MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Jan 08 2019, 8:55 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES:
                                                         EVERETT CASH MUTUAL
Patrick J. Olmstead, Jr.
                                                         INSURANCE COMPANY AND
Patrick Olmstead Law LLC
                                                         EVERETT CASH MUTUAL
Greenwood, Indiana
                                                         INSURANCE GROUP
Eric C. Bohnet
                                                         J. Blake Hike
Eric C. Bohnet, Attorney at Law
                                                         Larry L. Barnard
Indianapolis, Indiana
                                                         Carson Boxberger LLP
                                                         Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Edwin Blinn, Jr. and Lisa Blinn,                         January 8, 2019
d/b/a Blinn Enterprises and                              Court of Appeals Case No.
Washington Bradford Building,                            18A-PL-262
LLC,                                                     Appeal from the Grant Circuit
Appellants-Plaintiffs,                                   Court
                                                         The Honorable Mark E. Spitzer,
        v.                                               Judge
                                                         Trial Court Cause No.
Everett Cash Mutual Insurance                            27C01-1306-PL-26
Company, Everett Cash Mutual
Insurance Group and Excel
Insurance Services, Inc.,
Appellees-Defendants.



Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                  Page 1 of 24
      Robb, Judge.



                                   Case Summary and Issues
[1]   Edward Blinn, Jr. and Lisa Blinn, d/b/a Blinn Enterprises (collectively, “the

      Blinns”) and Washington Bradford Building, LLC, sued Everett Cash Mutual

      Insurance Co. and Everett Cash Mutual Insurance Group (collectively,

      “ECM”) seeking recovery under an insurance contract.1 The Blinns now appeal

      the trial court’s grant of summary judgment to ECM on the Blinns’ complaint

      for recovery of debris removal expenses under the insurance contract and for

      bad faith by ECM, raising several issues for our review that we consolidate and

      restate as two: 1) whether the trial court erred in granting summary judgment

      to ECM as to the debris removal expenses claim; and 2) whether genuine issues

      of material fact remain as to whether ECM acted in bad faith in handling the

      Blinns’ claim. Concluding the trial court properly granted summary judgment

      on both claims, we affirm.



                               Facts and Procedural History
[2]   In 2011, the Blinns owned a building in Marion, Indiana, that had been

      converted from an elementary school to a thirty-two unit apartment building.




      1
        The Blinns also named in their complaint Excel Insurance Services, Inc., their agent who procured the
      ECM policy, claiming negligence and/or negligent procurement of insurance by Excel. It is not clear from
      the parties’ briefs and appendices whether Excel is still involved in this litigation at all, but it is not involved
      in this appeal. We have therefore limited our recitation of the facts to only those relevant to ECM.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                           Page 2 of 24
      Blinn Enterprises, in which Edward and Lisa were the principals, operated the

      building. On March 11, 2011, the Blinns secured a $1,000,000 actual cash

      value (“ACV”) insurance policy with a $3,000 deductible on the building via an

      insurance policy issued by ECM.2 Fire was a covered peril. One of the

      additional coverages provided under the policy was for debris removal

      expenses:


                 1. Debris removal – We cover the cost to remove the debris of
                 covered property that is caused by a covered peril.
                 ***
                 We do not pay any expenses unless they are reported to us in
                 writing within 180 days from the date of direct physical loss to
                 the covered property.


      Appendix of Appellants, Volume 2 at 72.


[3]   On June 7, 2011, the building was damaged by a fire set by one of the tenants.3

      On that same date, Greg Smith was assigned to adjust the claim and conducted

      an initial inspection of the premises. He notified ECM by a letter titled “First

      Report” and dated June 30, 2011, that the building appeared to be a total loss




      2
          Blinn Enterprises, Inc. was the named insured on the policy.
      3
        Shortly after the fire, the Blinns transferred ownership of the property to Washington Bradford Building,
      LLC “[b]ecause of the risk of damage during the demolition and debris removal during the remodeling” of
      the building. App. of Appellants, Vol. 2 at 43. ECM claimed this transfer to an entity not insured by ECM
      extinguished the Blinns’ insurable interest because the policy had a non-assignability clause. The trial court
      found in its summary judgment order that because the transfer occurred post-loss, the claim was assignable
      without ECM’s consent. See Appealed Summary Judgment Order at 6. Although ECM includes the
      assignment provision from the policy in its Statement of the Facts, see Brief of Appellees at 9, ECM does not
      advance an argument regarding that adverse determination.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                     Page 3 of 24
      and that the Blinns had initiated the debris removal process. App. of

