MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Dec 12 2017, 8:03 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEES
Dennis F. Cantrell                                       GATEWAY ARTHUR, INC. AND
Cantrell, Strenski & Mehringer, LLP                      EMMES REALTY SERVICES, LLC
Indianapolis, Indiana                                    Ginny L. Peterson
                                                         Kightlinger & Gray, LLP
Jeffrey A. Siderius                                      Indianapolis, Indiana
Cray Huber Horstman Heil &
VanAusdal, LLC
Chicago, Illinois



                                          IN THE
    COURT OF APPEALS OF INDIANA

Argonaut Midwest Insurance                               December 12, 2017
Company,                                                 Court of Appeals Case No.
Appellant-Plaintiff,                                     45A03-1706-PL-1172
                                                         Appeal from the Lake Superior
        v.                                               Court
                                                         The Honorable Calvin D.
DLC Services, Inc., DLC                                  Hawkins, Judge
Landscape & Snow Removal,                                Trial Court Cause No.
Inc., Gateway Arthur, Inc.,                              45D11-1608-PL-85, Consolidated
Emmes Realty Services, LLC,                              with 45D02-1507-CT-125
Jane Jones and Gary Jones,
Appellees-Defendants,




Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017       Page 1 of 12
      ______________________________


      Jane Jones and Gary Jones,
      Plaintiffs,

              v.

      Wiseway Super Food Center,
      Inc., Gateway Arthur, Inc.,
      Emmes Realty Services, LLC,
      and DLC Landscape & Snow
      Removal, Inc.,
      Defendants.1



      Bradford, Judge.



                                           Case Summary
[1]   At all times relevant to the underlying matter, Appellant Argonaut Midwest

      Insurance Company (“Argonaut”) provided insurance coverage for DLC

      Services, Inc. On July 28, 2015, Appellees Jane and Gary Jones filed suit

      against a number of parties, including DLC Landscape and Snow Removal,

      Inc. (“DLC Landscape”), alleging that Jane was injured when she slipped and

      fell on a patch of ice outside of a grocery store in February of 2014. Argonaut

      first learned of Jane’s fall on February 1, 2016, when the insurance company



      1
       For the sake of clarity, we note that this second caption refers to Cause Number 45D02-1507-CT-125
      which was consolidated with Cause Number 45D11-1608-PL-85, the case at issue in the instant appeal.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017     Page 2 of 12
      representing two of the parties sued by Jane and Gary contacted Argonaut and

      demanded a defense.


[2]   On August 17, 2016, Argonaut filed a declaratory judgment action seeking a

      ruling as to whether DLC Landscape was an insured under DLC Services’s

      insurance policy. Argonaut filed a motion for summary judgment on the issue

      of coverage. This interlocutory appeal follows the trial court’s denial of

      Argonaut’s motion for summary judgment. Because we conclude that

      Argonaut was entitled to summary judgment on the question of coverage, we

      reverse the trial court’s order and remand to the trial court with instructions for

      the trial court to enter summary judgment in favor of Argonaut.



                            Facts and Procedural History
[3]   The facts, as alleged before the trial court, provide as follows: Jane was injured

      on February 15, 2014, when she slipped and fell on a patch of ice in a grocery

      store parking lot. Thereafter, on July 28, 2015, Jane and Gary initiated a

      lawsuit (“the Jones lawsuit”) against Appellees Wiseway Super Food Center,

      Inc. (“Wiseway”); Gateway Arthur, Inc.; Emmes Realty Services, LLC

      (“Emmes”); and DLC Landscape (collectively “the Jones lawsuit Defendants”),

      alleging that as a result of her fall on February 15, 2014, Jane suffered injuries

      which were caused by their negligence. Jane and Gary further alleged that

      Wiseway owns and operates the grocery store in question, Gateway Arthur

      owns the shopping center where the grocery store is located, Emmes is the

      management company for the shopping center where the grocery store is

      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 3 of 12
      located, and DLC Landscape is the snow removal company responsible for

      clearing the shopping center’s parking lot.


[4]   Again, at all times relevant to the underlying matter, Argonaut provided

      insurance coverage for DLC Services. Argonaut first learned of Jane’s fall, her

      alleged injuries, and the Jones lawsuit on February 1, 2016, when

      representatives of Liberty Mutual Insurance Company, which represented both

      Gateway Arthur and Emmes, contacted Argonaut and demanded a defense.

