Eric Cox and Pea Cocks Corp. d/b/a Cox's Pub v. Mayerstein-Burnell Co., Inc. d/b/a MBAH Insurance and Jeff Clute , 19 N.E.3d 799 ( 2014 )

FOR PUBLICATION Oct 31 2014, 9:48 am
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
JEFFREY O. MEUNIER CYNTHIA M. LOCKE
Carmel, Indiana TARA STAPLETON LUTES
Cantrell Strenski & Mehringer, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ERIC COX and PEA COCKS CORP. )
d/b/a COX’S PUB, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 79A05-1402-CT-75
)
MAYERSTEIN-BURNELL CO., INC. )
d/b/a MBAH INSURANCE and JEFF CLUTE, )
)
Appellees-Defendants. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1206-CT-41
October 31, 2014
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Eric Cox and Pea Cocks Corp. d/b/a Cox’s Pub (“Cox’s Pub” or “the Pub”) appeal
the trial court’s grant of summary judgment in favor of Jeff Clute and Mayerstein-Burnell
Co., Inc. d/b/a MBAH Insurance (“MBAH”). Cox and the Pub present two issues for our
review, which we revise and restate as the following three issues:
1. Whether Cox has standing, in his individual capacity, to pursue his
negligence claims in this appeal.1
2. Whether Clute, as MBAH’s agent, had a special relationship with
Cox and Cox’s Pub such that he had a duty to advise regarding the
adequacy of the Pub’s insurance coverage.
3. Whether, despite not having a duty to advise in the first instance,
Clute nevertheless assumed that duty.
We hold that Cox had standing to pursue his negligence claims, but we apply our
supreme court’s recent opinion in Hughley v. State, 15 N.E.3d 1000 (Ind. 2014), and
affirm the trial court’s grant of summary judgment in favor of Clute and MBAH.
FACTS AND PROCEDURAL HISTORY
Cox became the president of Cox’s Pub in May 2003 when his father, who had
purchased the Pub in 1996, died. Julie Burton, a longtime employee of the Pub, managed
the routine operations of the business. Among other things, Burton was responsible for
the procurement and maintenance of business insurance, an obligation that afforded her
the attendant authority to make necessary representations on behalf of the Pub.
Until May 2010, Cox’s Pub maintained a business insurance policy through
Society Insurance (“Society”) that had policy limits of $383,000 for losses to the Pub’s
1
Cox and the Pub do not challenge the trial court’s entry of summary judgment on their breach
of contract claims.
2
building. During this period, in August 2008, Clute, an insurance producer for MBAH,
solicited Cox’s Pub with an offer to quote a business insurance policy and was referred to
Burton. After a scheduled meeting, Burton informed Clute that Cox’s Pub would stay
with Society. The two had no further contact at that time.
Between August 2008 and May 2010, Cox’s Pub settled a wrongful death lawsuit,
which resulted in higher premiums2 under the Society policy. Cox’s Pub could not afford
these premiums, and, in May 2010, Burton let the Society policy lapse for failure to pay
premiums. Later, in August 2010, Burton contacted Clute, told him about the Society
policy’s premiums, and informed him that Cox’s Pub was currently uninsured. She
stated that the Pub needed insurance but, due to financial difficulties, desired to keep its
premiums as low as possible. The two scheduled an in-person meeting at Cox’s Pub.
Burton also informed Cox that, as a result of the settlement, Cox’s Pub could no longer
afford Society’s increased premiums but that Clute could keep the Pub’s premiums
approximately the same as what the Pub had paid prior to the settlement.
During their meeting, Burton provided Clute with a copy of the Society policy’s
declarations page and requested the same coverage under a new policy. Burton also
provided Clute with other information necessary for Clute to obtain a quote. Clute later
summarized this information, which
included such information as the nature of the business, owner of building,
and number of prior claims. Ms. Burton also provided information
regarding the square footage and age and construction type of the building,
any improvements, and whether [the] building has a sprinkler system, an
alarm system, fire extinguishers, and deep fryers. Ms. Burton provided
2
The record contains several allegations by Cox of wrongdoing by Burton, and one such
allegation is that Burton lied to both Cox and Clute about the premium increase. It is therefore not clear
whether Society actually sought to increase Cox’s Pub’s premiums.
