*1 579 with Ind. earned credit time accordance A dear 289, (Ind.Ct.App.1995). 295 § adopted rather than rules 35-50-6 subject of Code unambiguous statute oper do would be to construction, by the DOC. To so Patient’s Indiana judicial Anderson, judicial of our au scope 661 outside the v. ate Fund Compensation which 907, (Ind.Ct.App.1996), thority infringe on that has 909 N.E.2d denied, solely it our prerogative mean what to the be held to been left and must 3, § Bd. 1 Indiana State Ind. Const. art. plainly expresses. See legislature. Co., (state sepa N.E.2d 608 government divided into three Health v. Journal-Gazette 989, granted, (Ind.Ct.App.1993), trans. departments). 992 rate (Ind. N.E.2d 273 adopted, 619 opinion reasons, foregoing State’s For the given its a statute must Such petition rehearing is denied. meaning. or obvious apparent J., STATON, § 35-38-2.6- concurs. Ind.Code enacting unambigu 6(b), dearly and legislature J., RILEY, to grant. votes per ously imposed requirement facilities be community corrections sons only provided time as of credit
deprived This is by the DOC. rules created
under 35-38-2.6-6(a), § Ind.Code
distinct community states that specifically
which earn entitled to inmate “is
corrections § Ind.Code 35-50-6.” time under
credit easily could have Although legislature DARST, Bank L. United Richard States language used subsection mirrored the Trustee, ruptcy In re Bert Sloan and (b), (a) it did not do drafting subsection Sloan, Appellant-Plaintiff, Lavonna to the simply referring Instead of so. v. § 35-50- procedures outlined in Ind.Code to make 6, explicitly chose FARMERS INSURANCE legislature ILLINOIS COMPANY, Appellee- subject credit time deprivation of department of cor adopted by the “rules Defendant. 35-38-2.6-6(b). § It rection.” Ind.Code No. 49A02-9809-CV-775. items or that when certain well settled in a specified enumerated are or words of Indiana. Appeals Court of statute, implication, items or other then 27, Sept. are or enumerated specified not so words City Bloomington, v. Dvorak excluded. 1121, (Ind.Ct.App.1998). a statute is language
Where con there is no room for plain,
clear
struction, power and this court has of the statute operation or
limit extend will, in language reading into any supposed defects opinion, correct
our State, Grody omissions therein. 659-60,
Ind.
(1972). Likewise, are unable to inter we § 35- thereby extend
pret and Ind.Code
38-2.6-6(b) mean, suggests, State community cor persons committed deprived programs should be
rections *2 Strohmeyer, Jr.,
Robert W. Mitchell Dick, Hurst & Indianapolis, Jacobs Indiana, Appellant. Attorney for Reed, Riley Laura Bennett Egloff, S. & Indiana, Indianapolis, Attorney Appel- for lee.
OPINION SULLIVAN, Judge Appellant, Darst, Richard L. United (Trustee), Bankruptcy States ap- Trustee peals grant the trial of summary court’s judgment in favor of Illinois Farmers In- (Illinois Farmers) Company surance Bert and Lavonna Sloans’ claims for fraud breach an assumed accurate information.1 We affirm. 4, 1996, (Sloan) April
On Bert Sloan in an involved automobile accident when by van was rear-ended another vehicle Weger (Weger). driven Glen Sloan was through insured Insur- (Illinois Farmers), Company Weger through Sagamore was insured In- Company (Sagamore). surance After the accident, Sloan had several conversations Kelly (Kelly), Todd an insurance ad- juster Sagamore, for dam- age to van personal as well as his injuries. 10, 1996, April during On a tele- filing Complaint Damages, placed After their plaintiffs for in the action Richard Darst, bankruptcy filed Sloans re- Bankruptcy United States Trustee. of law. “A trial as matter Kelly phone conversation thought Sloan, grant what he court’s Kelly asked Sloan for his validity,’ fair presumption be a settlement 'clothed with would $15,- replied that personal injuries. Sloan the burden of appellant and the bears *3 anything and [him] care of would “take 000 demonstrating that the trial court erred.” at 24. pop up later on.” Record that would (citing Rosi v. Business Furni- Id. at 809 the best Kelly told Sloan that (1993) Ind., Corp. ture give he Sloan. could settlement offer the that he would discuss Sloan stated Actual and Constructive Fraud Kelly back. wife and call his elements of actual fraud are Sloan, wife, advised Bert Sloan's Lavonna attorney. calling to call an Instead Bert past 1. a material that he “called an testified attorney, Sloan existing by party or fact the be advice, ask them their Farmers] to [Illinois charged they do [him] said wouldn’t false, 2. was Specifically, 27. Sloan good.” at Record in knowledge made with or 3. was spoke he with Brent Gaumer claims that falsity, ignorance reckless of the (Gaumer) him, Farmers who told of Illinois upon complaining the by 4. was relied to, you if attorney want “you can call party, get any more mon- you’re going but in going go It’s ey your pocket. only complaining proximately caused 5. up you.” It’s attorney’s pocket. party injury. Further, during deposi- at his Record 31. The elements of constructive tion, rep- “[d]id [Gaumer] Sloan was asked are fraud that, opinion, you resent by party to duty owing 1. a [$4,000] settle- was fair' —a fair thought complaining party to the charged response, Sloan ment?” Record at 31. relationship, to their due answered, “[y]es. That’s what he said.” Thereafter, without contact- Record 31. making violation of that 2. attorney, accepted Saga- Sloan ing misrepresenta- deceptive material releasing form signed more’s offer past or facts or existing tions of liability for Sloan’s from further Sagamore remaining silent when personal injuries. exists, speak appeal, Trustee contends On complaining reliance thereon 3. summary erroneously granted party, favor of Illinois Farmers on complaining party injury 4. claims for actual and constructive thereof, and proximate result fraud,2 misrepresentation, by the advantage of an gaining duty to breach of an assumed expense charged party to be re- with accurate information. We party. complaining of the summary judg- grant view trial court’s Services, IGA, Food Super Inc. v. Pugh’s the trial the same standard as using ment Ind.App., Inc. Ind.App., court. Gable Curtis (citations omitted), omitted). trans. denied. (citations Sum- N.E.2d 805 requires Each tort only when appropriate mary judgment fact; opinion are not “[expressions of genuine issues of material are no there and the court should refuse actionable moving party and the entitled fact adequately claim for relief plaint states a that the Sloans Illinois Farmers contends upon allege light disposition and con- actual fraud of our failed both fraud in However, complaint. misrepresentation. fraud in their structive issue whether the corn- we decline to determine Thus, submit such jury.” through statements to examination of the (citations omitted). Further, at 1198 an agent represents if that an item is tort, covered, order to establish either the com- a party reasonably rely plaining have party must had reasonable representation. in this right rely the statements made or given by the advice was not Gaumer omitted. Id. We conclude that Gaumer’s information which could been ascer- have expres- statements to Sloan constituted easily by tained Gaumer. Sloan did opinion sions rather than fact and that call to obtain factual information regarding rely upon no reasonable but, rather, coverage, he testi- entry summary judg- them. that he fied called to obtain advice about *4 regard- of Illinois ment in favor offer, the fairness the settlement mean- ing allegations appropriate. fraud was get opinion. he called to an ing The basis upon which a be deter- settlement by The eases cited Trustee are mined any to fair is not written into instance, in easily distinguished. For Ver Rather, person insurance unless a non Ins. Fire and Cas. Co. v. Thatcher expertise 660, has which allows him to measure Ind.App. 285 N.E.2d denied, against the amount of a settlement agents trans. two settle- plain commonly given ments represented such circum- company tiffs insurance to stances, he can do than plaintiff no more offer a on numerous occasions that subjective opinion certain personal property regard items of would whether be included within the a settlement is fair or not. As ac- policy, insurance Sloan which items knowledged deposition, recog- were not fact covered in his he policy. Additionally, adjuster, the insurance the in nized a Gaumer as claims who company actually pay surance a did “takes care of at automobiles.” Record property then, smaller claim Clearly at Sloan no reasonable prior issue fire that was the basis right rely upon subjective Gaumer’s claim being litigated. The state opinion representation as of fact. That ments made in Vernon were factual ones opinion he solicited and chose to follow which regard were made with to the cover may have been ill-advised is not action- age personal of certain property items able.3 under policy insurance and “which Trustee also cites Shep- to McDaniel v.
