Karpov et al v. Commerce Benefits Group Agency Inc et al
Filing
172
OPINION AND ORDER GRANTING 166 MOTION for Summary Judgment Against Defendant Stanislaw Gil filed by Michael Dylan Karpov, Margarita R Karpov.The Court JOINS Dft Gil to the judgment entered against Net Trucking 162 and ORDERS judgment entered against Dft Gil on the same terms provided in that Opinion and Order. Signed by Judge Theresa L Springmann on 12/5/11. (jcp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MARGARITA R. KARPOV, Individually
and as Administratrix of the Estate of
Dmitry B. Karpov, and MICHAEL
DYLAN KARPOV,
Plaintiffs,
v.
NET TRUCKING, INC., et al.
Defendants.
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CAUSE NO.: 1:06-CV-195-TLS
OPINION AND ORDER
This matter is before the Court on the Plaintiffs’ Motion for Summary Judgment Against
Defendant Stanislaw Gil [ECF No. 166].
BACKGROUND
This diversity action, which Plaintiffs Margarita R. Karpov, individually and as the
Administratrix of the Estate of Dmitry B. Karpov, and Michael Dylan Karpov filed in November
2005, is a lawsuit pertaining to the 2005 death of Dmitry B. Karpov in a vehicle collision near
Bristol, Indiana, on Interstate 80/90, a stretch of the Indiana Toll Road. In their Second Amended
Complaint, the Plaintiffs made the following claims: negligent operation of a tractor
trailer/wrongful death; wrongful operation of a trucking company; survivorship/pain and
suffering; personal injury; familial loss of consortium; and fraudulent conveyance. This case has
an extensive procedural history, which the Court has discussed in its previous Opinions and
Orders [ECF Nos. 92, 117, 148 & 162] and need not repeat here. The Court, in its Opinion and
Order filed December 6, 2010, ordered the entry of a default judgment against the corporate
employer of Defendant Gil, in the amounts of $6,721,657.00 as compensatory damages for
Dmitry Karpov’s wrongful death; $2,119,997.20 as compensatory damages for Margarita
Karpov’s personal injury claim; and $6,359,991.60 in punitive damages. Karpov v. Net Trucking,
Inc., No. 1:06-CV-195-TLS, 2010 WL 5058538, at *6 (N.D. Ind. Dec. 6, 2010). The Second
Amended Complaint sought damages against Defendant Gil for actions taken within the scope of
his employment. (Second Am. Compl. ¶12, ECF No. 93.) The Plaintiffs seek summary judgment
against Defendant Gil in order to join him in the judgment entered against his employer.
Defendant Gil, proceeding pro se, objects to the Plaintiffs’ Motion by presenting factual disputes
and challenging the Plaintiffs’ evidence. (Def.’s Resp. Pls.’s Mot. Summ. J., ECF No. 167.) For
the reasons stated below, the Court will grant the Plaintiffs’ Motion.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure state that a “court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The motion should be granted so
long as no rational fact finder could return a verdict in favor of the party opposing the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court’s role is not to evaluate the
weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the
matter, but instead to determine whether there is a genuine issue of triable fact. Id. at 249–50;
Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). According to Rule 56:
A party asserting that a fact cannot be or is genuinely disputed must support the
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assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1).
Although a bare contention that an issue of fact exists is insufficient to create a factual
dispute, the court must construe all facts in a light most favorable to the nonmoving party, view
all reasonable inferences in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485,
491–92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is
more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). A material fact must be
outcome determinative under the governing law. Harney v. Speedway SuperAmerica, LLC, 526
F.3d 1099, 1104 (7th Cir. 2008). “Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute.” Id.
