Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                         Feb 28 2013, 9:56 am
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:

GEORGE M. PLEWS
JOSH S. TATUM
COLIN E. CONNOR
Plews Shadley Racher & Braun LLP
Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRET SHAW,                                         )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
               vs.                                 )       No. 49A02-1203-PL-164
                                                   )
BRYAN C. JERMAN,                                   )
                                                   )
       Appellee-Defendant.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Timothy W. Oakes, Judge
                             Cause No. 49D13-0601-PL-1390


                                       February 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
       Bret Shaw was denied insurance coverage for losses he claimed after his residence

was burglarized and vandalized. He sued the insurer, American Family, and Bryan Jerman, a

certified public adjuster Shaw retained to help him obtain coverage. In 2007, the trial court

entered summary judgment for American Family, and we affirmed. Then, in 2011, Shaw

moved for summary judgment against Jerman. The trial court granted Jerman’s cross-motion

and Shaw appeals. We reverse and remand.

                       FACTS AND PROCEDURAL HISTORY

       We stated the facts surrounding the denial of Shaw’s insurance claim in Shaw v. Am.

Family Mut. Ins. Co., No. 49A02-0801-CV-17 (Ind. Ct. App. 2008), trans. denied.

              The relevant designated facts most favorable to Shaw, the nonmovant,
       indicate that on November 24, 2003, Shaw notified American Family that his
       home had been broken into and vandalized five days earlier, resulting in the
       damage, loss, and destruction of both real and personal property. Shaw’s
       homeowner’s policy with American Family reads in pertinent part as follows:

                                INSURING AGREEMENT
                     We will provide the insurance described in this policy in
              return for your premium payment and compliance with all
              policy terms. We will provide this insurance to you in reliance
              on the statements you have given us in your application for
              insurance with us.
                     You warrant the statements in your application to be true
              and this policy is conditioned upon the truth of your statements.
              We may void this policy if the statements you have given us are
              false and we have relied on them.
                     You and all insureds must comply with the policy terms.
              Any failure to comply with policy terms by you or any other
              insured will affect the coverage by this insurance for you and all
              insureds.
                                           *****
                               CONDITIONS—SECTION I
                                           *****
              9. Loss Payment. We will adjust all losses with you. We will
                                              2
pay you unless some other party is named in the policy or is
legally entitled to receive payment. Loss will be payable 60
days after we receive your properly completed proof of loss and:
a. we reach agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an arbitration award with us.
                              *****
18. Suit Against Us. We may not be sued unless there is full
compliance with all the terms of this policy. Suit must be
brought within one year after the loss or damage occurs.
19. What You Must Do in Case of Loss. In the event of a loss to
property that this insurance may cover, you and any person
claiming coverage under this policy must:
a. give notice as soon as reasonably possible to us or our agent
                              *****
d. as often as we reasonably require:
(1) show us the damaged property before permanent repairs or
replacement is made;
(2) provide us with records and documents we request and
permit us to make copies; and
(3) let us record your statements and submit to examinations
under oath by any person named by us, while not in the presence
of any other insured, and sign the transcript of the statements
and examinations;
e. submit to us, within 60 days after we request, your signed,
sworn proof of loss which sets forth, to the best of your
knowledge and belief:
(1) the date, time, location and cause of loss;
(2) the interest you and others have in the property, including
any encumbrances;
(3) the actual cash value and amount of loss of each item
damaged or destroyed;
(4) other insurance that may cover the loss;
(5) changes in title, use, occupancy or possession of the
property during the policy period;
(6) the plans and specifications of any damaged dwelling or
structure we may request;
(7) detailed estimates for repair of the damage; [and]
(8) receipts for any increased costs to maintain your standard of
living while you reside elsewhere, and records pertaining to any
loss of rental income[.]
                              *****
                                  3
                                   GENERAL CONDITIONS
                                              *****
                  5. Cooperation. You must cooperate with us in performing all
                  acts required by this policy.