3
information regarding Cox’s Pub’s procedures for dealing with intoxicated
persons, fight prevention, and age identification. Finally, Ms. Burton
provided information regarding the amount of coverage limits Cox’s Pub
needed for the building and business personal property.
Appellant’s App. at 64-65.
Clute submitted this information, via the Acord application, to Illinois Casualty
Company, which used it to prepare a commercial building valuation report (“Valuation”).
The Valuation estimated a replacement cost value for the Pub building at $265,049.
Nonetheless, following Burton’s instructions to provide a quote in line with the Society
policy, Clute presented Burton with a quote from Illinois Casualty with building coverage
limits of $354,000 and a yearly premium of $4,032.3 The following day, after a
conversation with Burton, Clute presented Burton with a second quote, also from Illinois
Casualty, based on the Valuation. It had building coverage limits of $265,000 and a
yearly premium of $3,880. Throughout the process, Burton made clear to Clute that
Cox’s Pub was struggling financially, needed to save money, and wanted to keep the
Pub’s premiums as low as possible.
The final decision regarding the Pub’s coverage belonged to Burton, and Clute did
not personally offer an opinion about the value of the Pub building. Clute did, however,
tell Burton that Illinois Casualty believed that it could adequately insure the Pub building
for $265,000. Nevertheless, Clute did not advise Burton about which policy Cox’s Pub
should take, and, when presented with both quotes, Burton ultimately purchased the
policy with the $265,000 limits. Less than one month later, on September 8, a fire
destroyed Cox’s Pub.
3
Clute stated in his affidavit that Burton told him the Society policy had coverage limits of
$354,000.
4
Cox’s Pub submitted a claim to Illinois Casualty, and, subsequently, Cox,
individually, and the Pub jointly filed a complaint against Clute and MBAH. The
complaint included negligence and breach of contract claims, which were based on Cox
and the Pub’s allegations that the insurance proceeds were insufficient to cover the
replacement cost of the building. Cox and the Pub alleged that the true replacement cost
exceeded $500,000, which left them unable to rebuild and continue the business. Clute
and MBAH moved for summary judgment, which the trial court granted following a
hearing. This appeal ensued.
DISCUSSION AND DECISION
Cox’s Pub contends that the trial court erred when it entered summary judgment
for MBAH and Clute. Our standard of review for summary judgment appeals is well
established.
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. &
5
Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation
marks omitted).
Hughley, 15 N.E.3d at 1003 (alterations original to Hughley).
As our supreme court recently reaffirmed, summary judgment is a “high bar” for
the moving party to clear in Indiana. Id. at 1004. Unlike federal practice, which “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. (citations and some quotations omitted; omission original to Hughley).
Thus, for the trial court to properly grant summary judgment, the movants must
have made a prima facie showing that their designated evidence negated an element of
the nonmovants’ claims, and, in response, the nonmovants 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). With these principles in mind, we
turn now to Clute and MBAH’s motion regarding Cox and the Pub’s claims.
6
Issue One: Cox’s Individual Standing
In their motion for summary judgment, Clute and MBAH first argued that Cox
lacked individual standing on his negligence claims. More specifically, Clute and
MBAH stated, “it is not clear that Plaintiffs’ Complaint is alleging that Defendants owed
Eric Cox, the individual, a duty separate from the one owed to Plaintiff [Cox’s Pub] to
insure the subject business establishment and/or breached a duty of care to Eric Cox, the
individual.” Appellant’s App. at 30. However, Clute and MBAH designated no evidence
on summary judgment in support of their contentions. While the designation of a
competent, self-serving affidavit will suffice to make a prima facie showing, “[m]erely
resting on the pleadings,” as Clute and MBAH do, is not enough.4 Hughley, 15 N.E.3d at
1002. Mere suppositions, such as unsupported statements in pleadings, cannot support
summary judgment, but a scintilla of evidence, such as a self-serving affidavit, is enough.
See id. (“Merely resting on the pleadings will not permit the non-movant to raise [a
genuine issue of material fact], but a competent affidavit will. Here, Defendant’s
affidavit was self-serving and none too detailed—but it was competent, and it
contradicted the State’s designated evidence on a material fact.”); Smith v. Taulman, ___
N.E.3d ___, No. 32A01-1402-PL-78 (Ind. Ct. App. Oct. 31, 2014). Therefore, as the
summary judgment movants, Clute and MBAH have not met their burden to negate an
element of the nonmovants’ allegations, and we hold that Cox has standing to pursue his
negligence claim in this appeal.