      After being informed of the Jones lawsuit, Argonaut initiated a declaratory

      judgment action against DLC Services. In this action, Argonaut sought a ruling

      as to whether DLC Landscape was an insured under DLC Services’s insurance

      policy. On November 17, 2016, the trial court consolidated Argonaut’s

      declaratory judgment action and the Jones lawsuit.


[5]   Argonaut subsequently filed a motion for summary judgment, arguing that no

      genuine issue of material fact remains as to the issue of coverage because (1) the

      parties to the Jones lawsuit are not insureds under DLC Services’s insurance

      policy and (2) DLC Services did not comply with the policy’s notice and

      cooperation provisions. Following briefing and arguments by the parties, the

      trial court denied Argonaut’s motion for summary judgment and certified its

      order for interlocutory appeal. On June 30, 2017, we accepted jurisdiction over

      the case and this interlocutory appeal follows.



                                Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 4 of 12
[6]   Argonaut contends that the trial court erred in denying its motion for summary

      judgment. In raising this contention, Argonaut claims that it was entitled to

      summary judgment for the following reasons: (1) DLC Services failed to

      provide it with timely notice of the alleged occurrence, (2) DLC Services failed

      to cooperate with the investigation into the alleged occurrence, and (3) DCL

      Landscaping & Snow Removal, Gateway Arthur, and Emmes are not insureds

      under the insurance contract at issue.


                  I. Summary Judgment Standard of Review
[7]           The purpose of summary judgment under Indiana Trial Rule 56
              is to terminate litigation about which there can be no factual
              dispute and which may be determined as a matter of law.
              Bushong v. Williamson, 790 N.E.2d 467, 474 (Ind. 2003). On
              appeal, our standard of review is the same as that of the trial
              court: summary judgment is appropriate only where the evidence
              shows there is no genuine issue of material fact and the moving
              party is entitled to judgment as a matter of law. Williams v.
              Riverside Cmty. Corr. Corp., 846 N.E.2d 738, 743 (Ind. Ct. App.
              2006), trans. denied. 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. Williams v. Tharp, 914 N.E.2d 756, 761
              (Ind. 2009). We construe all facts and reasonable inferences
              drawn from those facts in favor of the non-moving party.
              Riverside, 846 N.E.2d at 743.


      Ind. Farmers Mut. Ins. Co. v. N. Vernon Drop Forge, Inc., 917 N.E.2d 1258, 1266

      (Ind. Ct. App. 2009), trans. denied. Upon review, “[w]e will affirm an award of

      summary judgment on any theory supported by the record.” Haegert v. Univ. of

      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 5 of 12
      Evansville, 977 N.E.2d 924, 937 (Ind. 2012) (citing Woodruff v. Ind. Family & Soc.

      Servs. Admin., 964 N.E.2d 784, 790 (Ind. 2012)).


        II. Law Relating to the Review of Insurance Contracts
[8]   Insurance contracts are governed by the same rules of construction as other

      contracts, and the proper interpretation of an insurance policy, even if it is

      ambiguous, is generally a question of law appropriate for summary judgment.

      Ind. Farmers, 917 N.E.2d at 1266 (citing Liberty Ins. Corp. v. Ferguson Steel Co.,

      Inc., 812 N.E.2d 228, 230 (Ind. Ct. App. 2004)).


              If the policy language is clear and unambiguous it should be
              given its plain and ordinary meaning. Eli Lilly Co. v. Home Ins.
              Co., 482 N.E.2d 467, 470 (Ind. 1985). An ambiguity does not
              exist simply because a controversy exists between the parties,
              each favoring an interpretation contrary to the other. Linder v.
              Ticor Title Ins. Co. of Cal., Inc., 647 N.E.2d 37, 39 (Ind. Ct. App.
              1995). Under Indiana law, an insurance policy is ambiguous if
              reasonable persons may honestly differ as to the meaning of the
              policy language. Id. If the terms of a written contract are
              ambiguous, it is the responsibility of the trier of fact to ascertain
              the facts necessary to construe the contract. Perryman v. Motorist
              Mut. Ins. Co., 846 N.E.2d 683, 687 (Ind. Ct. App. 2006). Where
              there is ambiguity, insurance policies are to be construed strictly
              against the insurer. Am. States Ins. Co. v. Kiger, 662 N.E.2d 945,
              947 (Ind. 1996), reh’g denied.