          Appellant’s App. at 376-88 (italicized emphases added) (bold emphases
          omitted).
                  On December 5, 2003, American Family sent Shaw a proof of loss form
          to be completed and returned by February 3, 2004. Shaw retained certified
          public adjuster Bryan Jerman of Assura Corporation to assist him with
          obtaining coverage under the policy. On January 14, 2004, Jerman sent a letter
          and a notice to American Family regarding his representation of Shaw. The
          notice, signed by Shaw, requested that American Family contact Assura
          “directly on all matters regarding or related to [his] loss.” Id. at 86.
                  On January 30, 2004, American Family claims examiner Joe Duffy sent
          a letter to Jerman, with a copy to Shaw,1 stating that he had sent a proof of loss
          form to Shaw on December 5, 2003; that Shaw had acknowledged receipt of
          the form; and that Jerman had “60 days or until Tuesday, February 3, 2004 to
          complete the sworn Proof of Loss and return it to [American Family] with
          supporting documentation. Mr. Shaw’s notarized signature is REQUIRED.”
          Id. at 87. Duffy’s letter further states in pertinent part,

                         We request that you attach the following items or
                  documents to the sworn Proof of Loss:
                  1. As provided under Conditions, Section I, point 19, c, found
                  on page 9 of your policy, furnish us with a detailed list of the
                  damaged property, showing the quantities, when and where
                  acquired, original cost, current replacement value and the
                  amount of loss claimed.
                  2. As provided under Conditions, Section I, point 19, e,
                  paragraph 6, found on page 9 of your policy, provide the plans
                  and specifications of the damaged dwelling or structure.
                  3. As provided under Conditions, Section I, point 19, e,
                  paragraph 7, found on page 9 of your policy, provide detailed
                  estimates for the repair of damage to your dwelling.
                  As provided under Conditions, Section I, point 19, e., paragraph
                  8, found on page 9 of your policy, provide receipts for any
                  increased costs to maintain your standard of living while you
                  reside elsewhere, and records pertaining to any loss of rental

1
    Duffy sent Shaw a copy of all letters that he sent to Jerman.

                                                       4
       income.
               I do not have the authority to make any verbal
       agreements or commitments on behalf of American Family
       Mutual Insurance Company. All agreements must be in writing.
       The “CONDITIONS—SECTION I” portion of the policy
       entitled What You Must Do In Case Of Loss, outlines the
       insured’s duties. None of these requirements will be waived by
       American Family Mutual Insurance Company.

Id. at 87-88 (bold emphasis omitted).
        In a letter to Jerman dated February 16, 2004, Duffy stated that he had
not yet received the proof of loss form. He acknowledged that Shaw had
complained that his furnace had stopped working, ostensibly because of the
vandalism, although it was Duffy’s “understanding that the furnace [had] not
been working for some time.” Id. at 90. Duffy stated that he had arranged to
have someone inspect the furnace that day if Shaw could be contacted for an
appointment. Finally, Duffy noted that he had requested a recorded statement
from Shaw regarding the furnace claim, to which Jerman had agreed only if he
could provide the list of questions that Duffy would ask. Duffy noted that he
had rejected this condition because he could not “conduct a proper
investigation being constrained to such a list.” Id. at 90-91. Duffy noted that
Jerman had agreed to drop this condition and that they had set an appointment
for the recorded statement for 10:00 a.m. on February 19, 2004.
        In a letter to Jerman dated February 23, 2004, in which Duffy enclosed
a certified copy of Shaw’s policy, Duffy stated that Jerman had informed him
on February 18 that Shaw “did not want to make our meeting of February 19,
2004.” Id. at 92. Duffy further stated that a furnace technician had contacted
Shaw and agreed to inspect the furnace on the morning of February 17, but that
Shaw did not answer either the door or his phone at the appointed time.
According to Duffy, when the technician called Shaw later that same day,
Shaw informed him that the furnace had been repaired over the weekend and
was “now working fine.” Id. Duffy stated that because American Family had
not been “able to inspect the furnace [it would not be] able to give
consideration to a claim for the furnace or Additional Living Expense as a
direct result of this claim filed.” Id.
        In a letter to Jerman dated February 25, 2004, Duffy stated that he had
received a proof of loss form from Jerman and that American Family was
“denying the Proof of Loss after careful review.” Id. at 93. Duffy stated that
the form submitted by Jerman was “not in compliance with the American
Family Insurance Form” and that he had enclosed another “American Family
Sworn Statement in Proof of Loss form.” Id. Duffy reiterated the terms of the
policy’s insuring agreement and conditions and asked Jerman to:
                                        5
       return the properly completed form with all supporting
       documentation. The proof must include all claims being made
       under Coverage[s] American Family [dwelling and dwelling
       extension], B [personal property] and C [loss of use and
       supplementary coverages]. The actual dollar amounts being
       claim[ed] must too appear on the Proof. In addition, there is no
       way to tell who[ ] actually notarized your proof, so please be
       sure to have your notary print their name as well as sign their
       name.
              As an insurance professional you should know what is
       required in a Sworn Statement in Proof of Loss. The form you
       submitted is incomplete and not on the proper form. The form
       provided is not a Proof of Loss by definition.

