FILED
Sep 10 2026, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana Robert Lee Chapman and Barbara Chapman, Appellants-Plaintiffs
v.
Nationwide Mutual Fire Insurance Company, Appellee-Defendant
September 10, 2026
Court of Appeals Case No.
26A-PL-743
Appeal from the LaPorte Superior Court The Honorable Richard R. Stalbrink, Jr., Judge Trial Court Cause No.
46D02-2106-PL-1153
Opinion by Judge Brown
Judges Bailey and Weissmann concur.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 1 of 26
Brown, Judge.
[1] Robert Lee Chapman and Barbara Chapman (the “Chapmans”) appeal from the trial court’s entry of summary judgment in favor of Nationwide Mutual Fire Insurance Company (“Nationwide”). We affirm in part, reverse in part, and remand.
Facts and Procedural History [2] On June 15, 2019, high winds from a nearby tornado caused a large tree to fall on the Chapmans’ house located on Dittemore Road in Bloomington (the “Property”) causing damage to the house, personal property, and other structures. At the time of the damage, the Chapmans maintained a homeowners insurance policy (the “Policy”) with Nationwide. The Policy provides “Coverage A—Dwelling limits” of $451,400. Appellants’ Appendix Volume V at 6. The Policy also provides an Inflation-Protection provision which adjusts the Coverage A limit to reflect increases in construction costs. The Policy further includes the “H 03 06 0716 . . . Dwelling Replacement Cost—150%” endorsement (“DRC Endorsement”) which increases the Coverage A limit “if the replacement cost exceeds the declared limit.” Id. at 53. The DRC Endorsement provides in relevant part:
[W]e will settle covered losses to the dwelling in which you live .
. . under Coverage A, up to 150% of the limit of liability shown in the Declarations for Coverage A as follows:
1. We will pay the cost of repair or replacement, after application of deductible, and without deduction for depreciation, but not exceeding the replacement cost of the part of the building damaged, for like construction and use on the same premises.
2. We will pay the “actual cash value” of the damage until repair or replacement is complete. You may make an additional claim for payment on a replacement cost basis provided you:
a. Notify us within 180 days after the date of loss of your intent to repair or replace the damaged building;
b. Complete the repair or replacement within 2 years of the date of the loss; and
c. Have not reached the applicable limit of liability under this policy.
Repair or replacement must be evidenced by the original replacement receipt, invoice or bill.
Id.
[3] The day after the tree fell, Nationwide insurance adjuster Robert Greenlee inspected the Property. Nationwide also hired Matthew Stocking at Donan Engineering to assess the damage to the Property. Meanwhile, Nationwide made a payment to the Chapmans for $10,000 for Dwelling coverage. On July 22, 2019, Stocking issued a thirty-five-page engineering report which documented the damage to the Property. The report found extensive damage to the home but did not find any damage to the foundation of the Property caused by the storm.
[4] On August 15, 2019, Greenlee provided the Chapmans with Stocking’s report as well as Nationwide’s estimate for the damage to the Property. The dwelling replacement cost was valued at $226,447.19, which did not include foundation replacement. In September 2019, Nationwide sent a check to the Chapmans in the amount of $233,371.06, of which $217,606.55 was for Dwelling coverage. 1 Thereafter, because they did not agree with Stocking’s assessment that the foundation of the Property had not been damaged by the storm, the Chapmans retained RM Consulting and Engineering to inspect the Property. The engineer, Roger Malone, inspected the Property on October 23, 2019, and issued a three-page report that stated that a “portion of the foundation wall ha[d] been damaged” due to the storm. Appellants’ Appendix Volume IV at 178. Malone recommended “that the entire foundation wall system around the entire perimeter of the existing house be inspected for damage and excessive movement.” Id. The Chapmans provided Nationwide with Malone’s report.
[5] On March 18, 2020, Donan Engineering, specifically Stocking, reinspected the Property. On March 27, 2020, Stocking issued a thirty-seven-page report again determining that the Property’s foundation was not damaged due to the June 15, 2019, storm winds or the fallen tree. Stocking’s report determined that any foundation issues identified by Malone resulted from “deficiencies in construction” and typical “differential movement of the foundation,” and that there had been no “shifting of the foundation” caused by the storm. Appellants’ Appendix Volume VI at 79. In April 2020, Nationwide made another payment to the Chapmans for $2,971.58 for Dwelling coverage. At this
1 The record indicates that Nationwide subsequently issued a replacement check in the same amount, without the mortgagee’s name on it, to replace the original check.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 4 of 26 point, Nationwide had paid the Chapmans a total of $230,578.13 for Dwelling coverage.
