      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                 Dec 13 2018, 9:06 am
      court except for the purpose of establishing
                                                                                     CLERK
      the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                                    Court of Appeals
      estoppel, or the law of the case.                                               and Tax Court




      ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
      Mark C. Ladendorf                                        Ginny L. Peterson
      Timothy F. Devereux                                      Kightlinger & Gray, LLP
      Ladendorf Law                                            Indianapolis, Indiana
      Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Rebecca Harris and Boyd Harris,                          December 13, 2018
      Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                               18A-CT-964
              v.                                               Appeal from the Marion Superior
                                                               Court
      Safeco Insurance Company of                              The Honorable James A. Joven,
      Indiana,                                                 Judge
      Appellee-Defendant.                                      Trial Court Cause No.
                                                               49D13-1607-CT-26864



      Mathias, Judge.


[1]   Rebecca Harris (“Rebecca”) and Boyd Harris (“Boyd”) (collectively “the

      Harrises”) appeal from the Marion Superior Court’s grant of summary

      judgment in favor of Safeco Insurance Company of Indiana (“Safeco”) in the

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018                   Page 1 of 24
      Harrises’ complaint against Safeco seeking a declaratory judgment that they

      were entitled to insurance coverage under an umbrella policy issued by Safeco.

      On appeal, the Harrises claim that the trial court erred in granting summary

      judgment in favor of Safeco because there are genuine issues of material fact

      precluding summary judgment.


[2]   We affirm.


                                 Facts and Procedural History

[3]   The Harrises procured insurance coverage through agent Deborah Mock

      (“Mock”) of the Walker Agency (“the Agency”), an independent insurance

      agency. On March 3, 2014, the Agency provided Rebecca a quotation from

      Safeco for auto and home insurance after Rebecca had requested an insurer

      other than Travelers Insurance Company (“Travelers”), the insurer then

      providing the Harrises coverage through the Agency. The following month,

      Rebecca asked Mock if she could get a quote on an umbrella insurance policy.

      Mock provided Rebecca with quotes from both Travelers and Safeco.


[4]   Ultimately, the Harrises obtained via the Agency a watercraft policy (“the

      Watercraft Policy”) issued by Safeco. The Watercraft Policy had an effective

      date of October 29, 2014 to October 29, 2015, and contained uninsured/

      underinsured watercraft coverage. The Watercraft Policy had a limit of

      $500,000 for bodily injury for uninsured/underinsured watercraft.


[5]   The Harrises also obtained via the Agency an umbrella policy (“the Umbrella

      Policy”), which is at issue in the present case. The Harrises claim that they
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 2 of 24
      asked Mock to provide uninsured/underinsured watercraft coverage under the

      Umbrella Policy. However, the language of the Umbrella Policy provides

      coverage for uninsured/underinsured land vehicles, but not for

      uninsured/underinsured watercraft. The Umbrella Policy has a limit of

      $1,000,000.


[6]   On May 17, 2015, the Harrises were using one of their covered watercraft on

      Geist Reservoir in Marion County. Rebecca was injured when the Harrises’

      boat was struck by a boat operated by Lam Nguyen (“Nguyen”).

[7]   Nguyen admitted liability for the Accident, and his insurer paid the Harrises the

      policy limits of $300,000. Believing that Nguyen’s policy did not adequately

      cover their damages, the Harrises made a claim under the underinsured

      watercraft provision of their own Watercraft Policy. Safeco paid the Watercraft

      Policy’s $500,000 limit to the Harrises. Still believing that their injuries were not

      adequately redressed, the Harrises also asserted a claim of coverage under their

      Umbrella Policy. Although Mock initially indicated that the Umbrella Policy

      would provide coverage, Safeco denied coverage.


[8]   The Harrises filed a complaint for declaratory action and damages on July 28,

      2016, seeking a declaratory judgment that the boating accident fell within the

      coverage provided by the Umbrella Policy. Safeco filed its answer on September

      23, 2016. On December 27, 2016, Safeco filed a motion for summary judgment,

      arguing that the Harrises were not entitled to coverage under the language of

      the Umbrella Policy. The trial court granted the Harrises an extension of time


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 3 of 24
      in which to respond to Safeco’s motion, which they did on January 31, 2017.

      The trial court held a hearing on the motion for summary judgment on March

      14, 2018, at the conclusion of which the court took the matter under

      advisement. The trial court issued an order on April 3, 2018, granting Safeco’s

      motion for summary judgment. The Harrises now appeal.


