MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        May 31 2017, 9:01 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Benjamin D. Fryman                                       Paula E. Neff
Valparaiso, Indiana                                      William J. Emerson
                                                         Lucas, Holcomb & Medrea LLP
                                                         Merrillville, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

The Catholic Diocese of Gary                             May 31, 2017
and St. Joseph Catholic School,                          Court of Appeals Case No.
Appellants-Defendants,                                   45A04-1610-PL-2342
                                                         Appeal from the Lake Superior
        v.                                               Court
                                                         The Honorable Diane Kavadias
Douglas N. Crawley and Patricia                          Schneider, Judge
Crawley,                                                 Trial Court Cause No.
Appellees-Plaintiffs                                     45D11-1207-PL-64




Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017       Page 1 of 12
                                          Case Summary
[1]   Douglas Crawley was hired by the Catholic Diocese of Gary to work at St.

      Joseph Catholic School in August 2005. He was hired as a part-time worker

      but became a full-time employee before the end of 2005. The Diocese offered

      health-insurance benefits to full-time employees, but Douglas was not made

      aware that he was eligible. In late 2006 Douglas was hospitalized. At the time,

      he was listed on his wife’s insurance plan. After he was released from the

      hospital, his wife’s insurance company denied payment of Douglas’s medical

      and hospital bills, claiming that Douglas was eligible for health insurance

      through the Diocese.

[2]   A health-care-collection agency sued the Crawleys for payment of Douglas’s

      medical bills, and the Crawleys filed a third-party complaint against the

      Diocese. The Crawleys asserted four claims: breach of contract, actual fraud,

      constructive fraud, and violations of the Employment Retirement Income

      Safety Act (ERISA). Five years later, the Diocese moved for summary

      judgment. The trial court granted the Diocese’s motion only on the ERISA

      claim. The Diocese was granted an interlocutory appeal and challenges the

      trial court’s denial of summary judgment on the three remaining claims.

      Concluding that the Diocese was entitled to summary judgment on the

      remaining claims, we reverse.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 2 of 12
                            Facts and Procedural History
[3]   Douglas began working for the Diocese at St. Joseph Catholic School in August

      2005. At the time, Douglas worked part-time and was not eligible for the

      Diocese’s health-insurance plan. Eventually, Douglas began working forty

      hours or more each week at the school and became a full-time employee eligible

      for health-insurance coverage. However, Douglas was not informed that he

      was eligible to participate in the Diocese’s plan. Douglas was listed as an

      insured person through his wife’s employer’s insurance plan. His wife, Patricia,

      was employed at St. Catherine Hospital. The hospital’s plan required spouses

      of employees to participate in their own employers’ insurance plans, if offered,

      as the primary insurer and then to use the hospital’s insurance as secondary

      coverage. If coverage was not available to spouses through their employers,

      then the hospital’s plan would serve as the sole insurer for them.


[4]   In October 2006, Douglas was hospitalized, and the costs of his medical

      procedures were billed to St. Catherine Hospital’s insurance provider. Six

      months later, in April 2007, Pat Mason, a human-resources representative with

      St. Catherine Hospital, contacted the Diocese regarding Douglas’s health-

      insurance coverage. After her conversation with the Diocese, Mason and the

      hospital’s insurer determined that Douglas was, in fact, eligible for insurance

      through the Diocese. Accordingly, the hospital’s insurance provider denied

      Douglas’s claims, and Mason notified the Crawleys that Douglas’s claims were

      denied.



      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 3 of 12
[5]   Shortly thereafter, Douglas was approached by the principal of St. Joseph

      Catholic School. The principal presented Douglas with a form titled

      “Voluntary Waiver of Health Insurance Benefits.” Appellants’ App. Vol. III p.

      64. The form stipulated that Douglas had been notified that he was eligible for

      health-insurance coverage through the Diocese but waived that coverage. The

      form was back-dated to January 3, 2006. Douglas kept the form and never

      signed it.

[6]   The Crawleys were unable to pay Douglas’s hospital bills, and in March 2009, a

      collection agency, Argent Healthcare Financial Services, Inc., filed suit against

      them. A year later, the Crawleys filed a third-party complaint against the

      Diocese, alleging four claims: breach of contract, actual fraud, constructive

      fraud, and ERISA violations. They also sought recovery for their attorney’s

      fees. As part of their fraud allegations, the Crawleys claimed that the Diocese

      misrepresented that Douglas “was not eligible” for coverage under the

      Diocese’s insurance plan at the time of his hospitalization, when in fact he was

      eligible at that time. Appellants’ App. Vol. II pp. 43-45.

