Penny Denecho, Edward Denecho, and Darlene Johnson v. Indiana Farm Bureau Insurance Company (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                         FILED
    regarded as precedent or cited before any                                Sep 12 2019, 9:22 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                   Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                              and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
    Alan D. Naggatz                                          Josef Musser
    Law Office of Alan D. Naggatz                            Spitzer Herriman Stephenson
    Valparaiso, Indiana                                      Holderead Conner & Persinger,
    LLP
    Marion, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Penny Denecho, Edward                                    September 12, 2019
    Denecho, and Darlene Johnson,                            Court of Appeals Case No.
    Appellants-Defendants,                                   18A-CT-2900
    Appeal from the Madison Circuit
    v.                                               Court
    The Honorable G. George Pancol,
    Indiana Farm Bureau Insurance                            Judge
    Company,                                                 Trial Court Cause No.
    Appellee-Plaintiff                                       48C02-1404-CT-48
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019                Page 1 of 10
    Case Summary
    [1]   Penny Denecho and Edward Denecho (“the Denechos”) appeal the trial court’s
    entry of summary judgment in favor of Indiana Farm Bureau Insurance
    Company (“Farm Bureau”). The sole restated issue presented for our review is
    whether the Denechos breached the terms of their insurance policy when they
    settled with a tortfeasor without proper notice to or consent of Farm Bureau,
    thus destroying their right of action under the policy as a matter of law.
    Concluding that Farm Bureau is entitled to summary judgment, we affirm.
    Facts and Procedural History
    [2]   On April 9, 2012, Penny Denecho was driving a vehicle owned by Darlene
    Johnson when she and Ryan Inglis were involved in an accident on State Road
    9 in Madison County. At the time of the accident, Inglis had an automobile
    insurance policy with Allstate that had per person/per incident coverage limits
    of $50,000/$100,000. Johnson1 had an automobile insurance policy with Farm
    Bureau (“the Farm Bureau Policy”) which provided Penny, as the operator of
    Johnson’s vehicle, with uninsured or underinsured motorist (“UIM”) coverage
    with per person/per incident coverage limits of $100,000/$300,000.
    [3]   On April 9, 2014, the Denechos filed an amended complaint against Inglis and
    Farm Bureau. The Denechos alleged that they suffered injuries, losses, and
    1
    Darlene Johnson is not a party to this appeal. However, pursuant to Indiana Appellate Rule 17(A), a party
    of record in the trial court shall be a party on appeal, and therefore we have included Johnson in the case
    caption.
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019              Page 2 of 10
    damages2 as a direct and proximate result of the negligent, reckless, or careless
    maintenance by Inglis of his vehicle. The Denechos further alleged that
    because Inglis may have been underinsured at the time of the accident, Farm
    Bureau had contracted to provide UIM benefits to the Denechos pursuant to
    the Farm Bureau Policy.
    [4]   On July 28, 2016, the Denechos’ attorney purportedly sent a letter to Farm
    Bureau stating:
    I received a tender of policy limits from Allstate on behalf of
    Defendant Inglis in the above matter. This is notice requesting
    consent-to-settle, to the extent necessary under the Plaintiff’s
    policy. Also advise if your client will be tendering the policy
    limits seeking or waiving subrogation against the tortfeasor.
    Please respond with your position within 30 days. If you have
    questions or concerns please contact me.
    Appellants’ App. Vol. 2 at 89. Five days later, on August 2, 2016, the
    Denechos executed a settlement agreement with Inglis and signed a written
    release of “any and all claims” against Inglis in exchange for the payment by
    Allstate of policy limits of $50,000 of its coverage of Inglis. Id. at 86. The
    release further provided:
    I further understand that as I may or shall have incurred, directly
    or indirectly, in connection with or for damages arising out of the
    accident to each person or organization, release and discharge of
    2
    Edward’s claim was for loss of consortium.
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019   Page 3 of 10
    liability herein, and to any other person or organization, is