                        Summary Judgment Standard of Review
[9]   The standard we apply upon review of a trial court’s order granting a motion

      for summary judgment is well settled:

              A trial court should grant a motion for summary judgment only
              when the evidence shows that there is no genuine issue as to any
              material fact and that the moving party is entitled to a judgment
              as a matter of law. The trial court’s grant of a motion for
              summary judgment comes to us cloaked with a presumption of
              validity. An appellate court reviewing a trial court summary
              judgment ruling likewise construes all facts and reasonable
              inferences in favor of the non-moving party and determines
              whether the moving party has shown from the designated
              evidentiary matter that there is no genuine issue as to any
              material fact and that it is entitled to judgment as a matter of law.
              But a de novo standard of review applies where the dispute is one
              of law rather than fact. We examine only those materials
              designated to the trial court on the motion for summary
              judgment. . . . We must affirm the trial court’s entry of summary
              judgment if it can be sustained on any theory or basis in the
              record.


      Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citations and

      internal quotations omitted).



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 4 of 24
                                      Discussion and Decision

[10]   The Harrises’ argument is twofold: they argue that the language of the

       Umbrella Policy is ambiguous as to whether it provides coverage for the boating

       accident and that this alleged ambiguity must be resolved in their favor. They

       also argue that Mock was an agent of Safeco with authority to bind Safeco and

       that Mock’s representations estop Safeco from denying coverage. We address

       these arguments in turn.

                               I. The Umbrella Policy is Unambiguous

[11]   The Harrises argue that the language of the Umbrella Policy is ambiguous and

       should be interpreted in their favor. We have explained before that:

               [i]t is well-established that the interpretation of an insurance
               policy is primarily a question of law for the court. Therefore, the
               interpretation of an insurance contract is . . . particularly well-
               suited for disposition by summary judgment.

               We review an insurance policy using the same rules of
               interpretation applied to other contracts, namely if the language
               is clear and unambiguous we will apply the plain and ordinary
               meaning. An insurance policy is ambiguous where a provision is
               susceptible to more than one interpretation and reasonable
               persons would differ as to its meaning. An ambiguity, however,
               does not exist merely because the parties favor different
               interpretations.

               The meaning of an insurance contract can only be gleaned from a
               consideration of all its provisions, not from an analysis of
               individual words or phrases. We must accept an interpretation of
               the contract language that harmonizes the provisions rather than
               the one which supports a conflicting version of the provisions.
               However, the power to interpret insurance contracts does not
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 5 of 24
                  extend to changing their terms, and we will not give insurance
                  policies an unreasonable construction to provide added coverage.


       Adkins v. Vigilant Ins. Co., 927 N.E.2d 385, 389 (Ind. Ct. App. 2010) (citations

       omitted), trans. denied.


[12]   In the present case, the Umbrella Policy provides in relevant part:


                                                     COVERAGES

                  PERSONAL LIABILITY

                  We will pay the ultimate net loss[1] in excess of the retained
                  limit[2] that the insured[3] is legally responsible for because of
                  covered bodily injury,[4] personal injury[5] or property damage[6]
                  caused by an occurrence.

                                                             ***



       1
         The Umbrella Policy defines the term “ultimate net loss” as “the amount paid or payable in settlement of
       the loss for which any insured is held liable by: (1) court judgment; or (2) compromise involving our written
       consent. All recoveries and salvage collected will be deducted from this amount.” Appellants’ App. Vol. 2., p.
       54 (bold in original). The Umbrella Policy also provides that “ultimate net loss” does not include “(1) loss
       expense or legal expenses (such as attorney’s fees and court costs); (2) salaries of employees; or (3) office
       expenses incurred by any insured, us, or any underlying carrier.” Id. (bold in original).
       2
         The Umbrella Policy defines the “retained limit” as “a. the limit of liability specified in the Schedule of
       Underlying Insurance of the Declarations for each underlying policy, plus the limit of any other underlying
       insurance collectible by the insured; or b. the amount shown under retained limit in the Declarations, as the
       result of an occurrence not covered by underlying policies of insurance.” Id. at 53 (bold in original).
       3
           Both Harrises are named insureds under the Umbrella Policy.
       4
        “‘Bodily injury’ means bodily harm, sickness or disease including resulting required care, loss of services
       and death.” Id. at 52 (bold in original).
       5
         “‘Personal injury’ means injury arising out of one or more of the following offenses: a. false arrest,
       detention or imprisonment, or malicious prosecution; b. libel, slander or defamation of character; or c.
       invasion of privacy, wrongful eviction or wrongful entry.” Id. at 53 (bold in original).
       6
           “‘Property damage’ means physical injury or destruction of tangible property including loss of its use.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018                     Page 6 of 24
                                           EXCLUSIONS

         This policy does not apply to any:

                                                  ***

         4. bodily injury or personal injury to you or any family member.

