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COA reverses award of attorney fees to couple

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The Indiana Court of Appeals found a trial court erred in awarding attorney fees to a couple that sued their insurer following a car accident. The trial court ruled that GEICO litigated the claim in bad faith.

Cheryl and Jim O’Mailia brought an underinsured motorist claim under their policy with GEICO after Cheryl O’Mailia was injured while riding as a passenger in someone else’s car. A week before trial, GEICO’s attorneys discovered on Florida Department of Public Health’s public website that Jim O’Mailia’s medical license was under investigation based on allegations he forged prescriptions for his wife, referred to as the Florida Information in the court record. He pleaded nolo contendere to violating five counts of Florida law by uttering a forged instrument and entered into a settlement.

GEICO did not alert the O’Mailias of the Florida Information it had found, and apparently the O’Mailias did not tell their counsel about the same. On cross-examination of Jim O’Mailia, the GEICO attorney brought up the Florida Information, leading to an objection by the O’Mailias. The GEICO attorney told the court their attorney did not disclose the information because he did not believe there was any obligation to based on trial rules.

Cheryl O’Mailia received a $125,000 judgment. The trial court denied the O’Mailias’ request for a new trial but awarded attorney fees under Ind. Code 34-52-1-1(b)(3), finding that GEICO litigated the action in bad faith with regard to its decision to not disclose the Florida Information. The court concluded that this failure to disclose ran afoul of Ind. Professional Conduct Rule 8.4(d).

In Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O'Mailia, and James O'Mailia, 20A04-1307-CT-325, GEICO argued that it did not litigate in bad faith, and it points to the fact that it researched whether it had a duty to disclose and decided that there was none. The O’Mailias claimed that GEICO’s focus on the Indiana Trial Rules and Rules of Evidence is misplaced because the court found that GEICO’s counsel’s “actions were a breach of professionalism and courtesy and were prejudicial to the administration of justice.”

Based on the statements by GEICO’s counsel, the appellate court concluded that the decision not to disclose the Florida Information was not borne out of ill will, and was not dishonest or immoral, but instead was strategic in nature and believed to be within the bounds of the law.

“Indeed, the O’Mailias, as well as the court, agreed with the results of GEICO’s research that neither the Trial Rules nor the Rules of Evidence compelled GEICO to disclose the information, nor has case law been uncovered imposing such a duty. We cannot say that such circumstances are indicative of litigating in bad faith,” Judge Elaine Brown wrote.

Judge Michael Barnes concurred, writing, “I do so with some hesitation, though, because I believe that trial by ambush and rabbit-out-of-the-hat moments are not to be favored in our courtrooms.”

 

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  1. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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