      Id. at 1266-67.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 6 of 12
                                             III. Analysis
                      A. Reasonable Notice of an “Occurrence”
[9]   The Argonaut policy at issue contained specific provisions regarding the

      insured’s duty to promptly notify Argonaut after a loss. Specifically, with

      regard to notice, the policy provided as follows:


              2. Duties In The Event Of Accident, Claim, Suit Or Loss
              We have no duty to provide coverage under this policy unless
              there has been full compliance with the following duties:
              a. In the event of “accident”, claim, “suit” or “loss”, you must
              give us or our authorized representative prompt notice of the
              “accident” or “loss”. Include:
                     (1) How, when and where the “accident” or “loss”
                     occurred;
                     (2) The “insured’s” name and address; and
                     (3) To the extent possible, the names and addresses of
                     any injured persons and witnesses.
              b. Additionally, you and any other involved “insured” must:
                     (1) Assume no obligation, make no payment or incur
                     no expense without our consent, except at the
                     “insured’s” own cost.
                     (2) Immediately send us copies of any request,
                     demand, order, notice, summons or legal paper
                     received concerning the claim or “suit”.
                     (3) Cooperate with us in the investigation or
                     settlement of the claim or defense against the “suit”.
                     (4) Authorize us to obtain medical records or other
                     pertinent information.
                     (5) Submit to examination, at our expense, by
                     physicians of our choice, as often as we reasonably
                     require.
                                              ****



      Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 7 of 12
               3. Legal Action Against Us
               No one may bring a legal action against us under this coverage
               form until:
               a. There has been full compliance with all the terms of this
               coverage form; and
               b. Under Liability Coverage, we agree in writing that the
               “insured” has an obligation to pay or until the amount of that
               obligation has finally been determined by judgment after trial.
               No one has the right under this policy to bring us into an action
               to determine the “insured’s” liability.


       Appellant’s App. Vol. II, p. 29.


[10]   “We have held that the notice requirement is ‘material, and of the essence of

       the contract.’” Askren Hub States Pest Control Servs., Inc. v. Zurich Ins. Co., 721

       N.E.2d 270, 277 (Ind. Ct. App. 1999) (quoting London Guar. & Accident Co. v.

       Siwy, 35 Ind. App. 340, 345, 66 N.E. 481, 482 (1903)).


               The duty to notify an insurance company of potential liability is a
               condition precedent to the company’s liability to its insured.
               Shelter Mut. Ins. Co. v. Barron, 615 N.E.2d 503, 507 (Ind. Ct. App.
               1993), trans. denied. When the facts of the case are not in dispute,
               what constitutes reasonable notice is a question of law for the
               court to decide. Id.


       Id.


[11]   “Unlike other policy provisions requiring the cooperation of the insured,

       noncompliance with notice of claim provisions resulting in an unreasonable

       delay triggers a presumption of prejudice to the insurer’s ability to prepare an

       adequate defense.” Id. (citing Miller v. Dilts, 463 N.E.2d 257, 265 (Ind. 1984)).


       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 8 of 12
       In holding that a failure to give timely notice triggers a presumption of

       prejudice, the Indiana Supreme Court explained as follows:


               The requirement of prompt notice gives the insurer an
               opportunity to make a timely and adequate investigation of all
               the circumstances surrounding the accident or loss. This
               adequate investigation is often frustrated by a delayed notice.
               Prejudice to the insurance company’s ability to prepare an
               adequate defense can therefore be presumed by an unreasonable
               delay in notifying the company about the accident or about the
               filing of the lawsuit.


       Miller, 463 N.E.2d at 265.


[12]   “The presumption of prejudice means that if the delay in giving the required

       notice is unreasonable, the burden falls on the insured to produce evidence that

       prejudice did not actually occur in the particular situation.” Ind. Farmers, 917

       N.E.2d at 1274 (citing Erie Ins. Exch. v. Stephenson, 674 N.E.2d 607, 612 (Ind.

