United of Omaha v. Heiber etal

FOR PUBLICATION
 
ATTORNEY FOR APPELLANT:     ATTORNEY FOR APPELLEES

THOMAS W. YODER        BRIAN L. ENGLAND
Fort Wayne, Indiana        Fort Wayne, Indiana
                 
 

IN THE
COURT OF APPEALS OF INDIANA

UNITED OF OMAHA ) Appellant-Third Party Defendant, ) ) vs. ) No. 02A05-9709-CV-408 ) WILLIAM HIEBER, DENNIS HIEBER, ) DONALD HIEBER, Individually and as ) a farm partnership, and KEVIN HIEBER, ) Appellees and Cross-Appellants- ) Defendant and Third Party Plaintiff, ) ) and ) ) UNITED FARM BUREAU MUTUAL ) INSURANCE COMPANY, ) Appellee and Cross-Appellant- ) Intervenor and Third Party Plaintiff. )

APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Thomas L. Ryan, Judge
Cause No. 02C01-9205-CT-44

November 13, 1998
 
OPINION ON REHEARING - FOR PUBLICATION

KIRSCH, J.
     United of Omaha (United) petitions for rehearing of the opinion this court issued on August 31, 1998 (published as United of Omaha v. Hieber, 698 N.E.2d 869 (Ind. Ct. App. 1998) (Omaha II). Farm Bureau Insurance Company (Farm Bureau) opposes United's rehearing petition, but seeks rehearing on other grounds. The parties' briefs raise several issues, only one of which warrants rehearing: whether the Record establishes the date on which the parties in the underlying action reached an informal settlement. We grant rehearing on this issue only.
    As United points out, the evidence concerning the date of the informal settlement appears in an attachment to the affidavit of attorney John Grimm. The trial court struck the affidavit from the evidence, and we upheld the trial court's ruling. Accordingly, neither the affidavit nor the attachment may be considered as evidence. We were thus mistaken in our reference to the date of the informal settlement.
    The opinion shall be revised as follows: "On July 28, 1993 Hammond reached an informal settlement with Farm Bureau and its insured. Record at 475. This agreement was reduced to writing and signed by the parties on November 5, 1993 and approved by the probate court on the same date." Omaha II, 698 N.E.2d at 872.
    Petition for rehearing granted in part, opinion modified.

SULLIVAN, J., and BAKER, J., concur.