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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA panel of the Indiana Court of Appeals again denied relief to a man left permanently disabled in a drunken-driving crash, but the panel in a brief opinion on rehearing issued Wednesday corrected a prior statement of fact in the case.
“We grant the petition for rehearing filed by Gregory Smith for the limited purpose of correcting a factual error on page 7 of our opinion. We stated that ‘Progressive filed a motion to consolidate the appeals,’ but, in fact, it was Smith who filed the motion to consolidate,” the panel wrote.
It’s the latest development in a case with a multi-million-dollar judgment in play, Progressive Southeastern Insurance Co. v. Gregory Smith and Nolan Clayton, and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company, 19A-PL-1094.
The case stems from a single-vehicle drunken-driving crash in which Nolan Clayton was at the wheel of Smith’s truck after the two left a Stacked Pickle restaurant in Indianapolis after a night of drinking. Restaurant employees had called a cab for the two, but they left in Smith’s vehicle before the cab arrived.
The crash rendered Smith quadriplegic, after which he sued Clayton and won a $35 million verdict. Finding Clayton 60% at fault, a Marion Superior jury awarded Smith a $21 million judgment.
But while one panel of the COA upheld the verdict in October 2018, another panel that same month reversed the Marion Superior Court, finding Smith’s insurer, Progressive Southeastern Insurance Co., was not obligated to cover him under terms of his uninsured motorist policy.
Then in January 2020, the COA ruled that Progressive was entitled to declaratory judgment as a matter of law.
The panel on rehearing declined to grant Smith’s requested relief — “that even if Progressive did not have a duty to defend Clayton, if it undertook his defense, it had a duty to do so competently and in good faith … .” The court noted this had been addressed in a footnote in its January opinion, in which it found, “The fact that Progressive did not have a duty to defend Clayton is not relevant to the questions at issue in the Malpractice or Bad Faith Actions related to the quality of the defense provided.”
“Therefore, aside from the factual correction described above, we deny the petition for rehearing,” Judge John Baker wrote for the panel.
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