MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     May 11 2017, 7:33 am

court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Michael N. Red                                          Douglas B. Bates
John J. Morse                                           Neal Bailen
Morse & Bickel, P.C.                                    Chelsea Stanley
Indianapolis, Indiana                                   Stites & Harbison PLLC
                                                        Jeffersonville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven J. Svabek, D.O., et al.,                         May 11, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        41A05-1610-PL-2271
        v.                                              Appeal from the Johnson Superior
                                                        Court
Lancet Indemnity Risk                                   The Honorable Marla K. Clark,
Retention Group, Inc.,                                  Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        41D04-1401-PL-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017    Page 1 of 17
                                       Statement of the Case
[1]   Steven J. Svabek, D.O., appeals the trial court’s entry of summary judgment in

      favor of Lancet Indemnity Risk Retention Group, Inc. (“Lancet”) on Lancet’s

      complaint seeking rescission of Svabek’s medical malpractice insurance policy.

      Svabek presents three issues for our review, but we address a single dispositive

      issue, namely, whether the trial court erred when it entered summary judgment

      for Lancet on its claim for rescission of the policy. We affirm.


                                 Facts and Procedural History
[2]   The trial court’s findings set out the relevant facts and procedural history as

      follows:

              1. Dr. Svabek is an orthopedic surgeon residing in Boca Raton,
              Florida. Dr. Svabek previously practiced medicine in the State of
              Indiana. (Amended Complaint).

              2. Lancet is an insurance company organized under the laws of
              the State of Nevada with its corporate office in Las Vegas,
              Nevada, and its executive office in Tampa, Florida. (Amended
              Complaint).

              3. On or about December 7, 2012, and in consideration of a
              premium payment made contemporaneously by Dr. Svabek
              totaling $68,040.00, the parties entered into a policy of
              physician’s professional liability insurance, policy number
              LI09121000182 (the “Policy”).

              4. The Effective Date of the policy is December 7, 2012, with a
              Retroactive Date of December 7, 2010. The Policy is a “Tail
              Policy” only with no prospective coverage.


      Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 2 of 17
        5. The Policy Period is December 7, 2012 through December 7,
        2013. (Lancet’s Ex. A).

        6. The Policy only covers an Occurrence on or after December 7,
        2010 [the Retroactive Date] and before December 7, 2012 which
        was first made against Dr. Svabek and reported to Lancet
        between December 7, 2012 and December 7, 2013 [the Policy
        Period]. (Lancet’s Ex. A; Lancet’s Ex. A-1; Lancet’s Ex. A-2).

        7. The coverage provided by the Policy is subject to a number of
        exclusions, including the following:

        “[Lancet Indemnity is] not obligated to defend or pay any
        Damages, judgments, settlements, loss, indemnity or Medical
        Payments on account of any Claim:

        (a) based on, arising out of, or in any way involving any
        Occurrence, fact, circumstance, or situation:

                1. that was the subject of written notice given under
                any prior policy unless such prior policy was one of
                our policies and providing that the Occurrence
                happened subsequent to the Retroactive Date of this
                Policy;

                2. that was the subject of any prior or pending written
                demand for monetary damages, administrative or
                arbitration proceeding or civil or criminal litigation
                against any Insured, or the same or substantially the
                same fact, circumstance, or situation underlying
                or alleged in the prior matter, which existed prior to
                the initial effective date of the Policy Period;

                3. that was reported in the Application or was
                identified in any summary or statement of Claims or
                potential Claims submitted in connection with the
                Application;

Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 3 of 17
                4. that was reported to any other source from which
                payment might be made before the initial effective
                date of the Policy Period of the first policy that we
                issue to you;

                5. of which any Insured had knowledge prior to the
                inception of the first insurance policy issued to you
                by [Lancet Indemnity] and continuously renewed by
                [Lancet Indemnity] if such knowledge would cause a
                reasonable person to believe that a Claim might be
                made; or

                6. arising out of Professional Services rendered prior
                to the Retroactive Date of this Policy.[”]

                (Lancet’s Ex. A-1).

