*1 anything. Q —or AMERICAN UNITED LIFE INSUR did see him —well, I did see the —I
A and R.E. ANCE COMPANY Moul he gun in his hand when ton, Inc., Appellants-Defendants, pushin’ was her.
v. [*] [*] [*] [*] [*] [*] THE RESTAURANT HOSPITALITY INDIANA, OF ASSOCIATION Uh, injuries Bren- Q you did see the Indiana District of the Assemblies of da? Inc., CQI, Appellees-Plain God and Yes, I A did. tiffs. that? Q you And can describe No. 49A04-0804-CV-203. here right
A It a black and blue of Indiana. Appeals Court left breast. It above her —her Dec. my probably about the size a— palm, actually, big how the—the
bruise was. upon
Id. at 29-30. Based our review record, conclude that evidence of we from
probative value exists Griffith com-
court could found that have A battery
mitted as a class misdemeanor. State,
See, e.g., Cooper v. (Ind.Ct.App.2005) (holding support sufficient to a convic-
evidence was denied, battery), reh'g
tion of trans. de-
nied. reasons, affirm foregoing
For the we convictions for criminal reckless-
Griffith’s felony, a class D intimidation as a
ness as battery as a A felony,
class D class
misdemeanor.
Affirmed.
ROBB, CRONE, J. concur. J. and
cy.1 appellants claim that the trial refusing portions court erred in to strike of an affidavit tendered one of the and further witnesses contend erroneously court determined *3 as a matter that no of law contract of insurance because there was a existed mu- appellants tual mistake of fact. that judgment contend awarded to of appellees constituting pre- the amount paid plus pre- miums the had judgment interest must be set aside.' Finding trial court erred in determining that the were enti- to a premiums tled return of the that had along paid policies, been under the prejudgment interest was award- ed, we reverse and remand with instruc- Costakis, Amy Adolay, Thomas J. J. grant tions that the trial court the appel- LLP, Becker, Krieg Jonathan DeVault summary judgment lants motion for and Co., Ins. Indianapo- American Life United final behalf. judgment enter on their lis, IN, Attorneys Appellants. for Ulmschneider, Teel, D. Mark Andrew L. FACTS Steele, Malloy, & Ulmschneider Fort is a carrier stop AUL loss insurance and IN, Appellees. Wayne, Attorneys for Moulton, by'AUL’s parent which is owned company Financial America Part- —One
OPINION ners, managing general Inc.—is a under- responsible writer for AUL. Moulton is for BAKER, Judge. Chief underwriting and assists AUL the ad- American Appellants-defendants United adjudication ministration of all and claim (AUL) Company Life Insurance and R.E. stop policies. of AUL’s loss insurance (Moulton) Moulton, Inc., (collectively, the being used more grant summary Stop of loss insurance is appellants), appeal increasing judgment frequently because an number plaintiffs-appellees in favor employers sponsored created and Hospitality Association of of have Restaurant plans employ- the Indiana self-insured for their (Hospitality), Indiana District health (IAG), CQI, increasing ees to curb costs health of the Assemblies of God essence, particular if a (CQI) (collectively, appellees), Inc. on insurance. In claim amount a cause of action recover exceeds a certain under particular stop policy, loss premiums from the that had underlying paid coverage plan poli- been under a loss insurance reimburses provide employees A an or their 1. issued to direct benefits Rather, stop coverage employer plan dependents. reim- or the trustees of self-funded paid by protect employer policyholder trust burses the for claims or from unusual underlying Appellants' p. plan in excess of the catastrophic App. losses. self-funded agreed-upon type Id. at 148. This of insurance does not deductible. selected, expenses payment Hospitality covered deductible as for exceeds deductible. as the benefit period, coverage, well check, deposit and other information re- Belch, Charles Sometime quested proposal. Managers, Employee Benefit president of (EBM), Moulton approached about LLC September On Moulton sent a appel- for the coverage wilting stop to Belch acknowledging receipt letter Thereafter, representatives from lees. premium. loss application and a proposal to submit invited Belch Moulton However, the pro- Moulton indicated that August 2002, In for the insurance. request posal subject change remained until it contacted Moulton Belch (1) the following received information: ver- Hospitality. conjunction proposal ification what sold because the de- *4 request, Belch submitted certain that with Hospitality ductible on by identified Hospi- information to Moulton about basic did application not match that