Clint Fields v. Safway Group Holdings, LLC

FILED Jan 24 2019, 10:34 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Clint A. Zalas Steven P. Lammers James F. Groves Debra A. Mastrian Lee, Groves, and Zalas Smith Amundsen LLC South Bend, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Clint Fields, January 24, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-247 v. Appeal from the St. Joseph Superior Court Safway Group Holdings, LLC, The Honorable Steven L. Appellee-Defendant Hostetler, Judge Trial Court Cause No. 71D07-1703-CT-136

May, Judge. Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 1 of 19 [1] Clint Fields appeals the trial court’s vacation of a default judgment pursuant to

Indiana Trial Rule 60(B)(8). 1 As the trial court did not abuse its discretion

when it granted the equitable relief provided in Trial Rule 60(B)(8), we affirm.

Facts and Procedural History [2] On February 10, 2017, while working as a carpenter for Crown Corr, Inc., on

the University of Notre Dame Crossroads construction project (“Crossroads

project”), Fields fell more than forty feet from scaffolding. Fields sustained

significant injuries and was still wheelchair-bound after almost a year. [3] Barton Malow Company (“Barton Malow”) was the general contractor on the

Crossroads project. Crown Corr, a subcontractor, rented the scaffolding

material from Safway. While Safway assembled and disassembled other

scaffolding within the Crossroads project, Crown Corr assembled the

scaffolding for the area where Fields was working. [4] Barton Malow insured Safway through its Company Contractor Controlled

Insurance Program (“CCIP”), provided by XL Catlin insurance company.

Sedwick Claims Management Services, Inc., (“Sedgwick”) managed the claims

from CCIP participants.

1 Safway cross-appeals the trial court’s denial of its motion pursuant to Indiana Trial Rule 60(B)(1). However, as we affirm the trial court’s grant pursuant to Indiana Trial Rule 60(B)(8), we need not address Safway’s cross-appeal.

Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 2 of 19 [5] On February 10, 2017, the day of the accident, Barton Malow conducted an

investigation. It found Fields had “[f]ailed to maintain a 100% tie-off to a point

independent of positioning device.” (App. Vol. II at 42). Subcontractors were

required to abide by this safety protocol. [6] On February 15, 2017, the engineering firm Wiss, Janney, Elstner Associates,

Inc., (“WJE”) conducted an “inspection of site and scaffold conditions,” (id. at

124), “to determine a probable cause of the accident relative to the design,

assembly, and condition of the scaffold associated with the accident.” (Id. at

123.) WJE was informed the “scaffold was not modified in any way . . .

following the accident, short of installing a wood barrier at the ladder to restrict

access.” (Id. at 124.) WJE “did not observe any obvious capacity deficiencies

with the design.” (Id.) WJE observed the scaffold was in “good condition with

the exception of the bracket damage at one end of the [horizontal rail that fell

with Fields.]” (Id. at 126.) WJE determined this type of damage “suggests the

bracket was either not connected or became disconnected prior to the accident.”

(Id.) Therefore, WJE listed the probable cause of the accident was Fields’

weight “overloading” the north bracket connection “because the south bracket

was not securely connected.” (Id. at 127.) [7] On March 28, 2017, Fields filed suit against Safway, asserting negligence and

products liability claims. Safway was served on March 31, 2017. Assistant

General Counsel of Safway Chris Schilder reviewed the complaint and

forwarded it to Jennifer Boland, the “Insurance and Wrap Up Advisor for

Safway Group Holding, LLC,” (id. at 44), so she could provide it to Barton

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Malow. Schilder would have referred general liability lawsuits directly to local

counsel, but because Safway participated in the CCIP under Barton Malow, the

claim had to be forwarded to Barton Malow. Barton Malow would then send it

to Sedgwick, which was to manage the claim for the CCIP and retain counsel to

defend the claim. [8] When Boland received the complaint, April 3, 2017, she forwarded it to Brian