        8. In entering the contract for the Policy, on December 7, 2012,
        Dr. Svabek completed and submitted an application to Lancet.
        In that application, Dr. Svabek confirmed, among other things,
        that he had no known potential or anticipated losses and that no
        prior carrier had declined or refused coverage for a medical
        incident. (Lancet’s Ex. A-5).

        9. The Policy states that Lancet relied upon the statements made
        by Dr. Svabek in his application for insurance and that Dr.
        Svabek warrants those statements are true:

        “In issuing this Policy, [Lancet Indemnity] relied upon the
        statements and representations in the Application. The Insureds
        warrant that all such statements and representations are true and
        deemed material to the acceptance of the risk or the hazard
        assumed by [Lancet Indemnity] under this Policy.[”]
        (Lancet’s Ex. A-1).


                                               ***

Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 4 of 17
        14. Subsequent to entering into the Policy, the following three
        (3) matters (the “Matters”) were brought to the attention of
        Lancet for which Dr. Svabek asserts coverage is owed:

                (a) On August 15, 2012, Ms. Robin Sykes and Mr.
                Thomas Williams (“Sykes and Williams”) filed a
                proposed complaint (the “Sykes/Williams Matter”)
                against Dr. Svabek with the Indiana Department of
                Insurance (“IDOI”). In the proposed complaint,
                Sykes and Williams allege harm resulting from
                surgeries performed by Dr. Svabek on or about
                February 16, 2009, March 22, 2010, December 20,
                2010, and March 4, 2011. (Lancet’s Ex. D).

                (b) On November 30, 2012, Ms. Sharon Pettigrew
                (“Ms. Pettigrew”), as Administratrix of the Estate of
                Mr. John Austin, filed a proposed complaint (the
                “Pettigrew Matter”) with the IDOI. In the proposed
                complaint, Ms. Pettigrew alleges harm resulting from
                medical care provided by Dr. Svabek on or about
                December 8, 2010. (Lancet’s Ex. I).

                (c) On February 5, 2013, Ms. Tamara Nardini (“Ms.
                Nardini”), individually and on behalf of her minor
                son, Matthew Nardini, filed a lawsuit (the “Nardini
                Matter”) against Dr. Svabek in the Morgan County
                Superior Court. Ms. Nardini alleges harm resulting
                from medical care provided by Dr. Svabek on or
                about February 9, 2011 and February 24, 2011.
                (Lancet’s Ex. K).

        15. On August 28, 2012, the Indiana Patient’s Compensation
        Fund ("PCF") through the IDOI, sent notice of the
        Sykes/Williams Matter to Dr. Svabek. (Lancet’s Ex. E).

        16. On November 20, 2012, counsel for Ms. Sykes and Mr.
        Williams sent the Proposed Complaint directly to Evanston

Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 5 of 17
        Insurance, the insurance company that provided a medical
        malpractice policy that covered Dr. Svabek for the period of
        January 12, 2010 until January 12, 2011. (Lancet’s Ex. F-1;
        Lancet’s Ex. F-2).

        17. On November 20, 2012, a senior claims examiner with
        Markel Corporation, a company acting as claims manager for
        Evanston Insurance, sent Dr. Svabek the correspondence
        and Proposed Complaint that it received from the lawyer
        representing Sykes/Williams. (Lancet’s Ex. F-1).

        18. On December 4, 2012, Markel sent correspondence to Dr.
        Svabek advising that no coverage was available under the
        Evanston policy for the Sykes/Williams Proposed Complaint
        because the Evanston policy lapsed on January 12, 2011 and thus
        would not cover the Proposed Complaint filed on August 15,
        2012. (Lancet’s Ex. F-3).

        19. The Markel December 4, 2012 denial letter was sent to Dr.
        Svabek by certified mail. It was also sent to Dr. Svabek by email
        to svabek.steve@gmail.com. (Id.)

        20. Dr. Svabek admits that his email address in 2012 was
        svabek.steve@gmail.com, which is the email address where the
        denial letter was sent. (Lancet’s Ex. G).