      Appellants, Vol. 3 at 186-87. On July 22, 2011, Martin Enterprises, Inc. sent a

      proposal to Smith “to provide labor and equipment to demolish the old

      apartment building completely and dispose of material off site, then fill area of

      demo with material on site to Martin’s new grades” for $228,000. Id., Vol. 3 at

      160. On October 25, 2011, Hile Construction provided an estimate for repair

      work on the building including $18,500 for dumpsters and $8,000 for debris

      removal. Id., Vol. 4 at 142.4 On October 31, 2011, Smith submitted an interim

      report to the law firm now representing ECM that included the Hile

      Construction estimate. See id., Vol. 4 at 143.


[4]   As of September 29, 2011, ECM had apparently not made an offer of settlement

      and the Blinns’ attorney contacted an ECM claims manager requesting an offer

      or an explanation of the delay. Id., Vol. 4 at 136. On October 13, 2011, the

      Blinns filed a complaint with the Indiana Department of Insurance about

      ECM’s inaction.5 Part of the complaint alleged the Blinns had incurred “many

      expenses” for demolition of the building but ECM had not yet “given us a date

      on any payments, made any payments and have not attempted to settle this

      claim.” Id., Vol. 4 at 140.




      4
       Based on how the categories of costs are grouped in the estimate, $9,230 for permits may be included as
      part of the debris removal estimate.
      5
          It is not clear what, if anything, happened as a result of this complaint.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                  Page 4 of 24
[5]   ECM advanced $100,000 to the Blinns in October 2011. In January 2012, an

      appraiser hired by ECM determined the ACV of the building was $745,500.6

      ECM advanced an additional $200,000 in February and $442,500 in March

      2012. The total amount advanced equaled the ACV as determined by ECM’s

      appraiser minus the deductible.


[6]   On January 23, 2012, 230 days after the fire, the Blinns, by counsel, sent a letter

      to the attorney representing ECM that included the following:


              One additional issue we have not discussed is demolition/clean-
              up coverage. My understanding is that such coverage is available
              on the subject policy in addition to the ACV coverage and Mr.
              Blinn will have expenses covered by that policy benefit in
              addition to the ACV loss on the property.


      Id., Vol. 4 at 249. No documentary evidence supporting debris removal

      expenses was provided at that time. In March 2012, ECM forwarded a copy of

      its appraisal to the Blinns and the Blinns reciprocated with their own appraisal.

      The Blinns’ counsel then wrote to ECM, noting that “[w]ith [your] appraisal

      and including all debris removal or clean up coverage, the indicated indemnity

      obligation is at least $936,250.” Appellees’ Appendix, Volume IV at 74.

      Again, however, no documentary evidence of debris removal expenses was

      provided to ECM. In April, after ECM had submitted the third advance

      payment to the Blinns, ECM requested documentation of the debris removal



      6
       In October 2011, ECM’s appraiser appraised the property at $802,500. See App. of Appellants, Vol. 4 at 4.
      After receiving further information from the Blinns, the appraiser revised his appraisal to $745,500.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                 Page 5 of 24
      expenses and asked that Edward submit to an examination under oath as

      required by the policy. The Blinns provided documentation in April and June

      2012 that ECM believed had no apparent relation to debris removal. At

      Edward’s first examination under oath, in August 2012, he admitted that the

      provided documentation did not distinguish between debris removal and other

      activities on the property and that no such records were kept by the Blinns:


               Q: [W]ould you ever be able to provide any documentation that
               would allow us to differentiate between sweeping up loose debris
               that was in place after the fire was extinguished in contrast with
               the term I use which is tear-out?


               A: There would be no documentation between the two.


               Q: [T]here’s no way that you can provide us with that
               information, correct, because those records weren’t generated for
               whatever reason?


               A: Correct.


      Id., Vol. IV at 88.


[7]   On June 6, 2013, failing to have reached an agreement as to the amount of the

      Blinns’ loss, the Blinns filed their complaint against ECM alleging breach of

      contract and bad faith. The ACV of the building was settled at $745,500 via the

      appraisal process described in the policy.7 On July 5, 2016, ECM filed a motion



      7
       The Blinns had obtained an appraisal of $1,200,000 for the building. Failing to agree with ECM on a
      valuation, the Blinns invoked the appraisal process provided in the policy. After the appraisal process was

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                    Page 6 of 24
      for summary judgment on all remaining issues: the Blinns’ claims for debris

      removal coverage under the policy and for bad faith. ECM claimed the Blinns

      are not entitled to recover debris removal expenses because they failed to timely

      submit a claim for those expenses and failed to produce documentation of their

      debris removal expenses. ECM also claimed the Blinns were not entitled to

      punitive damages for bad faith.