[6] On July 23, 2020, the Chapmans submitted an appraisal demand to Nationwide pursuant to the Policy, which provides that if the parties “fail to agree on the amount of loss, either may demand an appraisal of the loss” with each choosing a “competent and impartial appraiser,” and the two appraisers choosing an umpire if they also “fail to agree” as to the amount of the loss. Appellants’ Appendix Volume V at 33. The provision further states that the “appraisers and umpire are only authorized to determine the ‘actual cash value’ replacement cost, or cost to repair the property that is the subject of the claim. They are not authorized to determine coverage, exclusions, conditions, forfeiture provisions, conditions precedent, or any other contractual issues.” Id. at 34. The Chapmans and Nationwide each appointed appraisers who inspected the Property, prepared written appraisals, and submitted their appraisals to an umpire. On January 15, 2021, the umpire issued an appraisal award. The award provided:
Appellants’ Appendix Volume VII at 120. The Policy required Nationwide to pay the Chapmans within sixty days of receipt of the appraisal award, which would indicate a payment deadline of March 16, 2021. On February 15, 2021, Nationwide paid the Chapmans $220,821.87, which was the difference between the appraisal award replacement cost and the prior dwelling payments up to the policy limit of $451,400. The undisputed facts indicate that the payment did not include any actual cash value (“ACV”) or replacement cost value (“RCV”) amounts in the appraisal based upon the DRC Endorsement. The payment also did not include any amounts based on the Inflation-Protection provision of the Policy. 2
[7] After receiving the initial appraisal payment, the Chapmans did not begin any construction to repair or replace their home. On March 19, 2021, three days after the March 16, 2021, sixty-day deadline, Nationwide issued a debris- removal/demolition payment to the Chapmans in the amount of $21,399.65. On May 5, 2021, the Chapmans, through their public adjuster, Nicholas Banks, requested a six-month extension of the DRC Endorsement’s two-year repair or replacement deadline, citing COVID-19 pandemic-related material and labor shortages. Greenlee had previously informed them that they could obtain a six- month extension of the deadline simply by requesting one. The DRC
2 Although the parties dispute whether the Chapmans were owed the DRC Endorsement amounts, they agree that the Chapmans were owed funds based upon the Inflation-Protection provision. However, they disagree as to whether that amount should have been automatically calculated and included as part of the appraisal award payment or whether it was a separate coverage payment. Regardless, as subsequently discussed, albeit late, Nationwide has since paid this coverage amount plus interest.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 6 of 26
Endorsement does not contain a provision relating to an extension of the deadline. Nationwide denied the request for an extension on June 7, 2021.
[8] On June 15, 2021, the Chapmans filed their complaint against Nationwide alleging breach of contract and breach of the duty of good faith and fair dealing based upon Nationwide’s handling of their insurance claim. Nationwide filed its answer on October 21, 2021. On May 22, 2023, Nationwide issued a payment to the Chapmans for $15,192.22 ($12,780.46 plus $2,411.76 in interest) pursuant to the Inflation-Protection provision of the Policy. The Chapmans did not cash or deposit this check. On October 10, 2023, at the Chapmans’ request, a replacement check for the same amount was reissued. On February 15, 2024, the Chapmans filed a Motion for Partial Summary Judgment, designation of evidence, and memorandum. On January 22, 2025, Nationwide filed its response as well as a Motion for Summary Judgment as to All Claims, designation of evidence, and memorandum. On March 4, 2025, the Chapmans filed their response and a Motion for Partial Counter Summary Judgment and designation of evidence. On that same date, the Chapmans filed a motion to strike certain evidence designated by Nationwide in support of its Motion for Summary Judgment, specifically the Donan Engineering reports. On March 19, 2025, Nationwide filed a motion to strike the affidavit of the Chapmans’ insurance claim expert, Chris Johnson, along with a reply in support of its Motion for Summary Judgment.
[9] The court held a hearing on July 30, 2025. On October 27, 2025, the court entered an order granting Nationwide’s Motion for Summary Judgment as to
All Claims and denying the Chapmans’ Motions for Partial Summary Judgment. On November 26, 2025, the Chapmans filed a Motion to Correct Error. Following a hearing, the court denied the Motion to Correct Error on March 4, 2026. The Chapmans filed a Notice of Appeal on March 23, 2026. 3
Discussion [10] “We review summary judgment de novo, applying the same standard as the trial court[.] Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (citations and quotations omitted). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (citation omitted).
