Attorneys for Appellees

Robert D. Epstein
Epstein & Frisch
Indianapolis, IN

Mark R. Smith
Smith Fisher Maas & Bishop
Indianapolis, IN

Appellant (Plaintiff below     ),

                                v.
                                 

                                CHRISTINA ISAAC and LORETTA DAVIS,
 Appellees (Defendants below         ).

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)    Supreme Court No.
)    49S02-0011-CV-718
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)    Court of Appeals No.
)    49A02-0001-CV-56
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Isaac had acquired insurance on a Pontiac Fiero through Gallant’s independent agent, Thompson-Harris Company, in 1994. On the last day that that coverage was in effect, Isaac traded the Fiero for a Pontiac Grand Prix. As explained by the Court of Appeals in its opi nion in this case:

To obtain the newly purchased car, the financing bank required Isaac to obtain full coverage on it. That same day, Isaac contacted Thompson-Harris to notify it that she was purchasing the new car, and to discuss enhancing the existing insurance policy to meet bank requirements. Isaac told a Thompson-Harris employee that she must obtain ‘full insurance coverage’ as a condition to r eceiving a loan. She also told the employee at Thompson-Harris that her current coverage expires on December 3, 1994, the next day.

    In response, the Thompson-Harris employee informed Isaac that b ecause their agency was about to close for the weekend, she would immediately ‘bind’ coverage on the 1988 Grand Prix. They decided that Isaac would come in to Thompson-Harris on Monday, December 5, 1994, to complete the paperwork and pay the down payment on the premium. The employee also informed Isaac that the new coverage on her Pontiac Grand Prix would include the same coverage existing from her Pontiac Fiero, along with additional coverage to comply with conditions set by the bank.

    The next day, on December 3, 1994, a different employee completed the ‘Personal Policy Change Request.’ This form deleted the 1987 Pontiac Fiero from Isaac’s Policy and replaced it with the 1988 Pontiac Grand Prix. It also added additional coverage to the policy as well as additional loss payee/lienholder. The Personal Policy Change Request listed the ‘Agency’ and ‘Producer’ as Thompson-Harris, and stated that the ‘effective date of change’ was December 3, 1994. Towards the bottom of the form, the Thom pson-Harris employee typed ‘[s]he will be in at 9:00 a.m. Monday, 12/5/94, to [sic] down [sic] on renewal. What is [sic] new rate? Thanks.’ (R. 380). This form, which requested the listed changes, was faxed to Insurance Brokers of Indiana, Inc., on December 3, 1994.

    On December 4, 1994, while driving her Pontiac Grand Prix, Isaac co llided with another car in which Davis was a passenger. The next day, as planned, Isaac went to Thompson-Harris and paid $133.00 down payment on the new insurance policy. She also reported the accident. Thompson-Harris completed an ‘Indiana Operator's Vehicle Crash Report,’ which notified the State Police that Isaac had insurance coverage at the time of the accident, on December, 4, 1994. Thompson-Harris completed that form on behalf of Gallant. Later, on or about December 22, 1994, Gallant renewed Isaac's insurance policy, with an effective period of December 6, 1994 to June 6, 1995.

Gallant Ins. Co. v. Isaac, 732 N.E.2d 1262, 1265-66 (Ind. Ct. App. 2000) (quotations in original). When Isaac submitted a claim to Gallant in respect of the December 4 accident, Gallant took the position that no coverage was in force on that date. As noted, the company sought a declaratory judgment to that effect. Isaac and Davis (who had been a passenger in the vehicle which collided with Isaac’s) each sought summary judgment on that question, which the trial court granted.

    The Court of Appeals affirmed. See Isaac, 732 N.E.2d 1270. In doing so, it held that Thompson-Harris had “inherent authority” to bind Gallant, relying on our decision in Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1211 (Ind. 2000), reh’g denied. While we agree with the result reached by the trial court and Court of Appeals, we do so for reasons different than those given by the Court of Appeals. We granted transfer to explain why the concept of “apparent authority,” rather than the concept of “inherent authority” discussed in Menard, is applicable in this case. Gallant Ins. Co. v. Isaac, 741 N.E.2d 1259 (Ind. 2000) (table).