    expressly reserved to each of them, such liability not being
    waived, agreed upon, discharged nor settled by the release,
    including but not limited to underinsured claim(s).
    Id.3 (emphasis added). Allstate issued a $50,000 check to the Denechos on
    August 9, 2016.
    [5]   Farm Bureau subsequently requested that the Denechos dismiss their UIM
    claim against it on the basis that they breached the terms of the Farm Bureau
    Policy by settling their claims with Inglis without proper notice to or consent of
    Farm Bureau, and therefore Farm Bureau was discharged from any obligation
    to provide UIM coverage. The Denechos did not respond to Farm Bureau’s
    request. Thereafter, Farm Bureau filed a motion for summary judgment and
    designation of evidence requesting a determination, as a matter of law, that the
    Denechos had breached the Farm Bureau Policy and had lost their right of
    action against Farm Bureau. The Denechos filed a brief and designation of
    evidence in opposition to summary judgment.4 Following a hearing, the trial
    court entered summary judgment in favor of Farm Bureau. This appeal ensued.
    3
    The italicized language was handwritten on the typed release.
    4
    Farm Bureau filed a summary judgment reply brief the day before the scheduled hearing. The Denechos’
    counsel made an oral motion to strike the reply brief due to the late filing and alleged hearsay contained in
    the attachments to the brief; however, it does not appear that the trial court ruled on that oral motion.
    Nevertheless, we need not address the Denechos’ argument on appeal that the trial court erred in failing to
    strike the reply brief or attachments, as neither was necessary for or relied upon by this Court in our de novo
    review.
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019                 Page 4 of 10
    Discussion and Decision
    [6]   When reviewing the grant of summary judgment, our standard of review is the
    same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 
    973 N.E.2d 1167
    , 1173 (Ind. Ct. App. 2012) trans. denied (2013). We stand in the shoes of
    the trial court and apply a de novo standard of review. 
    Id.
     Summary judgment
    is appropriate only where the designated evidence shows there are no genuine
    issues of material fact and the moving party is entitled to judgment as a matter
    of law. Ind. Trial Rule 56(C). A trial court’s grant of summary judgment is
    clothed with a presumption of validity, and the party who lost in the trial court
    has the burden of demonstrating that the grant was erroneous. Henderson v. Reid
    Hosp. & Healthcare Servs., 
    17 N.E.3d 311
    , 315 (Ind. Ct. App. 2014), trans. denied
    (2015). We will affirm upon any theory or basis supported by the designated
    materials. 
    Id.
    [7]   The provisions of an insurance contract are subject to the same rules of
    construction as are other contracts. Holiday Hosp. Franchising, Inc. v. AMCO Ins.
    Co., 
    983 N.E.2d 574
    , 577 (Ind. 2013). Clear and unambiguous policy language
    is given its ordinary meaning. 
    Id.
     The construction of an insurance contract
    generally presents purely a question of law, and therefore it is particularly well
    suited for de novo appellate review. 
    Id.
    [8]   The relevant language of the Farm Bureau Policy regarding its subrogation
    rights and the insured’s obligation to protect those rights provides:
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019   Page 5 of 10
    If we make any payment, we are entitled to recover what we paid
    from other parties.
    Any person or for whom we make payment must assign to us
    their rights of recovery against any other party. This person must
    do everything necessary to secure these rights and must do nothing
    after a loss that would jeopardize them.
    Appellants’ App. Vol. 2 at 39 (emphasis added). In support of summary
    judgment, Farm Bureau maintains that the Denechos did in fact do something
    after the accident to jeopardize Farm Bureau’s rights of recovery against Inglis;
    specifically, they settled with and executed a release of all claims against Inglis
    without proper notice to or consent of Farm Bureau. Therefore, Farm Bureau
    contends, the Denechos forfeited UIM benefits as a matter of law. We agree.
    [9]   Indiana law is clear that when an insured settles a claim with the tortfeasor
    without the insurer’s consent, the insured breaches the insurance policy’s
    provisions requiring protection of the insurer’s subrogation rights and forfeits
    any claim for underinsured motorist benefits under the policy. Cincinnati Ins. Co.
    v. Adkins, 
    935 N.E.2d 190
    , 193 (Ind. Ct. App. 2010) (citing Tate v. Secura Ins.,
    