4
We do note, however, that Cox and the Pub could then defeat Clute and MBAH’s prima facie
showing by designating their own competent, self-serving affidavit. “Summary judgment should not be
granted when it is necessary to weigh the evidence.” Hughley, 15 N.E.3d at 1005.
7
Issue Two: Whether a Special Relationship Existed
Cox and Cox’s Pub contend that, by obtaining the Valuation, Clute counseled the
Pub regarding specialized insurance coverage and, thereby, held a special relationship
with the Pub. This special relationship, they reason, imposed upon Clute a concomitant
duty to advise the Pub regarding the adequacy of its coverage. We hold, however, that
the undisputed designated evidence shows that Clute did not have a special relationship
with Cox’s Pub and, therefore, did not have a duty to advise the Pub regarding the
adequacy of its coverage.
We have previously held that:
[a]n insurance agent who undertakes to procure insurance for another is an
agent of the insured and owes the insured a general duty to exercise
reasonable care, skill[,] and good faith diligence in obtaining insurance.
However, the agent’s duty may extend to the provision of advice only upon
a showing of an intimate long[-]term relationship between the parties or
some other special circumstance. . . .
[S]omething more than the standard insured-insurer relationship is
required to create a special relationship obligating the insurer to advise the
insured about coverage. . . . [I]t is the nature of the relationship, not its
length, that invokes the duty to advise. Some of the relevant factors which
manifest a special relationship include: (1) exercising broad discretion to
service the insured’s needs; (2) counseling the insured concerning
specialized insurance coverage; (3) holding oneself out as a highly-skilled
expert, coupled with the insured’s reliance upon the expertise; and (4)
receiving compensation, above the customary premium paid, for the expert
advice provided.
***
This existence of a duty is a question of law for this court which
depends, in part, on the relationship of the parties. Whether an insurance
agent owes the insured a duty to advise is likewise a question of law for the
court. However, whether the parties’ relationship gives rise to such a duty
may involve factual questions.
8
Am. Family Mut. Ins. Co. v. Dye, 634 N.E.2d 844, 847-48 (Ind. Ct. App. 1994) (citations
and quotations omitted; emphases added), trans. denied.
Clute and MBAH’s designated evidence shows that Clute and Cox’s Pub began
their insurer-insured relationship approximately one month before the fire but “had never
done business . . . prior to the disputed transaction.” United Farm Bureau Mut. Ins. Co.
v. Cook, 463 N.E.2d 522, 528 (Ind. Ct. App. 1984). Thus, Clute and MBAH
demonstrated that no longstanding, intimate relationship existed between the parties, and
Cox and the Pub did not designate evidence in response that raises a genuine issue of
material fact on this point. Id.
Therefore, to negate whether Clute had a duty to advise, Clute and MBAH were
required to designate evidence to show that no “other special circumstance” existed that
placed Clute in a special relationship with the Pub. Dye, 634 N.E.2d at 847. In this
regard, Clute and MBAH designated evidence relevant to each of the four Dye factors.
But, both in their trial court response and in their argument to this court on appeal, Cox
and the Pub challenge only whether Clute and MBAH have met their burden under the
second Dye factor—counseling—and we limit our review accordingly.5 See Ind.
Appellate Rule 46(A)(8)(a).
5
The description in Dye of a “special relationship” delineates four “relevant factors,” which the
court qualified as just “[s]ome” of the factors that may be relevant. 634 N.E.2d at 848. Cox and the Pub
cite no authority on appeal in which an Indiana court has found a duty to advise based on just one of the
four factors delineated in Dye. Nonetheless, for the sake of argument, we assume that such a finding is
possible.
We also note that, although Cox and the Pub present an argument under the third factor in their
Reply Brief, we will not consider that argument. It is well settled that one cannot make an argument for
the first time on appeal, much less in one’s Reply Brief. Ind. Appellate Rule 46(C); Showalter v. Town of
Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied.
