MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Feb 09 2018, 8:41 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
Brett M. Haworth                                         Rick L. Weil
David M. Henn                                            Reminger Co., L.P.A.
Henn Haworth Cummings & Page                             Indianapolis, Indiana
Greenwood, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ashley Poythress and                                     February 9, 2018
LaVenita Burnett,                                        Court of Appeals Case No.
Appellants-Plaintiffs,                                   49A05-1708-CT-1823
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Gary L. Miller,
Esurance Insurance Company,                              Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         49D03-1412-CT-39694



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018            Page 1 of 15
                               Case Summary and Issues
[1]   Ashley Poythress and LaVenita Burnett (collectively, “Appellants”) appeal the

      trial court’s entry of summary judgment in favor of Esurance Insurance

      Company. Appellants raise two issues for our review: 1) whether the trial court

      abused its discretion in denying Appellants’ motion to strike; and 2) whether

      the trial court erred in entering summary judgment in favor of Esurance.

      Concluding the trial court did not err, we affirm.



                            Facts and Procedural History
[2]   Esurance Insurance Company issued a car insurance policy to Poythress on

      January 28, 2013. The Esurance Policy Declarations page lists Poythress and

      her vehicle, a 2002 Buick Park Avenue, as covered under the insurance policy.

      On July 28, 2013, Poythress and her mother, LaVenita Burnett, were involved

      in a car accident in Cincinnati, Ohio. Poythress and Burnett were passengers in

      a friend’s vehicle that was struck by a car owned by Jonathan Tarter. The

      driver of Tarter’s vehicle fled the scene of the accident.


[3]   On December 5, 2014, Appellants filed their complaint for damages against

      Esurance and Tarter alleging that, among other things, Esurance breached the

      contract by failing to compensate the Appellants pursuant to the policy’s

      uninsured motorist coverage. On May 20, 2015, Esurance filed its motion for

      summary judgment arguing the policy provides no coverage to the Appellants

      under these facts, and, even if the policy did apply, Poythress rejected uninsured


      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 2 of 15
      motorist coverage. In support of its motion, Esurance designated the car

      insurance policy, the police report, an affidavit of an Esurance supervisor, the

      transcript of the sales call between Poythress and an Esurance representative,

      the Esurance Policy Viewer application, and an Indiana Auto Supplement. The

      Indiana Auto Supplement is an electronically signed document rejecting

      uninsured and underinsured motorists coverage. Next to the statements, “I

      wish to reject uninsured/underinsured motorists bodily injury coverage in its

      entirety[,]” and “I wish to reject uninsured motorist property damage coverage

      in its entirety[,]” are the initials “AP[.]” Appellants’ Appendix, Volume 2 at

      53. The document was electronically signed by “Ashley Poythress” on January

      28, 2013. Id.


[4]   On July 22, 2015, Appellants filed a motion to strike portions of the affidavit of

      the Esurance supervisor and a motion in opposition to Esurance’s motion for

      summary judgment. Appellants’ motion opposing summary judgment alleged

      the policy does provide coverage to the Appellants and that there was no valid

      rejection of uninsured motorist coverage under Indiana law. On August 11,

      2015, the trial court granted Esurance’s motion for summary judgment.

      Appellants now appeal.1




      1
       Appellants timely filed an appeal of the trial court’s summary judgment order on September 4, 2015. This
      court dismissed Appellants’ appeal concluding the trial court’s order was not a final judgment. Poythress v.
      Esurance Ins. Co., No. 49A05-1509-CT-1363 (Ind. Ct. App. Feb. 19, 2016). On July 6, 2017, the trial court
      entered default judgment against Tarter making the judgment a final judgment.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018           Page 3 of 15
                                 Discussion and Decision
                                        I. Motion to Strike
[5]   Appellants first allege the trial court abused its discretion by denying their

      motion to strike portions of the affidavit of Jennifer Patten, an Esurance

      supervisor. Patten’s affidavit states, in relevant part,


              3.       I have extensively reviewed the audio recording of
                       [Poythress’s] phone call from January 28, 2013 as well as
                       her online Esurance Policy application that she completed
                       on January 28, 2013 . . . .

              4.       Based on my review, I have reached the following
                       conclusions:

                       i)      Prior to calling Esurance to purchase insurance,
                               [Poythress] obtained a price quote online;

                       ii)     [Poythress] then called Esurance to gather
                               additional information and purchase insurance
                               coverage for her motor vehicle;

                       iii)    [Poythress] was fully advised of the coverage
                               options during her phone conference with the
                               Esurance sales agent. The sales agent reviewed all
                               the selected coverage options and the denied
                               coverage options;

                       iv)     Based on her coverage selections, [Poythress] was
                               advised that she had not selected uninsured motorist
                               coverage. The sales agent specifically informed
                               [Poythress] that she did not select uninsured
                               motorist coverage to which [Poythress] replied,
                               “OK”;

                       v)      [Poythress] completed the on-line application,
                               including submitting an electronic signature that
                               confirmed her acceptance of the policy terms, and a

      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 4 of 15
                               specific rejection of uninsured motorist coverage
                               option.

