analysis of the
impressive array of cases” comparable to the plaintiff's
injuries), cert. denied, 519 U.S. 1028 (1996); Wheat v.
United States, 860 F.2d at 1259 (“Although our determina-
tion is, by its nature, subjective, we do conduct our analysis
within an objective frame of reference: damage awards in
similar cases.”); Reimer v. Illinois Dep’t of Transp., 148 F.3d
800, 808 (7th Cir. 1998) (“We make three inquiries when
17
reviewing a compensatory damages award: whether the
award is ‘monstrously excessive’; whether there is no ra-
tional connection between the award and the evidence, and
whether the award is roughly comparable to awards made in
similar cases.”) (quotation and ellipses omitted). Although
other courts of appeals have rejected comparability analysis,
they have done so not for any constitutional reason, but
simply because they find the approach unilluminating. See
Soto v. United States, 11 F.3d 15, 18 (1st Cir. 1993); Sykes v.
McDowell, 786 F.2d 1098, 1105 (11th Cir. 1986).
A number of state courts likewise engage in comparability
analysis when reviewing jury compensatory damages awards
for excessiveness. And until the decision of the Court of
Appeals below, it would have gone without saying that none
of these courts paused to consider whether the Seventh
Amendment constrained them from adopting that analytic
framework. See, e.g., Palenkas v. Beaumont Hosp., 443
N.W.2d 354, 358 (Mich. 1989) (“a comparison of jury
awards in analogous * * * cases * * * provide[s] an objective
means of determining the range of appropriate awards”);
Cade v. Walker, 771 So. 2d 403, 408 (Miss. Ct. App. 2000)
(“We thus review a claim of excessiveness, as required by
precedent, by comparing the awards at issue with rulings in
other factually similar cases decided under controlling law.”’);
Fowler v. Park Corp., 673 S.W.2d 749, 758 n.15 (Mo. 1984)
(although it “is no longer the sole factor considered in
reviewing the excessiveness of damage awards,” from “the
early days of statehood, Missouri appellate courts followed
the rule that damage judgments should conform with judg-
ments entered in like cases”); Buffalo Athletic Club v. New
York State Div. of Human Rights, 672 N.Y.S.2d 210, 211
(N.Y. App. Div. 1998) (reducing award by fifty percent on
appeal because reduced award was “more consistent with
awards for comparable injuries and proof of mental anguish
made in similar cases”) (quotation omitted).
18
The reason federal and state courts alike have resorted to
comparability analysis has been in “response to the increas-
ingly outrageous amounts demanded by plaintiffs and
awarded by juries.” Gumbs, 823 F.2d at 773. Comparability
analysis “provide[s] an objective means of determining the
range of appropriate awards,” Palenkas, 443 N.W.2d at 358,
and thereby allows an appellate court to determine whether a
seemingly excessive award was the likely product of im-
proper passion or prejudice. For whatever latitude juries
enjoy in fixing compensation, they “‘may not abandon
analysis for sympathy for a suffering plaintiff and treat an
injury as though it were a winning lottery ticket.’” Scala v.
Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir.
1993) (quoting Gumbs, 823 F.2d at 773).
CONCLUSION
For the foregoing reasons, the petition for a writ of certio-
rari should be granted, the judgment below reversed, and the
case remanded to the Court of Appeals for reconsideration
free of the misapprehension that the Seventh Amendment
constrains appellate review of jury compensatory damages
awards in state court.
Respectfully submitted,
KARL L. MULVANEY JOHN G. ROBERTS, JR.*
DAVID C. CAMPBELL CHRISTOPHER T. HANDMAN
NANA QUAY-SMITH HOGAN & HARTSON L.L.P.
BINGHAM MCHALE LLP 555 Thirteenth Street, N.W.
2700 Market Tower Washington, D.C. 20004
10 West Market Street (202) 637-5810
Indianapolis, Indiana 46204
(317) 635-8900
*Counsel of Record Counsel for Petitioners
APPENDICES
la
APPENDIX A
IN THE |
COURT OF APPEALS OF INDIANA
No. 49A02-9912-CV-883
IRA C. RITTER AND THE KROGER CO.,
Appellants-Defendants,
Vv.
JERRY STANTON AND RUTH A. STANTON,
Appellees-Plaintiffs.
Appeal from the Marion Superior Court No. 10
The Honorable Richard H. Huston, Judge
Cause No. 49D10-9506-CT-959
March 14, 2001
OPINION—FOR PUBLICATION
BARNES, Judge
Case Summary
This case stems from a personal injury action brought
against Ira Ritter and the Kroger Company (“Kroger”) as a
result of an accident occurring on Kroger property while the
Plaintiff, Jerry Stanton, was working as a truck driver for a
Kroger subsidiary. The jury awarded $55,000,000 in
2a
compensatory damages after determining that Stanton was
20% at fault. We affirm.
Issues
Kroger raises two primary issues for our review, namely:
I. whether the trial court erroneously denied its motion
to dismiss for lack of subject matter jurisdiction
because of the exclusivity provision of the Indiana
Worker’s Compensation Act (“Act”); and
II. whether the jury awarded excessive damages.
Facts
Forty-eight year-old Stanton was a truck driver for
Gateway Freightline Corporation (“Gateway”), a wholly
owned subsidiary of Kroger. On May 6, 1995, he traveled
from his home state of Illinois to Indianapolis for the purpose
of returning empty milk containers to Kroger’s dairy. Prior to
leaving Kroger’s Indianapolis Distribution Center, he
stopped for a break and parked his tractor-trailer beside a
parked trailer. In the meantime, Ritter, a Kroger employee,
began backing a Kroger tractor toward the same parked
trailer. Unaware that Ritter was moving toward him, Stanton
walked between Ritter’s backing tractor and the parked
trailer. After Stanton stopped momentarily, he was pinned
between the parked trailer and Ritter’s tractor, suffering
massive injuries.
Stanton and his wife, Alfie, filed suit in June 1995 against
Ritter and Kroger, alleging negligence resulting in permanent
injuries to Stanton and loss of consortium to his wife. Two
years later, Kroger filed a motion to dismiss for lack of
subject-matter jurisdiction on the basis that the claims were
barred by the exclusivity provision of the Act because
Stanton was employed by a Kroger subsidiary. The following
year, the trial court denied the motion and refused Kroger’s
request for interlocutory appeal.
3a
The case was tried to a jury for several weeks in mid-1999.
At trial, the parties stipulated that Stanton suffered
$1,281,741 in special damages, including past medical
expenses, lost earnings, and lost future pension benefits.
Kroger defended the suit on the basis that Stanton’s claim
was barred because he was totally at fault for the accident.
During his closing argument, Stanton suggested the
following damage amounts: $2 million for future medical
expenses; $3 million for past disfigurement; $10 million for
future disfigurement; $7 million for past pain and
suffering/ability to function as a whole person; $30 million
for future pain and suffering; $2 million for past loss of
consortium; and $10 million for future loss of consortium.
Including the $1,281,741 in special damages, Stanton
requested a total verdict of $65,281,741. After deliberating
for a relatively short time, the jury returned a verdict in favor
of the Stantons for $55,000,000, which reflected a 20%
reduction or discount for Stanton’s comparative fault.
Analysis
I. Exclusivity of Worker’s Compensation Remedy
The threshold issue this case presents is whether the
exclusivity provision of the Act bars Stanton’s claim. This
provision of the Act provides:
[T]he rights and remedies granted an employee[!]
subject to I.C. 22-3-2 through I.C. 22-3-6 on account of
personal injury or death by accident shall exclude all
other rights and remedies of such employee, the
employee’s personal representatives, dependents, or
next of kin, at common law or otherwise, on account of
such injury or death... .
! Indiana Code Section 22-3-6-1(b) defines an “employee” under
the Act as “every person, including a minor, in the service of
another, under any contract of hire or apprenticeship, written or
implied, except one whose employment is both casual and not in
the usual course of the trade, business, occupation or profession of
the employer.”
4a
Ind.Code § 22-3-2-6. The only way for an employee to
recover for personal injuries arising out of and in the course
of employment is through worker’s compensation. Kroger
claims that Kroger and Gateway are the same “employer” for
purposes of the exclusivity provision, and, therefore, that
Stanton’s sole remedy is through worker’s compensation.
A. Standard of Review
The appropriate standard of review is disputed by the
parties with respect to the question of jurisdiction. Kroger
filed a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Indiana Trial Rule 12(b)(1). In ruling
on a motion to dismiss for lack of subject-matter jurisdiction,
the trial court may resolve factual disputes. Perry v. Stitzer
Buick GMC, 637 N.E.2d 1282, 1286-87 (Ind. 1994);
Common Council v. Matonovich, 691 N.E.2d 1326, 1328
(Ind. Ct. App. 1998), trans. denied. In doing so it may
consider not only the complaint and motion to dismiss but
any affidavits or other evidence submitted. /d. Moreover, a
court may weigh the evidence to determine the existence of
the requisite jurisdictional facts. /d. It is well-settled that
when the facts are not in dispute, we review a ruling on a
motion to dismiss de novo. See, e.g., Common Council, 691
N.E.2d at 1328; Rieheman v. Cornerstone Seeds, Inc., 671
N.E.2d 489, 491 (Ind. Ct. App. 1996), trans. denied.
When the facts related to subject-matter jurisdiction are in
dispute, the proper standard of review is not as clear. Sonie
cases have said that “when we review a trial court’s ruling on
[a motion to dismiss for lack of subject-matter jurisdiction],
we may affirm the judgment on any theory supported by the
evidence of record.” Vranicar v. Board of Comm'rs of Brown
County, 730 N.E.2d 752, 755 (Ind. Ct. App. 2000); M.V. v.
Charter Terre Haute Behavioral Health System, Inc., 712
N.E.2d 1064, 1066 (Ind. Ct. App. 1999). Additionally, when
in ruling on such a motion the trial court considers evidence
outside the complaint (affidavits, etc.), holds a hearing during
which the parties present arguments regarding the evidence,
and issues findings of fact and conclusions thereon, an
appellate court wil! review the trial court’s resolution of the
Sa
factual disputes by applying a clearly erroneous standard.
Lawson v. Raney Mfg., 678 N.E.2d 122, 126 (Ind. Ct. App.
1997), trans. denied.
We have stated that the question of whether an injury
occurred in the course of employment depends upon the facts
and circumstances of each case. Northcutt v. Smith, 642
N.E.2d 254 (Ind. Ct. App. 1994). In that case, we reasoned:
[a]lthough the Northcutts concede that Northcutt’s
injury arose in the course of his employment and the
facts are not in dispute regarding how, where, and when
the injury occurred, the question of whether Smith is
subject to liability pursuant to the Act remains a mixed
question of law and fact, which ultimately will
determine whether the trial court has jurisdiction over
the subject matter.
Id. at 256 (emphasis added). We concluded that the review of
such a factual determination was for an abuse of discretion.
Id.
