Bradley Starr by Next Friend Heather Starr-Haller and Heather Starr-Haller v. State Farm Automobile Insurance Company and the Indiana Bureau of Motor Vehicles

FILED
Sep 16 2016, 8:25 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES
Brian J. Johnson Lewis S. Wooten
Danville, Indiana Michael R. Giordano
Lewis Wagner, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Bradley Starr by Next Friend September 16, 2016
Heather Starr-Haller and Court of Appeals Case No.
Heather Starr-Haller, 32A05-1605-PL-976
Appellants-Plaintiffs, Appeal from the Hendricks
Superior Court
v. The Honorable Stephenie LeMay-
Luken, Judge
State Farm Mutual Automobile Trial Court Cause No.
Insurance Company and the 32D05-1501-PL-12
Indiana Bureau of Motor
Vehicles,
Appellees-Defendants.

Najam, Judge.

Statement of the Case
[1] Heather Starr-Haller, on behalf of herself and her minor son, Bradley, appeals

the trial court’s entry of summary judgment for State Farm Mutual Automobile

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 Insurance Company (“State Farm”) on Starr-Haller’s complaint. Starr-Haller

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

entered summary judgment for State Farm. We affirm.

Facts and Procedural History
[2] Between December of 2011 and September of 2014, Starr-Haller had an

automobile insurance policy through State Farm for her 1998 Chevy Blazer.

State Farm provided Starr-Haller’s coverage in six-month terms. However,

State Farm billed Starr-Haller for her coverage on a monthly basis.

[3] On three occasions between October 2012 and June 2014, Starr-Haller failed to

timely pay the monthly installment due on her premium. Following each

missed installment payment, State Farm mailed Starr-Haller a “Cancellation

Notice” that stated both the amount due and a coverage “Cancel Date.”

Appellants’ App. at 147, 149, 151. If Starr-Haller failed to pay her premium by

the Cancel Date, the Cancellation Notices explained that the following would

occur:

Payment prior to the date and time of cancellation will reinstate
your policies. If paid after that date and time, you will be
informed whether your policies have been reinstated and, if so,
the exact date and time of reinstatement. There is no coverage
between the date and time of cancellation and the date and time of
reinstatement.

Id. (emphasis added).

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[4] On each of those three occasions, Starr-Haller failed to make the installment

payment required prior to the relevant Cancel Date, but she did pay that

amount thereafter during the same policy period. Following each late

installment payment, State Farm mailed Starr-Haller a “Reinstatement Notice.”

Id. at 148, 151, 154. Those notices stated again that, because Starr-Haller had

made her installment payments after the relevant Cancel Dates, “there [wa]s no

coverage between the date and time of Cancellation and the date and time of

Reinstatement.” Id.

[5] According to the terms of Starr-Haller’s insurance agreement with State Farm,

“if [State Farm] cancel[s] this policy, then premium will be earned on a pro rata

basis.[ ]Any unearned premium may be returned within a reasonable time after

cancellation. Delay in the return of any unearned premium does not affect the

cancellation date.” Id. at 144. While State Farm accepted each of Starr-

Haller’s late installment payments in full, it did not refund any portion of the

premium for the periods during which her coverage had lapsed.

[6] In August of 2014, Starr-Haller again failed to pay her automobile insurance

installment premium. Accordingly, on September 3, State Farm mailed Starr-

Haller another Cancellation Notice. According to that Notice, State Farm

would cancel Starr-Haller’s automobile insurance coverage if she did not pay

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 her $430 premium1 by the Cancel Date, September 18. As with the prior

Cancellation Notices, the September 3 Cancellation Notice informed Starr-

Haller that her failure to pay the amount due by the September 18 Cancel Date

would result in a lapse of coverage between that Cancel Date and the date that

State Farm reinstated Starr-Haller’s coverage following her payment. Id. at 156.

[7] Seven weeks later, on October 30, Starr-Haller dropped a check off at her State

Farm agent’s place of business, after business hours, in the amount of $350.

Later that evening, Starr-Haller’s minor son, Bradley, was involved in a one-car

accident in the Chevy Blazer that resulted in injuries to him and totaled the

vehicle. Sometime thereafter, Starr-Haller paid the remaining $80 due. Upon

receiving the total balance due, State Farm reinstated Starr-Haller’s automobile

insurance coverage.2 State Farm did not refund to Starr-Haller any portion of

her premium during that policy term.

[8] Starr-Haller filed a claim with State Farm for coverage relating to the October

30 accident. State Farm denied the claim on the ground that it had cancelled

Starr-Haller’s coverage, which had not been reinstated as of the accident date.

