*1 Grandpar- under visitation entitled entry of the following Act Visitation
ent Pa- parents, adoptive because
Decree step- neither were Grandparents,
ternal L.D. related to biologically nor
parents such, we affirm As adoption.
before the motion denying order trial court's the Decree.
to set aside part. dismissed part
Affirmed BRADFORD,
FRIEDLANDER, J.,
J., concur. F. and Sandra W. MYERS
Donald
Myers, and as Husband Individuals as Wife, Appellants-Plaintiffs, YODER, Con- CLS
Andrew W. d/b/a Amy
struction, Krueger, An Individu- Inc., Insurance, An Indiana
al, Bixler Insur-
Corporation, and Cincinnati Company, Appellees-Defendants.
No. 01A02-0906-CV-539. of Indiana. Appeals
Court
Feb, 25, 2010.
$81
882 Stier, after Stier, & stated was the cost of the house Logan Norman Bruce IN, Attorney Ap- LLC, completed. was When the Wayne, construction Fort written, Krueger worked for pellants. *3 representa- Zurcher as a customer service Johnson, Brown, Eric D. E. Michael performed filing, typing, tive and and oth- LLP, Gray, Indianapolis, Kightlinger & er clerical tasks. IN, Attorneys Appellees. for in fully After the house was constructed OPINION 1999, completed replacement Zurcher residence, cost estimator on the which in- BAKER, Judge. Chief dicated that the replacement cost of the Myers Donald W. Appellants-plaintiffs $124,000. residence would amount As a (collectively, F. Myers and Sandra result, Lake States issued a homeowner's Myerses) grant the trial court's appeal Myerses in that amount. In policy to the appellees- in favor of summary judgment policy a homeowner's was renewed Bixler Insur Amy Krueger, defendants $128,000. Shortly limits of af- policy ance, (Bixler), and Insur Inc. Cincinnati renewal, Zurcher ter the left the insurance Insurance) (col (Cincinnati Company ance industry Krueger and became insur- lectively, appellees), Krueger Bixler. then solic- ance for appellees were Myerses' claim clients, including the Zurcher's former ited them negligent failing in to advise Krueger Myers- converted the Myerses. policy1 Spe their homeowner's es' homeowner's from Lake States Myerses argue genuine that a cifically, the Insurance because Bixler did Cincinnati to whether of material fact exists as issue through offer insurance Lake States. appellees respective breached their conversion, the policy As a result of the duties to provide adequate $130,000 for a limits were increased them. Myerses' three-year term. properly that the trial court Concluding policy with Insur- homeowner's Cincinnati in favor of the summary judgment entered in again ance renewed with an increase we affirm. appellees, $136,000. limits FACTS Although having Sandra could not recall Myerses pro- were Krueger a conversation with when she building cess of a residence Adams in- leaving that Zurcher was learned County. point, they contacted At some business, she she surance assumed to obtain insurance for Deryll Zurcher gave Krueger approval for the Cincinnati Myerses their home. The knew Zurcher However, policy. Insurance Sandra "give from church and wanted to him the "knew" that she had communicated to Appellants' App. business house." wanted "full Krueger that she time, At the Zurcher was an p. 40-41. Appellants' App. p. on the house. agent with the Insurance Haus. Bixler, the owner of Flueckiger, Russell requests that when a customer believes Zurcher risk for wrote builder's ques- coverage," should ask Myerses with the Lake States Insur- (Lake States) Id. at $102,000, tions about the use of that term. Company Myerses 148-49. which was the amount that Construction, party appeal. Yoder, is not a to this Andrew W. CLS
1. Defendant d/b/a Flueckiger Krueger both negligent believed was in operating reckless industry the insurance recommends the trencher. also alleged policies only that new be issued after a negligent Bixler were replacement cost performed. estimator is issuing the because replacement A cost estimator is used to they failed to ... industry "follow stan- determine a home's value be- dards determining appropriate cov- fore homeowner's insurance is issued. erage for the value of home [the] and its Flueckiger admitted that it a good prac- contents." Appellants' App. p. 20. The perform replacement tice to cost estima- Myerses argued also that Cincinnati Insur- *4 extending tor before homeowner's cover- ance was negligent receiving "in and ac- age. cepting incomplete and inaccurate informa- tion and then issuing an policy Although Myerses believed that the provided which inadequate coverage to Insurance policy provided Cincinnati Plaintiffs." Id. loss, on their residence for replacement no cost estimator was ever After denying the allegations, the appel- by performed Krueger or Bixler before the lees moved for summary judgment, argu- Cincinnati Insurance homeowner's ing that they were judgment entitled to as was issued. a matter of law they because did not owe Sandra had one other conversation with the Myerses a them as to advise Krueger in July particular, 2004. In San- the amount for