*1 parties if the are not on the may appeal, be denied merits of her we decline to reverse on this given opportunity to hear and com- basis.
ment on all of the evidence considered hereby remand, We that upon order this State, Majors their case. T3 in See case be reassigned judicial different (Ind.2002). Moreover, if, officer. likely as seems happen, jurisdiction of the support child Cnty. Inc. v. Boone Sol Worman Enters. issue is DuPage County transferred from Dist., Mgmt. id Waste back County, to Clark we order that a (Ind.2004). judicial Magistrate officer other than Daw- The took pre-hearing place conference kins continue to handle the case. judge's Attending chambers. judgment the trial court is re- Dawkins, Magistrate conference were Fa- versed and remanded for further proceed- attorney, deputy prosecutor. ther's and the ings and to be reassigned to a different Mother, se, pro who was asked to attend judicial officer. explicitly prohibited but was from doing prosecutor representing so. The was not RILEY, J., BAILEY, J., concur. Mother; indeed, taking the State was position explicitly that was adverse to
Mother's interests. -Itwould be difficult to
imagine example prohibited a clearer ex communications, but the
parte story does
not end there. The conference lasted for thirty-six minutes-just eleven minutes ALLIED PROPERTY AND CASUAL- shorter than the hearing itself. Evidence COMPANY, TY INSURANCE changed was discussed and documents Appellant-Defendant, formally hands that part were never made of the record-until Mother tracked down requested,
the documents herself and after GOOD, Appellee-Plaintiff, Linda fact, they be included. dispute The State does not the fact that Good, Appellee-Third Randall prosecutor not representing Moth- Party Defendant. Instead,
er's proceeding. interests it argues that even if Mother's due process No. 85A04-0905-CV-240. violated, rights were the violation was of Appeals Court of Indiana. appeal harmless "because this has cured any deficiencies that occurred in the trial Nov. 2010. court at the hearing." p. State's Br. 10. Rehearing Denied Jan. Notwithstanding astonishing argu- this ment, simply that we agree note with
Mother that "[bleing deprived pro- of the process rights meaningful
cedural due of a
opportunity to be heard is the 'prejudice'
that a party purposes must show for Reply p.
harmless error doctrine." Br. said,
(emphasis original). That inasmuch already we have
as found in Mother's favor
228%
homeowners insurance and Allied would not have issued the if it had known history, the truth about their the trial *3 court denying erred Allied's motion for summary judgment. accordingly We re entry judgment verse and remand for for Allied.1 AND FACTS PROCEDURAL HISTORY July completed appli- Linda T. R. Jennings, Haley Charles Thomas cation for homeowners insurance with Al- III, Ferrand, Jeffrey Jennings Taylor W. application lied. The signed by Linda P.C., IN, Carmel, Haley, Wheeler & Attor- only, policy and the was in her only. name neys Appellant. for The was to be in year, effect for one Guenin, Mark Emily C. C. Guenin-Hod- beginning July 2002. On March son, Office, P.C., Wabash, IN, Law Guenin destroyed a fire the Goods' home and IV, David W. Stone Stone Law Office & all its They contents. filed a claim with Research, Anderson, IN, Legal Attorneys Allied, paid which neither nor denied the Appellees. for ongoing claim due to an investigation re- garding the cause of the fire. OPINION 9, 2004, On March Linda sued Al MAY, Judge. for breach of lied contract based on Al Property Allied Casualty payment. and Insurance lied's non Allied filed a third- ("Allied") Company appeals judgments party complaint against Linda's husband ("the Randall, alleging he made false statements favor of Linda and Randall Good Goods"). fire,2 presents Allied five issues and and a counterclaim Linda raises one issue on cross-appeal, against Thereafter, but Linda for the same. dispositive: we find one whether the trial Allied filed a motion for summary judg ment, by denying court erred asserting Allied's motion for its contract with Linda summary judgment misrepresen- because ab was void initio because Linda had mis the represented tations on for her history cancellation on her made void Linda's ab imitio. Be- for insurance. The trial court cause the uncontradicted evidence indi- denied that motion. A trial commenced on misrepresented cates Linda the Goods December 12, 2008, and ended a mistri history on for al. appealed Allied the mistrial and we 1. As we reverse the denial of Allied's motion relating (App. to this insurance." at summary judgment, for we need not address "you The contract defined "insured" as whether denying the court erred in (1) your residents of household your who are judgment motions on the evidence. (Id. 291-92.) relatives." Randall was "insured," any misrepresenta- therefore an so 2. provide states Allied will not tions, conduct, fraudulent or false statements if, coverage to "insureds" whether before or by Randall would violate the terms of Allied's loss, "(1) after a an "insured" has Intentional- contract with Linda and absolve Allied of ly misrepresented any concealed or obligation pay contractual for Linda's dam- circumstance; (2) Engaged fact or in fraudu- ages. conduct; statements; (3) lent Made false a written of the terms of Ins. Co. Construction Prop. Cas.
