                                                                                   FILED
                                                                              Mar 16 2017, 9:03 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Scott B. Cockrum                                           Lloyd P. Mullen
Hinshaw & Culbertson LLP                                   Mullen & Associates PC
Schereville, Indiana                                       Crown Point, Indiana

                                                           Joseph Stalmack
                                                           Joseph Stalmack & Associates,
                                                           P.C.
                                                           Munster, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Admiral Insurance Company,                                 March 16, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           45A05-1604-PL-859
        v.                                                 Appeal from the Lake County
                                                           Superior Court
Joseph Banasiak, as Personal                               The Honorable Bruce D. Parent,
Representative of the Estate of                            Judge
Habib Tagizadieh a/k/a Habib                               Trial Court Cause No.
Zadeh, deceased and Jennifer                               45D04-1404-PL-50
Muehlman,
Appellees-Plaintiffs.




Brown, Judge.




Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017                   Page 1 of 22
[1]   Admiral Insurance Company (“Admiral”) appeals the trial court’s denial of its

      motion for summary judgment and its grant of declaratory judgment. Admiral

      raises one issue which we revise and restate as whether the trial court erred in

      denying its motion for summary judgment or in entering declaratory judgment

      in favor of the Estate of Dr. Habib Zadeh. 1 We reverse. 2


                                           Facts and Procedural History

[2]   Admiral issued a professional liability policy (the “Policy”) to Dr. Habib T.

      Zadeh, with an initial policy period from September 21, 2008, to September 21,

      2009, and with a “Retroactive Date” of September 21, 2005. Appellant’s

      Appendix at 58, 62. The Policy provides:


                            PHYSICIANS, SURGEONS AND DENTISTS
                             PROFESSIONAL LIABILITY INSURANCE


                                                    Claims-Made


                 THIS IS A CLAIMS-MADE POLICY. COVERAGE
                 AFFORDED BY THIS POLICY IS LIMITED TO LIABILITY
                 FOR ONLY THOSE “CLAIMS” THAT ARE FIRST MADE
                 AGAINST YOU AND REPORTED IN WRITING TO US
                 DURING THE POLICY PERIOD OR AN EXTENDED
                 REPORTING PERIOD. PLEASE REVIEW THIS POLICY




      1
          At some points in the briefs and record, Dr. Zadeh’s last name is spelled Zedeh.
      2
       On February 15, 2017, we held oral argument in Indianapolis. We thank counsel for their well-prepared
      advocacy.

      Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017                     Page 2 of 22
        CAREFULLY TO DETERMINE YOUR RIGHTS, DUTIES
        AND WHAT IS AND IS NOT COVERED.


                                               *****


        I.       INSURING AGREEMENT


        We will pay on behalf of the “insured” those amounts in excess
        of the Deductible stated in the Declarations, if applicable, which
        you are legally obligated to pay as “damages” for a “claim” first
        made against you during the “policy period” and reported to us
        in writing during the “policy period”, or an Extended Reporting
        Period, provided that the following additional conditions are
        met:


                                               *****


        D. we receive notice of a “claim” within sixty (60) days after the
        expiration or termination date of this policy in accordance with:


                 1. Section VII. “INSURED’S” DUTIES IN THE EVENT
                 OF A “CLAIM”


                 2. Section V. EXTENDED REPORTING PERIOD.


                                               *****


        VII. “INSURED’S” DUTIES IN THE EVENT OF A
        “CLAIM”


        Each “insured” must comply with the following conditions:



Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017     Page 3 of 22
        A. If a “claim to which this policy applies is made against you,
           then you must give written notice, as soon as practicable, and
           as otherwise required by this policy to us.


        B. With regard to Item 11. DEFINITIONS, b. 1, 2 and 3, when
           a “claim” is reported in writing to us, the notice must contain
           reasonably obtainable information regarding the alleged act,
           error or omission including, but not limited to names of the
           potential witnesses, name of the alleged claimant(s), and the
           extent and type of “claim” anticipated.


