      OPINION ON REHEARING                                                                 Dec 31 2015, 9:13 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Michael T. Terwilliger                                    Frederick W. Crow
      Whitten Law Office                                        Young & Young
      Valparaiso, Indiana                                       Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Hoker Trucking, LLC and Linda                             December 31, 2015
      L. Phillips,                                              Court of Appeals Case No.
      Appellants-Defendants,                                    89A01-1411-CT-468
                                                                Appeal from the Wayne Superior
              v.                                                Court
                                                                The Honorable Charles K. Todd,
      Pamela K. Robbins, as                                     Jr., Judge
      Administratrix of the Estate of                           Trial Court Cause No.
      Mike Douglas Robbins,                                     89D01-1212-CT-56
      Deceased,
      Appellee-Plaintiff



      Riley, Judge.


[1]   In our original opinion, we concluded that based on SCI Propane v. Frederick, 39

      N.E.3d 675 (Ind. 2015), “Robbins, as the surviving spouse, was not entitled to

      recover attorneys’ fees and prejudgment interest as compensable damages under

      the GWDS.” See Hoker Trucking, LLC v. Robbins, --- N.E.3d --- (Ind. Ct. App.


      Court of Appeals of Indiana | Opinion on Rehearing 89A01-1411-CT-468 | December 31, 2015       Page 1 of 4
      Sept. 15, 2015). Robbins has now filed a petition for rehearing in which she

      contends that the prejudgment interest was not awarded on the attorneys’ fees,

      as we alluded to in our opinion, but on the $6,000,000.00 jury verdict. As such,

      she asserts SCI Propane is not applicable, and instead we should have followed

      the directives of the prejudgment interest statute, I.C. Ch. 34-51-4, which notes

      in section 1 that prejudgment interest “applies to any civil action arising out of

      tortious conduct.” We agree. Thus, we grant rehearing for the limited purpose

      of addressing the prejudgment interest award; in all other respects, we affirm

      our original opinion.


[2]   Our review of the record indicates that the trial court ordered prejudgment

      interest on the jury verdict only and not on the award of attorneys’ fees.

      Applying the prejudgment interest statute, the trial court noted that although

      Hoker Trucking’s offer met the requirements of I.C. § 34-51-4-6, it did not meet

      the requirements of I.C. § 34-51-4-5 [the amount of the offer was less than 2/3

      of the amount of the judgment award] and thus Hoker Trucking was

      responsible for the payment of prejudgment interest on the jury verdict.

      Accordingly, the trial court awarded prejudgment interest at a rate of 8% on the

      jury award from June 21, 2013 through October 5, 2014, for a total amount of

      $622,028.11.


[3]   The prejudgment interest statute permits the trial court to grant prejudgment

      interest, but does not require an award of prejudgment interest. See I.C. 34-51-

      4-7; Alsheik v. Guerrero, 979 N.E.2d 151, 155 (Ind. 2012) (in which Guerrero

      sought prejudgment interest in a medical malpractice suit). We review a trial

      Court of Appeals of Indiana | Opinion on Rehearing 89A01-1411-CT-468 | December 31, 2015   Page 2 of 4
      court’s ruling on a motion for prejudgment interest under the prejudgment

      interest statute for an abuse of discretion. Id. Thus, the prejudgment interest

      statute grants the trial court broad discretion to determine when an award of

      prejudgment interest is warranted. Id. Accordingly, the trial court abuses its

      discretion if it misinterprets the law, or if it does not “support its determination

      with findings consistent with the statute.” Id. (citing Kosarko v. Padula, 979

      N.E.2d 144, 150 (Ind. 2012)).


[4]   Here, the trial court awarded prejudgment interest in accordance with the

      prejudgment interest statute and supported its decision as follows:

              In this cause, [Robbins] provided settlement demand letters on
              March 22, 2013 and December 19, 2013, which demanded
              payment of Six Million Dollars ($6,000,000.00), which was the
              amount of the ultimate jury verdict. Further, said demand letters
              met other relevant portions related to I.C. § 34-51-4-6.
              Additionally, [Hoker Trucking] made no offer that met the
              requirements related to I.C. § 34-51-4-5. Additionally, [Hoker
              Trucking] ultimately conceded full liability in this cause, and the
              trial held in this cause was only on the issue of damages. The
              [c]ourt, having considered the evidence submitted in this cause
              and properly before the [c]ourt, which includes [Robbins’]
              settlement demand letters, copies of which were admitted as
              Plaintiff’s exhibits 4 and 5 [] and having reviewed applicable
              statutory sections and cases, and considering the objectives of the
              statute as herein above set forth, the [c]ourt finds that
              prejudgment interest is appropriate[.]


      (Appellant’s App. p. 78).


[5]   We affirm the trial court’s award of prejudgment interest.


      Court of Appeals of Indiana | Opinion on Rehearing 89A01-1411-CT-468 | December 31, 2015   Page 3 of 4
[6]   Bailey, J. and Barnes, J. concur




      Court of Appeals of Indiana | Opinion on Rehearing 89A01-1411-CT-468 | December 31, 2015   Page 4 of 4
