ATTORNEY FOR APPELLANT:
DONALD K. McCLELLAN
McClellan, McClellan & Arnold
COURT OF APPEALS OF INDIANA
AUTO-OWNERS INSURANCE CO., )
vs. ) No. 48A02-0003-CV-179
MARGARET ANNE COX, )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Jack L. Brinkman, Judge
Cause No. 48D02-9303-CP-0105
July 14, 2000
OPINION - FOR PUBLICATION
In this interlocutory appeal, Auto-Owners Insurance Company appeals the trial courts denial of
its motion for summary judgment in a case brought by Margaret Anne Cox
based upon breach of a contract of insurance. Upon appeal, Auto-Owners claims
that the trial court erred in denying the motion because there is no
factual dispute that Cox did not comply with the terms of the insurance
policy by bringing suit within one year.
FACTS AND PROCEDURAL HISTORY
On March 12, 1991, an ice storm damaged Coxs roof. She immediately
notified the Howard Webb Insurance Agency through which she purchased her homeowners insurance.
Later the same month, the Webb Agency sent a maintenance company to perform
repair work on the roof, but the repairs did not fix the damage.
Cox continued to discuss the damage with the Webb Agency, which informed
her it would discuss the problems at a later date, but continued to
stall in making the necessary repairs. Cox moved out of the home
in the fall of 1991.
In September of 1992, Cox discovered that the roof was badly sagging and
reported the damage to the Webb Agency. For the first time, the
Webb Agency issued a Property Loss Notice on September 23, 1992 to Auto-Owners
Insurance claiming storm damage. Auto-Owners assigned a claim representative to handle the
claim. The claim representative examined the property, obtained estimates for repairs, and
issued a claim draft in the amount of $667. Auto-Owners apparently issued
the draft in the mistaken belief that the storm damage occurred on or
about September 12, 1992 rather than from the March 12, 1991 ice storm.
Cox filed her complaint against the Webb Agency and Auto-Owners on March 9,
1993. Auto-Owners filed a motion for summary judgment contending that it was
entitled to summary judgment because the twelve month limitation of actions provision in
the insurance policy was violated and had not been waived. The trial
court denied the motion. Auto-Owners subsequently petitioned the trial court to certify
the order for an interlocutory appeal. The trial court certified the matter,
and we accepted jurisdiction pursuant to Ind. Appellate Rule 4(B)(6).
DISCUSSION AND DECISION
Auto-Owners challenges the trial courts denial of its motion for summary judgment.
It claims that it should have prevailed on its motion for summary judgment
based upon the authority of Summers v. Auto-Owners Insurance, 719 N.E.2d 412 (Ind.
Ct. App. 1999). Auto-Owners contends that the trial courts denial of its
motion for summary judgment is contrary to Summers because Cox failed to comply
with the policy terms requiring suit to be brought within one year and
Auto-Owners did not otherwise waive this requirement. We cannot agree.
Initially, we note that Cox failed to file an Appellees brief. When
an Appellee fails to submit an appellate brief, it is within this courts
discretion to reverse the trial courts ruling if the appellant makes a prima
facie showing of reversible error.
Santana v. Santana, 708 N.E.2d 886, 887
(Ind. Ct. App. 1999). If the appellant is unable to meet this
burden, we will affirm. Id. This rule was designed to protect
the court and to relieve us of the burden of controverting the arguments
advanced for a reversal where such a burden properly rests with the appellee.
Id However, as we reach the issue on the merits, we
decline to apply this standard.
The purpose of summary judgment is to end litigation about which there can
be no factual dispute and which may be determined as a matter of
LeBrun v. Connor, 702 N.E.2d 754, 756 (Ind. Ct. App. 1998).
Upon appeal from an order denying summary judgment, this court faces the
same issues as those presented to the trial court and must analyze the
dispute in the same way. Oelling v. Rao, 593 N.E.2d 189, 190
(Ind. 1992). We must liberally construe all designated evidence in favor of
the non-moving party and resolve any doubt against the moving party. Morton
v. Moss, 694 N.E.2d 1148, 1151 (Ind. Ct. App. 1998). Summary judgment
is appropriate only when the designated evidentiary material 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. Id.; Ind. Trial Rule
56(C). Therefore, on appeal, we must determine whether there is a genuine
issue of material fact and whether the trial court has correctly applied the
law. Morton, 694 N.E.2d at 1151. Where material facts conflict, or
undisputed facts lead to conflicting material inferences, summary judgment should not be granted.
Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct. App. 1996), trans.
Summers, the insured suffered a theft of personal property on July 3,
1996, and notified the insurance company of the loss approximately two weeks later.
Auto-Owners sent inventory forms, a questionnaire, and proof of loss forms to
the insured, who sent the completed forms back to Auto-Owners a month and
a half later. One month later, on November 2, 1996, Auto-Owners requested
an examination under oath and various documents. In response, the insureds attorney
agreed to the examination of her client. The examination occurred on March
25, 1997 at which time the insured contested the requirement that he execute
an authorization for the release of his tax records. The insured later
refused to sign the transcript of the examination. On September 7, 1997,
the insureds attorney sent Auto-Owners a letter claiming discrepancies in the transcript.
Two weeks later, Auto-Owners notified the insured that his opportunity to cooperate and
comply with the terms and conditions of the policy expired on the one
year anniversary of the July 3, 1996 loss, and accordingly he was barred
from pursuing the matter further. Summers, 719 N.E.2d at 413-14.
Summers court recited the well-established rule in Indiana that contractual limitations shortening
the time to commence suit are valid, as long as the limitations period
is reasonable. Id. at 414. The purpose of such provisions is
to prevent the insured from engaging in unreasonable delay in proceeding to enforce
or pursue the claim so that insurers may otherwise be protected. Id.
However, insurers may waive limitations provisions either expressly or impliedly. Such
waiver or estoppel may result from acts of insurer causing insured or claimant
under the policy to delay bringing suit until after the time provided for
in the policy. Id. at 415 (citing Huff v. Travelers Indem.
Co., 266 Ind. 414, 363 N.E.2d 985, 991 (1977) (quoting 46 C.J.S. Insurance
§ 1264 (1946)). The court further stated:
[C]ontractual limitation periods may be waived by an insurer if its conduct is
sufficient to create a reasonable belief on the part of the insured that
strict compliance with the policy provision will not be required.
focus of our inquiry then is upon the relationship between the parties, seeking
to determine whether anything has been done . . . which would cause
the insured to reasonably believe the limitation period will not be insisted upon.
If such a belief has been fostered by the insurer, it
may no longer raise the limitation period as a defense. To hold
otherwise, . . . would be to allow the insurer to lull an
insured into not pressing his rights and then deny liability on the basis
of the limitation period.
Id. (citations omitted) (emphasis added). Further, an implied waiver will be found
where an insurance carrier does not deny coverage or liability, and proceeds to
negotiate with the insured toward settlement of the claim unless the insurer otherwise
places the insured on notice that suit must be brought to pursue the
claim further. Id. at 416 (citation omitted). Finally, the court noted
that once notice was given and no objection was raised to the mode
of documentation and liability was not denied until long after the twelve-month period,
then the insurer has waived his right to insist on either provision.
Id. at 417 (citing Huff, 266 Ind. at 425, 363 N.E.2d at 992).
The court in
Summers ultimately determined that Auto-Owners did not waive the limitations
period, but instead repeatedly sought to enforce the policy requirements in the face
of noncompliance by the insured. Id. at 416. Accordingly, summary judgment
was granted in favor of Auto-Owners.
The same policy language at issue in
Summers is at issue in the
present case: We may not be sued unless there is full
compliance with all the terms of this policy. Suit must be brought
within one year after the loss or damage occurs. However, from our
review of the Record, the similarity between the two cases ends there.
Here, Cox immediately notified her insurance agent of the storm damage, and no
objection was made to the type of documentation that she provided. Her
contact with the agent indicated that while efforts to repair the roof had
failed, negotiations continued. One could reasonably infer that filing suit to collect
on the claim was not being insisted upon. Further, Auto-Owners does not
dispute that the Webb Agency acted as its agent. Accordingly, we hold
that a question of fact exists for the jury to determine whether the
actions of the Webb Agency in failing to make the needed repairs constituted
conduct sufficient to create a reasonable belief on Coxs part that strict compliance
with the policy provisions would not be required. Therefore, the trial court
did not err in denying summary judgment in favor of Auto-Owners.
BAKER, J., and RILEY, J., concur.