    In Menard, we also discussed a third form of agency relationship – “inherent authority” – which is grounded in neither the principal’s conduct toward the agent nor the principal’s representation to a third party, but rather in the very status of the agent. Id. at 1211-12. The concept of inherent authority “originates from the customary authority of a person in the particular type of agency relationship.” Id. at 1211 (citing Cange v. Stotler & Co., 826 F.2d 581, 591 (7th Cir. 1987) (citing in turn Restatement (Second) of Agency § 161 cmt. b (1958))).

    Because the agent at issue in Menard was the president of the company, we found the concept of inherent authority – rather than actual or apparent authority – controlled our analysis. We said that the purchaser “did not negotiate and ultimately contract with a lower-tiered employee or a prototypical ‘general’ or ‘special’ agent, with respect to whom actual or apparent authority might be at issue. [The purchaser] dealt with the president of the corporation, whom [t]he law recognizes ... [as one of] the officers [who] are the means, the hands and the head, by which corporations normally act.” Id. at 1212 (internal quotations and citations omitted).

    Thompson-Harris, the insurance agency with which Isaac dealt in this case, was, in our view, the “prototypical ‘general’ or ‘special’ agent, with respect to whom actual or a pparent authority might be at issue.” Id. It was not an agent with inherent authority, i.e., a person with a particular status like president. Cf. id. (holding that the president of the company had inherent authority); Fidelity Co. v. Carroll, 186 Ind. 633, 635-36, 117 N.E. 858, 859 (1917) (ruling that a corporation’s “executive or administrative officers … may be termed its inherent agencies”); Community Care Centers, Inc. v. Indiana Dep’t of Pub. Welfare, 468 N.E.2d 602, 604 (Ind. Ct. App. 1984) (holding that the corporate attorney did not have inherent authority to bind corporation), transfer denied; Burger Man, Inc. v. Jordan Paper Prod., Inc., 170 Ind.App. 295, 311-13, 352 N.E.2d 821, 831-32 (1976) (“When the president and general manager does an act within the domain of the general objects or business of the corporation, and within the scope of the usual duties of the chief officer, it will be presumed that he had the authority to do it, and whoever would assert the contrary must prove it.”). The Court of Appeals erred in holding that Thompson-Harris had inherent authority to bind Gallant. See footnote

    This court last dealt with the question of apparent authority in the insurance context in Pepkowski v. Life of Indiana Ins. Co., 535 N.E.2d 1164 (Ind. 1989). In that case, the question was whether an employee of the plaintiff’s employer who handled group health insurance for the employer had apparent authority to bind the insurance company providing the group coverage. In finding the employee not to have apparent authority, we described apparent authority as follows:

    Apparent authority is the authority that a third person reasonably b elieves an agent to possess because of some manifestation from his principal. Warner v. Riddell Nat’l Bank, 482 N.E.2d 772, 775 (Ind. Ct. App. 1985)[, transfer denied.] See also Grosam v. Laborers’ Int’l Union of N. Am., 489 N.E.2d 656, 658 (Ind. Ct. App. 1986)[, transfer denied.] The necessary manifestation is one made by the principal to a third party, who in turn is instilled with a reasonable belief that another individual is an agent of the principal. Swanson v. Wabash College, 504 N.E.2d 327, 332 (Ind. Ct. App. 1987); Storm v. Marsischke, 159 Ind.App. 136, 304 N.E.2d 840, 842 (1973); Kody Eng’g Co. Inc. v. Fox & Fox Ins. Agency Inc., 158 Ind.App. 498, 505-06, 303 N.E.2d 307, 311 (1973). It is essential that there be some form of communication, direct or indirect, by the principal, which instills a reasonable belief in the mind of the third party. Swanson, 504 N.E.2d at 332; Storm, 304 N.E.2d at 843. Statements or manifestations made by the agent are not sufficient to create an apparent agency relationship. Swanson, 504 N.E.2d at 332; Storm, 304 N.E.2d at 843.

Pepkowski, 535 N.E.2d at 1166-67.

    Applying these principles to the case at hand, it seems to us that the key is determi ning whether Gallant made the “necessary manifestation” to “instill a reasonable belief in the mind of” Isaac that Thompson-Harris had authority to transfer the coverage from her Fiero to her Grand Prix and renew the policy. There are several additional cases, some cited in Pepkowski, that help us with this determination.

    First, it is clear that the “manifestations” referred to in Pepkowski need not be in the form of direct communications, “but rather the placing of the agent in a position to perform acts or make representations which appear reasonable to a third person is a sufficient manifestation to endow the agent with apparent authority.” Herald Telephone v. Fatouros, 431 N.E.2d 171, 175 (Ind. Ct. App. 1982) (quoting Burger Man, Inc., 170 Ind.App. at 312, 352 N.E.2d at 832).