they which should insure inquired dra insuring on shed their house. More particularly, the appel- property. Sandra Krueger told argued lees that the standard relationship $25,000 shed cost Krueger to build and between the and insured is not suffi- that, responded Myerses' based on the cient to obligation create an on policy, the coverage on the to advise the type insured of the or residence would have to be increased to amount of coverage needed. The appel- paid. insure the shed for the amount lees maintained that the undisputed evi- intimate, dence established that no August Myerses long- hired CLS term relationship special or other (CLS) relation- dig Construction trench on ship existed their between property. According Myerses, to the and the Myerses so as to negligently impose CLS cut a propane line that appellees to gas caused the to leak determine the amount into the basement. of cov- Thereafter, erage Myerses Myerses' home and con- needed. destroyed tents were gas when the in the In response to the motion for summary exploded.
basement judgment, the Myerses filed the affidavit Myerses filed a claim under their of insurance expert, Dr. Marshall Reavis. Cincinnati Insurance for the re- Dr. Reavis averred that insurance industry placement value of the home. Although standards recommend that policies new be $136,000, the amount of the policy was it only issued after replacement cost esti- was determined that the cost of replacing performed. mator is Id. at 181. The trial $223,594.34. nearly the home alone totaled court admitted the appel- affidavit over the Thus, Myerses sustained a loss in the objections, lees' and following a hearing, $87,592.34. amount of the trial court granted the motion for sum- incident,
Following the mary judgment. filed The trial court's order CLS, a complaint against elaiming provided pertinent that it in part that be- coverage full requested pleted, Bixler she granted has not The Court 16. risk or other just had builders cause she the affi- to Strike Motion Krueger's insurance, coverage she needed full so Reavis, in arguments but davits was fin- now that it the home on very are relevant motion of that support in re- .... There was a discussion ished to a regards in decision to the regards in and a to the amount gards summary judgment. complet- cost estimator replacement affi- is: Do the question The real above, and Zurcher as mentioned ed thereto es- attachments and the davits in by Lake States was issued experience requisite tablish $124,000. The Court the amount testify regards knowledge presented that the facts again once finds agents of care for insurance standard duty to not create a in the exhibits do necessity and, particular, Indiana the value of Myers regards [to] advise cost estima- replacement complete home, or the cost its poli- issuing a homeowner's prior tor needed. of insurance amount thinks not. ey. The Court *5 Reavis affi- finds that the 23. The court case, cost replacement In this 18. genu- that a failed to demonstrate davits utilized to determine was estimator therefore, and, of fact exists ine issue home in 1999 cost of the replacement and in favor of Bixler finds Court to be determined the cost was and for grants their Motion Krueger and year, Oc- $124,000.00 later the next and Summary Judgment. 2000, 11, was written tober $130,000.00. appeal. now at 15-17. The Cincinnati Id. a re- require 19. did Cincinnati AND DECISION DISCUSSION cost estimator. placement Review I. Standard indicat- provided was 20. No case law of care for insur- the standard of ing that judgment summary of purpose The requires an agents Indiana there litigation for which to terminate is estima- cost complete and can be dispute be no factual which can tor. v. a matter of law. Beradi determined as Myers had several Wholesalers, Inc., is true that 21. It N.E.2d 625 Hardware Krueger, including with 1259, contacts re (Ind.Ct.App.1993). When 1261 later Insurance Haus and contact at the summary judgment, our grant of viewing that of Bixler, is the same as finds that standard of review but the Court intimate, long-term was not there Dreaded, v. Paul trial court. Inc. St. required to Co., 1267, that would be relationship 1269 904 N.E.2d Ins. Guardian regards Myers to advise (Ind.2009). create a facts Considering only those Very insurance. sim- to the amount of to the trial parties designated aware of the amount ply, Myers was court, there is must determine whether we based premiums coverage, paying and any material fact genuine issue as relationship coverage and upon said entitled to a moving party is whether Bixler Id.; and Myers and between of law. Ind. as a matter judgment Myers to advise did not create 56(C). these answering Trial Rule insurance need- the amount of all factual infer we construe questions, ed. non-moving party's favor in the ences of a all doubts as existence when the con- resolve indicates that Myers moving party. against the com- material issue initially of the home was struction
$85
companies and their agents
Bloom,
847
N.