       Ct. App. 1996)). Thus, in a summary judgement action, it is incumbent upon

       the alleged-insured to set forth “some evidence” to rebut the presumption that

       the insurer has “suffered prejudice of its right to conduct a timely and adequate

       investigation.” Erie Ins. Exch., 674 N.E.2d at 612. Once the alleged-insured

       does so, “the burden shifts back to the insurer to establish prejudice.” Ind.

       Farmers, 917 N.E.2d at 1274.


                                           1. Unreasonable Delay

[13]   Our first task to determine whether the notice of the incident and the Jones

       lawsuit received by Argonaut was unreasonably delayed. Jane was allegedly

       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 9 of 12
       injured on February 15, 2014, when she slipped and fell on a patch of ice in the

       parking lot of a shopping center operated by Gateway Arthur and Emmes.

       Subsequently, Jane and Gary filed the Jones lawsuit on July 28, 2015.

       Argonaut’s insured, DLC Services, never notified Argonaut of either Jane’s fall

       or the Jones lawsuit. In fact, Argonaut was not notified of either Jane’s fall or

       of the Jones lawsuit until February 1, 2016, when representatives of Gateway

       Arthur’s and Emmes’s insurance company notified Argonaut. Stated

       differently, Argonaut was not notified of Jane’s fall and alleged injuries for

       nearly two years after the fall occurred and nearly six months after the Jones

       lawsuit was filed. These delays in providing notice of Jane’s fall and alleged

       injuries to Argonaut are unreasonable as a matter of law. See generally, Miller,

       463 N.E.2d at 266 (ordering that summary judgment be entered in favor of an

       insurance company after the insured failed to give the insurer notice of the

       accident giving rise to liability six months after the occurrence and ten days

       after the lawsuit was filed); Askren Hub, 721 N.E.2d at 278 (providing that a

       delay of six months before notifying the insurer of an “occurrence” constitutes

       unreasonable notice). Because we conclude that Argonaut did not receive

       timely notice of Jane’s fall and alleged injuries, we must next consider whether

       Argonaut was prejudiced by the unreasonable delay.


                                                  2. Prejudice

[14]   The next question is whether Argonaut suffered prejudice as a result of the

       delay. Consistent with the above-discussed authority, we presume that

       Argonaut suffered prejudice from the delayed notice unless and until Gateway

       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 10 of 12
       Arthur and Emmes come forward with evidence to rebut this presumption. See

       Miller, 463 N.E.2d at 265; Ind. Farmers, 917 N.E.2d at 1274. As to notice,

       Gateway Arthur and Emmes argued during summary judgment proceedings

       that “investigation of [Jane’s] claim by the other insurers and defendants in the

       case has thus far more than adequately protected any separate interests

       Argonaut had; all relevant evidence has been preserved to the extent possible,

       and the depositions in this case remain to be taken.” Appellant’s App. Vol. II,

       p. 204. Gateway Arthur and Emmes, however, did not designate any evidence

       to support these arguments. In addition, Gateway Arthur and Emmes did not

       designate any other evidence to rebut the presumption of prejudice.


[15]   In addition, assuming that other entities had the opportunity to complete an

       investigation into Jane’s claims soon, if not immediately, after the date of Jane’s

       fall, Argonaut was not given the opportunity to do so because it was not timely

       notified of the incident. The lack of timely notice resulted in a presumption of

       prejudice which Gateway Arthur and Emmes failed to adequately rebut. We

       therefore conclude that no issue of material fact remains and summary

       judgment should have been granted in Argonaut’s favor because none of the

       claimed insureds complied with the notice provisions contained within the

       insurance policy in question.2 Accordingly, we reverse the judgment of the trial




       2
         Because we decide that Argonaut was entitled to summary judgment on the question of coverage because
       of a failure to provide timely notice of the “occurrence” and the Jones lawsuit, we need not consider whether
       coverage existed on any of the other theories argued by the parties.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017        Page 11 of 12
       court and remand to the trial court with instructions to enter summary

       judgment in favor of Argonaut on the question of coverage.


[16]   The judgment of the trial court is reversed and the matter remanded with

       instructions.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1172 | December 12, 2017   Page 12 of 12