[8]   While ECM’s motion for summary judgment was pending but before the Blinns

      filed their response,8 the Blinns filed a motion to compel claiming entitlement to

      discover ECM’s attorneys’ files because “the attorneys were performing the

      business functions and duties that ECM owed to the [Blinns].” App. of

      Appellants, Vol. 5 at 3. The Blinns asserted in a sixty-two page, 347 paragraph

      motion that because this was insurance adjustor work and not legal work, the

      files are not protected from disclosure. The trial court’s order on the motion to




      completed and the umpire determined the ACV was $745,500, ECM requested that the Blinns dismiss their
      Building Property Coverage claims as they had already been compensated the full amount of the ACV. A
      year after that request, the Blinns had still not done so. An order of partial summary judgment was entered
      in December 2015 determining that the appraisal process was binding with respect to the ACV of the
      building.
      Also, at some point the Blinns made a claim for lost earnings or rent under the policy. In February 2014, the
      Blinns’ counsel indicated to ECM’s counsel that the Blinns had agreed to withdraw this claim because there
      was no such coverage in the policy. But again, they did not dismiss it at ECM’s request. The December
      2015 order of partial summary judgment determined ECM was entitled to rely on that representation and
      granted summary judgment as to the lost earnings or rent claim.
      8
        The Blinns requested and received four extensions of time to respond to ECM’s motion for summary
      judgment. It was not until after the second extension of time was granted that the Blinns filed this motion to
      compel. The Blinns’ fourth request for an extension of time requested the time for a response be extended
      until after the trial court ruled on the motion to compel. The trial court ruled on the motion to compel on
      November 29, 2016, and the Blinns finally responded to the motion for summary judgment on January 30,
      2017.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                    Page 7 of 24
      compel found that ECM’s attorney “was not hired as adjuster, but as counsel,

      in anticipation of litigation” after the Blinns retained counsel and filed a

      complaint with the Department of Insurance. Appealed Order on Motion to

      Compel at 2. “Thus, it would appear that ECM has asserted a valid claim of

      privilege regarding the documents and information not disclosed in discovery.”

      Id. at 3. Although effectively denying the motion to compel, the court did find

      that a privilege log tendered by ECM was “somewhat cryptic” and directed

      ECM to issue a revised privilege log within thirty days of the date of the order.

      Id. The parties were directed to then meet and confer to determine if any

      discovery disputes remained and if another hearing was necessary. It does not

      appear any further motions were filed or hearings were held regarding

      discovery.


[9]   The trial court’s order denying the motion to compel also set a timeline for the

      Blinns to respond to the motion for summary judgment, for ECM to reply

      thereto, and set a corresponding hearing. The Blinns timely filed their response

      to summary judgment and designation of evidence in January 2017 and a

      hearing was held in March. Following the hearing, the trial court entered an

      extensive order and granted summary judgment to ECM on all claims. The

      Blinns filed a motion to correct error that was denied by the trial court after a

      hearing. The Blinns now appeal the trial court’s denial of their motion to

      compel and the grant of ECM’s motion for summary judgment.



                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 8 of 24
                                        I. Standard of Review
                                     A. Motion to Correct Error
[10]   Generally, a trial court has wide discretion to correct errors, and we will reverse

       only for an abuse of that discretion. Paulsen v. Malone, 880 N.E.2d 312, 313

       (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court’s

       action is against the logic and effect of the facts and circumstances before it and

       the inferences that may be drawn therefrom, or if it is based on impermissible

       reasons or considerations. Id. However, to the extent the issues are purely

       questions of law, our review is de novo. City of Indianapolis v. Hicks, 932 N.E.2d

       227, 230 (Ind. Ct. App. 2010), trans. denied. Our standard for reviewing a

       decision on a motion to correct error nevertheless directs us to consider the

       underlying order—here, the order granting ECM’s motion for summary

       judgment.


                               B. Motion for Summary Judgment9
[11]   The interpretation of an insurance policy, like the interpretation of any contract,

       presents a question of law and is appropriate for summary judgment. Didion v.




