      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                              Dec 14 2018, 8:41 am

      court except for the purpose of establishing                               CLERK
      the defense of res judicata, collateral                                Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      John P. Young                                            Michael P. Pritchett
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Mandy Jo Stivers,                                        December 14, 2018
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               18A-CT-768
              v.                                               Appeal from the Marion Superior
                                                               Court
      Cecilia M. Lesch,                                        The Honorable Cynthia J. Ayers,
      Appellee-Defendant                                       Judge
                                                               Trial Court Cause No.
                                                               49D04-1609-CT-32923



      Altice, Judge.


                                               Case Summary


[1]   Mandy Jo Stivers appeals from a jury verdict in favor of Cecilia M. Lesch

      following an automobile accident in which Stivers was injured. On appeal,

      Stivers argues that the trial court abused its discretion in providing the jury with

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018               Page 1 of 9
      Indiana Model Civil Jury Instruction (IMCJI) Verdict Form 5001(A) (Verdict

      Form 5001(A)).


[2]   We affirm.


                                       Facts & Procedural History


[3]   Around 9:45 in the morning of August 22, 2016, Stivers was driving east on

      West 16th Street approaching North Senate Boulevard in Marion County. At

      the same time, Lesch was southbound on Senate Boulevard, approaching the

      same intersection. The two vehicles collided in the middle of the intersection.

      Stivers was injured as a result of the accident.


[4]   On September 15, 2016, Stivers filed a complaint for damages against Lesch,

      claiming that Lesch negligently operated her vehicle when she disregarded a red

      light for her lane of traffic and thereby caused the accident. A jury trial was

      held on March 13-14, 2018.


[5]   During the trial, Christopher Deyon, a patrol officer with the Indianapolis

      Metropolitan Police Department, testified that he responded to the scene of the

      accident and spoke with both Stivers and Lesch. In his accident report, Officer

      Deyon noted that Lesch told him that she was “unsure if she had a red or green

      light but stated the last time she remembered is looking at the light and it was

      green” and that Stivers told him that she “had a green light” when she entered

      the intersection and that Lesch had “disregarded [a] red light. Transcript Vol. II

      at 8, 9.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018   Page 2 of 9
[6]   Joann Morris was in the car behind Stivers as they approached the intersection,

      and she witnessed the accident. Morris testified that Stivers had a green light as

      she entered the intersection and that Lesch, who was approaching from the left,

      had a red light but did not stop. Morris further testified that she spoke with

      Lesch as Lesch exited her car after the accident and that Lesch was unsure as to

      the color of the traffic light for her traffic lane when she entered the intersection.


[7]   At trial, Lesch testified that she had a green light when she entered the

      intersection and that she looked down only after she entered the intersection.

      When she was about two-thirds through the intersection, Lesch saw in her

      peripheral vision a blur of something to her right just before Stivers’s car hit her

      car on the passenger side.


[8]   With regard to final instructions, Stivers submitted IMCJI Verdict Form

      5001(B), comparative fault-verdict for the defendant, and IMCJI Verdict Form

      5001(C), comparative fault-verdict for the plaintiff. In addition to those verdict

      forms, Lesch submitted Verdict Form 5001(A), comparative fault-verdict for the

      defendant. The difference between Verdict Forms 5001(A) and (B) is that

      Verdict Form (A) does not require the jury to apportion fault between Stivers

      and Lesch. For this reason, Stivers objected to Verdict Form 5001(A) being

      submitted to the jury. Stivers also objected to the court reading the second

      paragraph of IMCJI 941 to the jury because such explained when to use Verdict

      Form 5001(A).




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018   Page 3 of 9
[9]    At the conclusion of the evidence, the trial court gave the jury its final

       instructions and included, over Stivers’s objection, Verdict Form 5001(A), in

       addition to Verdict Forms 5001(B) and (C), and IMCJI 941 in its entirety. The

       jury returned a verdict using Verdict Form 5001(A). Stivers now appeals.

       Additional facts will be provided as necessary.


                                           Discussion & Decision


[10]   In reviewing a trial court’s decision to give or to refuse a tendered instruction,

       this Court considers whether the instruction correctly states the law, is

       supported by the evidence in the record, and is covered in substance by other

       instructions. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002).