which was including regard- information tality, census (2) sheet; on the listed confirmation be individuals who would covered ing the participants, list of eligibility all covered underlying plan, as as informa- by the well name, birth, including gender, date of and made prior large by about claims tion status; (3) medical documentation that repeated individuals. Belch that those Hospitality recognized by the State of propos- and submitted a similar procedure Department of and Indiana Labor a CQI. for IAG request al and (4) license; copy signed of the state and a to response request, Belch’s Moulton plan any document and amendments. proposal Hospitality. a for The provided pre- as an estimate of the proposal served responded 20, 2002, September Belch on stop for Hospitality mium for a loss behalf of Hospitality, indicating on possible based on several deductibles. $150,000 specific per deductible was cov- Thereafter, pro- Hospitality formalized person, ered list had eligibility been and by completing, signing, cess submit- Moulton, emailed to the Articles of application. loss ting a insurance for Hospitality Amendment filed with the requested coverage begin Hospitality enclosed, employer State were and each 1, 2002, specific a de- September on with signs member of the its Association own $150,000 and a person ductible of max- per plan documents. Belch also enclosed $850,000 per person. of imum benefit remaining documents. coverage Hospitality also for expenses “incurred from Moulton, those 4, 2002, 9/01/02 On November 8/31/03, from through paid and behalf, 9/01/02 loss AUL’s issued the insur- Appellants’ App. p. through ISO- 8/31/04.” ance The Hospitality. policy’s ST,140-42, 429-31. 1, 2002, effective date was September and contained all of that Hospitality the terms and application completed
The sub- requested in application, including had its along following mitted to Moulton period, coverage, the benefit type de- (1) Sponsor documents: Disclosure Plan ductible, premium, and number of covered (2) Loss; Specific Stop Statement for Dis- and Moulton dependents. individuals in- and by City, tribution of State Insurance Hospitality formed EBM that would need had 1269 em- Hospitality which stated sign and of stop return the schedule ployees, all of located in whom were (schedule) (3) Indiana; Confirmation, any pro- before claims could be Sold Case $150,000 per person identified under the policy. which cessed Thereafter, employee paraple- rendered the returned the schedule accident EBM Thereafter, Moulton, Beverage the Belmont signed gic. had been $239,707.10, and dated Decem- president plan paid the sum of but Hospitality’s appellants also issued expenses 2002. The employee’s ber medical exceeded CQI. policies IAG separate stop loss deductible. premiums appellees paid
The the appellees On December $389,888.71 appellants to the amount complaint against filed two-count Hospitality More coverage. specifically, sought I appellants. Count rescission $261,080.40, $80,461.79, paid paid IAG policies because purported insurance $48,346.52. paid CQI they light parties’ issued in were point October At some before mistake fact. mutual because employer that each appellants realized error, allegedly been issued in and that its trust account maintained own appellees claimed entitlement to a full maintained no individual associations premiums paid plus interest. refund of words, In other plan or trust. health appellees alleged in Count II of the that the trust did realized appellants if the con- complaint even they believed include association formed, the notice of tracts were cancella- could they insuring. *5 in of provided that AUL was tion breach main- actually insure associations that only of provisions policy. the non-renewal the of the plans employees the in tained Thus, appellees that they the claimed That sit- participated. members employer judgment to as a matter in exist, entitled of law appellants not and the did uation $274,538.30 of interest for the amount with poli- the acknowledged stop that later wrongful termination of the they appellants’ the not been issued had cies would have policies. own employer that each had its known employer trust. single 13, 2006, the appellees On November re- appellants the declined to II of count the com moved dismiss policies. As a appellees’ stop the new plaint. protect themselves from the To