affirmed. law; presents pure question a contract Good, (Ind.App.Ct.2009), 919 N.E.2d is de novo. Harri accordingly, our review denied.3 trans. (Ind. Thomas, 761 N.E.2d son v. January began trial A second 2002). inter specifically, proper More addressing phase into a It was bifurcated policy generally of an insurance pretation Al- claim and of contract Linda's breach appropri of law that is presents Randall, against claims third-party lied's summary Bosecker v. judgment. ate for Allied's counter- addressing phase 241, 243 Westfield all hearing evidence After claims. *4 (Ind.2000). for the verdicts entered directed court can- misrepresented Linda her Whether pre- damages The issue Goods. history hinges interpreta- on the cellation which awarded Linda jury, the sented to applica- "ever." Allied's tion of the word $1,052,977.19. name of the insurance asks for the tion for AND DECISION DISCUSSION company, current insurance the applicant's years company, with that and summary number was entitled to the policy. the date of that On expiration misrepresented Linda judgment because line, space same there is answer that she had insurance declined, cancelled, policy cancelled. never had an insurance ever query, "Coverage 7940.) reviewing summary for Our standard at (App. or non-renewed." argue only poli- "ever" refers to the forth our Indiana Goods judgment was set they application, when filed the cy in effect Dugan v. Mittal Steel Supreme Court (Ind. "ever" refers to the USA, Inc., argues while Allied N.E.2d 2010): history. entire insurance applicant's summary judg entitled to party
A
is
clear
policy language
When
"is
demonstrating the absence of
upon
ment
unambiguous,"
language
of fact as to a deter
any genuine issue
meaning. Beam v.
given
plain
its
the non-moving
issue unless
minative
765 N.E.2d
Wausau
contrary evi
comes forward with
party
(Ind.2002).
language
ambigu
When the
fact
trial.
showing an issue of
for
dence
ous,
strictly against
it is "construed
reviewing a trial
appellate
An
court
"viewed from the stand
insurer" and is
summary judgment ruling likewise
court
Id. at 528. But
point of
insured."
all facts and reasonable infer
construes
"only
per
if reasonable
ambiguity
there is
non-moving party
in favor of the
ences
of its
meaning
would differ as to the
sons
moving par
whether the
and determines
In
"an
policies,
terms." Id.
am
evi-
ty
designated
has shown from
affirmatively established
biguity is not
dentiary
matter that there is no
controversy exists and one
simply because
fact
that it
any
as to
issue
interpretation contrary
party asserts
as a matter of
judgment
is entitled to
party." Id.
opposing
that asserted
But a de novo standard of review
law.
is one of law
applies
dispute
any
where
"Ever" means "at
time." Web
Dictionary
Int'l
ster's Third. New
rather than fact.
interlocutory
appeal
orders on
from
final
appeal, Allied did not
and we
In that
raise
Bojrab,
Bojrab
the denial of Allied's motion
judgment.
did not address
summary judgment.
Property,
See Allied
(Ind.2004).
challenge
may
N.E.2d at 151. Parties
("When
474 (Ind.Ct.App.2003)
(1976).
Cavin,
See also Home Ins. Co. v.
(1931)