would have been known to the Company’s 239, 242, Ind.App., herd 577 N.E.2d agent and field representative before ei agent wherein an insurance “advised an ther any concerning statement it.” uneducated, elderly, acutely disturbed explained 669. The court further woman [that she should hire an attor- not] that, they subjectively stating “[i]f claim, ney” in pursuing her that would she opinions they mere were reckless stat get ahead if did she not contact an attor- ing having them as facts without first as ney, attorneys and that the for the insur- certained their truth.” Id. at 670. company ance give any legal would her person required. agent
A
assistance she
reasonably expects that
failed
agent
point
insurance
will be aware of
out
the woman
what
and the insur-
that
policy
covered under the
company
insurance
did not share the
in-
same
unaware,
that if the agent
regard
such
terest with
inquiry.
informa
to the matter of
easily
Further,
case,
tion can be
agent
obtained
agent
failed to
However,
3. For the
plaintiffs.
same reasons that we find Vernon
claim on behalf of the
distinguishable,
Corp.
we also find Medtech
plaintiff's
concerning
those statements
in-
Ind.
Ind.App.,
Ins. Co.
policy
surance
were of
factual nature and
denied,
distinguishable.
In that
provided information with
he
which
should
long-time ex-employee of an insurance com-
have
been was familiar and about which he
pany misrepresented
company’s
the insurance
spoke
knowledge.
with an air of
Id. at 848.
procedures
claim
and endeavored make
parties.
It
not a fact
two
was
signing
the ramifications
fully explain
McDaniel,
related to the
main-
agreement.
Sloan
release
get
attorney,
Farmers,
an
told not
plaintiff was
tained with Illinois
about which
advised Sloan
while here Gaumer
expected
should be
to know.
Gaumer
a result of
money he received as
Rather,
extra
request
agent’s
for the
merely go
would
consulting
attorney
an
a matter
the limited
advice as
outside
attorney’s pocket.
Gau-
into the
scope
relationship.
of their
up
that it was
to Sloan
mer did maintain
right
on
rely
had no reasonable
Gau-
Additionally,
did
he
make the decision.
opinions
mer’s
as assertions of
fact.
attempt
persuade
further
Therefore, because we
conclude
Gau-
by stating that
attorney
an
to hire
clearly
mer’s statements
Sloan were
pro-
attorneys
Illinois Farmers would
opinion
than fact
representations rather
if
need-
legal
vide Sloan with
assistance
find
and because we further
that Sloan had
Further,
court limit-
ed it.
the McDaniel
rely
on such state-
reasonable
holding to “the situation where
ed its
fact,
ments
we further conclude that the
observably mentally
insurer
induces
properly
summary
granted
person
rely
the insur-
disadvantaged
*5
judgment
upon
to Illinois Farmers
the is-
advice,
represents
legal
negligently
er for
fraud.
sues
actual and constructive
document,
and then
legal
the content of
Negligent Misrepresentation
injured par-
document
the
relies
the
trial
gain.” Id.
Trustee claims that the
court
ty’s
and the insurer’s
detriment
In
no
granting
n. 10.
this
there is
erred in
suggesting
upon
negli
the issue of
in the record
Illinois Farmers
evidence
representations
misrepresentation.
Gaumer made
Illinois
gent
Despite
signed
agreement
the
that Sloan
contrary,
release
Trust
Farmers assertions
the
record demonstrates
Sagamore.
for
recognize the
argues
ee
that Indiana does
understanding
had a full
that Sloan
In
misrepresentation.
negligent
tort of
signing
agree-
the release
contention,
ramifications
support of this
Trustee cites
Moreover,
there is
evidence
York-Division,
ment..
Borg-Wamer
Eby
mentally
was
which indicates that Sloan
In Eby,
623.
Ind.App.,
time
at the
nor that Gau-
disadvantaged
sought damages from em
employee
rely
attempting
mer
to induce Sloan
was
misrepresentation af
ployer
negligent
for
legal
upon
for
advice.
Illinois
represented that
employer falsely
ter the
Thus,
reasoning
we conclude that
in Flori
job
employee
was a
for the
there
inapplicable
this case.
