Timothy Hipskind v. Insurance One Services, Inc., and David Vanderpool (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2016
• Docket: 85A02-1508-PL-1239
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 9:49 am

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Alfred H. Plummer III Christopher D. Cody Wabash, Indiana Hume Smith Geddes Green & Simmons, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy Hipskind, January 29, 2016 Appellant-Plaintiff, Court of Appeals Case No. 85A02-1508-PL-1239 v. Appeal from the Wabash Circuit Court Insurance One Services, Inc., and David Vanderpool, The Honorable Robert R. McCallen, III Appellees-Defendants. Trial Court Cause No. 85C01-1304-PL-246

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 1 of 10 Statement of the Case [1] Timothy Hipskind appeals the trial court’s summary judgment for Insurance

One Services, Inc. (“Insurance One”) and David Vanderpool. Hipskind raises a

single issue for our review, namely, whether the trial court erred when it

concluded that Hipskind had filed his complaint after the relevant statute of

limitations had expired. We affirm.

Facts and Procedural History [2] In 2008, Hipskind purchased a home and real property in Wabash, Indiana

(“the residence”). In the summer of 2009, Hipskind contacted Vanderpool, an

insurance agent with Insurance One, to see if Vanderpool “could get [Hipskind]

a better deal” than Hipskind’s current insurer. Appellant’s App. at 139. After

obtaining several documents and speaking with Hipskind, Vanderpool prepared

an insurance application for Hipskind to sign. Among other information, the

insurance application stated that the residence had a living area of 1,875 square

feet. However, an appraisal in Vanderpool’s possession at the time stated that

the residence had a living area of 2,020 square feet. Nonetheless, Hipskind

affirmed that the information in the application was true to the best of his

knowledge and executed it on August 10, 2009.

[3] Based on that application, Hipskind entered into a homeowners insurance

contract with Auto-Owners Insurance Company (“Auto-Owners”). According

to the Auto-Owners policy, insurance coverage for the dwelling was limited to

$197,300. The policy further explained:

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 2 of 10 If the damaged covered property is insured . . . we will pay as follows:

(a) If at the time of loss, the limit of insurance applying to the damaged covered property is 80% or more of the full replacement cost of that covered property, we will pay the full cost to repair or replace the damaged part of such covered property. No deduction will be made for depreciation. In no event shall we pay more than the smallest of:

1) the limit of Insurance applying to the damaged covered property;

2) the cost to replace the damaged covered property with equivalent construction for equivalent use at the residence premises; or

3) the amount actually spent to repair or replace the damaged covered property.

Appellant’s App. at 113 (emphases removed).

[4] On February 5, 2012, the residence was completely destroyed by fire. Hipskind

then learned that the cost to replace the residence approximated $278,000,

which Auto-Owners refused to fully pay. On April 23, 2013, Hipskind filed suit

against Insurance One and Vanderpool for negligently failing to procure

insurance and/or breach of a fiduciary duty. Insurance One and Vanderpool

(hereinafter collectively referred to as “Vanderpool”) moved for summary

judgment on the grounds that Hipskind’s complaint was untimely under the

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 3 of 10 relevant statute of limitations. The trial court later agreed and entered

summary judgment for Vanderpool. This appeal ensued.

Discussion and Decision [5] Hipskind appeals the trial court’s entry of summary judgment. Our standard of

review for summary judgment appeals is well established. As our supreme

court has stated:

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.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “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. (internal citations omitted).

The initial burden is on the summary-judgment movant to “demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non- movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And “[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 4 of 10 Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

Hughley).

[6] Summary judgment is a “high bar” for the moving party to clear in Indiana. Id.

at 1004. “In particular, while federal practice permits the moving party to

merely show that the party carrying the burden of proof [at trial] lacks evidence

on a necessary element, we impose a more onerous burden: to affirmatively

‘negate an opponent's claim.’” Id. at 1003 (quoting Jarboe v. Landmark Cmty.

Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). Further:

Summary judgment is a desirable tool to allow the trial court to dispose of cases where only legal issues exist. But it is also a “blunt . . . instrument” by which the non-prevailing party is prevented from having his day in court. We have therefore cautioned that summary judgment is not a summary trial and the Court of Appeals has often rightly observed that it is not appropriate merely because the non-movant appears unlikely to prevail at trial. In essence, Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.

Id. at 1003-04 (citations and some quotations omitted; omission original to

Hughley). Thus, for the trial court to grant summary judgment, the movant

must have made a prima facie showing that its designated evidence negated an

element of the nonmovant’s claims, and, in response, the nonmovant must have

failed to designate evidence to establish a genuine issue of material fact. See

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009).

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 5 of 10 [7] Here, Hipskind asserts that the trial court erroneously concluded that the

relevant statute of limitations began to run when he obtained the Auto-Owners

policy. In his complaint, Hipskind alleged that Vanderpool “negligently failed

to insure . . . the dwelling . . . at 100% of its replacement cost,” and that this

“breach of fiduciary duty and/or negligence” harmed Hipskind. Appellant’s

App. at 10. Hipskind does not dispute that his causes of action against

Vanderpool are governed by the two-year statute of limitations found under

Indiana Code Section § 34-11-2-4 (2009). Rather, Hipskind asserts only that the

statute of limitations began to run after the residence was destroyed in February

of 2012.

[8] We must agree with the trial court and Vanderpool that Hipskind’s complaint

was not timely filed. As our supreme court has made clear, “the statute of

limitations for negligence claims against an insurance agent for failure to obtain

a desired form of coverage begins to run at the time the failure was first

discoverable through ordinary diligence.” Filip v. Block, 879 N.E.2d 1076, 1078

(Ind. 2008). In Filip, the court explained:

. . . The alleged negligence here was in failing to advise the Filips [the insureds] of the availability of some types of insurance[] and in failing to secure adequate limits. We agree with the trial court that a claim against an agent for negligent procurement of the wrong coverage begins at the start of coverage if the breach was discoverable at that time through ordinary diligence.

***

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 6 of 10 The Filips argue that their negligence claim accrued when the fire occurred. The Filips claim that “[i]t is strange logic to believe that the Filips could have filed a lawsuit against Block in the year 2000 or 2001 [before the fire when coverage began] . . . . Clearly, a cause of action filed prior to a loss is not ripe.” But insurance is about the shifting of risk. The Filips bore the risk of loss from the date the policy was issued, so their injury from the alleged negligence occurred at this point. Although the extent of damages was unknown within the statute of limitations, the full extent of damages need not be known to give rise to a cause of action. See Shideler v. Dwyer, 275 Ind. 270, 282, 417 N.E.2d 281, 289 (1981) (“For a wrongful act to give rise to a cause of action and thus to commence the running of the statute of limitations, it is not necessary that the extent of the damage be known or ascertainable but only that damage has occurred.”). Presumably, no litigation would have been necessary to correct their policy and pay the adjusted premium for the desired coverage before the fire, but if for any reason the coverage was no longer available the Filips could have asserted their negligence claim if they felt that necessary. Further, if we accept the Filips’ argument, then insureds become free riders, paying lower premiums, perhaps for many years, and then retaining the ability to claim the benefit of higher coverage if a loss is incurred.

We do not hold, however, that the date of coverage is necessarily controlling in every case. The question in this case is at what point the Filips, in the exercise of ordinary diligence, could have discovered that they were underinsured. The Filips claim that their policy lacked coverage of nonbusiness personal property and business interruption, and that the building and business personal property coverage had inadequate limits. All of these alleged problems were ascertainable simply by reading the policy. As a result, the limitations period in this case began to run on or shortly after the activation of the policy . . . .

