*1
(1980);
661,
Rohrabaugh, at 794. This health care reduc- No. 18A02-9604-CV-191. providers tion was the result of health care making stop providing Appeals their the decision Court of of Indiana. legislature’s per- Id. It was the services. Jan. 1997. providers ception that health care were mak- Rehearing Denied March ing mal- this decision because of increased practice difficulty in obtaining claims and the
malpractice insurance. Id. One of the remedy legislature used to
methods limiting patient problem involved reme- providers, part by
dies health care
restricting plaintiff the time which has to
bring legislature required suit. The medical
malpractice plaintiffs bring their cause of act, years
action within two the time the
omission, neglect occurred. Ritchey,
In Havens v.
(Ind.1991), supreme our court noted that previously
“Indiana courts have acknowl-
edged the inherent harshness of the occur- plaintiffs,
rence rule certain but have light
found the rule to be reasonable in policies
other intended to be furthered years longer
rule.” If two is no a reasonable bringing malprac-
time for the of a medical action, Bunker, supra, legisla-
tice see
ture, not appeals, the court of needs to re-
visit the rule. reasons,
For foregoing I would affirm grant
the trial court’s Richey.
in favor of Dr.
operator any moving of the Cavalier had violations or had had his or her license sus- pended years.1 previous within the five following contained the verifica- tion: Gerth, Gray, Kightlinger D. & India- Mark *3 applicants: certify For all I that all state- napolis, Appellant-Plaintiff. for application ments on this are true and Cross, Cross, Marshall, Gregory P. correct that and are offered as an DeWeese, Feick, Muncie, Schuck, Cross & Company inducement to the to issue the Arnold, McClellan, Jeffrey Frye, L. Diane M. policy I applying. for which am Arnold, Muncie, Appellees- McClellan & application reading Brown without Defendants. it, having agent relied on the to fill it out correctly. OPINION Kemper issued Brown an automobile liabil- ROBERTSON, Judge. ity policy for the Cavalier based on the false Kemper Plaintiff-Appellant Federal Insur- application. disputed Kemper It is not that Company [Kemper] pres- ance initiated the policy would not have issued the had it entitled, asserting ent lawsuit that it was as a stepson known that principal was the law, matter to rescind an automobile liabil- driver of the Cavalier. Brown, ity policy Appellee issued Carl W. Brown, stepson The did live with was the and also to avoid under the principal Cavalier, driver of the ac- and had victims, third-party Appel- innocent accident speeding previ- cumulated tickets within the Virgil lees and the V. Robinson Estate fact, years. stepson’s ous five driver’s therefore, agree, Leonard Walker. We suspended license had been on more than reverse and remand with instructions that April stepson, one occasion. In
judgment Kemper. in favor of be entered Cavalier, driving the was involved in an auto- by Virgil mobile accident with a car driven V. FACTS Robinson in which Leonard Walker was a light The facts in the most favorable passenger. per- Robinson suffered serious appellees reveal in March of injuries, inju- sonal and Walker suffered fatal spoke agent Brown to an insurance about ries in the accident. obtaining liability insurance for a automobile Robinson covered under an automobile stepson, Chevrolet Cavalier for which his by Appellee issued Brown, principal who lived with would be the Company Westfield Insurance [Westfield] driver. Brown needed obtain new insur- that had uninsured/underinsured ance for the car because $25,- paid Westfield Robinson stepson which had insured the sought subrogation 000.00 and of Robinson’s planned stepson’s to cancel the insurance due rights Kemper policy. under the Westfield driving his record. Brown informed the in- expects required pay also that it agent stepson surance had accumu- sums to Walker’s Estate under Robinson’s speeding lated more than in the one ticket policy. previous years. agent five told Brown The stepson insurance on the alone would denied Brown’s $1,000.00 year. cost per more than liability policy automobile based However, in money, application brought pres- order to fraudulent save agent Brown, stepson, filled out an insur- ent action Robin- son, ance misrepresented seeking that Brown’s wife and Walker’s estate rescission of person policy. other in Brown’s house- Westfield was to inter- age hold over the of twelve and that no vene in the action. The trial court enter- appli- stepson any knowledge 1. The insurance who took Brown's or that she had anything cation denies that he told her about the was false. summary judgment. bar, tained cross-motions for inas the case at and there are no Kemper’s determined, trial denied motion for unresolved facts to be it is summary judgment finding genuine that a appropriate appellate for the court to de- respect issue of material fact existed with termine as a matter of law summary charged whether Brown could be with mak judgment was wrong par- rendered ing a fraudulent for insurance.2 ty-
The trial court entered (Citations omitted). Id. at 862 Summary Westfield, Robinson, in favor of and the Es appropriate when there is no that, finding regardless tate of Walker dispute or conflict regarding facts which are part, Kemper fraud on Brown’s could not dispositive litigation. Madison Coun parties avoid to third under Ameri ty Bank & Trust Kreegar, Co. v. Williamson, Group, can Underwriters Inc. v. 279, 281 (Ind.1987). (Ind.Ct.App.1986). 496 N.E .2d 807 *4 I. appeal This ensued. Additional facts are supplied necessary. Chargeable Whether Brown is with Fraud argues first the
DECISION
trial court
denying
erred in
summary
its motion for
begin
analysis by
our
noting
We
upon
based
alleged
the
fraud of the
supreme
recently
our
court
expressed
has
its
agent
insurance
and Brown. Brown insists
advancing
public
commitment to
the
that, because he had disclosed all material
Cut,
enforcing
favor of
contracts. See Fresh
information to
agent,
the insurance
he cannot
Fazli,
(Ind.