              5.       It is my professional opinion, based on my education,
                       training, and experience as a supervisor at Esurance
                       Insurance Company, as well as my personal knowledge of
                       the facts and evidence of this case, that [Poythress]
                       personally declined coverage for uninsured motorist
                       coverage both verbally during the recorded call, and by
                       virtue of her completed on-line application.


      Appellants’ App., Vol. 2 at 93-94. Appellants argue the trial court erred in

      failing to strike paragraphs 4v and 5.


[6]   We review a trial court’s evidentiary decisions for an abuse of discretion.

      McCutchan v. Blanck, 846 N.E.2d 256, 260 (Ind. Ct. App. 2006). A trial court

      abuses its discretion when its decision is clearly against the logic and effect of

      the facts and circumstances before the court. Id. Further, affidavits in support

      of a motion for summary judgment “shall be made on personal knowledge,

      shall set forth such facts as would be admissible in evidence, and shall show

      affirmatively that the affiant is competent to testify to the matters stated

      therein.” Ind. Trial Rule 56(E).


[7]   As to paragraph 4v, Appellants state there is “no foundation in the Affidavit

      that Ms. Patten saw or has any personal knowledge that [Poythress], herself,

      completed on-line documents, or that Ms. Patten has any sort of computer or

      special expertise that would allow her to know who completed online

      documents.” Appellants’ Brief at 9. However, Patten does not purport to have

      witnessed Poythress fill out the application. Patten’s affidavit unambiguously


      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 5 of 15
      states her opinion is based on her personal review of this case, including a

      review of the audio recording of the sales call and the online application.

      Additionally, we note the audio recording, reviewed by Patten, establishes that

      an Esurance sales agent reviewed Poythress’s insurance selections with her.


              Esurance [Agent]: I have the 25,000/50,000, property damage at
                                10,000, and then I got the comp [sic] and
                                collision deductibles at 500.

              [Poythress]:              Okay.

              ***

              Esurance [Agent]: The only thing that you did not select would
                                be medical payments, uninsured motorist
                                bodily injury, uninsured motorist property
                                damage, for right now, and no custom parts
                                and equipment for the vehicle itself. That’s
                                the only thing that you did not select today.

              [Poythress]:              Okay.



      Appellants’ App., Vol. 2 at 77-78. Poythress does not claim she did not make

      this phone call and this information, combined with Patten’s personal review of

      the other materials and her training and experience, is sufficient for her to

      competently testify about the matters contained in paragraph 4v. Thus, the trial

      court did not abuse its discretion in failing to strike this paragraph from the

      affidavit.


[8]   As to paragraph 5, Appellants assert Patten provided “expert testimony”

      without sufficient foundation to be qualified as an expert. Appellants’ Brief at


      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 6 of 15
       10. Simply put, Patten did not provide expert testimony or purport to do so;

       rather, Patten’s opinion is rationally based on her perception of the relevant

       materials regarding Poythress’s insurance and is helpful to determine a fact at

       issue—whether Poythress filled out the online application. Ind. Evidence Rule

       701. The trial court did not abuse its discretion in failing to strike this

       paragraph from Patten’s affidavit.2


                                      II. Summary Judgment
[9]    Appellants also allege the trial court erred in granting summary judgment in

       favor of Esurance. Specifically, Appellants argue Poythress did not reject

       uninsured motorist coverage in writing as required by Indiana Code section 27-

       7-5-2; therefore, by operation of law, the policy contains uninsured motorist

       coverage.3


[10]   We review the grant or denial of summary judgment de novo. Hughley v. State,

       15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment is appropriate if the

       designated materials show there is no genuine issue as to any material fact and

       the moving party is entitled to judgment as a matter of law. Sedam v. 2JR Pizza




       2
         Appellants also allege the Esurance Policy Viewer Application is hearsay. See Appellants’ App., Vol. 2 at
       95. On appeal, “[e]ach contention must be supported by citations to the authorities, statutes, and the
       Appendix or parts of the Record on Appeal relied on[.]” Ind. Appellate Rule 46(A)(8)(a). Appellants do not
       engage in any substantive hearsay analysis or point to any case law supporting their argument. “A party
       generally waives any issue for which it fails to develop a cogent argument or support with adequate citation
       to authority and portions of the record.” Romine v. Gagle, 782 N.E.2d 369, 386 (Ind. Ct. App. 2003), trans.
       denied. We find Appellants have waived review of this issue.
       3
        Indiana Code section 27-7-5-2(a) states “uninsured and underinsured motorist coverages must be provided
       by insurers . . . unless such coverages have been rejected in writing by the insured.”