         5. bodily injury, personal injury or property damage:

             a. arising out of the ownership, maintenance, use, operation,
                loading or unloading of:

                                                  ***

                  (3) any watercraft while away from premises owned by
                      any insured if the watercraft is:

                      (a) powered by an inboard or inboard-outboard motor;

                      (b) a sailing vessel (with or without auxiliary power) of
                          26 feet or more in overall length;

                      (c) powered by one or more outboard motors with
                          more than 25 total horsepower; or

                      (d) a personal watercraft.7

                      (e) Unless, with respect to 5.a.(3)(a) through 5.a.(3)(d),
                          above, the watercraft is covered by underlying
                          insurance and:

                           i. coverage is stated and a premium is charged on
                              the Declarations of this policy; or




7
  “‘Personal watercraft’ means jet skis, wet bikes or other craft using a water jet pump powered by an
internal combustion engine as the primary source of propulsion.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018                 Page 7 of 24
                                ii. notice is given to us within forty-five days after
                                    acquisition of any newly acquired watercraft and
                                    an additional premium is charged.

                            (f) We will, however, cover any insured while
                                operating a borrowed or rented watercraft regardless
                                of size or horsepower with the express or implied
                                permission of the owner or other person having
                                lawful possession. The actual use must be within the
                                scope of that permission.


       Appellants’ App. Vol. 2, pp. 54–56 (italic emphasis added, bold in original).


[13]   The Harrises argue that an exception to exclusion 5 creates an ambiguity as to

       whether coverage exists under the Umbrella Policy for Rebecca’s personal

       injuries. Specifically, they note that subparagraph 5.a.(3) provides that the

       policy excludes “bodily injury, personal injury or property damage . . . arising

       out of the ownership, maintenance, use, operation, loading or unloading of . . .

       a personal watercraft” unless the watercraft is “covered by underlying

       insurance” and such “coverage is stated and a premium is charged on the

       Declarations of this policy” or “notice is given to [Safeco] within forty-five days

       after acquisition of any newly acquired watercraft and an additional premium is

       charged.” Id. at 55–56. The Harrises note that their watercraft was covered by

       an underlying Watercraft Policy for which they paid a separate premium.

       Therefore, the Harrises argue that the Umbrella Policy appears to provide

       coverage under this exception to exclusion 5.


[14]   The problem with the Harrises’ argument is that it ignores the explicit and

       unambiguous language of exclusion 4, which clearly states that the policy does
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 8 of 24
       not apply to “bodily injury or personal injury to you or any family member.” Id.

       at 55 (emphasis added). As Rebecca is a named insured, this provision

       undoubtedly applies to her and her claims of bodily injury. The exception to

       exclusion 5 is therefore inapplicable and cannot act to create coverage.

[15]   As noted by Safeco, an exception to an exclusion acts to narrow the scope of

       the exclusion, but it does not itself create coverage. Sheehan Const. Co. v. Cont’l

       Cas. Co., 935 N.E.2d 160, 162 (Ind. 2010), adhered to on reh’g, 938 N.E.2d 685

       (citing David Dekker, Douglas Green & Stephen Palley, The Expansion of

       Insurance Coverage for Defective Construction, 28 Constr. Law pp. 19–20 (Fall

       2008)); see also Indiana Ins. Co. v. DeZutti, 408 N.E.2d 1275, 1278 (Ind. 1980)

       (noting the “basic principle” that exclusion clauses do not grant or enlarge

       coverage but instead are limitations or restrictions on the insuring clause).

       Accordingly, the exception to exclusion 5 contained in subparagraph 5.a.(3)

       cannot create coverage where exclusion 4 plainly and unambiguously excludes

       coverage.8


[16]   Furthermore, to the extent that the Harrises argue that the Umbrella Policy

       provided coverage under the uninsured/underinsured motorist portion of the

       policy, the language of the policy clearly excludes coverage. The




       8
         Our conclusion does not render the exceptions contained in subparagraph 5.a.(3) superfluous, as this would
       still allow coverage for claims made against the Harrises by a third party resulting from the Harrises’
       operation of a watercraft.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018                Page 9 of 24
uninsured/underinsured clause of the Umbrella Policy provides in relevant

part:

        UNINSURED/UNDERINSURED MOTORISTS
        COVERAGE

        We will pay to you or your legal representative, all sums less the
        retained limit that you are entitled to recover as damages from
        an uninsured motor vehicle; provided that:

        1. Our liability shall be only excess of the retained limit;

        2. Uninsured/Underinsured Motorists Coverage under this
           policy shall apply In accordance with the terms and
           conditions of the underlying Insurance in effect at the time of
           loss, or in the absence of such underlying Insurance, with the
           terms and conditions of Uninsured/Underinsured Motorists
           Coverage in effect on the last renewal date of this policy.