STATEMENT OF FACTS
Defendant Gil was the driver of the tractor trailer in the collision leading to the death of
Dmitry Karpov and to the serious injuries suffered by Plaintiff Margarita Karpov. The Indiana
Court of Appeals which reviewed the sentence in Defendant Gil’s criminal case summarized the
facts surrounding the accident:
On August 21, 2005, Gil drove a truck weighing 70,000 pounds into a construction
zone in Elkhart County. Gil exceeded the speed limit for the construction zone. Gil
failed to keep a proper watch for other traffic and what was happening with the
traffic. Gil had alcohol in his system and caused a collision in the construction zone.
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Gil v. State, No. 20A03–0611–CR–525, 2007 WL 1470150, at *1 (Ind. Ct. App. May 22, 2007).1
As a result of the car collision involving the Plaintiffs, Defendant Gil pled guilty to and was
convicted of four counts of Class C felony reckless homicide, one of which was for the death of
Dmitry Karpov, and one count of Class D felony criminal recklessness, relating to injuries
suffered by Plaintiff Margarita Karpov. Id.
ANALYSIS
A.
Liability
“[A] trial court should apply offensive collateral estoppel against a convicted criminal
defendant on issues that were defended vigorously in the criminal case in the absence of a
showing that it is unfair to the defendant to give conclusive effect to the conviction.” Doe v.
Tobias, 715 N.E.2d 829, 830 (Ind. 1999). Under Indiana law, the Court may rely on evidence of a
criminal conviction in a civil trial. Id. at 831; Ind. Code § 34-39-3-1 (“Evidence of a final
judgment that: (1) is entered after a trial or upon a plea of guilty; and (2) adjudges a person guilty
of a crime punishable by death or imprisonment of more than one (1) year; shall be admissible in
a civil action to prove any fact essential to sustaining the judgment, and is not excluded from
admission as hearsay regardless of whether the declarant is available as a witness.”).“Collateral
estoppel is termed offensive when the plaintiff seeks to foreclose the defendant from litigating an
issue the defendant has previously litigated unsuccessfully in an action with another party.”
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“Unless later designated for publication, a not-for-publication memorandum decision shall not
be regarded as precedent and shall not be cited to any court except by the parties to the case to establish
res judicata, collateral estoppel, or law of the case.” Ind. Rule of Appellate Procedure 65(D).
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Tobias, 715 N.E.2d at 831(quotation marks omitted). “To determine whether to permit the use of
offensive collateral estoppel, the trial court must consider whether the party in the prior action
had a full and fair opportunity to litigate the facts and whether it would be otherwise unfair to
permit the use of collateral estoppel given the facts of the particular case.” Miller v. Owens, 953
N.E.2d 1079, 1083 (Ind. Ct. App. 2011) (citing Tobias, 715 N.E.2d at 832).
While the Indiana Supreme Court, in Tobias, stated that collateral estoppel should be
applied where a defendant has defended against the criminal charges “vigorously,” the Court
finds support in Tobias for applying the same rule to a conviction predicated on a guilty plea.
Where a defendant had a full and fair opportunity to litigate the facts in the prior criminal case, a
court must then look to whether it would be otherwise unfair to permit a plaintiff to use collateral
estoppel against that defendant. To determine if the use of collateral estoppel against a defendant
is fair, the court must consider “‘the defendant’s incentive to litigate the prior action, the
defendant’s ability to defend the prior action, and the ability of the plaintiff to have joined the
prior action.’” Tobias, 715 N.E.2d at 832 (quoting Tofany v. NBS Imaging Systems, Inc., 616
N.E.2d 1034, 1038 (Ind.1993)). But, in the typical criminal case the defendant had an
extraordinarily strong incentive to defend, the defendant did defend against the prior action with
the assistance of counsel, and the plaintiff could not have joined the prior criminal case. Id. All
these factors militate for application of collateral estoppel where the conviction at issue is based
on a guilty plea. See Wayne Chem., Inc. v. Terpening, No. 1:08-CV-269 JVB, 2010 WL 3782130,
at *3–4 (N.D. Ind. Sept. 17, 2010) (undertaking a similar analysis under Indiana law and
concluding that a guilty plea can support offensive collateral estoppel of the underlying facts of a
criminal conviction in a civil case).