        21. Markel’s records reflect that the email sent to
        svabek.steve@gmail.com was successfully delivered on
        December 4, 2012. (Lancet’s Ex. F-3).

        22. The Markel denial letter was also sent by mail and email to
        Susan Cline, an attorney previously hired by Markel to represent
        Dr. Svabek in a separate claim. (Id.; Lancet’s Ex. F-4).

        23. On December 7, 2012, three days after Evanston sent its
        denial of coverage to Dr. Svabek by certified mail and by email,
        Dr. Svabek completed and submitted an application to Lancet for
Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 6 of 17
        medical malpractice insurance coverage. In that application, Dr.
        Svabek confirmed, among other things, that he had no known
        potential or anticipated losses and that no prior carrier had
        declined or refused coverage for a medical incident. (Lancet’s
        Ex. A-5).

        24. On December 18, 2012, Ms. Sykes and Mr. Williams filed a
        complaint for damages against Dr. Svabek in the Johnson
        Superior Court. (Lancet’s Ex. H).

        25. Lancet was put on notice of the claims being asserted by
        Sykes/Williams and retained separate counsel to represent Dr.
        Svabek in the Johnson Superior Court action, subject to a
        reservation of rights. (Lancet’s Ex. A).

                                               ***

        28. The Policy excludes coverage for any claim that was the
        subject of an administrative proceeding, civil litigation or written
        demand for damages which existed prior to the Policy’s Effective
        Date of December 7, 2012. (Lancet’s Ex. A-1).

        29. On November 30, 2012, Ms. Pettigrew, as Administratrix of
        Mr. Austin’s Estate, filed a proposed medical malpractice
        complaint against Dr. Svabek with the IDOI under the provisions
        of the Indiana Medical Malpractice Act (the “Pettigrew Proposed
        Complaint”). (Lancet’s Ex. I).

        30. The Pettigrew Proposed Complaint alleges Dr. Svabek
        rendered medical care and treatment to Mr. Austin from
        December 8, 2010 to January 6, 2011 that fell below the
        appropriate standard of care. (Id.).

        31. On December 10, 2012, Ms. Pettigrew filed a complaint
        against Dr. Svabek in the Marion Superior Court, under Cause
        No. 49D05-1212-CT-047168. (Lancet’s Ex. J).


Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 7 of 17
              32. Lancet was put on notice of Ms. Pettigrew’s lawsuit and
              retained separate counsel to represent Dr. Svabek in the Marion
              County Court action, subject to a reservation of rights. (Lancet’s
              Ex. B; Lancet’s Ex. A).

                                                     ***

              40. Lancet would have declined to issue the Policy or would
              have offered a policy to Dr. Svabek on much different terms if
              Dr. Svabek had disclosed in his application the existence of the
              Sykes/Williams claim. (Lancet’s Ex. A).

              41. On January 24, 2014, Lancet filed three separate complaints
              for declaratory judgment in the Morgan, Marion and Johnson
              County courts asking for a determination as to whether
              Lancet owed coverage to Dr. Svabek for malpractice claims
              pending in each of those respective courts. . . .

                                                     ***

              45. The three actions were consolidated in the Johnson County
              Superior Court on August 18, 2015.

              46. Lancet filed its amended complaint on August 27, 2015. The
              amended complaint seeks a declaration that Lancet is entitled to
              rescind the insurance policy it issued to Dr. Svabek. In the
              alternative, the amended complaint seeks a declaration that Dr.
              Svabek is not entitled to coverage as to the three medical
              malpractice claims.


      Appellant’s App. Vol. II at 19-27.


[3]   On February 22, 2016, Lancet moved for summary judgment. Following a

      hearing, the trial court concluded in relevant part as follows:



      Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 8 of 17
        6. Lancet is entitled to rescind the Policy because Lancet relied
        on false and material representations in Dr. Svabek’s insurance
        application. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664,
        672 (Ind. 1997) (An insurance policy is “voidable at the
        insurance company’s option” if the insurer relies on a “material
        misrepresentation or omission of fact in an insurance
        application.”)