Appellants’ App. Vol. 2, p. 54 (bold in original). The Umbrella Policy defines

the word “vehicle” to mean

        a. a private passenger land motor vehicle, trailer or semi-trailer:

            (1) designed for use principally on public roads;

            (2) while being used on public roads, if subject to the motor
                vehicle registration law or financial responsibility law of
                the state of principal garaging; or

            (3) that is designed for recreational use off public roads;

        b. farm tractors; or

        c. trailers and implements while being towed by a vehicle
           identified in 19.a or 19.b.


Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 10 of 24
       Id. (emphasis added). Simply put, the uninsured/underinsured provision of the

       Umbrella Policy applies only to “vehicles” as defined in the policy, and

       “vehicle” as defined in the policy means only land-based vehicles. Thus, the

       clear and unambiguous language of the Umbrella Policy excludes

       uninsured/underinsured coverage for boats.


[17]   Furthermore, Exclusion 8 of the Umbrella Policy clearly excludes coverage for

       “amounts payable under any Uninsured/Underinsured Watercraft Bodily

       Injury coverage.” Id. at 58. Here, it is undisputed that the Harrises have already

       received the $500,000 policy limit under their watercraft policy. Thus, this

       exclusion to the Umbrella Policy clearly excludes coverage for Rebecca’s

       claims.

[18]   In short, the clear and unambiguous language of the Umbrella Policy excludes

       coverage for the Harrises’ claims. The trial court therefore properly granted

       summary judgment on the Harrises’ claim that the language of the Umbrella

       Policy is ambiguous and should be construed to provide coverage for their

       claims.

                      II. Safeco Is Not Estopped From Denying Coverage

[19]   The Harrises also argue that, regardless of the language of the policy, Mock was

       acting as an agent for Safeco with both actual and apparent authority to bind

       Safeco to coverage under the Umbrella Policy. The Harrises argue that Mock’s

       assurances that they would be covered under the Umbrella Policy acts to estop

       Safeco from denying coverage.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 11 of 24
[20]   With regard to Mock’s role as an agent, our supreme court has explained:


               The term “insurance agent” is often used loosely. But because the
               term invokes agency principles, we must identify the principal for
               whom the insurance intermediary is an agent. A party who
               negotiates an insurance contract to cover someone else’s risk is
               acting as an agent for either the insured or the insurer.
               Depending on whose interests the “insurance agent” is
               representing, he or she may be a “broker” or an “agent.” A
               critical distinction exists. A representative of the insured is
               known as an “insurance broker.” As a general rule, a broker is the
               agent of the insured, and not the insurer. As such the insurer is not
               liable for the broker’s tortious conduct. A broker represents the
               insured by acting as an intermediary between the insured and the
               insurer, soliciting insurance from the public under no
               employment from any special company, and, upon securing an
               order, places it with a company selected by the insured, or if the
               insured has no preference, with a company selected by the
               broker. In contrast, an “insurance agent” represents an insurer
               under an employment agreement by the insurance company.
               Unlike acts of a broker, acts of an [insurance] agent are imputable to the
               insurer. Whether an insurance intermediary is an agent of the
               insured or the insurer is fact sensitive and includes consideration
               of the facts and circumstances of the case, the relation of the
               parties, their actions, their usual course of dealing, any
               instructions given to the person by the company, the conduct of
               the parties generally, and the nature of the transaction.


       Estate of Mintz v. Connecticut Gen. Life Ins. Co., 905 N.E.2d 994, 1000–01 (Ind.

       2009) (emphases added) (citations and internal quotation marks omitted).


[21]   Further, as this court has held, an insurance agent representing several

       companies is considered to be an insurance broker. Malone v. Basey, 770 N.E.2d

       846, 851 (Ind. Ct. App. 2002), trans. denied. An insurance agent or broker who

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 12 of 24
       undertakes to procure insurance for another is an agent of the proposed insured.

       Id. However, an insurance broker becomes the agent of the insurer when an

       insurance policy is issued. Id. When a broker makes an application for

       insurance and the insurance policy is issued, the broker is the agent of the

       insurer and can bind it within the scope of his authority. Id. (citing Aetna Ins. Co.

       of the Midwest v. Rodriguez, 517 N.E.2d 386, 388 (Ind. 1988)).