       The trial court has discretion in instructing the jury and thus, we will reverse on

       the last two issues only when the instructions amount to an abuse of discretion.

       Id. However, when an instruction is challenged as being an incorrect statement

       of the law, appellate review of the ruling is de novo. Id. at 893-94.


[11]   Stivers objected to the use of Verdict Form 5001(A) on grounds that it did not

       comply with the dictates of Ind. Code § 34-51-2-7(b)(1) that the jury “shall

       determine the percentage of fault of the claimant, of the defendant, and of any

       person who is a nonparty.” As noted above, Verdict Form 5001(A) does not

       require the jury to apportion fault. Rather, Verdict Form 5001(A) simply

       provides:


               We, the jury, decide that the Defendant, Cecilia Lesch, was not
               at fault, and therefore decide in favor of the Defendant, Cecilia
               Lesch, and against the Plaintiff, Mandy Stivers.
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018   Page 4 of 9
       Appellant’s Appendix at 15.1 Stivers argues that Verdict Form 5001(A) allowed

       the jury to render a “pure accident” verdict and prevented her from detecting or

       proving that an error occurred because it does not evidence the jury’s

       apportionment of fault. Appellant’s Brief at 18.


[12]   We begin by noting that fault for the accident was a key issue the jury was to

       decide. In instructing the jury, the trial court followed preferred practice by

       giving the pattern jury instructions and verdict forms related to that issue—

       Verdict Forms 5001(A), (B), and (C) and IMCJI 941. See Lacy v. State, 58

       N.E.3d 944, 947 (Ind. Ct. App. 2016); Gravens v. State, 836 N.E.2d 490, 493

       (Ind. Ct. App. 2005) (citing Cochrane v. Lovett, 166 Ind.App. 684, 337 N.E.2d

       565, 570 n.6 (1975) (noting that the Indiana Pattern Jury Instructions have the

       “apparent approval of the Indiana Supreme Court as evidenced by the preferred

       treatment given such instructions in [Indiana Rule of Trial Procedure 51(E)]”)),

       trans. denied.




       1
           Verdict Form 5001(B) provides:
                We, the jury, assign the following percentages of fault:
                Plaintff, Mandy Stivers                ________________%
                Defendant, Cecilia Lesch               ________________%
                TOTAL                                  100%
                (The fault percentages listed in the blanks must total 100%).
                Because Plaintiff’s fault is greater than 50%, we therefore decide in favor of the Defendant,
                Cecilia Lesch, and against the Plaintiff, Mandy Stivers.
       Id. at 16.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018                         Page 5 of 9
[13]   Further, in previous cases, this court has rejected arguments similar to those

       Stivers now asserts in challenging the use of Verdict Form 5001(A). Stivers

       makes no argument as to why we should ignore established precedent, but

       rather, “respectfully disagrees” with their holdings. Appellant’s Brief at 14.


[14]   In Koziol v. Vojvoda, 662 N.E.2d 985 (Ind. Ct. App. 1996), Koziol was a

       passenger in a vehicle that stalled in the roadway and was struck from behind

       by another vehicle. Koziol sued Vojvoda, the driver of the car he was in, as

       well as the driver of the other car, claiming they were both negligent. Because

       the defense of contributory negligence was raised by one of the defendants, the

       trial court, over Koziol’s objection, instructed the jury on the role of

       contributory fault in a comparative fault scheme and that the burden of proving

       contributory fault was on the defendant. Koziol also objected to the verdict

       forms submitted to the jury that allowed the jury to attribute fault to him. The

       jury ultimately signed the verdict form that required the jury to first determine

       fault on the part of Vojvoda and if it found no negligence, it was to stop at that

       stage and not proceed to allocation of fault. Koziol challenged the instructions

       and verdict form on appeal. This court held that “[i]n cases where the jury

       finds that the defendant is not negligent in the first instance, there is no need for

       the jury to allocate fault between the parties. Such an exercise would be

       meaningless.” Id. at 992. The court also found the verdict form was proper.


