*1 thеre was conviction der like- very real but possibility
reasonable act focused the overt it was
lihood that to the con- respect jury with by the
upon appel- that the I deduce charge.
spiracy test actual evidence met the has
lant here conspiracy con- that the Richardson aside. be set should
viection BRADY, Appellant-Plaintiff,
Glenn COMPANY, INDEMNITY
ALLSTATE
Appellee-Defendant. 71A03-0206-CV-181.
No. Appeals of Indiana.
Court
May *2 Anderson, Anderson, Agosti- policy, Under the terms of his Brady Michael J. Bend, IN, Keller, PC, Attor- pursue no & South could a being UIM claim after ney Appellant. $25,000 paid policy the limit of Crain's underlying policy. Chris Good was All- Konopa, Konopa Aigot-
Robert J. Claire representative underly- state's for Crain's ti, P.C., Konopa, Kenyon, & Reagan South ing coverage, and James Yoder All- was Bend, IN, Attorneys Appellee. representative
state's for Brady's UIM Philip Mareo was Allstate's Claims OPINION Supervisor person and the whom to both KIRSCH, Judge. reported. Good and Yoder Brady appeals the trial court's Genn Brady negotiated underlying his partial summary in fa grant judgment keeping apprised Good while Yoder ("All Indemnity Company vor of Allstate рrogress. questioned his Allstate state"). the ex- appeal, Brady raises three On Brady's injuries tent of underlying on the review,1 for our which we consoli issues claim, and restate as: whether the trial dispute date but did not that he incurred granting summary judg court erred in $7,307 $9,480 expenses Brady's ment on claims of bad faith and wages. Appellant's Appendix punitive that damages because found Ultimately, Brady Allstate tendered to fact genuine there is no issue material $25,000 limit from policy, Crain's but re- duty as to whether Allstate breached its to pay anything fused to on Brady good deal with faith. 6, 1998, July Brady claim. On a filed complaint that alleging Allstate breached We affirm.
both the insurance contract its duty AND FACTS PROCEDURAL good Brady by faith toward failing to
HISTORY complaint prayed the UIM claim. The action, compensatory cost of the dam- 12, 1997, September Brady a On was in a Bar passenger vehicle driven Lisa ages, punitive damages for Allstate's ley that hit aby was vehicle driven good breach of its faith. Brady inju Nathaniel Crain" sustained 31, 2001, January On Allstate filed a arm All
ries his and shoulder blade. partial summary judgment motion for Crain,2 policy state insured whose allowed the breach of faith and dam- payment bodily injury up to his motion, ages support In of this policy Coincidentally, limit. also Allstate designated including evidence Brady as a named insured under a pleadings, copy Brady's pol- policy Barley ("Brady's policy"). issued icy, portions Brady's deposition, Brady's policy provided for underinsured response Mareo's affidavit. In to All- ("UIM") coverage motorist that entitled partial summary judg- state's motion for Brady up to submit a UIM claim to a ment, Brady's limit, designated evidence includ- any underlying less policy payments. complaint, ed his Allstate's answer to the brief, briefs, parties' 1. a fourth issue in his but 2. In the name is raised subsequently moved to withdraw that issue on spelled ways. two different We have selected complaint, spelling used which is October spelling commonly also the most found in
designated evidence. Brady's deposition, guarantee could not portions of complaint, Appellant's Appen- affidavit, ex- limits case." "[UIM] and the affidavit of learning After dix at 100. Ludlow. pert witnеss James attempted to pursuing a UIM Good most favorable to designated facts case for settle the Crain less nonmoving party reveal that Brady as the *3 $25,000 separate than on at least three prevented him from injuries initially his to include occasions. These offers failed in- Brady reported this loss of working. Brady pre- fourteen medical bills that had Good, and, than two weeks come to less viously submitted. accident, paid Allstate him for after the February beginning At end of or the the payment wages. lost This two weeks of 1998, physi- Brady of March contacted his of the an advance on the settlement was therapist cal and instructed her not to 10, 1997, October underlying claim. On until release medical records to Allstate about additional Brady spoke Good attorney, Brady spoke to his Michael and informed payment wages for lost was 6, 1998, Anderson. On Good called March process request could not the that Good Brady and informed him of the need