MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Nov 30 2017, 7:54 am

the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                        Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Karen A. Wyle                                            Thomas B. Bays
Bloomington, Indiana                                     Bradley J. Wombles
                                                         Katelyn M. Hendrickson
Paul J. Watts
                                                         Norris Choplin Schroeder LLP
Watts Law Office
                                                         Indianapolis, Indiana
Spencer, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Hamilton d/b/a                                   November 30, 2017
Hamilton Logging and                                    Court of Appeals Case No.
Hamilton Logging, Inc.,                                 60A01-1703-PL-625
Appellants-Defendants,                                  Appeal from the Owen Circuit
                                                        Court
        v.                                              The Honorable Kelsey B. Hanlon,
                                                        Judge
Western World Insurance                                 Trial Court Cause No.
Company, LLC,                                           60C02-1407-PL-314
Appellee-Plaintiff.



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017          Page 1 of 13
[1]   Western World Insurance Company, LLC (“Western World”) filed a

      complaint for declaratory judgment against Robert Hamilton d/b/a/ Hamilton

      Logging (“Robert”), and Hamilton Logging, Inc. (“HLI”) (collectively

      “Hamilton”) in Owen Circuit Court, seeking to have the court declare that

      Hamilton was not covered by Western World policies at the time of an

      automobile accident which resulted in a third party filing suit against HLI.

      After the trial court granted summary judgment in favor of Western World,

      Hamilton filed a motion to correct error, which the trial court denied. Hamilton

      appeals from the denial of their motion to correct error and presents three

      issues, which we consolidate and restate as whether the designated evidence

      demonstrates the existence of genuine issues of material fact precluding the

      grant of summary judgment.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Robert operates a logging company. The precise legal nature of the logging

      company is unclear, as there are references to both Robert Hamilton d/b/a

      Hamilton Logging, i.e., a sole proprietorship, and Hamilton Logging, Inc., a

      corporation. Robert, d/b/a Hamilton Logging, obtained a commercial general

      liability insurance policy from Western World through agent Knapp Miller

      Brown Insurance Services, Inc. (“Knapp”). The active policy period for

      Western World Policy NPP8144278 ran from March 2, 2013 through 12:01

      a.m. March 2, 2014. Appellant’s App. Vol. 3, p. 41.


      Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017   Page 2 of 13
[4]   On February 10, 2014, a Knapp employee sent a letter to “Robert Hamilton

      DBA Hamilton Logging,” with the subject line: “RE: General Liability

      Renewal of Policy NPP8144278 March 2, 2014.” Id. Vol. 6, p. 13. This letter

      stated that the referenced policy “expires March 2nd. If you wish to renew

      please answer the questions below, sign the enclosed terrorism rejection form

      and mail back along with the annual premium of $1,004.50.” Id. Robert’s wife,

      Tammy Hamilton (“Tammy”), was in charge of paying bills, including the

      insurance bill, for Hamilton. Tammy did not immediately pay the $1,004.50

      referred to in the letter. Accordingly, on March 4, 2014, a Knapp employee

      emailed Tammy, informing her, “Your general liability policy expired

      3/2/2014, if you wish to renew coverage please sign the attached terrorism

      rejection form and return to our office along with the full annual payment of

      $1,004.50. Please understand that you currently have no coverage, if I do not

      hear from you by Friday, March 7th I will notify the company that you do not

      wish to renew or reinstate coverage.” Id. pp. 14–15 (emphasis added).


[5]   Tammy responded to this email at 9:11 a.m. on March 4, 2014, stating:

      “Mailed check yesterday :-).” At 9:20 a.m. that day, Knapp responded, “Did

      you mail it to our office?” Tammy replied two minutes later, “Yes.” Appellant’s

      App. Vol. 6, pp. 14–15. Tammy understood that it would take a few days for

      Knapp to receive the check. Western World subsequently issued Policy

      Number NPP8146173 to Robert Hamilton d/b/a Hamilton Logging with

      effective dates of March 6, 2014 through March 6, 2015.




      Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017   Page 3 of 13
[6]   On March 4, 2014, Timothy Pullen (“Timothy”) was operating a vehicle when

      he was allegedly injured in an accident involving an agent of HLI. On April 16,

      2014, Timothy and his wife, Tamara Pullen (“Tamara”) (collectively, “the

      Pullens”), filed a complaint against HLI, seeking damages under cause number

      60C02-1404-PL-136 (“the Pullen complaint”). Neither Robert nor HLI

      responded to the Pullen complaint, and on June 4, 2014, the trial court entered

      default judgment against HLI and in favor of the Pullens.

[7]   On July 30, 2014, Western World filed a complaint for declaratory judgment

      against the Pullens, Robert, and HLI, seeking a declaration that no coverage

      existed for Hamilton or HLI with regard to the Pullen complaint. Hamilton

      responded with an answer on August 25, 2014.1 On September 12, 2016.

