The Indiana Court of Appeals recently issued another decision reversing a trial court for giving a failure-to-mitigate jury instruction in an Indiana car accident case. We had previously written about a similar decision in Humphrey v. Tuck. In this case, Harris v. Jones, the Plaintiff, Marlo Harris, was rear-ended on the interstate by the Defendant, Joe Jones, Jr. Harris filed suit against Jones for compensatory damages for her injuries and punitive damages alleging Jones was intoxicated while driving. She also filed an uninsured/underinsured claim against Allstate.
Harris experienced low back pain following the car crash that continued to worsen. Her treating physician diagnosed her with acute lumbar disk disease with left radiculopathy. He treated her with pain medications and injections and referred her for an MRI to determine the cause of her radicular symptoms. Harris never underwent the MRI test. During the four years prior to trial, Harris continued to experience back pain; however, she did not have any medical treatment.
Prior to trial Jones made a qualified settlement offer to Harris in the amount of $25,000.00. Under Indiana law, qualified settlement offers can be made at any time after a complaint has been filed but not within thirty days of trial. Ind. Code § 34-50-1-2. Qualified settlement offers must resolve all claims and defenses. Ind. Code § 34-50-1-3. They must be in writing, signed by the offeror or the offeror’s attorney with his or her name and address, be designated as a qualified settlement offer, be delivered by registered or certified mail or another method verifying the date of receipt, set forth the complete terms of the proposed settlement, and revoke all prior qualified settlement offers. Ind. Code § 34-50-1-4. If a party does not accept a qualified settlement offer, and a final judgment is less favorable than the terms of the qualified settlement offer, the party that made the qualified settlement offer is entitled to attorney’s fees, costs and expenses, not to exceed $1,000.00. After the jury awarded Harris only $10,000.00, the Court awarded Jones $1,000.00 in fees.
Harris appealed the judgment arguing the trial court erred in giving a failure-to-mitigate jury instruction, which required the jury to reduce the amount of damages to Harris if it found Harris had failed to exercise reasonable care to mitigate her post-injury damages. Under Indiana law, failure to mitigate is an affirmative defense. Defendants must show that (1) a plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages and (2) such failure caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligence.
The Indiana Court of Appeals found no evidence of as to the second element in this case, namely, whether any failure to mitigate by Harris caused an increase or aggravation of her injuries. There was no expert testimony Harris’s failure to get the MRI caused her any additional injury or any identifiable item of harm not attributable to the car crash. While the Defendant argued on appeal that no expert testimony was required because such issues were within the common knowledge of lay persons, the Court disagreed given the subjective nature of Harris’s alleged injuries, and in any case, the Court recognized that absolutely no evidence, expert or otherwise, was presented that additional harm, and how much additional harm, was caused by Harris not getting the MRI.
The Indiana Court of Appeals held the trial court erred in giving the failure-to-mitigate instruction, and since the erroneous instruction could have formed the basis of the jury’s verdict (there being only a general verdict and no way to discern whether Harris’s award was reduced as a result of the instruction), the Court reversed and remanded for a new trial. In so doing, the Court also vacated the award of $1,000.00 in fees to the Defendant based upon his qualified settlement offer.
You can read the full opinion here.