        C. You must cooperate with us in the defense and investigation
           of any “claim”. We may require that you submit to
           examination under oath, if required, produce and make
           available all records, documents and other materials which we
           deem relevant to the “claim”.


             1. You must also, at our request, attend hearings, depositions
                and trials.


             2. In the course of investigation or defense, provide us with
                written statements as requested by us or your attendance at
                meetings with us.


             3. You must assist us in effecting settlement, securing and
                providing evidence and obtaining the attendance of
                witnesses, all without charge to us.


                                               *****


        VIII. OTHER CONDITIONS


                                                 *****


Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 4 of 22
        J. Action Against Us


        No action shall be brought against us by you to recover for any
        loss or “damages” under this policy unless, as a condition
        precedent thereto:


        1. you have fully complied with all the terms and conditions of
           this policy; and


        2. the amount of such loss or “damages” has been fixed or
           rendered certain:


                 a. by a final judgment against you after trial of the issues;
                    or


                 b. the time to appeal such judgment has expired without
                    an appeal being taken; or


                 c. if appeal is taken, after the appeal has been determined;
                    or


                 d. the “claim” is settled in accordance with the terms and
                    conditions of this policy.


        In no event shall any action brought by anyone be maintained
        against us unless such action is brought within twenty-four (24)
        months from the time the right to bring action first becomes
        available.


                                               *****


Id. at 64-70.


Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017         Page 5 of 22
[3]   On July 15, 2009, Dr. Zadeh elected to cancel coverage under the Policy. A

      cancellation endorsement states: “In consideration of a return premium of

      $12,875.00, it is hereby agreed that this insurance is cancelled effective

      07/15/2009.” Id. at 86. That same day, Dr. Zadeh elected to purchase an

      Extended Claim Reporting Period which provided that the extended period was

      from July 15, 2009, to July 15, 2010.


[4]   Meanwhile, on October 6, 2008, Jennifer Muehlman filed a complaint against

      “John Doe, M.D.” in the Lake County Superior Court in cause number 45C01-

      0810-CT-154 (“Cause No. 154”) alleging that she sustained an injury to her leg

      while jogging on October 8, 2006, that she sought treatment from the defendant

      for her injury, and that the defendant diagnosed her with a fracture and

      performed surgery on October 9, 2006. Id. at 92. She alleged she sustained

      severe and permanent injuries that were proximately caused by the defendant’s

      negligence. An entry in the chronological case summary for Cause No. 154

      states “Service: Summons and Complaint” and “Doe M.D., John[,] Habib T.

      Zadeh, M.D.” Id. at 96. In a letter dated October 15, 2008, the Indiana

      Patients’ Compensation Fund wrote to Dr. Zadeh stating:


              Please find enclosed a copy of a complaint filed by Jennifer
              Muehlman, pursuant to I.C. 34-18-1-1, et seq., effective July 1,
              1975.


              We acknowledge the filing of this complaint with this department
              pursuant to the above-referenced law. Please note that our
              records indicated that your proof of financial responsibility, filed
              by your Insurer has lapsed. Your Insurer has 90 days from the

      Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017     Page 6 of 22
              actual date of expiration in which to file your renewal. Your
              Insurer must notify us upon timely renewal, so that we may
              confirm coverage for this claim. If we do not receive such notice,
              there may not be qualification pursuant to I.C. 34-18-1-1 et seq.


                                                     *****


              Confirmation of this notice by the department and the advice as
              contained herein is, by copy of this letter, communicated to
              Jennifer Muehlman.


      Id. at 126.


[5]   In September 2010, Muehlman filed a motion for entry of default judgment

      against Dr. Zadeh, and the court granted default judgment in October 2010. In

      April 2011, Muehlman filed a motion to set a hearing for damages, and a

      hearing was scheduled for September 12, 2011. In September 2011, Attorney

      Joseph Banasiak filed a motion to continue and a letter indicating that he

      represented Dr. Zadeh. The court continued the hearing.


