                                                                              FILED
                                                                          Jan 23 2018, 9:53 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Thomas E. Rosta                                            Michael E. Polen, Jr.
      Tammy J. Meyer                                             Rubino, Ruman, Crosmer & Polen
      Ryan O. Farner                                             Dyer, Indiana
      Metzger Rosta, LLP
      Noblesville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael R. Krohn,                                          January 23, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 45A03-1707-CT-1546
              v.                                                 Appeal from the Lake Superior
                                                                 Court
      William C. Goodwin,                                        The Honorable Diane Kavadias
      Appellee-Plaintiff.                                        Schneider, Judge
                                                                 Trial Court Cause No.
                                                                 45D11-1105-CT-109



      Bailey, Judge.



                                           Case Summary
[1]   William C. Goodwin (“Goodwin”) was awarded $9,130,000.00 in

      compensatory and punitive damages upon his tort claims against Michael R.

      Krohn (“Krohn”). Krohn now appeals, presenting the sole issue of whether he

      Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018                 Page 1 of 11
      is entitled to a new trial on damages because of an erroneous jury instruction. 1

      Goodwin re-frames the issue as whether Krohn has waived his allegations of

      instructional error. We affirm.



                               Facts and Procedural History
[2]   On April 23, 2011, Goodwin was riding his motorcycle southbound on Cline

      Avenue in Schererville, Indiana when Krohn exited a parking lot and stopped

      in Goodwin’s lane of travel. Goodwin crashed into the driver’s side of Krohn’s

      pickup truck. Goodwin, severely injured and bleeding internally, was airlifted

      from the accident scene. He ultimately underwent thirteen surgeries, including

      removal of half of his colon and reconstruction of his abdominal wall.


[3]   On May 24, 2011, Goodwin filed a complaint for damages against Krohn,

      alleging that Krohn had acted negligently, recklessly, willfully, and wantonly.

      In a related criminal case, Krohn pled guilty to driving while intoxicated. He

      filed an amended answer to Goodwin’s complaint, admitting that he was

      partially at fault for the accident and alleging as an affirmative defense that

      Goodwin was also partially at fault.


[4]   A jury trial commenced on June 19, 2017 and concluded on June 21, 2017.

      The jury found Krohn to be 100% at fault and awarded Goodwin $9,100,000.00

      as compensatory damages and $30,000.00 as punitive damages. Krohn did not




      1
          Krohn does not contest the jury’s determination that Krohn was 100% at fault.


      Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018         Page 2 of 11
      file a motion to correct error challenging the amount of damages as excessive.

      He now appeals.



                                  Discussion and Decision
                                         Standard of Review
[5]   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.


                                                   Analysis
[6]   Krohn challenges Final Instruction 4/23. He articulates several perceived

      deficiencies, and ultimately claims, “there can be no question that the jury

      instruction at issue may have affected the $9.1 million dollar compensatory

      verdict.” Appellant’s Brief at 19. Our review of Krohn’s arguments, which we

      will discuss in some detail below, reveals that, at bottom, Krohn’s claim is that

      the damages were excessive. Indiana Trial Rule 59(A)(2) squarely addresses

      the procedure for challenging excessive damages. This rule provides “A




      Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 3 of 11
      Motion to Correct Error is not a prerequisite for appeal, except when a party

      seeks to address: a claim that a jury verdict is excessive or inadequate.”


[7]   Without acknowledging the dictates of the foregoing Trial Rule and the

      potentially harsh result of non-compliance, Krohn instead couches his

      arguments in terms of a traditional jury instruction challenge. And, as we have

      noted, a claimed error in refusing a proffered instruction may invoke our review

      on three grounds: whether the instruction correctly states the law, whether it is

      supported by the evidence of record, and whether the substance of the

      instruction is covered by other instructions. Wal-mart Stores, Inc., 774 N.E.2d at

      893.


[8]   In this regard, Krohn contends that Final Instruction 4/23 was a burden-

      shifting and mandatory instruction. More particularly, he argues that the

      instruction referenced various standards of proof, improperly categorized and

      explained general and special damages, misstated the law, and was confusing

      and internally inconsistent. He argues that he was prejudiced because the jury

      would have understood it was required to award some damages and, also, the

      instruction provided a basis for counsel’s closing argument that the general

      damages award are to be greater than special damages.


[9]   Goodwin responds that Krohn did not specifically address his instructional

      language concerns to the trial court and has thus waived the matter for

      appellate review. Goodwin additionally responds that the instruction did not

      mislead the jury and that Krohn is essentially lodging a challenge to the amount


      Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 4 of 11
       of damages without having afforded the trial court the opportunity to reduce

       them.


