                                                                              Sep 24 2013, 5:31 am
 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JAMES F. BLEEKE                                    NATHAN MILLER
CAROL A. DILLON                                    PATRICK SULLIVAN
RACHEL A. EAST                                     Montross Miller Muller Mendelson
Bleeke Dillon Crandall, P.C.                       & Kennedy, LLP
Indianapolis, Indiana                              Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

INDIANA COMMISSIONER OF INSURANCE                  )
STEPHEN W. ROBERTSON, on Behalf of the             )
INDIANA PATIENT’S COMPENSATION                     )
FUND,                                              )
                                                   )
       Appellants/Respondents,                     )
                                                   )
               vs.                                 )    No. 49A04-1212-CT-652
                                                   )
KIMI CLARK, Personal Representative of the         )
Estate of William Troy Clark, Deceased,            )
                                                   )
       Appellee/Claimant.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable John F. Hanley, Judge
                            Cause No. 49D11-1205-CT-18199


                                       September 24, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       The Indiana Patient’s Compensation Fund (PCF) appeals the trial court’s award of

$465,000 in damages, arguing that the trial court did not offset $550,000 already received

in settlements with other defendants. Kimi Clark, as personal representative of the estate

of William Troy Clark, cross appeals, claiming that the trial court erred in not awarding

the estate damages for Clark’s lost-earning capacity. Finding that the trial court’s order

was ambiguous, we reverse and remand with instructions to clarify the amount of total

damages, the set off, and what damages, if any, were awarded for Clark’s lost-earning

capacity.

                              Facts and Procedural History

       Clark was married to Kimi Clark and they had two children. He worked as a

union ironworker in Terre Haute. At the beginning of 1998, Clark began having mood

swings that were later diagnosed as bipolar I disorder. His behavior caused Kimi to

divorce him in December 1998.          After the divorce, Clark began drinking alcohol

excessively. He also fell behind on his child-support payments. In December 1999, the

Vigo Superior Court entered an order directing Clark’s employer to withhold earnings

from his paychecks to compensate for $7900 in delinquent child-support payments.

       At around the same time, Clark began having legal troubles. He was arrested in

January 2000. In early 2000, he moved to Savannah, Georgia to live with his mother.

Shortly after moving to Georgia, he was arrested and spent ten months in jail.

       While in Savannah, Clark continued to struggle with alcohol.         After he was

released from jail, he started drinking again.


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       On July 20, 2000, the Vigo Superior Court entered another order because of his

increasing child-support delinquency. While living with his mother, Clark gave her a

portion of his paychecks, and she then paid child support to the court in Vigo County.

       Clark, however, lost his job and returned to Indiana in July 2001. On July 23,

2001, Clark was arrested in Vigo County for failing to pay his bill at a restaurant in Terre

Haute and for having an outstanding warrant from a previous case. Ex. E, p. 1-2. While

in jail, Clark suffered from alcohol-withdrawal syndrome. Because of the jail’s failure to

recognize and treat Clark’s symptoms, he died in the Vigo County jail on July 29, 2001.

       At the time of his death, Clark’s children were nine and seven years old. His

estate brought a claim against Vigo County and the jail physician responsible for medical

care in the Vigo County jail. The county settled the claim for the maximum exposure of

$300,000. Ex. 2. The jail physician settled the claim for the maximum exposure of

$250,000. Ex. 9. In 2012, the estate petitioned the PCF for the remainder of its damages

pursuant to Indiana Code section 34-18-14-3(c).

       Before trial, the parties stipulated that “[c]laimant has recovered $550,000 for the

death of William Troy Clark through settlements with Defendants in the underlying

lawsuit.” Appellant’s App. p. 18. The trial court’s sole task was to determine the amount

of damages in excess of the already settled amount. Tr. p. 116.

       A bench trial was held. At trial, both Clark’s estate and the PCF had experts

testify as to the likelihood of Clark recovering from his alcohol addiction. Dr. Campbell,

the estate’s witness, opined that Clark had “from a thirty to a sixty percent chance” of

recovering from his alcoholism and leading a productive life. Id. at 30. Dr. Stevens, the


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PCF’s witness, was more skeptical, stating that Clark’s long pattern of continuing to

drink alcohol despite negative consequences made him believe that Clark was unable to

stop drinking alcohol. He testified that Clark was in the worst one percent of patients in

terms of alcohol dependency severity and that there was only about a five percent chance

of him recovering and living a normal, productive life. Id. at 222-23, 235.

       The trial court ruled in favor of Clark’s estate “for excess damages in the amount

of Four Hundred Sixty-Five Thousand Dollars ($465,000) . . .” against the PCF.

Appellant’s App. p. 12. In conclusion of law number seven, the trial court stated that the

PCF “is responsible for up to an additional $700,000, in excess of the payments made by

the underlying healthcare provider and the Vigo County jail . . . .” Id. at 9. In calculating

the amount of liability, the trial court stated that the children are entitled to $309,000, the

estate’s funeral expenses are $6,089.85, and the estate’s attorney’s fees are $150,000. Id.

at 11. The trial court’s order is ambiguous as to whether the damages ordered are total

damages or damages after the settlement payments. See id. at 11-12.