9
In this regard, the designated evidence is unambiguous and affirmatively negates
the claim that Clute counseled Cox’s Pub. It shows that Clute and MBAH obtained from
Illinois Casualty two different quotes for standard business policies, one with limits of
$354,000 and one with limits of $265,000. The policy with the $265,000 limits was
based on the Valuation. Clute provided Burton with Illinois Casualty’s quotes and did
not personally give an opinion regarding either the value of the Pub’s structure or which
policy Cox and the Pub should purchase. Burton ultimately selected the policy with the
$265,000 limits and the lower premium.
Although Cox and the Pub cite Clute’s deposition for the proposition that Clute
told Burton she could save money by purchasing the policy with the $265,000 limits, this
contention is wholly unsupported by the record. Indeed, Clute testified in his affidavit
and at his deposition that he merely provided the two policies to Burton, and she chose
the one the Pub wished to purchase. Nothing in the record contradicts this. To be sure,
when counsel at Burton’s deposition asked her if Clute had made recommendations to her
about adequate policy limits or building coverage that the Pub should purchase, Burton
testified, “I don’t remember.” Appellant’s App. at 149-50. This, however, does not
contradict Clute’s assertions and, therefore, Clute and MBAH’s designated evidence.
Nevertheless, the parties disagree on whether these undisputed facts show that
Clute counseled the Pub regarding specialized coverage. Thus, the parties actually
quarrel over the legal meaning of “counseling” and whether the undisputed facts fit that
meaning. This disagreement raises a question of law for this court.
10
Dye and Cook describe what it means to “counsel” an insured. Counseling occurs
when an insurance agent undertakes to “provide a specific analysis of [one’s] insurance
needs.” Dye, 634 N.E.2d at 848. Cook makes clear that such an analysis arises in very
limited situations. There, we held that an agent counseled the insured where the agent,
over a twelve-year period, gave specific advice regarding insurance coverage for precise
risks attendant to the management and improvement of a horse farm.6 See 463 N.E.2d at
524-25, 528.
The designated evidence shows that the Pub’s relationship with Clute is not
analogous to Cook. Instead, the Pub’s relationship with Clute more closely resembles the
facts of DeHayes Group v. Pretzels, Inc., 786 N.E.2d 779 (Ind. Ct. App. 2003), trans.
denied. In DeHayes, we declined to hold that an agent counseled the insured where the
policy at issue provided “standard casualty and property insurance, not a type customized
to [the insured’s] needs” and where the insured made the final coverage selection from
competing quotes. Id. at 783 (quotations omitted).
Here, like in DeHayes, the insurance policy is a standard casualty and property
insurance policy, and the designated evidence demonstrates that Clute provided no
specific analysis regarding specialized coverage like that present in Cook. Moreover, it is
undisputed that, when faced with competing quotes, Cox’s Pub, not Clute, made the final
6
We note that Clute and MBAH cite Indiana Restorative Dentistry, P.C. v. Laven Insurance
Agency, Inc., 999 N.E.2d 922 (Ind. Ct. App. 2013), trans. granted, in its discussion regarding whether
Clute had a duty to advise Cox and the Pub about the adequacy of the Pub’s coverage. That case held that
an agent counseled the insured where the agent and insured maintained a “long-term, professional
affiliation . . . defined by a yearly ritual and customized policies,” during which the agent used a detailed
questionnaire to “keep abreast of any changes that may [have] affect[ed] the insured’s practice.” Id. at
931-32 (quotations omitted). Those facts are apposite here, but our supreme court has granted transfer in
Indiana Restorative Dentistry, which vacated this court’s opinion. App. R. 58(A).
11
determination about what coverage it needed. It was “in the best position to assess [its]
need[s] for [coverage] in light of [its] personal assets and ability to pay.” Parker ex rel.
Parker v. State Farm Mut. Auto. Ins. Co., 630 N.E.2d 567, 570 (Ind. Ct. App. 1994),
trans. denied. The Pub’s mere expectation of full replacement cost coverage “is not
enough to impose a duty on [Clute] to provide advice to an insured regarding the amount
of coverage that should be purchased.” Myers v. Yoder, 921 N.E.2d 880, 889 (Ind. Ct.
App. 2010). Clute and MBAH “delivered services commensurate with the insurance
product the [Pub] purchased.” Parker, 630 N.E.2d at 570. Although, given the
competing policy limits for replacement cost value, it “may have been a good business
practice” for Clute to suggest an appraisal of the building, “we will not impose such a
duty upon him.” Id.
