                                                                         FILED
                                                                    May 21 2019, 8:53 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael K. Nisbet                                         Rodney L. Scott
Jeffersonville, Indiana                                   Carli A. Clowers
                                                          Waters Tyler Hofmann & Scott,
                                                          LLC
                                                          New Albany, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Latoya Torrence,                                          May 21, 2019
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-CT-2695
        v.                                                Appeal from the Clark Circuit
                                                          Court
Courtney Gamble,                                          The Honorable Bradley Jacobs,
Appellee-Defendant.                                       Judge
                                                          Trial Court Cause No.
                                                          10C02-1505-CT-68



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019                             Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, LaToya Torrence (Torrence), appeals the jury’s verdict in

      favor of Appellee-Defendant, Courtney Gamble (Gamble), following a personal

      injury action arising out of a motor vehicle accident.


[2]   We affirm.


                                                     ISSUE
[3]   Torrence raises three issues on appeal, which we consolidate and restate as:

      Whether the trial court properly instructed the jury by providing it with a

      general verdict form based on Indiana Model Civil Jury Instruction Verdict

      Form 5017 in favor of Gamble.


                       FACTS AND PROCEDURAL HISTORY
[4]   Torrence’s personal injury action against Gamble arises out of a motor vehicle

      accident. On July 30, 2013, Torrence was stopped in the south bound lane of

      Allison Lane in Clark County, Indiana, waiting for oncoming traffic to clear

      before turning left. While Torrence was waiting, Gamble rear-ended Torrence’s

      vehicle. The accident resulted in substantial damage to the vehicles and

      personal injury to Torrence.


[5]   On May 13, 2015, Torrence filed a Complaint, alleging negligence and seeking

      property damages, as well as damages for lost wages, and medical expenses.

      Gamble denied liability for the accident and asserted a comparative fault

      defense in her Answer to Torrence’s Complaint. On September 25 and 26,

      Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019           Page 2 of 8
      2018, a jury trial was conducted. At the conclusion of the presentation of

      evidence, the trial court discussed the proposed final jury instructions with the

      parties outside the presence of the jury. The trial court provided the jury with

      19 Final Instructions and 4 Jury Verdict forms. Jury Verdict Forms A, B, and

      C were referenced in Final Instruction 17, which outlined the procedure the

      jury was to utilize to determine fault and damages in accordance with the

      Comparative Fault Doctrine. Verdict Form D—which was offered by Gamble

      and objected to by Torrence—was based on Indiana Model Civil Jury

      Instruction Verdict Form 5017 and read as follows:


              We, the Jury, decide in favor of the Defendant, [Gamble], and
              against the Plaintiff, [Torrence].


      (Transcript Vol. II, p. 143). As no written instruction was given to the jurors on

      the applicability of Verdict Form D, the trial court allowed the parties to

      address the use of Verdict Form D in closing argument. After deliberations, the

      jury returned a verdict for Gamble and against Torrence, using Verdict Form D.

      The trial court entered judgment on the verdict.


[6]   Torrence now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[7]   Torrence contends that the trial court abused its discretion by allowing the jury

      to consider a general verdict form in violation of the Comparative Fault Act.

      Jury instructions serve to inform the jury of the law applicable to the facts

      presented at trial, enabling it to comprehend the case sufficiently to arrive at a

      Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019            Page 3 of 8
      just and correct verdict. Blocher v. DeBartolo Properties Mgmt., Inc., 760 N.E.2d

      229, 235 (Ind. Ct. App. 2001), trans. denied. Jury instructions are committed to

      the sound discretion of the trial court. Id. In evaluating the propriety of a given

      instruction, we consider: 1) whether the instruction correctly states the law, 2)

      whether there is evidence in the record supporting the instruction, and 3)

      whether the substance of the instruction is covered by other instructions. Id.

      When seeking a new trial on the basis of an improper jury instruction, a party

      must show a reasonable probability that her substantial rights have been

      adversely affected. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 944

      (Ind. 2001). However, if the instruction is challenged as an incorrect statement

      of the law, the applicable standard of review is de novo, and we will not defer to

      the trial court’s interpretation of the law. Hill v. Rhinehart, 45 N.E.3d 427, 439

      (Ind. Ct. App. 2015). An erroneous instruction warrants reversal only if it

      could have formed the basis for the jury’s verdict. Id.


[8]   At trial, the jury was provided with Verdict Form D—a general verdict form—

      which instructed that the jury could decide “in favor of the Defendant,

      [Gamble], and against the Plaintiff, [Torrence]” and no further deliberation

      would be necessary. Torrence argues that by giving this general instruction and

      using Verdict Form D, the trial court violated Indiana Code section 34-51-2-

      7(b), which reads, in pertinent part:


              The court, unless all parties agree otherwise, shall instruct the
              jury to determine its verdict in the following manner:



      Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019            Page 4 of 8
              (1) The jury shall determine the percentage of fault of the
                  claimant, of the defendant, and of any person who is a
                  nonparty. The jury may not be informed of any immunity
                  defense that is available to a nonparty. In assessing
                  percentage of fault, the jury shall consider the fault of all
                  persons who caused or contributed to cause the alleged injury,
                  death, or damage to property, tangible or intangible,
                  regardless of whether the person was or could have been
                  named as a party. The percentage of fault of parties to the
                  action may total less than one hundred percent (100%) if the
                  jury finds that fault contributing to cause the claimant’s loss
                  has also come from a nonparty or nonparties.