[11] We consider only those portions of the pleadings, depositions, and any other matters specifically designated to the trial court by the parties for purposes of the summary judgment motion. Ind. Trial Rule 56(C), (H). We resolve “all factual inferences and all doubts as to the existence of a material issue” in favor
3 The Chapmans initially filed a Notice of Appeal simultaneously with their Motion to Correct Error. That Notice of Appeal was subsequently dismissed without prejudice on February 4, 2026, to allow the trial court to rule on the Motion to Correct Error.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 8 of 26 of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)). In so doing, “we give careful scrutiny to make sure the nonmovant’s day in court is not improperly denied.” Id. (internal quotation marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016)).
[12] “The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.” Abbott v. State, 183 N.E.3d 1074, 1079 (Ind. 2022). The movant “can make this showing when undisputed evidence affirmatively negates a required element” of the nonmovant’s claim. Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 377 (Ind. 2022). Only if the movant meets this prima facie burden does the burden then shift to the nonmovant to “come forward with contrary evidence showing an issue for the trier of fact.” Abbott, 183 N.E.3d at 1079.
[13] A trial court’s grant of summary judgment is “clothed with a presumption of validity.” Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). The party appealing the grant or denial of summary judgment has the burden of persuading this Court that the trial court’s ruling was improper. Munster Steel Co. v. CPV Partners, LLC, 186 N.E.3d 143, 148 (Ind. Ct. App. 2022). In the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Although the findings of fact and conclusions of law a trial court may enter in support of its summary judgment do not bind us, they facilitate appellate review. Matter of Supervised Est. of Kent, 99 N.E.3d 634, 637 (Ind. 2018).
A. Breach of Contract Claim [14] The Chapmans assert that the trial court erred in concluding that Nationwide was entitled to summary judgment on their breach of contract claim. Specifically, they argue that the court erred in finding no breach where Nationwide “failed to pay $16,777.40 in ACV” based on the DRC Endorsement,4 “delayed the inflation-guard payment and demolition payment, erroneously partially denied the foundation, and initially undervalued the loss by about $330,000.” Appellants’ Brief at 8. We address each of the Chapmans’ breach theories in turn.
[15] Breach of contract requires the plaintiff to prove the existence of a contract, breach of the contract by the defendant, and damages resulting from the defendant’s breach. Auto-Owners Ins. Co. v. C & J Real Estate, Inc., 996 N.E.2d 803, 805 (Ind. Ct. App. 2013). First, regarding Nationwide’s initial adjustment, which excluded foundation replacement and valued the loss at $330,659.32 less than the amount later determined by the appraisal award, 5 we cannot say that
4 The Policy defines “Actual Cash Value” as “the amount it would cost to repair or replace covered property with material of like kind and quality, less allowance for physical deterioration and depreciation, including obsolescence.” Appellants’ Appendix Volume V at 12. As shown earlier, the appraisal award lists $16,777.40 in the ACV column specifically related to the DRC Endorsement. 5 The amount of $330,659.32 equals the difference between the panel’s appraisal award which valued the dwelling replacement cost at $557,106.51, and the dwelling replacement cost which Nationwide initially valued at $226,447.19.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 10 of 26 such initial estimate constituted a breach of the insurance contract entitling the Chapmans to damages distinct from the amounts resolved and awarded through appraisal. The appraisal process exists precisely to resolve disagreements as to the amount of loss, and it is undisputed that Nationwide actively participated in such process as provided by the Policy. Nationwide is entitled to judgment as a matter of law on this theory.
[16] Similarly, regarding the delayed demolition/debris-removal payment and the Inflation-Protection payment, we cannot say that the designated evidence supports a finding of material breach or damages award. As a general contract matter, a material breach is one that “goes to the heart of the contract.” State v. Int’l Bus. Machines Corp., 51 N.E.3d 150 (Ind. 2016). It is undisputed that Nationwide issued the debris-removal payment on March 19, 2021, a mere three days after the Policy’s sixty-day, post-award deadline. Although we find this delay relevant for other purposes as discussed in Part B, we do not find this to be a material breach and no damages are due. It is further undisputed that Nationwide did not pay the $12,780.46 Inflation-Protection payment until May 22, 2023, more than two years after it was due, and only after the issue surfaced during discovery. Indeed, Nationwide concedes that this amount “should have been included as part of [its] February 15, 2021, payment” to the Chapmans. Appellee’s Brief at 25. Again, although this delay is relevant for other purposes, it is undisputed that Nationwide has since made such Inflation-Protection payment plus interest. In other words, the Chapmans have been made whole for these coverages. As no further amounts are owed for these items pursuant to the Policy, Nationwide is entitled to judgment as a matter of law on this theory.
