MEMORANDUM DECISION
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                               FILED
the defense of res judicata, collateral                                Jul 18 2018, 9:07 am

estoppel, or the law of the case.                                          CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Bruce D. Jones                                           Timothy S. Schafer
Keith A. Gaston                                          Timothy S. Schafer II
Cruser Mitchell Novitz Sanchez Gaston                    Todd S. Schafer
& Zimet, LP                                              Schafer & Schafer, LLP
Indianapolis, Indiana                                    Merrillville, Indiana

                                                         Gregory W. Brown
                                                         Brown & Brown, P.C.
                                                         Merrillville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.B. Hunt Transport, Inc., and                           July 18, 2018
Terry L. Brown, Jr.,                                     Court of Appeals Case No.
Appellants-Defendants,                                   45A03-1710-CT-2429
                                                         Appeal from the Lake Superior
        v.                                               Court
                                                         The Honorable Diane Kavadias
The Guardianship of Kristen                              Schneider, Judge
Zak,                                                     Trial Court Cause No.
Appellee-Plaintiff.                                      45D11-0610-CT-190




Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018           Page 1 of 8
[1]   J.B. Hunt Transport, Inc. and Terry L. Brown, Jr. (collectively, “the

      Appellants”) appeal the trial court’s order awarding the Guardianship of

      Kristen Zak (“the Guardianship”) $4,810,000 in prejudgment interest. We

      affirm.


[2]   On January 17, 2006, Zak was seriously injured when the car in which she was

      a passenger struck a semi tractor-trailer that had been wrecked approximately

      one hour earlier by Brown, a driver employed by Hunt. J.B. Hunt Transp., Inc. v.

      Guardianship of Zak, 58 N.E.3d 956 (Ind. Ct. App. 2016), trans. denied. On

      October 26, 2006, the Guardianship filed a complaint against the Appellants,

      alleging that they were negligent and that their negligence caused Zak’s injuries.

      Id. The matter proceeded to a jury trial, after which the jury returned a verdict

      in favor of the Guardianship and awarded the Guardianship $32,500,000 in
                     1
      damages. Id. We subsequently affirmed the jury’s verdict. Id. The matter

      returned to the trial court, after which the trial court awarded the Guardianship

      $4,810,000 in prejudgment interest.


[3]   On appeal, the Appellants contend that the trial court abused its discretion in

      awarding the Guardianship prejudgment interest. Specifically, the Appellants

      argue that the trial court abused its discretion because (1) the Guardianship

      failed to satisfy the requirements of the Tort Prejudgment Interest Statute




      1
          Approximately $19,500,000 of the award was allocated to the Appellants.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018   Page 2 of 8
      (“TPIS”) and (2) the Guardianship’s request for prejudgment interest was

      untimely.


[4]   Prejudgment interest represents an element of complete compensation. Johnson

      v. Eldridge, 799 N.E.2d 29 (Ind. Ct. App. 2003), trans. denied. As such, it “is not

      simply an award of interest on a judgment, but rather is recoverable as

      additional damages to accomplish full compensation.” Id. at 32 (internal

      quotation omitted). The TPIS “permits a trial court to award prejudgment

      interest to the party that prevails at trial, so long as that party has made a timely

      offer of settlement according to terms specified in the statute.” Id.


              We evaluate the award of prejudgment interest under an abuse of
              discretion standard. The decision to award prejudgment interest
              rests on a factual determination, and this court may only consider
              the evidence most favorable to the judgment. An abuse of
              discretion occurs when the trial court’s decision is clearly against
              the logic and effect of the facts and circumstances before the
              court, or if the court has misinterpreted the law.


      Id. at 33 (internal citations omitted).


[5]   The TPIS provides that a party is not entitled to prejudgment interest if:


              (1) within one (1) year after a claim is filed in the court, or any
              longer period determined by the court to be necessary upon a showing of
              good cause, the party who filed the claim fails to make a written
              offer of settlement to the party or parties against whom the claim
              is filed;
              (2) the terms of the offer fail to provide for payment of the
              settlement offer within sixty (60) days after the offer is accepted;
              or

      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018   Page 3 of 8
              (3) the amount of the offer exceeds one and one-third (1⅓) of the
              amount of the judgment awarded.


      Ind. Code § 34-51-4-6 (1998) (emphasis added). “If the court awards

      prejudgment interest, the court shall determine the period during which

      prejudgment interest accrues. However, the period may not exceed forty-eight

      (48) months.” Ind. Code § 34-51-4-8(a) (1998). Prejudgment interest begins to

      accrue on the latest of either (1) fifteen months after the cause of action accrued

      or (2) six months after the claim is filed in the court. Id.


      1. Whether the Guardianship Satisfied the Requirements
                          of the TPIS
[6]   The Appellants argue that the trial court abused its discretion in awarding

      prejudgment interest to the Guardianship because the Guardianship failed to

      satisfy the requirements of the TPIS.