Id. at 94.
        In a letter to Jerman dated February 27, 2004, Duffy enclosed an
authorization for information and access form and requested that Shaw read,
sign, and return the form. Duffy reiterated the policy’s cooperation clause and
stated,

               American Family is requesting the form to continue its
       investigation. Failure to provide us[ ] with the properly signed .
       . . form will hinder our ability to give proper consideration to the
       claims Bret Shaw has made and the insured’s failure to
       cooperate with us[ ] is against the policy provisions.
               I spoke to [the American family claims manager]
       yesterday. There is a misunderstanding regarding the estimate
       [for the repair of Shaw’s home]. When asked by you if I had an
       estimate on February 10, 2004, I stated I did have an estimate,
       but was waiting on Jerry Hostetler’s estimate along with the
       proof. I never stated I’d send you a copy of my estimate prior to
       receiving the proof.

Id. at 95.
        On March 2, 2004, Duffy sent Jerman a letter that reads in pertinent part
as follows:

              This will acknowledge the message you left on my voice
       mail yesterday, March 1, 2004. You stated that you spoke to
       Mr. Shaw earlier that morning and Mr. Shaw stated he refuses to
       sign the previously mailed authorization form enclosed in my
                                     6
       letter dated February 27, 2004.
               Mr. Shaw’s refusal to sign the Authorization for
       Information and Access form is in violation of the terms and
       conditions of his policy. By not signing the authorization, Mr.
       Shaw is not complying with the terms and conditions of the
       policy indicating he must cooperate with us. His refusal to sign
       may jeopardize coverage and payment under his insurance
       policy with American Family Insurance.
               To address your request that we set up an EUO,
       Examination Under Oath, of Mr. Shaw immediately, I must
       respectfully decline. We will determine when and if an EUO is
       needed. Until then I would suggest you respond to my letter
       dated February 25, 2004 in which we rejected your Proof and
       requested a proper Proof of Loss on the American Family form.
        I will await your response.

Id. at 96.
        On March 23, 2004, Duffy sent Jerman a letter that reads in pertinent
part as follows:

               This letter is to remind you that we rejected your Proof of
       Loss.
                                    *****
              The Proof must include all claims being made under
       Coverage[s] American Family, B and C. The actual dollar
       amounts being claimed must appear on the Proof. Furthermore,
       all supporting documentation must also accompany the Proof.
              Here are some points of fact that your Proof submission
       did not include:
       1. The actual dollar amount of loss claimed for each coverage.
       2. The insured’s interest in all property, contents and building.
       3. Any other person(s), company or organization having an
       ownership interest in the contents or building.
       4. Does any other insurance apply to this loss and will a claim be
       made under that insurance?
       5. Prior to the loss, was there any change in your interest, use or
       occupancy of the building or contents?