Despite the semantic differences among these cases in
articulating the standard of review, the overarching principle
is clear: when the trial court resolves factual issues in
reaching its decision on subject-matter jurisdiction, deference
should be afforded on appeal just as in any other type of case
where the trial court weighs the facts. The standard of review
for the jurisdiction determination in this case then turns on
the question of whether there were any questions of fact
before the trial court in ruling on the motion to dismiss. The
parties may not dispute the facts surrounding the accident,
but they do dispute some of ihe facts and many of the
inferences to be drawn therefrom relating to the relationships
between Kroger and Gateway and between Kroger and
Stanton. The trial court necessarily made factual
determinations in reaching its conclusion that Stanton’s claim
was not barred by the Act, even though it did not issue
written findings detailing those specific determinations.
Therefore, we will give deference to the trial court’s decision
a
tee
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6a
when reviewing this issue. We now turn to the substance of
the arguments.
B. McQuade v. Draw Tite, Inc.
The thrust of Kroger’s jurisdictional argument is that
Kroger and Gateway were the same employer at the time of
the accident and, as a result, Stanton is prohibited from suing
Kroger. In effect, Kroger is asking us to permit it to
defensively “pierce the corporate veil” erected when it
formed its parent-subsidiary corporate structure and find that
it was actually the employer of Stanton by virtue of the fact
that it is Gateway’s parent company.
The watershed case addressing this issue is McQuade v.
Draw Tite, Inc., 659 N.E.2d 1016 (Ind. 1995). In that case, an
injured employee brought a negligence action against her
employer’s parent corporation for injuries sustained in the
course of employment. The trial court held that the parent
company was so interconnected with the subsidiary that it
was equivalent to the plaintiff's “employer” under the Act
and, therefore, that the plaintiff could not pursue the cause of
action because the exclusive remedy for her injuries against
her “employer” was under the Act. McQuade, 659 N.E.2d at
1017.
Our supreme court reversed the trial court and this court,
rejecting our conclusion that because the parent company
oversaw and controlled the subsidiary’s operations, reported
the subsidiary’s earnings as profits, shared a worker’s
compensation policy with the subsidiary, and performed
payroll and accounting functions for the subsidiary, the
parent and subsidiary corporations were not distinct and
separately operated corporations. /d. at 1020. The supreme
court held as a case of first impression that the exclusivity
provision of the Act did not prevent an employee of a
subsidiary from suing a parent corporation for injuries
sustained in the course of employment. Jd. The supreme
court recognized a subsidiary and its parent corporation as
separate legal entities and acknowledged that a court may
exercise its equitable power in disregarding the corporate
7a
form. /d. However, the supreme court emphatically
concluded “there is little likelihood that equity will ever
require us to pierce the corporate veil to protect the same
party who erected it.” Jd. (emphasis added). Because
corporate parents are not covered under the language of the
exclusivity clause, and any uncertainty as to the clause’s
applicability calls for a narrow construction of the statute in
favor of the employee, the supreme court found no statutory
basis for the trial court’s grant of summary judgment in favor
of the corporate parent. /d.
In so holding, the court cited the “well reasoned analysis”
of the Sixth Circuit, which had adopted the most widely
accepted approach and stated:
[A] business enterprise has a range of choice in
controlling its own corporate structure. But reciprocal
obligations arise as a result of the choice it makes. The
owners may take advantage of the benefits of dividing
the business into separate corporate parts, but principles
of reciprocity require that courts also recognize the
separate identities of the enterprises when sued by an
injured employee.
Id. at 1019 (quoting Boggs v. Blue Diamond Coal Co., 590
F.2d 655, 661-62 (6th Cir. 1979), cert. denied, 444 U.S. 836,
100 S. Ct. 71 (1979)).2 Our supreme court reiterated that “‘it
2 Similar policy concerns were raised by Judge Kirsch in his
dissenting opinion in Nowicki v. Cannon Steel Erection Co., 711
N.E.2d 536 (Ind. Ct. App. 1999), trans. denied. In that case, the
court affirmed the trial court’s findings that a crane operator was
an employee of a construction company and that his claim was
therefore barred by the Act’s exclusivity provision. Jd. at 544.
Judge Kirsch detailed serious policy concerns implicated by the
conclusion that the worker’s claim was barred. He wrote in part:
[M]y dissent is based on public policy concerns and what I
believe to be a misapplication of such concerns by our
courts. In its opinion, the majority iterates the oft-repeated
statement that ‘public policy favors the inclusion of
employees within the scope of the Worker’s Compensation
Act’... The purpose underlying this policy was to insure
8a
was, after all, [the] defendant who chose to structure itself in
its present multi-corporate form.” Jd. at 1020. The supreme
court clarified its holding by stating, “[w]hat our decision is
meant to prevent is a situation where an injured party would
be deprived of his or her day in court by the purely fortuitous .
circumstance that the alleged tortfeasor is the corporate
parent of the injured party’s employer.” Jd. at 1020 n.7.
On its face, Kroger’s entreaty to pierce its corporate veil
defensively by claiming Stanton cannot sue the parent
corporation of his employer clearly fails in light of the
express holding by the McQuade court rejecting such an
attempt. Nonetheless, Kroger contends that McQuade is
distinguishable because the relationship between it and
Gateway is more interconnected than the relationship
between the parent and subsidiary corporations in that case.
Our review of the record leads us to conclude that although
there is undoubtedly some degree of interconnectedness
that workers injured in workplace accidents in the course of
their employment would receive the health and disability
benefits mandated by the act. The purpose was not to
immunize third-party tort feasors and their liability insurers
from liability for negligence which results in Serious injuries
to one who is not in their employ. And yet, that is the result
of the application of the foregoing policy to cases such as the
one now before us.
It is from the application of this policy that the burden
shifted to the injured employee to prove that the claim falls
outside the coverage of the act... .
*e ee * *
If it is the public policy of this state to allow third-party
tort feasors and-their liability insurers to use the Indiana
Worker’s Compensation Act as a shield by which to
immunize themselves from liability for their wrongful acts
resulting in serious injuries to the employee of another, then
it is a policy which should be re-examined. I would not
apply the policy in this way ....
Id. at 544-45 (citations omitted).
9a
between Kroger and Gateway, we see no legal compulsion to
depart from the McQuade holding.
Kroger and Gateway had a contract governing the terms for
the services Gateway provided to Kroger. It contains several
clauses contradicting Kroger’s assertion that it considered
“ Gateway to be the same entity and/or that it perceived
Gateway drivers to be its own direct employees. The contract
identifies the companies as separate entities and states that
Gateway was “engaged in the business of warehousing and
distributing dry groceries, health and beauty aids, dairy
perishables and produce (product), meat, frozen food and
fresh dairy products” and that Kroger “desires to utilize the
facilities and services of [Gateway].” Record p. 932. The
contract provides that Gateway is a “bailee only” and that
title to all product delivered for Kroger shall remain in
Kroger. Jd. Significantly, the contract contains mutual
clauses whereby each company agreed to hold the other
harmless and indemnify the other from all claims, suits, and
judgments for damages caused by the act or omission of its
agent or employee. Also, Gateway was required to furnish
Kroger with a certificate evidencing coverage under IIlinois’
worker’s compensation laws. Kroger is required to pay
Gateway for each case of product it delivered and for
transportation charges according to the published tariff.
Attached to the contract are several exhibits detailing various
aspects of the work to be performed by Gateway. One of the
exhibits indicates that Gateway would deliver store mail to
Kroger stores for a per-delivery fee. Another exhibit
concerns baled salvage and provides that Gateway would
charge Kroger a fee per bale for handling it. The exhibit also
States that a buyer should direct checks for the bales to
Gateway and that Gateway would send checks to Kroger for
its portion. These contract provisions are not the type one
would typically expect Kroger to have in an agreement with
its own employees.
There are other indicia of the nature of the relationship
between Kroger and Gateway. First, the hiring of anyone
below the top management of Gateway was left to Gateway
10a
employees. The employment application completed by
Stanton was labeled as that of Gateway. After the accident,
Gateway filed the First Report of Injury or Illness as the
employer without referencing Kroger. Kroger maintains that
it had at least indirect authority to discipline Gateway drivers.
It states that if “a Kroger store manager had a problem with a
particular Gateway driver, the manager would call Paul
Upton, Gateway’s Vice President and General Manager, to
complain.” Appellant’s Brief p. 20. In addition, Kroger
claims that “[c]ommon sense dictates that Kroger had the
right and power to compel the discharge of a Gateway driver
..” Appellant’s Brief p. 20. Stanton responds that Kroger
did not have authority to terminate a Gateway driver due to
the local addendum to the union contract with Gateway’s
drivers pursuant to which only Gateway could terminate
them. Kroger’s Manager of Safety and Health testified that to
the best of his knowledge, no Gateway Teamster driver was
ever suspended by anyone other than an employee of
Gateway. He also stated that if a Kroger store manager had a
problem with a particular Gateway driver, the manager
would call Gateway’s Vice President to complain but that
Gateway disciplined the driver if it was deemed necessary.
Kroger’s Transportation Manager testified that she cannot
suspend or fire a Gateway driver because “it’s a different
contract and they have a boss.” Record p. 1510. Gateway’s
Vice President and General Manager testified that even at the
store level, Kroger employees would not suspend a Gateway
driver.
Kroger contends that the fact that it “may not have had the
absolute authority to directly terminate Gateway employees”
does not mean that it could not compel such termination.
Appellant’s Reply Brief p. 14. However, the ability to
complain about a driver is not the same thing as the authority
to discipline the driver. Any customer has the ability to
complain about a driver but not the authority to directly
discipline that driver. It is clear from this evidence that
although Kroger may have had some influence over such
decisions, Gateway ultimately controlled the hiring and
discipline of its drivers.
lla
—
Second, the parties agree that Kroger provides the capital
that funds Gateway’s operating budget because Gateway is
operated under a zero-based budget. That is to say, on a daily
basis, all cash in excess of Gateway’s operating needs is
wire-transferred for deposit into Kroger’s operations account
for investment. Likewise, if Gateway’s operating costs
exceed its available cash revenues, necessary funds are wire-
transferred to Gateway. However, it is reasonable to conclude
from our review of the record that at least a portion of
Gateway’s gross receipts were returned to Gateway to fund
its own payroll. The employer participation portion of
Stanton’s health insurance was paid under Gateway’s
accounting system, and Gateway reimbursed Kroger for its
portion of the worker’s compensation premium.
Third, Kroger supplied Gateway with tractors and trailers
to which Gateway decals were affixed. However, the tractors
and trailers operated by Gateway and bearing Gateway’s logo
are titled in the State of Illinois in the name of Gateway.