(home
interpreting an insurance
we
policy,
give
162 Miss.
fire the court found the time," Because any "ever" means "at query unambiguous, to be and the query, declined, hold the "Coverage ever interpretation insured's incorrect of "ever" cancelled, non-renewed," 667), (App. at relieve him the penalty did not from of his any refers the Goods "ever" ap- assertion). contract, false "ever" plied for or had "at time" in the past. "declined, canceled, modified the words (App. and non-renewed." "De- Linda answered "no" to that query on undertake, cline" is "to refuse to undergo, application, and her answers in a depo- engage in." www.merriam-webster.com/ interrogatory sition and an designated as (last dictionary/decline Septem- accessed support evidence in of Allied's motion for 2010). ber "Cancel" is defined as "to summary judgment show that answer was foree, effectiveness, *5 destroy validity or deposition, false. In her Linda acknowl- www.merriam-webster.com/dictionary/ of." insurer, edged at possibly least one and 2010). (last cancel September accessed three, had policies cancelled she and grant "Renew" means "to or obtain an Randall had held: extension of." www.merriam-webster.com/ (last Oh, dictionary/renew Q: you don't September thought you accessed think-I 2010). said before Met you cancelled for the leak? gas only The Goods claim "ever" refers to policy they effect when filed the cancelled, A: gotWe got but we anoth- is, application-that was policy through er Maybe them. it-I asking if the policy MetLife homeowners' West-, think it was Westfield that can- applied Linda had when she for the Allied Life, celled us. got Then we Met then declined, cancelled, policy had ever been or we switched from Beauchamp & not renewed. The cancellation MceSpadden because talking we'd been limited, could not have been as the Goods people policies to other and their were argue, (App. to the "current at company." cheaper thought get and we we'd a bet- 667.) It not possible that the current buy ter if we went to WIA. undertake,
insurer had un- "refuse[d] (Id. 416.) at In her response to the inter- dergo, engage in" insuring applicant rogatory, "Have you ever had insurance policy. for the current Under the Goods coverage cancelled for reason?" Lin- interpretation, there could be no "current replied, da "Meridian cancelled us some- company." Similarly, if the "current com- time in 1994 or later. I don't remember force, pany" "destroy[ed] had effective- exactly they when cancelled us. Scheerer ness, validity or of" the coverage, Goods' it agency. Insurance was the In- could not be their "current Westfield company," be- surance cancelled us believe in 1999. longer cause the Goods would no have a Beauchamp MeSpadden was the company. contract of insurance with that insur- (Id. company." ance As there could be no current if The Goods company denied, designate any did not coverage had been canceled or evidence that contra- decline their dicted Linda's interpret designated by invitation to so statements application's language. See Mut. Allied. There Utica was no issue of fact misrepresented LLC, about whether Linda v. Compamies, Co. Precedent 782 policy, issuing the insurer in on history applica-
Goods' cancellation at the insur coverage voidable renders the tion. Penn option. Colonial company's ance to whether next turn We Guzorek, Ins. Co. A material. mis misrepresentation (Ind.1997). company has no An insurance an for on representation it had "where right to rescind if the fact "material" notwithstanding the facts knowledge of it been known to had misrepresented, where a misrepresentations, or reasonably entered insurer, have would investigated have person reasonable would decision the insurer's influenced into and However, in "the charge a further." Id. at 674. or to to issue a whether rely of fact may representations Am. Nat. Fire Ins. Co. on surer higher premium.4 investigating without in the Inc., Farms, 107 F.3d v. Rose Acre truthfulness," duty to law). has "no Cir.1997) their (7th (applying Indiana represen look beneath surface" or omission A material the application.5Id. tations on relied application, in an insurance of fact Boston, below, misrepresenta- Nat. Ins. Co. Mass. Linda's lumbian explained 4. As Life opin- (10th undoubtedly "material." Our Rodgers, tion was Cir. 116 F.2d not, cannot, law, be read 1940) (under ion therefore should insurer must inves Kansas parties encourage, permit, tigate only pul even to comb when on notice of cause or hopes inquiry); City Bank v. Verex through applications Twin reason Inc., (E.D.Ark. finding any F.Supp. in an effort false statement Assur. *6 1990) (insurer duty investigate in to paying has no premiums avoid benefits. reduce or representation Ingram could Only application); false v. a "material" sured's statements on Am., FMS, permit C98-2422 either result. Old Line Ins. Co. of 21, 1999) (N.D.Cal. WL 430747 June 1999 (same); presumably are numerous resources 5. There PLC v. Great Lakes Reinsurance Barri os, 08-20281-CIV-UNGARO, 2008 WL companies that would available to insurance 10, in-depth (S.D.Fla. 2008) ("The inves permit the insurers to conduct Dec. in 6032919 sured, insurer, duty to volun tigations, persons applying for not the has price, for a of However, policies. our Indiana Su tarily every their to disclose material fact unknown regardless whether the insurer language leaves no the insurer of preme Court's in Guzorek it."); directly inquires obliged about are not to routine Furnish doubt that insurers Office Guzorek, Co., ly investigation. 