[6]   In a letter dated October 25, 2011, Banasiak informed Admiral that Muehlman

      was making a medical malpractice claim against Dr. Zadeh. Specifically, the

      letter states:


              Please be advised that this office represents Dr. Habib T. Zadeh
              regarding the claim brought by Jennifer Muehlman. I was
              provided your name by Attorney Terrence J. Madden. I am
              enclosing a copy of the letter sent to Mr. Madden on September
              1, 2011. As you can see, my client maintains that he discussed
              this matter with Mr. Madden during another menial matter. For
              whatever reason, neither Mr. Madden or his firm appeared and

      Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 7 of 22
              neither did anyone else from Admiral. As a result, a Default
              Judgment was taken against Dr. Zadeh in said matter. The
              matter had been set for damages and I was able to continue the
              matter generally. I have further discussed this matter with
              opposing counsel and I may have some options to set aside the
              legal default in this matter thereby removing any prejudice.
              Please contact me to discuss this matter further. At this time, I
              have taken no other action other than continuing the prove up
              and damages hearing. I have done no other discovery so as to
              avoid prejudicing the carrier.


      Id. at 88.


[7]   In a letter dated November 3, 2011, Scott Mansfield, the Claims Superintendent

      for Admiral, wrote to Banasiak advising him that Admiral was denying the

      claim. Mansfield wrote that it appeared that Muehlman’s claim was first made

      against Dr. Zadeh on or about October 15, 2008, when he received notification

      of the complaint from the Indiana Department of Insurance (“DOI”), that the

      claim was never reported to Admiral at any time prior to the cancellation of the

      Policy which took effect on July 15, 2009, that the requirements of the Policy

      had not been met, and that Admiral reserved its right to contest coverage on the

      grounds that it had been prejudiced by the default judgment entered against Dr.

      Zadeh prior to Admiral being notified of the matter.


[8]   In a letter dated November 5, 2013, Attorney Joseph Stalmack wrote Mansfield

      and informed him that he was representing Dr. Zadeh’s interests along with

      Banasiak. Stalmack cited Ind. Code § 34-18-13-4 and asserted that the Policy

      was still in effect pursuant to the statute because no notice of cancellation had


      Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017    Page 8 of 22
       been received by the insurance commissioner. Stalmack wrote that an affidavit

       from Nancy Wilkins at the DOI indicated that the DOI had no record of having

       received written notice pursuant to Ind. Code § 34-18-13-4. He also asserted

       that the affidavit of Nancy Wilkins “states that it is the practice of the DOI to

       forward copies of all letters sent to a qualified healthcare provider to the

       healthcare provider’s insurance carrier. Therefore, it may be presumed that the

       attached letter of October 15, 2008 was also sent to Admiral.” Id. at 124.


[9]    On April 21, 2014, Banasiak, as personal representative of the Estate of Habib

       Tagizadieh a/k/a Habib Zadeh, filed a complaint for declaratory judgment in

       the “Lake Circuit / Superior Court” in cause number 45D04-1404-PL-50

       (“Cause No. 50”), which listed Muehlman as a defendant and requested that

       the court interpret the applicable statutes and Policy and declare that Admiral

       was required to defend and indemnify Dr. Zadeh against the claims asserted by

       Muehlman. Id. at 14-17. The Estate alleged that Dr. Zadeh died on or about

       August 12, 2012, and that Admiral was obligated to provide coverage due to

       the timely notice of the claim and Admiral’s failure to provide the required

       notices pursuant to Ind. Code § 34-18-3-4.


[10]   On May 30, 2014, Admiral filed a Notice of Removal in the United States

       District Court for the Northern District of Indiana. On June 13, 2014, Admiral

       filed an answer to the complaint and affirmative defenses in the District Court.