                                        7
                6. The fraud language which is above the insured’s signature
                must be included on the Proof of Loss and is required on all
                Proofs submitted.2
                        We are enclosing again our Proof of Loss form which has
                all items needed, including the fraud language, for your ease and
                simplification in responding to the Proof of Loss. You must
                attach documentation to support your claim. It is our
                understanding that you are in agreement with our building repair
                estimate. If that is correct, then please indicate that amount on
                the Proof of Loss.
                        In addition, there is no way to tell who actually notarized
                your proof, so please be sure to have your notary print their
                name as well as sign their name.
                        You had received the Sworn Statement in Proof of Loss
                form on February 26, 2004. Therefore, your properly completed
                Proof of Loss must be submitted by April 25, 2004.
                        I have also enclosed a copy of my March 2, 2004 letter
                outlining the fact that Mr. Shaw had refused to sign and return
                our Authorization for Information and Access form.
                Please be reminded on page 13 of 16 GENERAL
                CONDITIONS, it states;
                5. Cooperation. You must cooperate with us in performing all
                acts required by this policy.
                        By not signing the authorization, Mr. Shaw is not
                complying with the terms and conditions of the policy. His
                refusal to cooperate may jeopardize coverage and payment
                under his insurance policy with American Family Mutual
                Insurance Company. We are again asking Mr. Shaw to sign the
                Authorization for Information and Access form, so I have
                enclosed another copy for your convenience.
                        We want to have the Authorization for Information and
                Access form signed and returned to us within 10 days of your
                receipt of this letter.

        Id. at 98-99 (bold emphases omitted).

2
  See Ind. Code § 27-2-16-3(a) (“All preprinted claim forms provided by an insurer to a claimant that are
required as a condition of payment of a claim must contain a statement that clearly states in substance the
following: ‘A person who knowingly and with intent to defraud an insurer files a statement of claim
containing any false, incomplete, or misleading information commits a felony.’”).

                                                    8
                 In a letter to Jerman dated November 18, 2004, American Family
          property claim manager George Deel stated,

                          This will acknowledge the letter we received from Mr.
                  Shaw’s Power of Attorney, [his parents3] Jerry and Carolyn
                  Shaw dated November 9, 2003.
                                           *****
                          Apparently, Mr. and Mrs. Shaw are misinformed with
                  what has transpired on this claim. They seem to think we have
                  been the delay in handling this claim, when in fact, Mr. Shaw
                  has never submitted a proper Sworn Statement in Proof of Loss
                  as required by the policy and requested by us. The only proof
                  we have received was a partial proof which we received in
                  February of 2004 and rejected on February 25, 2004. We
                  reiterated the rejection and requested a proper proof on March
                  25, 2004.
                          As we have indicated to you on numerous occasions, we
                  cannot begin to process the claim of Mr. Shaw without this
                  proof and the accompanying documentation to substantiate the
                  claim being made. I should remind you that any items replaced
                  after November 19, 2004, the one year anniversary of the loss
                  date, can only be settled at actual cash value (ACV) and are not
                  eligible for replacement cost (RC).
                          Also, please contact Joe Duffy to make arrangements for
                  him to stop by your office to inspect the Power of Attorney
                  (POA). As we mentioned previously, the seal of the notary did
                  not show up in the faxed copy you sent us and to deal with Mr.
                  & Mrs. Pinson [sic], we need to visually verify they had the
                  POA properly signed and notarized. We have to do this to make
                  sure Bret Shaw is protected.
                          We look forward to working with you on this claim.

          Id. at 105.
                  On February 9, 2005, Duffy sent a letter to Shaw’s attorney,
          Konstantine Orfanos, that begins,




3
    While his claim was pending, Shaw was incarcerated and granted his parents a power of attorney.

                                                     9
             This letter is in regard to your letter of representation I received
      by fax on February 2, 2005. You indicate that we have not cooperated,
      but we have. We have given ample opportunity for both Mr. Shaw and
      Mr. Jerman to provide us an actual Proof of Loss with supporting
      documentation.

