ONB Insurance Group, Inc., d/b/a Old National Insurance, and Joseph E. Kenworthy v. The Estate of Joann Marie Megel, the Estate of Edward J. Megel, Darcy Megel

FILED
Jul 25 2018, 8:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEES
Andrew J. Detherage Scott A. Faultless
Christian P. Jones Craig Kelley & Faultless LLC
Andrea S. Warren Indianapolis, Indiana
Barnes & Thornburg LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ONB Insurance Group, Inc., July 25, 2018
d/b/a Old National Insurance, Court of Appeals Case No.
and Joseph E. Kenworthy, 40A01-1707-CT-1513
Appellants-Defendants, Appeal from the Jennings Circuit
Court
v. The Honorable Jon W. Webster,
Judge
The Estate of Joann Marie Trial Court Cause No.
Megel, Deceased; the Estate of 40C01-1105-CT-110
Edward J. Megel, Deceased; 40C01-1205-CT-16
Darcy Megel; Nicholas Megel;
Christina Megel; and Amy
Jones,
Appellees-Plaintiffs
May, Judge.
[1] In this interlocutory appeal, ONB Insurance Group, Inc., d/b/a Old National
Insurance, and Joseph E. Kenworthy (collectively, “ONI”) appeal the trial
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court’s denial of their motion for partial summary judgment in favor of The
Estate of Joann Marie Megel, Deceased; the Estate of Edward J. Megel,
Deceased; Darcy Megel; Nicholas Megel; Christina Megel; (collectively, “the
Megel Parties” and Amy Jones (“Jones”) (collectively, “the Accident Parties”).
ONI presents multiple issues for our review, which we restate as:
1. Whether, as a matter of law, the Accident Parties can
establish ONI owed them a common law duty;
2. Whether, as a matter of law, ONI assumed a duty to the
Accident Parties; and
3. Whether ONI conspired with or aided and abetted an
insured’s violation of the terms of the Federal Motor Carrier
Safety Regulations (“FMCSR”).
We reverse and remand.
Facts and Procedural History 1
Background Facts
[2] ONI is “an independent insurance broker that seeks insurance quotes from
multiple brokers and insurance companies.” (App. Vol. XVIII at 126.)
Kenworthy works as an agent for ONI. One of the insurance companies ONI
1
We held oral argument on this matter on May 17, 2018, in Jeffersonville, Indiana, as part of the Indiana
Bar Association’s Leadership Development Academy. We thank the organizers for their hospitality and
counsel for their congeniality and excellent presentations.
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worked with to procure insurance was Occidental Fire and Casualty Company
of North Carolina (“Occidental”). ONI uses American Underwriting Services
(“AUS”) 2 and Creative Underwriters (“CU”) to write insurance quotes.
[3] William Hackney (“Hackney”) was the owner of Hackney Trucking (“HT”),
formed in 2004. Hackney and ONI began their relationship in 2008, when
Hackney owned HT. On August 18, 2010, Hackney sold all of HT’s assets to
C&K Transport, Inc. (“C&K”), which is also owned by Hackney. C&K and
HT had the same phone number, email, bank account, and business location.
C&K utilized HT’s assets including trucks, equipment, and employees, and
C&K’s earnings were used to pay HT’s outstanding debts.
[4] To obtain federal operating authority for C&K, Hackney was required to
submit a number of forms. In their brief, the Accident Parties delineated the
required forms that are relevant to this case:
1) OP-1: application for motor carrier authority, 49 CFR
365.105(a), and mandating financial responsibility the applicant
“must maintain and have on file with the FMCSA” of liability
insurance in a minimum amount of $750,000;
2) BMC-91X: part of the application, 49 CFR 365.109 &
385.305(b)(3) & (c), and mandating financial responsibility for
2
“[AUS] was an authorized agent of Occidental, pursuant to a written agency agreement. Pursuant to the
agency agreement, Occidental granted AUS the express authority to receive information about C&K,
evaluate and underwrite C&K’s coverage, issue a binder for coverage, and compile and issue an insurance
policy to C&K.” (App. Vol. VII at 5-6) (internal citations omitted).
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bodily injury be filed with the FMCSA; 49 CFR 365.109(5)(i);
and
3) BMC[-]34: part of the application, 49 CFR 365.109 &
385.305(b)(3) & (c), and mandating financial responsibility for
cargo liability be filed with the FMCSA; 49 CFR 365.109(5)(iii).