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018         Page 7 of 15
       Enters., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). The moving party must first

       demonstrate the “absence of any genuine issue of fact as to a determinative

       issue . . . .” Hughley, 15 N.E.3d at 1003 (citation omitted). Then, the non-

       moving party must “come forward with contrary evidence” demonstrating an

       issue to be resolved by the trier of fact. Id. (citation omitted).


[11]   Appellants attempt to demonstrate a genuine issue of material fact regarding

       whether Poythress rejected uninsured motorist coverage by stating that

       “Poythress never signed any documents when purchasing her policy of

       insurance from Esurance. Poythress never reviewed nor finalized any

       documents online when purchasing her policy of insurance with Esurance.”

       Appellants’ Br. at 14. These assertions stem from Poythress’s deposition

       testimony.


                [Esurance]: How did you get the terms on what would be
                            covered and – well, you wanted everything covered.
                            How did you work that out; on the phone?

                [Poythress]: Yes, on the phone.

                [Esurance]: How many phone calls were there?

                [Poythress]: One.

                [Esurance]: There wasn’t a second call?

                [Poythress]: No.

                ***

                [Esurance]: Did you go on the computer and click on exactly
                            what you wanted and confirm it?


       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 8 of 15
                [Poythress]: No.

                [Esurance]: You never initiated or finalized this policy via
                            computer?

                [Poythress]: No.

                ***

                [Esurance]: So as you sit here today, you have no recollection of
                            ever entering any confirmation, finalization,
                            anything via computer for this insurance policy; is
                            that true?

                [Poythress]: That’s correct.

                [Esurance]: As far as you’re concerned, you had a phone call
                            and then Esurance sent you documents in the mail?

                [Poythress]: Yes.

                ***

                [Esurance]: So you never signed any documents from Esurance
                            where you actually signed and sent [the documents]
                            back?

                [Poythress]: No.



       Appellants’ App., Vol. 2 at 131-34.


[12]   In Hughley v. State, the State sought civil forfeiture of the defendant’s money and

       vehicle after he was convicted of dealing in cocaine. 15 N.E.3d at 1005. There,

       our supreme court held that the defendant’s self-serving affidavit denying the

       State’s allegations was sufficient to defeat the State’s motion for summary

       judgment. Id. However, Hughley did not overrule a line of cases which state a


       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 9 of 15
       party cannot create a genuine issue of material fact by submitting sworn

       testimony that contradicts his or her own prior testimony. 5200 Keystone Ltd.

       Realty, LLC v. Netherlands Ins. Comp., 29 N.E.3d 156, 163 (Ind. Ct. App. 2015),

       trans. denied.


[13]   In Gaboury v. Ireland Rd. Grace Brethren, Inc., 446 N.E.2d 1310 (Ind. 1983), a

       plaintiff submitted an affidavit in response to the defendant’s motion for

       summary judgment that directly contradicted statements the plaintiff had made

       in a previous deposition. Our supreme court held that the affidavit did not

       create a genuine issue of material fact and concluded that a party cannot create

       such an issue simply by submitting an affidavit contradicting his or her own

       prior testimony. Id. at 1314.


[14]   We applied this rule in Crawfordsville Square, LLC v. Monroe Guar. Ins. Co., 906

       N.E.2d 934, 939 (Ind. Ct. App. 2009), trans. denied, to resolve a conflict between

       an affidavit and a letter written by the plaintiff prior to litigation. There, we

       determined the property buyer could not create a genuine issue of material fact

       by designating an affidavit disclaiming knowledge of environmental

       contamination on the land that conflicted with the earlier letter he had written

       informing the seller of the contamination and the need for corrective action. Id.

       We disregarded the affidavit and held the plaintiff failed to establish a genuine

       issue of material fact. Id.


[15]   We have similar reason to disregard Poythress’s sworn testimony. Poythress’s

       deposition testimony stated she completed the entire insurance transaction


       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 10 of 15
during one phone call with Esurance. She testified that she never used a

computer or mailed documents to Esurance and she never signed or reviewed

any documents. However, Poythress’s testimony is undercut by the transcript

of her phone call with the Esurance agent and the Esurance Policy Viewer

Application. First, the transcript of the sales call between Poythress and the

Esurance agent strongly suggests this was not their first communication and

that Poythress took affirmative action in procuring insurance before the sales

call.


        Esurance [Agent]: All right. So I’m going to pull your quote
                          back up here. So did you get a chance to talk
                          to [LaVenita Burnett]?

        [Poythress]:              Yes.

        ***

        Esurance [Agent]: I have the 25,000/50,000, property damage at
                          10,000, and then I got the comp and collision
                          deductibles at 500.

        [Poythress]:              Okay.