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The Plaintiffs seek to estop Defendant Gil from denying the underlying facts of his
conviction. Defendant Gil has presented the Court with no evidence that he was denied a full and
fair opportunity to defend himself against his criminal charges. The Court finds no unfairness in
the application of collateral estoppel to deny Defendant Gil the opportunity to relitigate the facts
underlying each element of his criminal conviction. Defendant Gil provided the Court with no
basis for such a finding and the record suggests that Defendant Gil had every incentive and
opportunity to challenge the basis for his conviction at the time he pled guilty.2
The three elements underlying Defendant Gil’s reckless homicide conviction are
“causation, that the act resulting in the homicide was voluntary, and that the defendant’s conduct
was reckless and not merely negligent.” Gibbs v. State, 677 N.E.2d 1106, 1108–09 (Ind. Ct. App.
1997) (quoting Taylor v. State, 457 N.E.2d 594, 597 n.6 (Ind. Ct. App. 1983). The elements
underlying Defendant Gil’s conviction for criminal recklessness are that “[a] person . . .
recklessly . . . inflict[ed] serious bodily injury on another person.” Ind. Code. § 35-42-2-2(d)
(2004).3 With regard to both crimes, under Indiana criminal law, “[a] person engages in conduct
‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm
that might result and the disregard involves a substantial deviation from acceptable standards of
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“Although differing burdens of proof can preclude the results reached in a criminal proceeding
from being used for collateral estoppel purposes in civil cases, some Indiana cases suggest that such an
application of collateral estoppel would be permissible in circumstances where the burden of proof
employed by a criminal proceeding would not cast doubt on the reliability of estoppel.” Nolan v. City of
Indianapolis, 933 N.E.2d 894, 898 (Ind. Ct. App. 2010). In his criminal conviction Defendant Gil was
found guilty beyond a reasonable doubt, a higher burden of proof than he would face at trial for
negligence liability, and, therefore, one that does not cast doubt on the reliability of estoppel against him
here.
3
This statute was amended effective July 1, 2006 by Indiana Public Law 75-2006, however, the
statute in place before this amendment was applied to Defendant Gil. See Gil, 2007 WL 1470150, at *1
n.2.
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conduct.” Ind. Code § 35-41-2-2.
Applying collateral estoppel in this case, Defendant Gil cannot deny that he caused the
death of Dmitry Karpov and the injuries sustained by Margarita Karpov through voluntary
conduct which constituted a “substantial deviation from acceptable standards of conduct.” See
Ind. Code § 35-41-2-2. The Plaintiffs seek summary judgment on Counts 1, 3, 4 and 5 of the
Second Amended Complaint. Count 1 is Negligent Operation of a Tractor Trailer/Wrongful
Death, Count 3 is Survivorship, Count 4 is Personal Injury, and Count 5 is Familial Loss of
Consortium. Negligence under Indiana law requires: “(1) duty owed to plaintiff by defendant; (2)
breach of duty by allowing conduct to fall below the applicable standard of care; and (3)
compensable injury proximately caused by defendant’s breach of duty.” King v. Ne. Sec., Inc.,
790 N.E.2d 474, 484 (Ind. 2003). The elements of a wrongful death claim under Indiana law are
similarly “a duty owed by the defendant to the decedent, breach of that duty, and an injury
proximately caused by the breach.” Tom v. Voida, 654 N.E.2d 776, 787 (Ind. Ct. App. 1995); see
also Hays v. Bardasian, 615 F. Supp. 2d 796, 800 (N.D. Ind. 2009). Criminally reckless conduct
in Indiana constitutes a breach of acceptable conduct more severe than negligence. See Warner v.