      Western World filed a motion for summary judgment. Hamilton failed to

      respond. On January 5, 2017, the trial court entered summary judgment in

      favor of Western World and noted that the judgment was final for purposes of

      appeal. See Trial Rule 56(C).2


[8]   Hamilton then filed a motion to correct error on February 3, 2017. Western

      World filed a response to the motion to correct error on February 20, 2017, and



      1
        Hamilton also asserted third-party claims against Knapp and another insurance company, Arlington Roe
      Company. Knapp and Arlington Roe subsequently filed motions for summary judgment, to which Hamilton
      did not respond, and the trial court granted summary judgment in favor of Knapp and Arlington Roe on the
      third-party claims. Hamilton does not appeal these grants of summary judgment.
      2
        Pursuant to Trial Rule 56(C), summary judgment upon less than all the issues involved in a claim or with
      respect to less than all the claims or parties “shall be interlocutory unless the court in writing expressly
      determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less
      than all the issues, claims or parties.”

      Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017              Page 4 of 13
       the trial court entered an order denying the motion to correct error the

       following day. Hamilton now appeals.


                                          Summary Judgment
[9]    When reviewing a grant of summary judgment, we apply the same standard as

       the trial court. M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App.

       2014) (citations and internal quotations omitted), trans. denied. We consider

       only those facts that the parties designated to the trial court to determine

       whether there is a genuine issue as to any material fact and whether the moving

       party is entitled to judgment as a matter of law. Id. We construe all factual

       inferences in favor of the non-moving party and resolve all doubts as to the

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

       bears the burden of making a prima facie showing that there are no genuine

       issues of material fact and that the moving party is entitled to judgment as a

       matter of law. Id. Once the movant makes this prima facie showing, the burden

       shifts to the non-moving party to designate and produce evidence of facts

       showing the existence of a genuine issue of material fact. Id. Still, the party

       appealing a summary judgment decision bears the burden of persuading this

       court that the grant or denial of summary judgment was erroneous. Id. Where

       the facts are undisputed and the issue presented is a pure question of law, we

       review the matter de novo. Id.


[10]   Here, Western World moved for summary judgment and designated evidence

       to the trial court. Hamilton, however, did not respond. That is, Hamilton did


       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017   Page 5 of 13
       not file a cross-motion for summary judgment, did not file a brief in opposition

       to summary judgment, and did not designate any evidence to demonstrate that

       there was any genuine issue of material fact. This, of course, did not entitle

       Western World to summary judgment by default. Larson v. Karagan, 979 N.E.2d

       655, 659 (Ind. Ct. App. 2012) (noting that a trial court is not required to grant

       an unopposed motion for summary judgment) (citing Murphy v. Curtis, 930

       N.E.2d 1228, 1233 (Ind. Ct. App. 2010)). Although a party, such as Hamilton,

       who does not respond to a motion for summary judgment is limited to the facts

       established by the movant’s designated evidence, the party’s failure to respond

       does not preclude argument of the relevant law on appeal. Id. (citing Murphy,

       930 N.E.2d at 1234). With this in mind, we address Hamilton’s arguments.


                                        Discussion and Decision

[11]   Hamilton argues that there were several genuine issues of material fact

       precluding the grant of summary judgment in favor of Western World. We

       address each of Hamilton’s claimed issues of fact in turn.


       A. Date of the Accident

[12]   Hamilton first claims that there is a genuine issue of material fact with regard to

       the date of the accident involving Pullen. In moving for summary judgment,

       Western World designated as evidence Pullen’s complaint against HLI, which

       alleged that the accident occurred “on or about the 4th of March, 2014.”

       Appellant’s App. Vol. 6, p. 7. Also designated by Western World was the

       default judgment entered against HLI in the Pullen action.


       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017   Page 6 of 13
[13]   Western World’s designated evidence shows that Policy NPP8144278 ran

       through March 2, 2014 and that Policy NPP8146173 went into effect March 6,

       2014. Hamilton argues that Pullen’s complaint and the default judgment

       entered thereon establish that the accident occurred sometime around March 4,

       2014, “leav[ing] open the possibility that the accident took place” on a date

       when one of the two policies was in effect. Appellant’s Br. at 15. We disagree.