(Br. of Appellees at 48) (grammatical errors in original) (citations to the record
omitted).
[5] On August 16, 2010, Stacy Hicks of GL Authority 3 helped Hackney complete
and submit the OP-1. As part of the OP-1, Hackney was asked, “Do you have
now, or have you ever had, any relationship with any other FMCSA Regulated
entity within the past 3 years?” (App. Vol. XIV at 70.) Hackney answered,
“No.” (Id.) On August 30, 2010, Carla Carson, a representatives from ONI,
emailed the AUS underwriter and requested Occidental, who was to provide
insurance for C&K, to file a BMC-91X form with the FMCSA, which would
provide the FMCSA with information regarding C&K’s liability insurance
coverage. The FMCSA accepted all relevant forms on August 30, 2010, and
C&K obtained its operating authority the same day.
3
Hackney described GL Authority as “a service where we had our fuel cards. It’s actually GetLoaded.com,
we had our fuel cards through. They had a service where they could get your operating authority for you. I
don’t know whether I filled it out online or talked to them personally on the phone.” (App. Vol. XIX at 30)
(errors in original).
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Facts of Incident Prompting Litigation
[6] On February 25, 2011, C&K driver Kenneth Kelley stopped at a weigh station
in Lima, Ohio. At the weigh station, he discovered the truck (“C&K Truck”)
was overweight and the brakes were not working properly. Kelley parked the
C&K Truck. The next morning, Kelley heard air coming from the brake area
and called Hackney, who asked Kelley to drive the C&K Truck from Lima,
Ohio, to Mitchell, Indiana, on a route that did not have any weigh stations.
Kelley refused.
[7] On February 26, 2011, Hackney drove to Ohio. He did not perform any repairs
on the truck before driving it back to Mitchell, Indiana, and he drove the C&K
Truck on the route with no weigh stations. Around 8:00 p.m. that day, Edward
Megel was driving on U.S. 50 with his wife, JoAnn Megel, and his
granddaughter, Darcy Megel. Edward was waiting to make a left turn when
Amy Jones approached him as part of oncoming traffic. Hackney saw
Edward’s vehicle and realized he might not be able to stop. Hackney, driving
the C&K Truck, collided with Edward’s and Jones’ vehicles. Edward and
Darcy sustained injuries from the crash. JoAnn died on March 11, 2011, from
injuries sustained in the collision. Jones was also injured. It is undisputed by
the parties that the C&K Truck driven by Hackney was at fault for the accident.
Procedural History of Current Matter
[8] On May 23, 2011, the Megel Parties filed an action for damages against
multiple parties, including Occidental, stemming from the accident. On May
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18, 2012, Jones filed a separate action for damages against the same parties
stemming from the accident. ONI was not an original party to either action.
On January 3, 2012, Occidental filed third-party claims in both actions against
ONI, alleging ONI made misrepresentations to Occidental that purportedly
induced Occidental to issue an insurance policy to C&K. In February 2013,
both the Megel Parties and Jones amended their complaints to include ONI as a
defendant.
[9] On December 8, 2014, ONI filed a motion for summary judgment with regard
to Occidental’s third-party defendant claims against ONI, arguing Occidental
could not sue ONI, as C&K’s insurance agent, for alleged misrepresentations
on C&K’s application for insurance. Additionally, the motion argued
Occidental’s claim that ONI conspired with C&K to fraudulently procure
insurance failed as a matter of law because “an agent cannot conspire with a
principal . . . [and] civil conspiracy allegations require an underlying tort, and
there is no underlying misrepresentation claim here.” (App. Vol. VI at 238.)
On August 17, 2016, the trial court granted ONI’s motion for summary
judgment as to Occidental’s third-party claims against ONI, stating, “As a
matter of law, the Court grants summary judgment for ONI/ONB and
Kenworthy on these claims” under the heading, “II. Common Law, Statutory
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and Actual Fraud/Misrepresentation Claims of Occidental.” (App. Vol. XVII
at 194.) 4
[10] On December 8, 2014, ONI filed a motion for summary judgment against the
Megel Parties, alleging their claims failed as a matter of law. On January 21,
2015, ONI filed a motion for summary judgment against Jones, alleging her
claims failed as a matter of law. On August 17, 2016, the trial court denied
both of ONI’s motions for summary judgment. 5 The trial court certified its
decision for interlocutory appeal, but our court declined to accept jurisdiction
over the matter.
