ATTORNEYS FOR APPELLANT :        ATTORNEY FOR APPELLEE:

JULIE A. DUGAN                     EDWARD P. GRIMMER
Kopka, Pinkus, & Dolin, P.C.        Edward P. Grimmer, P.C.
Crown Point, Indiana         Crown Point, Indiana

JAMES E. FOSTER
Funk & Foster
Hammond, Indiana

     IN THE COURT OF APPEALS OF INDIANA

MARK E. McDILLON,               )    
                                     )
Appellant/Counter Plaintiff,         )
                                     )
vs.                                  )    No. 45A04-0305-CV-237
                                     )
NORTHERN INDIANA PUBLIC              )
SERVICE COMPANY,                     )
                                     )
Appellee/Counter Defendant.          )

    APPEAL FROM THE LAKE SUPERIOR COURT
    The Honorable John J. Halcarz, Magistrate
    The Honorable Sheila Moss, Judge
    Cause No. 45D08-0010-CP-04436

     July 21, 2004

     OPINION - FOR PUBLICATION

VAIDIK, Judge

    Second:    That NIPSCO’s property was damage[d]; and

Third:    That the negligent act or omission of Mr. McDillon proximately caused the collision of his car with NIPSCO’s pole and that resulted in the property damage NIPSCO suffered.

    As I have stated, the Plaintiff must prove these propositions; the Defendant has no burden of disproving them.

    However, the Defendant has claimed certain specific defenses, and the Defendant does have the burden of proving those defenses by a preponderance of the evidence. The Defendant claims that his car was stolen and has the burden of proving that by a preponderance of the evidence:

    the name and identity of that [nonparty], sufficiently so that the person could have been joined as a defendant

    If you conclude that there was a [nonparty] at fault, you will be requested to identify that person by name on your verdict form, and assign a percentage of fault against that [nonparty]. If the [nonparty] cannot be identified, the jury cannot assign a percentage of fault against the [nonparty].

Appellant’s App. p. 4 (emphasis supplied). McDillon claims, however, that this is not a nonparty case, and therefore, the jury was improperly instructed.
Indiana’s Comparative Fault Act provides that “[i]n an action based on fault, a defendant may assert as a defense that the damages of the claimant were caused in full or in part by a nonparty.” Ind. Code § 34-51-2-14; see also Witte v. M.M. ex rel. Mundy, 800 N.E.2d 185, 189 (Ind. Ct. App. 2003), reh’g denied, trans. denied. The burden of proof of a nonparty defense is upon the defendant, who must affirmatively plead the defense. Ind. Code § 34-51-2-15. The defendant also has the burden of identifying the nonparty to whom fault should be attributed. See Cornell Harbison Excavating, Inc. v. May, 546 N.E.2d 1186, 1187 (Ind. 1989). If the nonparty is not identified, then the jury may not assign fault against the nonparty. See id.
In his answer, McDillon denied that he was operating the vehicle at the time it collided with NIPSCO’s utility pole. Additionally, McDillon asserted the following:
McDillon, in the matter of an Affirmative Defense, asserts that on or about August 22, 1999, he was the victim of a car theft and the damage, if any, was caused by the thief.

Appellant’s Supp. App. p. 17. At trial, McDillon clarified that he was claiming that because his car had been stolen, he was not the proximate cause of NIPSCO’s pecuniary loss. In fact, McDillon cited Dillner v. Maudlin, 314 N.E.2d 794 (Ind. Ct. App. 1974), to the trial court for the proposition that “the negligent leaving of the ignition keys in the automobile [by the vehicle’s owner] could not be considered the proximate cause of injuries later resulting from the negligent operation of the stolen automobile by a thief.” Id. at 795 (quotation omitted). In Indiana, there is a well-established policy that “[a]ll pleadings shall be so construed to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points.” Ind. Trial Rule 8(F). Based on the language used in what McDillon identifies as his affirmative defenses, it is unclear whether he intended to plead a nonparty defense. However, in light of the record before us—which establishes that McDillon denied that he was operating the vehicle when it was involved in the collision and that he clarified that his “thief” defense went to proximate cause—and Indiana’s policy of construing pleadings to do substantial justice, we find that McDillon did not raise a nonparty affirmative defense. Consequently, we conclude that the trial court erred by instructing the jury on the affirmative defense of nonparty. We must now decide whether such instructional error mandates reversal.
The facts here show that as McDillon was standing face-to-face with an officer reporting his vehicle as stolen, a dispatch came over the officer’s radio regarding a report of reckless driving. The description of the vehicle being driven recklessly matched the description of McDillon’s stolen vehicle. A few moments later, there was a power outage. Thereafter, the police found McDillon’s vehicle crashed into a utility pole. This evidence indicates that McDillon was neither operating the vehicle at the time of the collision nor the proximate cause of NIPSCO’s damages. Nonetheless, the jury returned a verdict in favor of NIPSCO. Because we are unable to discern whether the jury ruled in favor of NIPSCO because it disbelieved this evidence or because McDillon failed to identify the person who stole his vehicle, we cannot say that the jury did not predicate its verdict on this erroneously given nonparty instruction. See footnote Accordingly, we reverse and remand for a new trial. Because we are reversing and remanding for a new trial, we must address the two issues that NIPSCO raises in its cross-appeal.