Ind. Pub. Serv. Co.
(Ind.2006).
175, 180
instructions,
N.E.2d
failed to follow their
the tri-
erroneously granted summary
al court
moving party
bears the bur
judgment
appellees'
in the
favor.
making
prima
showing
facie
den of
genuine issues of material
there are no
issue,
resolving
this
ini
we
is entitled to
fact
the movant
tially
that an insurance
who
observe
of law. Once the
judgment as a matter
procure
undertakes to
insurance for anoth
burden,
the burden
movant
satisfies
general duty
principal
er owes
non-moving party
designate
shifts to
care,
good
exercise
reasonable
skill and
showing
evidence of facts
produce
diligence
obtaining
faith
the insurance.
material
genuine
of a
issue of
existence
Family
Dye,
Am.
Mut. Ins. Co. v.
634
Bend,
City
v. Mun.
South
fact. Mullin
844,
(Ind.Ct.App.1994);
N.E.2d
847
Cra
(Ind.1994).
278,
A grant
281
639 N.E.2d
Co.,
ven v. State Farm Mut. Auto. Ins.
carefully re
summary judgment
will be
(Ind.Ct.App.1992).
N.E.2d
On
party
ensure that a
was not
viewed to
hand,
an insurance agent's duty
other
Evan v.
day
his or her
court.
denied
providing
not extend to
does
advice to the
Assocs., Inc.,
873 N.E.2d.
97-98
Poe &
insured unless the insured can establish
If there is
doubt
(Ind.Ct.App.2007).
intimate,
the existence of an
long-term re
reach,
jury might
as to which conclusion a
lationship
with the
or some other
summary judgment
inappropriate.
As
special cireumstance.
588 N.E.2d
Akaiwa,
Corp. v.
872 N.E.2d
bestos
*6
words,
at 1296. In other
something more
(Ind.Ct.App.2007).
1096
than the standard insurer-insured relation
Finally,
deference
we do
owe
ship
required
special
is
to create a
rela
findings
and conclusions entered
tionship obligating
agent
the
to advise the
summary judgment
in a
the trial court
coverage. Dye,
insured about
634 N.E.2d
Trans-Care,
Inc. v.
order.
Comm'rs of
at 848.
Vermillion,
County
831 N.E.2d
of
demonstrating
Factors
the ex
(Ind.Ct.App.2005). Although
1258
such
special relationship
istence of a
between
may
and conclusions
assist our
findings
agent
the
and insured include
the
whether
review,
if
we will affirm
the trial court's
grant
summary judgment
of
can be sus
1)
agent:
exercised broad discretion
2)
theory
needs;
ree-
any
servicing
tained on
or basis
the insured's
counseled
Evansville,
City
ord. Beck v.
842
concerning specialized
the insured
insur
of
(Ind.Ct.App.2006).
N.E.2d
860
3)
coverage;
ance
held himself out as a
4)
highly-skilled
expert;
insurance
or
re
Myerses'
IL The
Claims
compensation
expert
ceived
for the
advice
Myerses argue
that the trial court
provided
customary premium
above
granting
motion
appellees
Centre,
erred
Witt,
paid.
Court View
LLC v.
753
summary judgment
genuine
(Ind.Ct.App.2001).
because a
N.E.2d
While
material fact
of whether the
question
relationship
issue of
exists as to wheth-
duty
gives
duty may
ques
er
of
such a
appellees
breached
rise to
involve
specifi-
care that it owed to them. More
fact,
tions of
whether an insurance
cally,
assert
that because
owes the insured a
to advise based on
question
on their
facts is a
of law for
they requested
undisputed
Dye,
and the
the court.