[11]   On May 20, 2015, Admiral filed a motion for summary judgment in the District

       Court. On June 17, 2015, the Estate filed a response in opposition to summary


       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 9 of 22
       judgment. The Estate asserted that genuine disputes included: (1) whether the

       Estate’s declaratory judgment action was timely filed; (2) whether Admiral

       received timely notice of Muehlman’s claim; (3) whether Admiral had been

       prejudiced by the lack of notice of Muehlman’s medical malpractice claim

       against Dr. Zadeh; and (4) whether Admiral was estopped from denying

       coverage for Muehlman’s claim due to its failure to comply with Ind. Code §

       34-18-13-4.


[12]   On July 15, 2015, Admiral filed a reply to Banasiak’s response and a week later

       filed a motion to strike portions of evidence cited by Banasiak. On November

       10, 2015, the District Court remanded the case to the Lake County Superior

       Court for all further proceedings.


[13]   On March 16, 2016, the Lake County Superior Court held a hearing at which

       the Estate’s counsel argued:

               What happened here is three things that should have happened,
               didn’t happen. Dr. Zadeh should have sent the lawsuit to the
               company. There’s no evidence that he did. The Department of
               Insurance should have sent the lawsuit to Admiral Insurance, as
               they do in all cases. There’s no evidence that they did that. And
               Admiral Insurance should have sent the notice of cancellation to
               the Department of Insurance. They didn’t do that.


       Transcript at 24. He also argued: “What I’m talking about here is - - I’m

       actually arguing Ms. Muehlman’s case, is what I’m saying. What I’m saying is,

       as to her, this policy is in effect.” Id. He later stated: “Sure, I guess it benefits

       us by having it effective as to Ms. Muehlman but that’s the crux of the matter.

       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017    Page 10 of 22
       The matter is you can’t take that away from her because they failed to do

       something.” Id. at 25.


[14]   On March 21, 2016, the court entered an order denying Admiral’s motion for

       summary judgment and granting declaratory judgment which states in part:


                At the hearing, both parties indicated that the Court’s decision
                related to summary judgment would effectively determine the
                issues alleged in the underlying declaratory judgment. The Court
                took this to mean that a granting of ADMIRAL’S summary
                judgment would be a finding that no insurance coverage existed
                and a denial of summary judgment would mean that the
                ESTATE would be granted its prayer for declaratory relief i.e.,
                insurance coverage. As a consequence, the Court entered its
                Order in conformity with Trial Rule 52. . . . The Court Ordered:


                                                       *****


                                            MOTION TO STRIKE


                ADMIRAL moved to strike paragraphs four and five[ 3] of an
                affidavit of Nancy Wilkins dated October 28, 2013, which had
                been designated by the ESTATE. That affidavit stated, in
                pertinent part:


                         Paragraph 2. I am employed by the Indiana Department
                         of Insurance in the Medical Malpractice Division. In the
                         course and scope of my employment, I routinely review
                         records and correspondence created and maintained in the



       3
        The trial court noted: “Paragraph 5 of the affidavit in question was accidently misnumbered as ‘6’ in the
       written affidavit.” Appellant’s Appendix at 9.

       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017                        Page 11 of 22
                 regular course of business by the Indiana Department of
                 Insurance.


                 Paragraph 4. It is the practice of the Indiana Department
                 of Insurance to forward a copy of all letters sent to a
                 qualified healthcare provider to the healthcare provider’s
                 insurance carrier.


                 Paragraph 5. The Indiana Department of Insurance has
                 no record of having received written notice pursuant to
                 Indiana Code 34-18-18-4 that the medical malpractice
                 insurance policy issued by Admiral Insurance Company,
                 policy number EO0000007525-01, to Habib Zadeh was
                 canceled at Habib Zadeh’s request effective July 15, 2009.


        Relative to paragraph 4, ADMIRAL argued first that Nancy
        Wilkins did not become employed by the Indiana Department of
        Insurance (hereinafter “DOI”) Medical Malpractice Division
        until January 12, 2011, and that the facts at issue had occurred in
        October of 2008. It was argued – and Ms. Wilkins agreed – that
        she did not possess personal knowledge of the policies and
        procedures practiced by that department in 2008. Second,
        ADMIRAL argued that the definition of a “qualified healthcare
        provider” expressed a legal opinion that Ms. Wilkins was not
        qualified to give.