result, president Anne the of Pruyn, vice appellants change the them risk that would Moulton, underwriting at sent follow- insured, position appel- as to who was September to Belch on 2003: ing letter the dismissal be lees that with Charlie, our carrier reinsurance motion prejudice. granted, The was out provide allow us to agreements do not appellants filed a motion to recon but the Associa- policies loss insurance sider, trial requesting that the court deem single employer of plans tion behalf II prejudice.” the dismissal count “with there trusts. We never assumed have App. p. appel 277-80. The Appellants’ anything other than a misunder- was not appellees asserted could lants standing respect coverage II under Count be succeed with claim above group. Belmont expenses cause the medical App. p. 222. Appellants’ paid had been in full Beverages employee paid any of them. Hospitality had prior Just the nonrenewal notice words, appellants maintained appellees, employee sent to the In other they provided never loss cover Beverages, company Inc.—a Belmont than three any employer in for other Hospitality program— age participated though these Octo- even associations a one-car accident on associations was involved plans their- self-funded injuries sustained did not have own ber The any employees. granted knowledge merely The trial court sonal because he was the motion to reconsider and ordered speculating appellants’ about whether the II prejudice. Count dismissed with thought they underwriters made a mis- Finally, take. the appellants maintained 4, 2007, September appellants On portions that other of Belch’s affidavit summary judgment, filed a motion for they should have been struck because im- judg- claiming they were entitled to properly set forth legal conclusions. desig- ment as a matter of law because the nated evidence established that there was 10, 2008, On March the trial court de- regarding no mutual mistake issuance appellants’ por- nied the motion to strike policies. specifically, ap- More tions of Belch’s their affidavit and motion pellants they pre- asserted that issued the summary judgment. for day, On same policies cise that were granted appellees’ court mo- requested, coverage provided full un- Thereafter, tion summary judgment. policies, der the and the were nev- judgment appellees was entered for the er canceled or terminated before the end $542,692.76, the amount of of which respective policy periods. $152,804.05 prejudgment was for interest. appellants appellees’ maintained that appellants appeal. now claim for rescission failed as a matter of law and that the were not enti- AND DISCUSSION DECISION premiums they tled to recover the claim that the trial paid. court in granting erred mo On November summary tion for judgment. Specifically, summary filed a motion for judgment, the appellants argue that the designated claiming that the evidence es- evidence binding stop established that a *6 tablished as a matter of that there law was was issued to the no meeting of the minds sufficient to form appellees because there no was material a contract of particular- insurance. More term of the which ly, appellees argued that the appellants parties Therefore, agreed. had not not “did and could not insure” the risk. appellants claim appellees’ argu that the Appellant’s App. p. appel- ment meeting there no of the argued lees that because no contract was rejected summary minds must be and that formed, they judgment in were entitled judgment should have been entered in premiums paid the amount plus pre- of their favor.
judgment interest. I. Standard Review of
On December moved to portions strike various of Belch’s reviewing When a trial court’s support grant affidavit that was submitted in of summary judgment, of apply we motion for summary judg- same standard as that of the trial court. Specifically, ment. the appellants Summary contend- judgment appropriate is if the ed that certain paragraphs pleadings were irrelevant and evidence submitted demon to the issue of there whether was a meet- strate that there genuine are no issues of ing of the parties minds between the on material fact moving party and that the is necessary elements for the formation judgment entitled to as a matter of law. 56(C); Hilliard, of valid appel- insurance contracts. The Ind. Trial Rule Jacobs v. lants also 629, asserted that a number of 829 (Ind.Ct.App.2005). N.E.2d 632 affidavits, Belch’s averments per- pleadings, based on We construe the
