                                                                  Sep 28 2015, 9:19 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Richard Wayne Greeson                                     Elizabeth J. Wysong Berg
Connersville, Indiana                                     Goodin Abernathy, LLP
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael R. Pike, and Chassidy                             September 28, 2015
L. Pike,                                                  Court of Appeals Case No.
Appellants-Plaintiffs,                                    16A05-1501-CT-27
                                                          Appeal from the Decatur Circuit
        v.                                                Court
                                                          The Honorable John A. Westhafer,
Conestoga Title Insurance Co.,                            Judge
Appellee-Defendant.                                       Trial Court Cause No.
                                                          16C01-0902-CT-44



Brown, Judge.




Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015              Page 1 of 9
[1]   Michael and Chassidy Pike appeal the trial court’s grant of summary judgment

      in favor of Conestoga Title Insurance Company. The Pikes raise two issues,

      which we consolidate and restate as whether the trial court erred in granting

      Conestoga’s summary judgment motion. We affirm.


                                       Facts and Procedural History

[2]   On December 31, 2003, the Pikes purchased a home in Greensburg for $82,000.

      They secured the loan used to purchase the house by executing a mortgage in

      favor of First Franklin Financial Corporation. Conestoga issued a title

      insurance policy to the Pikes on January 13, 2004. The policy provides in

      relevant part as follows:

              3. Notice of Claim to be Given to Insured Claimant


              The insured shall notify the company promptly in writing . . . in
              case knowledge shall come to an insured hereunder of any claim
              of title or interest which is adverse to the title of the estate or
              interest, as insured, and which might cause loss or damage for
              which the Company may be liable by virtue of policy . . . . If
              prompt notice shall not be given to the Company, then as to the
              insured all liability of the Company shall terminate with regard to
              the matter or matters for which prompt notice is required;
              provided however, that failure to notify the Company shall in no
              case prejudice the rights of any insured under this policy unless
              the Company shall be prejudiced by failure and then only to the
              extent of the prejudice.


      Appellant’s Appendix at 176. The policy defines knowledge as “actual

      knowledge, not constructive knowledge or notice which may be imputed to an

      insured by reason of the public records . . . .” Id.
      Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015   Page 2 of 9
[3]   First Franklin subsequently sold and assigned the Pikes’ mortgage to Wells

      Fargo Bank, which failed to record the assignment in the Decatur County

      Recorder’s Office. Wells Fargo contracted with HomEq Servicing to service

      the mortgage and manage the escrow account from which taxes on the property

      were to be paid.


[4]   In June 2006, Connersville attorney Richard Wayne Greeson sent the Pikes and

      First Franklin a legal notice explaining that Shammah Investments, LLC, had

      purchased the Pikes’ home for $233.40 at an October 2005 tax sale for the

      nonpayment of real estate taxes. Greeson, his wife, and another family

      member owned Shammah, which was in the business of purchasing property at

      tax sales. The legal notice advised the Pikes that they could redeem their

      property by paying the tax bill and fees by the October 6, 2006 redemption

      period deadline. The Pikes immediately contacted HomEq, whose

      representative informed them that their taxes had been paid and that they could

      ignore the notice. The Pikes did not notify Conestoga.


[5]   In November, 2006, following the expiration of the redemption period, the

      Pikes received a second notice of the tax sale, which advised them that

      Windgate LLC intended to seek a tax deed on their property. The notice also

      advised the Pikes that they had thirty days to file a written objection to the

      petition with the court. Greeson, who owned Windgate with his wife, prepared

      this notice as well. The Pikes again contacted HomEq and were told that all the

      taxes due on the home had been paid and that they could ignore the notice.

      The Pikes did not notify Conestoga.

      Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015   Page 3 of 9
[6]   On November 29, 2006, the Decatur Circuit Court ordered the County Auditor

      to execute and deliver a tax deed on the Pikes’ home to Windgate Properties.

