Frederick Cashner, Sr. and Lucille Cashner v. Western-Southern Life Assurance Company

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Sep 25 2014, 9:13 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
PATRICK B. MCEUEN JULIA BLACKWELL GELINAS
McEuen Law Office DARREN A. CRAIG
Portage, Indiana Frost Brown Todd LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FREDERICK CASHNER, SR. and )
LUCILLE CASHNER, )
)
Appellants-Defendants, )
)
vs. ) No. 64A04-1311-PL-555
)
WESTERN-SOUTHERN LIFE ASSURANCE )
COMPANY, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William A. Alexa, Judge
Cause No. 64D02-1302-PL-1918
September 25, 2014
MEMORANDUM DECISION FOR REHEARING - NOT FOR PUBLICATION
FRIEDLANDER, Judge
In a June 25, 2014 unpublished memorandum decision, this court affirmed the trial
court’s grant of a motion for costs and attorney fees filed by Western-Southern Life
Assurance Company (Western-Southern). The trial court’s ruling was based upon its
determination that the Cashners continued to litigate their counterclaim for bad faith after
it became frivolous, unreasonable, or groundless. The Cashners seek rehearing upon two
grounds. We summarily reject the first contention, which involves the viability of their
argument that Cain v. Griffin, 849 N.E.2d 507 (Ind. 2006) did not defeat their counterclaim.
We grant rehearing to address their second contention, which is that our discussion
included incorrect dates for two matters of procedural history.
In our statement of the facts, we correctly noted that Western-Southern’s motion to
dismiss was filed on May 23, 2013 and granted on June 4, 2013. Later in the opinion,
however, we mistakenly indicated that the trial court did not rule upon the motion for four
months. We also indicated that the Cashners filed their motion to correct error after the
trial court awarded attorney fees to Western-Southern, when in fact the motion to correct
errors was filed after Western-Southern submitted the request for fees, but before the trial
court granted that request. We grant the petition for rehearing for the sole purpose of
correcting those misstatements, but our conclusions are unaffected.
The trial court granted attorney fees because the Cashners continued to litigate their
counterclaim for bad faith after they knew or should have known that it was frivolous,
unreasonable, or groundless. Western-Southern apprised them of such grounds on or about
May 3, 2013. On the facts of this case and pursuant to Cain, there was simply no viable
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bad-faith case to be made against Western-Southern following its filing of the interpleader
action. Yet, the Cashners thereafter ignored Western-Southern’s request to voluntarily
dismiss their case alleging bad faith. This required Western-Southern to expend legal fees
in order to defeat the Cashners’ claim in a court of law, initially by filing a motion to
dismiss. The trial court granted that motion, to which the Cashners responded by filing a
motion to correct error. We affirmed upon our conclusion that the Cashners knew or should
have known on or about May 3, 2013 that their counterclaim for bad faith was groundless
pursuant to Cain. The two inaccuracies cited by the Cashners are not material to that
conclusion.
MATHIAS, J., and PYLE, J., concur.
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