Ismael Alicea v. Ronald Brown

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
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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.
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[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).
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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
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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.
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[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,
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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.
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