                                                                                  FILED
                                                                            Apr 03 2019, 9:33 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Mark J. Schocke                                             Crystal G. Rowe
      Highland, Indiana                                           Alyssa C.B. Cochran
                                                                  Kightlinger & Gray, LLP
                                                                  New Albany, Indiana

                                                                  Galen A. Bradley
                                                                  Merrillville, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Ismael Alicea,                                              April 3, 2019
      Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                                  18A-CT-2495
              v.                                                  Appeal from the Porter Superior
                                                                  Court
      Ronald Brown,                                               The Honorable Roger V. Bradford,
      Appellee-Defendant.                                         Judge
                                                                  Trial Court Cause No.
                                                                  64D01-1706-CT-5809



      Najam, Judge.


                                         Statement of the Case
[1]   Ismael Alicea appeals the trial court’s grant of partial summary judgment in

      favor of Ronald Brown on Alicea’s claim for punitive damages. Alicea presents

      a single issue for our review, namely, whether the trial court erred when it
      Court of Appeals of Indiana | Opinion 18A-CT-2495 | April 3, 2019                              Page 1 of 7
      granted Brown’s partial summary judgment motion. We reverse and remand

      for further proceedings.


                                   Facts and Procedural History
[2]   On October 10, 2016, between approximately 3:15 and 3:30 p.m., while he was

      driving his truck from Hobart to Valparaiso, Brown drank two-and-one-half

      twelve-ounce beers. At approximately 3:30 p.m., Brown rear-ended a vehicle

      being driven by Alicea. Brown immediately fled the scene without talking to

      Alicea. Brown “didn’t want to get caught drinking beer” while driving.

      Appellee’s App. Vol. II at 13.


[3]   Later that day, a Porter County Sheriff’s deputy arrived at Brown’s property,

      saw the damaged truck, and asked Brown whether he had driven it earlier that

      day. Brown lied to the deputy and said that he had not driven the truck that

      day and that he did not know who had driven it. Brown suggested that

      someone could have stolen the truck. The deputy administered a portable

      breath test on Brown, which showed that Brown’s BAC was “.02 or .03.” Id. at

      15. The deputy attempted to administer a few field sobriety tests, but Brown

      told him that he could not do them because of a “bad knee.” Id. The deputy

      impounded Brown’s truck. Brown later recovered his truck from impound, but

      he never told law enforcement that he was the driver who had collided with

      Alicea’s vehicle on October 10 because he “didn’t want to get arrested.” Id.




      Court of Appeals of Indiana | Opinion 18A-CT-2495 | April 3, 2019        Page 2 of 7
[4]   On June 15, 2017, Alicea filed a complaint against Brown alleging negligence

      and seeking damages.1 After Brown testified during a deposition that he had

      been drinking and driving at the time of the collision, Alicea subsequently filed

      an amended complaint to seek punitive damages. Brown moved for partial

      summary judgment only on the punitive damages claim. The trial court

      granted that motion following a hearing. This appeal ensued. 2


                                        Discussion and Decision
[5]   Our standard of review for summary judgment appeals is well established:


                We review summary judgment de novo, applying the same
                standard as the trial court: “Drawing all reasonable inferences in
                favor of . . . the non-moving parties, summary judgment is
                appropriate ‘if the designated evidentiary matter shows that there
                is no genuine issue as to any material fact and that the moving
                party is entitled to judgment as a matter of law.’” Williams v.
                Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
                fact is ‘material’ if its resolution would affect the outcome of the
                case, and an issue is ‘genuine’ if a trier of fact is required to
                resolve the parties’ differing accounts of the truth, or if the
                undisputed material facts support conflicting reasonable
                inferences.” Id. (internal citations omitted).

                The initial burden is on the summary-judgment movant to
                “demonstrate[] the absence of any genuine issue of fact as to a
                determinative issue,” at which point the burden shifts to the non-
                movant to “come forward with contrary evidence” showing an



      1
          The record does not reveal how Alicea determined that Brown was the driver responsible for the collision.
      2
        The trial court found that there was no just reason for delay and entered a “final judgment” on the punitive
      damages issue pursuant to Indiana Trial Rule 56(C).

      Court of Appeals of Indiana | Opinion 18A-CT-2495 | April 3, 2019                                  Page 3 of 7
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[6]   As Alicea correctly points out, “we have long recognized that ‘Indiana's

      summary judgment procedure . . . diverges from federal summary judgment

      practice.’” Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118,

      123 (Ind. 1994). In particular, while federal practice permits the moving party

      to merely show that the party carrying the burden of proof lacks evidence on a

      necessary element, we impose a more onerous burden: to affirmatively “negate

      an opponent’s claim.” Id. Only then does the burden shift to the non-movant

      to come forward with contrary evidence showing an issue for the trier of fact.