The trial court entered *7 against appeal, determining agent ment the Plaintiff. On af- In whether the owed noting only plaintiff duty regarding ter that a to advise exists the to advise him there long-term when "intimate rela- needs, his insurance we considered the tionship parties following: between the or some other circumstance," 1297, special id. at we de- in surgeon Albany, Cook is New agent termined that the did not have Indiana, managed who has a horse farm plaintiff to the regarding advise cov- for approximately as a sideline twelve erage following and made the observa- years prior to trial. Cook became asso- tions: Browning, ciated with an insurance pleadings only reveal agent, purchased when he the farm. [the
plaintiff] approached
Subsequently, Browning provided
insurance
all the
[the
agent]
purchase
coverage
to discuss the
of auto-
related to Cook's
knowledgeable
farm.
is not
about
insurance,
Cook
mobile
and that
insur-
[the
duly
agent]
procured
potential
ance
the
risks related to his farm and he
from
Farm.
in
plead-
Browning
potential
State
Nowhere
would consult
farm
risks related to his
and the neces-
ings
plaintiff] allege
does
[the
[insur-
agent]
sary
ance
was her insurance
insurance to cover these risks.
transaction,
prior
Browning
to the instant
that she
would ask
for all cover-
Cook
requested
age pertinent
information about the terms
to his farm and leave the
ever, Browning did not state what the
discretion.
Browning's
details
to
bill
would be. He
subsequently
coverage
Cook
extent Cook's
Browning would
Browning
selected.
deny
provide
for the
also
he could
did
on his advice
relied
aware that Cook
remaining
he did not refer
coverage and
to the farm and
risks related
to cover
agency.
to another
Cook
be
Browning to
considered
both men
incident,
After
Cook
Id. at 524-25.
the farm-
agent" for
"insurance
Cook's
claim,
cover-
filed a
but the insurer denied
ing operation.
determining
Id. at 526. In
age.
op-
1978,
aware of
Cook became
had a
to advise Cook
large
two
horse
purchase
to
portunity
coverage, we observed that
appropriate
Kentucky. These barns
located in
barns
which would
standing
were
structures
Browning himself conceded that he was
and moved. Prior
have to be dismantled
man
Cook's insurance
and
Cook
dis-
project,
Cook
undertaking
insur-
purchasing
relied on his advice
employee
with
who worked
cussed it
his
Additionally, by Browning's own
ance.
farm,
and with
with his wife
admission,
beyond
his role went
purchase
Browning.
deciding
After
mere
and he
on
counseled Cook
barns,
con-
signed two sales
Cook
horse
appropriate coverages
for his
21, 1978,
tracts,
the first on November
farm. This case stands marked con-
February
on
and the second
Donahue,
Ind.App.
trast
Bulla [v.