McGrath, the insurance broker for CCIP. McGrath then forwarded it to Barton

Malow as the general contractor. On April 4, 2017, Barton Malow sent the

complaint to Sedgwick for handling. Jeff Marlowe, team leader at Sedgwick,

reviewed the complaint and directed his team to contact Fields’ counsel Clint

Zalas, to “to obtain an extension of time to answer the Complaint filed in this

case.” (Id. at 48.) [9] Corky Butler, the initial claims professional at Sedgwick, allegedly called Zalas

and left a message; however, the trial court refused to consider whether that call

was made because there was no evidence of the call beyond an affidavit by

Marlowe, making the statement inadmissible hearsay. Butler questioned

whether the claim was covered by CCIP or by Safway’s general liability

insurance policy. Although Butler attempted to contact numerous people to

determine the appropriate coverage, Butler was unable to determine whether

the claim should be covered by CCIP or by Safway’s general liability insurance

policy. Butler continued on the assumption Safway was to retain its own

counsel through its own general liability insurance coverage.

Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 4 of 19 [10] Boland and Schilder were out of the office at various times during the month of

April. Along with his other duties, Schilder was involved in the annual audit of

Safway. Additionally, Safway had been “acquired by [its] competitor on March

20 . . . so [Schilder] was working a lot[.]” (Id. at 73-74.) Schilder was

appointed a “functional leader for th[e] integration process.” (Id. at 74.)

Neither Boland nor Schilder took further action with regard to Fields’ lawsuit. [11] No counsel entered an appearance on behalf of Safway, and no answer was

filed in response to the complaint, so on April 25, 2017, Fields filed a motion

for default judgment. On April 26, 2017, the trial court granted the motion,

entering an order of default as to liability but reserving the question of damages. [12] Boland, unaware of the partial default judgment, followed up with McGrath on

April 26, 2017, and on April 27, 2017. She also contacted several people at

Barton Malow on April 27, 2017, in an attempt to confirm the matter was being

handled. (Id. at 95.) On April 28, 2017, Sedgwick received notice of the default

judgment and reassigned the case to Mallory Hildreth, who immediately

contacted Zalas to request additional time to respond. Hildreth left a message

with Zalas’ receptionist but did not receive a response. On May 3, 2017,

Hildreth again called Zalas but did not receive a response. [13] On May 1, 2017, Hildreth confirmed Safway was covered by CCIP and

contacted the insurance carrier to obtain authority to hire defense counsel. On

May 26, 2017, via counsel hired by CCIP, Safway filed a motion to set aside the

default judgment. On July 17, 2017, the trial court entered an order permitting

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Fields to conduct discovery “to test the credibility of [Safway’s] claim of

excusable neglect and also to test the viability of its assertion that it has a

meritorious defense[.]” (Id. at 55.) [14] On January 16, 2018, after discovery was conducted, the trial court held a

hearing and granted Safway’s motion. After having found Safway had

presented prima facie evidence of meritorious defenses, the trial court found

Safway’s actions did not constitute “excusable neglect” such that it could be

given relief under Trial Rule 60(B)(1) because Safway had “simply dropped the

ball.” (Appealed Order at 3.) The court found Safway’s behavior “certainly

constitute[s] neglect[,]” (id. at 4), but the court refused to call that negligence

excusable “for purposes of Trial Rule 60(B)(1).” (Id.) [15] The trial court then addressed Safway’s Trial Rule 60(B)(8) argument that the

circumstances constituted “any reason justifying relief[.]” Specifically, the trial

court used the factors delineated in Huntington National Bank v. Car-X Association

Corporation, 39 N.E.3d 652 (Ind. 2015), to determine whether Safway could be

granted relief under that portion of the rule. It determined that “most, if not all

of such factors weigh in favor of vacating the judgment.” (Appealed Order at

4.) The trial court found that while not excusable neglect, “Safway’s actions in

not timely responding are . . . plausible and understandable.” (Id.) [16] The trial court found Safway had taken prompt action once it “learned of the

entry of default and the partial judgment.” (Id.) It also found the “amount of

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money at issue is substantial, and Fields will not be procedurally prejudiced by

vacating the entry of default and the partial judgment.” (Id. at 4-5.) [17] As to financial harm, the trial court stated it had considered Safway’s in-house

counsel’s testimony that “Safway would not be financially harmed if the

Motion is not granted.” (Id. at 5.) However, it concluded it could not consider

insurance coverage in this matter and that “someone will be financially

prejudiced if the entry of default and partial judgment are not vacated.” (Id.)