[14]   It has long been held that “[t]he common understanding of the words, ‘on or

       about,’ when used in connection with a definite point of time, is, that they do

       not put the time at large, but indicate that it is stated with approximate

       certainty.” Parker v. State, 63 Ind. App. 671, 113 N.E. 763, 764 (1916) (citing

       Rinker v. United States, 151 F. 755, 757 (8th Cir. 1907)); see also Stephen v. State,

       207 Ind. 388, 389, 193 N.E. 375, 376 (1934) (citing Rinker). Here, the

       designated evidence shows that the Pullen accident occurred “on or about”

       March 4, 2014. This is sufficient to establish prima facie that the accident

       occurred on March 4, 2014, and not prior to March 2, 2014 or after March 6,

       2014, when the Western World policies were in effect. See Gittner-Louviere Eng’g

       v. Superior Ct. of Pinal Cty., 565 P.2d 915, 918 (Ariz. Ct. App. 1977) (holding that

       where designated evidence indicating that cause of action accrued “on or about

       July 15, 1974,” the date was not a material issue of fact that would render

       summary judgment improper).


[15]   Once Western World met its burden of establishing prima facie the date of the

       Pullen accident, the burden then shifted to Hamilton to designate evidence to

       demonstrate a genuine issue of material fact with regard to the date of the

       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017   Page 7 of 13
       accident. But Hamilton failed to respond to Western World’s motion for

       summary judgment. We therefore conclude that Hamilton has not

       demonstrated a genuine issue of material fact with regard to the date of the

       Pullen accident.


       B. Reinstated or Renewed Coverage

[16]   Hamilton also claims that the evidence designated by Western World

       demonstrates the existence of a genuine issue of material fact with regard to

       whether Tammy’s action of mailing a check to Knapp, Hamilton’s insurance

       agent, was sufficient to renew or reinstate Hamilton’s insurance coverage.


[17]   When Western World filed its complaint, it attached as an exhibit thereto

       copies of the policies it had issued to Hamilton. In its designation of evidence,

       Western World designated its complaint,3 which alleged that the first policy was

       active from March 2, 2013 to March 2, 2014, and the second policy was active

       from March 6, 2014 to March 6, 2015. Appellant’s App. Vol. 2, p. 16.

       Hamilton’s answer, which was designated as evidence, admitted to the truth of

       these allegations. Id. Vol. 4, p. 46. Western World also quoted in its complaint



       3
         Much of Hamilton’s argument on this and other issues is based upon its position that Western World did
       not properly designate the insurance policies as evidence in support of its motion for summary judgment.
       Western World attached to its complaint the policies at issue. It then designated as evidence in support of its
       motion for summary judgment the “Complaint for Declaratory Judgment filed in this cause and the Exhibits
       attached thereto, attached as Exhibit A.” Appellant’s App. Vol. 5, p. 13. Exhibit A to Western World’s
       designation of evidence contains only the original complaint, and not the policies attached to the exhibits.
       Hamilton therefore argues that the policies were not properly designated. We disagree. The policies were
       attached to the complaint, and Western World designated the complaint and the exhibits attached thereto as
       evidence in support of its summary judgment motion. Thus, the policies were already in the trial court’s
       record, and Western World’s decision not to submit to the trial court additional copies of the policies in their
       entirety does not mean that the policies were not designated as evidence for purposes of summary judgment.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017             Page 8 of 13
       the active date provisions of the policies it issued to Hamilton. These quoted

       portions show that the first policy was active from March 2, 2013 to March 2,

       2014 and the second policy from March 6, 2014 to March 6, 2015. Id. Vol. 2,

       pp. 16–18. And Hamilton’s answer also admitted to the truth of the paragraphs

       of the complaint containing these portions of the insurance policies.


[18]   An admission in a pleading is a judicial admission and is conclusive on the

       party making it. Lee v. Hamilton, 841 N.E.2d 223, 228–29 (Ind. Ct. App. 2006)

       (citing Waugh v. Kelley, 555 N.E.2d 857, 859 (Ind. Ct. App. 1990)). There is no

       indication that Hamilton ever attempted to, or that the trial court ever

       permitted, Hamilton to withdraw or amend its answer containing the

       admissions. Thus, for purposes of this case, the active dates of the policies have

       been conclusively established.


[19]   Nevertheless, Hamilton claims that the portions of the policy designated by

       Western World do not “address what actions were necessary to renew or

       reinstate the earlier policy or to trigger coverage under the later policy.”

       Appellant’s Br. at 16. Thus, Hamilton argues that this leaves open the

       possibility that Tammy’s action of mailing a check to Knapp on March 3, 2014

       sufficed to “renew” the earlier policy, or to in some other way “reinstate”

       coverage on March 3, 2014 or March 4, 2014. Hamilton claims that this is a

       factual issue that precludes summary judgment. However, as noted above,

       Hamilton admitted to the active dates of the policies, and cannot now claim to

       the contrary.



       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017   Page 9 of 13
[20]   At the very least, Western World’s designated evidence established prima facie

       that there was a three-day gap between the end of the first policy period and the

       beginning of the second policy period, i.e. March 3–5, 2014. And, even if

       Hamilton had not admitted to the effective dates of the policies, it designated

       no evidence that would create a genuine issue of material fact with regard to the

       policy dates.