[17] Accordingly, we turn to the Chapmans’ allegation that Nationwide breached the Policy in failing to pay the ACV amount of $16,777.40 included in the appraisal award based on the DRC Endorsement. This breach claim does not involve simply a disagreement as to the scope of the loss or delayed payment; this claim involves a complete coverage denial under the DRC Endorsement. Moreover, this claim is intertwined with Nationwide’s assertion, which we address more fully in Part B, that it is entitled to judgment as a matter of law on the Chapmans’ claim for any amounts pursuant to the DRC Endorsement. 6
[18] We observe that Nationwide reads the DRC Endorsement to condition payment of any amount under it, including the ACV component, on the insured’s completion of repair or replacement within two years and submission of supporting documentation. The Chapmans read the first sentence of the DRC Endorsement’s second numbered paragraph as an independent, unconditional obligation to pay ACV “until repair or replacement is complete,” with the enumerated conditions (a)-(c) governing only the separate “additional claim” for the replacement-cost differential described in the Endorsement’s next sentence. Appellants’ Appendix Volume V at 53.
6 Nationwide observes that, pursuant to the DRC Endorsement, “the Chapmans seek the replacement cost appraisal amounts of $16,777.40 ACV and $105,706.51 RCV.” Appellee’s Brief at 13 (emphasis omitted).
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 12 of 26
[19] Here, the parties’ arguments require that we interpret the language of the insurance policy. “In Indiana, insurance contracts are subject to the same rules of interpretation as other contracts.” Ebert v. Illinois Cas. Co., 188 N.E.3d 858, 864 (Ind. 2022). “Ordinarily, we construe ambiguous policy provisions in favor of the insured, especially if the ‘provisions limiting coverage are not clearly and plainly expressed.’” Id. (quoting Meridian Mut. Ins. Co. v. Auto-Owners Ins. Co., 698 N.E.2d 770, 773 (Ind. 1998)). “On the other hand, we give clear and unambiguous language in a policy its plain and ordinary meaning.” Id. “A policy is unambiguous if reasonable persons cannot honestly differ as to its meaning.” Id.
[20] Our review of the DRC Endorsement reveals that both parties’ readings find some textual support. The second paragraph of the DRC Endorsement states the ACV obligation in one sentence and then, in a following sentence, conditions an “additional claim for payment on a replacement cost basis” on three enumerated requirements. This structure is consistent with the Chapmans’ view that the ACV obligation and the replacement-cost differential are sequential and separately conditioned. The trial court’s summary judgment order does not address the Chapmans’ textual argument that the DRC Endorsement “states ACV will be paid first” before repair or replacement, Appellants’ Brief at 40; it simply resolves the breach claim involving the DRC Endorsement in Nationwide’s favor without discussing the relationship between the Endorsement’s first and second numbered paragraphs, or the relationship between the first and second sentences of paragraph 2. We cannot say that the DRC Endorsement’s provisions, which Nationwide asserts limit coverage, are clearly and plainly expressed. 7
[21] Further, the record before us does not establish that the appraisal award of $16,777.40 ACV was intended to be contingent on future completion of the repair or replacement. Indeed, the Chapmans point to testimony from Nationwide’s own adjuster, who could identify no reason the amount had not been paid and confirmed her understanding that payment of the ACV is not conditioned on repair or replacement. 8 The Chapmans also point to testimony from one of the members of the appraisal panel, who testified that he believed the amount to be currently owed under the coverage extension provided by the DRC Endorsement. 9 Under the circumstances, Nationwide has not met its burden, as the summary judgment movant, to establish that its reading of the DRC Endorsement is correct as a matter of law, or that no question remains regarding whether the $16,777.40 ACV payment was due and payable under
7 The ambiguity of the language of the DRC Endorsement is further highlighted by Nationwide’s assertion that its payment of the Dwelling Policy limit of $451,400 ACV satisfied the DRC Endorsement’s provision that “We will pay the ‘actual cash value’ of the damage until repair or replacement is complete.” Appellants’ Appendix Volume V at 53. In other words, there is a genuine dispute on which ACV value is referenced in the DRC Endorsement and when the appraisal ACV amount of $16,777.40 based upon the Endorsement would be due and payable. 8 The Chapmans designated certain deposition testimony of Nationwide adjuster, Daphne Boulware. When asked, “Now, the actual cash value payment, the policy holder does not have to repair or replace the damage in order to get that payment, is that fair,” Boulware responded, “That’s correct.” Appellants’ Appendix Volume XII at 118. 9 The Chapmans designated certain deposition testimony of appraisal panel member Banks. When asked, “As you sit here today, based upon your familiarity in handling 1,500 to 2,000 claims as well as being an appraiser on this file, can you think of any legitimate reason why Nationwide has not paid the [$16,777.40] actual cash value part of the coverage extension,” Banks responded, “No.” Appellants’ Appendix Volume XIII at 131.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 14 of 26 the DRC Endorsement independent of completion of repair or replacement. See Zemco Mfg., Inc. v. Navistar Int’l Transp. Corp., 759 N.E.2d 239, 244 (Ind. Ct. App. 2001) (“Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts”), reh’g denied, trans. denied. We reverse the grant of summary judgment to Nationwide on the Chapmans’ claim that it breached the Policy in this regard.