Stanton testified that Kroger tractors were not driven unless a
Gateway unit had broken down because the tractor is a piece
of equipment authorized to run as a contract carrier for hire
such that it had to be licensed to Gateway. The executive
secretary to Gateway’s vice-president testified that some of
the trailers pulled by Gateway drivers may carry a Kroger
logo because a company with common carrier authority can
pull another company’s trailers with its own power units. In
addition, if Kroger employees worked on a Gat: vay truck,
Kroger bilied Gateway (at least as “paper charges for labor
time of the Kroger employee and for any parts used. Record
pp. 1318-19, 1354.
Fourth, Kroger sometimes supplied Gateway drivers with
keys to the Kroger stores to which they made deliveries to
facilitate evening or after-hours deliveries. However, when
keys to Kroger stores were given to Gateway drivers, they
were given by somebody within Gateway rather than Kroger.
Furthermore, the facilities have a driver’s door because the
drivers would drop or unload a mail bag, a service for which
Kroger paid Gateway.
12a
Finally, the Kroger distribution manager, together with the
manager of logistics, created delivery schedules and
determined when groceries were to be delivered to Kroger
stores. While at the distribution center, Gateway drivers were
directed by Kroger managers.’ Kroger provided directions as
to which stores a driver was to make deliveries. However,
Gateway drivers received supervision and instructions from
Gateway supervisory personnel. Kroger’s logistical planning
was for its own benefit and was the same as any other
customer of a trucking company that would need to
coordinate deliveries. Gateway billed Kroger for any freight
hauling it did for Kroger.
From this and other evidence in the record, we conclude
that although there is a certain degree of interconnectedness
between the companies, there is a deliberate attempt to keep
a significant portion of the businesses separate. Kroger may
oversee Gateway’s operations, report Gateway’s earnings,
share a worker’s compensation policy with Gateway, and
perform some accounting functions for Gateway, but those
were the exact characteristics of interconnectedness rejected
by the McQuade court. Therefore, the policy concerns
articulated by the McQuade court are implicated here. If
Kroger intends to maintain separate corporate entities for tax
or other purposes, then it should not be permitted to disregard
that corporate form when it is convenient for it to do so to
avoid potential liability. Equity requires us to reject Kroger’s
attempt to pierce its veil because this is the precise situation
the McQuade court intended to prevent.
3 It is to be expected that Kroger would control the traffic
movement on its property and the use of its facilities by its own
employees, as well as those of Gateway and other trucking
companies. The mere conformity with rules made for the general
policing of the premises, when there are a number of separate
groups of workers on the premises, does not mean that all of those
workers are thus transformed into Kroger employees .
13a
C. Exception to the McQuade Holding
To circumvent this result, Kroger claims that the
circumstances present in this case fall within an “exception”
to the McQuade prohibition. In the text of the opinion, the
McQuade court stated:
Plaintiff contends that the Court of Appeals’ decision is
erroneous because Indiana courts disregard the
corporate form only when it has been used to promote
fraud or some other injustice, and therefore, the Court
of Appeals should not have permitted defendant’s
‘defensive piercing of the corporate veil.’ Defendant
contends that the Court of Appeals properly applied a
‘reverse piercing’ of the corporate veil doctrine in
determining that plaintiff's claim is barred.
Id. at 1019. A footnote immediately followed, stating that
“Defendant does not claim that it had an express or implied
employment contract with Plaintiff. Rather, its claim is based
solely upon its interconnectedness with Mongo.” /d. at 1020
n.4. Kroger argues the footnote “left open the question”
whether under certain circumstances, piercing the veil to find
that the parent corporation is the employer of the plaintiff
could be appropriate. Kroger contends the footnote creates an
exception where an implied or express employment contract
is present. Kroger alleges that there was an express contract
of employment between Kroger and Stanton by virtue of a
collective bargaining agreement and Kroger’s 401(k) plan.
Kroger’s argument presupposes the existence of an
“exception” to the McQuade holding in situations where
there is a contract of employment. It is far from clear that the
language and context of the footnote creates such an
automatic exception. Rather, Kroger asks us to read an intent
into the footnote where we find none. As the McQuade court
set out the parties’ arguments, it mentioned that the defendant
had not claimed the existence of a contractual relationship.
That could mean the analysis contained in the opinion might
have been different had there been an allegation of a
contractual relationship; it could also merely be a reminder
14a
that it would not specifically address the issue of an
employment contract because the issue was not before it. We
see no indication from the passing reference in the footnote
that our supreme court intended to articulate a blanket or
automatic exception to its clear holding for cases where an
employment contract is involved. In those cases, it seems
appropriate to evaluate a particular contractual relaticaship
carefully to determine whether it is sufficient to fall outside
the scope of the general McQuade holding preventing parent
corporations from seeking protection from liability by
piercing their own corporate veils. Although in other cases
such contractual relationships may exist to create an
exception to the McQuade holding, we see no intent by our
supreme court to create a broad exception to its holding. This
is particularly true in light of the definitive language in the
opinion clearly rejecting defensive corporate veil-piercing
based on public policy concerns.
Even if we were to indulge Kroger’s claim that there is
some sort of exception created by the footnote language in
McQuade, we do not find a sufficient contractual relationship
between Kroger and Stanton to fall within it. The thrust of
Kroger’s argument is that the collective bargaining
agreement governing Stanton’s employment with Gateway
was a contract of employment with Kroger and created an
“express contractual employment relationship” between
Kroger and Stanton. Appellant’s Reply Brief p. 8.
From August 1989 through August 1994, a labor
agreement was in effect that had been negotiated by
Stanton’s union, Teamsters Local 627, with Gateway. Upon
the expiration of that agreement, Local 627 chose not to
continue operating under a separate agreement with Gateway
and instead decided to associate Gateway members with
other workers to obtain more favorable contract terms. It
decided to become a part of the Kroger and Teamsters
“Master Contract” that had been negotiated between Kroger
and the International Teamsters Union. In so doing, Gateway
accepted the same contract for its union drivers as was
negotiated for Kroger union drivers with certain conditions as
15a
outlined in a letter from Local 627. The Master Contract
identified “The Kroger Co.” as the “Employer” and referred
to the Teamsters Kroger National Negotiating Committee
representing Local Unions affiliated with the International
Brotherhood of Teamsters and Local Union as “Union.” The
Master Contract was not signed by any Gateway officer, but
was ratified locally.
Kroger maintains that this collective bargaining agreement
created an express employment contract between Kroger and
Stanton. This court has stated:
The general rule is that, in order to be found valid and
enforceable, an employment contract must contain four
terms: 1) it must state the place of employment; 2) it
must state the period of employment; 3) it must state
the nature of the services the employee is to render; and
4) it must state the compensation the employee was to
receive.
Majd Pour v. Basic American Medical, Inc., 512 N.E.2d 435,
439 (Ind. Ct. App. 1987); see also Jones v. General Elec.
Co., 87 F.3d 209, 213 (7th Cir. 1996), cert. denied. Kroger
cites little authority for its declaration that the collective
bargaining agreement constituted an employment contract
under this or any other definition of such a term of art.
The primary authority Kroger does rely upon is Bentz v.
Metal Products Co. v. Stephans, 657 N.E.2d 1245 (Ind. Ct.
App. 1995), which, according to Kroger, recognizes “an
employee covered by collective bargaining agreement as
party to an at-will employment contract with company.”
Appellant’s Reply Brief p. 10. Our review of that case does
not lead us to the same conclusion regarding its definitive
statement on collective bargaining agreements. In Bentz, the
court held that employment security provisions in a collective
bargaining agreement did not necessarily conflict with the
employment at-will doctrine and that the former employee
was not barred from pursuing an action for retaliatory
discharge by the fact he was covered by a collective
bargaining agreement. Bzniz, 657 N.E.2d at 1249-50. The
l6a
court noted that the company had relied heavily on
Remington Freight Lines, Inc. v, Larkey, 644 N.E.2d 931,
939-40 (Ind. Ct. App. 1994), in which this court stated that it
recognized “the distinction between employees who are
retained for a definite duration or subject to contract, and
employees whose employment is of indefinite duration, and
may terminate at the will of the employer for any reason.”
However, the Bentz court then stated that “filing a grievance,
the remedy available to [the employee] under the terms of the
[Collective Bargaining] Agreement, is not the same as
obtaining relief under a breach of contract action, which is
the actionable claim of a\ wrongfully discharged employee
under a contract for a definite term.” Jd. at 1249. This case
holds that the existence of a collective bargaining agreement
does not preclude the existence of an employment at-will
relationship between the employer and the employee. It does
not stand for the definitive proposition that a collective
bargaining agreement creates an employment contract.
Other cases have found that a collective bargaining
agreement is not an employment contract for certain
purposes. For example, in Peake v. International Harvester
Co., 489 N.E.2d 102 (Ind, Ct. App. 1986), trans. denied, we
held that a collective bargaining agreement between a former
employee’s union and his former employer was not a
“written contract” within the statute-of-limitation exception
for actions arising from employment agreements not in
writing, and thus, the statute of limitation applied. We
rejected the plaintiff's claim that the terms, conditions, and
privileges of his employment were governed by the written
collective bargaining agreement between his union, the
U.A.W., and International Harvester on the basis that it was
uncontested he was an hourly employee hired under an oral
contract. Jd. at 105.
In so holding, the court relied on IJnternational Union,
U.A.A. & A.I. Workers of America (UAW), AFL-CIO v.
Hoosier Cardinal Corp., 346 F.2d 242 (7th Cir. 1965), aff’d.,
383 U.S. 696, 86 S. Ct. 1107. In that case, the U.A.W. sought
to recover vacation pay for the company’s employees.
ess pia PO INP sk Takk FEIN AR ie UR wel RIS tar ila ca tah LLIN ae vm
17a
Rejecting the union’s argument that a twenty-year statute of
limitation for actions on written contracts rather than
Indiana’s six-year statute regarding accounts and contracts
not in writing applied to those facts, the Seventh Circuit
determined:
[p]laintiff's action in the district court was based upon
the contract of employment between the individual
employees and defendant. There is no evidence or
contention that these employment contracts were ever
reduced to writing. It was for wages due under these
employment contracts that the present action was
brought....
Id. at 245. In affirming, the United States Supreme Court
reasoned that “[p]roof of the breach and of the measure of
damages, however, both depend upon proof of the existence
and duration of separate employment contracts between the
employer and each of the aggrieved employees.” Hoosier
Cardinal, 383 U.S. at 706, 86 S. Ct. at 1113. The Supreme
Court held that although the provision concerning the
company’s payment of vacation pay to its employee-
members was embodied within the provisions of the written
collective bargaining agreement, the determination of which
statute of limitation applied was to be determined by whether
each employee’s contract of hiring was oral or written.
Several federal courts have likewise concluded that a
collective bargaining agreement does not create an
employment contract. Most importantly, the U.S. Supreme
Court has held:
Collective bargaining between employer and the
representatives of a unit, usually a union, results in an
accord as to terms which will govern hiring and work
and pay in that unit. The result is not, however, a
contract of employment except in rare cases; no one has
a job by reason of it and no obligation to any individual
ordinarily comes into existence from it alone. The
negotiations between union and management result in
18a
what often has been called a trade agreement, rather
than in a contract of employment.