        Relative to paragraph 5, ADMIRAL’S argument was that Ms.
        Wilkins’ shortcomings related to paragraph 4 meant that the
        information declared by her in paragraph 5 was unreliable.


        The Court agreed with ADMIRAL that, based upon Ms.
        Wilkins’ subsequent affidavit of July 14, 2015, she did not have
        knowledge sufficient to detail the practices of the DOI in 2008.
        The Court disagreed, however, with ADMIRAL’S position that
        a person employed by the DOI in the Medical Malpractice

Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 12 of 22
        Division that routinely reviews records and correspondence of
        that department kept in the regular course of business, within the
        scope of her employment, cannot define who is and who is not a
        qualified healthcare provider. Such a determination is not a
        matter of her expressing her opinion, but more a product of her
        checking a list kept in the department in the ordinary course of its
        business; a given person is either on that list and is a qualified
        healthcare provider, or is not on that list and is thus not a
        qualified healthcare provider. Finally, the Court disagreed with
        ADMIRAL’S position that Ms. Wilkins could not swear as to the
        facts provided in paragraph 5 of her affidavit; here too, the facts
        provided were simply taken from the records of the DOI –
        something for which is qualified, and has been trained.


        Consequently, related to ADMIRAL’S motion to strike, the
        Court Ordered:


        1. The motion to strike that portion of paragraph 4 of Nancy
           Wilkins’ affidavit of October 28, 2013 related to the practices
           the [sic] Indiana DOI in 2008 was GRANTED.


        2. The motion to strike the portion of paragraph 4 of Nancy
           Wilkins’ affidavit of October 28, 2013 related to Dr. Zadeh
           being a “qualified healthcare provider” was DENIED.


        3. The motion to strike paragraph 5 of Nancy Wilkins’ affidavit
           of October 28, 2013 was DENIED.


                                               *****


                                 CONCLUSIONS OF LAW


        1. The ESTATE established – and ADMIRAL did not contest –
           that the DOI had no record of having received a written

Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 13 of 22
             cancellation of notice related to Dr. Zadeh’s professional
             liability insurance policy.


        2. ADMIRAL established a prima facie showing in favor of
           granting its summary judgment, moving the burden onto the
           ESTATE to establish some issue of material fact, sufficient to
           defeat summary judgment.


        3. The ESTATE carried its burden, defeating summary
           judgment, as it established that Indiana DOI had no record of
           having received a written notice of termination of the
           insurance policy in question from ADMIRAL, and thus
           ADMIRAL was not in compliance with IC 34-18-13-4.


        4. ADMIRAL clearly had gone through most of the
           machinations of canceling the insurance contract in question.


        5. It was clear to the Court that ADMIRAL did not take the
           addition [sic] step necessary to cancel its obligation under the
           Policy that had been incorporated into its contract with Dr.
           Zadeh by Indiana Code 34-18-13-4. ADMIRAL did not
           notify the DOI, and thus the public, that a termination had
           been effectuated.


        6. If any of the foregoing conclusions of law are, in fact, findings
           of fact, the Court incorporates them into the findings of fact
           portion of this Order.


                                     ORDER OF COURT


        WHEREFORE, for the foregoing reasons, it is ORDERED,
        ADJUDGED, and DECREED that:



Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 14 of 22
               1. ADMIRAL’S motion to strike was GRANTED in part and
                  DENIED in part.


               2. ADMIRAL’S motion for summary judgment was DENIED.


               3. The Policy, via the incorporation of Indiana Code 34-18-13-4,
                  was never terminated as it pertained to MUEHLMAN.


