Brenda White v. American Family Mutual Insurance Company (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 20, 2019
• Docket: 18A-CT-2874
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 20 2019, 9:10 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEY FOR APPELLEE Brenda L. White Robert S. O’Dell Indianapolis, Indiana O’Dell & Associates, P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brenda White, June 20, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-2874 v. Appeal from the Marion Superior Court American Family Mutual The Honorable Patrick J. Dietrick, Insurance Company, Judge Appellee-Defendant. Trial Court Cause No. 49D12-1204-CT-16278

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 1 of 9 Case Summary and Issue [1] Brenda White made several claims under her homeowner’s insurance policy

with American Family Mutual Insurance Company (“American Family”) for

purported storm damage to her home. American Family paid some but not all

of the claims, finding that some claims were not caused by storm damage and

were therefore not covered losses. In 2012, White filed a complaint against

American Family for bad faith breach of contract, but summary judgment was

entered against her. In 2018, White initiated a new action against American

Family seeking relief on the same claims. The trial court dismissed this

renewed complaint with prejudice for failing to state a claim upon which relief

could be granted. White now appeals, raising the following restated issue:

whether the trial court erred in dismissing her renewed complaint. Concluding

the trial court did not err, we affirm.

Facts and Procedural History [2] White has made several claims against her homeowner’s policy with American

Family for damage to her home from various storms, beginning with a

hailstorm in April 2006. Some of her claims were paid, but her claims with

respect to damage to her roof were denied because after inspection, the roof

damage was attributed to improper installation or lack of maintenance rather

than storm damage. White also claimed her home had mold that was caused as

a result of water leaking through the damaged roof. American Family refused

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 2 of 9 the claims for mold removal and remediation because the roof damage was not

storm related and the mold was not therefore caused by a covered loss.

[3] Seeking satisfaction for her claims, White, by counsel, filed a complaint against

American Family for bad faith breach of contract in April 2012. In July 2013,

American Family filed a motion for summary judgment. White did not file a

response but did appear for a hearing, now without counsel. In October 2013,

the trial court entered its order granting summary judgment and entering final

judgment for American Family upon concluding it was “undisputed that the

damages which were not paid by American Family to White were not caused

by storm damage. Thus, White’s policy provided no insurance coverage

because the damage was caused by faulty, inadequate or defective construction,

repair, renovation or maintenance to her home.” Second Amended Appendix

of Appellee, Volume II at 77. White initiated a timely appeal of this decision,

but her appeal was ultimately dismissed on American Family’s motion because

White had neither paid the filing fee nor requested pauper status, had not timely

filed a brief, and did not respond to the motion to dismiss.

[4] White received a letter from American Family dated June 10, 2016, that stated

American Family was correcting an error on homeowners’ policies that “could

affect you if you previously had a loss under an American Family property

policy issued between 2007 and 2015.” Id. at 195.

Policies issued during this time in Indiana contained language in a provision entitled “Suit Against Us”, stating you only had one year to file a lawsuit against our company based on your claim.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 3 of 9 However, an Indiana law that took effect on July 1, 2007, gave insureds at least two years to file lawsuits on claims.

Through our work with the Indiana Department of Insurance, we are extending the period you have to file a claim or lawsuit against our company, if you made a property claim under an Indiana policy issued on or after July 1, 2007 that stated you had only one year to file a lawsuit against our company based on your claim, or if you had a loss under such a policy and decided not to file a claim due to the one year time limit. This period of time is now ten years from the date of your loss.

Id. On August 16, 2018, “as per letter [from American Family],” White filed a

pro se “complaint” under the 2012 cause number in Marion Superior Court

again alleging American Family failed to honor her policy when it did not pay

her roof and mold claims. Id. at 194. American Family filed a motion to

dismiss for failure to state a claim upon which relief could be granted because 1)

this matter was already litigated to conclusion; 2) res judicata and collateral

estoppel bar re-litigation of these claims; and 3) some claims are barred by the

statute of limitations. At the hearing on American Family’s motion, the trial

court asked White, “What’s different today [than in 2012]?” Transcript,

Volume I at 14. She responded, “The thing that is different today is that I have

this letter stating that I . . . can sue because I wasn’t happy.” Id. The trial court

granted American Family’s motion and dismissed White’s complaint. White

now appeals.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 4 of 9 I. Standard of Review [5] We note first that White has proceeded in this litigation pro se. A pro se

litigant is held to the same standards as a licensed attorney and “is afforded no

inherent leniency simply by virtue of being self-represented.” Zavodnik v.

Harper, 17 N.E.3d 259, 266 (Ind. 2014). “One of the risks that a [litigant] takes

when he decides to proceed pro se is that he will not know how to accomplish

all of the things that an attorney would know how to accomplish.” Smith v.

Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed.