        7. Insurers “rely on the truthfulness and completeness of the
        information on the application in assessing whether to issue a
        policy and on what terms.” Roe v. Sewell, 128 F.3d 1098,
        1103 (7th Cir. 1996); see also Guzorek, 690 N.E.2d at 672
        (rescission “protects the insurer’s right to know the full extent of
        the risk it undertakes when an insurance policy is issued”).

        8. Dr. Svabek’s insurance application erroneously stated that no
        prior insurance carrier had refused or declined to issue coverage
        regarding any medical incident or threat of claim. That false
        statement was contained in the “Statement of No Known
        Claims/Losses” that Dr. Svabek completed and submitted to
        Lancet on December 7, 2012.

        9. Dr. Svabek’s prior insurance carrier denied coverage to Dr.
        Svabek for the Sykes/Williams claim pursuant to a denial letter
        issued on December 4, 2012.

        10. Dr. Svabek’s representation that a prior carrier had not
        previously denied coverage, whether intentional or not, was false.
        Dr. Svabek’s failure to disclose a known claim entitles Lancet to
        rescind the Policy.

        11. Dr. Svabek had prior knowledge of the Sykes/Williams
        malpractice claim based on multiple notifications sent to him by
        various means, from the IDOI and his prior insurance carrier.
        Dr. Svabek’s prior knowledge is supported by 1) the letter sent to
        him by the Department of Insurance on August 28, 2012, 2) the
        notice sent to him by Markel on November 20, 2012, advising
Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 9 of 17
        him of the Sykes/Williams Proposed Complaint, 3) the denial
        letter sent to him on December 4, 2012, by certified mail, and 4)
        the denial letter sent to him on December 4, 2012, by email.

        12. Dr. Svabek admitted that the Markel denial letter was sent to
        the exclusive email address he used in December 2012. That
        email, as well as the letters sent to Dr. Svabek by certified mail
        and ordinary mail, create a presumption of delivery that Dr.
        Svabek has not rebutted. E.g., Conrad v. Universal Fire & Cas. Ins.
        Co., 686 N.E.2d 840, 843 (Ind. 1997).

                                               ***

        14. Dr. Svabek submitted his application on December 7, 2012.
        He provides no explanation for why he suddenly decided to
        obtain malpractice insurance three days after his prior carrier sent
        the denial email. . . .

        15. Despite having knowledge of the claim, Dr. Svabek did not
        disclose the Sykes/Williams Proposed Complaint in the
        December 7, 2012, application and affirmatively swore there
        were no pending claims against him.

        16. False representations warrant rescission “regardless of
        whether the misrepresentation was innocently made or made
        with fraudulent design” because innocent misrepresentations are
        “just as injurious as intentional fraud.”. . . Thus, Dr. Svabek’s
        subjective intent in providing the false information to Lancet
        does not impact whether rescission is appropriate.

        17. The information that Dr. Svabek did not disclose in his
        insurance application was material. A representation in an
        application for insurance is deemed material if the facts
        represented reasonably enter into and influence the insurer’s
        decision whether to issue the policy or charge a higher
        premium. . . .


Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 10 of 17
        18. Lancet would have either declined to issue the Policy or
        offered the Policy to Dr. Svabek on different terms if Dr. Svabek
        had provided truthful information in the Statement of No Known
        Claims. Chris Teter’s affidavit is sufficient under Indiana law to
        establish that Dr. Svabek’s failure to inform Lancet of the
        Sykes/Williams Proposed Complaint was material to Lancet’s
        decision to issue the Policy. . . .

        19. Moreover, the unambiguous language of the Policy itself
        “deem[ed] material to the acceptance of the risk” the
        misrepresentations at issue.

        20. There can be no reasonable difference of opinion that
        information regarding a prior carrier’s previous denial of
        coverage for an existing claim is material to an insurer’s decision
        to issue coverage. . . .