[10]   Indiana Trial Rule 51(C) provides, in relevant part:


               No party may claim as error the giving of an instruction unless he
               objects thereto before the jury retires to consider its verdict,
               stating distinctly the matter to which he objects and the grounds
               of his objection.


       The purpose of this rule is to protect inadvertent error on the part of the trial

       court. Hill v. Rhinehart, 45 N.E.3d 427, 439 (Ind. Ct. App. 2015). Accordingly,

       “the objection to the instruction must be sufficiently specific to make the trial

       court aware of the alleged error before it reads the instructions to the jury.” Id.

       at 439-40. The objection must state why the instruction is misleading,

       confusing, incomplete, irrelevant, not supported by the evidence, or an incorrect

       statement of the law. Id. at 440. An objection that is not specific does not

       preserve error for appeal. Id.


[11]   Here, at the final instructions conference, the following discourse took place

       with respect to Instruction 4, which ultimately became Final Instruction 23 [to

       which we refer as Final Instruction 4/23]:


               Court: All right, Number 4.


               [Defense]: I believe the model should be used, Judge, as opposed
               to this version. I haven’t seen the Court’s proposed final
               instructions, but I presume you have one that certainly covers
               what’s set forth in this –

       Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 5 of 11
               Court: I thought this was patterned after the model.


               [Plaintiff]: It’s a fair and accurate statement of the law, Your
               Honor. It is patterned after the model. It contains all the same
               elements. It just helps define some it [sic] that we think helps
               assist the jury. It’s been given in numerous cases, and I believe
               it’s an appropriate and accurate statement of the law. It should
               be given.


               Court: Yes. I’ve given this many times. I’ll give it over your
               objection.


       (Tr. Vol. III, pg. 57.)


[12]   During this brief discussion, the trial court was made aware that Krohn had a

       distinct preference for a pattern instruction, albeit unspecified. Yet, Krohn did

       not provide the trial court with specific reasons for his preference or allege

       specific deficiencies in Proposed Final Instruction 4. Nonetheless, the cursory

       challenge apparently caused the trial court to recognize that an objection was

       being made and to scrutinize the instruction ultimately given. Because Krohn

       provided the trial court with the opportunity to examine instructional language

       and effect a substitution which allegedly would have prevented error, we cannot

       say that Krohn wholly waived any claim of error with respect to the instruction.

       Therefore, we proceed to the merits of his appeal. In doing so, however, we are

       mindful that an appellant cannot state one ground for instructional error at the

       trial court and prevail by identifying different grounds for error on appeal. Hill,

       45 N.E.3d at 440.



       Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 6 of 11
[13]   Krohn begins his appellate argument by identifying each of the legal citations

       proffered in the trial court proceedings as support for the giving of Final

       Instruction 4/23 and arguing that the sources are outdated, merely persuasive

       as opposed to controlling authority, or involve very different claims or fact

       patterns. He also recites the language of Indiana Model Civil Jury Instruction

       703, noting its “stark contrast” to the instruction given. Appellant’s Brief at 12.

       We do not disagree with Krohn’s stated preferences for brevity, clarity, and up-

       to-date language. However, he does not provide us with any authority for the

       proposition that an instruction may be successfully challenged by a collateral

       attack on authorities cited as part of the proffer or by showing a deviation from

       a model instruction. We have located no such authority.


[14]   Krohn’s appellate argument next turns to the specific language of Final

       Instruction 4/23. He contends that an improper burden of proof was imposed

       upon him with the use of the following language:


               Your award cannot be solely a matter of guesswork; but as long
               as the facts of damage is [sic] established, defendants should bear
               the risk of any uncertainty as to the amount of damage they may
               have caused.


       (App. Vol. II, pg. 24.) Assuming that Krohn may be said to have preserved his

       argument on burden-shifting by suggesting an alternative instruction to the trial

       court, he cannot prevail on the merits. Initially, we observe that the challenged

       language concerns “uncertainty as to the amount of damage” (emphasis added),

       as opposed to the decision to award damages in the first place. Moreover,


       Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 7 of 11
       considering the instructions as a whole, the jury was informed more than once

       that the plaintiff bears the burden of proof to establish liability and damages in a

       tort claim.


[15]   Krohn also argues that it was error to include the language “General damages

       are a broader category of compensation designed to compensate for the loss of

       quality of life,” language omitted from the model instruction he preferred.

