THE LAW OFFICE OF JOHN H. DAVIS ANNOUNCES FILING OF VERIFIED MOTION TO CORRECT ERRORS IN INDIANA COURT
CROWN POINT, Ind., Nov. 22, 2024 /PRNewswire/ -- The Law Office of John H. Davis announces filing of motion to correct errors—in the matter of Gail Lewis Hicks and Larry Hicks vs. American Family Mutual Insurance Company, S.I. and Keith Head. An amended complaint was filed approximately two (2) years after a United States Supreme Court petition for writ of certiorari was denied. Said 2022 petition is below.
After much litigation, Defendant—American Family Mutual Insurance Company, S.I. ("American Family") was later dismissed as part of the original Complaint—though litigation continued with Defendant—Keith Head ("Head"). Head argued Plaintiff—Gail Hicks ("Gail") was partially responsible during a car accident by contributory negligence however the police report indicated Gail had no contributing factors in said accident. The driver of Head's car admitted at that time to police that she looked down and was "distracted" before hitting Gail's car from behind at an intersection.
In the above case, the procedure could not go forth because Plaintiff—Larry Hicks ("Larry") died. Larry along with Gail both sued for loss of consortium in that Larry was Gail's husband. When a plaintiff dies prior to conclusion of litigation, the deceased plaintiff's estate can be substituted as plaintiff and the claim can then be pursued on behalf of beneficiaries of the deceased—meaning lawsuits can continue with the deceased person's estate becoming one of the plaintiffs in said lawsuit. That is what occurred in this case.
Thus the amendment of the original complaint was limited to Larry—namely substituting his estate for Larry. Subsequent to the filing of the amended complaint, American Family filed a motion to dismiss plaintiffs' amended complaint notwithstanding that plaintiffs' amended complaint did not seek to re-litigate American Family as a defendant.
American Family, the trial court, and plaintiffs were aware that American Family had been dismissed as a defendant and the amended complaint acknowledged that fact. Thus, American Family had no purpose by filing a motion to dismiss when all parties were aware that American Family had already been dismissed from the case and a motion to dismiss was moot. As indicated, all parties—including American Family, the trial court, and plaintiffs—were aware American Family had been dismissed.
Thus the trial court's granting American Family's motion to dismiss plaintiffs' amended complaint was also moot. In granting a moot motion to dismiss, the trial court also denied plaintiffs' right to respond to said motion to dismiss within the allotted time pursuant to Indiana Rules of Trial Procedure and Lake County Local Rule 45-TR7.
Furthermore, American Family filed their moot motion to dismiss on November 11, 2024 and the trial court—by The Honorable Calvin D. Hawkins—granted American Family's moot motion to dismiss on November 12, 2024. In other words, the trial court granted American Family's motion—the very next day.
See copy of plaintiffs' verified motion to correct errors filed November 20, 2024.
This case also involved procedural Notice to the trial court regarding denial of plaintiffs' United States Supreme Court petition for writ of certiorari filed as to Defendant—American Family. In denial of a petition for writ of certiorari, the United States Supreme Court does not consider merits of the case—or lack thereof. Though trial was previously set for March 3, 2025, the verified motion to correct errors requests the trial court to re-set all dates previously cancelled, including the trial date.
SOURCE Attorney John H. Davis & Associates
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