State, 577 N.E.2d 267, 269 (Ind. Ct. App. 1991) (“In order to sustain its burden of proving the
reckless homicide charge beyond a reasonable doubt, the State was required to show that the
defendant voluntarily acted recklessly, not merely negligently, and that such conduct caused the
death of another.”).
Based on Defendant Gil’s convictions for criminal recklessness and reckless homicide,
the Court finds that Defendant Gil owed a duty of care to the Plaintiffs and committed a more
severe breach of the acceptable standard of care in driving his tractor tailor than is needed for a
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finding of negligence. Similarly, with regard to proximate cause, the Court grounds liability for
Dmitry Karpov’s death on the finding of causation supporting Defendant Gil’s conviction for
reckless homicide, and for Margarita Karpov’s injuries, on the same finding supporting
Defendant Gil’s conviction for criminal recklessness. Since the Court finds that Defendant Gil is
estopped on the questions of negligence and causation of injury, the Court will enter judgment as
a matter of law against Defendant Gil as to liability for compensatory damages for the death of
Dmitry Karpov and the injuries sustained by Margarita Karpov as set out in the Court’s Opinion
and Order filed December 6, 2010. Karpov, 2010 WL 5058538, at *6.
B.
Punitive Damages
The Court looks to the evidence before it, rather than to the preclusive effect of
Defendant Gil’s criminal conviction, to determine whether to grant summary judgment to the
Plaintiffs on the issue of punitive damages. In tort actions under Indiana law, liability for punitive
damages requires:
conscious and intentional misconduct which, under the existing conditions, the actor
knows will probably result in injury. In other words, the defendant must have
subjected other persons to probable injury, with an awareness of such impending
danger and with heedless indifference of the consequences. The tortious conduct
must be marked by malice, fraud, gross negligence, or oppressiveness not resulting
from a mistake of law or fact, honest error of judgment, overzealousness, mere
negligence or other noniniquitous human failing.
Westray v. Wright, 834 N.E.2d 173, 179–80 (Ind. Ct. App. 2005) (quotation marks and citations
omitted).
Uncontroverted evidence before the Court supports a finding of punitive damages against
Defendant Gil. Specifically, Defendant Gil caused the accident when driving a fully-loaded
tractor trailer above the speed limit, in a construction zone. Gil, 2007 WL 1470150, at *1.
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Additionally, Defendant Gil had alcohol in his system at the time of the accident. Id. He and his
employer engaged, in the period leading up to the accident, in making false log book entries
permitting Defendant Gil to drive more hours than allowed under relevant regulations. Karpov,
2010 WL 5058538, at *4.4
In opposition to the Motion for Summary Judgment, Defendant Gil raises the following
factual contentions: he asserts that he was in compliance with Department of Transportation
(DOT) rules regarding his working hours on the day of the accident; he asserts that the quantity
of alcohol in his system at the time of the accident was within the legal limit; and he asserts that
his speed at the time of the accident was never proven. Viewing these arguments in the light most
favorable to Defendant Gil, the Court still concludes that liability for punitive damages is
appropriate as these arguments—even if true—do not establish material factual disputes between
the parties. The Plaintiffs point to evidence that there was alcohol in Defendant Gil’s system,
while Defendant Gil counters only that he was within the legal limit. Similarly, the Plaintiffs
point to evidence that Defendant Gil violated DOT regulations before the accident, while
Defendant Gil counters only that he was not violating those rules on the day of the accident.
Finally, the Plaintiffs point to evidence that Defendant Gil exceeded the speed limit in a
construction zone, while Defendant Gil counters only that his speed at the time of the accident
was “never proven.” (Def.’s Resp. Pls.’s Mot. Summ. J. 4, ECF No. 167.) He provides no
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The Court relies in part for this finding on a deposition of Defendant Gil filed on July 30, 2010.