       9
         Indiana Appellate Rule 50(A)(1) states that the purpose of an Appendix in a civil appeal is “to present the
       Court with copies of only those parts of the Record on Appeal that are necessary for the Court to decide the
       issues presented.” This is to include “pleadings and other documents from the Clerk’s Record in
       chronological order that are necessary for resolution of the issues raised on appeal[.]” Ind. Appellate Rule
       50(A)(2)(f).
       The Blinns appendices (including a supplemental appendix filed after ECM filed its brief and appendices)
       contain the following: the appealed orders (order on summary judgment, order on motion to compel, and
       order denying the Blinns’ motion to correct error); the Blinns’ complaint; the Blinns’ Response in Opposition
       to Summary Judgment; the Blinns’ Designation of Evidence in Opposition to Motion for Summary
       Judgment with some but not all of the attached exhibits (the designation lists thirty-five exhibits, but only

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                    Page 9 of 24
Auto-Owners Ins. Co., 999 N.E.2d 108, 112 (Ind. Ct. App. 2013). On appeal, we

review summary judgment with the same standard employed by the trial court:

relying only on the evidence designated by the parties and construing all facts

and reasonable inferences in favor of the non-moving party, we will affirm the

grant of summary judgment “if the designated evidentiary matter shows that

there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Ind. Trial Rule 56(C); City of Beech

Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). “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.”

Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 253 (Ind. 2015) (citation

omitted).




twenty-five exhibits are included in the appendices); and the Blinns’ Motion to Compel Production of
Documents and Testimony with attached exhibits. The appendices do not include any of ECM’s pleadings
or designated evidence.
Considering our standard of review requires us to stand in the shoes of the trial court and rely only on the
evidence designated to the trial court, it is difficult for us to understand why the Blinns thought we could fully
and completely decide the issues presented when they did not provide to us the entirety of the summary
judgment materials available to the trial court. We are especially troubled by the Blinns’ selective inclusion
of their designated evidence. However, ECM provided some additional material in their appendices,
including ECM’s Memorandum in Support of Motion for Summary Judgment; ECM’s Designation of
Evidence and attached exhibits; ECM’s Reply in Support of Motion for Summary Judgment; ECM’s
Response in Opposition to the Motion to Compel; and ECM’s Statement in Opposition to Motion to Correct
Error. We therefore believe we have a sufficiently complete picture to determine whether summary judgment
was properly granted, but we caution counsel to provide all pertinent parts of the record in future filings as
the appellant in this court.



Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                      Page 10 of 24
[12]   The moving party has the initial burden to show the absence of any genuine

       issue of material fact as to a determinative issue. Hughley v. State, 15 N.E.3d

       1000, 1003 (Ind. 2014). Indiana law requires the moving party to “affirmatively

       negate an opponent’s claim.” Id. The burden then shifts to the non-moving

       party to come forward with contrary evidence showing an issue to be

       determined by the trier of fact. Id. We construe the evidence in the light most

       favorable to the non-movant and resolve all doubts about the existence of a

       genuine issue of material fact against the movant. Broadbent v. Fifth Third Bank,

       59 N.E.3d 305, 310 (Ind. Ct. App. 2016), trans. denied. “Indiana consciously

       errs on the side of letting marginal cases proceed to trial on the merits, rather

       than risk short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004. The

       non-prevailing party has the burden of persuading us that the trial court’s ruling

       was erroneous. Id. at 1003.


[13]   Here, the trial court issued a lengthy and thorough order explaining its decision.

       A trial court’s findings on summary judgment are helpful in clarifying its

       rationale, but they are not binding on this court on review. Biedron v.

       Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018). We are

       not constrained to the arguments made to the trial court and we may affirm a

       grant of summary judgment on any basis supported by the designated evidence.

       Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 11 of 24
                                II. Debris Removal Expenses
[14]   We review an insurance policy using the same rules of interpretation applied to

       other contracts; that is, if the language is clear and unambiguous we will apply

       the plain and ordinary meaning. Adkins v. Vigilant Ins. Co., 927 N.E.2d 385, 389

       (Ind. Ct. App. 2010), trans. denied. An insurance policy is ambiguous if a

       provision is susceptible to more than one interpretation and reasonable persons

       would differ as to its meaning. Id. An ambiguity does not exist merely because

       the parties favor different interpretations, however. Id. An insurance contract

       that is unambiguous must be enforced according to its terms, “even those terms

       that limit an insurer’s liability.” Sheehan Constr. Co. v. Cont’l Cas. Co., 935

       N.E.2d 160, 169 (Ind. 2010). The power to interpret insurance contracts “does

       not extend to changing their terms, and we will not give insurance policies an

       unreasonable construction to provide added coverage.” Adkins, 927 N.E.2d at

       389. In other words, we may not extend coverage beyond that provided by the

       unambiguous language of the contract. Sheehan Constr. Co., 935 N.E.2d at 169.