        21. Accordingly, Dr. Svabek’s untruthful statement entitles
        Lancet to summary judgment in its favor as to its request for a
        judgment declaring its right to rescind the Policy. The Court
        orders rescission of the Policy and that the parties be returned to
        their respective positions prior to the Policy. Lancet is entitled to
        recover any amounts paid on Dr. Svabek’s behalf for his legal
        defenses during the terms of the Policy subject to any set-off for
        any premium payments on the Policy that Lancet received.

        22. Even if Lancet is not entitled to rescind the entire policy, Dr.
        Svabek still would not be entitled to coverage under the Lancet
        Policy for any of the three medical malpractice complaints.
        Several unambiguous exclusions apply.


Id. at 29-33 (emphasis original). In the alternative, the trial court also

concluded that Svabek failed to timely make deductible payments to Lancet,

which “operate[d] to exclude any coverage obligation as to” the three

malpractice claims against Svabek. Id. at 36. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 11 of 17
                                    Discussion and Decision
[4]   Our standard of review is clear. “We first observe that a trial court’s order

      granting summary judgment comes to us ‘cloaked with a presumption of

      validity.’” DiMaggio v. Rosario, 52 N.E.2d 896, 903 (Ind. Ct. App. 2016)

      (internal citations omitted). Further,


              [w]e review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving
              party is entitled to judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).




      Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 12 of 17
      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley). However, we will affirm the “trial court’s entry of summary

      judgment if it can be sustained on any theory or basis in the record.” DiMaggio,

      52 N.E.3d at 904.


[5]   In his brief on appeal, Svabek contends that the trial court erred when it entered

      summary judgment based on his failure to pay his deductible within ten days

      and based on the policy exclusions with regard to the three medical malpractice

      claims he had submitted to Lancet. Svabek also contends that the trial court

      erred when it entered summary judgment in favor of Lancet because genuine

      issues of material fact exist regarding whether Lancet is entitled to rescission of

      the contract. Again, the trial court concluded that Lancet was entitled to

      rescind the policy, as a matter of law, because of two misrepresentations made

      by Svabek on his application, namely, that he had no known claims pending

      against him and that he had not previously been denied coverage for a claim.

      Because the trial court concluded that Lancet was entitled to summary

      judgment on the rescission issue alone, and because, as we explain below,

      Svabek has not met his burden to prove that the court erred on that issue, we

      need not address the alternative grounds for summary judgment.


[6]   As this court has held,


              [f]raud in the inducement of a contract is a proper basis for
              rescission. Hart v. Steel Prods., Inc., 666 N.E.2d 1270 (Ind. Ct.
              App. 1996), trans. denied. The remedy of contract rescission
              functions to restore the parties to their precontract position, that
              is, the status quo. Stevens v. Olsen, 713 N.E.2d 889 (Ind. Ct. App.

      Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 13 of 17
              1999), trans. denied. A request for rescission of a contract is
              addressed to the sound discretion of the trial court. Barrington
              Management Co., Inc. v. Paul E. Draper Family Ltd. Partnership, 695
              N.E.2d 135 (Ind. Ct. App. 1998). The party seeking rescission
              bears the burden of proving his right to rescission and his ability
              to return any property received under the contract. Id. On the
              other hand, the party appealing the trial court’s grant of
              rescission has the burden of demonstrating that the trial court’s
              decision was erroneous. Id. Rescission is appropriate where the
              party seeking rescission is not in default and the defaulting party
              can be restored to the same condition he occupied before the
              making of the contract. Id.

                                                     ***

              . . . [T]he rescission of a contract requires affirmative action
              immediately upon the discovery of the fraud. INB Nat. Bank v.
              Moran Elec. Service, Inc., 608 N.E.2d 702 (Ind. Ct. App. 1993),
              trans. denied. One who asks a court’s aid in compelling the
              rescission of a contract must show that he or she exercised
              reasonable diligence in ascertaining the facts and thereafter
              promptly sought rescission within a reasonable time after
              discovering the fraud. Id. The question whether the party
              seeking rescission acted within a reasonable time is ordinarily a
              question of fact, but becomes a question of law where the facts
              have been ascertained. The determination of whether a delay in
              seeking rescission results in waiver depends on whether the delay
              was long enough to result in prejudice to the other party. Id.