Id. at 107. Duffy summarized his correspondence with Jerman, cited the
applicable policy provisions, and detailed Shaw’s and Jerman’s failure to
comply with them. Duffy went on to say,

      We never received a properly completed Proof of Loss from
      Bryan Jerman or Bret Shaw. It wasn’t until June 6, 2004 that we
      talked and Bryan stated a Proof of Loss was dropped off at our
      office on or about March 25, 2004. He stated he had a signed
      receipt of the mail being delivered to our office. Bryan has
      failed to provide us with the documentation proving he delivered
      a revised Proof of Loss. I sent him a letter certified, as with all
      letters, offering to meet him to obtain the Proof of Loss and the
      signed receipt showing he delivered the Proof of Loss to the
      office on or about March 25, 2004. On June 10, 2004 I spoke to
      Bryan and he stated the proof may not have been sent after all.
      As I previously stated, we never received a Proof after the one
      rejected on February 25, 2004.
                                   *****
      In conclusion, we gave ample time to resubmit the proof of loss.
       We gave them every opportunity to comply with the policy.
      The time limit has passed for completing the Proof of Loss. We
      made it very clear that we were not waiving our rights under the
      policy and that we were only giving them 60 more days to
      resubmit the Proof. It was never returned. This is a breach of
      contract. Further, Mr. Shaw never properly cooperated with us.
       He refused to sign an Authorization form, which we needed for
      the proper completion of our investigation. This is also a breach
      of the insurance contract. The one year time limit to collect
      replacement cost on any contents expired one year from the date
      of loss. A proper claim was never submitted. Finally, the one
      year limit to file suit ran on November 19, 2004, which is one
      year from the date of loss. This concludes any coverage on this
      loss. The actions of Mr. Shaw and his agent, Mr. Jerman[,] have
      violated the contract and substantially prejudiced our ability to
      investigate this claim. We are denying Bret Shaw’s claim in its
      entirety. We are denying the claim for the above reasons either
                                      10
                  singularly or in any combination.

         Id. at 109-10.
                 On January 11, 2006, Shaw filed a complaint against American Family
         and Jerman.4 On April 10, 2006, American Family filed a motion to
         dismiss/motion for judgment on the pleadings. On July 20, 2006, the trial
         court granted the motion to dismiss as to Shaw’s breach of contract claim,
         which it allowed him to replead, and denied the motion as to his bad faith
         claim. Shaw filed his first amended complaint on May 19, 2006, and his
         second amended complaint on July 31, 2006.
                 On May 3, 2007, American Family filed a motion asserting that it was
         entitled to summary judgment on two separate grounds: (1) that Shaw failed to
         file suit within one year after the loss occurred as required by the policy; and
         (2) that Shaw had breached the policy by failing to submit a proper proof of
         loss and a signed authorization for access and information. Shaw filed a
         response on September 4, 2007, and the trial court held a hearing on the
         motion nine days later. On October 22, 2007, the trial court entered an order
         that reads in pertinent part as follows:

                  The Court, being duly advised in the premises, determines that
                  the material facts are not in dispute and that the law is with the
                  Defendant and against Plaintiff, Bret D. Shaw. The Court,
                  finding that there is no just reason for delay, now grants
                  Defendant’s Motion for Summary Judgment and enters a final
                  judgment in favor of the Defendant, American Family Mutual
                  Insurance Company, and against the Plaintiff, Bret D. Shaw.
                  The Court holds that: Plaintiff breached the terms, conditions
                  and requirements of the policy of insurance; the Defendant,
                  American Family Mutual Insurance Company, owes no
                  insurance coverage or liability to Plaintiff as a result of his
                  alleged loss on November 19, 2003, and that the Defendant is
                  not liable for any bad faith or punitive damages as alleged.

Slip op. at 2-12 (footnotes and emphasis in original).