1126,
Inc. v.
650 N.E.2d
1129
charged
agent’s
fraud in obtain-
1995).
recognize
Indiana courts
that it is in
ing
Kemper.
from
He insists that
the
public
best interest of the
not to unneces
signed
he
reading
without
sarily
persons’
restrict
freedom to contract.
knowledge
and without
that it contained mis-
Thus,
general rule,
Id.
as a
the law allows
representations.
persons
age
of full
competent
under
standing
liberty
contracting;
utmost
Generally,
imputes
the law
an
contracts,
and their
freely
when entered into
agent’s knowledge, acquired
agent
while the
voluntarily,
by
will be enforced
acting
scope
agency,
within the
of his
Pigman
Publishing
courts.
v. Ameritech
principal,
if
principal
even
does not
(Ind.Ct.
1026,
Company, 641 N.E.2d
1029
actually
agent
know what the
Stump
knows.
denied,
App.1994); reh’g
Summary judgment
Co.,
appropriate only
is
v.
Pickels
Phoenix Insurance
119 Ind.
291,
(1889) (Where
if
genuine
898,
no
issues of material fact exist
21 N.E.
900
moving party
judg-
and the
is
ap
entitled to
misstatement was not authorized
insurance,
ment
a
plicant
as matter of law.
wrong
On
review
should be
summary judgment proceedings
imputed
company). Knowledge
where
to the
will
dispute,
there is no factual
imputed
principal
we determine
not be
to the
in cases
correctly applied
whether the trial court
agent
person
where the
colludes with the
undisputed,
the law. When the evidence is
principal’s
who claims the benefit of the
findings
summary judgment pro
purpose. Dague
2. Trial court
and serve no other
Wayne Newspapers,
v. Fort
Inc.,
ceedings merely
reviewing
afford the
1140
1995),
(Ind.Ct.App.
statement of reasons for the trial court’s actions
trans. denied.
poses,
knowledge
representative
compa-
in a fraudulent scheme to defraud
as the
of the
Savings
but,
principal.
ny;
Vincennes
& Loan
if
the evidence offered
John,
true,
plaintiff
agent
Association
St.
must have at-
(1938).
127, 130
tempted
to commit a deliberate fraud
company.
He knew that
if correct
supreme
Another 1938 decision
our
given
questions,
answers were
to the
expression
court contains the most recent
applicant would not be considered a fit
applicable
the law
to this case.
In Metro-
insurance,
subject
and no
Alterovitz,
politan
Insurance Co. v.
Life
duty
It
be issued.
was his
(1938),
Ind.
N.E.2d 570
the insured
truly
given by
write down
the answers
ignorance
falsity
claimed
of answers
applicant, but also to make known to his
insurance,
on an
which had
principal any other facts material
supplied by
company’s
been
might
knowledge.
risk which
his
come to
examiner, asserting
appli-
medical
guilty
if
he was
such
cant had
without
plaintiff
conduct as the
offer
reading
it and without
of the mis-
prove,
grossly
duty,
tend to
he
violated his
representations.