                                         A. Settlement Offer
[7]   The Appellants claim that the Guardianship should not have been awarded

      prejudgment interest because it failed to establish that there was good cause for

      its failure to make a settlement offer within one year of initiating suit. The

      record reveals that the Guardianship’s delay can, at least in part, be attributed

      to the actions of the Appellants. The Appellants withheld certain critical




      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018   Page 4 of 8
                                                                                                    2
documents relating to the Appellants’ fault during the discovery phase. In fact,

the Appellants did not provide the Guardianship with some of these critical

documents until being ordered to do so by the trial court. Prior to receiving

these documents, the Guardianship lacked the ability to accurately assess the
                        3
merits of its case. The record further reveals that the Guardianship made a

settlement offer six days after receiving the last of the critical documents. The

trial court, being in the best position to gauge the importance of the critical

documents to the case, found that the Guardianship made its settlement offer

within a reasonable time after receiving the last of the documents. The Indiana

Supreme Court has held:


         [t]he TPIS is not intended to serve as a trap for the unwary. It is
         designed to put the adverse party on notice of a claim and
         provide them with an opportunity to engage in meaningful
         settlement and if they do not do so, they run the risk of incurring
         the additional obligation of prejudgment interest.


Wisner v. Laney, 984 N.E.2d 1201, 1212 (Ind. 2012). The trial court acted

within its discretion in determining that the Guardianship established that there

was good cause for its delay in tendering its settlement offer.




2
 These documents included the Safety Event Review completed in connection to the initial accident, J.B.
Hunt’s Driver’s Manual which outlined the steps that should have been taken if a driver was involved in an
accident, the accident kit prepared in connection to the accident, and three event logs relating to the accident.
3
 This seems especially true given that both Zak and the driver of the vehicle in which she was a passenger
suffered significant head injuries in the crash and neither has any memory of the crash.

Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018                    Page 5 of 8
                       B. The Sixty-Day Settlement Requirement
[8]   The Appellants also claim that the Guardianship “violated the TPIS by failing
                                                                    4
      to allow [them] 60 days to pay the demand.” Appellants’ Br. p. 17. In Cahoon

      v. Cummings, 734 N.E.2d 535, 547 (Ind. 2000), the Indiana Supreme Court held

      that “[t]he whole point of [Indiana Code section 34-51-4-6] is to address the

      cost of delay in payment” and “an offer to settle ‘now’ is an offer to settle by

      payment within sixty days.” In Wisner, the Indiana Supreme Court held that an

      “offer to solve this matter at this time” was sufficient to satisfy Indiana Code

      section 34-51-4-6 as “[t]he key is to include the time-limiting language in the

      offer.” 984 N.E.2d at 1211. The settlement offer at issue in this case was sent

      to the Appellants on January 25, 2011. It indicated that the offer would “stay

      open only until the pre-trial conference set for February 3, 2011.” Appellants’

      App. Vol. 3, p. 138. Consistent with the Indiana Supreme Court’s decisions in

      Cahoon and Wisner, we conclude that because the settlement offer included

      time-limiting language, the trial court acted within its discretion in determining

      that the offer satisfied Indiana Code section 34-51-4-6.




      4
       We note that while the Appellants seem to argue that the statute indicates that the Guardianship should
      have granted them at least sixty days to accept and satisfy the tendered settlement offer, Indiana Code section
      34-51-4-6 actually provides that the tendered settlement offer must make it clear that such acceptance and
      payment must be made within sixty days.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018                Page 6 of 8
       2. Whether the Guardianship’s Request for Prejudgment
                       Interest was Untimely
[9]    The Appellants also argue that trial court abused its discretion in awarding

       prejudgment interest because the Guardianship failed to make a timely request.

       In support, the Appellants cite to case law from jurisdictions outside Indiana

       and point to the fact that the Guardianship did not make a request for

       prejudgment interest until ten months after the final judgment was entered. The

       Appellants’ reliance on the opinions of courts from jurisdictions other than

       Indiana is misplaced, however, as these opinions are not binding upon this

       court. Further, the Indiana Supreme Court has held that “the comprehensive

       nature of the TPIS” clearly indicates “that the legislature intended the statute to

       be the exclusive source governing the award of prejudgment interest in cases

       falling within its ambit” and, as a result, the TPIS “abrogates and supplants”

       the common law prejudgment interest rules. Kosarko v. Padula, 979 N.E.2d 144,

       149, 147-48 (Ind. 2012). While the TPIS sets forth the requirements to ensure

       that a party qualifies for prejudgment interest, it does not contain the

       requirement that a request for prejudgment interest be filed prior to judgment

       being entered.


[10]   Further, even though a delay of ten months before making the request for

       prejudgment interest might be unreasonable in some cases, it does not seem

       unreasonable in this case. Review of the record indicates that the Appellants

       were not harmed as result of the Guardianship’s delay. Although the trial court

       had entered its judgment, the litigation was ongoing as the Appellants appealed

       Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018   Page 7 of 8
       the jury’s verdict and the trial court made it clear that it would not rule on any

       additional motions or requests filed by the parties until after the Appellants’

       appeal was resolved. As such, given that the relevant statutory authority does

       not provide a time limit for filing a request for prejudgment interest together

       with the facts and circumstances of this case, we cannot say that the trial court

       abused its discretion in awarding prejudgment interest to the Guardianship.


[11]   Judgment affirmed.


       Pyle, J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2429 | July 18, 2018   Page 8 of 8