      Focusing on the statutory language—“shall determine the percentage of

      fault”—Torrence argues that the Comparative Fault Act does not allow the jury

      to enter a general verdict in favor of a defendant without first determining and

      apportioning fault.


[9]   Indiana Code section 34-51-2-11 specifies the verdict forms a trial court can

      tender to a jury and provides that a trial court must


              furnish to the jury forms of verdicts that require only the
              disclosure of:


              (1) The percentage of fault charged against each party and
                  nonparty; and


              (2) The amount of the verdict against each defendant.


              If the evidence in the action is sufficient to support the charging
              of fault to a nonparty, the form of verdict shall require a



      Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019              Page 5 of 8
               disclosure of the name of the nonparty and the percentage of
               fault charged to the nonparty.


       Besides giving general guidelines on the use of verdict forms, the statutes do not

       impose any restrictions on the trial court regarding the verbiage or specificity of

       the verdict forms.


[10]   In Utley v. Healy, 663 N.E.2d 229 (Ind. Ct. App. 1996), trans. denied, we directly

       addressed the issue currently before us. In Utley, Utley filed a complaint

       seeking damages from Healy after Healy ran a stop sign at an intersection. Id.

       at 231. At trial, the trial court instructed the jury by providing it three verdict

       forms, one of which simply stated, “We, the jury find for the defendant.” Id. at

       233. Like Torrence, Utley claimed that the Comparative Fault Act was

       violated because the jury was not required to first allocate the percentages of

       fault. Id. This court upheld the general verdict form, finding that


               It is a ‘time wasting effort’ for the jury to first determine that
               Healy was 0% at fault, apportion the remainder of the
               percentages between the city and [Utley] and then conclude that
               Healy was not negligent. This action is merely an exercise in
               futility since ultimately the jury found Healy not negligent . . .
               Once the jury concluded that Healy was not negligent, there was
               no reasonable purpose for the jury to engage in a further
               allocation of fault.


       Id. at 234 (citing Evans v. Schenk Cattle Co., Inc., 558 N.E.2d 892, 896 (Ind. Ct.

       App. 1990)).




       Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019             Page 6 of 8
[11]   On the other hand, we find Brown v. Conrad, 531 N.E.2d 1190 (Ind. Ct. App.

       1988), relied upon by Torrence, inapposite to the situation at hand as it was

       decided on different grounds. In Brown, this court affirmed the trial court’s

       grant of a new trial after the jury returned a general verdict in favor of Brown.

       The trial court ordered a new trial because, unlike here, the jury’s verdict was

       contrary to the evidence presented at trial, as well as against the trial court’s

       explicit instruction in which “the [c]ourt instructs you that as a matter of law

       you must find [Brown] to be 100% at fault in this case.” Id. at 1191.


[12]   In the case at bar, the trial court provided the jury with four possible verdict

       forms depending upon the evidence found credible by the jury. Together with

       the four possible verdict forms, the jury also received written instructions on

       how to use three verdict forms. They did not receive written instructions on

       Verdict Form D. At the close of the evidence, the parties were given an

       opportunity to educate the jury on the different verdict forms during closing

       argument. Accordingly, Gamble’s counsel focused part of the closing argument

       on how to use Verdict Form D. Unlike Utley, where the trial court thoroughly

       instructed the jury on all verdict forms, here, the trial court did not provide any

       instructions, be it written or verbal, on Verdict Form D instead leaving it up to

       the parties to educate the jury. As a result, undue emphasis was placed on a

       single instruction. We find that the better practice would have been to have

       either provided the jury with Verdict Form D and written instructions—similar

       to the other verdict forms—or not to tender Verdict Form D at all.




       Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019             Page 7 of 8
[13]   However, to receive a new trial, Torrence must show a reasonable probability

       that her substantial rights have been adversely affected by the undue focus on

       Verdict Form D. See Elmer Buchta Trucking, Inc., 744 N.E.2d at 944. At trial,

       the jury was presented with contradictory testimony, with Torrence testifying

       that she was stopped with her left turn signal on and Gamble stating that

       Torrence’s brake lights were not illuminated and her left turn signal was off.

       Gamble further introduced evidence that Torrence had been in prior accidents

       and that she had been treated for nearly identical medical issues prior to the

       current incident. Torrence admitted to pre-existing injuries following a slip and

       fall in 2010. By returning the general verdict form in favor of Gamble, the jury

       credited the evidence in her favor and determined that Torrence had failed to

       satisfy her burden of proof. It was within the province of the jury to determine

       and weigh the credibility of the parties and evidence admitted and reach a

       verdict thereon. Therefore, we find that any error in jury instruction was

       harmless and we affirm the trial court’s judgment.


                                              CONCLUSION
[14]   Based on the foregoing, we hold that although the trial court failed to properly

       instructed the jury, Torrence’s substantial rights were not adversely affected.


[15]   Affirmed.


[16]   Bailey, J. & Pyle, J. concur




       Court of Appeals of Indiana | Opinion 18A-CT-2695 | May 21, 2019          Page 8 of 8
