Angry trial judge calls for changes to civil litigation system: Insurance companies are accused of pursuing frivolous claims
In the third paragraph of the April order granting summary judgment to the defendants, Carroll Circuit Judge Benjamin Diener showed his frustration by stating, “The civil litigation process in Indiana is broken.”
The decision was made in a personal injury case brought by Penny Chappey and her husband Gregory Chappey after she fell from the bed of a tow truck. Diener found no genuine issue of material fact and dismissed the case in favor of the defendants, Complete Auto & Tire and its tow truck driver, Joseph Paul Storey.
However, the judge used most of his three-page order to castigate insurance companies, which he said dominate the civil legal process. He touched on the suggestion to ban such companies, then called on the judiciary to “unearth this behavior” by allocating costs “regularly and aggressively” to the dominant party.
“Thus, the third branch of government (the judiciary) has become the place where for-profit legal fictions (insurance companies) use the courts as a potential source of revenue to extract funds from each other… for the purpose of to positively affect the profits of their shareholders. (which is their only legal purpose, by definition,),” Diener wrote in Penny Chappey, et al. against Joseph Paul Storey, et al., 08C01-1904-CT-2. “It is disgusting and no Indiana citizen, civilian or voter benefits to any reasonable degree from allowing this to continue.”
The judge implored the litigants: “Please bring this matter to the Supreme Court”. But he questioned whether the insurance company covering the plaintiffs would “tacitly agree” with the insurance industry to absorb the costs rather than risk the Indiana Court of Appeals or Supreme Court of Indiana takes a close look at why the civil litigation process “remains a farce.” invaded by legal fictions.
A notice of appeal was filed by the Chappeys less than 30 days after the order was issued.
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 pending.
Additionally, neither the Indiana Trial Lawyers Association nor Indiana’s defense attorney agreed to answer questions or indicate whether they plan to file amicus curiae briefs in the 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 it stopped at a CVS pharmacy in Delphi in July 2018.
Complete Auto & Tire responded to his request for help and Storey was sent to the tow truck to retrieve his vehicle. The parties agree that Chappey left her bulldog puppy in the car while she was loaded onto the set and once 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 suffered serious injuries to his right leg, including a fractured tibia and fibula as well as a broken kneecap. His recovery led to further blood clotting issues in his legs and lungs, which led to ulcers bursting and severe blood loss.
Chappey, as a result, had to be placed in a medically induced coma and underwent multiple endoscopies, a feeding tube, and abdominal injections of Lovenox.
The parties disagree on why Chappey got on set.
She claimed she offered to get the dog out of the car and walk it to Complete Auto & Tire, but Storey said the pup wouldn’t be a problem. When the car was on the set, the driver asked Chappey to get in and strap the dog on the leash while he opened the driver’s side door and pulled the vehicle into park.
The defendants countered that Chappey “didn’t want to bother” handling the dog, so she left the animal in her car. As the vehicle was being hoisted onto the truck, the dog was “extremely excited and was jumping all over the inside of the vehicle.” They also claimed Chappey gained access to the bed of the tow truck without permission and that she “somehow ended up on the ground.”
In their motion for summary judgment, the defendants argued that Chappey was only assuming they were responsible for her fall because the “undisputed evidence” establishes that she is completely unaware of what caused her accident.
Diener, expressing frustration with the slow trial, felt that none of the facts could connect the defendants to a dereliction of duty that caused Chappey’s injuries.
“He just can’t stand that we allow a system to exist where anyone can sue anyone at any time and the winning party doesn’t regularly and usually get costs at the Court’s discretion. “Diener wrote. “Because a not-guilty defendant must still navigate this system designed to resolve conflicts between rational actions, not between legal fictions, while almost always being inundated with voluminous discovery requests (allegedly DUE in less than ___ days ) of the claimant (which is almost always an insurance company.)”
Diener has been on the Carroll County bench for about 10 years, having first been elected in 2012. When he ran, he was 32 and had only practiced for about five years. Nonetheless, Diener overthrew the incumbent judge in the primary and defeated the independent opponent in the general election.
A native of Monticello, Diener earned his undergraduate degree at Indiana University, then earned a JD 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 that he applied for the judgeship because he thought he could do well, saying, “I felt my strengths outweighed any perceived or actual weaknesses.”
Attorney Patrick Manahan of Emerson & Manahan in Delphi practices regularly at Diener Court, primarily representing defendants. He described the judge as fair and giving the ‘ordinary man on the street’ his day in court. Additionally, Manahan said he found Diener receptive to all sorts of arguments and sensitive to the plight of the “ordinary person”.
The lawyer also noted that Diener is smart and prides himself on being a thinker.
“It’s rare that he gives an opinion in which he doesn’t give a reason,” Manahan said. “…He doesn’t just dismiss the motion and move on and you never know where you are. He will explain what his thought process is. You may agree with him, maybe not, but I’ve never found him someone who hides behind the ball and doesn’t tell you what he’s thinking or what he’s feeling or what is the law.
Diener revealed his thought in Chappey.
“The broken system can only be fixed if people are willing to change it,” Diener wrote. “It takes someone who has the ability to effect change to start that change.
“This officer fears neither ridicule nor scrutiny,” the judge continued. “No rational person, of their own volition, would have pursued this claim. However, a legal fiction would and did.
Citing Indiana Trial Rule 54(D), the judge assessed the charges against the Chappeys. He then ordered the defendants to file an itemized statement of all costs.
The defense attorney filed the statement on May 5. The firm worked 224.40 hours on the matter and billed total fees and expenses of $25,293.80, of which $328.50 remains to be billed. •