690 Family undertake such 04 C ings, Ltd. v. Mut. Ins. Am. ("the 18, rely rep 6699, (N.D.Ill. on N.E.2d at 674 insurer may WL Nov. 2009 3852375 2009) (insurer investigate of fact in the without duty to resentations in has no truthfulness, application); on Foremost investigating unless there is sured's statements their Bowden, BESGWF, representations v. 2:04CV174 Ins. Co. some reason to believe 12, (D.Nev. 2006) duty beneath July are false" and has "no to look WL 2006 1966745 representa applicant's] (same); Morley, of [an surface Mutual Ben. Ins. Co. Life (S.D.N.Y.1989) (insurer tions). F.Supp. Oc 722 1048 also Chawla v. Transamerica See insured); 639, Co., (4th rely on statements of 440 F.3d 647 entitled to cidental Ins. Life Co., law, Cir.2006) (under 80 Maryland insurer has Lewis v. Paul Revere Life 978, (insurer (E.D.Wis.2000) F.Supp.2d 999 duty investigate statements on no to insured's Hoar, investigate duty insured's state application); Ins. Co. v. has no to W. Coast Life 1151, Cir.2009) (un (10th application); In re Tri-State Ar ments on 558 F.3d 1159-60 law, Inc., 690, investigate Services, must der Colorado an insurer 332 B.R. 721 mored only (Bankr.D.N.J.2005) (" that duty if it has "sufficient information applicant's 'the to candidly application fill out an insurance put prudent have a man on notice and would abated', any way whether or not an inquiry"); not in have caused would him start (citation Co., investigation." performs an F.2d insurer Adriaenssens v. Allstate Ins. 258 Gardner, law, omitted)); (10th Cir.1958) (under 681 So.2d Amerson v. Oklahoma 891 (insurer (Ala.Civ.App.1996) has duty investigate "ex insurer has no absent circumstances"); duty investigate statements on no insured's ceptional Co- or unusual cancellations), Allied would not have issued Guzorek, our Supreme In Indiana approaches identified two to deter Court subject policy or would have charged a mining misrepresentation whether a is ma higher premium." (App. at view, Generally, terial. either "[uJnder designate any Goods did not evidence to materiality of the or representation omis contrary, and thus genu there was no fact sion is of to be resolved ine issue of material fact about the materi factfinder unless evidence is such ality misrepresentation made there can be no reasonable difference Linda on the for insurance: opinion." (citing Id. Prudential Ins. Co. Allied relied on it to eligibility determine Winans, 111, 115, Am. v. 263 Ind. policy, for a and Allied would not have sold (1975)). had it known the truth. 'Wealso that, although note we found Indiana approach, applies
The first
which
no
cireumstance,
decision
addressing
in this
of a
considers whether
misrepresentation
applicant's
about an
the insurer would have
to write a
refused
policy for the
history,
insured
would have
cancellation
jurisdic
numerous
charged a higher premium had it known of
tions have held such misrepresentations
Guzorek,
misrepresentation.
690 are,
law,
as a matter of
"material misrep
N.E.2d at 672-73. Even an innocent mis
See,
resentations."
e.g., Wilson v. State
representation will
render a
voida
Farm
Fire and Cas.
761 So.2d
ble, unless the insurer was on notice of the
(false
(Miss.App.2000)
statement
re
person
and reasonable
garding renewal
status of
policy was
would have inquired further. Id. at 673.6
misrepresentation);
Graphic Arts
Pritchett,
Mut.
Ins. Co.
220 Ga.App.
support
summary
its motion for
(1995) (co-insured's
469 S.E.2d
judgment,
designated
an affidavit
false statements
from one of its underwriters that stated:
;
history
"If Linda and
voids entire policy)
Randall Good had disclosed
Nationwide
the fact that they
coverage
had
Mut. Fire
v. Dungan,
canceled
Ins. Co.
F.Supp.
*7
(in
by prior
insurers
this case multiple
674,
(S.D.Miss.1986)
(concealment
682
of
application); Hornback v.
company
Bankers
Ins.
ance
investiga-
to conduct
an
such
Life
Co.,
699,
(Ky.Ct.App.2005)
176 S.W.3d
705
tion without notice of a defect in the state-
(same);
Stephan
Smith ex rel.
v. AF & L Ins.
application.
ments made
Co.,
767,
(Mo.Ct.App.2004)
147S.W.3d
777
(same);
v. Manhattan
Ins. Co. 6,
Crawford
Life
approach applies
The second
when "rescis
York,
150,
New
Pa.Super.