    587 N.E.2d 665
    , 670 (Ind. 1992)). Stated another way,
    [A]n insured who destroys the insurer’s contractual subrogation
    rights breaches the insurance contract and, as a result,
    extinguishes his right of action on the policy. An insured
    destroys the insurer’s contractual subrogation right by releasing
    the tortfeasor prior to settling with the insurer because it is that
    very settlement which enables the insurer to protect its
    subrogation right by giving notice thereof to the tortfeasor.
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019   Page 6 of 10
    Tate, 587 N.E.2d at 670 (quoting Allstate Ins. Co. v. Meek, 
    489 N.E.2d 530
    , 533
    (Ind. Ct. App. 1986)).
    [10]   Moreover, Indiana Code Section 27-7-5-6 provides in relevant part:
    (a) The policy or endorsement affording the [UIM] coverage
    specified in this chapter may also provide that payment to any
    person of sums as damages under such coverage shall operate to
    subrogate the insurer to any cause of action in tort which such
    person may have against any other person or organization legally
    responsible for the bodily injury or death, or property damage,
    because of which such payment is made. The insurer shall be
    subrogated, to the extent of such payment, to the proceeds of any
    settlement or judgment that may later result from the exercise of
    any rights of recovery of such person against any person or
    organization legally responsible for said bodily injury or death, or
    property damage, for which payment is made by the insurer.
    Such insurer may enforce such rights in its own name or in the
    name of the person to whom payment has been made, as in their
    interest may appear, by proper action in any court of competent
    jurisdiction.
    (b) An insurer providing underinsured motorist coverage does
    not have a right of subrogation against an underinsured motorist
    if:
    (1) the insurer has been provided with a written notice that:
    (A) informs the insurer of the existence of a bona fide offer of
    agreement or settlement between its insured and the
    underinsured motorist; and
    (B) includes a certification of the liability coverage limits of the
    underinsured motorist; and
    (2) the insurer fails to advance payment to the insured in an
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019   Page 7 of 10
    amount equal to the amount provided for in the offer of
    agreement or settlement within thirty (30) days after the insurer
    receives the notice described in subdivision (1).
    However, an insurer that, under the circumstances described in
    subdivision (1), advances payment to the insured in an amount
    equal to the amount provided for in the offer of agreement or
    settlement, has full rights of subrogation as provided in its policy
    or endorsement affording the underinsured motorist coverage.
    Accordingly, our legislature has provided that in the case of a settlement offer
    from an underinsured motorist, an insured protects her insurer’s subrogation
    rights by providing written notice that informs the insurer of the offer and
    includes a certification of the coverage limits of the underinsured motorist. The
    insurer then has thirty days after the receipt of that notice to advance payment
    to the insured in an amount equal to the settlement offer.5 If the insurer then
    fails to advance such payment within the thirty-day period, the insurer forfeits
    its right of subrogation against the underinsured motorist.
    [11]   The undisputed facts demonstrate that the Denechos executed their settlement
    and release of all claims against Inglis without Farm Bureau’s consent a mere
    five days after they sent a letter notifying Farm Bureau about the offer.6 In
    5
    Pursuant to the Farm Bureau Policy language, the Denechos’ obligation to do nothing to jeopardize Farm
    Bureau’s subrogation rights, such as notifying Farm Bureau and obtaining its consent before settling with
    Inglis, arose at the time of the accident. See Adkins, 
    935 N.E.2d at 193
     (noting that the insured’s contractual
    obligation to do nothing to impair the insurer’s subrogation rights arises at the time of the “loss” or accident
    and not at some later date after the insurer has made payment).
    6
    While not necessary to our resolution in this case, the purported notice sent to Farm Bureau by counsel for
    the Denechos was deficient as it did not include a certification of liability coverage limits as required by
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019                   Page 8 of 10
    doing so, the Denechos unquestionably denied Farm Bureau the opportunity to
    advance payment in an amount equal to the amount provided for in the offer in
    order to maintain its full rights of subrogation. See 
    Ind. Code § 27-7-5-6
    (b)(2).
    As in Adkins, this was a clear breach of the insurance policy’s provisions
    requiring protection of the insurer’s subrogation rights. Adkins, 
    935 N.E.2d at 193
    .
    [12]   The Denechos attempt to distinguish this case from Adkins by asserting that,
    unlike the “general release” executed in Adkins, the language of the release here
    did not jeopardize Farm Bureau’s subrogation rights because the release
    specifically provided that the Denechos “retained the right to pursue [their]
    UIM claim against Farm Bureau.” Appellants’ Reply Br. at 6. In making this
    argument, the Denechos conflate two distinct things. Namely, they conflate
    their rights as to Farm Bureau with Farm Bureau’s rights as to Inglis. The only
    right of action the language of the current release attempted to protect was the
    Denechos’ right of action against Farm Bureau. The Denechos have
    unequivocally released any and all rights of action against Inglis, which would
    include Farm Bureau’s subrogation rights.7
    Indiana Code Section 27-7-5-6(b)(1)(B). In fact, the letter did not even mention the amount of the settlement
    offer.
    7
    The Denechos argue that Farm Bureau has not shown that its subrogation rights have actually been
    impaired, and they suggest that “Allstate could very likely” honor a subrogation claim if Farm Bureau simply
    makes such a claim. Appellants’ Br. at 28. This is a curious position considering that Allstate filed, on
    Inglis’s behalf, a motion to enforce settlement agreement and for dismissal with prejudice, which the trial
    court granted. Appellants’ App. at 6. As Inglis is no longer a party to the litigation, we fail to see how Farm
    Bureau could attempt to enforce these alleged “reserved” subrogation rights. 
    Id.
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019                Page 9 of 10
    [13]   Again, it is well settled that “where the insured releases his right of action
    against the wrongdoer before settlement with the insurer, the release destroys by
    operation of law his right of action on the policy.” Consol. Ins. Co. v. Nat’l Water
    Servs., LLC, 
    994 N.E.2d 1192
    , 1199 (Ind. Ct. App. 2013) (citing Auto Owners’,
    etc., Exchange v. Edwards, 
    82 Ind. App. 558
    , 
    136 N.E. 577
     (1922)); Hockelberg v.
    Farm Bureau Ins. Co., 
    407 N.E.2d 1160
    , 1161 (Ind. Ct. App. 1980). As it is
    undisputed that the Denechos released their claims against Inglis before
    settlement with Farm Bureau, the release destroyed the Denechos’ right of
    action against Farm Bureau by operation of law. Having foreclosed Farm
    Bureau’s subrogation rights, the Denechos breached their insurance contract
    and are now precluded as a matter of law from maintaining an action against
    Farm Bureau for UIM benefits. The trial court’s entry of summary judgment in
    favor of Farm Bureau is affirmed.
    [14]   Affirmed.
    Vaidik, C.J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-CT-2900 | September 12, 2019   Page 10 of 10
    

Document Info

Docket Number: 18A-CT-2900

Filed Date: 9/12/2019

Precedential Status: Precedential

Modified Date: 9/12/2019