for an injuries the without medical verification of independent examination. medical Bra- disability regarding and a statement claiming refused the medical examination Brady's treating dy's inability to work. rights. Brady it violated his civil Ware, physician, Dr. Charlee submitted that, further asserted based on Allstate's injuries requested verification of and the January refusal and March of between more weeks Allstate advanced two pay policy requested, 1998 to the he limits Thereafter, Dr. wages. of lost Ware sent planned to file a bad faith claim Brady was un- Good a confirmation that and both Allstate Good. During further notice. able to work until months, Brady requested and the next two 16, 1998, spoke On March Marco separate advances for paid five Anderson and advised him that "Allstate wages, collectively lost which to- additional policy policy would the limits on the (after taled covering Nathanial adjusting Crain prepayments) litiga- to avoid needless 26, 1998, Brady January sent a letter On tion, but no additional evaluation could be (1) complimented in to Good which he: independent made until an medical exami- professionalism Good for his "consummate performed complete nation was rec- handling in been way hald] the which he Appellant's Appendix ords received." at (2) case;" damages that his explained the 18, 1998, May Dr. 73. On Jonathan Javors (8) $50,000; request- far would exceed independent conducted medical exami- $25,000 limit payment ed of under both nation on and concluded that he had $25,000 in UIM policy Crain's Allstate not fractured his shoulder blade payments рolicy, the differ- under his own accident. Appellant's Appendix at 61. ence between limit and Crain's Brady's injuries Allstate determined that 113; limit. at Brady's Deposition $25,000 paid did not exceed the under Appellant's Brady also Appendix at 59. and denied his UIM claim. copy sent a this letter Yoder. On 3, 1998, Ludlow, adjuster February Brady by informed a former claims Good telephone that the claim would be evaluat- Allstate, opined reviewеd file clearly ed once "claim pertinent records were that his excess [$25,000] type of the based a review that, received. al- Good also indicated case, though injuries possi- received which included a he would evaluate he he
919 220). clavicle/seapula, ing some Under fracture of his ble Harris party moving to his Indiana disability as result sum mary judgment must demonstrate the ab nerve, wages and medical ex ulna[ ] any genuine [$14,- sence issue material fact which totaled excess penses Appellant's Appendix 000]."3 required then is the nonmovant and Yo- Ludlow further averred Good contrary to come forward with evidence. pro Son, conversations about Carlisle, der several Shambaugh & Inc. v. 768 underlying and posed payments of the (Ind.2002); N.E.2d Jarboe v. claims, reported that Good and Crain Inc., Cmty. Landmark Newspapers, Marсo, responsible that Marco was (Ind.1994); Munsell policies. made under both payments (Ind.Ct. Hambright, 776 N.E.2d (2008); App.2002), trans. denied Farm Bu trial court Following hearing, *4 Co., reau v. Ins. Co. Allstate Ins. 765 partial sum- granted Allstate's motion 651, (Ind.Ct.App.2002), N.E.2d 654 'd on Brady's claim of bad mary judgment on aff 859, 860, reh'g, 770 N.E.2d trans. demied. request punitive damages. faith and accept court must as true those facts just Noting that there was no reason alleged by party, the nonmoving construe judg- a final delay, the trial court entered nonmovant, in the evidence favor of the respect to its order. See Ind. ment with all moving resolve doubts 56(C). Brady appeals. Trial Rule now party. Masonic Ass'n Temple Craw of AND DECISION DISCUSSION v. Indiana Farmers Mut. Ins. fordsville Co., 21, (Ind.Ct.App.2002). 779 25 N.E.2d purpose summary judgment "'The of is about which there litigation to terminate fact and Findings of conclusions thereon dispute can no material factual be made the triаl court offer valuable in which can resolved as a matter of law.'" be judgment into the rationale for the sight Sales, Inc., Quality Holt v. Motor 776 review; nevertheless, and facilitate our 361, (Ind.Ct.App.2002), N.E.2d 364 trams. they binding are not on us. Hoosier Ins. Traini, (quoting Harris v. 759 denied (45 America, Audiology v. Found. Co. of 215, (Ind.Ct.App.2001), 220 trans. N.E.2d 8300, (Ind.Ct.App.2001), N.E.2d 305-306 (2002). "'A grant trial court's demied denied; Storage, trans. Interstate Cold summary pre is clothed a judgment Motors, 720 Corp., Inc. v. General