We therefore hold that, as a matter of law, Clute did not counsel the Pub regarding
specialized insurance needs. Instead, Clute merely offered two quotes for standard
property and casualty insurance, which is not specialized insurance. Cox’s Pub then
made its own determination of adequate coverage. The trial court did not err when it
granted summary judgment to Clute and MBAH on this issue.
Issue Three: Whether Clute Assumed a Duty to Advise
Finally, Cox and the Pub contend that, even if Clute did not have a special
relationship and, therefore, a duty to advise in the first instance, he nevertheless assumed
a duty to advise the Pub regarding the adequacy of its coverage by providing the
Valuation. Before we address this issue, however, in light of Hughley we must first
address the procedural posture in which this argument first arose.
12
Cox and the Pub’s complaint alleged only a general duty of care for its negligence
claim and said nothing about assumption of a duty as a theory of liability. Thus, as the
summary judgment movants, Clute and MBAH were obligated to make a prima facie
showing that negated only Cox and the Pub’s general negligence claim. They did so by
negating the “duty” element of negligence under the Dye factors. At that point, the
burden shifted to Cox and the Pub to raise a genuine issue of material fact in their
response motion. In their attempt to do so, in addition to their argument that Clute
counseled the Pub, Cox and the Pub also contended, for the first time, that Clute assumed
a duty to advise. Thus, although Clute and MBAH had the initial burden to make a prima
facie case that negated Cox and the Pub’s claims, because Cox and the Pub did not plead
assumption of duty, Clute and MBAH’s burden on summary judgment did not require
them to negate an assumption-of-duty argument. While summary judgment is a high bar,
that bar does not require that movants create, and then negate, alternative theories of
liability of which they have no notice from the pleadings. Cf. Ind. Trial Rule 12(E) (“If a
pleading to which a responsive pleading is permitted is so vague or ambiguous that a
party cannot reasonably be required to frame a responsive pleading, he may move for a
more definite statement before interposing his responsive pleading.”). With this posture
in mind, we turn now to the merits of this argument.
Cox and the Pub’s sole designation on this issue was the Valuation; however,
Clute and Burton’s depositions, designated as evidence with respect to other issues, are
also instructive, and we consider them here. As we have long recognized, in our review
of the trial court’s decision on summary judgment, we may consider “any theory or basis
13
supported by the designated materials,” however those materials may have been
designated to the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173
(Ind. Ct. App. 2012), trans. denied; see also Wells Fargo Ins., Inc. v. Land, 932 N.E.2d
195, 201 (Ind. Ct. App. 2010) (considering evidence that was not formally designated but
was included in material submitted by a party in support of that party’s summary
judgment motion because the trial court was “apprised of the specific material”). We
hold that this designated evidence does not establish a genuine issue of material fact to
preclude the entry of summary judgment.
As we explained in Masick v. McColly Realtors, Inc., 858 N.E.2d 682, 692 (Ind.
Ct. App. 2006) (emphasis supplied):
A duty to exercise care and skill may be imposed on one who, by
affirmative conduct, assumes to act, even gratuitously, for another. Hous.
Auth. of City of South Bend v. Grady, 815 N.E.2d 151, 160 (Ind. Ct. App.
2004). The actor must specifically undertake to perform the task he is
charged with having performed negligently, for without actual assumption
of the undertaking there can be no correlative legal duty to perform the
undertaking carefully. Id. In other words, the assumption of a duty creates
a special relationship between the parties and a corresponding duty to act in
a reasonably prudent manner. Id. The existence and extent of such duty
are ordinarily questions for the trier of fact, but when there is no genuine
issue of material fact, assumption of a duty may be determined as a matter
of law.
Although Cox and the Pub do not cite to any case law regarding the assumption of
a duty in the insurance context, an insurance agent may, in certain circumstances, assume
a duty to advise regarding the adequacy of coverage. In Filip v. Block, 879 N.E.2d 1076,
1086 (Ind. 2008), for example, our supreme court stated that an issue of material fact
existed regarding whether an insurance agent had assumed a duty after the agent had
represented to the insureds that a business policy would cover their nonbusiness personal
14
property when, in fact, it did not. Similarly, in Anderson Mattress Co. v. First State
Insurance Co., 617 N.E.2d 932, 934 (Ind. Ct. App. 1993), trans. denied, the insurance
agent repeatedly promised the insured that the agent had obtained a blanket coverage
policy when, in fact, he had obtained a specific coverage policy. We held that a genuine
issue of material fact existed regarding whether the insurance agent had assumed and
breached a duty to inform the insured that the policy obtained differed from that which
the agent was retained to procure. Id. at 939.
