MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Jan 29 2016, 9:49 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Alfred H. Plummer III                                    Christopher D. Cody
Wabash, Indiana                                          Hume Smith Geddes Green &
                                                         Simmons, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Hipskind,                                        January 29, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         85A02-1508-PL-1239
        v.
                                                         Appeal from the Wabash Circuit
                                                         Court
Insurance One Services, Inc.,
and David Vanderpool,                                    The Honorable Robert R.
                                                         McCallen, III
Appellees-Defendants.
                                                         Trial Court Cause No.
                                                         85C01-1304-PL-246



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016          Page 1 of 10
                                       Statement of the Case
[1]   Timothy Hipskind appeals the trial court’s summary judgment for Insurance

      One Services, Inc. (“Insurance One”) and David Vanderpool. Hipskind raises a

      single issue for our review, namely, whether the trial court erred when it

      concluded that Hipskind had filed his complaint after the relevant statute of

      limitations had expired. We affirm.


                                 Facts and Procedural History
[2]   In 2008, Hipskind purchased a home and real property in Wabash, Indiana

      (“the residence”). In the summer of 2009, Hipskind contacted Vanderpool, an

      insurance agent with Insurance One, to see if Vanderpool “could get [Hipskind]

      a better deal” than Hipskind’s current insurer. Appellant’s App. at 139. After

      obtaining several documents and speaking with Hipskind, Vanderpool prepared

      an insurance application for Hipskind to sign. Among other information, the

      insurance application stated that the residence had a living area of 1,875 square

      feet. However, an appraisal in Vanderpool’s possession at the time stated that

      the residence had a living area of 2,020 square feet. Nonetheless, Hipskind

      affirmed that the information in the application was true to the best of his

      knowledge and executed it on August 10, 2009.


[3]   Based on that application, Hipskind entered into a homeowners insurance

      contract with Auto-Owners Insurance Company (“Auto-Owners”). According

      to the Auto-Owners policy, insurance coverage for the dwelling was limited to

      $197,300. The policy further explained:


      Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 2 of 10
              If the damaged covered property is insured . . . we will pay as
              follows:


                       (a) If at the time of loss, the limit of insurance applying to
                       the damaged covered property is 80% or more of the full
                       replacement cost of that covered property, we will pay the
                       full cost to repair or replace the damaged part of such
                       covered property. No deduction will be made for
                       depreciation. In no event shall we pay more than the
                       smallest of:


                               1) the limit of Insurance applying to the damaged
                               covered property;


                               2) the cost to replace the damaged covered property
                               with equivalent construction for equivalent use at
                               the residence premises; or


                               3) the amount actually spent to repair or replace the
                               damaged covered property.


      Appellant’s App. at 113 (emphases removed).


[4]   On February 5, 2012, the residence was completely destroyed by fire. Hipskind

      then learned that the cost to replace the residence approximated $278,000,

      which Auto-Owners refused to fully pay. On April 23, 2013, Hipskind filed suit

      against Insurance One and Vanderpool for negligently failing to procure

      insurance and/or breach of a fiduciary duty. Insurance One and Vanderpool

      (hereinafter collectively referred to as “Vanderpool”) moved for summary

      judgment on the grounds that Hipskind’s complaint was untimely under the


      Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 3 of 10
      relevant statute of limitations. The trial court later agreed and entered

      summary judgment for Vanderpool. This appeal ensued.


                                     Discussion and Decision
[5]   Hipskind appeals the trial court’s entry of summary judgment. Our standard of

      review for summary judgment appeals is well established. As our supreme

      court has stated:


              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘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.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “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.” Id. (internal citations omitted).


              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).

      Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 4 of 10
      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[6]   Summary judgment is a “high bar” for the moving party to clear in Indiana. Id.

      at 1004. “In particular, while federal practice permits the moving party to

      merely show that the party carrying the burden of proof [at trial] lacks evidence

      on a necessary element, we impose a more onerous burden: to affirmatively

      ‘negate an opponent's claim.’” Id. at 1003 (quoting Jarboe v. Landmark Cmty.

      Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). Further:


              Summary judgment is a desirable tool to allow the trial court to
              dispose of cases where only legal issues exist. But it is also a
              “blunt . . . instrument” by which the non-prevailing party is
              prevented from having his day in court. We have therefore
              cautioned that summary judgment is not a summary trial and the
              Court of Appeals has often rightly observed that it is not
              appropriate merely because the non-movant appears unlikely to
              prevail at trial. In essence, Indiana consciously errs on the side
              of letting marginal cases proceed to trial on the merits, rather
              than risk short-circuiting meritorious claims.


      Id. at 1003-04 (citations and some quotations omitted; omission original to

      Hughley). Thus, for the trial court to grant summary judgment, the movant

      must have made a prima facie showing that its designated evidence negated an

      element of the nonmovant’s claims, and, in response, the nonmovant must have

      failed to designate evidence to establish a genuine issue of material fact. See

      Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009).

      Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 5 of 10
[7]   Here, Hipskind asserts that the trial court erroneously concluded that the

      relevant statute of limitations began to run when he obtained the Auto-Owners

      policy. In his complaint, Hipskind alleged that Vanderpool “negligently failed

      to insure . . . the dwelling . . . at 100% of its replacement cost,” and that this

      “breach of fiduciary duty and/or negligence” harmed Hipskind. Appellant’s

      App. at 10. Hipskind does not dispute that his causes of action against

      Vanderpool are governed by the two-year statute of limitations found under

      Indiana Code Section § 34-11-2-4 (2009). Rather, Hipskind asserts only that the

      statute of limitations began to run after the residence was destroyed in February

      of 2012.


[8]   We must agree with the trial court and Vanderpool that Hipskind’s complaint

      was not timely filed. As our supreme court has made clear, “the statute of

      limitations for negligence claims against an insurance agent for failure to obtain

      a desired form of coverage begins to run at the time the failure was first

      discoverable through ordinary diligence.” Filip v. Block, 879 N.E.2d 1076, 1078

      (Ind. 2008). In Filip, the court explained:


               . . . The alleged negligence here was in failing to advise the Filips
              [the insureds] of the availability of some types of insurance[] and
              in failing to secure adequate limits. We agree with the trial court
              that a claim against an agent for negligent procurement of the
              wrong coverage begins at the start of coverage if the breach was
              discoverable at that time through ordinary diligence.


                                                      ***



      Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 6 of 10
        The Filips argue that their negligence claim accrued when the fire
        occurred. The Filips claim that “[i]t is strange logic to believe
        that the Filips could have filed a lawsuit against Block in the year
        2000 or 2001 [before the fire when coverage began] . . . . Clearly,
        a cause of action filed prior to a loss is not ripe.” But insurance is
        about the shifting of risk. The Filips bore the risk of loss from the date
        the policy was issued, so their injury from the alleged negligence occurred
        at this point. Although the extent of damages was unknown within the
        statute of limitations, the full extent of damages need not be known to
        give rise to a cause of action. See Shideler v. Dwyer, 275 Ind. 270, 282,
        417 N.E.2d 281, 289 (1981) (“For a wrongful act to give rise to a
        cause of action and thus to commence the running of the statute
        of limitations, it is not necessary that the extent of the damage be
        known or ascertainable but only that damage has occurred.”).
        Presumably, no litigation would have been necessary to correct
        their policy and pay the adjusted premium for the desired
        coverage before the fire, but if for any reason the coverage was no
        longer available the Filips could have asserted their negligence
        claim if they felt that necessary. Further, if we accept the Filips’
        argument, then insureds become free riders, paying lower premiums,
        perhaps for many years, and then retaining the ability to claim the
        benefit of higher coverage if a loss is incurred.


        We do not hold, however, that the date of coverage is necessarily
        controlling in every case. The question in this case is at what point the
        Filips, in the exercise of ordinary diligence, could have discovered that
        they were underinsured. The Filips claim that their policy lacked
        coverage of nonbusiness personal property and business
        interruption, and that the building and business personal property
        coverage had inadequate limits. All of these alleged problems were
        ascertainable simply by reading the policy. As a result, the limitations
        period in this case began to run on or shortly after the activation
        of the policy . . . .




Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 7 of 10
      Id. at 1082-84 (emphases added; footnote omitted; some omissions and

      alterations original). Similarly, for the Filips’ additional claims against their

      agent for misrepresentation, the court stated, in relevant part, “[t]hese

      shortcomings [regarding the adequacy or type of coverage] in their policy,

      which the Filips seek to attribute to [their agent’s] negligence, were readily

      ascertainable from the policy itself. Accordingly, . . . the statute of limitations

      began to run two years after the start of coverage . . . .” Id. at 1084-85; see also

      Groce v. Am. Fam. Mut. Ins. Co., 5 N.E.3d 1154, 1157-59 (Ind. 2014) (holding

      that the insureds’ argument that their insurance agent had represented to them

      that they would receive “full costs to rebuild and repair their home, without any

      limitation due to policy limits” did not “supersede” the clearly stated policy

      provisions and toll the statute of limitations because the insureds, “in the

      exercise of ordinary diligence in reviewing their homeowners insurance policy,

      could have timely discovered that the company’s replacement cost liability was

      capped at the dwelling loss coverage limit”).


[9]   Filip and Groce are controlling here. As in Filip and Groce, the terms and

      limitations of Hipskind’s policy with Auto-Owners were plainly stated in the

      policy documents themselves. The declarations page clearly stated that the

      policy “limit[]” for the “[d]welling” was $197,300. Appellant’s App. at 84.

      And the policy itself clearly stated that “[i]n no event” would the insurer “pay

      more than . . . the limit of insurance applying to the damaged covered

      property.” Id. at 113.




      Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 8 of 10
[10]   Indeed, Hipskind’s first argument on appeal is exactly the argument rejected by

       our supreme court in Filip. In particular, Hipskind alleges that Vanderpool

       negligently procured a policy with inadequate limits, or otherwise breached a

       duty to Hipskind in the procurement of the Auto-Owners policy, and that

       Hipskind could not have known about that alleged tortious conduct until the

       ensuing loss. But, again, as the Filip court explained, once Hipskind entered

       into his insurance agreement, he then “bore the risk of loss” above the policy

       limit. 879 N.E.2d at 1083. And, “[a]lthough the extent of damages was

       unknown within the statute of limitations, the full extent of damages need not

       be known to give rise to a cause of action.” Id. Further, to the extent Hipskind

       asserts that Vanderpool made representations to him that supersede the plain

       language of the policy, Hipskind’s argument is contrary to our supreme court’s

       analysis in Groce. 5 N.E.3d at 1157-59. Accordingly, Hipskind’s arguments

       must fail.


[11]   Hipskind also asserts that “reading the policy does not help whatsoever”

       because Hipskind “had a limited education and no knowledge of the policy

       provisions or how they might affect him.” Appellant’s Br. at 8, 11. And in his

       statement of facts relevant to this appeal, Hipskind notes that he


               attended high school[] but did not finish and the highest grade he
               received [sic] was eleventh grade. He did obtain his G.E.D. and
               the only other education he had was truck driving school[,]
               obtaining a C.D.L.


                . . . He didn’t read the policy[] because he didn’t like reading
               gibberish to him and didn’t understand insurance policy [sic], so
       Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 9 of 10
               [he] didn’t read it through. He was under the understanding that
               if your house burned down they [sic] would build a new one.
               That if you lost your stuff[,] you would get your stuff replaced,
               that’s what he thought. The first time he was aware of
               replacement cost is when [an agent] assisted him in completing
               the Proof of Loss.


       Id. at 7 (citations omitted). We reject Hipskind’s statements insofar as they

       suggest that Hipskind’s education level or unwillingness to avail himself of the

       meaning of his contract are grounds to ignore otherwise controlling Indiana

       Supreme Court precedent. See, e.g., Foster v. Auto-Owners Ins. Co., 703 N.E.2d

       657, 659-60 (Ind. 1998).


[12]   In sum, the Indiana Supreme Court opinions in Filip and Groce control this

       appeal, and the trial court correctly concluded that the statute of limitations for

       Hipskind’s complaint began to run when the policy took effect, which was on

       August 10, 2009. Because Hipskind did not file his complaint until April of

       2013, well after the two-year statute of limitations had expired, Vanderpool is

       entitled to summary judgment as a matter of law. We affirm the trial court’s

       entry of summary judgment.


[13]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1508-PL-1239| January 29, 2016   Page 10 of 10
