ILNews

Lack of surgery doesn't support jury instruction

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Indiana Court of Appeals reversed a jury award and remanded for a new trial after ruling there was insufficient evidence to support an affirmative defense of a failure to mitigate damages instruction to the jury because a plaintiff failed to have surgery.

In Elwood and Lila Simmons v. Erie Insurance Exchange, No. 32A04-0710-CV-552, the couple appealed a judgment awarding them each $10,000 following an automobile accident involving Elwood and another driver, who was at fault. They filed a complaint seeking underinsured motorist insurance benefits from their insurer, Erie Insurance. Elwood sought compensation for damages suffered from the accident resulting in plantar fascitis, which caused pain in his right foot and made him develop a learned gait to avoid putting pressure on certain parts of his foot.

Elwood saw several doctors and was given treatment and physical therapy, but surgery was never suggested by any of the doctors.

At trial, Erie tendered a proposed jury instruction on the affirmative defense of failure to mitigate damages, which the trial court allowed. The jury awarded $10,000 each to the couple but granted Erie's motion that they weren't entitled to any payment from Erie because they had been paid previously by the other motorist's insurance.

Erie argued Elwood failed to mitigate damages by not undergoing surgery to treat his plantar fascitis, by developing a learned gait, and his alleged failure to regularly use medications and orthotics.

The Court of Appeals noted in the opinion that the "duty of one injured because of another's fault to submit to invasive treatment has caused courts some trouble" and Indiana hasn't addressed whether a plaintiff has to submit to surgery in nearly 100 years. The appellate court examined previous Indiana caselaw on this matter, as well as rulings from other states to conclude whether a plaintiff has a duty to submit to surgery requires a "reasonable person" analysis, wrote Judge Margret Robb.

Based on the facts that no doctor recommended surgery, his doctors prescribed other treatments, and Erie's failure to introduce evidence regarding the risks, benefits, costs, or inconveniences of the surgery, the Court of Appeals concluded Elwood's failure to undergo surgery is insufficient to support an instruction on failure to mitigate damages.

The court also found his learned gait as a result of the plantar fascitis and his alleged failure to regularly use his medications and orthotics don't support the trial court's instruction on failure to mitigate damages, wrote Judge Robb.

The issue of mitigation of damages was emphasized for the jury, and the likelihood the matter was discussed and impacted the jury's verdict is significant and not a harmless error, wrote the judge, so the appellate court remanded for a new trial.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Put aside all the marijuana concerns, we are talking about food and fiber uses here. The federal impediments to hemp cultivation are totally ridiculous. Preposterous. Biggest hemp cultivators are China and Europe. We get most of ours from Canada. Hemp is as versatile as any crop ever including corn and soy. It's good the governor laid the way for this, regrettable the buffoons in DC stand in the way. A statutory relic of the failed "war on drugs"

  2. Cannabis is GOOD for our PEOPLE and GOOD for our STATE... 78% would like to see legal access to the product line for better Hoosier Heath. There is a 25% drop in PAIN KILLER Overdoses in states where CANNABIS is legal.

  3. This article is excellent and should be required reading for all attorneys and would-be attorneys, regardless of age or experience. I've caught myself committing several of the errors mentioned.

  4. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  5. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

ADVERTISEMENT