       Clark’s estate filed a motion to correct errors pursuant to Indiana Trial Rule 59(A).

In its motion, the estate argued that it was entitled to both lost-earning capacity and loss

of love, affection, and parental guidance. Appellant’s App. p. 21. The trial court denied

the estate’s motion to correct errors. Id. at 25.

       The PCF and Clark both appeal.

                                  Discussion and Decision

       The PCF appeals the judgment of the trial court, claiming that the trial court

erroneously failed to offset the $550,000 settlement from the total damages determined at


                                               4
trial. Clark’s estate also appeals, claiming that the trial court erred in not awarding the

estate damages for Clark’s lost-earning capacity. When a trial court enters specific

findings of facts and conclusions of law, appellate review is two-tiered. Marion Cnty.

Auditor v. Sawmill Creek, 964 N.E.2d 213, 216 (Ind. 2012). For factual conclusions,

“[t]he evidence is viewed in the light most favorable to the judgment, and we defer to the

trial court’s factual findings if they are supported by the evidence and any legitimate

inference therefrom.” Id. at 216-17. Legal conclusions are reviewed de novo. Nichols v.

Minnick, 885 N.E.2d 1, 3 (Ind. 2008).

       When joint tortfeasors cause a single injury to a plaintiff, the defendant at trial is

entitled to a setoff against the assessed damages in the amount that the plaintiff received

from any other defendant who settled. Palmer v. Comprehensive Neurologic Servs., 864

N.E.2d 1093, 1100 (Ind. 2007); Marquez v. Mayer, 727 N.E.2d 768, 774 (Ind. 2000).

Such a requirement is consistent with the one-satisfaction doctrine, which requires courts

to consider settlement agreements and credit the funds received by the plaintiff toward

the judgment against co-defendants. See Mendenhall v. Skinner & Broadbent Co., 728

N.E.2d 140, 145 (Ind. 2000). Indeed, “[i]t is the trial court’s duty to reduce jury verdicts

by amounts received in settlement to ensure that a plaintiff not receive more than a full

recovery.” Palmer, 864 N.E.2d at 1102.

       Under Indiana law, if a health-care provider agrees to settle its liability and a

claimant demands more than $250,000, the claimant must file a petition in court and seek

payment from the PCF. Ind. Code § 34-18-15-3. The PCF assumes the liability of the




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health-care provider over and above the statutory cap in the Medical Malpractice Act.

Indiana Dep’t of Ins. v. Everhart, 960 N.E.2d 129, 139 (Ind. 2012).

          In calculating damages, the amount of damages must be supported by specific

findings of facts that account for the total damages sustained by the plaintiff. Under

Indiana law, the finder of fact must first calculate the total liability, and then the trial

court must subtract the amount already received in settlement contributions from other

parties. Palmer, 864 N.E.2d at 1101. In Palmer, this Court affirmed a trial court’s

determination that the plaintiff was entitled to no damages after a jury determined that the

defendants’ total liability was $375,000 and the amount received from settling parties

exceeded $375,000.

          Here, however, the trial court did not adequately specify whether the amount of

damages awarded included a $550,000 set-off from settlements already received by

Clark’s estate. In its order, the trial court states that the children are entitled to $309,000,

the estate’s funeral expenses are $6,089.85, and the estate’s attorney’s fees are $150,000.

Appellant’s App. p. 11. Thus, the total liability of all defendants in this case would be

$465,089.85. Once the trial court arrived at this figure, it should have then subtracted the

amount the estate received from the defendants who settled. If the court determines that

$465,089.85 is the total liability of all defendants, then subtracting the $550,000

settlement received by Clark’s estate should result in no additional damages for the

estate.

          However, the trial court’s order also states that the “total allowable excess

damages in this cause of action are $465,000.” Id. at 12. Similarly, conclusion of law


                                               6
seven states that the PCF “is responsible for up to an additional $700,000, in excess of the

payments made by the underlying health care provider and the Vigo County jail . . . .” Id.

at 9. If the trial court intended to award $465,000 to Clark’s estate, it should actually

account for $1,015,000 in damages—the $465,000 damages plus the $550,000 settlement

amount. Because the judgment enumerates only $465,089.85 in damages but specifically

states that this amount is in excess of the settled amount, it is unclear whether the trial

court actually offset the total damages by the amount received in the settlements with the

Vigo County jail and the prison health-care provider.

       We therefore reverse the judgment and remand with instructions to calculate the

total damages to which Clark’s estate is entitled and to offset those damages by the

amount received from the settling defendants. In calculating such damages, the trial

court should determine whether Clark’s estate is entitled to damages for Clark’s lost-

earning capacity.

       Reversed and remanded.

BAKER, J., and FRIEDLANDER, J., concur.




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