       (App. Vol. II, pg. 25.) Krohn directs us to Canfield v. Sandock, 563 N.E.2d 1279

       (Ind. 1990). There, the trial court had instructed the jury in a personal injury

       action to consider the effect of the injury on the “quality and enjoyment of life”

       as a separate element when awarding damages. Id. at 1280. Our Indiana

       Supreme Court found this to be error:


               We remain concerned about the subjectivity of terms like loss of
               “quality and enjoyment of life” and loss of “personal
               enjoyment.” Such terms are vague and open-ended and carry
               with them the potential for double recovery for the same
               damages. Consequently, we think instructions which define loss
               of “quality and enjoyment of life” as a separate element of
               damages send a jury to its deliberations too unconstrained with
               respect to damages.


               Notwithstanding our concern over the language of the instruction
               at issue, it is apparent that the phrase loss of “quality and
               enjoyment of life” includes some losses that should be considered
               by a jury as part of the damage calculation. . . .


               [W]e hold that trial courts should instruct juries in personal
               injury cases that they may consider “the nature and extent of the



       Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 8 of 11
               plaintiff’s injury, and the effect of the injury itself on the
               plaintiff’s ability to function as a whole person.”


               The trial court erred when it instructed the jurors that they could
               consider “loss of enjoyment of life” as a separate element of
               damages in this case.


       Id. at 1281-82. Final Instruction 4/23 does not suffer from this infirmity. The

       jury was not thereby instructed that loss of quality and enjoyment of life was a

       separate element of damages. The jury was not invited to award Goodwin a

       double recovery.


[16]   Krohn next argues that the language “You are to determine whether the

       elements have been proved by a consideration of the evidence relating to

       damages” instructs the jury “that damages only need to be proven by a

       ‘consideration’ of the evidence.” Appellant’s Brief at 14. The particular

       sentence is in-artfully drafted, yet we think the jury was advised to undertake a

       “consideration of the evidence relating to damages” and not instructed –

       illogically – that an element was “proved by a consideration of the evidence.”

       As we have previously observed, the instructions, taken as a whole, advise the

       jury that Goodwin bore the burden to prove his claims and damages by a

       preponderance of the evidence.


[17]   Krohn also challenges the language of Final Instruction 4/23 categorizing

       special and general damages. He notes that the model jury instruction on

       damages does not set forth such a distinction; he does not, however, provide

       legal authority indicating that making such a distinction is erroneous.

       Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 9 of 11
[18]   Finally, Krohn asserts that some language of Final Instruction 4/23 could have

       been understood by the jury to permit an award of damages “based merely on

       the fact that an injury/damage exists.” Appellant’s Brief at 16. That is, he

       argues that the jury may have been confused by the language “as long as the

       fact of damage is established, defendants should bear the risk of any uncertainty

       as to the amount of damage they may have caused” and “if you are satisfied

       from a preponderance of the evidence that the physical injury was caused by the

       defendant, Michael Krohn, you should not decline to award some amount by

       way of general damages.” Appellant’s Brief at 16-17.


[19]   Although the challenged instruction may not have been a model of clarity,

       Krohn has not persuaded us that its giving amounts to reversible error. Krohn

       does not suggest that the evidence would support an award of no damages or

       only nominal damages. He has not denied, at trial or on appeal, that Goodwin

       was injured in the accident. He also conceded that he was at least partially at

       fault. He does not argue that the jury’s assignment of zero fault to Goodwin is

       in error. Instead, he appears to concede that damages were appropriate but

       insists that a different damages instruction would have affected the amount in

       his favor, an issue that is squarely addressed by Trial Rule 59(A)(2). But,

       having failed to file a motion to correct error, Krohn seeks a collateral means to

       obtain re-assessment of the damages. Embellishing upon his extremely cursory

       trial objection, he asks that we reverse and remand this matter for a new trial,

       all the while conceding liability on his part. We discern no legal grounds from

       Krohn’s arguments upon which to do so.


       Court of Appeals of Indiana | Opinion 45A03-1707-CT-1546 | January 23, 2018   Page 10 of 11
                                                Conclusion
[20]   Essentially, Krohn seeks to collaterally attack the aggregate damages award

       without complying with Trial Rule 59(A)(2). In doing so, he challenged the

       giving of Final Instruction 4/23 on grounds of abuse of discretion or

       misstatement of law. From our review, he has presented us with no legal

       grounds upon which to reverse the jury’s award of damages.


[21]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




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