       “[I]nsurers have the right to limit their coverage of risks, and, therefore, their

       liability by imposing exceptions, conditions, and exclusions.” Id.


[15]   ECM denied the Blinns’ debris removal claim “because 1) Blinn failed to

       submit a written demand for debris removal expenses within 180 days of the

       Loss pursuant to the Policy; and 2) Blinn could not produce documentation

       substantiating incurred debris removal expenses.” Brief of Appellees at 20.

       ECM therefore contends the trial court properly granted summary judgment

       because as a matter of law, the Blinns had not met the policy requirements for

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 12 of 24
       recovering debris removal expenses. The Blinns contend the policy does not

       specify that they must notify ECM of their claim and that ECM knew they were

       conducting debris removal and incurring debris removal expenses as a result of

       several communications within 180 days of the fire; therefore, they contend

       summary judgment was inappropriate because they “report[ed] the existence of

       debris removal expenses as the contract requires.” Brief of Appellants at 16.


[16]   With respect to the debris removal expenses claim, the trial court found:


               The policy . . . clearly provides for debris removal coverage, but
               requires that expenses related to debris removal be 1) reported to
               ECM, 2) in writing, 3) within 180 days of the loss. The date of
               loss herein was the date of the fire – June 7, 2011. Significantly,
               [t]he Blinns had retained counsel within the 180-day limitation
               period for purposes of securing payment under the policy. The
               designated evidentiary materials indicate that the first mention of
               a debris removal claim was on January 23, 2012 in a letter from
               [t]he Blinns’ counsel – 230 days after the loss. That letter did not
               contain any documentation of expenses . . . . These expenses
               were incurred in June through December 2011, and thus
               presumably could have been documented then.


               ***


               [T]he policy both conferred its benefits on the Blinns and
               subjected them to the contractual condition precedent of notice
               and documentation prior to reimbursement of the expenses. This
               condition precedent should not have taken them by surprise – the
               Blinns were represented by counsel. Nonetheless, they failed to
               timely submit documentation of their expenses. As such, they
               have not complied with the clear terms of the policy and
               summary judgment is appropriate.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 13 of 24
       Appealed Order at 7-9 (footnotes omitted).


[17]   The duty to notify an insurance company of potential liability is a condition

       precedent to the insurer’s liability to its insured. Shelter Mut. Ins. Co. v. Barron,

       615 N.E.2d 503, 507 (Ind. Ct. App. 1993), trans. denied. 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. Miller v. Dilts,

       463 N.E.2d 257, 265 (Ind. 1984). The Indiana Supreme Court stated in Miller:


               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.


       Id.


[18]   The debris removal expenses coverage provision in the policy states, “We do

       not pay any expenses unless they are reported to us in writing within 180 days

       from the date of direct physical loss to the covered property.” App. of

       Appellants, Vol. 2 at 72. The Blinns interpret this to mean the existence of debris

       removal expenses must be reported within 180 days not the amount of debris

       removal expenses. See Br. of Appellants at 15 (noting there were several

       communications from the Blinns or their agents “which should have sufficed to

       report the existence of debris expenses”). Thus, they contend Smith’s “First

       Report” to ECM of June 30, 2011, relaying that debris removal had begun, in

       conjunction with a September 29, 2011 letter from their attorney and their

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 14 of 24
       October 13, 2011 complaint to the Indiana Department of Insurance, was

       sufficient to give notice to ECM that the Blinns were incurring debris removal

       expenses. The Blinns also contend the estimate from Martin Enterprises in July

       2011 and the estimate from Hile Construction which included line items for

       debris removal expenses “reported” the Blinns’ debris removal expenses within

       180 days.


[19]   We agree the policy does not specifically state notice of a debris removal claim

       must be made by the insured (although it stands to reason that only the insured

       could give notice that it intended to pursue such a claim). If the requirement of

       the policy was that ECM be notified debris removal expenses were being

       incurred, perhaps the “notice” ECM received from sources other than the

       Blinns would suffice. However, we need not decide who must make the report,

       because the provision also states what must be in the report. The policy requires

       that any expenses the insured intends for the insurer to pay must be reported in

       writing within 180 days; meaning, the actual expenses the insured wants

       reimbursed must be reported within that time frame. Estimates would not be

       sufficient to meet this requirement. And on this matter, it is undisputed that the

       Blinns did not provide any documentation of their alleged actual expenses for

       debris removal until at least April of 2012, well past the 180 days allowed by the

       policy and past the point at which debris removal had given way to repair work.