[22]   Here, the Harrises argue that Mock was acting as the agent of Safeco and acted

       with apparent authority to bind Safeco to coverage. Assuming arguendo that

       Mock was acting as Safeco’s agent, we conclude that Mock’s statements

       regarding coverage were not sufficient to estop Safeco from denying coverage.


[23]   In the context of insurance, estoppel refers to a preclusion from asserting rights

       by an insurance company or an abatement of rights and privileges of the

       insurance company where it would be inequitable to permit the assertion.

       Founders Ins. Co. v. Olivares, 894 N.E.2d 586, 592 (Ind. Ct. App. 2008). Indiana

       courts follow the general rule that the doctrine of estoppel is not available to

       create or extend the scope of coverage of an insurance contract. Id. The

       rationale for this rule is that an insurance company should not be forced to pay

       for a loss for which it had not charged a premium. Id. We have, however,

       recognized exceptions to this general rule. Id. One exception exists when an

       insurer misrepresents the extent of coverage to an insured, thereby inducing the




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 13 of 24
       insured to purchase coverage which does not in fact cover the disputed risk.9

       Employers Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1028 (Ind. Ct.

       App. 1999), trans. denied. “This exception has been a vehicle ‘to create insurance

       coverage where to refuse to do so would sanction fraud or other injustice.’”

       Transcon. Ins. Co. v. J.L. Manta, Inc., 714 N.E.2d 1277, 1281 (Ind. Ct. App. 1999)

       (quoting Nationwide Mut. Ins. Co. v. Filos, 673 N.E.2d 1099, 1103 (Ill. App. Ct.

       1996)). It is this exception that the Harrises argue applies in the present case.


[24]   The Harrises claim that there is designated evidence showing that they

       requested uninsured/underinsured coverage for the watercraft in the Umbrella

       Policy and that Mock assured them that such coverage was provided by the

       Umbrella Policy. The Harrises therefore argue that Safeco should be estopped

       from denying them coverage under the Umbrella Policy. The designated

       evidence the Harrises refer to is Rebecca’s affidavit and Mock’s deposition

       testimony.

[25]   In her affidavit, Rebecca averred that, on June 19, 2014, she asked Mock for a

       quote on a $1,000,000 umbrella policy that would apply to the Harrises’ home,

       automobiles, and watercraft. Rebecca’s affidavit continues:


                9. In response, on June 23, 2014 Deborah Mock provided me
                with a quote for an umbrella policy from Safeco Insurance
                Company with a policy limit of $1,000,000.00 which provided



       9
        Under the other exception, an insurer may be estopped from raising the defense of noncoverage when it
       assumes the defense of an action on behalf of its insured without a reservation of rights but with knowledge
       of facts which would have permitted it to deny coverage. Olivares, 894 N.E.2d at 592.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018                Page 14 of 24
        coverage for uninsured/underinsured benefits and which
        specifically listed 2 powerboats under “OTHER AND
        OPTIONAL COVERAGES.”

        10. On that same day Deborah Mock prepared a binder of
        coverage document for [the Umbrella Policy] which she signed as
        an “Authorized Representative” of Safeco Insurance.

        11. On that same day, June 23, 2014, my husband and I signed
        a Safeco Insurance document entitled “PERSONAL
        UMBRELLA UNINSURED/UNDERINSURED
        MOTORISTS COVERAGE SELECTION REQUEST
        (INDIANA)” in which we elected to purchase
        uninsured/underinsured coverage under [the] Umbrella Policy[.]

        12. Based upon my contacts with Deborah Mock, it was my belief that
        the Safeco Insurance Umbrella Policy . . . provided the $1,000,000.00 in
        uninsured/underinsured coverage for our two (2) boats that I had
        specifically requested.

        13. Shortly thereafter, I received a “Welcome to Safeco!” letter
        dated July 1, 2014 from Safeco Insurance in connection with the
        Umbrella Policy [] which was signed by Matthew D. Nickerson,
        the President of Safeco Insurance. Attached to that letter was a
        page titled “WHERE TO TURN FOR HELP” informing me
        that if I had any questions regarding my umbrella policy or
        coverage I should contact Deborah Mock and the Walker
        Insurance Agency, the agents listed on the Declarations Page of
        the umbrella policy.

        14. I relied upon the information provided to me by Deborah Mock that
        the Safeco Umbrella Policy [] provided underinsured coverage for our
        watercraft.