language that
Both contracts contained
(1977)]
example,
project, Cook decided to undisput stances Cook and project. his office discuss Cook *8 intimate, that no ed evidence demonstrates Browning that the barns explained special re long-term relationship or other and would have to be dismantled moved Krueger and lationship existed between labor to Indiana with the use contract instance, Myerses. Krueger For was crane. equipment including rental Myerses' regular agent not the coverage prop- for liability wanted Cook used Myerses previously and the had not injury and the erty damage, personal for or Bixler to obtain insurance Krueger He placed in the barns. materials App. p. 44-45. Appellants' other matters. apparently an oral coverage, order for fact, was written Myerses' policy Browning told he could request. Cook Zurcher-an only with Bixler because components for the coverage not write their church- they through knew in Ken- they barns while were of the Cook, insurance business. was the to leave the tucky. According to this decided received, 40-42, how- Id. at 44. he only coverage denial issued, Sandra, Myers- policy to homeowner's was spoke she According to Krueger any with or regarding es had not consulted only one occasion Krueger on obtaining other Bixler other limits under Cincinnati coverage when prior which occurred of insurance to the home- policy, forms Insurance adding coverage for Again, Krueger about had one inquired policy. Sandra owner's Id. at policy. concerning homeowner's the shed to the conversation with Sandra conversation, in- Sandra During that called coverage 45. on her home when Sandra the cost of the shed Krueger of inquire adding formed about a shed that, on the Indeed, indicated based Krueger recall Sandra could not policy. coverage on the house Myerses' policy, the Krueger with having ever discussion the shed for be increased to insure should was policy when the Cincinnati Insurance to have Myerses paid the amount renewed. Sandra also admitted issued or Moreover, did type her of the Id. at 49. Sandra Krueger that never advised it built. discussion having particular not recall that she would or amount of insurance when the Insur- Krueger with Cineinnati Appellants' App. p. 46. need. Id. at policy ance was issued or renewed. Krueger no that There is also evidence 45. highly- out as or Bixler held themselves above, apparent of the it is that light Myerses experts. The skilled closely parallel the circumstances here Krueger have not shown that ever made where no was found. those Craven her any representations abilities here are unlike those in And facts them, that and there is no evidence in that dem- where the evidence case Cook Myerses Krueger chose or Bixler to han- that the insured and the onstrated dle their homeowner's insurance on the conversations and contacts had numerous Krueger that or Bixler held them- basis type and amount of insur- regarding Moreover, experts. Krueger out as selves coverage that was needed. type never advised Sandra that should be or amount of insurance Similarly, say we cannot other Rather, are here special present cireumstances obtained. Id. at 46. the evidence Myerses supports conclusion justify imposing on the would Zurcher because of their asso- chose to use appellees provide Myerses with ad- through ciation with him their church. in- vice as to the amount of homeowner's retained their Myerses And the surance that was needed. Krueger suggestion. at Zurcher's Id. at Myerses Krueger re- did not consult with needs, any special insurance garding to a only their contact with her amounted cireumstances, Notwithstanding these for a homeowner's general request that because Sandra assert Moreover,
without further discussion. for the requested resi- obtained dence, imposed appel- Myerses through for the Insur- Cincinnati in mak- lees to determine what she meant *9 that policy ance contained the same limits Brief, pp. ing Appellants' that statement. previously Zurcher determined. Id. had contention, support 11-12. To that at 48-49. testimony Myerses rely Flueckiger's on undisputed any request coverage" evidence also belies for "full created on flag" ever coun- a "red and that based this "red notion that or Bixler any special- flag," Krueger should have made addition- Myerses concerning seled type and amount of inquiry Before the al about the coverage. ized insurance
889
purchased.
particular type
that
be
Id at
cover a
pro-
insurance
should
loss. To
However,
say
claims,
we cannot
148-49.
tect against
perforce
such
this
request
coverage" ap
for "full
Sandra's
place upon
agency
would
an
in
the cireumstances
proximates
Cook
foresight
explanation
intuitive
and an
expressly requested
the insured
where
term, condition, limitation,
every
exelu-
provide
specif
to
insurance to cover
coverage
or
in
an
sion
restriction
to
Moreover,
potential
ic
occurrences.
we
policy might provide
insured so that the
recently
that an
have
determined
insured's
coverage"
"full
under
and all cir-
of "full
is not
expectation
place
cumstances. We will not
such an
impose
on an
to
enough
impossible
upon
burden
an insurance
to an insured
provide advice
(at
agency
on
but
least
cases based
coverage
pur
amount of
that should be
contract)
upon
we will leave
burden
McCarty,
v.
893 N.E.2d
chased. Barnes
the insured to examine his
325,
(Ind.Ct.App.2008),
329
trans. denied.
determine if the coverage
pro-
desired is
jurisdictions
from other
have held
Courts
vided.
v.
eg.,
the same. See
Catalanotto
Com
Ga.App.689,
at
288S.E.2dat59.
788,
Co.,
790,
mercial Mut. Ins.
