By the third paragraph of the April order granting summary judgment to the defendants, Carroll Circuit Judge Benjamin Diener showed his frustration by declaring, “The civil litigation process in Indiana is broken.”
The ruling was issued in a personal injury case brought by Penny Chappey and her husband Gregory Chappey after she fell off the flatbed of a tow truck. Diener found no genuine issue of material fact and tossed the case in favor of the defendants, Complete Auto & Tire and its tow truck driver, Joseph Paul Storey.
However, the judge used the bulk of his three-page order to lambaste insurance companies, which he claimed have come to dominate the civil legal process. He touched upon the suggestion of banishing these businesses, then calls upon the judiciary to “ferret out this behavior” by allocating costs “regularly and aggressively” for the prevailing party.
“So, the third branch of government (the judiciary) has become the venue whereby for-profit-legal fictions (insurance companies) use the Courts as a potential revenue stream to extract funds from each other … in effort to positively affect their shareholder’s profit (which is their sole legal objective, by definition, ),” Diener wrote in Penny Chappey, et al. v. Joseph Paul Storey, et al., 08C01-1904-CT-2. “It is disgusting and no citizens, civilians or voters in Indiana benefit, to any reasonable degree, to allow this to continue.”
The judge implored the litigants, “Please take this case to the Supreme Court.” But he wondered if the insurance company covering the plaintiffs would “tacitly collude” with the insurance industry to eat the costs rather than risk the Court of Appeals of Indiana or Indiana Supreme Court taking a close look at why the civil litigation process “remains a farce overrun by legal fictions.”
A notice of appeal was filed by the Chappeys less than 30 days after the order was issued.
The plaintiffs’ attorney, Marcus Misinec of Bayliff Harrigan Cord Maugans & Cox in Kokomo, did not respond to a request for comment. The defendants’ attorney, James Shea of Hunt Suedhoff Kearney LLP in Fort Wayne, declined to comment because the case is ongoing.
Also, neither the Indiana Trial Lawyers Association nor the Defense Trial Counsel of Indiana agreed to answer questions or state if they planned to file amicus curiae briefs in this case.
Likewise, Diener did not return a phone call from Indiana Lawyer.
A dog and a fall
Penny Chappey’s ordeal began when her car failed to start after she stopped at a CVS pharmacy in Delphi in July 2018.
Complete Auto & Tire responded to her request for help and Storey was dispatched in the tow truck to retrieve her vehicle. The parties agree that Chappey left her bulldog puppy in the car while it was being loaded onto the flatbed and that after the car was in place, she climbed onto the truck but then lost her balance and fell to the ground.
According to the complaint, Chappey sustained severe injuries to her right leg, including a fractured tibia and fibula along with a broken knee cap. Her recovery brought more problems with blood clotting in both her legs and her lungs, which led to bursting ulcers and severe blood loss.
Chappey, as a result, had to be placed in a medically-induced coma and endured multiple endoscopies, a feeding tube and Lovenox abdomen shots.
The parties disagree as to why Chappey climbed onto the flatbed.
She asserted she offered to get the dog out of the car and walk it to Complete Auto & Tire, but Storey said the pup would not be a problem. When the car was on the flatbed, the driver asked Chappey to climb onboard and secure the dog with the leash while he opened the driver’s side door and placed the vehicle in park.
The defendants countered Chappey did not “want the hassle” of handling the dog, so she left the animal in her car. While the vehicle was being hoisted onto the truck, the dog was “extremely excited and jumping all over the inside of the vehicle.” They also claimed Chappey accessed the bed of the wrecker without permission and she “somehow ended up on the ground.”
In their motion for summary judgment, the defendants argued Chappey is only speculating they are responsible for her fall because the “undisputed evidence” establishes that she is completely unaware of what caused her accident.
Diener, expressing frustration at the slow pace of the litigation, held none of the facts could connect the defendants to any breach of duty that caused Chappey’s injuries.
“It simply cannot stand that we allow a system to exist where anybody can sue anyone at any time and the prevailing party does not regularly and customarily get awarded costs at the Court’s discretion,” Diener wrote. “Because, a non-culpable Defendant still has to navigate this system designed to solve conflicts between rational actions, not between legal fictions, while almost always, being flooded by voluminous discovery requests (purportedly DUE in less than ___ days) from Plaintiff (which is almost always an insurance company.)”
The judge
Diener has been on the Carroll County bench about 10 years, having first been elected in 2012. At the time he ran, he was 32 and had been practicing only about five years. Nevertheless, Diener unseated the incumbent judge in the primary and beat the independent opponent in the general election.
A native of Monticello, Diener completed his undergraduate degree at Indiana University then earned a J.D. from Barry University Dwayne O. Andreas School of Law in Miami. He started practicing in 2007 and returned to Indiana in 2009.
Diener told the Logansport Pharos-Tribune he sought the judgeship because he thought he could do well, saying, “I felt that my strengths outweighed any perceived or actual weaknesses.”
Attorney Patrick Manahan of Emerson & Manahan in Delphi practices regularly in Diener’s court, mostly representing criminal defendants. He described the judge as fair and giving the “common man on the street” his day in court. In addition, Manahan said he has found Diener to be receptive to all kinds of arguments and sensitive to the “common person’s” plight.
The lawyer also noted Diener is intelligent and prides himself on being a thinker.
“Rarely does he give an opinion in which he doesn’t provide a reason,” Manahan said. “… He doesn’t just deny the motion and go on and you never know where you’re at. He will explain what his thought process is. You may agree with him, you may not, but I’ve never found him to be someone that kind of hides behind the ball and doesn’t tell you what he’s thinking or how he feels or what the law is.”
Diener revealed his thinking in Chappey.
“The broken system cannot be fixed unless people are willing to change it,” Diener wrote. “It takes someone with an ability to effectuate a change to start that change.
“This officer fears not the ridicule or scrutiny,” the judge continued. “No rational person, on their own accord, would have pursued this claim. However, a legal fiction would and did.”
Citing Indiana Trial Rule 54(D), the judge assessed the costs against the Chappeys. He then ordered the defendants to file an itemized statement of all costs.
Defense counsel filed the statement May 5. The firm worked 224.40 hours on the matter and charged total fees and expenses of $25,293.80, of which $328.50 remains to be billed. •
This article was first published in The Indiana Lawyer.