B. Enforceability of the DRC Endorsement’s Replacement Deadline [22] In addition to the $16,777.40 ACV component of the DRC Endorsement awarded by the appraisal, the Chapmans also seek the appraisal award of $105,706.51 RCV under the Endorsement. Regarding these amounts, the trial court ruled that the DRC Endorsement “required that the Chapmans complete the repair or replacement of their dwelling within 2 years of the June 15, 2019 date of loss and to provide Nationwide with evidence of the repair or replacement cost. Plaintiffs did not meet these requirements for payment under the DRC endorsement.” Appellants’ Appendix Volume II at 19-20. The Chapmans contend “the trial court erred in holding the two-year replacement deadline enforceable against [them].” Appellants’ Brief at 31 (emphasis omitted). 10
10 To the extent that Nationwide contends the Chapmans have waived this claim for failure to raise it below, we disagree. The Chapmans specifically raised this claim in their summary judgment briefing and the trial court specifically considered and ruled upon their unenforceability claim in its summary judgment order.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 15 of 26
[23] It is undisputed that the Chapmans did not complete repair or replacement of their dwelling within two years of the date of the loss as required for coverage extension under the DRC Endorsement. Recognizing this, they invoke the equitable principle that their non-performance of such condition precedent should be excused because Nationwide hindered their performance, or at the very least, substantially contributed to the delay in their ability to timely complete repair or replacement. The Chapmans direct us to two cases in which this Court has applied equitable principles in determining the enforceability of a homeowner’s policy’s replacement-cost completion deadline. In Rockford Mut. Ins. Co. v. Pirtle, 911 N.E.2d 60, 65-67 (Ind. Ct. App. 2009), reh’g denied, trans. denied, the insurer’s initial estimate excluded significant damage later confirmed at trial, the insurer refused to pay replacement cost absent completed repairs, and the insurer did not tender even actual cash value until many months after the loss and only after foreclosure proceedings had begun. This Court upheld a jury instruction stating that a party who prevents the other from performing is excused from further performance and may recover damages flowing from that prevention. Id. at 63-64, 66. We acknowledged that,
other courts, including our own Seventh Circuit, have held that the contract must be strictly construed to require the completion of the repair or replacement before liability under the replacement cost endorsement attaches. See e.g. Bourazak v. N.
River Ins. Co., 379 F.2d 530, 532 (7th Cir. 1967) (complaint dismissed because insured failed to satisfy condition precedent for claim of loss); W. Suburban Bank of Darien v. Badger Mut. Ins.
Co., 947 F. Supp. 333, 336-37 (N.D. Ill. 1996) (replacement cost valuation does not apply until repair or replacement of destroyed property). However, we are convinced that equitable principles win the day in this situation; otherwise, the repair or replacement endorsement paid for by Pirtle would be rendered illusory.
Rockford had the ability to advance sums of money under that endorsement to assist in commencement of the rebuilding, and could have joined Pirtle in agreements entered into for repairs.
Id. at 66-67.
[24] In Westfield Nat. Ins. Co. v. Nakoa, 963 N.E.2d 1126, 1132 (Ind. Ct. App. 2012), trans. denied, this Court explained,
It is well settled that contractual provisions of an insurance policy may be waived or that the insurer may be estopped from asserting such provisions. American Standard Ins. Co. of Wisconsin v. Rogers, 788 N.E.2d 873, 876 (Ind. Ct. App. 2003). Whether there has been waiver of a policy provision by an insurer generally is a question of fact. Id. at 877. Although the terms “estoppel” and “waiver” are technically distinct, the terms often are used synonymously with respect to insurance matters. Id.
