MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Aug 02 2018, 8:55 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                         CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Masse                                           STATE FARM MUTUAL
Merrillville, Indiana                                    AUTOMOBILE INSURANCE CO.
                                                         Crystal G. Rowe
                                                         Alyssa C.B. Cochran
                                                         Kightlinger & Gray, LLP
                                                         New Albany, Indiana

                                                         John H. Halstead
                                                         Kightlinger & Gray, LLP
                                                         Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kayla Owens,                                             August 2, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         45A05-1712-CT-2934
        v.                                               Appeal from the Lake Superior
                                                         Court
Amanda Caudillo and State                                The Honorable William E. Davis,
Farm Mutual Automobile                                   Judge
Insurance Co.,                                           Trial Court Cause No.
Appellees-Defendants.                                    45D05-1304-CT-65




Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018         Page 1 of 9
      Bradford, Judge.



                                          Case Summary
[1]   On May 13, 2011, Kayla Owens was injured when her vehicle was rear-ended

      by a vehicle driven by Amanda Caudillo. She subsequently filed suit alleging

      negligence against Caudillo and asserting a claim for uninsured motorist

      benefits against State Farm. A four-day jury trial commenced on October 30,

      2017. After the parties rested their cases, State Farm moved for judgment on

      the evidence. The trial court took State Farm’s motion under advisement. The

      trial court subsequently granted State Farm’s motion for judgment on the

      evidence and alternative motion for judgment on the verdict. The trial court

      then entered judgment against Caudillo and in favor of State Farm. Owens

      challenges the trial court’s order granting judgment in favor of State Farm. We

      affirm.



                            Facts and Procedural History
[2]   At approximately 7:50 p.m. on May 13, 2011, Owens was stopped at a red light

      in the northbound lane of Kennedy Avenue in Highland when her vehicle was

      rear-ended by a vehicle driven by Caudillo. Owens was injured as a result of

      the impact. She subsequently filed suit alleging negligence against Caudillo and

      asserting a claim for uninsured motorist benefits against her insurance provider,

      State Farm.



      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018   Page 2 of 9
[3]   A four-day jury trial commenced on October 30, 2017. At some point, the trial

      court found against Caudillo on the issue of liability and reserved the issue of

      damages for the jury. After the parties rested their cases, State Farm moved for

      judgment on the evidence. Owens then moved for the trial court to reopen the

      evidence so she could question a State Farm representative about the terms of

      her insurance contract. The trial court denied Owens’s motion without giving

      State Farm the opportunity to respond to Owens’s request.


[4]   On November 2, 2017, the jury returned a verdict in favor of Owens and

      against Caudillo in the amount of $170,000. The jury did not return any verdict

      relating to State Farm. The parties agreed, however, that Owens’s claims

      against State Farm could likely be resolved by the trial court’s ruling on State

      Farm’s motion for judgment on the evidence.


[5]   The parties subsequently submitted briefing on State Farm’s motion. State

      Farm filed an alternative motion for judgment on the jury’s verdict. On

      November 21, 2017, the trial court granted State Farm’s motions. The trial

      court entered final judgment in favor of State Farm on Owens’s claim for

      uninsured motorist benefits and entered judgment against Caudillo for

      $170,000.



                                 Discussion and Decision




      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018   Page 3 of 9
                  I. Owens’s Motion to Reopen the Evidence
[6]   Owens contends that the trial court abused its discretion by denying her motion

      to reopen the evidence. “Whether to grant a party’s motion to reopen his case

      after having rested is a matter committed to the sound discretion of the trial

      judge.” Flynn v. State, 497 N.E.2d 912, 914 (Ind. 1986). “The decision will be

      set aside only when it appears that this discretion has been abused.” Id.


[7]   Owens’s claims against State Farm included only the request to recover

      uninsured motorist benefits. When seeking to recover under an uninsured

      motorist provision, “the insured must prove that he is legally entitled to recover

      damages from the owner or operator of an uninsured motor vehicle.” Michael v.

      Wolfe, 737 N.E.2d 820, 822 (Ind. Ct. App. 2000). “Generally, this means that

      the insured must establish the fault of the tortfeasor, the fact that there is no

      insurance policy covering the motorist or motor vehicle, and resulting

      damages.” Id.


[8]   After both parties rested, State Farm moved for judgment on the evidence

      claiming that Owens failed to prove all of the essential elements of her claim.

      Owens then moved to reopen the case “for three or four brief questions from

      State Farm’s corporate representative in order to show … that this is an

      uninsured motorist’s claim and that there is a contract of insurance.” Tr. Vol.

      II, pp. 66–67. In requesting that the trial court reopen the evidence, Owens

      indicated that she sought only to question the State Farm representative about




      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018   Page 4 of 9
      facts relevant to prove that her insurance contract with State Farm included

      uninsured motorist benefits.


[9]   It is important to note that even if the trial court had allowed Owens to reopen

      the evidence in order to ask the State Farm representative the desired questions

      about the terms of her policy, Owens would still have failed to prove all of the

      essential elements of her claim for uninsured motorist benefits. In attempting to

      show on appeal that she did prove all essential elements of her claim, Owens

      points to her complaint against Caudillo in which she alleges that Caudillo was

      uninsured.1 Since Caudillo was defaulted, Owens argues that we should

      consider that fact as admitted by Caudillo. However, even if we were to do so,

      Owens points to nothing in the record that proves that the vehicle itself was not

      covered by some insurance policy. Further, Owens did not indicate that she

      wanted to reopen the case to prove this fact. Such a fact is an essential element

      that must be proved in order to recover under an uninsured motorist provision.