JI. Case Co. v. National Labor Rel. Bd., 321 U.S. 332, 334-
35, 64 S. Ct. 576, 579 (1944) (emphasis added). In Young v.
North Drury Lane Productions, Inc., 80 F.3d 203 (7th Cir.
1996), the Seventh Circuit noted that it could not find any
cases where a collective bargaining agreement provided
individual guarantees of employment to named employees
and cited authority stating, “[A] labor agreement is not a
contract of employment; employees are hired separately and
individually, but the tenure and terms of their employment
once in the unit are regulated by the provisions of the
collective bargaining agreement.” Jd. at 206. Similarly, the
Fifth Circuit has stated that “[ujnlike a contract of
employment, ordinarily a collective bargaining agreement
does not create an employer-employee relationship. . . . It
neither obligates any employee to perform work nor requires
the employer to provide work.” Jn re Continental Airlines
Corp., 901 F.2d 1259, 1264 (Sth Cir. 1990), cert. denied, 506
U.S. 828, 113 S. Ct. 87.
Therefore, although collective bargaining agreements can
be considered contracts relating to employment, they do not
necessarily create a “contract of employment” within the
strict meaning of the term. Any contractual relationship
created between Kroger and Stanton by virtue of the Master
Agreement is not the sort of “employment contract” that
would be contemplated by the footnote in McQuade. The
holding and strong policy language of McQuade clearly
reject a corporation’s ability to pierce its veil to protect itself
by asserting that it and its subsidiary are the same employer.
It is evident from the unequivocal language of the opinion
that any potential exception to that rule would have to be
narrowly drawn and would occur only under very limited
circumstances. The contractual relationship created by the
fact that Stanton’s local union combined forces with the
larger Teamsters’ organization to secure better benefits for
Gateway employees is not the sort of relationship for which
our supreme court would contemplate an exception. Rather,
19a
if any exception is suggested by the “express or implied
employment contract” language of the footnote, it would be
limited to cases where there is a direct employment contract
with the pareni corporation, not a collective bargaining
agreement that includes the parent corporation along with
other employers. To hold otherwise would circumvent the
holding and compelling policy arguments articulated in
McQuade because a parent corporation could avoid liability
by piercing the corporate veil any time a collective
bargaining agreement exists.
Kroger also contends that Stanton had a contractual
relationship with it as a participant in the Kroger 401(k) plan
(“K-Plan”). The K-Plan allows participation as follows:
Participating Employers. The participating employers
of the Plan are referred to herein as ‘Employers’ and
are defined as the Company and all of its subsidiaries
and any other affiliated organization which is a member
of the same controlled group of organizations under the
Internal Revenue Code of 1986, as amended (the
‘Code*) as the Company, which is authorized by the
Board of Directors of the Company (‘Board’) to adopt
the Plan and which has adopted the Plan and Trust by
the action of its own Board of Directors. Except as
otherwise indicated, any references to ‘Kroger’ or ‘the
Company’ relating to its role as an Employer under the
Plan shall be deemed to include any other Employers.
Record p. 619. The parties contest the interpretation of this
language. Kroger contends that Gateway had to be a member
of the same “controlled group” as Kroger pursuant to the
Internal Revenue Code, which provides that all employees of
all corporations that are members of a controlled group of
corporations shall be treated as employed by a single
employer. Stanton, on the other hand, maintains that
Gateway was a separate participating employer under the K-
Plan and, therefore, that his participation in the plan was not
evidence that he was a Kroger employee. Stanton’s position
is more consistent with the plain language of the provision.
The provision clearly identifies subsidiaries as “participating
20a
employers” and as separate and distinct entities from those
other “affiliated organizations” that were required to be part
of the “controlled group.” Contrary to Kroger’s argument,
subsidiaries were not required to be part of the “controlled
group.” We cannot conclude that an employment contract
was automatically created between Kroger and Stanton by
the fact that Stanton contributed to the K-Plan when the K-
Plan is designed to allow the participation of other
employers, such as Kroger subsidiaries. Stanton did not
automatically become a Kroger employee simply because his
employer, Gateway, was one of several participating
employers in the K-Plan. Furthermore, even if some sort of
contractual relationship existed between Kroger and Stanton
by virtue of the K-Plan, it is not the sort of direct
employment contract that might warrant an exception to the
McQuade holding.
Our supreme court has expressly prohibited the precise
type of defensive veil-piercing Kroger is attempting to
accomplish in this case. We find that the degree of
interconnectedness between the companies is not sufficient to
justify a defensive piercing here. Similarly, we find no
blanket “exception” to the prohibition in the language of the
footnote for employment contracts. Even if such an exception
may exist under limited circumstances, we find that the
collective bargaining agreement and the K-Plan do not create
a contractual relationship sufficient to bring this case outside
the scope of the McQuade holding. Therefore, we conclude
that the trial court properly denied Kroger’s motion to
dismiss because Stanton’s claim is not barred by the
exclusivity provision of the Act.4
4 Alternatively, Kroger contends that Stanton was employed by
both Kroger and Gateway and/or that Stanton was a borrowed
servant. Typically, we analyze dual employment by applying the
seven factors reiterated in Hale v. Kemp, 579 N.E.2d 63, 67 (Ind.
1991). However, we need not engage in such an analysis in this
case. The cases applying the seven factors generally do not include
those where the dual employment alleged is between a parent
corporation and its subsidiary. Because our supreme court in
McQuade foreclosed the ability of a parent corporation to pierce
2la
Il. Damages
The second challenge raised by Kroger relates to the
damage award. Although Kroger admits that Stanton was
seriously and permanently injured, it maintains that the
award is excessive and that we should either remit it or
remand the case for a new trial on damages. Kroger contends
that the verdict was motivated by passion, prejudice, or
partiality and that the evidence does not support such a large
award.°
Broadly stated, the person injured by the negligence of
another is entitled to reasonable compensation. Kavanagh v.
Butorac, 140 Ind.App. 139, 144, 221 N.E.2d 824, 828
(1966). Courts have said that term means such sum as would
reasonably compensate the victim both for bodily injuries
and for pain and suffering. /d. To that sum is added past,
present, and future expenses reasonably necessary to the
plaintiffs treatment and all financial losses suffered, or to be
suffered, as a result of the inability to engage in his usual
occupation. /d. “Compensation is the stated goal of a court
when measuring damages for personal injuries.” /d. (citation
omitted). The question, as is so frequently raised in personal
injury actions, is how much money reasonably compensates
the Stantons for their injuries and pain and suffering.
A. Standard of Review
This court applies a strict standard when reviewing a jury
verdict containing a damage award claimed to be excessive
or inadequate. Dee v. Becker, 636 N.E.2d 176, 177 (Ind. Ct.
the corporate veil defensively as Kroger is attempting to do here, it
is dispositive on the question of subject-matter jurisdiction in this
case.
> As a side note, Kroger does not contend that the jury was
improperly instructed. In fact, Kroger recognizes the jury was
instructed it could return a “fair” amount for pain and suffering and
disability. Record p. 1880. A jury is presumed to have followed the
court’s instructions. Landis v. Landis, 664 N.E.2d 754, 758 (Ind.
Ct. App. 1996).
OS eee es SaSigs 2) Rin taoR
22a
App. 1994). On appeal, we will consider only the evidence
that supports the award together with the reasonable
inferences therefrom. If there is any evidence to support the
amount of the award, even if it is conflicting, this court will
not reverse.
Traditionally, the jury has been afforded a great deal of
discretion in assessing damage awards. Sears Roebuck & Co.
v. Manuilov, 2001 WL 51680 (Ind. 2001); Dollar Inn vy.
Slone, 695 N.E.2d 185, 190 (Ind. Ct. App. 1998), trans.
denied. This discretion is not limitless, however. This court
will set aside an award of compensatory damages as
impermissibly excessive where it is apparent from a review
of the evidence that the amount of damages is so great it
cannot be explained upon any basis other than passion,
partiality, prejudice, corruption, or some other improper
element. To warrant reversal, the award “must appear to be
so outrageous as to impress the Court at ‘first blush’ with its
enormity.” Kimberlin v. DeLong, 637 N.E.2d 121, 129 (ind.
1994) (quoting New York Cent. R.R. Co. v. Johnson, 234 Ind.
457, 127 N.E.2d 603 (1955)), cert. denied, 516 U.S. 829, 116
S. Ct. 98 (1995). Where the damage award is so outrageous
as to indicate the jury was motivated by passion, prejudice,
partiality, or consideration of improper evidence, we will find
the award excessive. Jd. The jury’s damage award will not be
deemed the result of improper considerations if the size of
the award can be explained on any reasonable ground. Dee,
636 N.E.2d at 178. When the evidence concerning the injury
and damages is conflicting, the jury is in the best position to
assess the damages and the jury’s verdict cannot be said to be
based upon prejudice, passion, partiality, corruption, or on
the consideration of some improper element. Dollar Inn, 695
N.E.2d at 190. Our supreme court has summarized the
standard as follows:
A personal injury award is not excessive where (1) the
award was not based upon jury prejudice, partiality, or
corruption, (2) the jury has not misunderstood or
misapplied the evidence, (3) the award was not based
upon consideration of an improper element such as
BBL AL TL PR SEL BPEL BEREAN ASSES WMATA Tp Bad RMS Al GER LATE e EY EY REPS ASAE ORE ETS
23a
liability insurance, and (4) the award was within the
parameters of the evidence. Under such circumstances,
we will not substitute our judgment for that of the jury
as to reasonable compensation for a plaintiff.
Kimberlin, 637 N.E.2d at 130 (citation omitted).
B. Method of Analysis
With this standard in mind, the parties dispute the method
of evaluating the reasonableness of the verdict. Kroger
contends that a “comparability” analysis is appropriate
whereby we would compare this verdict to similar cases in
Indiana and across the country, particularly those that are
similar with respect to pain and suffering and loss of
consortium. Kroger cites both Indiana cases considering
punitive damage awards and Seventh Circuit cases to support
its position that the comparability approach should be applied
in this case. Stanton counters that Indiana does not use the
comparability method when evaluating compensatory
damages and that each verdict must be evaluated individually
based on the evidence in that particular case.
In examining the question of the proper method of analysis,
we have reviewed the role of the jury in awarding
compensatory damages. The relationship between judge and
jury with respect to compensation is clear. The Seventh
Amendment generally requires that the jury determine
compensatory damages. Supreme-Court doctrine, historical
practices prior to the adoption of the Seventh Amendment,
and functional considerations all indicate that determination
of compensation lies at the heart of the jury’s constitutional
province. See Colleen P. Murphy, Determining
Compensation: The Tension Between Legislative Power and
Jury Authority, 74 Tex. L. Rev. 345 (1995). Moreover, once
the jury makes a decision about compensation, the Seventh
Amendment constrains the ability of the judge to alter the
award. .