        15. I paid the premiums for the Safeco Umbrella Policy [] fully
        believing that that policy provided underinsured coverage for our
        two (2) boats which coverage I had specifically requested and
        which Deborah Mock indicated was included.


Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 15 of 24
       Appellants’ App. Vol. 3, p. 43–44 (emphases added).


[26]   Rebecca’s affidavit further avers, and Mock’s deposition testimony

       corroborates, that Mock told Rebecca after the accident that Mock was glad

       that the Harrises had purchased the Umbrella Policy and believed that the

       Umbrella Policy would provide coverage to Rebecca for her injuries. Based on

       this evidence, the Harrises claim that Mock misrepresented the extent of the

       coverage available under the Umbrella Policy.10


[27]   The problem with the Harrises’ argument is that Mock’s statements that she

       thought the Harrises’ claim would be covered under the Umbrella Policy were

       made after the policy was purchased, and indeed after the boating accident.

       These post-accident statements could not act to have induced the Harrises to

       purchase the Umbrella Policy.


[28]   The designated evidence that comes closest to supporting the Harrises’ estoppel

       argument are the portions of Rebecca’s affidavit that state that, based on

       Mock’s statements, Rebecca believed that the Umbrella Policy provided

       uninsured/underinsured coverage for the Harrises’ watercraft and her statement

       that she relied upon the information Mock provided to her in coming to her

       belief that the Umbrella Policy provided uninsured/underinsured coverage for

       the watercraft. But Rebecca’s affidavit does not state that Mock told her that the




       10
         The Harrises also refer to an email Mock sent to Rebecca stating that the quote for the Umbrella Policy
       “includes uninsured/underinsured motorist up to $1M.” Id. at 50. However, the Umbrella Policy did include
       such coverage, but defined the vehicles covered to exclude watercraft.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018            Page 16 of 24
       Umbrella Policy would cover watercraft in its provisions for uninsured/

       underinsured motorist coverage. And, in contrast, Mock testified at the

       deposition that, prior to the accident, she never discussed uninsured/

       underinsured watercraft coverage with the Harrises, nor did she ever tell the

       Harrises, prior to the accident, that the Umbrella Policy would cover

       uninsured/underinsured watercraft claims. Id. at 201–02.


[29]   Under these facts and circumstances, we cannot say that there is a genuine issue

       of material fact regarding the question of whether Mock misrepresented the

       extent of the coverage of the Umbrella Policy to the Harrises, thereby inducing

       them to purchase coverage that did not cover the risk. Rebecca’s affidavit does

       not establish that Mock told the Harrises that the Umbrella Policy would cover

       uninsured/underinsured watercraft, and Mock’s deposition testimony clearly

       states that she never informed the Harrises that the Umbrella Policy would

       provide uninsured/underinsured watercraft coverage. Because Mock’s

       (incorrect) statements that the Umbrella Policy provided uninsured/

       underinsured watercraft coverage came after the issuance of the policy, there can

       be no estoppel, because such statements could not induce the insureds to

       purchase the policy. See Everett Cash Mut. Ins. Co. v. Taylor, 904 N.E.2d 276,

       280–81 (Ind. Ct. App. 2009), trans. granted, opinion vacated on other grounds, 926

       N.E.2d 1008 (Ind. 2010) (holding insurance agent’s statements to insureds that

       policy would cover the insured’s claims were insufficient to support a claim of




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 17 of 24
       estoppel because they occurred after the accident);11 see also Am. Hardware Mut.

       Ins. Co. v. BIM, Inc., 885 F.2d 132, 140 (4th Cir. 1989) (“[T]he principles of

       estoppel and waiver do not operate to extend . . . coverage . . . after the loss has

       been sustained.”).

[30]   We find the Harrises’ reliance on Earl v. State Farm Mutual Insurance. Co., 91

       N.E.3d 1066 (Ind. Ct. App. 2018), trans. denied, to be misplaced. In Earl, the

       insured was injured in a hit-and-run accident, and he and his wife sought

       uninsured/underinsured motorist coverage from their insurer, State Farm. The

       insurer initially offered to settle the claim for $40,000, but the insureds rejected