208
221 A.2d
attempted
sion is
after a loss has been in
877,
(1966) (same);
886
Summit
Ins. Co. v.
curred."
Id. In
Ins. Co. v. Guidant
Allianz
Porcaro,
99-2521,
CIV.A.
Cole, 586 S.W.2d BAILEY, Judge, dissenting. 1979) (insured's recent to disclose failure was material policy cancellation judgment favor- reverses and Acc. Globe misrepresentation); Life ("Good") ground on the ing Linda Good (5th Still, 376 F.2d Ins. Co. denied Al- improperly trial court that the Cir.1967) ("Under Georgia law of such summary judgment. Be- motion for lied's rejection or cancel about a false statement inter- majority's with the disagree cause I a material mis other insurance lation of as a voids the form and the application of the representation pretation law."); Hawkeye-Security Ins. matter of certain responses of Good's Co., 207 Va. Emp. v.Co. Gov. form, respectfully dissent. items on that (1967) untrue (applicant's S.E.2d Form Application Construction of cancel regarding past question answer misrepresenta history was lation majority opinion's join I cannot with the ). ab timitio void rendered tion and form Good construction of the evidence, there designated Based particular, I take to Allied. submitted fact question of was no implication view of the a different past their misrepresentation of the Goods' "ever" as it exists on word materiality. history or its completed seeking form Good Therefore, by denying erred the trial court (App.667.) with Allied. summary judgment.7 motion for entry judg reverse and remand for form, We On the for Allied on all counts. ment coverage pre- regarding prior denials sented thus: and remanded. Reversed pos- "it is not company'" 'current because *8 majority notes that the eH The (App.667.) Cancelled, Declined, "Coverage Eeonomy Ever MetLife could have sible" that single in a item comes last Non-Renewed" by Good virtue of refused to insure which relate to the questions, all of row at MetLife was Good's insurer fact that majority insurance carrier. current application. the time she filled out con- despite that goes then on to hold its Tak- agree approach. with this I cannot text, any form of insur- applies "ever" to me "ever" out of its context seems ing sought or had coverage Good ever ance person a reasonable disregard how obtained, ques- and that "[the Reading question. ... to the could construe not have been limited tion could decision, light of our attorney's pur- filed in bad faith. appellate fees requests 7. Linda 66(E), which Appellate appeal. Rule Thus to Ind. suant cannot so characterize including damages, attor- allows us to assess request. Linda's we decline fees, appeal is frivolous or ney's if we find above, per- a reasonable word presented question form as "ever" asked of the insured, interpret son could indeed the item about question posed is much clear prior pertaining cancellations as to the er complete: you and more "Have ever current insurer-particularly since fire, so, by suffered loss and if when and heading is section "INSURANCE COV- how originate?" did fire 162 Miss. ERAGE," Coverage," not "Prior Insurance (1931). So. The insured in that "Coverage History," (App. or the like. case claimed to have ques "understood the 667.) An insurer could cancel an insured only tion to refer by to loss fire on build timely pay premiums, for failure to but ings covered insurance." Id. As the agree coverage later to extend to that trial court here in ruling noted on Allied's may A policy individual. also be cancelled evidence, judgment motion for on the "Al when an insured selects a new insurance very lied easily could have asked ... have product offering from the same insurer you or any person residing your house policy period before the end of the for the ever, time, any any hold had ° existing contract. (Tr. coverage cancelled or not renewed?" Nor it unreasonable to think that a and, Allied did not do this unlike single company-even current Cavin, the insurer in may have received an insurer-could, accurate answer within the bounds of the over the course of an indi life, deny coverage vidual's or renewal at question, construed, properly as it was point willing, one but be under different posed to Good. cireumstances, coverage to extend at an Given range of reasonable interpre phenomenon may other time. This well be question presented tations as among known those who have had home light form in of the inferences favoring owner's insurance in hurricane zones non-renewed the insured any possible that come from 8 and later moved elsewhere and ambiguity, see Bean v. Wausau Ins. coverage obtained from the company. same (Ind.2002), I cannot may It also have occurred with individuals concur with the that applica
who were denied one form of coverage tion unambiguously favors Allied's inter insurance) (eg., automotive by an insur pretation. I would prior hold ance carrier but were not denied home cancellations refers only to owner's insurance that same carrier. Good's insurance carrier at the time of the Thus, that "it reasoning possible" is not application-MetLife Economy-and a current coverage insurer to have denied would affirm the trial court on that to an insured in the past does not neces ground. sarily follow. Materiality
Additionally, the case to which the ma- jority points for its interpretation Affirming interpre- of "ever" the trial court on the applying any as tation of the coverage-related event cancellations issue fore- case, inapposite. seems While the Home closes need to the materiality address *9 join Cavin, issue. Yet even if I could with the Ins. Co. New York v. the includes of See, Mittler, 03/08/Business/Insurance._cri- e.g., Study 8. Elliott A Case com/2007/ of _fixe.shtml (last September Florida's sis retrieved Homeowners' Insurance Since Hurri Andrew, http://www.colorado.edu cane 2010) (each discussing the effects of home- (last /hazards/publications/wp/wp96.html re owner's and non-re- 30, 2010); Zucco, September trieved Tom by imposed newal moratoria Florida in the Mailbox, Insurance Fixed Check Crisis ? Your hurricanes). wake of several Times, Petersburg http://www.sptimes. St.
