Daryl Schweitzer and Lynn Schweitzer v. American Family Mutual Insurance Company and Jennifer Gholson Insurance Agency

16 N.E.3d 982, 2014 Ind. App. LEXIS 419, 2014 WL 4210874
CourtIndiana Court of Appeals
DecidedAugust 26, 2014
Docket45A03-1307-CT-248
StatusPublished
Cited by5 cases

This text of 16 N.E.3d 982 (Daryl Schweitzer and Lynn Schweitzer v. American Family Mutual Insurance Company and Jennifer Gholson Insurance Agency) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daryl Schweitzer and Lynn Schweitzer v. American Family Mutual Insurance Company and Jennifer Gholson Insurance Agency, 16 N.E.3d 982, 2014 Ind. App. LEXIS 419, 2014 WL 4210874 (Ind. Ct. App. 2014).

Opinion

OPINION

BROWN, Judge.

Daryl and Lynn Schweitzer appeal the trial court’s order granting summary judgment in favor of American Family Mutual Insurance Company (“American Family”) and Jennifer Gholson Insurance Agency (“Gholson,” and together with American Family, “Appellees”). The Schweitzers raise two issues, which we revise and restate as whether the court erred in entering summary judgment in favor of Appellees and against the Schweitzers. We affirm.

FACTS AND PROCEDURAL HISTORY

At some point prior to January 2008, the Schweitzers became interested in insuring their home, automobiles, and rental properties using one insurance company. Following conversations with Gholson, the Schweitzers purchased a homeowners insurance policy from American Family. The policy provided that it was effective from January 18, 2008, to January 18, 2009, and that the amount of the coverage limit for the dwelling was $261,000. 1 The policy also included coverage for personal property and personal liability, and supplemental coverage of increased building limit coverage, whereby American Family agreed to settle losses to the dwelling at replacement cost up to a maximum of 120 percent of the dwelling limit, and inflation protection coverage with respect to the dwelling and personal property, each as subject to the policy’s provisions.

On December 19, 2008, a fire destroyed the Schweitzers’ house. The Schweitzers reported the loss to Gholson, and a representative for American Family visited the location of the house and discussed with the Schweitzers the coverage limits of their policy. The Schweitzers submitted various claims, and American Family made several payments to them totaling $326,040, which American Family indicated was the limit of its policy for the dwelling. 2 American Family informed the Schweit-zers that it would not be affording coverage for any damage to the driveway. American Family also received a claim on September 20, 2010, alleging that a theft of certain property occurred on January 28, 2009, and American Family initiated an *985 investigation and requested statements from the Schweitzers, but Daryl informed American Family that his wife Lynn would not provide a statement.

On October 18, 2010, the Schweitzers filed a complaint against American Family and Gholson. As to American Family, they alleged that not all of the benefits due under the policy were paid and that the remaining benefits due included amounts for losses to or in connection with the structure, landscaping, pond, driveway, well and septic system, relocation, additional living expenses, and contents in the house beyond the policy limits improperly applied by American Family. The Schweitzers further claimed American Family unreasonably delayed certain payments and that they should be considered beneficiaries of a practice instituted by American Family requiring its agents to write policies for full replacement coverage. The Schweitzers also alleged that the total limit of structure coverage improperly utilized by American Family was $326,040, that the actual loss they sustained substantially exceeded that limit, and that American Family acted in bad faith, for which they requested punitive damages. As to Gholson, the Schweitzers asserted they totally relied upon the professional services and advice of Gholson and believed they had full and complete insurance coverage in the event of a total loss of their residence. The Schweitzers alleged Gholson was negligent in part for failing to follow a directive of American Family to issue full replacement cost policies to its insureds, failing to cause a policy to be issued with sufficient amounts of coverages to fully indemnify them against loss, and failing to make an adequate determination of the proper amount of coverages.

On August 6, 2012, Gholson filed a motion for summary judgment together with designated evidence and a brief in support of the motion. The same day, American Family filed a motion for summary judgment together with designated evidence, a brief in support of the motion, and a statement of undisputed facts. The Schweit-zers filed designations of evidence and memoranda in opposition to the summary judgment motions. The court held a hearing on the motions on December 4, 2012.

On March 28, 2013, the court entered an order granting summary judgment in favor of Appellees and against the Schweit-zers. The court found that, as a result of a meeting between the Schweitzers and Gholson, American Family issued a policy to the Schweitzers and that Daryl reviewed the amount of the coverage provided under the policy and did not disagree with the coverage limits or ever ask Ghol-son to increase the amount of the coverage. The court also found that, following the loss of the house, American Family requested Lynn to provide a recorded statement pursuant to the terms of its policy and that Lynn never provided the statement. The court cited Filip v. Block, 879 N.E.2d 1076 (Ind.2008), reh’g denied, and Myers v. Yoder, 921 N.E.2d 880 (Ind.Ct.App.2010), and found that Gholson did not owe the Schweitzers the duty to tell them about the adequacy of their coverage or any alternative coverage that may be available and accordingly that the Schweit-zers’ claim against Gholson for negligent procurement of insurance must fail. The court further found that the designated evidence established that American Family made payment of all amounts due under the applicable coverage categories in the policy, and that American Family designated evidence, not rebutted by the Schweitzers, establishing that the Schweit-zers’ claim with respect to the alleged damage to their driveway was excluded from coverage. Finally, the court found that the Schweitzers breached the policy as a matter of law because Lynn never *986 provided a recorded statement to American Family under the terms of the policy.

DISCUSSION

The issue is whether the trial court erred in entering summary judgment in favor of Appellees and against the Schweitzers. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Resources, 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court’s ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind.2002). The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved.

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16 N.E.3d 982, 2014 Ind. App. LEXIS 419, 2014 WL 4210874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daryl-schweitzer-and-lynn-schweitzer-v-american-family-mutual-insurance-indctapp-2014.