               4. Accordingly, Dr. Zadeh was entitled to coverage under the
                  Policy related to the MUEHLMAN case only.


               5. These findings, conclusions, and declaratory judgment
                  constitute a final and appealable order of the Court with
                  regard to the issues presented and that no just reason for delay
                  in seeking an appeal exists.


       Appellant’s Appendix at 7-13.


                                                     Discussion

[15]   The issue is whether the trial court erred in denying Admiral’s motion for

       summary judgment or in entering declaratory judgment in favor of the Estate.

       We review an order for summary judgment de novo, applying the same standard

       as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The

       moving party bears the initial burden of making a prima facie showing that there

       are no genuine issues of material fact and that it is entitled to judgment as a

       matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

       judgment is improper if the moving party fails to carry its burden, but if it

       succeeds, then the nonmoving party must come forward with evidence


       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 15 of 22
       establishing the existence of a genuine issue of material fact. Id. We construe

       all factual inferences in favor of the nonmoving party and resolve all doubts as

       to the existence of a material issue against the moving party. Id.


[16]   Our review of a summary judgment motion is limited to those materials

       designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res.,

       756 N.E.2d 970, 973 (Ind. 2001). In reviewing a trial court’s ruling on a motion

       for summary judgment, we may affirm on any grounds supported by the

       Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E.2d

       1, 3 (Ind. 2002). The interpretation of a statute is a legal question that we

       review de novo. Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 424 (Ind. 2015).


[17]   To the extent the trial court granted declaratory relief, the Indiana Declaratory

       Relief Act is found at Ind. Code §§ 34-14-1. Ind. Code § 34-14-1-2 provides in

       part:

               Any person interested under a . . . written contract, or other
               writings constituting a contract, or whose rights, status, or other
               legal relations are affected by a statute . . . [or] contract . . . may
               have determined any question of construction or validity arising
               under the instrument, statute, [or] contract . . . and obtain a
               declaration of rights, status, or other legal relations thereunder.


[18]   The trial court issued findings of fact and conclusions thereon pursuant to

       Indiana Trial Rule 52. Our standard of review is well settled:


               First, we determine whether the evidence supports the findings
               and second, whether the findings support the judgment. In
               deference to the trial court’s proximity to the issues, we disturb

       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017      Page 16 of 22
               the judgment only where there is no evidence supporting the
               findings or the findings fail to support the judgment. We do not
               reweigh the evidence, but consider only the evidence favorable to
               the trial court’s judgment. Challengers must establish that the
               trial court’s findings are clearly erroneous. Findings are clearly
               erroneous when a review of the record leaves us firmly convinced
               a mistake has been made. However, while we defer substantially
               to findings of fact, we do not do so to conclusions of law.
               Additionally, a judgment is clearly erroneous under Indiana Trial
               Rule 52 if it relies on an incorrect legal standard. We evaluate
               questions of law de novo and owe no deference to a trial court’s
               determination of such questions.


       McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010), reh’g denied, trans.

       denied. In other words, “[a] decision is clearly erroneous if it is clearly against

       the logic and effect of the facts and circumstances that were before the trial

       court” or if the court misinterprets the law. Kwolek v. Swickard, 944 N.E.2d 564,

       570 (Ind. Ct. App. 2011) (quoting Young v. Young, 891 N.E.2d 1045, 1047 (Ind.

       2008)), trans. denied.


[19]   Admiral argues that Dr. Zadeh’s undisputed failure to provide notice of a claim

       to it excludes Muehlman’s claim from coverage, and asserts that the clear and

       unambiguous terms of the Policy required written notice with specific

       information to be timely filed within the policy period. Admiral asserts that Dr.