[11] On December 19, 2016, ONI filed renewed motions for summary judgment
against the Megel Parties and Jones. The renewed motions were based on the
Indiana Supreme Court’s holding in Goodwin v. Yeakle’s Sports Bar and Grill, Inc.,
62 N.E.3d 384 (Ind. 2016). The Goodwin court stated, regarding a trial court’s
analysis of foreseeability of an injury for purposes of allocating duty, that the
“court is tasked with engaging in a general analysis of the broad type of plaintiff
4
Much of the Accident Parties’ arguments regarding duty center around events that occurred between ONI
and Occidental in the process of insurance procurement. The record reflects ONI employee Carla Carson
told AUS, an agent of Occidental, that Hackney “ha[d] been owner of another trucking firm for over 20 years
- he recently decided to form a new company and obtain his authority under the new name.” (App. Vol. XIII
at 158.) The record also indicates that Hackney converted HT into C&K to allegedly circumvent FMCSR.
However, because those facts pertain to the communications between ONI and Occidental, and no party
challenged the trial court’s earlier conclusion that ONI did not make any material misrepresentations to
Occidental, we are confined to the facts relevant only to the filing of the operating authority paperwork.
5
At some point during the proceedings, the trial court began hearing the two claims together based on the
fact they involved the same defendants, including ONI, and arose from the same accident. While the cases
were not officially consolidated at trial, the appealed order is captioned to address ONI’s motions for
summary judgment in both cases and only one appellate cause number exists.
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and harm involved without regard to the facts of the actual occurrence.” Id. at
394. Based thereon, ONI argued the evidentiary material designated as part of
Accident Parties’ responses to ONI’s earlier motion for summary judgment
focused on the actual facts of the transactions and events that
Plaintiffs contend led to the accident at issue. Under Indiana law
as articulated by Goodwin, Plaintiffs’ argument was wrong as a
matter of law, and the extensive evidentiary material Plaintiffs
relied upon to oppose summary judgment was immaterial and
irrelevant on summary judgment.
(App. Vol. XVIII at 59.) In response, the Accident Parties filed a motion
opposing ONI’s renewed motion for summary judgment and argued a duty of
care existed under Goodwin, ONI assumed a duty, ONI owed a statutory duty
of care, and ONI was liable for aiding, abetting, and conspiracy.
[12] The trial court held a hearing on ONI’s renewed motion for summary judgment
on April 20, 2017, and summarily denied ONI’s renewed motion for summary
judgment on April 28, 2017. On June 14, 2017, the trial court certified its
denial for interlocutory appeal under Indiana Rule of Appellate Procedure
14(B)(1)(c)(ii). On August 11, 2017, our court accepted jurisdiction over the
matter and granted the parties’ motions to consolidate the actions for appeal.
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Discussion and Decision
Standard of Review
[13] We review summary judgment using the same standard as the trial court:
summary judgment is appropriate only where the designated evidence shows
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).
All facts and reasonable inferences are construed in favor of the non-moving
party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the
challenge to summary judgment raises questions of law, we review them de
novo. Rogers, 63 N.E.3d at 320.
Existence of Common Law Duty
[14] To prevail on a claim of negligence, the Accident Parties must demonstrate (1)
ONI owed them a duty; (2) ONI breached that duty by allowing its conduct to
fall below the applicable standard of care; and (3) ONI’s breach of duty
proximately caused Accident Parties’ injuries. See Rogers, 63 N.E.3d at 321
(setting forth elements of negligence). Absent a duty, there can be no breach.
Id.
[15] Whether a duty exists is a question of law for the court to decide. Id. at 321.
We therefore review de novo whether ONI owed the Accident Parties a duty.
See id. at 320 (reviewing existence of duty de novo). In determining whether a
duty exists when it has not been established by law, we use a three-part
balancing test under which we consider: (1) the relationship between the
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parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns.
Goodwin, 62 N.E.3d at 387. Based on our Indiana Supreme Court’s holding in
Goodwin, ONI argues it did not owe a common law duty to the Accident
Parties.