The role of the jury in awarding compensatory damages is
clear. However, numerous practical problems arise when a
ete E ae Pa Se Rt te ae
24a
jury is actually faced with calculating and awarding damages,
particularly in areas where the damages are not easily
quantified. Damages for pain and suffering are one such
problematic component of compensatory damages. The’
process by which pain and suffering damages are awarded in
the United States has been aptly called “procedurally simple
but analytically impenetrable.” David W. Leebron, Final
Moments: Damages for Pain and Suffering Prior to Death,
64 N.Y.U. L. Rev. 256, 265 (1989). One author described the
problem this way:
An inescapable reality of the pain and suffering
conundrum is that tort law requires the monetization of
a ‘product’ for which there is no market and, therefore,
no market price. This largely explains the lamented fact
that the jurors who must undertake the monetization are
given no ‘absolute’ standard by which to do it. There is
none to give them. Each juror must create or bring their
own standard to the courtroom.
Oscar G. Chase, Helping Jurors Determine Pain and
Suffering Awards, 23 Hofstra L. Rev. 763, 765 (1995).
Despite the difficulties these issues pose, Indiana courts
have found that awards for pain, suffering, fright,
humiliation, and mental anguish are particularly within the
province of the jury because they involve the weighing of
evidence and credibility of witnesses. See, e.g., Landis, 664
N.E.2d at 757. “Physical and mental pain are, by their very
nature, not readily susceptible to quantification, and,
therefore, the jury is given very wide latitude in determining
these kinds of damages.” Jd. (quoting Groves v. First Nat'l
Bank of Valparaiso, 518 N.E.2d 819, 831 (Ind. Ct. App.
1988), trans. denied). Damages for pain and suffering are of
necessity a jury question that may not be reduced to fixed
rules and mathematical precision. Dee, 636 N.E.2d at 178.
Where the damages cannot be calculated with mathematical
certainty, the jury has liberal discretion in assessing damages.
Id. Our inability to look into the minds of jurors and
determine how they computed an award is, to a large extent,
the reason behind the rule that a verdict will be upheld if the
Cane ee eee eee
25a
award falls within the bounds of the evidence.® Griffin v.
Acker, 659 N.E.2d 659, 664 (Ind. Ct. App. 1995), trans.
denied.
These principles, while easily stated, are not easily applied.
The appropriate degree of oversight by a court into the
decision-making process of the jury, especially in an area
such as pain and suffering, is not an easy thing to determine.
Affording a jury the discretion it is due while at the same
time making sure the verdict is within the bounds of the
evidence can sometimes be a difficult balance to strike.
Kroger urges us to apply a comparability analysis to this
verdict to assist in this process. In essence, Kroger maintains
that because the verdict in this case is coiisiderably larger
than those in purportedly similar cases, it could not be found
to be reasonably within the bounds of the evidence.
Our review of Indiana case law leads us to conclude that
Indiana has not heretofore adopted the comparability analysis
for evaluating compensatory damage awards. One Indiana
case mentioned other verdicts in evaluating the propriety of a
compensatory damage award. See Groves, 518 N.E.2d at
819. That case was a quiet title action in which an award of
$100,000 was found to be excessive on the basis of an
absence of evidence of any physical or psychological
manifestation of mental anguish. In reaching that conclusion,
the court considered a Seventh Circuit case, a Northern
District of Indiana case, and a Louisiana appellate case for
6 For example, this court has stated:
We must confess we review the damages for emotional
distress with some reluctance. We were not, after all, present
to review the demeanor of the witnesses as they recounted
~ the events which occurred here and the emotional trauma
which the events induced; we are confined to review of a
record which, no matter how accurate and detailed, can
never convey the emotions and demeanor of the witnesses.
Still, it is our duty to insure that the jury acted properly in
assessing damages, and we may not shrink from this duty.
Groves, 518 N.E.2d at 831.
26a
purposes of determining the extent of evidence required to
support mental anguish damages. As such, the Groves court
looked to other cases for guidance in evaluating a particular
type of damages, those being for mental anguish in the
absence of any physical manifestation of the anguish.
The vast majority of Indiana cases simply consider whether
the verdict was reasonable in light of the evidence presented
at trial. Indeed, some cases have specifically stated that each
case should be considered on its own evidence.’ For
example, this court has stated that “[e]ach case will stand and
fall on its own merit when an award is challenged as
excessive, and an award will not be disturbed unless it is
manifestly excessive.” Southern Indiana Gas & Elec. Co. v.
Scoles, 435 N.E.2d 287, 294 (Ind. Ct. App. 1982); see also
Levin v. Shuckman, 150 Ind.App. 254, 276 N.E.2d 208
(1971).
In addition, in State v. Thompson, 179 Ind.App. 227, 385
N.E.2d 198 (1979), the State’s contention that the damages
were excessive and that the jury was motivated by prejudice,
passion, partiality, or corruption was based in part on the
premise that it was the largest personal injury verdict entered
to date in Indiana. In rejecting the State’s argument, this
court explained the “correct way to determine whether a
verdict is excessive” was by first reconsidering the evidence
introduced at trial. Jd. at 251, 385 N.E.2d at 214. The court
included a passage from State v. Daley, 153 Ind.App. 330,
287 N.E.2d 552, 556 (1972) (quoting Kavanagh v. Butorac,
140 Ind.App. 139, 221 N.E.2d 824 (1966)), which stated:
For a formula then, our common law sets only the
general guidelines for compensating the victim, each in
its own way to be considered by the trier of facts and
7 This statement also holds true in at least one jurisdiction where
a comparability analysis has been used. See Wheat v. United
States, 860 F.2d 1256, 1259-60 (5th Cir. 1988) (stating that
“damage awards in analogous cases provide an objective frame of
reference, but they do not control our assessment of individual
circumstances”).
27a
| weighed to determine what the total compensation will ©
| be. Because of the personal nature of each case and
) since the decision is unique to the particular set of facts
our courts have said the trier of facts is to be given™
‘sound discretion,’ and ‘liberal discretion’ where
damages cannot be defined and calculated with
mathematical certainty or by any exact standard.
Id. at 251, 385 N.E.2d at 214.
Furthermore, in Kavanagh, we stated:
By nature, injuries personal to the individual are
incapable of a more definite rule for measurement of
damages. Each action is unique and it must be so
treated and deiermined on the facts peculiar to that
matter. Because our law seeks to individualize the
solution to the problem of properly compensating the
victim of torts, no overall expedient applies in every
case.
Kavanagh, 140 Ind.App. at 145, 221 N.E.2d at 828. We
noted that the appellant had documented numerous cases to
show that the judgment in question far exceeded what had
been allowed in Indiana and elsewhere for what it contended
were comparable injuries. Yet, we concluded that “[w]e are
not able to say the loss of an eye in one case is worth the
same or just about the same in another case. If such a system
is to be desired (and we express no sentiment for such idea) it
must come from legislation. Our common law requires each
case to rest finally on its own merits.” Jd. In reaching that
conclusion, we called attention to language of the Supreme
Court of Louisiana:
[C}ases relied upon may be similar in that each of them
involves a similar injury such as a broken arm, the loss
of an eye or eyes, or the loss of some member of the
body. Thereafter, however, the similarity ceases for
each case is different, and the adequacy or inadequacy
of the award should be determined by the facts and
circumstances peculiar to the case under consideration.
28a
The primary purpose of the judge or the jury in fixing
the award in a personal injury case is to adequately
compensate the injured person for his injury under the
facts shown to exist in his case.
Id. at 146, 221 N.E.2d at 828 (quoting Gaspard v. LeMaire,
245 La. 239, 158 So.2d 149, 158 (1963)). After commenting
that the determination of the amount was not our decision,
we cited long-standing Indiana Supreme Court precedent
stating, ‘“‘[t]hat the jury assessed higher damages than we
would have done, is no reason why we should set aside the
verdict.’” Jd. at 146, 221 N.E.2d at 829 (quoting Chenowith
v. Hicks, 5 Ind. 224, 226 (1854)).
Our supreme court recently confirmed the principle that the
jury has broad discretion in determining damage awards.
Sears Roebuck, 2001 WL 51680, at *7. The court noted that
damages are particularly a jury determination and that
appellate courts will not substitute their idea of a proper
damage award for that of the jury. Jd. The court reiterated:
Our inability to actually look into the minds of the
jurors is, to a large extent, the reason behind the rule
that we will not reverse if the award falls within the
bounds of the evidence. We cannot invade the province
of the jury to decide the facts and cannot reverse unless
_ the verdict is clearly erroneous.
Id. (quoting Annee v. State, 256 Ind. 686, 271 N.E.2d 711,
713 (1971)). ;
It is clear that Indiana courts have not previously adopted a
comparability analysis for evaluating compensatory damage
claims. More importantly, they have historically expressed
disfavor in evaluating cases other than on their own merits.
That being said, however, the obvious concern raised on the
face of this verdict is the great disparity between it and other
compensatory damage awards in Indiana cases.
We recognize that variability among awards is a problem
primarily because it undermines the legal system’s claim that
like cases will be treated alike; the promise of equal justice
29a
under law is an important justification for our legal system.
Criticisms of variability include the contention that it makes
it harder to predict verdicts and, in turn, to settle cases,
thereby adding unnecessary transaction costs to the tort
system and delaying payment to plaintiffs. See David Baldus
et al., Improving Judicial Oversight of Jury Damages
Assessments: A Proposal for the Comparative
Additur/Remittitur Review of Awards for Nonpecuniary
Harms and Punitive Damages, 80 Iowa L. Rev. 1109 (1995);
Judyth W. Pendell, Enhancing Juror Effectiveness: An
Insurer’s Perspective, 52 Law & Contemp. Probs. 311
(1989). Furthermore, we acknowledge that inadequate notice
of the limits of potential liability may impair planning for
risk management, resulting in the overinvestment in liability
avoidance, suppression of innovation, and higher insurance
costs.
A certain level of inconsistency, however, is inherent in the
jury system and is unlikely to be eliminated because the
discretion exercised by juries supports basic democratic
values recognized in the Seventh Amendment Hight to a jury
trial and similar provisions in most state constitutions. See
Baldus, 80 Iowa L. Rev. at 1118. As that article points out,
“moral diversity has been preferred to uniform outcomes
imposed by rulemaking elites” and “some inconsistent
awards may result not from the role of the jury, but rather
may simply reflect superior lawyering purchased in a free
market, or the ‘luck of the draw’ that is inherent in all social
institutions.” Jd.
As one author observed, “there is . . . no standard man, no
reasonable man afoot in the law of damages.” Kalven, The
Jury, the Law, and the Personal Injury Damage Award, 19
Ohio St. L.J. 158, 160 (1958). It may be extremely difficult
to determine an adequate and appropriate amount of money
to compensate an injured person for feelings of pain and
suffering, or for lost biological functioning, professional
standing, or business opportunity. Identical injuries may have
radically different effects on different plaintiffs. Because we
lack the ability to attach price tags to given functions and
30a
talents, the translation of social wrongs into dollars and cents
is problematic at best.
