November 29, 2011
Earlier today, the Indiana Court of Appeals held that a motion to reconsider an interlocutory order does not toll the time for certifying that interlocutory order for appeal in
Nationwide Ins. Co. v. Parmer, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 41A01-1008-CT-377. The Court also addressed whether a nonparty defense could be asserted against a dismissed defendant. Litigators should read this decision to see how it should affect their litigation strategies.
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This case arose from a fire that occurred on July 3, 2006 when fireworks caused a boathouse to catch fire and burn down. The owners of the boathouse sued multiple defendants who were lighting fireworks in the area that night. Multiple motions for summary judgment were filed and the trial court granted summary judgment to twoof the defendants, but not to any of the others. Twoof the remaining defendants then were granted leave to name the dismissed defendants as nonparties at fault as an affirmative defense.
The plaintiffs filed an objection to the defendants naming the dismissed defendants as nonparties at fault and asked the trial court to reconsider its order. The trial court denied the motion to reconsider. The plaintiffs then sought certification for an interlocutory appeal, which the trial court granted. Because of the way the proceedings occurred the motion to certify the interlocutory order was filed more than 30 days after one of the orders granting leave to name the dismissed parties as nonparties, but within 30 days of the other order.
On appeal, the Court noted that the plaintiffs' motion seeking certification of the first interlocutory order was filed more than 30 days after the order was entered in violation of
App. R. 14(B)(1)(a). The Court found that
Trial Rule 53.4 prevents a motion for reconsideration from tolling the time for moving to certify an interlocutory appeal. Therefore, the Court found that it did not have jurisdiction to hear plaintiffs' appeal.
Significantly, the Court found that the plaintiffs' procedural mishap meant that they "waiver their claims regarding the Order on appeal." The Court's language is broad and may be interpreted by some litigants to mean that the ability to appeal those issues is forever barred. Such an interpretation may be in tension with the Indiana Supreme Court's decision in
Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003), which held that "there is no requirement that an interlocutory appeal be taken, and [an appellant] may elect to wait until the end of litigation to raise the issue on appeal from a final judgment." However, the argument could still be made. Therefore, litigators should think carefully about moving to certify an interlocutory appeal, as a procedural misstep at this stage may prevent you from being able to argue the issues at a later stage in the proceedings.
After dealing with this procedural issue, the Court addressed the other order granting leave to add the dismissed defendants as nonparties. The Court described the steps a defendant must take in order to preserve a nonparty defense.
Based on this language, we find it apparent that a party-defendant need only object to a dismissal or claim that a party-defendant should remain for purposes of allocation of fault in order to preserve a nonparty defense.
The defendant at issue satisfied this test because she responded to the motions for summary judgment by "oppos[ing] and object[ing] to any portion" calling for them to be dismissed without also dismissing her. She also argued that there were genuine issues of material fact that precluded the dismissal of those defendants from the case and filed motions to correct the trial court's errors when the trial court dismissed the party-defendants. These actions were sufficient to preserve her nonparty defenses.
This held true even though the defendants' motions for summary judgment had been based on proximate cause arguments.
It is notable that the plaintiffs in this case apparently did not move for summary judgment on the issue of the comparative fault defenses that identified the now-dismissed defendants as parties at fault. If the plaintiffs had placed those defenses at issue in the summary judgment proceedings, then the defendant may have had to do more than simply object to the dismissal of a co-defendant.
Lessons:
- A motion for reconsideration does not toll the time for moving to certify an interlocutory order for appeal.
- A party-defendant preserves a nonparty defense if the party-defendant objects to a dismissal or claim that another party-defendant should remain for purposes of allocation of fault.
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