2%6 it known of derwriting decision had can- of the interpretation majority's a tenuous fact is its of an undisclosed part with existence I must question, cellations has noted else ing.9 As this Court to the issue th of Guzorek where, inappropri appli- "summary judgment to the is response of Good's materiality fact could majority's trier of assess- ate if a reasonable agree with cation. I Indiana, materiality in account the movant's of the law on choose to disbelieve ment that Insu with its decision in an affidavit. agree cannot of the facts" stated but I that there is establishes Bice, Allied's affidavit 879 N.E.2d Ins. Co. v. reMax fact as to of material genuine (quoting no issue McCul (Ind.Ct.App.2008) to disclose failure materiality of Good's (Ind. Allen, lough ). cancellations. In order for prior insurance trams. denied Ct.App.1983), of material genuine to be no issue there materiality majority approaches The fact, designated by. the all the evidence juris- noting that other by problem part af even support position must its movant that, in cases have determined dictions that evi arising all inferences from ter one, from insur- this omissions similar in favor of the non-mov dence are drawn have been held be applications ance USA, Steel party. Dugan v. Mittal ing as a matter of misrepresentations material (Ind.2010). Inc., 929 N.E.2d certainly help- are these cases law. While Good's statement upon That Allied relied Supreme Indiana analysis, the ful to the policy as or lack thereof and issued ques- is a that has held Court Guzgorek, enough. not Under result is Guzorek, 690 not of law. of fact and tion have been material Good's omission must Ins. Co. (citing Prudential N.E.2d at 673 insured, the insurer whether 111, 115, to the risk Winans, 325 N.E.2d 263 Ind. of complete partial rescission seeks (1975)). consider Thus we must v. Guzo contract. Penn Ins. Co. Colonial by forth materiality put the evidence (Ind.1997).10 rek, 664, 672-74 Allied, attempt it here that Allied's is under the obligations to avoid its Al- inferences from properly The drawn fails. the ab- evidence do not show lied's own material fact as genuine of a issue of sence solely upon the
Deciding materiality
material
Good's omission was
stating that an
to whether
an affidavit
contents of
issuing
by Allied in
un-
to the risk assumed
made a different
would have
insurer
options for an insur
presents two
10.
enough
Guzorek
majority
that
holds that
it was
misrepresenta
stating the mate-
addressing
when
a material
an affidavit
er
Allied submitted
to rescind the
permits the insurer
tion. One
omission, and that Good's
riality
Good's
entirely.
The other allows the insurer
countervailing
evi-
produce
failure to
coverage, subject to the limitation
to extend
ap-
the matter. This
dence
the end of
is
risks
rescinded as to those
that the
an affidavit
proach
prospect
that
raises
a material
which
successfully
an
could never be
from insurer
has
panel
Another
of this court
was made.
summary judg-
upon
opposed
an insured
insurance context
the automotive
addressed
majority's
concerned that the
ment.
am
to extend
when it declined
Guzorek
ultimately
unquali-
an
approach
lead to
could
approach in
Ins. Co.
partial
rescission
Allianz
no
issue of
fied rule that there is
(Ind.Ct.App.