       Zadeh’s notice in the October 25, 2011 letter from Banasiak was not timely and

       provided no information regarding the incident itself, the nature of the claim,

       the potential witnesses, or any knowledge from Dr. Zadeh regarding the

       damages or the circumstances by which he first became aware of the alleged

       incident.
       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 17 of 22
[20]   Admiral contends that Ind. Code § 34-18-13-4 does not apply and does not have

       the effect suggested by the trial court, and that, even if the Estate was correct

       that the Policy rendered its cancellation invalid, there is no language in the

       statute that also renders its notice and cooperation duties invalid. It asserts that

       the statute does not even apply to this situation and the statute’s intent appears

       to be to protect a claimant who attempts to file a complaint before the DOI but

       is not then advised that a policy had been cancelled.


[21]   Admiral states that while notice from the DOI is irrelevant, it is undisputed that

       Admiral did not receive such notice. It also contends that while prejudice is not

       required in these circumstances, it is difficult to see how Admiral was not

       prejudiced because Dr. Zadeh is subject to an entry of default, has not provided

       any medical records, and died in 2012, rendering closed any opportunity for

       Admiral to obtain his cooperation, witness recollection, or other information to

       either set aside the default or defend the medical malpractice claim.


[22]   The Estate and Muehlman argue that Admiral received timely notice of

       Muehlman’s claim and cites to the affidavit of Wilkins for the proposition that

       it is the practice of the DOI to forward a copy of all letters sent to a qualified

       healthcare provider to the healthcare provider’s insurance carrier. They

       contend that a genuine issue of material fact exists as to whether Admiral

       received timely notice of Muehlman’s claim because it may be inferred from

       Wilkins’s affidavit that the DOI sent a copy of the October 6, 2008 letter

       addressed to Dr. Zadeh to Admiral, and that the cancellation is not effective as

       to Muehlman’s claim pursuant to Ind. Code § 34-18-13-4.

       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 18 of 22
[23]   We observe that the trial court concluded that Admiral established a prima facie

       showing in favor of granting it summary judgment, moving the burden onto the

       Estate to establish some issue of material fact. The record reveals that the first

       notification to Admiral of Muehlman’s claim occurred in the October 25, 2011

       letter sent by Dr. Zadeh’s counsel, which was more than two years after the

       policy period expired on September 21, 2009, and more than one year and three

       months after the expiration of the Extended Claim Reporting Period on July 15,

       2010. 4 Thus, the notification was late under the claims made Policy. See Ashby

       v. Bar Plan Mut. Ins. Co., 949 N.E.2d 307, 312 (Ind. 2011) (“As expressed in

       Paint Shuttle, Inc. v. Cont’l Cas. Co., ‘[t]he notice provision of a “claims made”

       policy is not simply the part of the insured’s duty to cooperate, it defines the

       limits of the insurer’s obligation. If the insured does not give notice within the

       contractually required time period, there is simply no coverage under the




       4
         These calculations do not include the sixty-day extension mentioned in the Policy which states that Admiral
       must “receive notice of a ‘claim’ within sixty (60) days after the expiration or termination date of this policy .
       . . .” Appellant’s Appendix at 64. To the extent the Estate asserts that “counsel for Dr. Zadeh forwarded
       correspondence to Admiral [] on November 5, 2013 containing new information suggesting that Admiral
       may have received notice of the claim on or about October 15, 2008 from the” DOI, Appellant’s Brief at 8,
       this statement conflicts with the statements of the Estate’s counsel at the March 16, 2016 hearing at which he
       stated: “The Department of Insurance should have sent the lawsuit to Admiral Insurance, as they do in all
       cases. There’s no evidence that they did that.” Transcript at 24. With respect to the Estate’s citation to
       Wilkins’s affidavit for its argument that Admiral received timely notice of Muehlman’s claim, Paragraph 4 of
       the October 28, 2013 affidavit of Wilkins states: “It is the practice of the Indiana Department of Insurance to
       forward a copy of all letters sent to a qualified healthcare provider to the healthcare provider’s insurance
       carrier.” Appellant’s Appendix at 131. The trial court’s order granted the motion to strike “that portion of
       paragraph 4 of Nancy Wilkins’ affidavit of October 28, 2013 related to the practices the [sic] Indiana DOI in
       2008 . . . .” Id. at 10. The Estate does not challenge the grant of the motion to strike. We also note that at
       oral argument, Muehlman’s counsel acknowledged that he needed to rely on Ind. Code § 34-18-13-4 in order
       to prevail on appeal. Oral Argument at 21:40-22:00.