McDaniel is
da,
and his wife to
causing
employee
Upon
from Indiana to Florida.
relocate
Further,
in all three cases cited
Florida,
employee
in
was
his arrival
Trustee,
misrepresentations were
employment for
there was no
told that
es-
related to the
regarding issues
that,
The court therein concluded
him.
par-
relationship between the
sence of the
ais val
negligent
while
ties,
regarding the
misrepresentations
i.e.
respect
profes
with
id cause
action
upon
policies
coverage of or collection
sionals,
be
basis for valid
may
also
plaintiffs
those cases had with
that the
in
regard
non-professiona
Thus,
tort claim with
plain-
companies.
the defendant
The court determined
ls.4 Id.
cases had
reasonable
tiffs
those
its
employer
em
that the
agents’ representations.
rely
the facts “could
However, here,
ployee,
not
found
sought
the advice
conformance
relationship
constitute
breach thereof
of the
related
the essence
so,
(malpractice)
"professional opinion
state’s
doing
the court noted that this
In
simple misrepresentations made in the
hesitancy
permit recovery for
professional activities....”
con-
course of one’s
emanate from the
delineating
Eby,
might
accurate tion.8 result the doing care in so sonable infor- relied justifiably who
plaintiff, is affirmed. Presumably, mation, damaged. RILEY, J., concurs. to the rela- duty is inherent whether of little conse- tionship or is assumed J., MATTINGLY, separate dissents with See, Con- e.g., Cypress quence. opinion. Oilfield Co., tractors, Inc. McGoldrick Oil Inc. v. MATTINGLY, dissenting Judge, (finding La.Ct.App., So.2d misrepresenta- negligent claim for valid a insured Sloan for Had Illinois Farmers duty), had assumed tion where defendant vehicle, I only property damage Trustee insists Although writ denied. agree majority. could with the claim “cannot be reduced to that his coverage had additional with Illinois misrepresentation!;,]” Farmers, negligent including claim for underinsured motorist cogniza- with a provide failed to us Because payment coverage. he has medical any practical likely the effect of demonstrating Gaumer’s statement had argument ble Illinois Farmers from finan- relieving tort between the difference obligations toward under those of an cial and the breach I have coverages, believe Gaumer informa- duty provide accurate assumed misrepresent the information Because Brief at 18. Appellant’s tion.7 result, genuine to Sloan. As a provided negli- determined that tort we have I must of material fact exist and issues misrepresentation, to the extent gent majority’s de- respectfully dissent from beyond exists, expanded should affirming cision we holding Eby, supra, because Illinois Farmers. negli- practical difference between find no breach of misrepresentation and the gent responsibility statute Indiana’s financial accurate infor- minimum carry assumed each driver requires mation, has not § we that Trustee conclude Ind. 9-25- coverage. Code (2). demonstrating § 2-3(1), 27-7- fulfilled burden Pursuant to Ind.Code *7 Sloan, prop- 5-2, by' a the court erred. The unless there was waiver trial to coverage summary judgment to Illinois his would have erly underinsurance granted $25,000.9 Farmers of an be at least Illinois on claim for breach Farmers the McDaniel, the constructive supra, support in context of in release was cites to 7.Trustee proposition of an assumed whether the is- of the that breach and was focused fraud a provide is tort duty way correct information in law of fact. It sue was one of or negligent misrepresentation and from distinct assumption recognize of a may be read recognized Trustee is correct in Indiana. respect agent duty by insurance with stating that the court there concluded that in of the rela- related to the essence matters not plaintiff] “representations to agent's [the the Op. at tionship parties. the 582- between See of, for, provision regarding the need 583, supra. a factual legal is sufficient to create assistance assumption question jury concerning for the recognize the Again, if we were to even McDaniel, duty.” supra at 244. of duty provide of assumed correct breach McDaniel, pursuing plaintiff was not a distinct cause of action from information as duty damages of that based the breach misrepresentation, we conclude that negligent separate against insurer. as action a ap- been summary would have still Rather, regard to invali- was in discussion the statements propriate this issue because on agreement dating a release which insur- purport opinion and did not using affirmative company was as an convey be tested factual information to against plaintiff’s emotional dis- defense accuracy. claim. tress Furthermore, whether the the discussion of actual does not reflect Sloan’s duty 9. The Record give agent had insurance assumed concerning policy limits. and accurate information full presumably be obligated pay pressly availability would