[16] In Goodwin, our Indiana Supreme Court set forth a new standard by which a
court should review the reasonable foreseeability of harm when considering
whether a party owed a duty to another party in a negligence action. ONI’s
motion for summary judgment argued the holding regarding foreseeability in
Goodwin changed how the trial court should consider the evidence of
foreseeability designated by the Accident Parties and, under Goodwin, ONI was
entitled to summary judgment. We agree.
[17] In Goodwin, three patrons of Yeakle’s Sports Bar and Grill, Goodwin,
Randolph, and Washington (collectively “Goodwin”), sued Yeakle’s after all
three were injured during an altercation with Carter, another bar patron.
Goodwin argued Yeakle’s was negligent for “failing to provide security for its
patrons; . . . failing to search Rodney Carter for weapons; . . . [and] failing to
warn [P]laintiffs that Rodney Carter was armed and dangerous.” Goodwin, 62
N.E.3d at 386 (ellipses in original). Yeakle’s filed for summary judgment
arguing, “Carter’s criminal acts were unforeseeable and thus [Yeakle’s] had no
duty to anticipate and take steps to prevent Carter’s conduct.” (Id.) The trial
court granted Yeakle’s motion for summary judgment and Goodwin appealed.
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[18] Our Indiana Supreme Court concluded, as an initial matter, that foreseeability
is different when considering duty than when considering proximate cause. Id.
at 389. To that end, the Court stated, “[i]n sum, because foreseeability is - in
this particular negligence action - a component of duty, and because whether a
duty exists is a question of law for the court to decide, the court must of
necessity determine whether the criminal act at issue here was foreseeable.” Id.
[19] To illustrate how a trial court should examine the issue of foreseeability, our
Indiana Supreme Court relied upon the West Virginia Supreme Court’s opinion
in Strahin v. Cleavenger, 603 S.E.2d 197 (2004), in which that court held:
[A] court’s task - in determining “duty” - is not to decide whether
a particular plaintiff’s injury was reasonably foreseeable in light of
a particular defendant’s conduct, but rather to evaluate more
generally whether the category of negligent conduct at issue is
sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed on the negligent party.
The jury, by contrast, considers “foreseeability” . . . [in] more
focused, fact-specific settings.
Id. at 207 (emphasis and ellipsis in original). To further clarify, the Goodwin
Court adopted language from the Court of Appeals opinion Goldsberry: “the
foreseeability component of proximate cause requires an evaluation of the facts
of the actual occurrence, while the foreseeability component of duty requires a
more general analysis of the broad type of plaintiff and harm involved, without
regard to the facts of the actual occurrence.” Goodwin, 62 N.E.3d at 391
(quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans.
denied).
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[20] Many subsequent cases have interpreted Goodwin, but these cases have dealt
mostly with premises liability. See, e.g., Polet v. ESG Sec., 66 N.E.3d 972, 983
(Ind. Ct. App. 2016) (security company hired by the Indiana State Fair did not
owe a duty of care to those patrons who were injured as part of a stage collapse
due to high winds because the court did “not believe that security firms
routinely contemplate that a stage might collapse”); see also Neal v. IAB Fin.
Bank, 68 N.E.3d 1114, 1122 (Ind. Ct. App. 2017) (Bank employees who helped
a man with a flat tire did not owe Neal a duty because “[t]o require every
individual who undertakes to aid a stranded motorist to safeguard against the
possibility that motorist may be intoxicated would be requiring those
individuals to ensure the safety of all motorists. We do not believe reasonable
persons would recognize such a duty exists.”), trans. denied; and see Jones v.
Wilson, 81 N.E.3d 688, 695 (Ind. Ct. App. 2017) (Wilson, the promoter of a
wrestling event at a county fairground owed no duty of care to Jones, a person
injured by a third party in the parking lot of the event, because “the harm
inflicted on Jones was not normally to be expected, and thus not foreseeable”).
[21] However, our court recently applied Goodwin to facts similar to those before us
today. Estate of Staggs by and through Coulter v. ADS Logistics Co., LLC, 64A03-
1708-CT-1961 (Ind. Ct. App. May 14, 2018), trans. pending. In that case, Staggs
and other plaintiffs (collectively, “Staggs”) were injured or killed when a large
steel coil came unsecured from the truck on which it was loaded and collided
with several vehicles. Like in the case before us, the plaintiffs sued a number of
parties for negligence, alleging each played a small part in the accident.
