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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. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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