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ATTORNEY FOR APPELLANTS Stephen A. Oliver Martinsville, Indiana

ATTORNEY FOR APPELLEE Seth M. Lahn Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 55S01-0409-CV-431 ALICIA CRABTREE AND JACELYN CRABTREE, BY THEIR NEXT FRIEND KIMBERLY KEMP, Appellants (Plaintiffs below), v. ESTATE OF JACKIE L. CRABTREE, JR., Appellee (Defendant below). _________________________________ Appeal from the Morgan Circuit Court, No. 55C01-0204-CT-00199 The Honorable Matthew G. Hanson, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 55A01-0308-CV-295 _________________________________ November 9, 2005 Boehm, Justice. The plaintiffs in this case were injured in an accident as passengers in a car driven by their father while he was intoxicated. After their father died of unrelated causes, the children brought this suit against his estate. We hold that Indiana law does not permit recovery of punitive damages from a decedent's estate. We also hold that under the terms of this policy, the final judgment should exclude damages included in the verdict that were already satisfied by payments under the defendant's medical expenses coverage. Facts and Procedural History

Alicia and Jacelyn Crabtree were passengers when the car driven by their father, Jackie Crabtree, Jr., ("Crabtree") was involved in an accident. Crabtree's breath test indicated .15% blood alcohol content and the investigating officer's report concluded that Crabtree was at fault for failure to yield to the oncoming vehicle. The car was insured by Allstate Insurance Company, 1 and Allstate made payments under the Medical Payments coverage in amounts of $3,203.05 for Alicia and $3,648.75 for Jacelyn. 2 Approximately one year later, Crabtree died of causes unrelated to the accident. The children, by their mother, Kimberly Kemp, sued Crabtree's estate for compensatory and punitive damages. The trial court granted the Estate's motion to dismiss the punitive damages claim, and the claim for compensatory damages was tried to a jury, resulting in an award of $11,500.00 to each child. On the Estate's motion, the trial court reduced the judgments by the amounts that Allstate had paid to the children's medical service providers under the Medical Payments coverage of the policy insuring the car that Crabtree was driving. The plaintiffs appealed, challenging the trial court's dismissal of their claim for punitive damages and also the reduction of their awards for medical payments. The Court of Appeals held that the punitive damages claim survived Crabtree's death, and that the medical payments were not "advance payments" under the statute permitting reduction of an award to the extent of advance payments by an insurer. Rather, Allstate was entitled to be reimbursed as a subrogee for the medical payments made to Alicia and Jacelyn, which required that it bear a proportionate share of the children's litigation expenses in collecting from the Estate. Crabtree v. Crabtree,
The policy was issued to third parties, but Crabtree was apparently using the car with the owners' permission. Appellant's Appendix at 80-82. Our Rules Committee has called to our attention an order of the Court of Appeals in Theobald v. Hartford Cas. Ins. Co., 762 N.E.2d 785 (Ind. Ct. App. 2002), trans. denied, that the Committee reports has been taken to hold that an appellant has no obligation to serve the appendix required by Appellate Rule 50 on other parties to the appeal. That is not correct. Pursuant to Rule 49(A), the appendix is required to be filed by the appellant and supplements may be filed by any party. Appellate Rule 24(A) provides: "Unless otherwise provided by these Rules, all other documents tendered to the Clerk for filing must be served upon all parties who have filed an Appellant's Case Summary or an appearance under Rules 15 or 16, any persons seeking party status, and any persons required by statute to be served." The exception providing that the appendix need not be served on the attorney general applies only to criminal appeals. To the extent Theobald suggests that service of the appellant's appendix or any supplement is not required in civil cases, it is disapproved. 2 The sum of the amounts Allstate paid to medical providers on behalf of Jacelyn may actually total $3,852.75. According to the record, two payments were made to Radiology Associates of Indianapolis. The second payment, which was made on December 21, 2001 in the amount of $204.00, may have been omitted from previous calculations.
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809 N.E.2d 433, 438, 442 (Ind. Ct. App. 2004). We granted transfer. Crabtree v. Crabtree, 822 N.E.2d 977 (Ind. 2004). I. Punitive Damages The plaintiffs sought to recover punitive damages from Crabtree's estate. We take the allegations of the complaint as true for purposes of this appeal and review de novo the trial court's order dismissing the punitive damages claim because it involves a pure question of law. Niksich v. Cotton, 810 N.E.2d 1003, 1004 (Ind. 2004); Randolph v. Methodist Hosp., Inc., 793 N.E.2d 231, 234 (Ind. Ct. App. 2003), trans. denied. We will affirm the trial court's grant of a motion to dismiss for failure to state a claim only if the complaint states a set of facts which, even if proved, do not support the relief requested in the complaint. City of New Haven v. Reichhart, 748 N.E.2d 374, 377-78 (Ind. 2001). The plaintiffs cite Indiana's Survival Statute, Indiana Code chapter 34-9-3 (2004). Section 1 of the Survival Statute was designed to overrule the common law rule that a claim evaporated with the death of the defendant. It provides that if "an individual who is . . . liable in a cause of action dies, the cause of action survives . . ." I.C.

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