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[22] ADS had a contract with ArcelorMittal, USA, LLC (“Mittal”), to house
Mittal’s steel coil. Mittal sold steel coils to Eagle Steel Products, Inc. (“Eagle”),
who hired Kendall Transportation to haul the steel coil from the ADS
warehouse to Eagle’s location in Ohio. Kendall Transportation contracted with
Israel Rankin, who owned and operated a tractor-trailer under the motor carrier
authority of Kendall Transportation, to drive the tractor-trailer that would
transport the steel coil.
[23] On January 11, 2010, Rankin arrived at ADS to pick up the steel coil. “Kendall
Transportation’s dispatcher and Rankin controlled the means and methods of
delivering a load to a customer. Rankin had been trained how to secure a steel
coil through previous employment and through his work at Kendall
Transportation.” Id. at *1. The crane operator at ADS followed Rankin’s
directions regarding “where and how to place the steel coil on the flatbed.” Id.
After the crane operator loaded the coils on the flatbed, Rankin secured the
coils. ADS, Kendall Transportation representatives, and Rankin testified “that
it is the driver’s responsibility to secure the load onto the driver’s vehicle.” Id.
Rankin left the ADS facility, stopped for lunch, and then was involved in the
accident.
[24] The appeal before our court concerned Staggs’ negligence claim against ADS,
to which the trial court granted summary judgment in favor of ADS, “finding as
a matter of law that ADS had no duty to the plaintiffs ‘regarding securing the
load to the tractor trailer that was involved in this incident.’” Id. at *2. Our
court affirmed the trial court’s grant of summary judgment in favor of ADS
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because, based on the analysis set forth in Goodwin, ADS did not owe a
common law duty to Staggs. We examine each of these factors through the
lens of Staggs and apply them to the case before us.
Relationship Between the Parties
[25] Under certain circumstances, our Indiana Supreme Court has held a sufficient
relationship exists between strangers to impose a common law duty. See, e.g.,
Gariup Const. Co., Inc. v. Foster, 519 N.E.2d 1224, 1229 (Ind. 1988) (Gariup, who
hosted a party during which its employee, Orner, became intoxicated, had a
duty to exercise reasonable care to Foster, who was injured when Orner drove
intoxicated); see also Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1220 (Ind. 1988)
(“there is a common law action against those unlawfully selling or furnishing
intoxicating liquor in favor of third persons subsequently injured by the acts of
the purchasers as a result of their intoxicated condition”) (quoting Whisman v.
Fawcett, 470 N.E.2d 73, 80 (Ind. 1984)). ONI contends there is no relationship
between ONI and the Accident Parties. We agree. 6
6
The Accident Parties also note a relationship between parties that creates a duty can exist by virtue of a
statute. See, e.g., Goldsberry, 672 N.E.2d at 480 (holding duty existed based on relationship created by Indiana
Code section 8-20-1-28). Here, the Accident Parties argue Indiana state and federal regulations create a
relationship between ONI and the Accident Parties. Indiana Code section 8-2.1-24-18(a) incorporates 49
CFR § 385.306 and 49 CFR § 390.13 into Indiana law. 49 CFR § 385.306 states: “A carrier that furnishes
false or misleading information, or conceals material information in connection with the registration process,
is subject to . . . [a]ssessment of the civil and or criminal penalties prescribed in 49 USC 521 and 49 USC
chapter 149.” 49 CFR § 390.13 states, “No person shall aid, abet, encourage, or require a motor carrier or its
employees to violate the rules of this chapter.”
However, ONI did not provide false or misleading information during the registration process. The Accident
Parties make much of the information passed and actions taken by ONI in the procurement of insurance for
C&K; however, the trial court ruled ONI did not make material misrepresentations in that process and that
ruling was not challenged. Additionally, ONI did not have oversight of the OP-1, on which Hackney
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[26] In Staggs, our Court held:
As for the relationship between ADS and the Appellants, there is
none. ADS’s only involvement was to warehouse the steel coil
and then load it onto Rankin’s flatbed per Rankin’s instructions.