       the offer, and the matter proceeded to litigation. During discovery, the insurer

       incorrectly asserted that the insureds had coverage only under the

       uninsured/underinsured motorist provision of an auto policy with a limit of

       $250,000 and did not mention that the insureds also had a personal liability

       umbrella policy that had uninsured/underinsured motorist coverage with a

       limit of $2,000,000. The trial court admitted evidence of the $250,000 limit at

       trial, and the jury returned a verdict in the insureds’ favor in the amount of

       $250,000. When the insureds later learned of the larger limit under their

       umbrella policy, they sought to appeal the jury’s award, arguing that the




       11
          We acknowledge that the opinion of this court in Taylor was vacated by our supreme court’s grant of
       transfer. However, our supreme court decided the case on other grounds and did not disapprove of this
       portion of our holding. Moreover, we agree with this portion of Taylor and therefore adopt its logic as our
       own. Indeed, we fail to see how an insurance agent’s statements after the policy has been issued could be said
       to have induced the insured to purchase the policy.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018                 Page 18 of 24
       admission of the policy limits was improper12 and also brought a separate suit

       against State Farm for fraud, constructive fraud, bad faith, and breach of

       contract. The trial court subsequently granted summary judgment in favor of

       the insurer, concluding inter alia that the insureds could not reasonably rely on

       State Farm’s representations.


[31]   On appeal, this court reversed. With regard to the issue of reliance, we noted

       the traditional rule that reliance is not justified where the insured has a written

       instrument available and fails or neglects to read it. Id. at 1075 (Plohg v. NN

       Investors Life Ins. Co. Inc., 583 N.E.2d 1233, 1237 (Ind. Ct. App. 1992), trans.

       denied). However, we further noted that “whether a party’s reliance upon an

       [insurance] agent’s representations is reasonable even though he failed to

       exercise the opportunity to read the policy is a question of fact for the

       factfinder.” Id. (quoting Plohg, 583 N.E.2d at 1237). We also observed that

       “[g]iven the complexity of today’s insurance contracts we cannot say as a

       matter of law, that such reliance [on the statements of an insurance agent is]

       unjustified.” Id. (quoting Medtech Corp. v. Indiana Ins. Co., 555 N.E.2d 844, 850

       (Ind. Ct. App. 1990), trans. denied). Because of the complexity of the umbrella

       policy, the Earl court held that there was a genuine issue of material fact

       regarding whether the insured reasonably relied on the insurer’s statements that

       there was only coverage under the auto policy. Id. at 1076.




       12
         Our supreme court ultimately affirmed the trial court on this evidentiary issue. See id. at 1070 (citing State
       Farm Mut. Auto. Ins. Co. v. Earl, 33 N.E.3d 337, 344 (Ind. 2015)).

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018                    Page 19 of 24
[32]   We find Earl inapplicable under the facts of the present case. Here, the question

       is not whether an umbrella policy exists, which was the misrepresentation at

       issue in Earl. Here, the question is whether the Umbrella Policy provides

       coverage. As we explained above, Mock’s representations that the Umbrella

       Policy provided coverage for uninsured/underinsured watercraft were made only

       after the accident and therefore could not have induced the Harrises to purchase

       the policy.

[33]   The case of Medtech, cited by the Harrises, is also inapplicable. At issue in that

       case was a claim of promissory estoppel, actual and constructive fraud, and

       breach of duty by an agent. The claim against the insurance company was

       decided in the insurance company’s favor on summary judgment, and the

       opinion provides no support for the Harrises’ claim that an insurer’s agent may

       bind the insurer to coverage that is explicitly excluded by the language of the

       policy.

[34]   The Harrises’ citation to Plohg is similarly unavailing. In that case, the

       insurance agent misinformed the insured that the exclusions listed in a sample

       policy were the only ones that would be included in the policy. When the

       insured purchased the policy, he believed that there would be no exclusion for

       an accident arising out of intoxication because this exclusion was not listed in

       the sample policy provided to him, but it was included in the actual policy

       issued to him. After the insured’s claim for coverage was denied under the

       alcohol exclusion, the insured filed a suit against the insurer and the agent

       claiming constructive fraud.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 20 of 24
[35]   On appeal, the issue was whether the insured was entitled to rely upon the

       agent’s statements regarding the exclusions. We noted the “traditional rule”

       that “reliance is not justified where the injured party has a written instrument

       available and fails or neglects to read it.” Id. at 1237 (citing Robinson v. Glass, 94

       Ind. 211 (1883)). However, the Plohg court noted that the complex nature of

       insurance policies justifies a deviation from this traditional rule under some

       circumstances, and that the reasonableness of an insured’s reliance is a question

       of fact. Id. In contrast to the present case, the statements made by the agent in

       Plohg were made prior to the issuance of the policy and therefore induced him

       to purchase the policy. Here, there could have been no such reliance on Mock’s

       post-issuance statements.