      See Michael, 737 N.E.2d at 823 (providing that “to recover on an uninsured

      motorist claim, the insured must prove that there is no policy applicable to the

      vehicle driven by the tortfeasor”). Given that Owens still would have failed to

      prove an essential element of her claim against State Farm if the trial court had




      1
        Owens’s complaint actually alleges that “Defendant, Mary Joseph, was uninsured at the time of the
      accident which is the subject matter of this complaint.” Appellant’s App. Vol. II, p. 26. We will assume this
      was a typographical error as no one named “Mary Joseph” was named as a defendant in the underlying
      lawsuit, and Owens refers to this allegation as if it referred to Caudillo.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018             Page 5 of 9
       granted her request to reopen the evidence, we cannot say that the trial court

       abused its discretion in this regard.


         II. State Farm’s Motion for Judgment on the Evidence
[10]   Owens also contends that the trial court abused its discretion in granting State

       Farm’s motion for judgment on the evidence.


               The purpose of a motion for judgment on the evidence is to test
               the sufficiency of the evidence. Upon review of a trial court’s
               ruling on a motion for judgment on the evidence, we apply the
               same standard as the trial court, considering only the evidence
               and reasonable inferences most favorable to the nonmoving
               party. Judgment may be entered only if there is no substantial
               evidence or reasonable inferences to be drawn therefrom to
               support an essential element of the claim.


       Court View Ctr., L.L.C. v. Witt, 753 N.E.2d 75, 80 (Ind. Ct. App. 2001) (internal

       citation and quotations omitted). “‘If evidence fails to create a reasonable

       inference of an ultimate fact, but merely leaves the possibility of its existence

       open for surmise, conjecture or speculation, then there is no evidence of

       probative value as to that ultimate fact and a Trial Rule 50 motion should be

       granted.’” Id. at 81 (quoting Pearson v. 1st Nat’l Bank of Martinsville, 408 N.E.2d

       166, 171 (Ind. Ct. App. 1980)).


[11]   As we discussed above, in order to successfully raise a claim for uninsured

       motorist benefits, an insured “must establish the fault of the tortfeasor, the fact

       that there is no insurance policy covering the motorist or motor vehicle, and

       resulting damages.” Michael, 737 N.E.2d at 822 (emphasis added). Relying on

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018   Page 6 of 9
       the allegation set forth in her complaint that Caudillo was uninsured at the time

       of the accident, Owens claims that she made a prima facie showing of each of

       these facts. However, as we noted above, Owens points to nothing in the

       record that proves that the vehicle itself was not covered by some insurance

       policy. As such, even assuming that Owens’s allegation regarding to Caudillo

       was admitted, her claim still fails as she presented no evidence relating to the

       vehicle Caudillo was driving. We conclude that State Farm was entitled to

       judgment on the evidence as Owens failed to prove one of the essential

       elements of her claim against State Farm. The trial court, therefore, did not

       abuse its discretion in granting State Farm’s motion and properly entered

       judgment in State Farm’s favor.2


[12]   The judgment of the trial court is affirmed.


       Kirsch, J., concurs.


       Baker, J., dissents with opinion.




       2
         Because we conclude that the trial court properly entered judgment in State Farm’s favor after granting its
       motion for judgment on the evidence, we need not consider the propriety of the trial court’s ruling on State
       Farm’s alternative motion for judgment on the verdict.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018              Page 7 of 9
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Kayla Owens,                                             Court of Appeals Case No.
                                                                45A05-1712-CT-2934
       Appellant-Plaintiff,

               v.

       Amanda Caudillo and State
       Farm Mutual Automobile
       Insurance Co.,
       Appellees-Defendants




       Baker, Judge, dissenting.

[13]   I respectfully dissent, as I believe that this result sanctions the type of “gotcha”

       litigation I so abhor. The record establishes that Caudillo was at fault, Caudillo

       was uninsured, and Owens was damaged as a result of Caudillo’s negligence.

       The majority affirms based on Owens’s failure to establish that, in addition to

       Caudillo herself, Caudillo’s vehicle was uninsured.


[14]   Owens’s complaint alleged that when Caudillo caused the accident, she was

       driving her own vehicle. Appellant’s App. Vol. II p. 25. It further alleged that

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018   Page 8 of 9
       Caudillo was uninsured. Id. at 26. In my view, the default judgment against

       Caudillo does, in fact, establish a prima facie case that both Caudillo herself

       and her vehicle were uninsured. Therefore, I believe that the trial court erred by

       granting State Farm’s judgment on the evidence.


[15]   I also believe that the trial court erred by denying Owens’s motion to reopen the

       evidence, given that Owens’s counsel inadvertently rested and the reopening of

       evidence would have caused no prejudice to State Farm, nor would it have

       resulted in confusion or inconvenience to the trial court or the jury, which was

       still empaneled.


[16]   The result in this case amounts to an unearned windfall to State Farm based on

       an inadvertent attorney error. I do not believe we should approve of such

       “gotcha” litigation tactics. Therefore, I respectfully dissent.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CT-2934 | August 2, 2018   Page 9 of 9