‘In the agent signed application containing case at when the was material taking application misrepresentations, chargeable of the assured and explaining questions and the false statements and must meaning used, very adopted terms he was be held to have them as his own. properly regarded pur- to be for those at N.E.2d 577.3 3. holding Brown asserts that is attached to the of insurance so that when Alterovitz policies applicant, limited life insurance where a statute is returned to he has the (now 27-l-12-6(a)(3)) opportunity inspect application report codified as Ind.Code quires copy physically that a be made in the to the errors insur- misrepresents a fact mate- the insured in facts and infer where
Despite a conflict Motorists, claim, summary 654 N.E.2d at of a rial to the risk. on some elements ences dispute no proper applicant’s misrepresenta- when Where the regard the facts which with exists at time of the could rea- tion litigation. Flosenzier dispositive of the deciding sonably influence the insurer Association, 656 Education Glenn John reject accept it should or whether trans. de (Ind.Ct.App.1995), risk, policy of insurance is voidable at the ease, present Brown In the knew nied. company’s option. Id. liability insurance for obtaining automobile chargeable with the mis As Brown expen stepson would be difficult his and/or risk, material to the representation of facts agent Brown met with sive. policy, Kemper may avoid on the at in present case because the involved in the stepson. respect to Brown and his least with step had insured the surance denying the trial court erred in cancel his given notice that would son had Kemper’s motion for liability policy stepson’s due to the existing agent this issue. informed driving record. stepson alone that insurance on the $1,000.00 per year. Never
would cost over
II.
theless,
insurance for
obtained
Respect
Brown’s Fraud with
Kemper on the Cavalier driven
Brown from
Effect of
Estate
Robinson
Walker’s
premium by mis
stepson at a lower
application that
there
representing on the
Financial
Indiana’s
in Brown’s household other
were no drivers
9-25,
Act,
compels motorists to
Ind.Code
then
Brown and his wife. Brown
than
protection of other
provisions
make
for the
in
application certifying that the
signed the
persons
drivers on the road
order
true and
contained therein was
formation
tragedy
of automo
who suffer loss due
importantly, Brown
correct. Most
means
accidents shall have a source and
bile
*6
stepson
a
application that omitted his
as
Motorists,
recovery.
N.E.2d at 862.
654
driver,
stepson
knowing that
principal
responsi
minimum amounts of financial
The
fact,
was,
of the
principal
in
driver
Cava
provide
bility that drivers must
are:
lier.
(1)
($25,-
twenty-five
...
thousand dollars
underlying
transac-
some facts
While
000)
bodily injury to or the death of
and the insurance
tion between Brown
(1) individual.
one
litigation
dispositive
facts
of the
disputed,
(2)
($50,000) for
Fifty
dollars
thousand
disclosures to the
are not. Brown’s asserted
(2)
two
bodily injury to or the death of
with the
agent simply cannot be reconciled
(1)
accident.
in
one
more individuals
signed.
application he
Under
contents of the
($10,000)
Alterovitz,
(3)
authority
14 N.E.2d at
Ten thousand dollars
property
damage
destruction of
chargeable with the fraud which
to or the
Brown is
accident.
to issue
in one
induced
good faith. To hold
despite
claim of
Brown’s
public policy,
upon
Based
I.C. 9-25-4-5.
totally
ignore
would be
otherwise
company
that an insurance
we have held
signature
meaningless Brown’s
certi-
render
policy of insurance on
not rescind a
true
fying
of the
the contents
misrepresentation
pro-
of fraud or
ground
and correct.
escape
policy so as to
curing the insurance
Williamson, 496
persons.
liability to third
is
Generally,
a
of insurance
company’s option N.E.2d at 810-811.
insurance
voidable at the
(nor
case,
could
present
does not assert
a
company.
is a distinction without
anee
This
that,
assert)
reasonably
held
before
he did not have
difference.
he
Alterovitz
statute,
applicant had
the enactment
opportunity to review the insurance
opportunity
an
to read over
no
certifying
that the answers
before he
the answers were truth-
whether or not
ascertain
therein were true.
contained
fully
However,
public policy
higher
provided by
advanced
limits
Brown’s
Responsibility
the Financial
Act
coverage,
has been
then
will be under
complemented
require-
compensated
and bolstered
contrary
for their losses
ment under
I.C. 27-7-5-2 that
insurance
public policy in
compensating
favor of
acci-
companies offer
mo- dent victims. Robinson and the
uninsured/underinsured
Estate’s
Motorists,
coverage.
point
However,
torist
654 N.E.2d at
disagree
well-taken.
we
coverage
must
requires
this distinction
Uninsured/underinsured
a different re-
be offered
the same minimum amounts as
sult than the one reached in Motorists.
prescribed by
the Financial
Although
compulsory
Indiana is a
Act under I.C. 9-25-4-5 as set out above.
state,
responsibility
financial
accident victims
27-7-5-2(a)(l).