[36]   The Harrises’ citation to Wiggam v. Associates Financial Services, 677 N.E.2d 87

       (Ind. Ct. App. 1997), trans. denied, is also of no avail. In that case, the court,

       citing Medtech, acknowledged that “when an insurance agent makes oral

       representations about the content or effect of a complex insurance policy which

       actually contradict the express terms of the policy, an insured’s reasonable

       reliance upon those representations may override the insured’s obligation to

       read and be familiar with the terms of the policy.” Id. at 90–91. However, the

       Wiggam court distinguished Medtech and held that the borrower could not

       prevail in his suit against the lender and credit insurer for breach of contract,

       negligence, fraud, and promissory estoppel. Id. at 91–92. The Wiggam court

       held that even if the lender’s agent had made an oral assurance of coverage, the

       general rule that one is bound to know and understand contents of his contracts

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 21 of 24
       applied, and the exception to this rule did not apply given the short, simple, and

       unambiguous nature of the loan application, which clearly showed that the

       borrower affirmatively opted to not purchase credit disability insurance. Id. at

       92. Here, although the Umbrella Policy is larger than the two-page credit

       application at issue in Wiggam, the language of the Umbrella Policy is clear and

       unambiguous, and Wiggam does not support the Harrises’ position that Safeco

       should be estopped from denying coverage based on the actions of its agent

       Mock.

[37]   We also find the Harrises’ reliance on Filip v. Block, 879 N.E.2d 1076 (Ind.

       2008), to be misplaced. In that case, the Filips purchased an apartment complex

       and obtained a commercial insurance policy from an insurance agent, Block,

       who had obtained insurance for the prior owner. The Filips told Block that they

       wanted the same coverage that the former owner had. Although Block knew

       that the Filips lived in the apartment complex, the policy she obtained did not

       cover non-business personal property, and there was no separate tenant’s

       policy. When a fire destroyed much of the complex, a substantial part of the

       Filips’ loss was uninsured. The Filips then sued Block and her agency, alleging

       negligence in the selection of the insurance.

[38]   On appeal from the trial court’s grant of summary judgment in favor of the

       defendants, our supreme court observed that “‘reasonable reliance upon an

       agent’s representations can override an insured’s duty to read the policy.’” Id. at

       1084 (quoting Vill. Furniture, Inc. v. Assoc. Ins. Managers, Inc., 541 N.E.2d 306,

       308 (Ind. Ct. App. 1989)). This exception to the general duty to read the policy

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 22 of 24
       acts to negate an insured’s duty to read part of the policy if an agent insists that

       a particular hazard will be covered. Id. Applying this rule to the facts before it,

       the Filip court held that there was nothing in the designated evidence that

       presented a genuine issue of material fact as to whether Block made any

       representations regarding the adequacy of the business property coverage, the

       building coverage, or the lack of business interruption coverage. Id. These

       shortcomings of the policy were readily ascertainable by the Filips from the

       policy itself. Id. However, with regard to the lack of coverage for non-business

       personal property, the court held that there was designated evidence that both

       the Filips and Block believed that the policy covered the Filips’ personal

       property. The court noted that Mrs. Filip testified that Block told her that their

       property would be covered at the time the policy was issued. Id. at 1085.


[39]   Here, there was no designated evidence that Mock told the Harrises that their

       watercraft would be covered by the uninsured/underinsured motorist provision

       of the Umbrella Policy at the time the policy was issued. Mock’s

       representations to that effect came only after the accident occurred and, as

       discussed above, could not act to estop Safeco from denying coverage.

       Moreover, Rebecca’s averments that she believed that the

       uninsured/underinsured provision of the Umbrella Policy would cover her

       watercraft after speaking with Mock is insufficient to establish that Mock

       actually told her that such coverage would exist, and Mock specifically denied

       having told the Harrises that such coverage would exist prior to the issuance of

       the policy.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 23 of 24
[40]   Ultimately, Rebecca’s affidavit avers that she asked for uninsured/underinsured

       watercraft coverage, and believed the Umbrella Policy would provide coverage,

       but makes no claim that Mock told her that the Umbrella Policy would provide

       such coverage before the policy was issued. Instead, the evidence shows that

       Mock mistakenly stated that the Umbrella Policy would provide coverage only

       after the issuance of the policy and after the accident. This, as noted, is

       insufficient to establish estoppel.


                                                 Conclusion
[41]   The trial court properly granted summary judgment in favor of Safeco because

       the language of the Umbrella Policy clearly excludes claims for personal or

       bodily injury to an insured and because the Harrises failed to support their

       claim that Safeco should be estopped from denying coverage based on Mock’s

       statements regarding coverage.

[42]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-964 | December 13, 2018   Page 24 of 24
