The State of Mitigation in Indiana
By Susan G. Gainey “We, the jury, find Defendant 100 percent at fault for causing damages and find Plaintiff 49 percent at fault for causing damages.” Sound impossible? Until recently, that was exactly the state of mitigation in Indiana.
Attorneys, judges and juries were often placed in a confusing situation when defendant admitted liability for causing an accident, but argued plaintiff was at “fault” for her damages due to her failure to mitigate. The confusion stems from Indiana Code § 34-6-2-45(b). Under Indiana’s Comparative Fault Act, “fault” is defined to include “unreasonable failure to avoid an injury or to mitigate damages.” Ind. Code § 34-6-2-45(b)(1).
The Indiana Court of Appeals has struggled with the issue also. In Deible v. Pool, 691 N.E.2d 1313 (Ind.Ct.App. 1998), the issue was “[W]hether the defense of failure to mitigate damages may be used as a defense to the ultimate issue of liability or whether it simply concerns the amount of damages the plaintiff is entitled to recover when liability has been determined.” 691 N.E.2d at 1315. In Deible, defendant admitted liability for an automobile accident, but argued plaintiff failed to mitigate her damages based on plaintiff’s post-accident medical treatment. The jury returned a verdict finding plaintiff 100 percent at fault. The trial court denied plaintiff’s motion for new trial. The Court of Appeals, however, reversed and remanded for a new trial. In reaching its conclusion, the Court stated that “[M]itigation of damages is a defense to the amount of damages a plaintiff is entitled to recover after the defendant has been found to have caused the tort. Mitigation of damages is not a defense to the ultimate issue of liability.” 691 N.E.2d at 1316. The Indiana Supreme Court subsequently adopted the majority opinion of the Court of Appeals. Deible v. Pool, 702 N.E. 1076 (Ind. 1998).
Four years later, another panel of the Court of Appeals reached a different conclusion. In Medlock v. Blackwell, 724 N.E.2d 1135 (Ind.Ct.App. 2000)(implied overruling recognized by Gregory & Appel Ins. Agency v. Philadelphia Indem. Ins. Co., 835 N.E.2d 1053 (Ind.Ct.App. 2005)). Plaintiffs were passengers in a vehicle that was rear-ended by defendant’s vehicle. Defendant contended plaintiffs were at “fault” for their damages by neglecting to follow through with recommended medical treatment. The jury found plaintiffs 49 percent at fault. The jury instruction at issue stated “Fault… includes unreasonable failure to mitigate damages.” The Court of Appeals approved this jury instruction and affirmed the jury verdict. The Court stated that the jury was “correctly instructed that the failure to mitigate damages related directly to the allocation of fault.” 724 N.E.2d at 1137.
Last year, the Indiana Supreme Court clarified the issue in Kocher v. Getz, 824 N.E.2d 671 (2005). In Kocher, defendant admitted fault for the accident, but argued that he was entitled to a mitigation of damages instruction, which the trial court refused to give to the jury. The Court of Appeals reversed, but the Indiana Supreme Court affirmed the trial court. The Supreme Court held that “In cases arising under the Act, a defense of mitigation of damages based upon a plaintiff's acts or omissions occurring after an accident or initial injury is not properly included in the determination and allocation of ‘fault’ under the Act.” The Court explained that “The phrase ‘unreasonable failure to avoid an injury or to mitigate damages’ included in the definition of ‘fault’ under Indiana Code § 34-6-2-45(b) applies only to a plaintiff's conduct before an accident or initial injury.” 824 N.E.2d at 674 (emphasis in original). A failure to mitigate damages can therefore be raised as a defense to liability only when plaintiff's actions before the accident or initial injury contribute to the damages. The Court’s example of pre-accident conduct by plaintiff which could act as a defense to liability is where a plaintiff failed to exercise reasonable care in using appropriate safety devises. 824 N.E.2d at 675. The result is that post-accident conduct, such as failing to seek timely medical treatment or failing to follow a doctor’s treatment plan, will not be considered in assessment of fault. In other words, even though the Comparative Fault Act states that the term “fault” includes a failure to mitigate damages, post-accident actions by a plaintiff will not bar a remedy, but goes only to the amount of damages recoverable.
Theoretically then, there should not be another jury verdict wherein defendant admits fault, but plaintiff is also assessed fault, as was the case in Dieble and Metlock. If post-accident failure to follow medical treatment is an issue in a case, the next question is what evidence is necessary in order to establish that defendant is entitled to a jury instruction regarding plaintiff’s failure to mitigate damages? There is a long line of Indiana Court of Appeals cases holding that expert medical testimony is required in order for defendant to establish that she is entitled to a mitigation of damages instruction. See Wilkinson v. Swafford, 811 N.E.2d 374 (Ind.Ct.App. 2004); Mroz v. Harrison, 815 N.E.2d 551 (Ind.Ct.App. 2004); Staton v. Hawkins, 818 N.E.2d 79 (Ind.Ct.App. 2004); Sikora v. Fromm, 782 N.E.2d 355 (Ind.Ct.App. 2002); Kristoff v. Glasson, 778 N.E.2d 465 (Ind.Ct.App. 2002). The Indiana Supreme Court, however, ruled last month in Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006), that “whether a failure to mitigate defense based on a plaintiff's failure to follow medical treatment advice requires expert medical testimony to establish causation must be resolved on a case-by-case basis.” 839 N.E.2d at 1179. The Court stated that, in many cases, expert medical testimony may be required, but it is error to assume that expert medical testimony is universally required. 839 N.E.2d at 1188. The Court explained that mitigation of damages is an affirmative defense that requires defendant to prove the proposition by a preponderance of the evidence. 839 N.E.2d at 1188. The trial court should use a case-by-case approach to determine at the close of evidence if defendant has produced enough evidence to support giving a mitigation of damages instruction to the jury. Defendant can meet her burden by producing “competent non-expert evidence of causation” between plaintiff’s failure to follow medical treatment and plaintiff’s damages. 839 N.E.2d at 1189. Nevertheless, the Supreme Court warned that “A party presenting a failure to mitigate damages defense without expert testimony on causation will do so at his or her own peril.” 839 N.E.2d at 1189.
So what are the lessons from these cases? The lessons learned are that, practically speaking, defendant can no longer rely on the plain language of Ind. Code § 34-6-2-45(b) to argue that plaintiff’s “fault” includes post-accident conduct. Now, post-accident failure to mitigate only goes to the amount of damages recoverable and will not be considered in the jury’s fault allocation. Further, to establish that defendant is entitled to a mitigation of damages instruction, defendant does not have to have expert medical testimony. Nonetheless, as the Supreme Court warned, a defendant who argues plaintiff failed to mitigate her damages without expert medical testimony does so at the risk that the trial court will not find adequate evidence to support the necessity of a failure to mitigate instruction. A defendant wishing to prove plaintiff’s failure to mitigate damages would be wise to be armed with expert testimony on the issue, although expert testimony is not universally required.
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