I.C.
guaranteed compensation
are not
every
Motorists,
Motorists,
we held that
automobile accident.
where
the.
Moreover,
public policy
at 862.
advanced
the Financial
Indiana’s Financial
Re
Re
sponsibility
sponsibility
requiring
attempts
Act and
Act
the statute
assure no more
companies
availability
statutory
insurance
than the
to offer
mini
uninsured/un
coverage
coverage.
derinsurance
mum amount of
motorist
had been ful
Safeco
party’s purchase
Company
filled
the third
of unin
America v. State Farm Mutual
Insurance,
Automobile
coverage, an
555
insurance
524-
sured/underinsurance
company
denied;
properly
(Ind.Ct.App.1990),
could
rescind an automo
trans.
Pekin
liability policy
bile
through
Super,
obtained
Insurance Co. v.
F.Supp.
fraud.
(S.D.Ind.1995).
than the genuine There clear-cut issues of mate- are victims, injured to pensation be available particularly, rial in this ease. More fact provide a means be construed to Act cannot Long, Brown told whether Jill sums in accident victims can obtain application, filled out the who by requiring amounts an of those excess step-son, Galloway, Brown’s Jackie fraudulently company, in who resident in his household and would be insurance, provide to to issue duced Cavalier, primary of the Chevrolet driver where compensation uninsured/underinsured Galloway past speeding had some whether purpose of the Act coverage has satisfied the tickets, Long told that it and whether statutory amounts by making the minimum per year to Gallo- would cost insure $1000 purpose of victims. The available way, subjects of and unmistakable direct uninsured/underinsured dispute. According Long’s deposition and injured position he put any such taped another statement she denied com person been had the other would have categorically conversations and maintained Act, position. in a plied not better with Galloway’s not that she did know of Jackie Motorists, 654 at 863. existence relative Brown or Thus, vehicles until after the accident had occurred. disposi controls the Motorists therefore, appropriate to regard, In this it is present case. Brown obtained tion of favorably ap- consider the facts most liability insurance from automobile majority opinion, Thus, effect, pellees, as does he had no through fraud. Kemper’s regard with to denial of Motion complied with liability insurance and had not Judgment.5 Summary Responsibility Act. See id. Financial Nevertheless, principal purpose regard, have In this the trial Act, provided be with a that accident victims partially stating Long if been correct recovery for their losses source and means of knowledge Galloway’spro did have of Jackie amounts, statutory up minimum has if spective operation of Cavalier and she purchase of unin fulfilled Robinson’s been did include information nevertheless coverage from Westfield. sured/underinsured application, Kemper pre would be Kemper may avoid rescinding the insurance con cluded from respect with to the claims West- premised upon result tract. Such Robinson, field, and the Estate of Walker as by the principle that an insurer is bound well. agent so misrepresentations of the insurer’s applicant have
long as the did not gave in misrepresentations, truthful CONCLUSION agent. and did not mislead the formation summary judgment rulings reverse the We Brooklyn Phoenix Co. See The by the with trial court and remand entered 413; N.E. v. Stark in fa- be entered instructions The Phoenix Insurance Co. Pickel v. *8 Kemper. vor of (1889) 898; 291, 21 Brooklyn N.E. Metropolitan Co. v. Wathen Insurance Judgment reversed. Life (1919) 145, 124N.E. Ind.App. 71 403. however, noted, are Here, as these maters J., NAJAM, concurs. sum- genuine dispute. purposes For of in SULLIVAN, mary either J., judgment, it cannot be assumed separate dissents with Long and that made full disclosure to opinion. may be subject appeal. Such matters of this that The record reflects hereinafter, regard Kemper's only com- entered with to to of some discussion focus plaint for of the insurance contract. liability rescission upon the of extent bear extent remaining between and are other issues There respective providers. of among litigants, all the but such matters not 1038 misrepresented injured party
that she the facts on the had received uninsured motor- application. payment, Neither can it be assumed that ist insurance but also because the dispute Brown did not make such disclosure. companies There- was “between insurance fore, summary judgment motion of who protection Kem- are not entitled to under [the per granted, should not have been nor should Financial Act and the unin- granted judgment the court have such in insurance statute].” 654 sured/underinsured limiting favor without appellees extent N.E.2d at 863. judgment. apparently The trial In regard, majority this latter loses appellees upon
entered for the sight principle subrogation Kemper’s complaint reasoning that notwith- involved, as subrogat- matters such here Brown, standing perpetrated by a fraud ed insurance carrier to all succeeds Kemper, under American Underwriters rights by injured party claims held (1986) Group Ind.App., v. Williamson 496 against as the tort-feasor. See I.C. 27-7-5- 807, N.E.2d could not rescind the insurance 6; American States Ins. Co. v. Williams (1972) Ind.App. 295. To regard,
In
agree
part
this
I
the extent that Robinson and Walker’s estate
majority. Brown
that he
admitted
have a valid claim
Brown’s insurer
containing
misrepresenta-
Galloway,
negligence
Westfield In-
regard
tions.