425 in light Wheeler, evidence most fa the insured.” Pekin Ins. v.Co. non-moving party, 172, to the and the vorable 493 N.E.2d 174 (Ind.Ct.App.1986). It moving party has the burden of demon duty is the court’s to ascertain the intent strating genuine of the absence a issue of the parties of at the time the contract was Royal material fact. v. Wilson Motor by language executed as disclosed used (Ind.Ct. Sales, Inc., 133, 812 N.E.2d 135 express their rights and duties. Walker App.2004). Although conflicting Martin, (Ind.Ct. 125, facts and v. 887 N.E.2d 135 App.2008). inferences on some elements of a claim To determine whether there exist, summary judgment may proper minds, be a meeting of the acceptance dispute acts, when there is no or conflict re may words, be evidenced or deeds a garding dispositive fact that is of the insured which show an intent Air, action. v. Chambers American Trans accept, any such showing facts a meet Inc., (Ind.Ct.App. 577 N.E.2d 614 ing of the minds support finding will a 1991). the existence of a contract. Firstmark Goss, Standard Ins. Co. v. 699 N.E.2d Life grant Because a trial court’s 689, 693 (Ind.Ct.App.1998). When an ap summary judgment comes us clothed plication for insurance is submitted and presumption validity, appel that application accepted by writing a persuade lant must us error occurred. policy that conforms to the application, entry Id. If the trial summary court’s there is a valid of insurance. New judgment any can be sustained on theory Amsterdam Cas. v. New Co. Palestine record, or basis we must affirm. Bank, 59 IndApp. 107 N.E. Mortgage Corp. Irwin v. Marion County (1915). (Ind.Ct. Treasurer, App.2004). As the acknowledge, mutual mistake of fact is one of the cir Appellants’
II. The Contentions party may cumstances in which be enti tled to the of a rescission contract. For In addressing appellants’ rescission, purposes of a mutual mistake contentions, initially we observe exists parties “where both share a common contract, order to form a valid insurance assumption upon about a vital fact meeting there must be a upon minds they based their bargain, assump and that *7 all the necessary elements such as the Blanchard, tion is false.” Jackson v. 601 matter, subject against, the risk insured 411, N.E.2d 416 (Ind.Ct.App.1992). It is amount, the the duration of the risk and enough parties both are mistaken Knoll, premium. the Ind. Ins. v. 142 Co. fact; rather, any about the mistaken fact (1968). 506, 63, Ind.App. 236 N.E.2d 70 complained of must be one is of the negotiations nothing open The must leave essence agreement and must be determination, for future but must attain such that it animates and controls the con the condition of a complete definite and duct of parties. the Id. at 416. In Martin agreement, binding the insured to the pay Orem, 110, Ind.App. Bros. Box v. 117 Co. premium the though happen, loss does not 605, (1946), it 606 was observed binding as well as the pay insurer to the amount if happen. insured the loss does
Posey v. County Hogan, Fire Assoc. 37 assent necessary [M]utual to the for- (1906). 573, 670, Ind.App. contract, N.E. every 671 mation of and where agreement ... any contracting “must include a meet there is mistake ing of parties by the minds between the insurer and which one of them has in Moreover, subject complied as the matter of 02. Belch the thing
mind one party appellants’ request provide eligibility and the other has the contract different, entirely employees, and list of all something covered which includ- mind name, birth, it employee’s of the contract are such that ed each date of the terms other, gender, 112-13, the one or the and mean either medical status. Id. at will minds, schedule, meeting of the and 115-16. As there is no indicated the the coverage specific, contract. issued to a therefore no defined of participants employ- number case, appellees the claim that this dependents ees and based on the informa- description of the situa- “this is the classic appellees provided. tion that had failure to contract due tion there is where it is clear from the evi- meeting of the minds.” to the absence dispute dence that there is no about contention, this there Notwithstanding Id. type of risk that was insured. appellees requested dispute is no above, policies. spe- appellees As noted also re- requests quested coverage cific terms of those were set forth for an policy identified period. 