Waiver is an intentional relinquishment of a known right involving both knowledge of the existence of the right and the intent to relinquish it, while the elements of estoppel are the misleading of a party entitled to rely on the acts or statements in question and a consequent change of position to that party’s detriment. Id.
In light of the foregoing, we held that an insurer who paid virtually nothing toward a total loss for years, while the insured pursued an unnecessary appraisal process, waived the right to enforce a replacement-cost completion condition, reasoning that “it seems unreasonable and unrealistic” to expect a homeowner to rebuild without meaningful funding. 963 N.E.2d at 1132-1133.
[25] The trial court distinguished these decisions on grounds that Nationwide, unlike the insurers in Rockford and Nakoa, “consistently” made payments to the Chapmans. Appellants’ Appendix Volume II at 22. However, neither case held that payment alone, for any amount or on any timetable, foreclosed a claim of estoppel or unenforceability as a matter of law. The designated evidence, construed favorably to the Chapmans as the nonmoving parties on Nationwide’s motion, presents a genuine factual dispute on this point. Nationwide’s initial adjustment excluded foundation replacement entirely and fell $330,659.32 short of the amount the appraisal panel later determined was required. The evidence further indicates that Nationwide instructed the Chapmans not to undertake repairs without its approval and warned that unapproved work would be performed at their own expense. Nationwide did not approve foundation replacement until the appraisal award issued in January 2021, roughly eighteen months after the loss. Nationwide further did not issue the demolition/debris removal payment necessary to begin reconstruction until March 19, 2021, leaving, on the Chapmans’ account, fewer than ninety days to complete demolition and full reconstruction of a home requiring foundation replacement before the June 15, 2021 deadline, during a period of documented pandemic-related shortages.
[26] Nationwide responds that the Chapmans could have used the roughly $230,000 paid by September 2019 to begin some form of repair, and that their choice not to do so defeats any claim that Nationwide’s behavior prevented them from doing so. Whether an insured’s receipt of funds covering only a fraction of the ultimately required scope of repair, while the insurer simultaneously withholds approval of the balance of the necessary work, renders subsequent noncompletion the insured’s own doing, or the foreseeable consequence of the insurer’s own adjustment and approval process, is the kind of multi-fact- intensive question Rockford and Nakoa address; it is not resolved by the bare fact that payment issued. Given the competing evidence concerning the adequacy of Nationwide’s initial payment relative to the true scope of loss, the practical feasibility of partial reconstruction pending resolution of the foundation dispute which was ultimately resolved in the Chapmans’ favor, and the timetable the Chapmans were left with when all was said and done, we conclude that genuine issues of material fact preclude summary judgment for either party on whether the Chapmans’ noncompliance with the DRC Endorsement’s two-year repair or replacement completion deadline should be excused. See RAP Indy, LLC v. Zurich Am. Ins. Co., No. 119CV04657JRSMJD, 2021 WL 2416740, at *7 (S.D. Ind. June 14, 2021) (disputes of fact remained as to whether insurer hindered insureds’ performance of conditions precedent to replacement cost provision preventing the court from granting summary judgment to either party as to the challenged loss); but see Novogroder Cos., Inc. v. Hartford Fire Ins. Co., No. 2:10-CV-193 RM, 2012 WL 3637602, at *11 (N.D. Ind. Aug. 21, 2012) (granting summary judgment for insurer and holding that insured was not excused from similar condition precedent where it “received actual cash value amount at the outset and could have used those funds to repair the property”), aff’d, 528 F. App’x 644 (7th Cir. 2013).
C. Breach of the Duty of Good Faith and Fair Dealing Claim [27] The Chapmans next assert that the trial court erred in concluding that Nationwide was entitled to summary judgment on their claim that Nationwide breached its duty of good faith and fair dealing. In Baldwin v. Standard Fire Ins. Co., 269 N.E.3d 1197, 1204 (Ind. 2025), the Indiana Supreme Court explained:
In recognition of an insurer’s “special relationship” with its insured, Indiana imposes on insurers an implied duty of good faith and fair dealing. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 518 (Ind. 1993). Any breach of this legal duty, which we imply “in all insurance contracts”, exposes the insurer to compensatory damages, like any other breach of contract. Id. at 518-19. But an insurer that goes further and acts in bad faith toward its insured may be liable for punitive damages. Id. at 520. Though punitive damages are prohibited “in a breach of contract action”, a badfaith claim is “an independent tort for the breach of the insurer’s obligation to exercise good faith . . . upon which punitive damages may be based.” Ibid.
