 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
                                                                          Sep 25 2014, 9:13 am
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS:                          ATTORNEYS FOR APPELLEE:
PATRICK B. MCEUEN                                 JULIA BLACKWELL GELINAS
McEuen Law Office                                 DARREN A. CRAIG
Portage, Indiana                                  Frost Brown Todd LLC
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

FREDERICK CASHNER, SR. and                         )
LUCILLE CASHNER,                                   )
                                                   )
       Appellants-Defendants,                      )
                                                   )
               vs.                                 )        No. 64A04-1311-PL-555
                                                   )
WESTERN-SOUTHERN LIFE ASSURANCE                    )
COMPANY,                                           )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE PORTER SUPERIOR COURT
                         The Honorable William A. Alexa, Judge
                            Cause No. 64D02-1302-PL-1918


                                       September 25, 2014

     MEMORANDUM DECISION FOR REHEARING - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       In a June 25, 2014 unpublished memorandum decision, this court affirmed the trial

court’s grant of a motion for costs and attorney fees filed by Western-Southern Life

Assurance Company (Western-Southern). The trial court’s ruling was based upon its

determination that the Cashners continued to litigate their counterclaim for bad faith after

it became frivolous, unreasonable, or groundless. The Cashners seek rehearing upon two

grounds. We summarily reject the first contention, which involves the viability of their

argument that Cain v. Griffin, 849 N.E.2d 507 (Ind. 2006) did not defeat their counterclaim.

We grant rehearing to address their second contention, which is that our discussion

included incorrect dates for two matters of procedural history.

       In our statement of the facts, we correctly noted that Western-Southern’s motion to

dismiss was filed on May 23, 2013 and granted on June 4, 2013. Later in the opinion,

however, we mistakenly indicated that the trial court did not rule upon the motion for four

months. We also indicated that the Cashners filed their motion to correct error after the

trial court awarded attorney fees to Western-Southern, when in fact the motion to correct

errors was filed after Western-Southern submitted the request for fees, but before the trial

court granted that request. We grant the petition for rehearing for the sole purpose of

correcting those misstatements, but our conclusions are unaffected.

       The trial court granted attorney fees because the Cashners continued to litigate their

counterclaim for bad faith after they knew or should have known that it was frivolous,

unreasonable, or groundless. Western-Southern apprised them of such grounds on or about

May 3, 2013. On the facts of this case and pursuant to Cain, there was simply no viable

                                             2
bad-faith case to be made against Western-Southern following its filing of the interpleader

action. Yet, the Cashners thereafter ignored Western-Southern’s request to voluntarily

dismiss their case alleging bad faith. This required Western-Southern to expend legal fees

in order to defeat the Cashners’ claim in a court of law, initially by filing a motion to

dismiss. The trial court granted that motion, to which the Cashners responded by filing a

motion to correct error. We affirmed upon our conclusion that the Cashners knew or should

have known on or about May 3, 2013 that their counterclaim for bad faith was groundless

pursuant to Cain. The two inaccuracies cited by the Cashners are not material to that

conclusion.

      MATHIAS, J., and PYLE, J., concur.




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