On January 21, 2015, Starr-Haller filed a complaint against State Farm for

1
Starr-Haller had several insurance policies with State Farm, and she paid her premium installments for
each of those policies in one combined monthly payment. Of the $430 she owed in September of 2014,
$49.48 was for the Chevy Blazer.
2
This is according to Starr-Haller’s affidavit, which, unlike the other claims of reinstatement, is not
supported by documentation from State Farm. See Appellants’ App. at 187. And, on appeal, State Farm
disputes that it would have reinstated coverage for a totaled vehicle. Appellee’s Br. at 15. We acknowledge
State Farm’s skepticism of Starr-Haller’s statement, but, as she is the summary judgment nonmovant, we are
obliged to construe all facts favorable to her, even if the only basis for those facts is a “perfunctory and self-
serving” affidavit. Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014).

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 breach of contract, along with other claims against other parties. On December

3, State Farm moved for summary judgment, which the trial court granted.

The court entered its judgment for State Farm as a final judgment pursuant to

Indiana Trial Rule 54(B), and this appeal ensued.

Discussion and Decision
[9] Starr-Haller asserts that the trial court erred when it entered summary judgment

for State Farm. 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.,

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 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

Hughley).

[10] According to Starr-Haller, State Farm has “waived” its right to deny, and “is

estopped from denying[,] coverage for the October 30, 2014[,] accident because

of its pattern of repeatedly accepting late and non-conforming [installment]

payments . . . and reinstating the policy.” Appellants’ Br. at 11. More

specifically, Starr-Haller asserts:

The payments made . . . were clearly installment payments
towards the policy premium. On the prior occasions, when
[Starr-Haller] would make delinquent payments, State Farm
would accept the payment[] and send [her] a statement indicating
that her coverage had been reinstated as of the date . . . the
payment was received, indicating that the policy had “lapsed”
from the time the payment was due until it was received . . . .

. . . State Farm, when accepting the [late] payment[s], did not
refund or credit [Starr-Haller], pro rata, the portion of the
payment for the time for which she was allegedly not covered,
but instead [State Farm] accepted the payments in full as if [she]
had continuous, uninterrupted coverage . . . .

Id. at 14-15. We cannot agree with Starr-Haller’s assessment that State Farm’s

failure to remit her unearned premium on a pro rata basis, without more,

demonstrates that State Farm waived its right to deny her coverage for the

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 October 30 accident or that State Farm should be estopped from denying her

that coverage.

[11] As we have 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. More specifically, provisions in an
insurance policy providing for its forfeiture for nonpayment of
the premiums is for the insurer’s benefit, and may be waived. . . .

***

Waiver is generally a question of fact. Where there are no
disputed facts and the undisputed facts establish a party is
entitled to judgment as a matter of law, however, summary
judgment is proper. . . .

“The term ‘estoppel’ has a meaning distinct from ‘waiver’ but the
terms are often used synonymously with respect to insurance
matters.” The existence of waiver may be implied from the acts,
omissions, or conduct of one of the parties to the contract. The
conduct of an insurer inconsistent with an intention to rely on the
requirements of the policy that leads the insured to believe that
those requirements will not be insisted upon is sufficient to
constitute waiver.

***

. . . The doctrine of estoppel springs from equitable principles,
and it is designed to aid in the administration of justice where,
without its aid, injustice might result. Use of the doctrine is not
limited to circumstances involving an actual or false
representation or concealment of an existing material fact.
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 Instead, equitable estoppel is available if one party through his
course of conduct knowingly misleads or induces another party
to believe and act upon his conduct in good faith and without
knowledge of the facts.

Am. Stand. Ins. Co. v. Rogers, 788 N.E.2d 873, 876-77, 879 (Ind. Ct. App. 2003)

(footnote and citations omitted). Thus, “[a] waiver is an intentional

relinquishment of a known right involving both knowledge of the existence of

the right and the intent to relinquish it.” Id. at 877 n.4. “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.

[12] In Rogers, American Standard issued a policy of automobile insurance to

Wilson. On at least eight occasions prior to December of 1997, American

Standard had cancelled Wilson’s policy due to his failure to timely pay his

premiums only to later “re-issue[]” the policy upon Wilson’s eventual payment,

with no apparent loss of coverage and no refund of a portion of the premiums

for the days for which the policy had been cancelled. Id. at 877. On December

24, 1997, American Standard sent another cancellation letter to Wilson due to

his failure to timely pay his premium. That cancellation letter stated that

Wilson’s policy would be cancelled on January 8, 1998, unless Wilson paid the

total amount owed—$958.80—prior to that date. On December 29, 1997,

Wilson submitted a payment in the amount of $374.30. Wilson made no

further payments on his account.

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[13] On March 4, 1998, Rogers was operating one of Wilson’s vehicles with

Wilson’s permission and was involved in a collision with a vehicle driven by

Roberts. Thereafter, American Standard sought a declaratory judgment that its

policy with Wilson did not provide coverage for that accident because the

policy had been cancelled in January of 1998, approximately two months

before the accident. Rogers argued that American Standard had waived its

right to deny coverage and, in the alternative, was estopped from denying that

coverage.