Here, unlike the agents in Filip and Anderson Mattress, the undisputed designated
evidence shows that Clute made no such representations and gave no assurances. First, in
Filip and Anderson Mattress, the agents wholly failed to obtain the type of coverage
requested or needed but nevertheless promised the insureds that they had obtained that
coverage. The agent in Filip told the insureds that their nonbusiness personal property
was covered by a policy that was completely inapplicable to that type of property. 879
N.E.2d at 1079. Likewise, in Anderson Mattress, the agent repeatedly promised the
insured that the business had blanket coverage when it did not. 617 N.E.2d at 934.
In contrast to those cases, the designated evidence demonstrates that Cox’s Pub
retained Clute to procure replacement cost coverage, and Clute did, in fact, obtain
replacement cost coverage. Thus, again, Clute and MBAH “delivered services
commensurate with the insurance product the [Pub] purchased.” Parker, 630 N.E.2d at
570. Moreover, the designated evidence shows that Cox’s Pub was aware of its policy’s
coverage limits, as it chose between the two competing quotes from Illinois Casualty,
and, once more, the Pub was “in the best position to assess [its] need[s] for [coverage] in
15
light of [its] personal assets and ability to pay.” Id. at 570. Despite this, the Pub “did not
object or raise any concern regarding the limits of the policies and did not request to
increase the amount of coverage.” Schweitzer v. Am. Family Mut. Ins. Co., 16 N.E.3d
982, 989 (Ind. Ct. App. 2014).
Second, with respect to the Valuation, the designated evidence shows that Clute
was not an “actor” in the same sense that the gratuitous assumption of duty cases
contemplate because he did not specifically undertake the task that Cox’s Pub now
ascribes to him. Clute testified at his deposition that he did not, himself, create the
Valuation; Illinois Casualty prepared it. Indeed, it is not disputed that Clute merely
submitted the information that Burton had provided to him to Illinois Casualty via the
Acord application. That is, Clute acted only as an intermediary between the Pub and
Illinois Casualty. The following exchange from Clute’s deposition is illustrative:
A: . . . I don’t care what they had it insured for with the other company.
It’s what do they want to insure it for. It’s really my job to help
them and the insurance company agree on a value, not me tell them
what they want, I don’t care if it was on the old policy or if it’s just a
number they came up with . . . .
Q: So you view it as your responsibility, your job, as you said, to help
them determine what a replacement cost value of their building is so
they can properly insure it?
A: No. It’s their—I am supporting them, but it’s their final decision on
the building value and the insurance company’s, they negotiate—it’s
a contract between them, so they negotiate together.
Q: Sure. If you’re not trying to help them arrive at a replacement cost
value, why do you provide them a copy of the cost estimate?
A: The cost estimate is done by the company.
Appellant’s App. at 174. Further:
16
A: I told [Burton] that Illinois Casualty felt like the building could be
valued at the 265. . . . So I offered her—told her, you know, you
have your choice in the quotes, basically. . . .
Q: What do you mean by that?
A: I told her that we could offer her a quote for 354 or we could offer
for the 265 or whatever that was—number was, and in a way to save
a buck, she chose the cheaper.
Q: Did you tell her that you believed that $265,000 quote would be
adequate insurance for her building?
A: I told her Illinois Casualty felt it was adequate.
Q: Okay. And you were an agent of Illinois Casualty; correct?
A: Yes.[7]
Q: Did you have any opinion one way or another yourself as to whether
that was a fair value?
A: I’m not an expert in building values or contractor, so, no.
Id. at 175-76.