Long’s
conditionally
without
to
surance
subrogated.
Co.
thereof,
Furthermore,
knowledge,
Williamson,
or lack
Brown is
supra,
held to
contained N.E.2d
preclude Kemper
seem to
misrepresentations.
material
avoiding
He was
from
there-
total
even
regard
with
fore
bring
play
not without fault so
to a subrogation
by
as to
into
claim made
in-
another
cases,
noted,
prevent
those
above
surer.
Kemper
any
To allow
avoid
and all
scission if the insurer’s
made
permit
the mate-
refuge
is to
it to take
behind
basis,
rial misrepresentations.
On
coverage
this
provided
the unin-
therefore,
majority
to Part I
opin-
provision. The fact that
sured/underinsured
ion, agree
I
misrep-
particular
because of Brown’s
dispute
appears
be,
here
subject
resentations
part,
rescis-
the most
compa-
between two insurance
but,only partial rescission.
nies should not
Kemper’s
alter the effect of
sion—
attempt to rescind the insurance contract in
II, however,
As to Part
I am unable to
toto.
If
hypothetical
under a
situation in
agree with the
that because in
conclusion
this
which Westfield had offered the uninsured
protec
case there was uninsured insurance
specifically rejected
but
had been
tion
available
Robinson and to Walker’s
by Robinson,
27-7-5-2,
Kemper
I.C.
Westfield,
through
Kemper may
estate
total
be liable Robinson
the amount of
ly
any
avoid
responsibility
may
$25,000,
statutory
provided
amount
in the
aspects
avoid the
viable
still
American
Financial Responsibility
Kemper’s
Act.
lia-
Group,
Underwriters
Inc.
Williamson
bility
should
be diminished
unin-
(1986) Ind.App.,
N.E.2d 807. That
case
payments
made.
sured/underinsured
clearly
that an
states
insurer
not avoid
In
regard,
respectfully
I
disagree with
injured
to an
grounds
third
overly
sweep
broad
of Motorists Mutual
misrepresentation by
fraud or
the insured.
Co., supra,
Ins.
exceed Ind.App.
Capps v. Klebs 947.7 Kemper’s Mo- the denial of
I would affirm Summary judgment and would
tion for to determine
mand with instructions by Robinson and Walk-
damages sustained Kemper only thereafter hold
er’s estate and $25,000 and to deter-
liable to the extent is recoverable
mine whether excess Kemper or from Rob- either from
Westfield
inson or estate. Walker’s COMPANY,
ERIE INSURANCE
Appellant-Plaintiff, ADAMS, Greggs and Thomas
Lillie Eddie
Hinkle, Appellees-Defendants.
No. 49A02-9501-CV-9. Indiana. Appeals
Court
Jan. Mulder, Smith, Troy A. R. William
Robert McManus, Indianapolis, Appellant- F. Plaintiff. Wittry, Indianapolis, Appellees-
Lance Defendants.
OPINION SULLIVAN, Judge. (Erie) appeals the Group
Erie Insurance September 1994 order trial court’s action, granting declaratory judgment Erie’s payments perhaps payment be more payments to Walker’s estate if the total damages proved. motorist accurately as underinsured exceeded the amount of classified payments payments rather than to Rob- I hold liable 7. Because would uninsured $25,000 the Westfield inson to the extent