Finally, the trial court found that our Indiana Supreme Court has indicated a

preference for resolving cases on their merits. Such a preference, the trial court

concluded, “tips the balance in favor of vacating the entry of default and partial

judgment dated April 26, 2017.” (Id. at 6.)

Discussion and Decision [18] Fields appeals the trial court’s grant of Safway’s motion to set aside default

judgment pursuant to Trial Rule 60(B)(8). Fields alleges that the trial court

abused its discretion when it granted Safway relief from default judgment

without requiring Safway to present evidence of exceptional circumstances to

justify that relief and that the trial court granted relief “based solely upon

factually unsupported equitable considerations[.]” (Br. of Appellant at 8.)

Standard of Review [19] A decision whether to set aside a default judgment is entitled to deference and is

reviewed for abuse of discretion. Coslett v. Weddle Bros. Const. Co., Inc., 798

Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 7 of 19

N.E.2d 859, 861 (Ind. 2003), reh’g denied. Any doubt about the propriety of a

default judgment should be resolved in favor of the defaulted party. Id. Indiana

law strongly prefers disposition of cases on their merits. Id. Our standard of

review is limited to determining whether the trial court abused its discretion.

Bennett v. Andry, 647 N.E.2d 28, 31 (Ind. Ct. App. 1995). An abuse of

discretion may occur if the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court, or if the court has

misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180

(Ind. 1993). [20] Where the trial court has entered findings of fact and conclusions of law, our

standard of review is two-tiered: we determine whether the evidence supports

the trial court’s findings, and whether the findings support the judgment.

Indianapolis Ind. Aamco Dealers Adver. Pool v. Anderson, 746 N.E.2d 383, 386 (Ind.

Ct. App. 2001). We will not disturb the trial court’s findings or judgment unless

they are clearly erroneous. Id. Findings of fact are clearly erroneous when the

record lacks any reasonable inference from the evidence to support them. Culley

v. McFadden Lake Corp., 674 N.E.2d 208, 211 (Ind. Ct. App. 1996). A judgment

is clearly erroneous when a review of the record leaves us with a firm

conviction that a mistake has been made. Carroll v. J.J.B. Hilliard, W.L. Lyons,

Inc., 738 N.E.2d 1069, 1075 (Ind. Ct. App. 2000), trans. denied. We will neither

reweigh evidence nor judge the credibility of witnesses, considering instead only

the evidence favorable to the judgment and all reasonable inferences to be

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drawn therefrom. Donavan v. Ivy Knoll Apts. P’ship, 537 N.E.2d 47, 50 (Ind. Ct.

App. 1989).

Exceptional Circumstances [21] Fields seems to be operating on the notion that Safway was required to present

evidence of timely filing, a meritorious defense, exceptional circumstances, and

equitable considerations. Further, Fields argues the trial court comingled the

“exceptional circumstances” and the “equitable considerations” and therefore,

misapplied the law. We disagree, because the equitable considerations can

constitute the exceptional circumstances presented to the trial court. [22] Indiana Trial Rule 60(B)(8) allows a trial court to grant relief from judgment for

“any reason justifying relief from the operation of the judgment, other than

those reasons set forth in sub-paragraphs (1), (2), (3), and (4).” The motion for

relief must be filed within a reasonable time and the movant must present a

meritorious defense. Ind. Trial Rule 60(B). [23] In Brimhall v. Brewster, 684 N.E.2d 1148 (Ind. Ct. App. 2007), trans. denied, we

held a trial court may grant this relief “upon a showing of exceptional

circumstances justifying extraordinary relief [so long as the] exceptional

circumstances do not include mistake, surprise, or excusable neglect[.]” Id. at

1153. Therefore, in Brimhall, we delineated the “any reasons” from Trial Rule

60(B)(8) as “exceptional circumstances.” [24] In Huntington, our Indiana Supreme Court held that, provided the movant

demonstrated a meritorious defense and filed the motion for relief in a timely Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 9 of 19

fashion, “the decision whether to grant or deny that party’s motion is left to the

trial court’s equitable discretion and [is] highly fact specific.” Huntington Nat’l

Bank, 39 N.E.3d at 659 (citing Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind.