ADS also had no contractual relationship with Rankin, Kendall
Transportation, or Eagle Steel, nor did it have any right of
control over Rankin’s acts, including the securing of the coil onto
the flatbed. The accident did not occur on ADS’s property, it did
not involve ADS’s employees or vehicles, and it did not involve
anyone with whom ADS has a contractual relationship.
Staggs, slip op. at *4. The same can be said here.
[27] It is undisputed that there is no direct relationship between ONI and the
Accident Parties. It is true ONI was involved with the procurement of
insurance for C&K; however, the trial court found, when granting summary
judgment in favor of ONI, that ONI did not make any material
misrepresentations to Occidental in the process of procuring insurance for
C&K. ONI also supplied information to the federal government to assist C&K
in obtaining an operating license, though only insomuch as to indicate whether
C&K had insurance. The accident did not happen on ONI’s land, nor did it
involve an ONI employee or vehicle. Like in Staggs, ONI offered a service to a
misrepresented his company history. The only actions at issue here are ONI’s statement for the BMC-91X,
in which ONI was asked if C&K had insurance. It is undisputed ONI answered in the affirmative, as C&K
had a policy with Occidental.
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client to aid in the procurement of another service, after which an accident
occurred. We hold this factor weighs against a duty.
Foreseeability
[28] Based on Goodwin’s holding, ONI filed a renewed motion for summary
judgment in which it argued:
In opposing ONI’s prior summary judgment motion, Plaintiffs
submitted reams of evidentiary material that they purported to
summarize in a 75-page fact statement supporting their argument
that it was reasonably foreseeable that ONI’s conduct would
cause harm to the Plaintiffs. This evidentiary material focused
on the actual facts of the transactions and events that Plaintiffs
contend led to the accident at issue. Under Indiana law
articulated by Goodwin, Plaintiffs’ argument was wrong as a
matter of law, and the extensive evidentiary material Plaintiffs
relied upon to oppose summary judgment was immaterial and
irrelevant on summary judgment.
(App. Vol. XVIII at 59) (internal citations omitted). ONI suggested the proper
application of Goodwin to the facts in the case with the Accident Parties:
When applied here, the Goodwin analytical framework also leads
to the conclusion that ONI owed no duty to Plaintiffs as a matter
of law. The “broad type of plaintiff” involved in this case is any
motorist traveling on a public road. The harm involved is the
risk that an insured driver, once able to drive legally because he
has obtained insurance, will injure such motorists in automobile
accidents. As in Goodwin, although any client of any insurance
agency is potentially likely to be involved in an automobile
accident, insurance agents do not routinely contemplate that a
client will independently operate its own vehicle in a manner that
will cause an accident.
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(Id. at 63.)
[29] Similarly, on appeal, ONI argues its role as an insurance agent is not “to
determine whether their clients deserve coverage, or at what price.” (Br. of
Appellants at 25.) Instead, it contends, insurance underwriters “evaluate the
risk of those clients being involved in accidents,” (id.), and then the insurance
companies make the decision whether to provide insurance to a client. ONI
argues it is merely “an intermediary” in this process. (Id.) ONI asserts, to
“impose a duty on insurance agents like ONI to safeguard against the
possibility that one of their clients will harm a member of the general public
would make insurance agents the ‘insurer’ of the general public’s safety.” (Id. at
26.)
[30] In Staggs, our Court undertook a foreseeability analysis of duty as prescribed in
Goodwin: “[T]he foreseeability component of duty requires a more general
analysis of the broad type of plaintiff and harm involved, without regard to the
facts of the actual occurrence.” Goodwin, 62 N.E.3d at 389 (quoting Goldsberry,
672 N.E.2d at 479). The Staggs court then considered the question of what type
of broad plaintiffs, defendants, and harm were involved. In that case, the broad
plaintiff was identified as “motorists,” the defendants were “a warehousing
entity,” and the harm was “a vehicular accident after commercial cargo became
unsecured and struck the motorists.” Staggs, slip op. at *4. Based on those
parameters, the Staggs Court concluded:
As a general matter, of course it is foreseeable that large and
heavy cargo, which is secured to a flatbed trailer, could become
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unsecured on a public roadway and cause injuries to nearby
motorists. But the broad type of defendant here—a warehousing
entity—would have no reason to foresee that its own conduct, in
warehousing the cargo or in loading the cargo onto another
entity’s vehicle, at the instruction of the other entity’s driver,
would result in harm to motorists. Put another way, an entity
that has no role whatsoever in securing the cargo to the flatbed
could not foresee that its own actions would result in that cargo
becoming unsecured. This factor weighs against a finding of
duty.