limit the of that cause parties any relationship. unless action in such Sloan underinsurance benefits of (Second) of Weger he first of We relied on the Restatement recovered limits § Weger’s recognizes Torts which an action Sagamore policy. for negligent when told Gaumer that he had Sloan been who, business, in the course “[o]ne accident, injured suffering “whiplash profession, employment, any or other back, burning in [his] sensation he pecuniary transaction which has a (R. 30.) He blurred vision.” also told interest, supplies false information for Gaumer that he had been treated at guidance of others in their business trans- hospital emergency room after the acci- supplied) (emphasis actions” when (Id.) dent. Sloan did not tell Gaumer the justifiably other relies the information (Id. expenses. amount of his medical pecuniary and suffers loss result of 34.) Yet, based on this limited informa- such reliance. tion, Sagamore’s told Gaumer Sloan that relationship I believe the $4,000 offer was fair. insurer and the insured in the circum- accepted Sagamore’s When Sloan stances of the case before us is one which $4,000 far amount below Weger’s —an give rise might part to a on the right limits—he lost his to underin- insurer accurate information. surance benefits available Illi- under the n As above, explained likely nois Farmers’ He also lost pecuniary in providing interest false right recover medical payment ben- encourage information would efits, as by settling Sagamore, accept offer; Sagamore settlement foreclosed Illinois Farmers’ subro- acceptance Sloan’s of the settlement gation. result, representa- As a Gaumer’s have relieved Illinois substan- tion to a fair settle- obligations tial financial it could otherwise likely ment amount in a resulted direct incur virtue of Sloan’s underinsurance benefit to Illinois Farmers. payments and medical re- coverage. As a exists, In determining whether a sult his reliance on Gaumer’s informa- we balance three factors: the relation tion, Sloan pecuniary would suffer a loss ship parties, between the the reason Illinois corresponding to Farmers’ benefit. foreseeability person able of harm the availability Because the of the tort of injured, public policy concerns. so re- Roe North Community Adams Sch. majority stricted suggests, as the I believe Corp., 647 N.E.2d (Ind.Ct.App. genuine there are issues material fact as applied This test is to determine whether, *8 when repre- Gaumer made the duty whether an insurer has a in its sentation to Sloan Sagamore’s sured. See Sec. Midwest Ins. v.Co. Life fair, Illinois any poten- Farmers had 201, Stroup, 706 N.E.2d (Ind.Ct.App. tial liability underinsurance Sloan.10 1999) (addressing insurer’s to deal specifically, Weg- More if both faith). good with its insured in policy $25,000, er’s limits were then it Eby, we recognized possible an action for that Sloan could never recover negligent representation by employer underinsurance benefits from Illinois employee, to an though If, however, we did not ex- Farmers.11 Weger’s policy 10. An insurer has a Typically, person, to deal with its 11. per has to recover the faith, limit, $25,000, good insured in person policy there is a cause this case be- duty. action for being the tortious breach of that fore entitled to claim underinsurance Hickman, 515, Erie Ins. v. Co. benefits under his or own her Howev- (Ind.1993). er, where, obligation good The insurer’s as in this were there more accident, dealing obligation faith and fair people includes an than two involved in the deceiving to refrain from the insured. not have had to recover entire underinsur- limit was Sloan’s $25,000, than higher limit was injuries and
then, that Sloan’s provided, $25,000 and he more than
damages Saga- Weger’s policy limits
obtained
more, could have been Illinois Farmers Fur- benefits.12
liable underinsurance the amount
ther, we are not aware of since bills, Illinois medical Sloan’s addi- liable to Sloan for have been
could benefits. Howev- payment medical
tional
er, reliance on Gau- a result of Sloan’s representations,
mer’s potential liability to
was relieved from and fur- benefits
Sloan for underinsurance payments
ther medical benefits.
I would reverse proceedings.
and remand for further MUNCY, Appellant-Defendant,
Joseph Indiana, Appellee-Plaintiff.
STATE
No. 41A04-9902-CR-54. Appeals of Indiana.
Court of
Sept. Denied Nov.
Rehearing *9 ries, any $25,000 med- eligi- whether he received additional Sagamore to be in order benefits, treatment, total injuries as the result- ble for underinsurance ical whether paid parties may have been the injured to all permanent disability. The Record ined policy limit. occurrence whether other also does not reflect income, damages, as a result of as lost such Record does not reflect amount accident. injuries received in the automobile bills, inju- medical the extent Sloan’s