        Esurance [Agent]: And I have emergency road service at $75 per
                          tow, maxing out at 450.

        [Poythress]:              Okay.

        ***

        Esurance [Agent]: The only thing that you did not select would be
                          medical payments, uninsured motorist bodily
                          injury, uninsured motorist property damage . . . .
                          That’s the only thing that you did not select
                          today.


Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 11 of 15
               [Poythress]:              Okay.



       Appellants’ App., Vol. 2 at 74, 77-78 (emphasis added). The transcript

       illustrates the sales agent reaffirming what Poythress has already selected, not

       asking her what insurance she desires; therefore, there must have been some

       prior action on Poythress’s part to procure insurance. Second, the Esurance

       Policy Viewer Application contains information that was not specifically given

       by Poythress over the phone to the Esurance agent, such as the make and

       model of her vehicle, her date of birth, marital status, and gender.4 Thus,

       Poythress’s sworn statement that the entire transaction occurred over a single

       phone call is not well taken.


[16]   Finally, Esurance submitted an Indiana Auto Supplement in support of its

       motion for summary judgment. This document is a rejection of uninsured

       motorist coverage and is electronically signed by “Ashley Poythress.”

       Appellants’ App., Vol. 2 at 53. Appellants make no challenge to this document

       other than to argue an electronic signature is not valid to reject uninsured

       motorist coverage.


[17]   Indiana’s Uniform Electronic Transactions Act (“UETA”) “applies to

       electronic records and electronic signatures that relate to a transaction.”




       4
        We also note the inconsistency with Appellants’ argument Poythress never signed any documents. If we
       were to embrace this argument, Poythress would have no insurance policy at all, let alone a claim to
       uninsured motorist coverage.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018    Page 12 of 15
       Indiana Code § 26-2-8-103(a). An “electronic record” means a “record created,

       generated, sent, communicated, received, or stored by electronic means.”

       Indiana Code § 26-2-8-102(9). An “electronic signature” is an “electronic

       sound, symbol, or process attached to or logically associated with an electronic

       record and executed or adopted by a person with the intent to sign the

       electronic record.” Indiana Code § 26-2-8-102(10). The UETA applies to

       transactions among parties that have agreed to conduct transactions

       electronically. A customer and a business are presumed to have agreed to

       conduct transactions electronically unless the governing documents of a

       business limit or prohibit such action or the business entity expressly states

       another method of conducting business. Indiana Code § 26-2-8-104(b). A

       signature may not be denied legal effect or enforceability solely because it is in

       electronic form. Indiana Code § 26-2-8-106(a). If the law requires a signature,

       the law is satisfied with respect to an electronic record if the electronic record

       includes an electronic signature. Indiana Code § 26-2-8-106(d). “An . . .

       electronic signature is attributable to a person if it was the act of the person.

       The act of the person may be proved in any manner . . . .” Indiana Code § 26-

       2-8-108(a).


[18]   Indiana law is clear that electronic signatures are given the same legal effect as

       all other types of signatures and Esurance submitted the Indiana Auto

       Supplement containing Poythress’s electronic signature. The document is dated

       January 28, 2013, the same date Poythress obtained her underlying insurance

       policy. Moreover, the Esurance agent on the sales call specifically reaffirmed to


       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 13 of 15
       Poythress that she had not selected uninsured motorist insurance. Poythress

       accepted that notion as correct, which is consistent with the uninsured motorist

       coverage rejection form. The Indiana Auto Supplement is a valid rejection, in

       writing, of uninsured motorist coverage.


[19]   Because we have determined the Indiana Auto Supplement is a valid rejection

       of uninsured motorist coverage by Poythress, Esurance met its initial burden of

       demonstrating the absence of any genuine issue of fact of a determinative issue.

       Hughley, 15 N.E.3d at 1003. The law, then, burdens Appellants to come

       forward with contrary evidence demonstrating a genuine issue to be determined

       by the trier of fact. Id. Appellants have failed to produce any evidence

       sufficient to show Poythress did not reject the coverage. Further, Appellants’

       argument Poythress did not agree to conduct transactions electronically does

       not create an issue of fact regarding whether she rejected the coverage.5 The

       trial court did not err in granting summary judgment in favor of Esurance.



                                                  Conclusion




       5
         We are equally unpersuaded by Appellants’ argument Esurance tendered two documents in discovery
       misspelling Poythress’s name as “Ashley Poyphress.” Appellants’ Br. at 13-15. Poythress’s deposition
       testimony that she knows the correct spelling of her name does not create a genuine issue of material fact that
       she nonetheless did reject uninsured motorist coverage.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018          Page 14 of 15
[20]   The trial court did not abuse its discretion in denying Appellants’ motion to

       strike or err in granting summary judgment in favor of Esurance. Accordingly,

       the judgment of the trial court is affirmed.


[21]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018   Page 15 of 15