[14] On appeal, we first held that American Standard’s December 1997 cancellation

notice made clear that it was not waiving its right to deny future claims of

coverage in the event that Wilson failed to timely pay his premium. Id. at 877-

78. In particular, we noted that the insured “had notice of cancellation prior to

his [final, partial] payment”; that he “was further notified that failure to remit

the payment . . . in full prior to the cancellation date . . . would result in an

interruption of coverage”; and, “[f]ollowing the [insurer’s] acceptance of the

partial payment, American Standard continued to assert its right to

cancellation.” Id. at 878 n.7. We did not consider the prior cancellations and

reissuances relevant to our analysis because there was no evidence that

American Standard had reissued the insurance coverage after January of 1998,

which was the only cancellation relevant to the accident at issue.

[15] We then held that there was “no evidence to support the conclusion that

American Standard” should be estopped from denying coverage. Id. at 879.

Specifically, we concluded:

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 American Standard repeatedly informed Wilson that the Policy
would be, and was, canceled effective January 8, 1998. There is
no evidence to suggest that Wilson was not aware of the fact that
the Policy was in fact cancelled or that he acted to his detriment
based upon his misunderstanding that the Policy was in full
effect. It would be inequitable to extend the Policy two months
beyond January 8, 1998[,] when it is clear from the actions of
both American Standard and Wilson that the Policy was
terminated prior to the date of the accident between Rogers and
Roberts.

Id.

[16] Unlike here, in Rogers the policy had been cancelled and had not been reinstated

after the accident had occurred. But the fact pattern in Rogers is otherwise

similar and provides helpful guidance for the resolution of this case. Nearly

two months prior to the October 30 accident, State Farm informed Starr-Haller

that the untimely payment of her premium installment would result in State

Farm cancelling her coverage until she had paid that installment and State

Farm had affirmatively reinstated her coverage. The language in the

Cancellation Notice was consistent with three such prior notices State Farm

had sent to Starr-Haller. In reinstating Starr-Haller’s coverage on each of those

three prior occasions, State Farm had expressly informed Starr-Haller that it

had cancelled her coverage between the relevant Cancel Dates and

Reinstatement Dates. And Starr-Haller’s contract with State Farm specifically

declared that any “[d]elay [by State Farm] in the return of any unearned

premium does not affect the cancellation date.” Appellants’ App. at 144. In

other words, State Farm reserved the right to accept late installment payments

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 and to reinstate the policy and coverage prospectively but not to reinstate

coverage retroactively during the period in which coverage had been cancelled

due to nonpayment of the premium.

[17] State Farm’s actions with respect to the dates that encompassed the October 30

accident were identical to its actions during the three prior occasions in which

State Farm had also cancelled Starr-Haller’s coverage. That undisputed

evidence plainly shows that State Farm did not intend to relinquish its right to

deny Starr-Haller coverage during the period in which those cancellations of

coverage had occurred. Likewise, that evidence demonstrates that State Farm’s

course of conduct did not knowingly mislead or induce Starr-Haller to believe

that she would have retroactive coverage if she did not pay her premium

installment when due. See Rogers, 788 N.E.2d at 879.

[18] Finally, we are not persuaded by Starr-Haller’s reliance on State Farm’s failure

to issue her pro rata refunds of her premiums for the periods in which her

coverage had been cancelled. First, as in Rogers, there is no question that at the

time of the accident State Farm had clearly and affirmatively cancelled Starr-

Haller’s coverage, regardless of whether State Farm subsequently reinstated the

coverage. While the instant facts are unlike Rogers in that State Farm

eventually did accept Starr-Haller’s subsequent installment payments, thereby

reinstating her coverage as of the reinstatement date, nonetheless State Farm

made it clear to Starr-Haller that such late payments did not reinstate coverage

during the periods in which her coverage had lapsed due to nonpayment of the

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 installment then due, and State Farm’s position was the same as its position on

the three prior occasions.

[19] There is nothing in State Farm’s conduct that would have given Starr-Haller a

right to rely upon anything other than the express terms of her insurance

contract. Indeed, Starr-Haller’s argument that her unrefunded payments entitle

her to coverage contravenes her contract with State Farm. Again, in the

contract State Farm expressly reserved the right to accept late installment

payments without reinstating coverage retroactively, declaring that any “[d]elay

[by State Farm] in the return of any unearned premium does not affect the

cancellation date.” Appellants’ App. at 144. At best, Starr-Haller has

demonstrated that she is entitled to a refund from State Farm for those

unearned premium payments,3 but she has not demonstrated that she is entitled

to coverage.

[20] In sum, the undisputed designated evidence shows that State Farm did not

waive its right to deny Starr-Haller the coverage she now claims. The

undisputed designated evidence likewise shows that State Farm is not estopped

from denying her that coverage. Accordingly, State Farm met its burden to

demonstrate that it is entitled to judgment as a matter of law, and Starr-Haller

has failed to designate evidence to create a genuine issue of material fact on her

claims against State Farm. Thus, we affirm the trial court’s entry of summary

judgment for State Farm.

3
Starr-Haller has not sought such a refund in her complaint.

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[21] Affirmed.

Vaidik, C.J., and Baker, J., concur.

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