If a comparability analysis is applied to reduce awards
exceeding the range of purportedly similar cases, the effects
are far-reaching. Because a comparability analysis effectively
places a “cap” on the jury’s award regardless of the evidence,
it can be considered to be second-guessing jury decisions in a
manner not permitted by the Seventh Amendment. -Without
express statutory authority, no decisionmaker should have the
power to alter a jury’s award without regard for the evidence.
If a jury’s award can be subject to being set aside for
exceeding an applicable range, the charge of the jury to fully
compensate the plaintiff would no longer be paramount. The
jury’s decision on the amount of compensation would be
replaced with a figure within the “comparable range.”
Although the jury would still find facts and calculate an
amount that would compensate the plaintiff, it is
disingenuous to claim that restricting the award after the fact
by comparing it to other cases would not change the
functioning of the jury by effectively rendering it less of a
final decisionmaker and more of an advisory jury. The
comparability analysis renders illusory the jury’s discretion
to compensate a victim.
This kind of encroachment on the traditional exercise of
jury discretion is of particular concern when an appellate
court, which has not heard the evidence in the case, conducts
a de novo review that gives little or no deference to the ruling
of the trial court or the verdict of the jury. Given the
uncertainty that accompanies the assessment of
compensatory damages not fixed by legal rule, an outright
adjustment of the jury’s award by the judge would simply be
a substitution of the judge’s opinion for that of the jury. The
right to jury determinatior of compensatory damages would
become a hollow guarantee. This concern is perhaps most
salient in the context of judicial review of jury awards for
noneconomic damages because a jury, applying a subjective
standard of measurement, conceivably has a better sense than
a judge in determining an appropriate amount of
| PIES at
}
3la
compensation. A judge’s review of a jury award would
diminish the significance of the facts of the case that
underlay that award.
Furthermore, because all cases are unique, the search for
comparable or similar cases is inherently flawed. The nature
and extent of pain and suffering are seldom, if ever, alike in
any two cases. These differences in the details of the harms
and the circumstances of plaintiffs inevitably make a
comparison of the verdicts difficult if not impossible. The
inherently subjective basis of awards for pain and suffering
confounds the measurement and quantification required for
an accurate comparison. There simply are no standards by
which to measure the effects of injuries or to convert them
into dollar amounts. Similarly, the data currently available to
many courts is inadequate to support a viable system of
comparative review. Another problem is that the reported
decisions used as comparison cases are likely
unrepresentative of all damages awards approved by courts
or agreed to by parties in comparable cases. The reported
facts in these cases bearing on the level of nonpecuniary
harm are often sparse or nonexistent. The comparison of
cases can be easily manipulated, particularly when the factual
bases for the awards in those cases are frequently not
reported in great detail. Each case is normally evaluated in
terms of only a limited number of characteristics. Because of
8 This case perfectly illustrates our concern with comparing
damage awards to other cases. If this case were written in a manner
similar to other reported personal injury cases, it would likely
merely contain a summary of Stanton’s injuries, probably
consisting of something to the effect that he suffered severe
injuries including a crushed pelvis, underwent multiple surgeries,
and had several complications. The opinion would indicate that he
is permanently disabled and will continue to have pain and
complications from his condition. However, without a more
thorough description of the injuries, the complications, the effects
of the medical problems on his life, and the profound devastation
the accident has caused him and his family, which we undertake to
provide later, it would be impossible for any other case to be
compared accurately to this one.
32a
the uncertainty and variability associated with pain,
suffering, and loss of enjoyment of life, comparing cases on
that basis may have even less validity than comparing for
other types of damages.
We recognize that there is a public policy concern with
respect to seemingly excessive jury verdicts® and believe that
verdicts not supported by the evidence must be set aside or
reduced as violative of the law. In so doing, some type of
comparative analysis may, under certain circumstances, be
necessary to evaluate particular types of damages or to
determine whether the size of a particular verdict indicates
jury passion or prejudice. Although it may be tempting to
engage in such a comparative analysis to aid us in the
difficult task of evaluating such a large award as is at issue in
this case, to do so would be a significant departure from
Indiana’s historical regard of the uniqueness of every tort
claim and the belief that compensatory damage assessments
should be individualized and within the discretion of the
factfinder. After reviewing all of the testimony and evidence
presented to the jury, it is clear to us that such a departure is
not necessary here.
C. Evidence in this Case
The record is replete with evidence that Stanton was an
active person before the accident, heavily involved in his
community and outdoor sports. He was at various times a
dog catcher and part-time police officer. He coached Little
League and was very active in the local Men’s Club. He
coached for one of his daughters’ softball teams every year,
9 Interestingly, a recently released U.S. Department of Justice
survey “basically nullifies the long-espoused notion that lay people
layer on unnecessary damages in civil litigation cases.” Denise G.
Callahan, Judges Just As Generous As Juries, Indiana Lawyer, Jan.
17-30, 2001, at 1. The survey studied 45 of the country’s largest
counties, including Marion County, Indiana, and concluded that
judges favored plaintiffs more often than juries in tort cases and
that the judges awarded slightly higher damages than juries
overall. /d. at 27.
in oa Se
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Peis a hl seein ed ee ee oe eee) *
33a
including traveling teams and All Stars. He took care of the
ball diamonds for the community.
Stanton remembers being hit by the tractor:
Well, on the original hit, I felt my pelvis break. I say
‘my pelvis’; I really don’t know what bones it was. And
then it was like a pause and it started back again. And |
could feel it crunching, and then there was another
pause, and it started back again. I could feel my ribs
Start breaking. . . . I felt it hit me, and then I felt the
bones start breaking.
Record p. 3616. An eyewitness described it this way:
When I saw him go up underneath the trailer, I just
knew he was cut half in two. I didn’t think he’d ever
live over this ordeal. And then when [Ritter] pushed
him up underneath there, [Ritter] had to see because he
snatched him right back out from underneath it.
***e *& &
[Ritter] put it in forward gear and jerked him back out
from underneath the trailer.
Record p. 2715.
The initial assessment of Stanton in the emergency room
revealed that he suffered an “open book” pelvic fracture with
vertical shearing, hemorrhagic shock, fractured ribs,
hemopneumothorax (blood in his chest), internal bleeding
from the pelvic fracture, and a lung contusion. He was later
diagnosed with a large scrotal hematoma, swelling of the
testicles, swelling of the penis with infection, and necrosis
secondary to demodialysis. He developed a foot drop and a
fungal infection in the area of the injury. He developed
effusion (fluid on the lungs), which caused respiratory
distress syndrome and required treatment with a ventilator.
He developed several other complications.
Anna, one of the Stantons’ daughters, testified that Alfie
cried the whole way to Indianapolis from Illinois when they
q
;
34a
found out about the accident. She described her mother as
being in shock and devastated, “rushing back and forth,
saying we had to go get daddy.” Record p. 3087. Alfie
testified that on the day of the accident, “They told us that
there was no hope for him, and it would be amazing if he
made it through the night.” Record p. 3452. Another one of
the Stantons’ daughters, Lynn, remembered the doctors’
prognosis: .
They—the doctors flat said he won’t make it most
likely through the night. He said it will be minute by
minute. You need to stay here throughout the night,
because at any time he will go. We don’t expect his
chances—he doesn’t really have any chances, is what
they pretty much said.
Record p. 3108. Lynn stated that when she first saw her
father:
[I]t didn’t look like him. He was about three times as
big as he normally was. And the doctors told us, you
won’t recognize him, and we thought, yeah, we’ll
recognize him. It’s your dad, you know. But he was
really swollen. They said that was from all the blood.
Record p. 3108. Their other daughter, Christy, testified that
“the just looked horrible. I just, you know, started crying. And
then my mom, you know, she was freaking out. She was, you
know, patting his head, Jerry, I love you, you know, you’re
going to be okay, you know.” Record p. 3027.
It was approximately a month before he was stable. The
record contains evidence that Stanton had to be resuscitated
numerous times. In fact, the hospital staff kept a “crash cart”
right outside his hospital room for several days. Lynn
remembered one life-threatening event:
One of his surgeries—actually he had had a 14-hour
surgery, and they were taking him up in the elevator,
and they had actually got him stuck in the elevator and
he had collapsed.
35a
And I was watching the nurse literally get on top of
my dad in the elevator, because the doors were pried
open, and he was half stuck in and half stuck out, and
was on top of him trying to revive him. He had actually
died in the elevator.
Record p. 3110.
Stanton was kept in an induced coma for considerable
period of time. Alfie testified that when he woke up, “he
couldn’t talk. That was painful, because he wanted to
communicate with us, but he couldn’t because he had the
trach in or the tube in his throat. And you could tell by just
looking at him that he was so scared.” Record p. 3501.
Dr. Thomas Ambrose, one of the orthopedic surgeons who
treated Stanton, summarized Stanton’s pelvic injuries as
follows:
Mr. Stanton sustained a crushing injury to the pelvis.
This is a compression of the pelvic bone itself with
multiple fractures through both iliac wings. The iliac
wings are the bone that support the hip joint. In fact, the
sockets of the hip joint were on both sides fragmented
into multiple pieces.
Record p. 2962. He further described the injury:
In these types of fracture patterns and this severity of
fracture, the chances of mortality or death from this
type of injury is about 50 percent. The fact that he
survived was probably—he was on the window of
being crushed to death, and the fracture patterns were
some of the most severe that I have seen in ten years of
practice.
Record p. 2965. In addition to the fractures, Stanton suffered
massive soft tissue injuries, which Dr. Ambrose described as
“massive crushing of both the muscles around the bone, as
well as avulsion or pulling away of the skin from the
underlying deep fascia or covering of the muscles. This was,
indeed, a significant factor in his overall injury index.”
36a
Record p. 2966. Stanton also sustained traumatic injury to the
nerves in the pelvic region and blood vessels in that area.
Initially, 2 ten-hour surgery was performed. During that
surgery, the doctors were successful in “putting the pieces
back together” of portions of the left pelvic bones in a near
anatomic position using plates and screws. Record p. 2969.
Before they were able to conduct another surgery to repair
the right side, however, Stanton developed an infection.
Because of the tremendous amount of muscle damage at the
time of the injury, “countless” surgeries were subsequently
necessary not only to clear infection but also to remove dead
muscle, dead skin, and dead subcutaneous fat, as well as dead
bone fragments that were involved in the infection. Record
pp. 2971, 2979. The massive infection Stanton suffered was
life-threatening and caused systemic toxic shock, which
resulted in complications with various organs and caused
renal failure.
Dr. Ambrose explained that the injury to the hip socket is
“one of the most severe injuries that a human can sustain.”