And the undisputed designated evidence demonstrates that Clute did not
recommend either policy over the other. Again, Clute testified that “I told [Burton] that
we could offer her a quote for 354 or we could offer for the 265 or whatever that was—
number was, and in a way to save a buck, she chose the cheaper.” Id. at 175. Clute’s
affidavit is similar. It states, “I met again with Ms. Burton and provided these two (2)
7
We note here that, to the extent Clute was an agent for Illinois Casualty, he acted on behalf of a
disclosed principal, and, therefore, he would not be liable for any purported negligence by Illinois
Casualty in its issuance of a policy to Cox’s Pub. See Carlson Wagonlit Travel, Inc. v. Moss, 788 N.E.2d
501, 503 (Ind. Ct. App. 2003) (“Generally, in Indiana, where an agent discloses the identity of his
principal and does not exceed his authority when contracting on the principal’s behalf, the agent is not
personally bound by the contract unless the agent agrees to be so bound.”) (citations and quotations
omitted), trans. denied.
17
quotes to Ms. Burton for consideration. Ms. Burton advised that she wanted to purchase
the policy with the lowest insurance premiums.” Id. at 65.
In their response, Cox and the Pub do not refute these designations. They
designate Burton’s deposition as evidence, but, when asked whether Clute “made any
recommendations about what the policy limits or amount of coverage on the building
should be,” Burton responded, “I don’t remember.” Id. at 150. In fact, when repeatedly
asked about her interactions with Clute, Burton remembered very little and was unable to
testify to any details beyond providing Clute with the Society policy and informing him
that the Pub needed insurance. This is not sufficient to establish a genuine issue of
material fact.
By contending that Clute assumed a duty through Illinois Casualty’s preparation
of the Valuation, Cox and the Pub are “essentially arguing the duty to advise under the
guise of the general duty of care.” Filip, 879 N.E.2d at 1085. Indeed, like the argument
in Filip, which our supreme court squarely rejected, Cox and the Pub’s argument boils
down to a request to impose a duty on insurance agents to “identify the insured’s desires
with regard to insurance and explain to the insureds various coverages available to meet
those desires.” Id. Moreover, the preparation of a business valuation is a standard part of
the insurer-insured relationship. See Myers, 921 N.E.2d at 890. Thus, to hold that an
insurer assumes a duty to advise by preparing a valuation would create a duty in nearly
every instance, and our supreme court has rejected such an expansive duty. See e.g., id.
at 1086. Thus, as a matter of law, an insurance agent does not assume a duty to advise
18
merely through the preparation of a valuation.8 See Filip, 879 N.E.2d at 1085-86;
Anderson, 617 N.E.2d at 939. Something more—such as the representations and
assurances present in Filip and Anderson Mattress—is needed to assume a duty in the
insurance context.
To accept the argument proffered by Cox and the Pub would place a substantial
burden on insurance companies, and “[t]he net effect of placing [this] burden upon the
insurer would be to transform insurance companies from a competitive industry into
personal financial counselors or guardians of the insured, a result we believe goes well
beyond anything required by law or dictated by common sense.” Parker, 630 N.E.2d at
570 (quotation marks omitted). As we explained in Myers:
If the rule w[ere] otherwise and the responsibility of determining and
calculating the proper amount of . . . insurance w[ere] shifted to the
insurance companies and its agents, it is likely that a raft of litigation would
ensue whenever coverage miscalculations occurred. Thus, the cost of . . .
insurance coverage would rise and those costs would undoubtedly be
passed on to the consumer. In light of these concerns, there is no
justification for imposing such a sweeping duty on insurance agents and/or
their companies.
921 N.E.2d at 890. “Further, if we accept [Cox and the Pub’s] 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.” Filip, 879 N.E2d
at 1083-84. However, this would contravene the “public policy that places the risk of
loss on he who is best able to avoid that loss”—the insured. Myers, 921 N.E.2d at 889.
8
We again note that the designated evidence demonstrates that Clute did not himself prepare the
Valuation. He merely forwarded the information provided by Burton to Illinois Casualty, which then
prepared the Valuation.
19
CONCLUSION
In sum, we conclude that Cox, in his individual capacity, has standing to pursue
his negligence claims against Clute and MBAH in this appeal. However, we hold that the
trial court properly granted summary judgment in favor of Clute and MBAH and against
Cox and the Pub on all claims. As a matter of law, Clute, as MBAH’s agent, did not have
a special relationship with Cox and the Pub such that a duty to advise arose. Moreover,
as a matter of law, Clute did not assume a duty to advise.
Affirmed.
BAILEY, J., and PYLE, J., concur.
20