Id.[31] The same rationale can be applied to the facts before us now. The broad
plaintiffs here are motorists, the defendants are an insurance agency and its
agent, and the type of harm involved was a multi-vehicle collision caused by
faulty brakes on a large tractor-trailer. We hold the insurance agency and its
agent, who had no role whatsoever in the decision to put the vehicle on the
road in its condition, could not foresee that its actions relevant to this matter,
which are only answering questions regarding whether their client had
insurance coverage, 7 would result in injury to a motorist. This factor weighs
against finding duty.
7
As the trial court found and concluded ONI did not make misrepresentations to Occidental in the
procurement of the insurance policy for C&K, we need not evaluate whether or how the actions taken prior
to the issuance of the insurance policy may have factored into this foreseeability analysis.
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Public Policy
[32] The final factor in the Goodwin test is the public policy consideration of “who is,
or should be, in the best position to prevent injury and how society should
allocate the costs of such injury.” Cox v. Stoughton Trailers, Inc., 837 N.E.2d
1075, 1080 (Ind. Ct. App. 2005). The Staggs Court held, “[i]t is apparent that
the party best suited to prevent an injury to motorists with respect to
commercial cargo secured to a flatbed trailer is the entity responsible for
securing, hauling, and checking the cargo during the drive.” Staggs, slip op. at
*5. In Staggs, those entities were the driver Rankin and his employer Kendall
Transportation,. Here, the entities best suited to prevent injury to a motorist
were Hackney, who drove the truck that caused the accident even though he
knew of its defective brakes, and C&K, which owned the truck. As ONI had
no control over the actual means by which the accident occurred, this factor
weighs against finding ONI had a duty to the Accident Parties.
[33] All three of the factors we are to consider when determining whether one party
owed a common law duty to another party weigh in favor of holding ONI did
not owe a duty to the Accident Parties. Therefore, we conclude the trial court
erred when it denied ONI’s renewed motion for summary judgment on the
issue of whether ONI owed the Accident Parties a common law duty.
Assumed Duty
[34] In Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014), our Indiana Supreme Court
set forth the standard of review for determining assumed duty: “[T]he concept
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of assumed duty is expressed in the Restatement and requires a focus upon the
specific services undertaken. While an actor may be accountable for negligence
in the performance of certain services actually undertaken, such liability does
not extend beyond the undertaking.” Id. at 521. The Restatement referenced
therein is Restatement (Third) of Torts: Physical and Emotional Harm § 42
(2012), which states:
An actor who undertakes to render services to another and who
knows or should know that the services will reduce the risk of
physical harm to the other has a duty of reasonable care to the
other in conducting the undertaking if:
(a) the failure to exercise such care increases the risk of harm
beyond that which existed without the undertaking, or
(b) the person to whom the services are rendered or another relies
on the actor’s exercising reasonable care in the undertaking.
Id. at 517. “Thus, to impose liability resulting from breach of assumed duty, it
is essential to identify and focus on the specific services undertaken. Liability
attaches only for the failure to exercise reasonable care in conducting the
‘undertaking.’” Id.
[35] In Yost, a college student, Yost, sued the college he attended, Wabash, for
negligence after Yost was injured in a fraternity hazing incident. Yost argued
Wabash assumed a duty of care because it engaged in educational outreach
programs to encourage appropriate student behavior and curb hazing. Our
Indiana Supreme Court rejected this argument:
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[T]here is no direct evidence or reasonable inferences in this case
to establish that Wabash deliberately and specifically undertook
to control and protect Yost from the injuries he sustained or to
generally prevent its students from engaging in injurious private
conduct toward each other. Nor is there evidence that Yost in
any way relied upon Wabash to take action in furtherance of the
claimed gratuitously assumed duty. Wabash’s policies and
investigations with respect to hazing do not rise to the level of a
specific undertaking that demonstrate a special relationship
between Yost and Wabash so as to justify the imposition upon
Wabash of a gratuitously assumed duty to protect Yost from
hazing. To the contrary, colleges and universities should be
encouraged, not disincentivized, to undertake robust programs to
discourage hazing and substance abuse. To judicially impose
liability under a theory of gratuitously assumed duty is unwise
policy and should be cautiously invoked only in extreme
circumstances involving a negligently performed assumed
undertaking - circumstances not here present.