      Three months later, in February 2007, the Pikes were notified that their home

      had been deeded out of their name and that they no longer owned it.


[7]   The Pikes retained attorney Greeson to represent them in a claim against

      Conestoga, HomEq, and Wells Fargo and subsequently learned that it was a

      May 23, 2003, special assessment that had remained unpaid and led to the sale

      of their home for a tax delinquency.1 In April 2007, Greeson sent a letter to

      Conestoga advising the title company that the Pikes had lost their home

      because Conestoga had failed to include in its title search the special assessment

      that was recorded in May 2003. Greeson further explained that the Pikes had

      not received any delinquency notices after they purchased the property because

      all tax notices had been sent to the mortgagee. Greeson advised Conestoga that

      the Pikes had suffered a total loss of their $82,000 property as well as $27,333 in

      attorney fees.


[8]   Two months later, Conestoga responded that it had completed its research and

      review on the Pikes’ claim. Specifically, Conestoga pointed out that the tax

      bills were being sent directly to the Pikes, and, in fact, Greeson, as the



      1
        The Pikes signed an Informed Consent for Attorney Representation in connection with Greeson’s
      representation of them in this matter wherein they averred as follows: “We are fully informed that attorney
      Wayne Greeson represented and has an ownership interest in Windgate Properties, LLC, the company that
      obtained the tax deed on our property.” Appellant’s Appendix at 257. They further averred that they were
      fully satisfied with Greeson’s representation of their legal interests in their claim.



      Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015                      Page 4 of 9
       registered agent for both the LLC that purchased the Pikes’ home and the LLC

       that held current title to the property, could not claim that the Pikes did not

       have notice of the sale or redemption where he was the attorney of record who

       served the notices on them. Conestoga further explained that it was denying

       the Pikes’ claim because they violated the title insurance policy by failing to

       notify Conestoga when they received the first notice of the tax sale and then

       again when they received the second notice of the tax sale deed.


[9]    In April 2009, the Pikes filed an amended complaint against Conestoga,

       HomEq, and Wells Fargo. The counts against Conestoga alleged breach of

       contract as well as breach of the insurer’s duty of good faith and fair dealing.

       Specifically, the Pikes alleged that Conestoga failed to “uncover the Special

       Assessment and wrongfully failed and refused to satisfy the Pikes’ claim.”

       Appellant’s Appendix at 25. Conestoga responded to the Pikes’ complaint with

       a summary judgment motion wherein it argued that the Pikes voided their title

       insurance policy when they failed to notify Conestoga about the tax sale and

       that it did not act in bad faith.


[10]   Following a hearing, the trial court granted Conestoga’s summary judgment

       motion on December 13, 2010. Specifically, the trial court concluded as

       follows:


               IT IS THEREFORE ORDERED that Defendant, Conestoga
               Title Insurance Co., is entitled to entry of judgment that Michael
               and Chassidy Pike are not entitled to any coverage under their
               owners’ title insurance policy due to the failure of the Pikes to
               provide Conestoga with reasonable notice and Conestoga’s

       Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015   Page 5 of 9
               resulting prejudice and that Conestoga did not act in bad faith in
               the handling and decision to deny the Pike’s claim.


       Id. at 14.


[11]   The parties filed a Joint Stipulation of Dismissal with Prejudice of Bank

       Defendants in December 2014, and the trial court issued an order dismissing

       the bank defendants and disposing of all claims as to all parties. The Pikes

       appeal the trial court’s grant of summary judgment in favor of Conestoga.


                                                    Discussion

[12]   The issue is whether the trial court erred in granting summary judgment in

       favor of Conestoga. We review an appeal of a trial court’s ruling on a summary

       judgment motion using the same standard applicable in the trial court. Hughley

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

       only if the designated evidence reveals no genuine issue as to any material fact

       and the moving party is entitled to a judgment as a matter of law. Perdue v.