Although a pro se litigant “has no license to harass others, clog the judicial

machinery with meritless litigation, and abuse already overloaded court

dockets[,]” Zavodnik, 17 N.E.3d at 266, we would also note that conversely, an

attorney facing a pro se litigant should not wield his knowledge of the law’s

procedures as a cudgel. In this appeal alone, American Family filed a fifty-two-

page brief in response to White’s nine-page brief and filed four motions seeking

to strike nearly every document White has filed with this court.1 We expect and

respect zealous advocacy and we appreciate that American Family has filled in

many of the voids left by White’s inexperience. We remind counsel, however,

of the need to refrain from overly zealous advocacy, lest counsel veer into using

the law’s procedures to harass or intimidate others rather than for the legitimate

1 White has not followed the appellate rules in briefing her case, but we are able to discern her argument sufficiently to decide this appeal on the merits rather than dismiss it for procedural defects. By separate order, we are denying all of American Family’s motions to strike White’s pleadings.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 5 of 9 purpose of serving the client. See Ind. Rules of Professional Conduct, Preamble

section [5].

[6] American Family raised several grounds for dismissal in its motion to dismiss

and the trial court did not specify on which ground it was granting the motion.

However, we review a trial court’s ruling on a motion to dismiss de novo and

may affirm if the grant is sustainable on any theory. Freels v. Koches, 94 N.E.3d

339, 342 (Ind. Ct. App. 2018).

II. Claim Preclusion [7] The doctrine of res judicata precludes the litigation of matters that have already

been litigated. First Am. Title Ins. Co. v. Robertson, 65 N.E.3d 1045, 1050 (Ind.

Ct. App. 2016), trans. denied. As we have explained:

The principle of res judicata is divided into two branches: claim preclusion and issue preclusion.

The first of these branches, claim preclusion, applies where a final judgment on the merits has been rendered and acts as a complete bar to a subsequent action on the same issue or claim between those parties and their privies. When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action. The following four requirements must be satisfied for claim preclusion to apply as a bar to a subsequent action: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 6 of 9 adjudicated in the former action must have been between the parties to the present suit or their privies.

Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696 (Ind. Ct. App. 2013), trans.

denied. Claim preclusion “aims to prevent repetitious litigation of disputes that

are essentially the same, by holding a prior final judgment binding against both

the original parties and their privies.” H.S. v. W.P., 66 N.E.3d 623, 626 (Ind.

Ct. App. 2016), trans. denied.

[8] White does not dispute that her current claims arise from the April 2006 storm

damage nor does she dispute that she previously sought relief on those claims in

the 2012 action. See Tr., Vol. I at 14. The 2012 litigation resulted in summary

judgment for American Family because White did not designate any evidence

in opposition to American Family’s evidence that the losses she was claiming

were not caused by storm damage and were therefore not covered losses. She

claims, however, that the 2016 letter she received granted her a renewed

opportunity to be fully compensated for her claims. American Family contends

White’s 2018 complaint is barred because it seeks to re-litigate the issues

previously litigated between these parties.

[9] We agree with American Family. There is no question here that the former

judgment was rendered by a court of competent jurisdiction, that the former

judgment was rendered on the merits, and that the controversy in the former

action was between the parties to the present suit: a final judgment on the

merits was entered by Marion Superior Court in the 2012 action between White

and American Family on the issue of whether White’s American Family policy Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 7 of 9 covered her damage and mold claims. White’s 2018 action again names

American Family in seeking coverage for the same damage and mold claims.

This action is therefore barred by the previous judgment.

[10] Contrary to White’s belief, the 2016 letter did not give her a second chance to

seek satisfaction against American Family. Rather, the letter simply advised

White—and presumably, others who held American Family policies during the

relevant time period—that if she had not filed a claim because of the erroneous

provision in her policy, she had additional time to do so. Because White had

filed a claim, however, the correction offered her no new avenue for relief. See

Second Amended App. of Appellee, Vol. II at 195-96 (stating those who did not

submit a claim, withdrew a claim, or accepted a lower payment because of the

erroneous time limitation could re-submit the claim and those who wanted to

sue but did not because they thought the time limit had expired had ten years

from the date of loss to file suit).2

Conclusion [11] White’s 2018 action against American Family is barred by res judicata, as the

same claims between the same parties were litigated to a final conclusion on the

2 The letter also states that the correction “could affect you if you previously had a loss under an American Family property policy issued between 2007 and 2015.” Id. at 195 (emphasis added). White’s claim stemmed from a 2006 storm and therefore presumably under a 2006 policy, so it is questionable whether White could have sought relief under this correction even if it otherwise applied.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 8 of 9 merits in her 2012 action. The trial court properly dismissed White’s

complaint.

[12] Affirmed.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2874 | June 20, 2019 Page 9 of 9