(Video Dep. Stanislaw Gil, ECF No. 161.) Defendant Gil asserts in his Response that this deposition was
unfairly taken without a translator to assist him. Defendant Gil’s native language is Polish. While
Defendant Gil is currently representing himself in this matter, at the time the deposition was taken he was
represented by counsel who was present at the deposition and did not object to the absence of a
translator. The Court, therefore, finds no unfairness to the Defendant in its reliance on the statements he
made during that deposition.
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evidence or even an assertion that it was within or near the speed limit.
The Plaintiffs designate evidence that establishes that Defendant Gil “subjected other
persons to probable injury, with an awareness of such impending danger and with heedless
indifference of the consequences,” and Defendant Gil has not materially contradicted that
evidence. Westray, 834 N.E.2d at 179. The Plaintiffs, therefore, are entitled to summary
judgment on the issue of liability for punitive damages against Defendant Gil.
C.
Additional Legal Contentions Raised by Defendant Gil
Defendant Gil also raises several legal challenges to the Plaintiffs’ Motion. In particular
he points to his lack of an attorney, that “every accident is a result of some disadvantageous
circumstances which are impossible to be predicted and avoid,” that he is currently being
punished through incarceration for the accident, and that he was covered by insurance which has
“paid already the redress.” (Def.’s Resp. Pls.’s Mot. Summ. J. 7.) None of these contentions
raises an issue of material fact and, therefore, cannot defeat summary judgment against him.
There is no constitutional or statutory right to counsel in federal civil cases. Farmer v.
Haas, 990 F.2d 319, 323 (7th Cir. 1993). Rather, 28 U.S.C. § 1915 authorizes a district court
judge to request, but not compel, a lawyer to represent an indigent civil litigant. Id.; see also
Mallard v. United States District Court, 490 U.S. 296, 305 (1989). Before a district court may
consider an indigent plaintiff’s request for counsel, the plaintiff must demonstrate that he has
attempted to retain counsel on his own. Jackson v. Cnty. of McLean, 953 F.2d 1070, 1072–73
(7th Cir. 1992). If the plaintiff demonstrates that he has tried and failed to find legal counsel, the
district court then determines, given the difficulty of the case, whether the party is competent to
try the case himself. Farmer, 990 F.2d at 322. Defendant Gil has not demonstrated that he has
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attempted to retain counsel to represent him in opposition to the Motion. Defendant Gil was
represented during a significant part of the current litigation. The case was initiated in November
2006 and the last of several attorneys, provided through liability insurance, representing
Defendant Gil withdrew in July 2009. Finally, Defendant Gil was able to respond to the Motion
raising his factual contentions in his filing to the Court.
That the collision in this case was a result of unfortunate circumstances may be true, but
this is no defense for Defendant Gil. As detailed above, Defendant Gil took reckless actions
which resulted in the collision that killed Dmitry Karpov and seriously injured Margarita Karpov.
Defendant Gil raises no issue of material fact by attempting to claim that, because car collisions
and their consequences cannot be predicted, he cannot be held liable for the consequences of a
collision he caused. Similarly, his contentions with regard to being imprisoned as a criminal
punishment for his role in the accident, and the money paid out by insurance to the Plaintiffs, do
not raise issues of fact preventing summary judgment. In Indiana, “[i]t is not a defense to an
action for punitive damages that the defendant is subject to criminal prosecution for the act or
omission that gave rise to the civil action.” Ind. Code § 34-24-3-3. Finally, having insurance does
not bear on one’s legal liability rather, the portion of the liability compensated by insurance has
been deducted from the judgment which will be entered against Defendant Gil. Karpov, 2010
WL 5058538, at *3.
CONCLUSION
For the reasons stated above the Court GRANTS the Plaintiff’s Motion for Summary
Judgment Against Defendant Gil [ECF No. 166]. The Court JOINS Defendant Gil to the
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Judgment entered against Net Trucking [ECF No. 162] and ORDERS judgment entered against
Defendant Gil on the same terms provided in that Opinion and Order.
SO ORDERED on December 5, 2011.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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