1994)). It further illustrated how the court could consider whether to grant that

equitable relief by laying out five factors that were pertinent to that case, i.e., the

bank’s interest in the real estate, the bank’s “excusable reason” for untimely

responding, the bank’s quick action once the default judgment was discovered,

the bank’s significant loss if the default judgment were not set aside, and the

“minimal prejudice” to the plaintiff “should the case be reinstated.” Id. Thus,

to determine whether exceptional circumstances existed, the trial court was

ordered to consider those five factors. [25] Eight years later, in Dalton Corp. v. Myers, 65 N.E.3d 1142 (Ind. Ct. App. 2016),

trans. denied, we explained in more detail that to prevail on a Trial Rule 60(B)(8)

motion, “the movant must 1) allege sufficient grounds showing exceptional

circumstances justifying relief from the operation of the judgment other than

those set forth in Rule 60(B)(1)-(4), 2) allege a meritorious defense, and 3) file

the motion within a reasonable time.” Id. at 1145. Further, we stated that “[i]n

determining whether exceptional circumstances warrant setting aside a default

judgment, the trial court may also consider the equitable considerations set

forth by each party.” Id. Therefore, while the movant is required to show

exceptional circumstances, the trial court is allowed to consider the equitable

considerations presented by the parties in order to decide if exceptional

circumstances have been proven.

Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 10 of 19 [26] The rule and the caselaw do not require the movant to present evidence of

exceptional circumstances independent of the equitable reasons for relief;

rather, they require that the movant present proof of “exceptional circumstances

justifying extraordinary relief[,]” Brimhall, 684 N.E.2d at 1153, and that the

movant can demonstrate that by presenting sufficient evidence of equitable

considerations, such as the five factors listed in Huntington, 39 N.E.3d at 659.

See Dalton, 65 N.E.3d at 1145 (trial courts can find required exceptional

circumstances by considering equitable considerations presented by the parties).

Therefore, as the trial court made findings of equitable reasons and concluded

those reasons, together with our Indiana Supreme Court’s preference to decide

cases on their merits, “tip[ped] the balance in favor of vacating the entry of

default and partial judgment[,]” (Appealed Order at 6), we cannot find the trial

court abused its discretion. See Wamsley v. Tree City Village, 108 N.E.3d 334,

336 (Ind. 2018) (if even slight evidence exists, “[o]ur deferential standard of

review compels us to affirm the trial court”).

Evidence of Equitable Factors Safway’s Harm as a Result of the Judgment

[27] Fields argues the trial court ignored evidence Safway would not be financially

harmed by the default judgment. However, the trial court specifically noted it

had considered that testimony but found it could not “consider such insurance

in determining a motion under Trial Rule 60(B)(8) [because] someone will be

financially prejudiced if the entry of default and partial judgment are not

vacated.” (Id. at 5.) Therefore, the trial court did not ignore that evidence.

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Fields’ arguments are an invitation for us to reweigh the evidence, which we

cannot do. See Prime Mort. USA, Inc. v. Nichols, 885 N.E.2d 628, 656 (Ind. Ct.

App. 2008) (appellate court may not reweigh evidence when trial court makes

findings of fact).

Characterization of Safway’s Inexcusable Neglect [28] Fields argues the trial court misinterpreted the law and went against the logic

and effect of the facts when it characterized Safway’s inexcusable neglect as

“plausible and understandable[.]” (Appellant’s Br. at 19 (quoting Appealed

Order at 4).) [29] The trial court found it “accept[ed] as true for purposes of the Motion to Set

Aside the facts as alleged by Safway concerning Safway’s actions after receiving

the Complaint and Summons.” 2 (Appealed Order at 3.) There was more to

Safway’s actions than merely the fact that its employees had not followed the

correct procedure. This complaint had to traverse through three entities:

Safway, Barton Marlow and Sedgwick. We cannot disagree with the trial

court’s reasonable inference that, while the actions of Safway employees are not

2 The allegations the trial court references here are found in Safway’s “Memorandum in Support of Motion to Set Aside Default Judgment,” (App. Vol. II at 28), and Safway’s “Supplemental Memorandum[.]” (Id. at 58.) For the purposes of showing the sequence of events after Safway received the complaint, they include, amongst other things: “Affidavit of Jennifer Boland,” (id. at 45) (stating Safway received the complaint on March 31, 2017, and referred it to Barton Marlow to “be processed within the [] CCIP” on April 3, 2017); “Affidavit of Ronald Torbert[,]” (id. at 42) (Barton Marlow was notified of the complaint on April 3, 2017 and referred the claim to Sedgwick on April 4, 2017); and “Affidavit of Jeff Marlowe,” (id. at 47-50) (stating he opened a claim for Safway on April 4, 2017, he assigned Corky Butler to the claim, Corky’s actions therein, and Mallory Hildreth’s subsequent assignment to the matter).

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excusable, the situation created here was exceptional and thus, “plausible and

understandable.” (Id.); see Huntington, 39 N.E.3d at 658 (proper for trial court

to consider “‘excusable reason’ for untimely responding” as an equitable reason

for relief).

Prejudice [30] Fields contends the trial court abused its discretion by finding Fields was not

prejudiced by the setting aside of the default judgment. Fields argues Safway

“never broached the issue of procedural prejudice[.]” (Appellant’s Br. at 22)

(emphasis in original). Fields acknowledges Safway briefly, at the hearing,

mentioned the subject of prejudice and that, after discovery, the claim would be

reinstated within a year and that fact showed a lack of prejudice to Fields. (See

Tr. Vol. II at 21 (counsel for Safway states the short timeframe suggested a lack

of prejudice to Fields but not reinstating the case would result in prejudice to

Safway’s reputation).) [31] Safway filed its motion to set aside default judgment one month after the court

granted the default judgment. Fields argues that while “mired in discovery

involving Safway’s effort to set aside the default judgment, witnesses’

recollections and physical evidence grew older, and [Fields’] ability to uncover

the facts necessary to prove his allegations against Safway grew more remote.”

(Br. of Appellant at 23.) Fields’ argument that he was “mired in discovery[,]”

(id.), such that he is now prejudiced is without merit.

Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 13 of 19 [32] On June 9, 2017, Fields filed the “Motion to Conduct Discovery Pursuant to

Indiana Trail [sic] Rule 60(D).” (App. Vol. II at 53.) The trial court granted

Fields’ motion. Fields’ discovery should have included investigation into

Safway’s meritorious defense that would necessarily involve an investigation of

the underlying claims. Any error created by the time taken for discovery was

invited by Fields. See Beeching v. Levee, 764 N.E.2d 669, 674 (Ind. Ct. App.

2002) (“party cannot invite error and then request relief on appeal based upon

that ground”).

Safway’s Prompt Action and Absence of Bad Faith [33] Fields argues the trial court improperly considered Safway’s prompt action and

lack of bad faith. While acknowledging “it is not clear what weight the trial

court afforded these equitable considerations[,]” (Appellant’s Br. at 24), Fields

argues they should have been given no weight because both considerations fall

under Trial Rule 60(B)(1) and not Trial Rule 60(B)(8). [34] The trial court accepted Safway’s alleged facts regarding Safway’s actions after

receiving the complaint. Therefore, we know that within five days of receipt of

the complaint, Safway had reviewed it and sent it to the general contractor for

insurance coverage and the general contractor had sent it on to Sedgwick to

handle. While the trial court concluded Safway’s actions constituted neglect

that was inexcusable, it also found those actions were “plausible and

understandable [and t]here was no intentional ignoring of the lawsuit[.]”

(Appealed Order at 4.) Based on that finding, the trial court concluded Safway

had not acted in bad faith. Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 14 of 19

[35] Fields argues Safway did not respond with appropriate promptness. Fields

contends “promptness is determined by reasonableness, and is closely tied with

the size and sophistication of the moving party.” (Appellant’s Br. at 24.)

However, the Court’s analysis in Huntington regarding promptness is located in

the analysis pertaining to Trial Rule 60(B)(1). That analysis provides that to

justify an untimely response, the movant can show a breakdown of

communication between agents of the party, i.e., the insurer and the insured,

but not merely inattentiveness of the party itself. However, once the Court

moves to Trial Rule 60(B)(8), it again lists “quick action” as a factor to be

weighed when considereding equitable reasons. Huntington, 39 N.E.3d at 658.