Id. at 518.
[36] Our Indiana Supreme Court further clarified its analysis of assumed duty when
it interpreted Yost as part of Doe #1 v. Indiana Dept. of Child Servs., 81 N.E.3d
199 (Ind. 2017). In Doe #1, an individual who reported alleged abuse to the
Department of Child Services (“DCS”) sued DCS for negligently disclosing his
identity, which resulted in harassment to his family. Doe #1 argued DCS
assumed a duty of care when the employee told Doe #1 that his identity was
“confidential. Nobody will find out.” Id. at 201. The employee’s statement
was consistent with established DCS policy. Our Indiana Supreme Court
reviewed Yost and a similar opinion, Lanni v. NCAA, 42 N.E.3d 542, 553 (Ind.
Ct. App. 2015), in which our court held merely communicating a rule - that is,
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the boundaries of a fencing area during a fencing tournament - was not an
“undertaking” which triggered an assumed duty. The Court analogized Yost
and Lanni to the facts in Doe #1:
And that is all the DCS hotline employee did here. By informing
John that his report was confidential, the employee did no more
than the college in Yost or the NCAA in Lanni - she simply
communicated an existing rule. Granted, the employee did
summarize Section 2 using her own words: “[I]t’s confidential.
Nobody will find out.” But given the demanding standard for
“specific undertaking,” and given our caution in finding
gratuitously assumed duties, we cannot read the hotline worker’s
words as an offer to take on additional common-law liability.
Doe #1, 81 N.E.3d at 206.
[37] Here, ONI’s “undertakings” were helping C&K obtain insurance, engaging
C&K in training, and answering questions truthfully concerning whether C&K
had insurance in order for C&K to obtain its federal operating authority. ONI
contends those undertakings were provided to C&K, not the Accident Parties,
and thus no assumed duty exists “because Plaintiffs had no connection
whatsoever to ONI’s provision of those services.” (Br. of Appellants at 31.)
We agree.
[38] Much like Wabash College in Yost, ONI attempted to supply Hackney with
tools he could use to rehabilitate the safety rating of HT. ONI scheduled a
mock audit and sent a representative to train HT employees regarding the new
safety standards, which would focus on past and present driving records of the
operator. Additionally, like in Doe #1, ONI employees repeatedly informed
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Hackney of the new procedures and how they would affect his business.
However, this diligence does not rise to an assumed duty under Yost because,
like in that case, ONI did not oversee or control Hackney’s behavior, here
driving a vehicle with faulty brakes, following these undertakings. See Yost, 3
N.E.3d at 518 (university provided educational materials, but did not undertake
to protect or control Yost or other students from engaging in injurious
behavior). ONI did not assume a duty to the Accident Parties, and the trial
court should have entered summary judgment for ONI on this theory of
liability. See id.
Joint Liability for Tortious Conduct
[39] As part of the actions against ONI, the Accident Parties claimed “ONI
knowingly, intentionally, and fraudulently aided and abetted C&K to become a
chameleon carrier.” (Br. of Appellees at 43.) The Accident Parties also alleged
ONI conspired with C&K to do the same. However, the Accident Parties did
not identify the tort it claimed ONI aided and abetted or conspired to commit,
and thus no action can accrue. See Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir.
2006) (aiding and abetting is not an independent tort; a person who aids and
abets is liable for the tort itself); and see Winkler v. V.G. Reed & Sons, Inc., 638
N.E.2d 1228, 1234 (Ind. 1994) (“civil conspiracy is not an independent cause of
action”). Therefore, we conclude the trial court erred when it denied ONI’s
renewed motion for summary judgment on this issue.
Conclusion
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[40] ONI did not owe the Accident Parties a common law duty, ONI did not
assume a duty, and no statutory duty existed. Nor can ONI be liable for aiding,
abetting, or conspiring when the Accident Parties did not allege a
corresponding tort ONI was to aid, abet, or conspire to commit. Because all
those theories of liability fail, the trial court erred when it denied ONI’s motion
for summary judgment. Accordingly, we reverse and remand for proceedings
consistent with this opinion.
[41] Reversed and remanded.
Riley, J., and Altice, J., concur.
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