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.
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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:
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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
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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).
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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).
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[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.
***
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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 . . . .
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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.
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[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
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[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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