Colonial Penn Insurance Co. v. Guzorek

STATON, Judge,

dissenting.

I dissent for the following reasons:

I. The unrelated telephone survey was not sufficient to put Colonial Penn on notice that Guzorek engaged in fraud to obtain insurance coverage.

II. The Majority erroneously concludes that the newly acquired vehicle is covered under the insurance policy by finding ambiguous language where none exists. .

III. Guzorek did not sufficiently rebut the presumption of prejudice caused by her failure to notify Colonial Penn of the accident until nine months later.

I.

Notice

The Majority determines that Guzorek misrepresented material facts in order to obtain insurance coverage from Colonial Penn. Nonetheless, it concludes that Colonial Penn is prohibited from rescinding the policy because it had knowledge that Donald was driving the insured vehicles. In so doing, the Majority relies upon an unrelated telephone survey to impute knowledge to Colonial Penn in order to cireamvent the fact that Guzorek engaged in fraud.

The Majority bases its conclusion that Colonial Penn had knowledge of Guzorek's fraud on an unrelated telephone survey conducted by National Reporting Systems, Inc. This survey occurred ten months after Guzo-rek fraudulently obtained coverage. Guzo-rek presents no evidence that the purpose of the survey was to verify the information contained in the application or to determine who was driving the insured vehicles. Because there is no evidence showing the purpose of this survey, no basis exists for the Majority's conclusion that Colonial Penn had *1051notice of the fraud. Moreover, Guzorek was not induced by any action or inaction by Colonial Penn to rely on the purported coverage. She did not intend to include her husband on the insurance policy nor did she believe he was insured. Thus, the purpose of the inquiry notice doctrine is not furthered by imputing knowledge to Colonial Penn.

Instead, the fact remains that Guzorek committed fraud to obtain the insurance coverage. The Majority ignores this because, in its view, Colonial Penn does not argue that Guzorek committed an intentional fraud. It is true that Colonial Penn does not use the exact words "intentional fraud" when describing Guzorek's actions. However, Colonial Penn characterizes Guzorek's actions as "an intentional omission calculated to hide critical information from Colonial Penn in their decision as to whether a policy should be issued to Dorothy Guzorek." Appellant's Br. at 16.

For actual fraud to exist, there must be a material misrepresentation of past or existing fact made with knowledge of or reckless disregard for the falsity of the statement. The other party must detrimentally rely upon the misrepresentation. Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1058 (Ind.1992).

Here, Guzorek admits that she intentionally omitted her husband from her application because she knew that it would not be approved if the insurance company knew about his driving record and license suspension. She also stated in both the original application and the survey that neither she nor any operators of her vehicles had been required to file a "Proof of Financial Responsibility" form with the state. Colonial Penn relied upon this information in issuing the policy. Guzorek's actions deprived Colonial Penn of the opportunity to fully evaluate the risk it was taking and to exclude her husband from coverage. Thus, she committed fraud in order to obtain the coverage. She should not be allowed to now claim that the fraud does not void her coverage.

IL.

Ambiguity

I also disagree with the Majority's determination that the newly acquired vehicle is covered under the insurance policy because the contract is ambiguous. To reach this conclusion, the Majority finds ambiguous language in the insurance contract where none exists. If the language of an insurance contract is truly ambiguous, it should be interpreted in favor of the policyholder. Great Lakes Chemical Corp. v. International Surplus Lines Ins. Co., 638 N.E.2d 847, 850 (Ind.Ct.App.1994), reh. denied. However, the mere existence of a controversy does not create ambiguity. Id.

My reading of the policy language does not show that the term "coverages" is ambiguous. -It refers to the insurance coverages on the newly acquired vehicle (which will be the same as the coverages on other vehicles). In order for those coverages to apply, the insured must fulfill the conditions precedent of notifying the insurance company of the newly acquired vehicle and paying any additional premium due. Guzorek fulfilled neither of these requirements. In fact, to this date, she has never made any additional premium payments to cover the newly acquired vehicle. Holding Colonial Penn liable for a risk of which they were never aware and for which they have not been compensated is grossly unfair and unjust.5

IIL.

Prejudice

Finally, the Majority erroneously concludes that Guzorek sufficiently rebutted the presumption of prejudice caused by her unreasonable delay in notifying Colonial Penn of the accident, thus creating a material issue of fact. Summary judgment is appropriate *1052when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Koenig v. Bedell, 601 N.E.2d 453, 454 (Ind.Ct.App.1992). When an insured fails to give reasonable notice to an insurance company of an accident, a presumption of prejudice arises in favor of the insurance company making summary judgment appropriate. Id. at 455-56. To create an issue of fact and avoid summary judgment, the insured must present evidence that prejudice did not occur. Id.

Here, to rebut the presumption of prejudice, Guzorek and Pocius submitted affidavits stating that they remember the events of the accident and that the seene had not changed. However, those affidavits were not sufficient. They fail to address the prejudice caused by Colonial Penn's inability to inspect or photograph the vehicles involved in the accident. In addition, the affidavits do not address its inability to view temporary aspects of the accident scene such as skid marks and debris. Finally, there is no information concerning the ability of disinterested witnesses, such as the police officer who responded to the accident, to clearly remember the accident. All of this information is important in preparing an adequate defense. Because the affidavits do not address these problems, they are not sufficient to rebut the presumption of prejudice. As a result, summary judgment should have been granted to Colonial Penn.

I would reverse the trial court's entry of summary judgment in favor of Guzorek and grant summary judgment in favor of Colonial Penn on all three issues.

I dissent.

. The Majority notes that its conclusion appears to be in accord with State Security Ins. Co. v. Ottinger, 487 N.E.2d 446 (Ind.Ct.App.1985). However, Offinger is not applicable because that policy did not impose a duty of notification as a condition precedent to receiving the automatic thirty day coverage. Id. at 448. Instead, the question was whether the extended coverage was void due to the lack of notice. Id. at 449. Because the accident occurred within the thirty day period, the automatic coverage was still in effect. Id. at 450.