       C. Identity of Insured Parties

[21]   Hamilton also argues that Western World’s designated evidence demonstrates

       the existence of a genuine issue of material fact with regard to the identity of the

       insured under the policies. Specifically, Hamilton claims that there is a question

       as to whether HLI, the business through which Robert Hamilton operated his

       logging business, was a covered entity under the policies. We disagree.


[22]   First, the designated evidence established prima facie that the Pullen accident

       occurred during the three-day gap in coverage. Thus, it matters not who was an

       insured under the policies, as the accident did not occur during the active policy

       periods. Even if this were not the case, the language of the policies clearly

       establishes that the named insured is “Robert Hamilton DBA Hamilton

       Logging.” Appellee’s App. pp. 16–17, 46–47. HLI is not listed as an additional




       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017   Page 10 of 13
       insured party.4 And the Pullen complaint names HLI as a defendant, not Robert

       Hamilton d/b/a Hamilton Logging.5


       D. Affirmative Defenses

[23]   Hamilton next argues that the evidence designated by Western World

       establishes a genuine issue of material fact with regard to Hamilton’s

       affirmative defenses of waiver and estoppel. See Ind. Trial Rule 8(C) (listing

       waiver and estoppel among list of affirmative defenses).


[24]   “In summary judgment proceedings, as at trial, the burden of establishing the

       existence of material affirmative defenses is on the defendant.” Paint Shuttle, Inc.

       v. Cont’l Cas. Co., 733 N.E.2d 513, 519 (Ind. Ct. App. 2000) (citing Celina Mut.

       Ins. Co. v. Forister, 438 N.E.2d 1007, 1009 (Ind. Ct. App. 1982), trans. denied). In

       order to meet this burden, a defendant must show that a genuine issue of

       material fact exists as to each element of the asserted affirmative defense. Id.

       (citing Schrader v. Mississinewa Cmty. Sch. Corp., 521 N.E.2d 949, 952–53 (Ind.

       Ct. App. 1988)). On appeal, “we will affirm a grant of summary judgment if the

       defendant, in opposition to the plaintiff’s summary judgment motion, failed to

       designate any evidence from which the trial court could infer the elements of




       4
        “The Nature Conservancy” is named as an additional insured in the policies, but this entity was not named
       as a defendant in the Pullen action.
       5
        Hamilton’s argument on this issue is based on the erroneous belief that the policies were not properly
       designated as evidence in support of Western World’s motion for summary judgment and that we therefore
       do not know the identity of the named insureds. However, we have rejected this argument. See note 1, supra.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017        Page 11 of 13
       the asserted affirmative defense.” Id. (citing Huff v. Langman, 646 N.E.2d 730,

       732 (Ind. Ct. App. 1995)).


[25]   Here, Hamilton failed to designate any evidence in support of its affirmative

       defenses. Accordingly, the affirmative defenses have been waived, and the trial

       court did not err in determining that there were no genuine issues of material

       fact with regard to Hamilton’s affirmative defenses. See Abbott v. Bates, 670

       N.E.2d 916, 920 (Ind. Ct. App. 1996) (defendant waived affirmative defenses

       raised in her responsive pleading when she failed to designate any evidence in

       opposition to plaintiff’s motion for summary judgment).6


                                                    Conclusion
[26]   Contrary to Hamilton’s claims, the trial court properly concluded that there are

       no genuine issues of material fact with regard to the date of the Pullen accident,

       the active coverage periods of the insurance policies, the identity of the named

       insured, or Hamilton’s affirmative defenses. Accordingly, the trial court

       properly entered summary judgment in favor of Western World.7




       6
         Hamilton claims that Western World’s own designated evidence demonstrates a genuine issue of material
       fact with regard to the issue of waiver. Hamilton refers to Knapp’s email to Hamilton stating that, if Knapp
       did not hear from Hamilton by March 7, Knapp would notify Western World that Hamilton “d[id] not wish
       to renew or reinstate coverage.” Appellant’s App. Vol. 6, p. 15. Hamilton claims that this email “raises
       substantial questions of material fact concerning what effect such renewal or reinstatement would have on the
       coverage period.” Appellant’s Br. at 19. We fail to see how this email creates a triable fact regarding estoppel
       or waiver. Giving Hamilton a deadline to renew coverage does not mean that Hamilton was covered after the
       expiration of the initial policy. Indeed, the Knapp email explicitly informed Hamilton that “you currently
       have no coverage.” Appellant’s App. Vol. 6, p. 15.
       7
        Hamilton also claims that Western World should not be permitted to argue that Hamilton failed to properly
       notify Western World of the Pullen accident, noting that Western World did not include this claim in its

       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017           Page 12 of 13
[27]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       complaint for declaratory judgment. Because we have affirmed the trial court’s judgement on other grounds,
       we need not address this issue.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1703-PL-625 | November 30, 2017       Page 13 of 13
