MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Oct 25 2018, 8:55 am

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


ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David W. Masse                                             STATE FARM MUTUAL
Merrillville, Indiana                                      AUTOMOBILE INSURANCE CO.
                                                           Crystal G. Rowe
                                                           Alyssa C.B. Cochran
                                                           Kightlinger & Gray, LLP
                                                           New Albany, Indiana
                                                           John H. Halstead
                                                           Kightlinger & Gray, LLP
                                                           Merrillville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kayla Owens,                                              October 25, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          45A05-1712-CT-2934
        v.                                                Appeal from the Lake Superior
                                                          Court
Amanda Caudillo and State                                 The Honorable William E. Davis,
Farm Mutual Automobile                                    Judge
Insurance Co.,                                            Trial Court Cause No.
Appellees-Plaintiffs                                      45D05-1304-CT-65




Court of Appeals of Indiana | Mem. Dec. on Rehearing 45A05-1712-CT-2934 | October 25, 2018          Page 1 of 5
      Baker, Judge.

[1]   Kayla Owens has filed a petition for rehearing with respect to this Court’s

      original opinion in this case. Owens v. Caudillo, No. 45A05-1712-CT-2934 (Ind.

      Ct. App. Aug. 2, 2018). On rehearing, she raises two issues: (1) this Court

      erred in concluding that Owens had failed to make a prima facie case on her

      claim for uninsured motorist benefits; and (2) this Court should have found that

      the trial court erred by denying Owens’s motion to reopen the evidence after her

      attorney inadvertently rested. We grant rehearing in part to address Owens’s

      second argument, and we reach a different result this time.


[2]   After the parties rested their cases, Owens’s attorney realized that a small, but

      vital, portion of evidence had been inadvertently omitted. Counsel requested

      that the evidence be reopened so that a brief series of questions could be asked

      of State Farm’s corporate representative. Owens’s brief on rehearing provides

      examples of possible questions that would have been asked:

              Q.       Did you conduct an investigation to determine whether or not
                       the Defendant, Amanda Caudillo, was in fact uninsured? The
                       expected answer would be yes.


              Q.       Upon finding that Ms. Caudillo was an uninsured motorist, did
                       this finding lead you to pay out money on an uninsured
                       motorist claim to Cierra Charbonneau in another Lake County,
                       Indiana, matter titled Cierra Charbonneau v. Amanda Caudillo and
                       State Farm Mutual Automobile Ins. Co., filed under cause number
                       45D11-1305-CT-00083? The expected answer is yes.


              Q.       And was Ms. Charbonneau’s claim paid by State Farm
                       Insurance under precisely the same policy of insurance for the
      Court of Appeals of Indiana | Mem. Dec. on Rehearing 45A05-1712-CT-2934 | October 25, 2018   Page 2 of 5
                        same automobile accident as in Ms. Owens’ case? Again the
                        expected answer would be in the affirmative.


               Q.       And based on this determination that Ms. Caudillo was
                        uninsured, did you hire counsel to take up the defense of Ms.
                        Caudillo in this action on behalf of State Farm’s interests
                        pursuant to the uninsured motorist provisions of Ms. Owens’
                        own automobile policy? The answer here must be yes.


      Appellant’s Br. on Reh. p. 7-8. Had Owens been permitted to reopen the

      evidence, she could have established that Caudillo was uninsured and that State

      Farm itself had acknowledged that fact in another claim stemming from the

      very same accident.1


[3]   It is undeniable that Owens’s attorney made a disastrous mistake by resting

      before ensuring that this crucial evidence had been admitted. It is likewise

      undeniable that it would have been eminently reasonable for the trial court to

      firmly chastise counsel for the error. All of that said, however, the jury was still

      empaneled and the evidence to be introduced was extremely limited and

      specific. Reopening the evidence would have caused no prejudice to State




      1
        State Farm argues that this evidence would not have conclusively established that Caudillo is uninsured.
      Appellee’s Br. on Reh. p. 7. We are not persuaded by this argument. In our view, evidence that State Farm
      itself had acknowledged Caudillo as uninsured in another claim stemming from the same accident is
      compelling evidence indeed that she was uninsured. If nothing else, it is sufficiently persuasive that it should
      have been before the jury as it made its determination.

      Court of Appeals of Indiana | Mem. Dec. on Rehearing 45A05-1712-CT-2934 | October 25, 2018           Page 3 of 5
      Farm, nor would it have caused confusion or inconvenience to the trial court or

      the jury.


[4]   The result in this case was an unearned $170,000 windfall to State Farm

      stemming from an inadvertent attorney error that could have been easily and

      quickly remedied. We agree with Owens that this outcome defies traditional

      notions of substantial justice and fair play. Under these circumstances, we can

      only conclude that the trial court erred by denying Owens’s motion to reopen

      the evidence. Therefore, we reverse and remand for further proceedings.


      Kirsch, J., concurs.
      Bradford, J., dissents with separate opinion.




      Court of Appeals of Indiana | Mem. Dec. on Rehearing 45A05-1712-CT-2934 | October 25, 2018   Page 4 of 5
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kayla Owens,                                              Court of Appeals Case No.
                                                                45A05-1712-CT-2934
      Appellant-Plaintiff,

              v.

      Amanda Caudillo and State
      Farm Mutual Automobile
      Insurance Co.,
      Appellees-Defendants.




      Bradford, Judge, dissenting.

[5]   I respectfully dissent from the majority’s decision on rehearing and, based on

      the reasoning included in the memorandum decision issued on August 2, 2018,

      would vote to deny rehearing.




      Court of Appeals of Indiana | Mem. Dec. on Rehearing 45A05-1712-CT-2934 | October 25, 2018   Page 5 of 5