Record p. 2983. He explained that the possibility of
developing posttraumatic arthritis was substantial with a
reconstruction of the hip joint, but virtually all patients who
suffer displacement of the socket and have no surgery will
suffer from the arthritis. He testified that although one of the
goals of surgery is to repair the bone so the patient would
have future use of it, another is to reduce the risks of arthritis.
He explained that because of the massive infection, Stanton’s
prognosis with respect to future functional capability was not
promising:
As a result, the chances of going on to resume virtually
normal function were diminished practically to zero.
The patient lost a tremendous amount of muscle around
the hip joint, so he wouldn’t have a normal gait pattern.
He also lost a fair amount of bone... .
*** % &
37a
He was not a candidate for a hip replacement, in my
opinion, because of the involvement of the bone around
the hip socket with infection.
We already discussed the fact that you can never be
completely sure of clearing a bone infection; and that
another surgical insult to that bone may reactivate
infection.
Record p. 2985. Explaining his ability to testify about
Stanton without referring to his notes, Dr. Ambrose stated:
Everyone—every surgeon in their career has several
patients that they—that are standouts, if you will, that
you remember for your entire career and into
retirement.
And there are about half a dozen, all of them having
severe crushing-type injuries to the pelvis, that are
readily recalled. And Mr. Stanton is one of those.
Again, the magnitude of the injury was so severe, and
his complications were so severe, and we cared for him
on a very intensive basis over a period of several
months. You’re absolutely right; I can recall this patient
as if several of these episodes were just a few weeks
ago.
Record p. 3002.
As a result of the infection and the countless surgeries to
remove dead tissue and bone, Stanton developed a very large
open wound near one of his hips. The wound was open to the
bone and required dressing changes several times a day to
remove the drainage caused by the infection. Several
witnesses testified that Alfie changed Stanton’s dressings for
the wound. Alfie testified that it hurt her to cause her
husband pain when she changed his dressings. She stated that
she generally changed the dressings once a day, but “iJf it
was real mucky, smelly, I might have to do it twice a day or
three times a day.” Record p. 3460.
a DOTS Ra Bi A tsk are ad
38a
Several people testified that the dressing changing was a
tedious and painful process, complicated by the foul odor and
debris coming from the wound. Anna stated, “they would use
three packages of the coverall and a Q-tip, and they would
just have to fill the hole in. And when you pulled it out, it
would be bloody and it was infected, so it was a yellow. And
the smell was just hard to describe.” Record p. 3091. Christy
described it as “nasty. There was just, you know, stuff
coming out of it, a foul odor, and, I mean, [Alfie] wouldn’t
think twice but to take care of him.” Record p. 3038.
One of Stanton’s nurses was an expert in wound care at the
Rehabilitation Hospital. She stated that it was “for me the
worst wound I had ever seen.” Record p. 3228. She described
how painful the dressing changes were for Stanton because
he could feel them and explained that they dressed the
smaller pressure sores before treating the large wound:
As you came back up his body and to the left side.
We turned him over on the right side—now, the whole
dressing change was very painful, and we gave him
medicine through his IV at that time. Yes, I believe it
was through his IV, because any changes in positioning
were very uncomfortable.
We turned him to his right side to get access to the
left, and with that you also noticed that there is multiple
skin areas and grafts along his flank in front.
As we pulled the dressing off, there was another nurse
in there with me, and I don’t—it was very foul
smelling. And you tri.d to keep your dignity when
you’re with a patient and not get sick or anything like
that, but I know that just the smell of the drainage was
pretty potent.
And we pulled the dressing off, and we were gowned
and gloved, and just kept pulling and pulling and
pulling dressing out. And you just-—it had pieces of
flesh on it, as well as red and yellow drainage coming
out of this wound.
39a
And part of the assessment, when you bring a patient
in, is to measure their wound. And his was so deep, I
could almost put my fist right into the area of the
wound and reach around. And when I did, I did touch
bone. And that was something that was not a very good
experience for me or him, I’m sure. . . .
** kK &
.. . The pictures don’t depict the depth of the wound,
nor the drainage or odor that did occur with the wound
either.
Record pp. 3226-27. She further testified that the antibiotics
he was taking caused Stanton to have diarrhea several times a
day, which aggravated their attempts to keep the wound clean
because he could not use a bedpan.
In addition to the injuries Stanton suffered to his pelvic
region, he also lost vision in one of hi’ eyes as a result of the
trauma. With this condition, the eye typically becomes
unsightly and painful as it begins to deteriorate, so Stanton
may need surgery to remove the eye in the future. Because
only one eye remains, the risk of total blindness is higher for
him if something happens to his “good” eye.
The Stantons’ daughters, as well as the doctors, testified
that Alfie rarely left Stanton’s side during his entire seven-
month hospital stay. She slept on an air mattress in the
intensive care unit and later Slept in a chair. She left only to
bring food from the cafeteria and to shower. Lynn
remembered her mother saying, “[A]s long as he’s here, I’m
here.” Record p. 3110. Their daughters stayed for extended
periods too, particularly Christy, who stayed for
approximately two months at the hospital away from her
family. Anna, whose son was eight years old at the time of
trial, stated that she took a thirty-day leave of absence from
her job immediately following the accident and that later she
worked four ten-hour days per week in Illinois so she could
spend three days in Indianapolis to assist her parents while
Stanton remained in the hospital.
40a
At one point during his recovery, Stanton had breathing
and feeding tubes. He was receiving daily dialysis because
his kidneys had failed. When medical personnel had to
reinsert the breathing tube because he needed surgery, Lynn
stated, “he didn’t want it. He fought it, you know. He would
squeeze our hand and shake his head no. And he knew that,
you know, they were going to do it, but he didn’t want it.”
Record p. 3113.
It took four to six weeks of physical therapy for Stanton to
be able to go from a lying position to a sitting position
because he had a difficult time “tolerating” it. Record p.
3321.
Alfie testified that Stanton was a modest person and that
she bathed him so the nurses would not have to. She stated
that the helplessness of his condition bothered him
“fb]ecause he was a proud man. He wasn’t letting, you know,
somebody else take care of him. He always was the one who
took care of everybody else, and he wasn’t able to do that.”
Record p. 3453.
Before leaving the intensive care unit of the hospital, |
Stanton vowed he would return one year later and walk onto
the ward. Anna described the one-year anniversary this way:
There was a set of double doors at the front of the
entrance, and he wheeled up to the doors. And he was
probably eight steps from the nurse’s desk, and he
walked in. And they all gathered around him, and they
all clapped because they didn’t believe that he would
actually walk back there.
Record p. 3093. Although he was able to walk short
distances with a walker at one point, it became too painful for
him to do so after another bone infection and a series of
surgeries in 1997. At that time, the top portion of the femur
(the ball) and other bone from his hip was removed. As a
result, one of his legs is several inches shorter than the other
one. One doctor described walking after that surgery as
4la
having two rough bones rub against each other because of the
absence of ligament to cushion the bones.
In addition to the surgeries Stanton underwent on his hips,
he also had surgery for a penile implant. The injuries he
sustained in the crash prevented him from functioning
normally, and the doctors believed an implant would enable
him to engage in sexual relations again with Alfie. Despite
his increased risk of infection due to the complications he
suffered from his other surgeries, Stanton elected to proceed
with the implant. In all likelihood, Stanton will need to
undergo additional surgery to replace the implant several
years from now. Alfie testified that she and Stanton had a
very sexual relationship before the accident. She testified that
their physical relationship was important to both of them.
She stated that unfortunately, although Stanton had a penile ~
implant inserted, they have been unable to successfully have
intercourse because they have not been able to find a position
that is comfortable for Stanton.
Stanton rarely leaves his home. The evidence was clear that
he suffers tremendous pain if he sits more than two hours at a
time or if he overexerts himself. He explained his neck pain
as follows:
That’s where I had one of those big bed sores, and all
the meat was gone down to the bone just about. And
what I would say it is, is the muscles are detached there,
and they will kink up and just cause like a charley horse
in the side of my neck.
Record p. 3670. If there is dampness in the air, he is in
constant pain. In addition, he is not able to maneuver his
large wheelchair into many locations, including several
rooms of his house, his neighbors’ houses, and even the
bedroom of the hotel he stayed at during the trial. He is
sometimes required to use freight elevators when he is out in
public places.
The vocational rehabilitation counselor testified that after
her evaluation and testing of Stanton, she concluded he is not
With a nS ek tao
42a
suitable for employment because of the “totality of the
situation . . . It’s being in a wheelchair, no sight of the right
eye, not being able to stand, not being able to sit for long
periods of time, limitations that exceed any requirements of
elemental jobs.” Record p. 3269.
Stanton has a life expectancy of 25.4 years. Record p.
3677. When asked what his expectations are and what he
wanted to do in the future, Stanton responded: “I’d like to be
able to get my life back together where I got my own
choices, where I could, you know, make my life count, have
an impact on my family, the community.” Record p. 3633. In
responding to the question of what the worst thing was about
his ordeal, Stanton stated, “Watching what it’s done to my
wife.” Record p. 3633.
One of Stanton’s friends summarized his future this way:
I think, and I'll say this since he isn’t here, his toughest
days are coming. He’s got little grandchildren that’s
going to grow up, and it’s going to be very hard for him
not to be able to do the things that he has done with his
children. I can just—I think he’s going to have a very
difficult time on that.
Record p. 3306. Christy testified that her father lives day to
day because of the pain and that he “doesn’t know—you
can’t make plans with him because he doesn’t know if he’s
going to be able to get up that day. There is days where he’s
just hurting realy bad, and he can’t get up at all.” Record p.
3041.
The devastating infection Stanton suffered was
osteomyelitis, a bone infection, which is nearly impossible to
treat completely and continues to be harbored in the bone for
years, if not the remainder of the patient’s life. There always
remains a risk that the infection could be rekindled at some
point in the future, particularly with surgery.
Alfie stated that in spite of everything he has been through,
her husband is still pleasant to be around. She stated, “I mean
my husband hasn’t changed in that, because like I said, he’s
43a
got his family. He’s got me, you know. He’s got friends, you
know. He doesn’t—he’s really still the same person except
for he’s in the chair and he’s blind, you know.” Record p.
3492. However, one of the Stantons’ neighbors described
how, in his view, Stanton has changed as a result of the
accident:
Well, he feels that he has lost the ability to take care
and to protect his family, and that was always a very
big issue with Jerry. And he’s very limited in what he
can do. And I think that bothers him because he was an
independent person and did things for himself.
And an active person. I know he misses his hunting
and his fishing. I mean, what do you want to say? He’s
changed.
Record pp. 3012-13.
Before the accident Alfie and Stanton purchased a motor
home and planned to travel upon Stanton’s retirement, which
they had anticipated in January 1999. At the time of trial, the
motor home was parked in the backyard at one of their
daughters’ houses. Annie testified that her son’s father is not
involved in his life and that Stanton was disappointed that he
could no longer do the things that a father would for the
child, including helping with Cub Scouts, fishing, and
playing ball.