       See App. of Appellants, Vol. 2 at 209 (Edward Blinn’s affidavit stating, “We

       had submitted two groups of debris removal expense documents – one set on

       April 27, 2012, and the other set on June 8, 2012.”); id. at 218 (Edward Blinn’s


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 15 of 24
       affidavit stating, “The work done at the Building was exclusively debris

       removal during the first few months after the Fire; there was no work done to

       repair damage until November 2011[.]”). Therefore, the trial court did not err

       in granting summary judgment to ECM on this claim because the Blinns did

       not provide ECM with documentation supporting their claim within the

       timeframe required by the unambiguous terms of the policy.10


                                         III. Bad Faith Claim
[20]   With respect to the Blinns’ bad faith claim, the trial court found:


                [T]o overcome summary judgment, the Blinns must provide
                some evidence whereby the trier of fact could infer conscious
                wrongdoing or other state of mind reflecting dishonest purposes,
                moral obliquity, furtive design, or ill will.


                The Blinns have failed to carry that burden. [They allege] bad
                faith occurred due to 1) ECM’s handling of the building coverage
                claim; and 2) ECM’s handling of the debris removal claim. The
                second issue relating to the debris removal claim has been
                resolved above – ECM was entitled to receive some
                documentation of debris removal before tendering payment
                under the policy. It did not receive such documentation in a
                timely manner. ECM was entitled to insist that the Blinns follow




       10
          Because the Blinns did not timely report their expenses, we need not delve into the disagreement between
       the parties about what constitutes “debris removal.” Also, because the onus was on the Blinns to report the
       expenses they wanted to be covered, see Ellison v. Town of Yorktown, 47 N.E.3d 610, 617 (Ind. Ct. App. 2015),
       we reject their claim that ECM is estopped from denying coverage because it did not request documentation
       of debris removal expenses until after the 180 days had passed.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                  Page 16 of 24
               the dictates of the policy. In doing so, it was not acting in bad
               faith.


               As to the building coverage claim, ECM extended two advance
               payments totaling $300,000 before receiving any documentation
               of the property’s ACV. They then agreed to a process of
               swapping appraisals and ECM tendered the final advance
               payment to the Blinns . . . three weeks after the exchange of
               appraisals. Finally, the parties participated in the appraisal
               process outlined in the policy, which essentially confirmed
               ECM’s valuation. As to delay in this process, it should be noted
               that the Blinns did not deliver an appraisal to ECM until March
               2012, nine months after the loss. [They] can hardly complain
               now about a delay in settlement of the ACV claim.


               The designated evidentiary materials fail to demonstrate any
               evidence of bad faith on the part of ECM. . . . [T]he insurer’s
               obligations include refraining from (1) making an unfounded
               refusal to pay policy proceeds; (2) causing an unfounded delay in
               making payment; (3) deceiving the insured; and (4) exercising an
               unfair advantage to pressure an insured into settlement of his
               claim. None of these misdeeds are present here. Even if the
               judgment of ECM could be questioned in the adjustment process
               here, poor judgment or negligence do not constitute bad faith.
               Summary judgment is appropriate on the Blinns, [sic] bad faith
               claim.


       Appealed Order on Summary Judgment at 10-11 (citations omitted).


                                        A. Motion to Compel
[21]   The Blinns contend that the trial court abused its discretion in denying their

       motion to compel ECM to comply with certain discovery requests. We address

       this issue first because the Blinns contend summary judgment on their bad faith

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 17 of 24
       claim was improperly granted in part because the failure to grant the motion to

       compel “allowed [ECM] to shield much of its claims process from its insured as

       otherwise discoverable work and communications normally done by an adjuster

       were instead deemed privileged[.]” Br. of Appellants at 27.


[22]   A trial court has broad discretion in ruling upon discovery matters, and we will

       reverse such rulings only when there has been a clear abuse of discretion.

       Himsel v. Indiana Pork Producers Ass’n, 95 N.E.3d 101, 109 (Ind. Ct. App. 2018).

       An abuse of discretion occurs if a decision is clearly against the logic and effect

       of the facts and circumstances before the court or if the trial court has

       misinterpreted the law. Wright v. Miller, 989 N.E.2d 324, 330 (Ind. 2013).

       There is a presumption that a trial court will act fairly and equitably in each

       case before it. Id. “Because of the fact-sensitive nature of discovery issues, a

       trial court’s ruling is cloaked with a strong presumption of correctness.”