430, 438-42, 601, identi- appellees’ application, which Id. at 605-07. policyholder, listed a proposed policy period fied the And listed on the sched- date, identified them- ule proposed coverage period effective mirrored the that was associations, their agent requested applications. selves as listed as Id. at EBM, requesting 478-79, specific Finally, checked a box 625-26. the propos- coverage, premiums identified the als listed the stop loss associated with coverage request- period appellees different deductibles that which ed, deductible, 428-30, per person 434-37, identified a list- could select. Id. at 599- Indeed, amount under the 604. ed a maximum benefit selected policy, signed application. Appel- their deductible in applications, which 429-31, 438-43, 600-02, 429-30, 605- App. p. premium. lants’ determined Id. at Additionally, that were 434-37. The schedule that the appellants holder, proposed issued forth the issued signed appellees, set policy, type specific date of the listed the agreed-upon premium. effective deductible, Hence, coverage, policy period, dispute there was no about the been premium. and the maximum benefit amount of the 124, 137, 444-77, requested. Id. at 608-24. though Even the designated evidence Moreover, designated evidence estab- established that there was no misunder- appellees requested that the cover- lished above, standing regarding the items listed age specified, per person at a deductible maintain that because the benefit, specific and a maximum thus indi- policies IAG, issued to Hospitality, coverage. amount of cating CQI, rather than the individual em- 438-43, 429-30, Id. at 605-07. In the *8 ployers who are members of each associa- stop schedule, of the part loss which is tion, valid insurance contracts were not holder, signed and the the view, however, formed. In our argu- that specific same deductible and maximum unavailing ment is because the appellants, listed. benefits were fact, in stop issued loss insurance contracts regard against, to the risk insured to the policyholders requested With who them appel- applications. the the via the appellants specifically, More the —and provided appellants lees information and loss that stop knew when the loss —census 130-32, 430-32, issued, history. policies employer claims Id. at 600- each mem- were policies actually an ance were not issued. In signed agree- of the associations ber view, funding of each our the mechanism the adopt plan the document ment to 431, underlying claims is irrelevant to whether parties 480. Both appellee. Id. at stop loss insurance contracts appellees the as “associations” valid were referred to communications, appellants inquired formed. The never including stop the in them underlying being the the claims were that had been issued to how proposals them, 112-22, 129-42, 174, paid, paying claims Id. at who was how appellees. Rather, it Hence, processed. apparent no misun- were is 434-79. there was appellants fact that that the based their decision derstanding regarding the regarding the issuance of the loss as policyholders were associations. policyholder, identified to who was as that, contrary appel- also note to We many be covered accord- how lives would contention, meeting there was lees’ to and ing policyholder, what to deal the fact the minds as how history group. claims was for the Id. at of the associa- employer that each member 123-37. For in- tions had its own trust account. stance, part Finally, rely Sep- of the submission on the as Moulton, plan document Hospitality Pruyn tember email that sent to president Hospitality sign had the Belch Belch in of their contention that support adopt- that he indicating authority a document had no write document for the ing plan policies, and trust and that the Hospi- However, members in participating use of all issued in error. while employee plan. benefit tality’s Pruyn endorsed referenced some sort of “misunder- Also, email, each association Id. at 481-598. in her there is no indica- standing” document, plan, trust adopted a master about commenting tion that she was for the use summary plan description necessary the elements to form whether in the participating employ- of all members valid insurance contracts were satisfied. association, respective plan contrary, Pruyn ee benefit of its at 14-15. To the ex- Id. employer member of plained through and each individual her written and verbal adoption agree- signed the associations “misun- testimony that her use word 431-32, plan polite ment. Id. at 480-598. her derstanding” email was document, description, benefit and the as- his in- response to Belch’s concerns about incorporation by- tegrity, sociations’ articles of he had raised the email which exchange responding. all included Id. at 103- Pruyn laws were preceded OS,110-11, that the issuance of claim information 128. result, As a policies. Id. at to the heart of the Pruyn’s email went i.e., established that designated issue, parties agreed evidence whether applying necessary for to form the associations were all of the elements valid contracts, coverage, unavailing. and each associa- association-sponsored plan tion had an short, In eligible adopt.
