Seifert v. Bland

546 N.E.2d 1242, 1989 Ind. App. LEXIS 1232, 1989 WL 147529

• Court: Indiana Court of Appeals
• Decided: December 4, 1989
• Docket: 71A03-8903-CV-85
• Status: Published

Opinions

HOFFMAN, Judge.

Appellant Robert B. Seifert appeals a jury trial judgment in favor of Leon Bland. The facts indicate that on October 5, 1986 automobiles driven by Seifert and Bland collided at a South Bend intersection. Sei-fert had a blood alcohol content of .20% at the time of the accident. The parties stipulated that Seifert ran the stop sign at the intersection. Bland made a legal stop before entering the intersection. The jury found that Seifert caused Bland $250,-000.00 in damage and trebled the damage award to $750,000.00. By agreement of the parties, damages were reduced from $750,000.00 to $500,000. The trial court awarded Bland an additional $300,000.00 in attorney’s fees and $5,616.70 for costs.

Seifert argues that the trial court erred in the following jury instruction:

“A person engages in conduct which is reckless if he engages in the conduct in plain, conscious, and unjustifiable disregard of the harm that might result and this disregard of the harm that might result to others involves a substantial deviation from acceptable standards of conduct.

If you find that:

1. the defendant recklessly damaged property of another without his consent; and

2. Mr. Bland sustained a pecuniary loss as a result of the defendants [sic] reckless conduct;

Then you may award Mr. Bland:

1. An amount not to exceed three (3) times his actual damages; and

2. All costs of this action; and

3. a reasonable attorney’s fee which has been stipulated to be 35%; and

4. All actual travel expenses that were incurred by Mr. Bland to attend court proceedings; and

5. Reasonable compensation for Mr. Bland’s loss of time relating to attending all court proceedings; and

6. All reasonable expenses incurred relating to providing witnesses [sic] fees in attending court proceedings and in traveling to and from court proceedings; and

7. and all other reasonable costs of collection.

Pecuniary loss is a loss of money, or of something by which money, or something of money value may be acquired and includes any money lost as a result of lost wages or income, medical bills, or damage to property.

Actual damages includes all compensatory damages, which you may award Mr. Bland in compensation for Mr. Bland’s injuries, including past, present and future physical and mental pain and suffering, all reasonable medical expenses, all lost wages or impairment to earning capacity, disability, property damage and loss of enjoyment of life.”

Ash v. Chandler (1988), Ind.App., 530 N.E.2d 303, stated that on its face the treble damages statute (IND.CODE § 34-4-30-1 (1988 Ed.)) is restricted to offenses against property. The trial court erred in not limiting application of the trebling instruction to property damage.

Appellant argues that the trial court erred in its damages instruction, which reads in part:

“If you find for the plaintiff on the question of liability, you must then determine the amount of money which will fully and fairly compensate him for those elements of damage which were proved by the evidence to have resulted from the negligence of the defendant. With respect to the damages sustained by Mr. Bland, you may consider:

1. The nature and extent of Mr. Bland’s injuries.

2. Whether Mr. Bland’s injuries are temporary or permanent.

3. The physical pain and mental suffering which Mr. Bland has experienced and the physical and mental suffering he will suffer in the future as a result of his injuries.

4. The reasonable expense of necessary medical care, treatment and services.

5. The difference between the fair market value of any personal property damaged immediately before the damage and the fair market value of the property after the damage.

6. The value of any lost earnings and the loss or impairment of any future earning capacity.

7. The loss of the quality and enjoyment of life.... ”

The trial court erred in using “the loss of the quality and enjoyment of life” as a separate element of damage. Juries should consider loss of enjoyment of life as a component of other elements of damage, such as pain and suffering or permanency of the injury to avoid impermissible duplication of damages. Marks v. Gaskill (1989), Ind.App., 546 N.E.2d 1245.

The trial court erred in its jury instructions.

Reversed.

GARRARD, P.J., concurs. STATON, J., concurs in result with opinion.