       Gargano, 964 N.E.2d 825, 831 (Ind. 2012). All facts and reasonable inferences

       drawn from the evidence designated by the parties must be construed in the

       light most favorable to the non-moving party. Id.


[13]   Generally the interpretation of an insurance policy presents a question of law

       and is thus appropriate for summary judgment. Safe Auto Ins. Co. v. Enterprise

       Leasing Co. of Indianapolis, Inc., 889 N.E.2d 392, 304 (Ind. Ct. App. 2008), reh’g

       denied. A contract for insurance is subject to the same rules of interpretation as

       are other contracts. Id. If the language in the insurance policy is clear and

       Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015   Page 6 of 9
       unambiguous, then it should be given its plain and ordinary meaning. Id.

       Further, although findings and conclusions by the trial court are not required,

       they offer valuable insight into the rationale for the judgment and facilitate our

       review. Spudich v. N. Ind. Pub. Serv. Co., 745 N.E.2d 281, 290 (Ind. Ct. App.

       2001), reh’g denied, trans. denied.


[14]   The trial court explained that it granted summary judgment in favor of

       Conestoga because the Pikes failed to provide Conestoga with notice of their

       claim as required by the insurance policy and Conestoga did not act in bad faith

       in denying it. The notice requirement is material and of the essence in

       insurance contracts. Askren Hub States Pest Control Servs., Inc. v. Zurich Ins. Co.,

       721 N.E.2d 270, 277 (Ind. Ct. App. 1999). Therefore, the duty to notify an

       insurance company of potential liability is a condition precedent to the

       company’s liability to the insured. Id. Noncompliance with notice of claim

       provisions resulting in an unreasonable delay triggers a presumption of

       prejudice to the insured’s ability to prepare an adequate defense. Id. at 278.


[15]   The notice provision in this case requires the insured to notify Conestoga

       promptly in writing “in case knowledge shall come to insured . . . of any claim

       of title or interest which is adverse to the title of the estate or interest . . . and

       which might cause loss of damage for which the Company might be liable by

       virtue of the policy.” Appellant’s Appendix at 176. The policy defines

       knowledge as actual knowledge.




       Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015      Page 7 of 9
[16]   In this case, the designated evidence reveals that in June 2006, the Pikes

       received a legal notice advising them that their home had been purchased at a

       tax sale for the nonpayment of real estate taxes and that they had until October

       6, 2006 to redeem their property. Again, in November 2006, the Pikes received

       a second notice of the tax sale advising them that Windgate intended to seek a

       tax deed on their property. The notice also advised them that they had thirty

       days to file a written objection with the court.


[17]   Despite these two notices which were given directly to the Pikes and advised

       them of interests adverse to the title of their estate which might cause loss for

       the insurance company, the Pikes failed to promptly notify Conestoga. The

       Pikes clearly failed to comply with the notice provision of their Conestoga

       policy.


[18]   To the extent the Pikes argue that they did not have actual knowledge of their

       claim until they hired Greeson in April 2007 and discovered that the tax

       deficiency resulted from the failure to pay a 2003 special assessment, we note

       that the contract requires no such specificity. Rather, the contract requires only

       notice of an adverse claim that might cause the insurance company to be liable.

       The Pikes had such knowledge as early as June 2006 and then again in

       November 2006. Under the terms of the policy, the Pikes were required to

       notify Conestoga at those times.


[19]   We further note that to the extent the Pikes argue that they did not have

       knowledge of their claim because they are unsophisticated, we note that


       Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015   Page 8 of 9
       insureds have a duty to read and to know the contents of their insurance

       policies. See Safe Auto, 889 N.E.2d at 397.


                                                    Conclusion

[20]   For the foregoing reasons, we affirm the trial court’s order entering summary

       judgment in favor of Conestoga.


[21]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 16A05-1501-CT-27 | September 28, 2015   Page 9 of 9