       Davidson v. Perron, 756 N.E.2d 1007, 1012 (Ind. Ct. App. 2001), trans. denied.


[23]   The attorney-client privilege protects against judicially compelled disclosure of

       confidential information. Hartford Fin. Servs. Grp., Inc. v. Lake Cty. Park &

       Recreation Bd., 717 N.E.2d 1232, 1235 (Ind. Ct. App. 1999); see also Ind. Code §

       34-46-3-1(1). As noted above, see supra ¶ 8, the trial court found that ECM had

       asserted “a valid claim of privilege regarding the documents and information

       not disclosed in discovery.” Appealed Order on Motion to Compel at 3.

       “Parties may obtain discovery regarding any matter, not privileged, which is

       relevant to the subject-matter involved in the pending action . . . .” Ind. Trial

       Rule 26(B)(1). “A simple assertion that an insured cannot . . . prove a case of

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 18 of 24
       bad faith [without disclosure of privileged information] does not automatically

       permit an insured to rummage through the insurers’ claims file.” Hartford, 717

       N.E.2d at 1237.


[24]   ECM retained counsel on October 31, 2011. ECM’s counsel, Mark

       Ulmschneider, averred in an affidavit submitted in response to the Blinns’

       motion to compel that neither he nor any other attorney in his firm “adjusted

       the fire loss claim asserted by [the Blinns] against ECM or determined whether

       to accept or deny coverage for [their] claim.” Appellee’s App., Vol. IV at 173

       ¶ 4. Instead, the attorney’s role “was limited to securing the necessary

       information and documentation in order for ECM to determine whether to

       accept or deny coverage . . . .” Id. at ¶ 5. Despite the Blinns’ bald assertions,

       there is no evidence that Ulmschneider or any other attorney served ECM in

       the capacity of an adjuster. In fact, by the time ECM hired counsel, the Blinns

       had already had counsel for several months and had initiated a complaint

       against ECM with the Indiana Department of Insurance. The work product

       privilege specifically precludes discovery of materials prepared in anticipation of

       litigation or for trial unless the party seeking discovery has a substantial need

       for the materials and is unable without undue hardship to obtain the substantial

       equivalent of the materials by any other means. T.R. 26(B)(3). The work

       product privilege is asserted on a document by document basis. ECM’s counsel

       compiled a privilege log, and the trial court ordered it to supplement its

       “somewhat cryptic” log and allowed the parties the opportunity to bring the

       issue back to the court for another hearing. See Appealed Order on Motion to


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 19 of 24
       Compel at 3. ECM supplemented its log and the Blinns did not contest the

       issue further.


[25]   Under these circumstances, we conclude the trial court did not abuse its

       discretion in denying the Blinns’ motion to compel.


                                        B. Bad Faith by ECM
[26]   Finally, the Blinns contend there is a genuine issue of material fact regarding

       whether ECM acted in bad faith in refusing to pay debris removal expenses,

       delaying payment for the Building Property Coverage, and deceiving the Blinns

       as to their obligations under the contract.


[27]   Insurers are obligated to exercise good faith in determining whether to pay an

       insured’s claim. Earl v. State Farm Mut. Auto. Ins. Co., 91 N.E.3d 1066, 1076

       (Ind. Ct. App. 2018), trans. denied. The obligation of good faith includes the

       obligation to refrain from making an unfounded refusal to pay policy proceeds;

       causing an unfounded delay in making payment; deceiving the insured; or

       exercising an unfair advantage in order to pressure an insured into settling a

       claim. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind. 1993). To prove bad

       faith, the insured must establish by clear and convincing evidence that the

       insurer had knowledge that there was no legitimate basis for denying liability.

       Missler v. State Farm Ins. Co., 41 N.E.3d 297, 302 (Ind. Ct. App. 2015). “Poor

       judgment or negligence do not amount to bad faith; the additional element of

       conscious wrongdoing must also be present.” Id. (quoting Colley v. Ind. Farmers

       Mut. Ins. Grp., 691 N.E.2d 1259, 1261 (Ind. Ct. App. 1998), trans. denied). “A

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 20 of 24
       finding of bad faith requires evidence of a state of mind reflecting dishonest

       purpose, moral obliquity, furtive design, or ill will.” Colley, 691 N.E.2d at 1261.


