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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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