its members to CONCLUSION policyholders are the associations above, con- light of our discussion we applied policies. for the evidence estab- clude negotiations between focus on the fact lished nothing for future deter- parties open association left because each member of each *9 are unable appellees and that the paid underlying claims from its mination apparently any term of the account, point material trust valid loss insur- own 428 (3) policies parties on which the did not peril against; insured the amount of Indeed,
agree. (4) issued the coverage; the limit and duration of the (5) to the accord- risk; and the amount premium of the ing precise request- to the terms that were paid. Stockberger be v. Meridian Mut. ed, matter, including subject the risk Co., Ins. Ind.App. against,
insured amount the duration 1272, 1279(1979). risk, premium. Hence, and the Here, the three associations were made obligated pay premi- up of employers individual member ums, and the appellants were bound to pay had established their own self-funded the amount insured in the a event of loss. health insurance plans and maintained result, As a we conclude that their single own employer trust accounts. granting court erred in the appellees’ mo- The sought associations stop-loss insur- summary judgment and, tion for because ance, typically reimburses the em- dispute, material facts were not in ployers for paid by claims self-funded granted trial court should appel- have plans in excess of a certain deductible. summary lants’ motion for judgment. The initially insurers believed associa- judgment trial court’s is reversed to multiple tions be employer welfare ar- and remanded with grant instructions to rangements. At point, however, some appellants’ summary motion for judg- insurers became that each aware member ment and to enter judgment final on their employer had its own trust account. The behalf.2 associations had no employees, themselves plans, no health and no risk to be insured. MATHIAS, J., concurs. The insurers then issued stop-loss poli- BROWN, J., opinion. dissents with associations, cies to the not the individual employers. BROWN, Judge dissenting. majority holds that parties respectfully
I majori- dissent from the a meeting of regarding minds the risk ty’s grant reversal of the of summary insured against because the insurers were judgment to the associations. I conclude provided with information regarding the meeting that a of minds did not occur and employers’ member employees. I dis- that the trial properly granted court agree. effect, the insurers contractual- associations’ summary motion for judg- ly committed to cover a risk that did not ment. exist, which clearly not what the asso- “To create a contract of insurance there ciations intended. agreement must be an between the insurer and the insured. There must be meeting a appeal, On the insurers claim that there of the minds.” Celina Mut. Cas. Co. v. a meeting regarding minds the risk Baldridge, 203-204, 218 Ind. 10 and that the employers member were cov- (1937), reh’g N.E.2d denied. A stop-loss ered However, insurance. contract of requires meeting a this assertion conflicts with claims made parties the minds of the upon following filings insurers’ earlier to the trial (1) essential elements of a contract: court. “Judicial estoppel ‘prevents a party (2) subject insurance; the risk or from asserting position legal pro- appel- Because we have concluded that the denying the trial court erred in their judgment lants are entitled to as a matter of portions motion to strike certain of Belch’s law, we need not address their contention affidavit.
429 one previously inconsistent with ceeding ” Henry LEWIS, Appellant-Defendant, Zepeda, v. Meridian Ins. Co. asserted.’ (Ind.Ct.App.2000) 1133 734 N.E.2d v. Grain, Smith, Inc. v. 700 (quoting Wabash Indiana, Appellee-Plaintiff. STATE reh’g (Ind.Ct.App.1998), N.E.2d denied, denied), A trans. denied. trans. No. 49A04-0804-CR-218. may properly plead alternative
party of Indiana. Appeals Court theories, contradictory judicial estop- but party repudiating from pel precludes Dec. pleadings. own party’s assertions Marquez Mayer, v. denied.
(Ind.Ct.App.2000), trans. earlier claimed that one of insurers associations, Hospitality, was not enti- ex-
tled to reimbursement medical
penses employ- incurred when member seriously injured in employee
er’s argued that
accident. The insurers the insured and that
association was payments had not made
association itself Rather, expenses.
for the medical
payments by were made the member em- which,
ployer, argued, the insurers were Consequently,
not the insured. the insur- argued
ers the association was
entitled to reimbursement.
The insurers should not be allowed now position take an inconsistent by covered employers
member judicial estop-
stop-loss policies. Given evidence, the
pel and the asso- clearly
ciations and insurers had different the risk to be in-
expectations regarding policies. I conclude stop-loss
sured meeting of the
that there was no minds as insured,
to the risk to be properly granted summary judgment
court
to the associations.