285 A.D.2d
If the rule was otherwise and the re-
(2001)
199,
(citing
729 N.Y.S.2d
New
sponsibility of determining
calculating
concluding
phrases
York cases
such as
proper
amount of homeowner's insur-
insured,"
"coverage
everything," "fully
on
ance was shifted to the
compa-
insurance
available,"
coverage,"
"best
and "good
agents,
likely
nies and its
it is
that a raft of
are
coverage,"
requests
insufficient
litigation
coverage
would ensue whenever
particular
specify
coverage);
desired
Thus,
miscaleulations
occurred.
the cost
Co.,
Trotter
State Farm Mut. Auto. Ins.
coverage
of homeowner's insurance
would
(S.C.Ct.App.
297 S.C.
eral as was determined agent. Specifically, majority but opinion, I concur in the Block, 1083-84 879 N.E.2d Filip v. an separately although to note that write (Ind.2008): duty to agent insurance does not have a spe advice to the insured unless provide duty agent of the insurer's general [tlhe two, exists between the relationship cial fraud, not refrain from affirmative is to op. (citing at 885-86 588 see the insured rights watch out for all of to 1296), every I not view in N.E.2d at do latter them.... [I/n- and inform the of "full cover requesting stance of an insured required under a agents are not surer's advice, request to be a however. age" to advise the in-
general duty care of instances, In some insured's declaration sufficiency cover- sured "full coverage" that he wants could be replacement value in- age limits or insurance, procure specific to directive sured's home[s]. directing agent procure akin to to added). Although Myerses (Emphasis "earthquake insurance" or "flood insur Dr. estab- argue that Reavis's affidavit A ance." licensed insurance would practice lishes that it is standard duty then have a to exercise reasonable care, industry perform replacement good diligence skill and faith to ob Morgan tain the desired insurance. and, therefore, genuine cost estimations Inc., exists, Agency, Tackitt Ins. 852 N.E.2d Filip rejects issue of material fact If (Ind.Ct.App.2006). is un that that insurers assertion establishes means the di sure what insured duty perform are not under a such an rective, duty duty may include a to ask short, Myerses' argu- estimate. Likewise, for clarification. if the is squarely principles ment falls within the insurance, unable to obtain the desired set forth in and their claim fails. Filip there is a to inform the insured of Co., that fact. Anderson Mattress Inc. v. CONCLUSION Co., State Ins. 617 N.E.2d First above, light of our discussion we con- ("The (Ind.Ct.App.1993) agent also incurs no inti- long-standing, clude that there was inform the if he principal Myerses relationship mate between the procure requested unable insur justify impos- and the appellees would ance."). ing appellees to advise the case, however, upon reviewing In this Myerses' about the amount of home- entire conversation between they for the owner's insurance needed Myerses Krueger, it is clear that San- Moreover, residence. have have clear dra did not idea of what identify any special failed to circumstances directing meant and was not might justify imposition of such a Krueger procure but specific insurance Thus, duty. properly the trial court en- seeking Krueger's advice about what summary judgment appel- tered for the provide amount of insurance would full lees. for the cost of the (San- trial judgment Appellants' App. court is af- home. See at 81 deposition testimony firmed. dra's me how much insurance I "asked wanted I I I on it and told her didn't know. had BAILEY, J., concurs. needed."). much I no clue how ROBB, J., case, I with the opinion. concurs with On the facts of this concur *11 had no to ad- majority in- about the amount of
vise they needed and the trial court
surance judgment for
properly granted summary appellees.
Syed TAJUDDIN, Appellant-Petitioner,
SANDHU PETROLEUM CORPO 3, Appel
RATION NUMBER
lee-Respondent.
No. 45A03-0907-CV-338. Appeals
Court of of Indiana. Feb. Schuster, Braatz, Patrick A. David E. Point, IN, Attorneys
Crown for Appellant. Stochel, Point, IN, Robert E. Crown Attorney Appellee. for OPINION MAY, Judge.
Syed Tajuddin purchased property by owned Corporation Sandhu Petrolenm petitioned Number 3 at a tax sale. He deed, objected. tax and Sandhu Tajuddin's trial court denied petition, find- ing he give proper did not notice to San- dhu and Sandhu was entitled to equitable relief. The court's conclusions supported evidence, notice are not equitable but Sandhu is entitled to relief. Therefore, we affirm. AND
FACTS PROCEDURAL HISTORY Navdeep Singh and her husband own began purchas- Sandhu. Sandhu