         Shaw appealed, and we affirmed that summary judgment. Id. at 16. In August of


4
    Shaw’s original complaint does not appear in the record before us.




                                                     11
2011, Shaw moved for summary judgment against Jerman and Jerman filed a cross-motion.

The trial court granted Jerman’s motion, and Shaw brought this appeal.

                             DISCUSSION AND DECISION

       We note initially that Jerman did not file an appellee’s brief. Instead of imposing on

this court the burden of controverting arguments advanced for reversal, Indiana courts have

long applied a less stringent standard of review with respect to showings of reversible error

when the appellee does not file a brief. Johnson County Rural Elec. Membership Corp. v.

Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985). To win reversal, Shaw, as the appellant,

need establish only that the lower court committed prima facie error. Id. In this context,

“prima facie” means at first sight, on first appearance, or on the face of it. Id. Likewise,

Shaw’s statement of facts is deemed accurate and sufficient for the disposition of this appeal.

See id. The rules stated above are not for the appellant’s benefit; they have been established

to relieve us of the burden of controverting the arguments advanced for reversal where such

burden rests on the appellee. Id.

       Summary judgment is appropriate only when there are no genuine issues of material

fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C);

Meridian Sec. Ins. Co. v. Hoffman Adjustment Co., 933 N.E.2d 7, 11 (Ind. Ct. App. 2010),

trans. denied. In reviewing a summary judgment, we stand in the shoes of the trial court,

applying the same standards in deciding whether to affirm or reverse. We consider all of the

designated evidence in the light most favorable to the non-moving party. Id. The party

appealing the summary judgment has the burden of persuading us the trial court’s ruling was

                                              12
improper. Id.

       Shaw has demonstrated prima facie error. Ind. Code § 27-1-27-1 defines the role

of public adjusters and provides in pertinent part:

       (a) The term “public adjuster” shall include every individual or corporation
       who, or which, for compensation or reward, renders advice or assistance to the
       insured in the adjustment of a claim or claims for loss or damages under any
       policy of insurance covering real or personal property and any person or
       corporation who, or which, advertises, solicits business, or holds itself out to
       the public as an adjuster of such claims. However, no public adjuster shall:
       (1) act in any manner in relation to claims for personal injury or automobile
       property damage; or
       (2) bind the insured in the settlement of claims.

       Accompanying an undertaking to procure insurance is a duty to exercise reasonable

skill, care, and diligence. Medtech Corp. v. Indiana Ins. Co., 555 N.E.2d 844, 849 (Ind. Ct.

App. 1990), trans. denied. The party on whose behalf the duty is being undertaken must

relinquish control of the obligation; the party who adopts the duty must be acting in lieu of

the original party. Id.

       Shaw designated evidence that Jerman did not submit a timely proof of loss with

repair estimates; told Shaw he did not need to give American Family the recorded statement

it asked for and told American Family that Shaw would not give such a statement; and told

American Family that Shaw would not sign a required authorization statement, but did not

discuss the statement with Shaw. Shaw also designated evidence that his claim was denied.

That designated evidence gives rise to a genuine issue of fact as to whether Jerman, as

Shaw’s agent, might be liable to Shaw. Summary judgment for Jerman was therefore error.



                                             13
       However, there was also evidence that Shaw sometimes did not cooperate with Jerman

and his actions or inaction might have been the reason his claim was denied. Jerman’s

affidavit, which was designated in his response to Shaw’s summary judgment motion,

includes statements that Jerman represented Shaw as a “limited engagement,” (App. at 171),

meaning Shaw was responsible for compiling information and providing it to Jerman, and

Shaw did not respond to some requests for information Jerman needed to pursue the claim.

(Id. at 172.) The affidavit also says Shaw refused to give a recorded statement the insurer

wanted. (Id. at 173.) We therefore decline Shaw’s invitation to direct the entry of summary

judgment in his favor.

       We reverse the summary judgment for Jerman and remand for further proceedings.

       Reversed and remanded.

NAJAM, J., and KIRSCH, J., concur.




                                            14