N.E.2d sumption validity appeal, on and the 727, (Ind.Ct.App.1999), 730 trans. denied appellant the burden of bears demonstrat (2000). If grant the trial court's of sum ing that the trial court erred. Neverthe any on mary judgment can be sustained less, carefully the record must be seruti- record, in we must theory or basis plaintiff nized to ensure that the was not Ins., affirm. Farm Bureau 765 N.E.2d at day a in court."" improperly denied Id. 655; 720 Storage, Interstate Cold N.E.2d Fortune, 758 (quoting 364-65 Lutz v. (citation 77, (Ind.Ct.App.2001) 81 (2002)). omitted), trans. denied Brady contends that the trial court granted Allstate's motion for determining propriety "'In of sum- erred when summary judgment on bad faith mary judgment, apply the same stan- punitive damages ar- (quot- dard as the trial court.'" Id. at 865 being Although opinion specify valuing the claim as Ludlow's failed to been entire whether "claire" referred to the whole claim excess of claim, appears just he to have or 920
gues thаt the tactics used Allstate to state is the insurer both claim, i.e., offering recognizes settle the Crain. While Indiana law a preclude Brady than legal duty implied less from all insurance con filing sharing good a UIM information tracts for an insurer to deal insured, Shelby with its Freidline v. Ins. Good, Yoder, provide between and Marco adequate evidence that Allstate's refusal to Co., 37, (Ind.2002) 774 N.E.2d 40 (citing pay the claim was done bad faith Erie Ins., 518); 622 N.E.2d at Mаsonic punitive damages. Brady Temple Crawfordsville, and warrants Ass'n 26, duty good N.E.2d at this faith does concludes, therefore, Allstate was a judgment apply dealings entitled to as matter law. not to an insurer's awith claimant in a third party claim. Menefee In USA One Ins. Co. Indiana v. Life (Ind.Ct. Schurr, 751 N.E.2d Nuckolls, (Ind.1997), 682 N.E.2d App.2001), (2002); trans. denied see Crom supreme explained our court as follows: (Ind.Ct. v. Sefton, er plain Indiana in order for a "Under ("[TThere App.1984) duty is nо fiduciary or tiff to recover from running relation from the insurer to the plaintiff breach of contract injured plaintiff. only duty The insurer's 'plead prove must the existence of contract."). is to the its As independent tort of the kind for such, Allstate owed *5 recognizes puni which Indiana law that claim, faith on the UIM but had no such damages may tive be awarded." Miller duty negotiating while the underlying Beers, Brewing Co. v. Best 608 N.E.2d policy. claim on Crain's (Ind.1993). 975, An 984 insurаnce com The trial court noted that pany duty has a to deal with its insured Allstate estab- faith, genuine lished a lack of in the issues of material and breach of that punitive fact as to bad faith and duty allows for a cause of action in tort. Hickman, by showing periodic that it made payments Erie Ins. 622 Co. N.E.2d Brady pursuant to to the underlying claim 515, (Ind.1998). The erroneous de by showing delays and that in coverage necessarily processing nial of does not claim, if any, the were not company's violate an caused bad duty Id.; Jimison, by Brady's faith but refusal to good faith. Nelson v. submit to independent medical examination. The (Ind.Ct.App.1994). Furthermore, court also found that it proof speculate could not that tort was com whether discussions between Yoder and necessarily mitted does not establish the Ins., Good were indicative of right punitive damages. purpose to Erie dishonest will, Nelson, or ill 520; and noted that offers to 622 N.E.2d at settle underlying the claim for at less than damages may 512. Punitive be merely revealed a in opinion awarded if difference there is clear and con over the claim. vincing value the evidence that defendant 'acted malice, fraud, gross negligence, or appeal, Brady highlights previ- On the oppressiveness was not which the result ously designated facts that Allstate under- aof mistake of fact or honest error valued the Crain claim and allowed com- overzealousness, or judgment, neg mere among adjusters munication its claims as ligence, failing" or other human [Erie genuine evidence that a issue material Ins., 622 at 520." N.E.2d] precludes summary fact as to bad faith analysis claim judgment. Brady is also that All- asserts complicated by somewhat fact that All- knowlеdge the state's that he was in a finan- satisfy its Jarboe Allstate failed try it to allowed situation precarious cially gen- that there were no proving underly- the burden settling into him pressure and