During his overall stay in the hospital, he received
approximately 150 units of blood, which represents his total
blood volume many-times over. He underwent more than
fifty surgeries and multiple episodes of resuscitation. He
spent almost 300 days in hospitals.
In addition to the detailed, emotional testimony, Stanton
offered pictures and videotapes into evidence. The pictures
demonstrated several things, including Alfie helping him up,
the rooms of their house, and Stanton’s inability get into
several primary rooms in their house. The pictures also
documented the progress of his open wound and depicted it
and the other scars in graphic detail.
44a
It is clear from the amount of the verdict that the extensive
testimony and evidence had a profound effect on the jury.
We conclude that it adequately supports the amount of
damages awarded.'° In so doing, we reject Kroger’s claims
that comments by Stanton’s attorney during closing
arguments “attempted to engender ill-will and a desire in the
jury to punish Kroger” despite the fact that Stanton had
dismissed his punitive damages claim. Appellant’s Brief p.
27. Among the statements alleged to have been intended to
inflame passion against Kroger were comments relating to
Kroger’s being the reason the case was at trial, to the jury’s
being the only thing that could stop Kroger from running
over Stanton a second time, to Kroger’s wanting to leave
Stanton on his own with no remedy, and to Stanton’s
forgiveness toward Ritter for his “terrible mistake.” Record
p. 3984. Kroger claims there “is no question that the closing
argument was a direct invitation to the jury to ignore the law
and punish Kroger or to make an award based largely on
sympathy.” Appellant’s Brief p. 28.
10 With respect to Kroger’s challenge to the evidence presented for
future medical expenses, the jury completed a summary form, so
there is no way to know how much of the total award, if any, the
jury allocated for future medical expenses. However, we conclude
that the evidence is sufficient to support a significant award for
future expenses based on the testimony regarding the treatment he
will likely face in the future for his hip, his penile implant, his eye,
and further complications caused by his bone infection. On appeal,
any uncertainty as to the exact amount of damages is resolved
against the wrongdoer. City of Fort Wayne v. Capehart-
Farnsworth Corp., 127 Ind.App. 412, 424, 142 N.E.2d 442, 448
(1957) (citations omitted), recites the rule:
It was the tortious act of appellant which created this
situation and all doubts and uncertainties as to the proof of
the exact measure of damages must be resolved against it.
‘... [A]ny other rule would enable the wrongdoer to profit
by his wrongdoing at the expense of his victim . . . The most
elementary conceptions of justice and public policy require
that the wrongdoer shall bear the risk of the uncertainty
which his own wrong has created. .. .’
45a
The first problem with this argument is Kroger’s failure to
object to any of the statements during trial. Indiana law is
clear that to preserve statements of counsel for appellate
review, the opposing party must promptly interpose and state
its objection to the language or argument and request the
court io so instruct the jury as to counteract any harmful
effect of such language or argument, and if granted and such
instructions were not sufficient to cure the error, follow such
action by motion to have the submission set aside. Dayton
Walther Corp. v. Caldwell, 273 Ind. 191, 402 N.E.2d 1252
(1980) (finding the issue waived and quoting Gamble v.
Lewis, 227 Ind. 455, 85 N.E.2d 629, 635 (1949) as stating,
“[w]e cannot permit litigants to gamble on the possibility of a
favorable verdict, and, after an adverse verdict has been
returned, set it aside on appeal when the losing parties failed
to move that the submission be set aside when the alieged
error occurred.”). If the statements were as objectionable as
Kroger now claims, then certainly it had an obligation to
object and request an admonishment during trial.
The second problem with Kroger’s claim is that there is no
way to determine whether these statements alone formed the
basis of the verdict against Kroger. This court will reverse a
judgment due to improper argument of counsel only where it
appears from the entire record that the remarks from counsel
were “in all probability, the basis for securing an incorrect
verdict.” Chaiken v. Eldon Emmor & Co., 597 N.E.2d 337,
345 (Ind. Ct. App. 1992), trans. denied. The record contains
extensive evidence, including graphic photographs, of
Stanton’s massive, permanent injuries that have prevented
any sort of normal life for him and his family and cause him
constant pain. In addition, Kroger defended itself at trial on
the basis that Stanton was totally at fault for the accident. In
fact, Kroger’s expert insisted that Ritter was not at all
responsible for the accident and even agreed with Stanton’s
counsel’s characterization of Ritter as being “innocent as a
newborn babe that wasn’t even on the scene.” Record p.
3870. In light of the testimony of Kroger’s own supervisor,
whose investigation of the accident resulted in the conclusion
that Ritter was at fault for the accident and that Stanton was
46a
artially at fault, Kroger’s continued insistence that Ritter
fig At TAUIL, KroRer & veinreident.om hay |
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Sraen bere a HHMTanle MneHi al reepanehility fae the
accident. The reduction in the verdict ta reflect Sianten’s
comparative fault indicates to us that the jury exercised is
discretion to evaluate and weigh the evidence to reach a
conclusion regarding damages. This process is precisely the
function that is within the heart of the jury’s constitutional
province.
The jury's damage award will not be deemed the result of
improper considerations if the size of the award can be
explained on any reasonable ground. Dee, 646 N.B.2d at 178
The record is replete with evidence of devastating Muumes,
yerManent daabiilies, au pain and avflering, and
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D. Constitional Implications
Krower takes a brief atternpt to argue that the size of the
award violates dwe process and equal protection under the
United States Constitution and dwe course of law under the
Indiana Constitution. Kroger contends that an unfettered right
47a
to a jury trial in civil cases does not equate to the unfettered
FAGY AS AGATA RAY, RIN 9 Sa
an emi tives WH HE BAUR AP LAW & GT
eM UMUNTANY ADC ty WT VLIHCHTT GL Ta Wot ite Nie ait
Wie widaly mee JM mm men mete
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Celnliig Fane law whieh ehawed the Wehen beipat alle
derdiet in the ranwe Al RA 78 Millian.” Appellant's ile! pp
44, 44. Kroger ciles ne authority MecHeniig ie HALiK® lemue
WHH respect 1a an award af damages and provides na futher
a BHInEM developing the Comention Kroger’s argument first
presupposes that the verdict is excessive and beyond the
scope of the evidence. We have already concluded that the
verdict is within the parameters of the evidence Second,
Kroger’s argument that it had no notice a verdict this high
was possible assumes that the comparability analysis should
be applied in this case to compare it to other verdicts in cases
with simular injunes. We have already declined to apply a
POHPATAPlity analysis to this case. Even if we had used such
a) aalyats, however, Kroger was not deprived af native
Spy Repanae Hie Verdio€ was higher, even sHhatanially
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evidetbe HHA HOH HORT MAA Hy Hae, BAHAY Hy, prejAiee,
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Had artiple tice thal i could We table fy ditty dathapes
found not to be excessive for its wrongdoing
Kroget also makes the broad allegation that an equal
protection violation occurred because the juty treated it
differently than it would have treated an individual. This
48a
ent fails. First, os verdict - entered le both
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ees
49a
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Cay
Cause Na. 49D 1 00500CT 0059
JERRY STANTON AND RUTH STANTON,
Plaintiffs,
Vv.
ika C. RITTER AND THE KROGER COMPANY, 4 CORP.,
Defendants
ANH
my ry iI Ine i Wit I BE ) i |
"| Wh ili ih i I wl 1
i Ae WAIN AMHOAIGA TWA ATHY CST
wit CHUM HAMAD fu fied a4 He HAH Iee Fig tH)
ett Hater Here, AHA tHe i8sllee HAYNE ‘’ Muily tHe
tHe jlity Havine dilly tendered 4 weHeral vardiel typ
plaintiffs in the sui of Fifty-five tillion dollar
($55,000,000.00).
IT IS THEREFORE ORDERED ADIUDGED AND
DECREED that the plaintiffs, Jetty Stanton and Ruth
50a
Stanton, shall recover from the defendants, The Kroger
Company, a Corporation and Ira C. Ritter, the sum of Fifty-
five million dollars ($55,000,000.00), together with interest
thereon at the rate of 8(%) percent per annum from
September 16, 1999 until this judgment is satisfied. Costs vs.
Defendants.
ALL OF WHICH IS ORDERED ADJUDGED AND
DECREED THIS 20th DAY OF SEPTEMBER, 1999.
/s/
Richard H. Huston, Judge |
Superior Court Room No. 10,
Civil Division
Dated: Sep. 20, 1999
Sla
APPENDIX C
[Filed December 17, 1999]
IN THE
MARION SUPERIOR COURT
CIVIL DIVISION, ROOM NO. 10
No. 49D10-9506-CT-0959
JERRY STANTON AND RUTH A. STANTON,
Plaintiffs,
VS.
IRA C. RITTER AND THE KROGER CO., A CORPORATION,
Defendants.
ORDER ON DEFENDANTS’ MOTION TO
CORRECT ERRORS
Defendants, by counsel, having filed with this court a
Motion to Correct Errors, and the court having heard the
argument of counsel for all parties and being duly advised in
the premises hereby denies in its entirety the defendants’
Motion to Correct Errors.
ALL OF WHICH IS ‘ORDERED THIS 17th DAY OF
DECEMBER, 1999.
/s/
The Honorable Richard H. Huston,
Marion Superior Court, Div. 10
_ 52a
APPENDIX D
CLERK
SUPREME COURT, COURT OF APPEALS, AND TAX COURT
STATE OF INDIANA
217 State House, Indianapolis, IN 46204
317-232-1930 * Fax 317-232-8365
Karl Mulvaney Cause Number:
2700 Market Tower 49A02-9912-CV-00883
10 West Market St. Lower Court Number:
Indianapolis, IN 46204 49D 109506CT959
Fax Number: 236-9907
RITTER, IRA, ET.AL. -V—- STANTON, JERRY & RUTH
You are hereby notified that the SUPREME COURT has
on this day, 1/31/02:
This matter has come before the Indiana Supreme Court on
a Petition to Transfer Jurisdiction following the issuance of a
decision by the Court of Appeals. The petition was filed
pursuant to Appellate Rule 57. The Court has reviewed the
decision of the court of appeals. Any record on appeal that
was submitted has been made available to the Court for
review, along with any and all briefs that may have been filed
in the court of appeals and all the materials filed in
connection with the request to transfer jurisdiction. Each
participating member of the Court has voted on the petition.
Each participating member has had the opportunity to voice |
that Justice’s views on the case in conference with the other
Justices.
Being duly advised, the Court now denies the Appellant’s
Petition to Transfer of Jurisdiction.
53a
RANDALL T. SHEPARD, CHIEF JUSTICE on behalf of
the Court. All Justices concur, except SHEPARD, C.J. and
SULLIVAN, J., who vote to grant transfer.
MS
WITNESS my name and the seal of said Court, this 31st day
of January, 2002 |
/s/
Brian Bishop
Clerk Supreme Court, Court of
Appeals and Tax Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.