Dave Stafford for www.theindianalawyer.com

A pedestrian severely injured when he was struck by a strip club waitress driving home from work may proceed with a civil lawsuit against the Indianapolis club that furnished her free alcohol, the Indiana Court of Appeals affirmed Wednesday.

Jerry Coleman Buchanan was walking west in the middle of the eastbound lane of Kessler Boulevard near Ditch Road sometime after 3:30 a.m. on July 29, 2007, when he was struck by a vehicle driven by Candice Vowell. Buchanan suffered severe brain trauma and several broken bones.

Vowell was on her way home from Brad’s Gold Club on the city’s west side, where she worked as a cocktail waitress. She claims she never saw Buchanan and didn’t stop at the scene of the crash, but when she arrived home she told her husband she’d hit something. Her husband went to the scene and saw a pedestrian had been injured, and when he returned home, Vowell called police around 6 a.m. to admit she was involved.

Some three hours after the crash, Vowell’s blood-alcohol level measured 0.06. The level is below the legal limit, but toxicologists concluded her blood alcohol content would have been about 0.10 to 0.128 at the time of the crash.

Vowell ultimately pleaded guilty to Class D felony operating a motor vehicle while intoxicated causing serious bodily injury, receiving a one-year suspended sentence.

The record indicates the club provided employees alcohol, though the amount Vowell consumed during her shift before the crash is disputed.

“(W)e conclude that the trial court properly denied (Brad’s Gold Club’s) motion for summary judgment under the Dram Shop Act because there is a genuine issue of fact concerning whether BGC furnished alcohol to Vowell with actual knowledge that she was visibly intoxicated,” Judge Patricia Riley wrote for the panel.

“The trial court also properly denied BGC’s summary judgment motion as it pertains to the common law because there is a genuine issue of material fact as to whether BGC breached its duty to supervise Vowell’s conduct during her shift.  We further conclude that the trial court appropriately denied Buchanan’s cross-motion for summary judgment because, even assuming the imputed knowledge doctrine applies, the designated evidence establishes that Vowell had no knowledge of her own level of intoxication to be imputed to BGC.”

Vowell acknowledged the club had a policy allowing bartenders and waitresses one free drink at the end of shifts, but she said employees also had toasted the coming Brickyard 400 earlier in the day. Toxicologists agreed Vowell’ alcohol intake must have exceeded the two shots of vodka she claimed to have consumed at the club, Riley wrote.

The case is BGC Entertainment, Inc. d/b/a Brad’s Gold Club and 3551 Lafayette Road Corp. d/b/a Brad’s Gold Club v. Jerry Coleman Buchanan, by His Father and Guardian, Odell Buchanan, 49A05-1408-CT-373.

Dave Stafford for www.theindianalawyer.com

A Porter County man won his argument that his insurer’s acceptance of a late payment kept his homeowners coverage in force, after which a garage fire caused damage exceeding $80,000. Now, the insurer also may have to pay bad-faith and punitive damages.

A Court of Appeals panel reversed Porter Superior Judge Roger Bradford’s judgment in favor of the insurer Tuesday in Richard Zeller, Jr. v. AAA Insurance Company,  64A05-1502-CT-84. “On appeal, Zeller argues that the trial court’s ruling is erroneous because the policy was reinstated when AAA accepted his payment. We agree. Therefore, we reverse and remand for further proceedings,” Judge Terry Crone wrote for the panel.

Zeller had coverage with AAA since 2006, but the company sent a notice saying that without a payment the policy would expire Nov. 30, 2011. Zeller mailed AAA a payment stub with his credit card information on Nov. 25, and the payment was posted to his credit card account on Dec. 7, according to the record.

Zeller’s garage caught fire on Dec. 9, but AAA denied coverage and attempted later that month to return Zeller’s premium in the form of a check with the notation, “This check is issued for the following reason – policy cancelled.” Zeller didn’t cash the check and sued instead, but the trial court ruled against him after a bench trial. The trial court found the day payment was “received” was Dec. 7, after the cancellation deadline, and that there was no evidence the insurer had reinstated the policy.

Crone wrote for the panel that Zeller’s policy specifically allows for reinstatement of a cancelled policy upon receipt of adequate payment, as was the case here.

“AAA could have protected itself by drafting more specific deadlines and requirements for reinstatement in its policy or by refusing to accept Zeller’s payment, which it had every right to do. AAA did neither of these things, however, so we must reverse the trial court’s judgment in its favor,” Crone wrote.

“We remand for the trial court to consider Zeller’s bad faith claim and his request for compensatory and punitive damages, which are issues that the court did not address in its judgment.”