[28] To succeed on an insurance-based bad faith claim, the claimant “must prove, first, a breach of the duty of good faith.” 11 Baldwin, 269 N.E.3d at 1209 (citing
11 Nationwide implies that we need consider only the Chapmans’ allegation of bad faith and request for punitive damages and we need not consider whether it breached the duty of good-faith and fair dealing because “[c]learly, the Chapmans only asserted a bad faith claim[.]” Appellee’s Brief at 41 n.2. However, the Indiana Supreme Court has explained, There is a close relationship between a claim alleging a breach of the duty of good faith and one alleging bad faith. In Indiana, the latter derives from the former. Erie Ins. Co., 622 N.E.2d at 520. A claimant must prove, first, a breach of the duty of good faith. Ibid. Only then does the claimant have the opportunity “to establish the right to punitive damages” by proving the insurer acted more culpably—i.e., in bad faith. Ibid. As we explained in Erie Insurance Company, “breach of the insurer’s obligation to exercise good faith provides the tort upon which punitive damages may be based.” Ibid.
Baldwin, 269 N.E.3d at 1209.
Court of Appeals of Indiana | Opinion 26A-PL-743 | September 10, 2026 Page 20 of 26
Hickman, 622 N.E.2d at 520). That duty “requires the insurer ‘to refrain from’ certain behavior,” including (1) “making an unfounded refusal to pay policy proceeds,” (2) “causing an unfounded delay in making payment,” (3) “deceiving the insured,” and (4) “exercising any unfair advantage to pressure an insured into a settlement of his claim.” Id. at 1207 (quoting Hickman, 622 N.E.2d at 519); see also Cosme v. Clark, 232 N.E.3d 1141, 1153 (Ind. 2024) (citing Monroe Guar. Ins. v. Magwerks Corp., 829 N.E.2d 968, 976 (Ind. 2005)). Provided the claimant succeeds on this underlying claim, he then has the burden of proving by clear and convincing evidence that the insurer “acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing.” Hickman, 622 N.E.2d at 520 (quoting Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988)). If the claimant proves both a breach of the duty of good faith and fair dealing as well as bad faith, the jury may award the claimant punitive damages “in the sum [that the jury believes] will serve to punish the defendant and to deter it and others from like conduct in the future.” Id. (quoting Robertson, 519 N.E.2d at 137-138).
[29] Applying these principles here, we cannot say that Nationwide is entitled to judgment as a matter of law as to whether it breached its duty of good faith and fair dealing. The Chapmans argue that the designated evidence creates genuine disputes on whether Nationwide engaged in “unfounded refusal to pay and unfounded delay,” “deception,” and “unfair settlement pressure.” Appellants’ Brief at 50-53. We agree and conclude that the record, when construed favorably to the Chapmans, includes evidence bearing on each of Hickman’s four categories. Moreover, the parties’ competing characterizations of Nationwide’s conduct in adjusting the claim, including payment delay, representations regarding extensions of time, and coverage denial, and the significance of that conduct, are factual matters for a jury to weigh. Nationwide is not entitled to judgment as a matter of law on this claim.
D. Evidentiary Rulings [30] Finally, the Chapmans argue that two of the trial court’s evidentiary rulings were erroneous. First, the Chapmans assert that the trial court should have granted their motion to strike the two Donan Engineering reports included in Nationwide’s designation of evidence as unauthenticated hearsay, because the reports were never accompanied by an affidavit from the preparing engineer and Nationwide did not otherwise lay a foundation under Ind. Evidence Rules 803(6) or 902(11). Nationwide responds that the Chapmans’ own deposition testimony identifying the reports as the reports prepared regarding their house satisfies Ind. Evidence Rule 901(a)’s authentication requirement, and that, in any event, the appraisal umpire did not rely on the Donan reports in reaching the appraisal award, such that any error in admitting them was not outcome- determinative.
[31] The trial court has broad discretion in ruling on the admissibility of evidence. Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 886 (Ind. Ct. App. 2002). This discretion extends to rulings on motions to strike. Id.