      Hughley, 15 N.E.3d at 1003.


[7]   “‘[S]ummary judgment is inappropriate if a reasonable trier of fact could choose

      to disbelieve the movant’s account of the facts.’” Insuremax Ins. Co. v. Bice, 879

      N.E.2d 1187, 1190 (Ind. Ct. App. 2008) (quoting McCullough v. Allen, 449

      N.E.2d 1168, 1172 (1983)), trans. denied. “‘[I]t is error to base summary

      judgment solely on a party’s self-serving affidavit, when evidence before the

      court raises a genuine issue as to the affiant’s credibility.’” Id. (quoting

      Court of Appeals of Indiana | Opinion 18A-CT-2495 | April 3, 2019              Page 4 of 7
      McCullough, 449 N.E.2d at 1172). When the facts are peculiarly in the

      knowledge of the movant’s witnesses, there should be an opportunity to

      impeach them at trial, and their demeanor may be the most effective

      impeachment. Id.


[8]   Alicea contends in relevant part that Brown did not sustain his burden as

      summary judgment movant to negate an element of Alicea’s punitive damages

      claim.3 “Unlike compensatory damages, which are intended to make the

      plaintiff whole, punitive damages ‘have historically been viewed as designed to

      deter and punish wrongful activity.’” Yost v. Wabash College, 3 N.E.3d 509, 523

      (Ind. 2014) (quoting Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003)). In

      tort actions, punitive damages may be awarded upon a showing of willful and

      wanton misconduct such that the defendant subjected other persons to probable

      injury, with an awareness of such impending danger and with heedless

      indifference of the consequences. Id. (citations omitted). Whether punitive

      damages may be awarded is usually a question of fact. Cheatham, 789 N.E.2d

      at 472. Our Supreme Court has held that “the intoxicated driver is guilty of

      willful and wanton misconduct when he deliberately assumes control of an

      automobile and places it upon a public highway.” Williams v. Crist, 484 N.E.2d

      576, 578 (Ind. 1985).




      3
          We need not address the other issues raised by Alicea because this issue is dispositive of this appeal.


      Court of Appeals of Indiana | Opinion 18A-CT-2495 | April 3, 2019                                      Page 5 of 7
[9]    The only evidence Brown designated in support of his motion for partial

       summary judgment consisted of several pages from the transcript of his

       deposition. On appeal, Brown directs us to excerpts of that testimony showing

       that: he “had only consumed two and a half (12 ounce) cans of beer” at the

       time of the collision and was “not impaired by alcohol”; he had been driving in

       a “safe manner” before the collision; he tried “to get around him without hitting

       him, but [he] didn’t have enough room . . . [or] enough time” to avoid the

       collision; his BAC was measured at .02 or .03 sometime after the collision; and,

       while his truck was impounded, he was not arrested and did not receive any

       traffic citations. Appellee’s Br. at 31. Brown maintains that this undisputed

       designated evidence “demonstrates that Brown was not intoxicated at the time

       of the accident and, further[,] that Brown’s actions of drinking while driving

       (though unacceptable and maybe even criminal) did not cause or contribute to

       Alicea’s complained-of harm.” Id. at 32. Thus, Brown asserts that Alicea

       cannot prevail on his punitive damages claim, as a matter of law.


[10]   However, Brown ignores the undisputed designated evidence that calls into

       question his credibility. For instance, Brown violated the law when he drank

       alcohol while driving, left the scene of a collision, and lied to law enforcement

       shortly thereafter about those acts. Moreover, the facts as alleged by Brown,

       such as whether he was impaired or intoxicated at the time of the collision, “are

       peculiarly” within Brown’s knowledge, and there should be an opportunity to

       impeach him at trial. See Insuremax Ins. Co., 879 N.E.2d at 1190. Because a

       reasonable trier of fact could choose to disbelieve Brown’s account of the facts,


       Court of Appeals of Indiana | Opinion 18A-CT-2495 | April 3, 2019         Page 6 of 7
       we hold that Brown has not sustained his burden to affirmatively negate an

       element of Alicea’s punitive damages claim, and the trial court erred when it

       granted partial summary judgment for Brown on that claim. See id.


[11]   Reversed and remanded for further proceedings.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-2495 | April 3, 2019       Page 7 of 7