       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017                            Page 19 of 22
       policy.’ 733 N.E.2d 513, 522 (Ind. Ct. App. 2000) (internal citations omitted)[,

       trans. denied].”).


[24]   To the extent this case requires us to interpret Ind. Code § 34-18-13-4 and other

       provisions in the Medical Malpractice Act, the first step in statutory

       interpretation is to determine whether the legislature has spoken clearly and

       unambiguously on the point in question. Young, 24 N.E.3d at 424. “When a

       statute is clear and unambiguous, we need not apply any rules of construction

       other than to require that words and phrases be taken in their plain, ordinary,

       and usual sense.” Id. at 424-425 (quoting Sees v. Bank One, Ind., N.A., 839

       N.E.2d 154, 157 (Ind. 2005)). But if a statute is susceptible to more than one

       interpretation, it is deemed ambiguous and thus open to judicial construction.

       Id. at 425. Where a statute is ambiguous, our primary goal is to determine and

       give effect to the intent of the legislature. Id. “To effectuate legislative intent,

       we read the sections of an act together in order that no part is rendered

       meaningless if it can be harmonized with the remainder of the statute. We also

       examine the statute as a whole.” Id. (quoting City of Carmel v. Steele, 865 N.E.2d

       612, 618 (Ind. 2007) (internal citation omitted)).


[25]   Ind. Code § 34-18-13-4 is titled “Included policy provisions” and provides:

               Every policy issued under this article (or IC 27-12 before its
               repeal) is considered to include the following provisions, and any
               change made by legislation adopted by the general assembly as
               fully as if the change were written in the policy:




       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017    Page 20 of 22
                           (1) The insurer assumes all obligations to pay an award
                           imposed against its insured under this article (or IC 27-12
                           before its repeal).


                           (2) A termination of this policy by cancellation initiated by
                           the insurance company is not effective for patients
                           claiming against the insured covered by the policy, unless
                           at least thirty (30) days before the taking effect of the
                           cancellation, a written notice giving the date upon which
                           termination becomes effective has been received by the
                           insured and the commissioner[ 5] at their offices.


                           (3) A termination of this policy by cancellation initiated by
                           the insured is not effective for patients claiming against the
                           insured covered by the policy, unless at least thirty (30)
                           days before the taking effect of the cancellation, a written
                           notice giving the date upon which termination becomes
                           effective has been received by the commissioner at the
                           commissioner’s office.


[26]   The focus of this statute is cancellation and the protection of a patient following

       the early cancellation of a policy which is not reported to the insurance

       commissioner. We cannot say that Ind. Code § 34-18-13-4 applies to this

       situation given that the Policy was still in effect at the time of the filing of

       Muehlman’s complaint and the Policy had not yet been terminated by

       cancellation. Specifically, the initial policy period was from September 21,

       2008, to September 21, 2009, with a “Retroactive Date” of September 21, 2005.




       5
           Ind. Code § 34-18-2-8 provides: “‘Commissioner’ refers to the insurance commissioner.”


       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017                     Page 21 of 22
       Thus, at the point at which Muehlman filed her complaint against Dr. Zadeh

       on October 6, 2008, the Policy was in effect. We also note that the Policy

       terminated/expired by its own terms prior to Admiral receiving notice of

       Muehlman’s claim. Under these circumstances, we cannot say that Ind. Code §

       34-18-13-4 requires coverage of Muehlman’s claim.


                                                    Conclusion

[27]   For the foregoing reasons, we reverse the trial court’s denial of Admiral’s

       motion for summary judgment and its entry of declaratory judgment in favor of

       the Estate.


[28]   Reversed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1604-PL-859 | March 16, 2017   Page 22 of 22