[28]   As for ECM’s denial of the Blinns’ claim for debris removal expenses, we have

       already determined above that ECM’s refusal to pay that claim was grounded

       in the Blinns’ failure to meet their obligations under the policy and it was

       therefore not an unfounded refusal to pay. The Blinns also contend that ECM

       acted in bad faith by not immediately making an advance payment when it was

       informed by its adjuster within a month of the fire that the building was a total

       loss. Instead, ECM made its first payment of 10% of the policy limits four

       months after the fire and paid what would ultimately be the full amount of the

       claim nine months after the fire. The Blinns contend this was an unfounded

       delay in making payment.


[29]   The Blinns’ policy provided that in case of loss, they were required to send to

       ECM proof of loss, including detailed estimates for repair or replacement,

       within sixty days. See App. of Appellants, Vol. 2 at 75. They were also

       required to produce records relating to value, loss, and expenses as often as

       reasonably requested. See id. A covered loss is payable thirty days “after a

       satisfactory proof of loss is received” and the amount of the loss has been agreed

       to in writing, an appraisal award is filed, or a final judgment is entered. Id. at

       78. Here, in a letter dated January 23, 2012, the Blinns’ counsel informed

       ECM’s counsel that Edward did not believe “it would be prudent to make a

       demand until he knows how the property has appraised.” Appellees’ App.,

       Vol. IV at 67. The letter also informed ECM that the Blinns had engaged an

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 21 of 24
       appraiser but “[i]t is unclear how long it might take before we have our own

       appraisal[.]” Id. Ultimately, the parties agreed to a simultaneous exchange of

       appraisals, which occurred in March 2012. At this point, ECM had made two

       advance payments to the Blinns’ totaling $300,000.11 The parties’ appraisals

       differed by approximately $400,000 and they were unable to agree to a

       valuation, so the matter was submitted to the appraisal process provided in the

       policy. Nonetheless, ECM tendered an additional $442,500 to the Blinns in

       March 2012 to make the total advance payments equal to the amount of ECM’s

       appraisal, pending the outcome of the appraisal process. The umpire did not

       issue its opinion on the ACV of the property until April 11, 2014, adopting

       ECM’s valuation. Therefore, the Blinns had received the full amount of the

       ACV two years previously. Given the Blinns’ obligations under the contract,

       the procedure the parties agreed to in order to settle the ACV, and given that

       the full amount of the ACV was paid two years before the ACV was finally

       determined, the designated evidence shows that ECM did not cause an

       unfounded delay in payment, even when it did not make its first payment to the

       Blinns until four months after the fire.


[30]   Finally, the Blinns contend ECM “deceived” them by requesting

       documentation unrelated to the requirements of the policy, primarily with




       11
          To the extent the Blinns complain about the amount of the advance payments, the January 23, 2012 letter
       from their counsel advised ECM that “[a]n additional $200,000 would cover [the Blinns’] operating shortfall
       into this coming Spring[.]” Appellee’s App., Vol. IV at 68. That is the amount of the second advance
       payment ECM made in February 2012.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019                 Page 22 of 24
       respect to the debris removal expense claim. Br. of Appellants at 23. It is

       unclear what “deception” the Blinns contend was afoot. It is possible the

       Blinns are asserting they were “deceived” because continued requests for

       documentation led them to believe they would receive payment under the

       provision. The Blinns’ obligations are set forth plainly in the policy and it was

       incumbent upon them to be aware of and meet those obligations without

       expecting ECM to prompt them. Nonetheless, the document requests gave the

       Blinns the opportunity to substantiate their claim by submitting documents

       ECM believed would assist in determining the appropriate amount, if any,

       payable under the debris removal expense provision. That the Blinns were

       unable to produce the requested documentation is not evidence of bad faith by

       ECM.


[31]   Insurance companies may, in good faith, dispute claims. Erie Ins. Co., 622

       N.E.2d at 520. “[A] good faith dispute about the amount of a valid claim or

       about whether the insured has a valid claim at all” does not breach the

       obligation to deal in good faith. Id. We conclude, based on the designated

       evidence, that there is no genuine issue of material fact as to whether ECM

       acted in bad faith in dealing with the Blinns’ claim. The trial court properly

       granted summary judgment to ECM on the bad faith claim.



                                               Conclusion
[32]   There is no genuine issue of material fact to be decided by the fact-finder as to

       either of the Blinns’ claims and therefore, the trial court properly granted

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 23 of 24
       summary judgment to ECM and did not abuse its discretion in denying the

       motion to correct error. The judgment of the trial court is affirmed.


[33]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-262 | January 8, 2019   Page 24 of 24