[15]   The facts in Utley v. Healy, 663 N.E.2d 229 (Ind. Ct. App. 1996), trans. denied,

       closely parallel those in this case. There, the plaintiffs and defendant were

       involved in a car accident at an intersection where the defendant’s lane of travel

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018   Page 6 of 9
       was controlled by a stop sign. The plaintiffs were midway into the intersection

       when the defendant’s car entered the intersection and the collision occurred.

       The defendant named the city as a nonparty, claiming that the city had

       negligently allowed the stop sign to become obstructed by a tree. At trial, the

       jury was instructed if it found the defendant was not at fault or that the plaintiffs

       had failed to meet their burden of proof, the verdict should be for the defendant.

       In such case, the jury was instructed that of the three verdict forms provided,

       the jury was to use verdict form C, which simply stated “We, the Jury, find for

       the defendant.” Id. at 233.


[16]   On appeal, the plaintiffs argued that verdict form C violated the then current

       Ind. Code § 34-4-33-5, which provided that the trial court “shall furnish to the

       jury forms that require the disclosure of . . . the percentage of fault charged

       against each party.” The plaintiffs claimed that the court’s instructions and

       verdict form C violated the statute because the jury was not required to allocate

       percentages of fault. The plaintiffs further asserted that “giving the instruction

       was equivalent to authorizing the jury to treat the collision as a ‘mere accident,’

       which is impermissible.” Utley, 663 N.E.2d at 234.


[17]   We found the rationale of an earlier decision, Evans v. Schenk Cattle Co., Inc., 558

       N.E.2d 892 (Ind. Ct. App. 1990), persuasive and applicable. In Evans, the court

       provided the jury with a verdict form that instructed the jury to first determine

       whether the defendants were negligent before allocating fault. The verdict form

       also instructed the jury that if it found the defendants were not negligent, it was



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018   Page 7 of 9
       to stop at that stage and not to proceed to any allocation of fault. The Evans

       court explained:


               If the jury finds no fault on the defendant’s part, there is no need
               to address allocation of fault. On the other hand, if the jury was
               required to first allocate fault, it would be required to engage in a
               meaningless exercise of first allocating 0% fault to the defendant
               and then finding the defendant not negligent. Such time wasting
               efforts are not to be required of juries. Contrary to the
               [appellant’s] assertion, the instruction does not amount to an
               advisement on the theory of ‘mere accident.’ Rather, it allows
               the jury an efficient and expedited means to render a favorable
               verdict for the defendant when it finds no negligence on the
               defendant’s part.


       Utley, 663 N.E.2d at 234 (quoting Evans, 558 N.E.2d at 896). The Utley court

       likewise determined that “[o]nce the jury concluded that [the defendant] was

       not negligent, there was no reasonable purpose for the jury to engage in a

       further allocation of fault.” Id. We therefore held that the instruction and

       verdict form were not improper.


[18]   Here, as in the prior cases, fault for the accident was an issue to be decided by

       the jury. As the above cases illustrate, it is proper for the trial court to instruct

       the jury to assess the defendant’s negligence first and, if the jury determines that

       the defendant was not negligent, the jury need go no further and allocate fault.

       The trial court so instructed the jury with IMCJI 941 and Verdict Form

       5001(A).




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018   Page 8 of 9
[19]   We further note that in addition to Verdict Form 5001(A) and the instruction

       explaining under what circumstances it was to be used, the jury was provided

       with other instructions covering issues of comparative fault, including the

       definitions of negligence and fault and that Lesch carried the burden of proof

       with respect to her affirmative defense. The jury was also provided with Verdict

       Forms 5001(B) and (C), both of which required the jury to apportion fault

       between the parties. It is clear that after deliberations, the jury determined

       either that Lesch met her burden of proof or that Stivers did not prove her

       claim, and therefore, the jury signed Verdict Form 5001(A) as instructed.

       Having so concluded, there was no need for the jury to allocate fault.


[20]   We see no reason to part from existing precedent. Verdict Form 5001(A) is not

       contrary to law and it does not, as Stivers claims, invite the jury to render a

       “pure accident” verdict. Accordingly, the trial court did not err in instructing

       the jury or in using Verdict Form 5001(A).


[21]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-768 | December 14, 2018   Page 9 of 9