      A.J.’s Automotive Sales, Inc. v. Freet,725 N.E.2d 955, 967-68 (Ind. Ct. App. 2000),

      trans. denied.


[7]   In support of his contention that the trial court erred when it concluded that

      Lancet was entitled to rescission of the policy on summary judgment, Svabek


      Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 14 of 17
      avers that genuine issues of material fact exist regarding (1) whether he had

      knowledge of “one or more” of the three medical malpractice claims against

      him “when he signed the Statement of No Known Claims/Losses” in his

      application for the policy and (2) whether “Lancet’s offer of rescission was

      reasonably prompt under the circumstances.” Appellant’s Br. at 16. But

      Svabek omits any argument with respect to the trial court’s conclusion that he

      also misrepresented in his application whether a “prior insurance carrier had

      refused or declined to issue coverage regarding any medical incident or threat of

      claim” and the court’s conclusion that a prior denial of coverage “is material to

      an insurer’s decision to issue coverage.” Appellant’s App. Vol. II at 30, 33.


[8]   The trial court concluded that Lancet was entitled to rescission based on each of

      Svabek’s misrepresentations in the application. On appeal, Svabek does not

      deny that he falsely claimed in his application that “no prior insurance carrier

      had refused or declined to issue coverage regarding any medical incident or

      threat of claim.” Id. at 30. And Svabek does not challenge the trial court’s

      conclusions that “a prior carrier’s previous denial of coverage for an existing

      claim is material to an insurer’s decision to issue coverage” and that,

      “[a]ccordingly, [his] untruthful statement entitles Lancet to summary judgment

      in its favor as to its request for a judgment declaring its right to rescind the

      Policy.” Id. at 33. Finally, Svabek makes no argument on appeal that Lancet

      did not “promptly s[eek] rescission within a reasonable time after discovering




      Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 15 of 17
       the fraud” with respect to the denial of coverage misrepresentation.1 Freet,725

       N.E.2d at 968.


[9]    In sum, Svabek has failed to “demonstrate [ ] the absence of any genuine issue

       of fact as to a determinative issue,” namely, that Lancet is entitled to rescission

       based on Svabek’s misrepresentation on his application for insurance regarding

       a prior denial of coverage. Hughley, 15 N.E.3d at 1003; and see Colonial Penn Ins.

       Co. v. Guzorek, 690 N.E.2d 664, 672 (Ind. 1997) (holding a material

       misrepresentation or omission of fact in an insurance application, relied on by

       the insurer in issuing the policy, renders the coverage voidable at the insurance

       company’s option). Again, we will affirm the trial court’s entry of summary

       judgment on any theory supported by the record. DiMaggio, 52 N.E.3d at 904.

       Svabek has not met his burden on appeal to persuade us that the trial court’s

       entry of summary judgment was clearly erroneous.2


[10]   Affirmed.




       1
         To the extent Svabek attempts to make that argument in his Reply Brief, it is well settled that a party may
       not raise an issue for the first time in a reply brief. See Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 n.6
       (Ind. 2001). Moreover, we note that Svabek does not direct us to any evidence in the record to show when
       Lancet first became aware that Svabek had lied in his application. Svabek maintains that Lancet was “on
       notice” about the misrepresentation with respect to known claims when it “began defending the Sykes and
       Williams Matter” on behalf of Svabek in December 2012 “or shortly thereafter.” Appellant’s Br. at 16. But
       Svabek does not explain how Lancet’s defense in that litigation tends to prove that Lancet knew about either
       of Svabek’s misrepresentations in his application at that time. And Svabek does not cite any evidence in the
       record to show when Lancet knew that Svabek had previously been denied coverage by another insurance
       carrier.
       2
         Because we affirm the trial court’s entry of summary judgment for Lancet, we need not address Svabek’s
       contention that the court erred when it struck several paragraphs from his proposed findings and conclusions.

       Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017                   Page 16 of 17
Riley, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 41A05-1610-PL-2271 | May 11, 2017   Page 17 of 17