Corp.,
N.E.2d 405
v. Guidant
pro-
long
can
fact so
as the insurer
denied,
2008),
I am not as
reh'g
trans. denied.
support
of motion
duce
affidavit
(or
as the
convinced as
Allianz
simply
summary judgment
that
restates
court)
option
partial
rescission
respect
whatever mis-
with
rule in Guzorek
insurance.
exclusively to automotive
limited
a defense or
representation is claimed as
here,
partial
not seek
rescission
Allied does
ground
for relief
the insurer.
that issue.
we need not reach
*10
thus
policy.11Extracting
rule
Yet
the true
to Allied of
Guzorek,
presented
law from
insurance and
history
put
Good's
loss
that,
asserting
had
underwriter's affidavit
into
"yes"
doubt
Good's answer of
denials, cancellations,
prior
Good disclosed
question
regarding losses for the three
non-renewals, Allied would
have years prior to
the Allied
completing
appli-
charged
higher premium
or declined to
question
cation for insurance. That
altogether.
underwrite insurance for Good
appear
its answer
thus:
(App.659.)
Good's affirmative answer to the ques-
Despite her answer and am
(App.667.)
tion on
detail,
losses also has
effect of
ple space
provide
on the form to
putting Alliedon noticethat further inves-
Allied did not seek additional
information
tigation
on actual losses that Good had sustained
into
application
Good's
was needed
even though
provide
Good did not
the re
before a
could be
agree
written.
Guzgorek
quested prior
history.
(App.667.)
loss
with the
imposes no
certainly
This failure
raises the
duty upon
inquire
an insurer to
into the
whether a reasonable person
representations
would have
made
an insured unless
further,
inquired
already
but Allied did not do so.
the insurer
knew
facts behind
Guzorek,
See
provide by cited the examples in the inquire into than those failed to matters, Allied one more heard to serves as cannot be It instead majority. Allied this omission. that, on one with inferences it was misled piece that of evidence complain now drawn, that, issue of there is aon properly reveals its conduct when issue the under- materiality to Al- with of issue fact as to the related material but made no risk, notice it had the writing underwriting decisions lied's question. cancellations prior inquiry. examples as majority cites The cases slate, could write perhaps a clean On as a matter misrepresentation of material I But even if could story. a different view, not, buttress my of law do interpretation of majority's with the agree posed question opinion.13
majority's form, informa- where the application Declined, Can- Allied, "Coverage Ever by inquire notice to clearly Allied on put tion Non-Renewed," celled, (App.667) com or history, I insurance into Good's further cited examples unfavorably with pares Guzgorekto in its of join cannot of of its lack majority because by the of Allied's the trial court's denial reverse of question Aside from specificity. judgment. summary motion for construction, Al of placement proper clarity, lack of its relative question, lied's dissent. respectfully therefore must up follow on Good's failure to lead me on losses to the item answer answers were sim that Good's
to conclude except as an not material
ply "post-claim form
attempt to seek some allow Allied to that would
underwriting" after-and because- the risk
reassess made her claim.
Good that its agree this court to
Allied asks in the cases clear as those
question is as ques- But Allied's majority.
cited question misrepresentation to the from other material cites 13. The cases Na- "Any policy non-renewed?" cancelled or deal with forms jurisdictions often Dungan, explicit requests Co. v. 634 Mut. Fire Ins. make much more tionwide that aff'd, (S.D.Miss.1986), F.Supp. 818 used Allied. than the form information Cir.1987). (5th Still another in- Co., F.2d 1239 & Cas. an Farm Fire Wilson State asked, any "Has an volved asked, any insurer application question "Has (including Company) company this refused to issue or agency canceled or or cancelled, renew, refused, or refused to ever appli named insurance to the renew similar refuse, or given intention to cancel notice of within the any member cant household any you or insurance for any automobile (Miss. years." past three 761 So.2d Hawkeye-Sec. your household?" member that a Ct.App.2000). Another case indicates 207 Va. Ins. Co. v. Gov't Emp. occurred when (1967). 154 S.E.2d question wheth 'no' to the insured "answered posed by Allied is simi- cancelléd he had had While the er years preceding applica Dungan, within the three insured in asked of the lar to that Dungan-judgment af- posture procedural fact, when, three such cancella he had tion trial, F.Supp. at 675-does Co. v. Pritch ter a bench Graphic Arts. Mut. Ins. tions." summary judg- 430, 430-31, ett, support for provide the Ga.App. 469 S.E.2d not opinion. sought by majority's as ment (Ga.Ct.App.1995). Still another holds