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 7 of 10 Id. at 1082-84 (emphases added; footnote omitted; some omissions and

alterations original). Similarly, for the Filips’ additional claims against their

agent for misrepresentation, the court stated, in relevant part, “[t]hese

shortcomings [regarding the adequacy or type of coverage] in their policy,

which the Filips seek to attribute to [their agent’s] negligence, were readily

ascertainable from the policy itself. Accordingly, . . . the statute of limitations

began to run two years after the start of coverage . . . .” Id. at 1084-85; see also

Groce v. Am. Fam. Mut. Ins. Co., 5 N.E.3d 1154, 1157-59 (Ind. 2014) (holding

that the insureds’ argument that their insurance agent had represented to them

that they would receive “full costs to rebuild and repair their home, without any

limitation due to policy limits” did not “supersede” the clearly stated policy

provisions and toll the statute of limitations because the insureds, “in the

exercise of ordinary diligence in reviewing their homeowners insurance policy,

could have timely discovered that the company’s replacement cost liability was

capped at the dwelling loss coverage limit”).

[9] Filip and Groce are controlling here. As in Filip and Groce, the terms and

limitations of Hipskind’s policy with Auto-Owners were plainly stated in the

policy documents themselves. The declarations page clearly stated that the

policy “limit[]” for the “[d]welling” was $197,300. Appellant’s App. at 84.

And the policy itself clearly stated that “[i]n no event” would the insurer “pay

more than . . . the limit of insurance applying to the damaged covered

property.” Id. at 113.

Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 8 of 10 [10] Indeed, Hipskind’s first argument on appeal is exactly the argument rejected by

our supreme court in Filip. In particular, Hipskind alleges that Vanderpool

negligently procured a policy with inadequate limits, or otherwise breached a

duty to Hipskind in the procurement of the Auto-Owners policy, and that

Hipskind could not have known about that alleged tortious conduct until the

ensuing loss. But, again, as the Filip court explained, once Hipskind entered

into his insurance agreement, he then “bore the risk of loss” above the policy

limit. 879 N.E.2d at 1083. And, “[a]lthough the extent of damages was

unknown within the statute of limitations, the full extent of damages need not

be known to give rise to a cause of action.” Id. Further, to the extent Hipskind

asserts that Vanderpool made representations to him that supersede the plain

language of the policy, Hipskind’s argument is contrary to our supreme court’s

analysis in Groce. 5 N.E.3d at 1157-59. Accordingly, Hipskind’s arguments

must fail.

[11] Hipskind also asserts that “reading the policy does not help whatsoever”

because Hipskind “had a limited education and no knowledge of the policy

provisions or how they might affect him.” Appellant’s Br. at 8, 11. And in his

statement of facts relevant to this appeal, Hipskind notes that he

attended high school[] but did not finish and the highest grade he received [sic] was eleventh grade. He did obtain his G.E.D. and the only other education he had was truck driving school[,] obtaining a C.D.L.

. . . He didn’t read the policy[] because he didn’t like reading gibberish to him and didn’t understand insurance policy [sic], so Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016 Page 9 of 10 [he] didn’t read it through. He was under the understanding that if your house burned down they [sic] would build a new one. That if you lost your stuff[,] you would get your stuff replaced, that’s what he thought. The first time he was aware of replacement cost is when [an agent] assisted him in completing the Proof of Loss.

Id. at 7 (citations omitted). We reject Hipskind’s statements insofar as they

suggest that Hipskind’s education level or unwillingness to avail himself of the

meaning of his contract are grounds to ignore otherwise controlling Indiana

Supreme Court precedent. See, e.g., Foster v. Auto-Owners Ins. Co., 703 N.E.2d

657, 659-60 (Ind. 1998).

[12] In sum, the Indiana Supreme Court opinions in Filip and Groce control this

appeal, and the trial court correctly concluded that the statute of limitations for

Hipskind’s complaint began to run when the policy took effect, which was on

August 10, 2009. Because Hipskind did not file his complaint until April of

2013, well after the two-year statute of limitations had expired, Vanderpool is

entitled to summary judgment as a matter of law. We affirm the trial court’s

entry of summary judgment.

[13] Affirmed.

Riley, J., and May, J., concur.

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