concerning fact uine issues of material Fi- it was worth. less than ing Neverthe- nonpayment of the UIM claim. averred Ludlow offers that nally, Brady less, designated following find that the clearly in excess was his claim supports granting partial sum- evidence Appellant's limit. $25,000 policy Crain's on the mary judgment to Allstate 10; Appendix Appellant's Brief faith claims. damages and bad true, his facts as Taking September on injured in an accident parties import. Both of no are arguments work, and in- was unable to attend mistakenly focused court the trial $16,787-$7,307 expenses totaling curred it was set Allstate while taken actions $9,480 in lost expenses in claim. If underlying Crain tling initially Brady was satisfied wagеs. by separate covered had been and Crain payments of medical bills intermittent insurer insurers, by Crain's actions taken in- January of 1998 wages, but underlying settling valuing requesting the that he was formed Good as evidence have been used could not $50,000, $25,000 under payment of full against his by Brady in a faith suit of bad own under his Brady no owed insurer. UIM responded that he coverage. Good negotiating special guarantee could Thereforе, discussions Allstate's claim. - Appen- Appellant's case." limits "[UIM] underlying claim to settle the attempts that would dix at 100. Allstate indicated more, can without possible, little as for as Brady's medical records need to review bad of Allstate's as evidence not be used claim. Allstate settling his UIM before refusing actions Brady would have to sub- stated that also *6 independent medical examina- mit to an "obligation company's policy provided An insurance tion. dealing required fair includes to "injured person may faith and be that an (1) making an by physicians examinations take medical from{[:] to refrain obligation policy proceeds; pay choose, reasonably to re- unfounded refusal often as we as (2) delay pay Bra- unfounded at T9. causing Appendix an quire." Appellant's (4) his medical (8) insured; to release dy initially refused and ment; deceiving pressure indepen- to advantage unfair to an exercising agree and did not records claim." May of his until into settlement examination an insured dent Crawfordsville, that Bra- Temple Ass'n revealed Masonic The examination Erie, 622 N.E.2d blade. (citing at 26 his shoulder 779 N.E.2d had not fractured dy 519). Here, have parties $25,000, should to but refused paid Brady Allstate pressured on whether the UIM claim. anything focused under pay made an unfounded Brady to settle or no evi- facts contain Brady's designated claim.4 pay to the UIM refusal wages or lost of medical bills dence opined Ludlow While ac excess of mistakenly focusing on the By in excess of was worth underlying settling the tions taken while action would any bad faith in this already settled Allstate had 4. We note that appropri- analysis of the necessarily involve policy limits. If it had with settling the so, actions in оf Allstate's preclud- ateness have been done would policy limits. less than policy, Crain claim for recovering UIM under the ed from $50,000 $25,000, un- requesting During negotiation underlying of the Farmers, claim with kept State Farm was der the combined UIM apprised $50,000 proceedings of the and was in- pay A to when the refusal formed that Johnston intended file to be in excess of only alleged claim is Johnston claimed medical ex- $25,000 and actual losses are less than penses wages and lost in the amount of $17,000 evidence of bad is not sufficient $27,000. Although compensation worker's preclude summary judgment. faith to $16,000 paid expenses, of Johnston's Likewise, Brady's claim of contact be he claimed well in excess of Good, Yoder, Marco, without tween $1,000,000 wages due to lost and chronic more, finding give does not rise to a of bad pain. ultimately Farmers settlеd with - kept ap faith. A is often UIM insurer $50,000, Johnston for the limit of prised by its insured of amounts offered in $25,000 but State Farm offered of its underlying claim the settlement of an $200,000 potential limit-the right even has the to intervene in a tort UIM limit minus the settlement. action its insured and the under- between Farmers, settling After Johnston motorist, goal keeping insured with the complaint amended his to add Farm State primary insurer's settlement amount defendant, as a and Kunkel was dismissеd to a minimum. Nee Johnston v. State from In against the case. his suit State Co., Farm Mut. Auto. Ins. Farm, alleged Johnston