[32] We agree with Nationwide that any error by the trial court in declining to strike the Donan reports would not, on this record, require reversal. Significantly, the appraisal award superseded the initial adjustment for purposes of setting the amount of loss and did not depend on the Donan reports’ conclusions regarding the foundation. We express no opinion on whether the reports were properly authenticated or fall within an exception to the hearsay rule, because our resolution of the contract claims in Parts A and B already returns certain claims to the trial court for further proceedings, in which the admissibility of the Donan reports may be again addressed on a more complete evidentiary record. We affirm the trial court’s denial of the Chapmans’ motion to strike the Donan reports, without prejudice to renewal of that motion, or reconsideration of admissibility on remand for trial purposes.
[33] Next, the Chapmans argue that the court abused its discretion when it struck, in its entirety, the affidavit and accompanying report of attorney Chris Johnson, the Chapmans’ purported claims-handling expert. Nationwide moved to strike the affidavit in its entirety arguing that the affidavit “reads as a legal brief” and Johnson “does nothing more than provide factual recitation followed by arguments and conclusory opinions on the question of bad faith based upon his review of the claims file materials and case docket.” Appellants’ Appendix Volume XIII at 194.
[34] In determining a motion for summary judgment, a trial court can consider only material deemed appropriate by Ind. Trial Rule 56(E). Duncan v. Duncan, 764 N.E.2d 763, 766 (Ind. Ct. App. 2002). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Ind. Trial Rule 56(E). “Mere assertions in an affidavit of conclusions of law or opinions will not suffice.” City of Gary v. McCrady, 851 N.E.2d 359, 364 (Ind. Ct. App. 2006) (citation omitted). Ind. Evidence Rule 704(a) permits opinion testimony that “embraces an ultimate issue” so long as it is otherwise admissible, and this Court has recognized that expert testimony on industry custom and practice— including in the insurance-claims-handling context—is a proper subject of expert opinion. Mundy v. Angelicchio, 623 N.E.2d 456, 462 (Ind. Ct. App. 1993); Ind. Evidence Rule 702. The party offering the affidavit into evidence bears the burden of establishing its admissibility. Duncan, 764 N.E.2d at 766.
[35] A court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. City of Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind. Ct. App. 2010). Here, the trial court struck the entirety of Johnson’s two-line affidavit and attached single- spaced, twenty-three page “report,” rather than parsing out the objectionable parts. Appellants’ Appendix Volume XIII at 66-89.
[36] Upon review, while we are confident that the lion’s share of the report consists of inadmissible “mere assertions” dressed up as “facts,” and impermissible legal conclusions dressed up as “opinions held,” see id., we cannot say that each and every line of the report fails to meet the requirements of Ind. Trial Rule 56(E) and only those specific portions that do not meet the Rule’s parameters should have been stricken. Cf. Price v. Freeland, 832 N.E.2d 1036, 1042 (Ind. Ct. App. 2005) (holding trial court abused its discretion in denying defendant’s motion to strike four specific paragraphs of plaintiff’s affidavit). The trial court’s ruling striking the report in its entirety, while understandable in light of the way in which it was prepared to read more like a supplemental legal brief submitted in opposition to summary judgment, was overbroad. Accordingly, we conclude the court abused its discretion. Upon remand, the parties may raise arguments regarding the admissibility of specific portions of Johnson’s affidavit so that the trial court may reissue a proper ruling.
[37] For the foregoing reasons, we affirm the trial court’s grant of summary judgment in Nationwide’s favor on the Chapmans’ breach of contract theories based on the low initial adjustment, three-day delay in the debris- removal/demolition payment, and the since-cured delay in the Inflation- Protection payment. We also affirm the court’s denial of the Chapmans’ motion to strike the Donan Engineering reports. We reverse the trial court’s grant of summary judgment to Nationwide on the Chapmans’ breach of contract claims as to whether the $16,777.40 ACV payment was due pursuant to the DRC Endorsement independent of completion of repair or replacement, and as to whether the Chapmans are excused from the DRC Endorsement’s two-year replacement completion deadline. We further reverse the court’s grant of summary judgment in Nationwide’s favor on the Chapmans’ claim for breach of the duty of good faith and fair dealing and associated claim for punitive damages as well as its ruling striking the Johnson affidavit in its entirety. We remand for further proceedings consistent with this opinion.
[38] Affirmed in part, reversed in part, and remanded.
Bailey, J., and Weissmann, J., concur.
ATTORNEY FOR APPELLANTS William D. Beyers Buchanan & Bruggenschmidt, P.C. Zionsville, Indiana
ATTORNEY FOR APPELLEE Jeffrey P. McSherry Bricker Graydon Wyatt LLP Cincinnati, Ohio