This has nothing to do with a party’s neglect that resulted in the default

judgment; rather, it has to do with the speed of action once the default

judgment was entered. [36] The trial court found: Fields was injured on February 10, 2017; Fields filed a

complaint on March 28, 2017; Fields filed a Motion for Default Judgment on

April 25, 2017; the trial court granted Fields’ motion the following day; and

Safway filed a Motion to Set Aside Default Judgment on May 26, 2017. The

trial court found Safway had taken “prompt action to address the situation.”

(Appealed Order at 4.) Fields’ invitation to consider one month as not prompt

enough is an impermissible request to reweigh the evidence, which we cannot

do. See Prime Mort. USA, Inc., 885 N.E.2d at 656 (appellate court may not

reweigh evidence when trial court makes findings of fact).

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Conclusion [37] As we determine the trial court did not abuse its discretion when it granted

Safway’s Motion for Relief from Judgment under Indiana Trial Rule 60(B)(8),

we affirm the trial court’s order to vacate the partial default judgment herein. [38] Affirmed.

Riley, J., concurs.

Mathias, J., dissents with separate opinion.

Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 16 of 19

IN THE COURT OF APPEALS OF INDIANA

Clint Fields, Court of Appeals Case No. 18A-CT-247 Appellant-Plaintiff,

v.

Safway Group Holdings, LLC, Appellee-Defendant.

Mathias, Judge, dissenting. [1] I agree with the trial court that Safway did not establish mistake, surprise, or

excusable neglect sufficient to justify relief, under Trial Rule 60(B)(1), from the

default judgment entered in favor of Fields. I part ways with the trial court, and

the majority, however, to the extent that they conclude that Safway was entitled

to relief under Rule 60(B)(8). [2] The majority agrees with the trial court that Safway’s actions constituted

inexcusable neglect, but that equitable considerations justify relief from

judgment. But it has long been held that Rule 60(B) permits relief “in

extraordinary circumstances which are not the result of any fault or negligence

on the part of the movant.” Kretschmer v. Bank of Am., N.A., 15 N.E.3d 595, 600 Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 17 of 19

(Ind. Ct. App. 2014) (citing Wagler v. West Boggs Sewer Dist., 980 N.E.2d 363,

371–72 (Ind. Ct. App. 2012), trans. denied), trans. denied; see also Goldsmith v.

Jones, 761 N.E.2d 471, 474 (Ind. Ct. App. 2002) (citing Whitaker v. St. Joseph’s

Hosp., 415 N.E.2d 737, 744 n.6 (Ind. Ct. App. 1981)). Also, a party seeking

relief from the judgment under Rule 60(B)(8) must show that its failure to act

was not merely due to an omission involving the mistake, surprise or excusable

neglect; instead, some extraordinary circumstances must be demonstrated

affirmatively, and these circumstances must be other than those circumstances

enumerated in the preceding subsections of Rule 60(B). Indiana Ins. Co. v. Ins.

Co. of N. Am., 734 N.E.2d 276, 279–80 (Ind. Ct. App. 2000) (quoting Blichert v.

Brososky, 436 N.E.2d 1165, 1167 (Ind. Ct. App. 1982)), trans. denied. [3] Here, the trial court found that Safway’s failure to respond to the complaint was

negligent. It further found that Safway’s negligence was not excusable for

purposes of relief under Rule 60(B)(1). But this does not mean that an

inexcusably negligent movant such as Safeway may then gain relief under Rule

60(B)(8). To the contrary, it means that they may not be afforded relief at all.

Indeed, if a party’s neglect does not constitute excusable neglect under Rule

60(B)(1), it would make no sense to nevertheless afford that party relief under

Rule 60(B)(8). Otherwise, a party could do an end run around Rule 60(B)(1),

opening up the possibility of a parade of cases bypassing the intent of the rule to

permit relief only for excusable neglect. [4] Under circumstances where the moving party was negligent, Rule 60(B)(1)

should be the exclusive remedy. If that party’s negligence was inexcusable, they

Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 18 of 19 should not be afforded relief under Rule 60(B)(8). Because the majority concludes otherwise, I respectfully dissent. Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019 Page 19 of 19