     Storm v. Marsischke explained that “[s]uch a manifestation by the principal may be found … where the principal clothes or allows a special agent to act with the appearance of possessing more authority than is actually conferred.” 159 Ind.App. 136, 138, 304 N.E.2d 840, 842-43 (1973) (citing Farm Bureau Mutual Life Ins. Co. v. Coffin, 136 Ind.App. 12, 186 N.E.2d 180 (1962)). In the Coffin case, an insured had called his auto insurer’s home office and said that he wanted to transfer his insurance from a Chevrolet to a Buick and increase his coverage. He was connected with one James R. Pierson who told him that he had the coverage he sought as of that moment. As it turned out, Pierson was not an insurance agent but the Typing Supervisor in the Auto Underwriters Department. The insured subsequently presented a claim, which the insurer denied on the basis that Pierson had no authority to bind the company. The Court of Appeals held that the insurer had “clothed Pierson with apparent authority. [Insured] called the [insurer’s] home office and stated that he wanted to transfer his insurance. Employees of the [insurer] (principal) then connected [insured] (third party) with Pierson (apparent general agent).” 136 Ind.App. at 19, 186 N.E.2d at 184.

In Old Line Auto. Insurors v. Kuehl, an insured had for some time prior to the issuance of the auto insurance policy at issue in the case dealt with the insurer through one Donald R. Crabb. He purchased a policy on a Studebaker through Crabb. Crabb subsequently arranged the transfer of the coverage of that policy from the Studebaker to a Dodge. When the insurer sent the insured the policy, it did not tell the insured that it would not be responsible for payments made to its agent Crabb. The insured in fact paid his premiums to Crabb who, at some point in time, failed to forward them to the insurer. When this occurred, the insurer did not notify the insured that the policy was cancelled. The insured subsequently presented a claim, which the insurer denied on the basis that the policy had been cancelled. The Court of Appeals held that “[u]nder these circumstances we believe [the insured] was justified in believing that Crabb, as the agent of [the insurer], had the authority to collect the premiums due on the policy in question here.” 127 Ind.App. 445, 455, 141 N.E.2d 858, 862 (1957).

In the case before us today, the undisputed facts show that when Isaac first acquired the Gallant policy on her Fiero, a Thompson-Harris employee filled out Gallant’s pre-printed insurance application form. After the pre-printed application form and a pre-application checklist were signed by Isaac and the employee, the employee told Isaac that her coverage with Gallant would be “bound” as of June 2, 1994. The employee further told Isaac that she would receive the actual insurance policy from Gallant in the near future. Isaac did in fact r eceive Gallant Indiana Personal Auto Policy No. IN 04151290 shortly thereafter. When one of Isaac’s premiums was not received on time, Gallant issued a written “Notice of Cancellation” indicating that the policy would be canceled if the premium was not received by a particular date. When payment was received before that date, Insurance Premium Company, which received Isaac’s premium payments on behalf of Gallant, issued an “Agent Notification of Reinstatement” to Thompson-Harris and a reinstatement notice to Isaac.

While Gallant argues that some of the designated evidence raises an issue of fact co ncerning Thompson-Harris’s actual authority to bind Gallant, the evidence appears to us without dispute that Thompson-Harris had apparent authority to bind Gallant, e.g., Gallant’s dealings with Isaac just recited contained the manifestations required under applicable case law to cause Isaac reasonably to believe that Thompson-Harris had authority to bind Gallant.

We have already recounted under Background, supra, Isaac’s contacts with Thompson-Harris at the time of the purchase of the Grand Prix and the accident. While Gallant again argues that there are some factual disputes surrounding these events, the evidence appears to us uncontroverted that no Thompson-Harris employee gave Isaac any indication that coverage on the Grand Prix was not in force. Cf. Michigan Mut. Ins. Co. v. Sports, Inc., 698 N.E.2d 834, 840 n.17 (Ind. Ct. App. 1998) (“If the third person knows, or in the exercise of reasonable care should know, that the agent is exceeding the agent's actual authority, the principal will not be bound”), transfer denied.

Because we find that Thompson-Harris had apparent authority to bind Gallant with respect to Isaac, we hold that it was appropriate for the trial court to grant summary judgment to the plaintiffs on the question of whether Isaac had coverage under the Gallant policy at the time of her accident.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.