that his insurer (in (Ind.Ct.App.1996), trans. denied punitive damages was liable for for em- jured attorney kept party's UIM insurer ploying harassing abusive and tactics in apprised progress proceedings of the denying refusing his UIM insurer); see also primary West- claim. State Farm filed a motion for sum- Axsom, Ins. Co. v. field mary judgment on the claims of bad faith (Ind.Ct.App.1997) (holding that UIM damages, and the trial court right insurer has to intervene tort action granted the motion. by injured un- tortfeasor In affirming grant the trial court's motorist). Brady derinsured even contrib summary judgment, we commented as fol- sharing knowledge by keep uted to the lows: ing in touch with both Good and Yoder and "Although technically a claim for sending copy each carbon of his cor *7 contract, breach of an John- respondence. is, against ston's claim Farm State Johnston, In summary we addressed a essence, a personal injuries judgment with analysis facts similar to including pain person- In suffering. today. those before us Johnston was a actions, al injury the trier of fact is not passenger injured in a vehicle and was required to award substantial damages when a driven Kunkel vehicle collided income, for permanent impairment, with his car. Farm Mutual State Autоmo- pain or suffering. an Such award ("State Farm") Company bile Insurance depends upon Damages the evidence. a policy Johnston with UIM limit pain suffering necessity are of $250,000. of Kunkel was insured Illi- jury question may which not be reduced Company nois Mutual Insurance Farmers preci- to fixed rules and mathematical ("Farmers") policy had a limit sion. Although the actual medical bills against made a claim may Johnston incurred constitute evidence of the against Kunkel and also filed suit him. provid- reasonable value of the services claim, summary judgment appropriate is dispositive of ed, are not such bills Brady has failed to this count as well. reasonable medical of the determination demonstrating that the injured meet his burden of to an awarded to be expenses summary in entering court erred trial plaintiff. Therefore, him. we find judgment against re- designated evidence properly The no error. faith good more than a nothing veals the value of John- regarding dispute Affirmed. properly desig- UIM
ston's the value of regarding nated evidence SHARPNACK, J., concurs. injuries is not of personal Johnston's demon- clearly that it quality such SULLIVAN, J., separate concurs damages exceed that Johnston's strates opinion. $250,000.00. limit of the UIM Therefore, properly de- the trial court SULLIVAN, concurring. Judge, claim for the Johnston's termined merely to separately I and write concur duty to Farm's breach State tortious that this case reflects the opinion voice the faith could not survive good exercise inherently present when dilemma which is And, as the viabili- summary judgment. company poli- has two the same insurance punitive dam- claim ty of Johnston's and one on the on the tortfeasor cles-one viability of his tort upon the rests ages an underinsured motorist plaintiff entered correctly court the trial may arise a tension which claim. There is as on this count summary judgment separate two claims handling in the of the failed to meet his has well. Johnston one such claim when settlement that the trial demonstrating burden liability impacts the insurer's negatively summary judg- entering erred court policy. upon the second Therefore, we find him. ment no error." of interest in if there is no conflict Even claims, two handling actual of the Johnston, N.E.2d at 806. may surface. appearance impropriety and inferences sur- Viewing the facts relationships among The subtleties of the light in the rounding magnified those involved is and between Brady, find that the most favorable here, supervisor when, claims as the same noth- evidence reveals properly designated tо the two regard responsibility has dispute regard- good than a faith ing more separate claim. As ing the value Johnston, the evidence we concluded that, as a agree Imay, that as it Be Brady's personal value of regarding the not breach a did matter of quality of such a injuries is not Brady and dealing with that his clearly demonstrates dam- therefore not liable *8 Alistate of payment by warrant ages. $50,000 limit mi- claim-the Therefore, Bra- nus settlement. All- for the tortious breach
dy's may to exercise
state's the vi- summary judgment. Since
survive dam-
ability viability of his tort upon the
ages rests