[7]   The Diocese later obtained copies of Douglas’s unpaid medical bills. It paid

      out all the claims to “healthcare providers and their assignees for balances owed

      for medical services provided to Douglas Crawley” for the time that he worked

      for the Diocese but was not on its health insurance. Appellees’ App. Vol. II p.

      4. The total amount paid was $48,914.45. Id. Argent’s suit against the

      Crawleys was dismissed.



      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 4 of 12
[8]   In October 2015, five years after the third-party complaint was filed, the

      Diocese moved for summary judgment on all claims. In their response to the

      Diocese’s motion, the Crawleys offered the affidavit of Pat Mason, which stated

      that she spoke with an unidentified employee at the Diocese in April 2007.

      According to Mason, the Diocese employee informed Mason that Douglas was

      eligible for health insurance but had declined coverage. The Crawleys

      contended that the misrepresentation underlying their fraud claims was not that

      Mason was told that Douglas “was not eligible” for health insurance but that

      Mason was falsely told that Douglas had declined his health insurance through

      the Diocese. Appellants’ App. Vol. III p. 45 (“The essence of the Crawleys’

      complaint is that the Diocese falsely represented to Mrs. Crawley’s employer that

      Mr. Crawley was offered and declined benefits from the Diocese.”). The

      Diocese responded, stating that the Crawleys introduced a different theory for

      their fraud claims than what was alleged in their complaint. It argued that this

      different theory was the exact opposite of what was pled in the Crawleys’

      complaint. In other words, the complaint alleged that the Diocese had

      misrepresented that Douglas was not eligible for health insurance, but the

      Crawleys’ response to the motion for summary judgment claimed that the

      Diocese had misrepresented that Douglas was eligible but had declined

      coverage.

[9]   The trial court granted summary judgment for the Diocese on the ERISA claim

      because both parties agreed that the Diocese’s plan was a “church plan” and

      not covered by ERISA’s provisions. See id. at 87; see also 29 U.S.C. § 1003(b)(2)


      Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 5 of 12
       (stating that church plans are not covered under ERISA); 29 U.S.C. §

       1002(33)(A) (defining church plan). The court denied the Diocese’s motion on

       the remaining claims, stating that the Diocese had failed to show that no

       genuine issue of material fact existed. Appellants’ App. Vol. III p. 87. The trial

       court then granted the Diocese’s request that this issue be certified for

       interlocutory appeal. We accepted jurisdiction, and this appeal ensued.



                                    Discussion and Decision
[10]   The Diocese contends that there are no genuine issues of material fact on the

       remaining claims—breach of contract, actual fraud, and constructive fraud1—

       and that the trial court erred when it did not grant summary judgment in its

       favor. We review a trial court’s summary-judgment decision de novo. Hughley

       v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). All reasonable inferences are drawn

       in favor of the non-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 movant is entitled to judgment as a matter of law[.]” Doe v. Adams,

       53 N.E.3d 483, 494 (Ind. Ct. App. 2016), trans. denied. If the moving party

       establishes its prima facie case, “the burden then shifts to the non-moving party

       to designate and produce evidence of facts showing the existence of a genuine




       1
        In their response to the Diocese’s appeal, the Crawleys introduce three new theories of recovery—
       counterfeiting, forgery, and insurance fraud. Because the Crawleys did not raise these issues to the trial
       court, they are waived. See Celadon Trucking Srvs., Inc. v. Wilmoth, 70 N.E.3d 883, 840-41 (Ind. Ct. App.
       2017).

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017                Page 6 of 12
       issue of material fact.” Id. The party appealing “has the burden of persuading

       this Court that the grant or denial of summary judgment was erroneous.” Id.


                                       I. Breach of Contract
[11]   The Crawleys contend that the Diocese had “a contractual obligation to

       inform” Douglas that he was eligible for health insurance and that the Diocese

       breached this obligation. Appellants’ App. Vol. II p. 46. The Diocese contends

       that no contract ever existed, and, therefore, the Crawleys’ breach-of-contract

       claim fails. To have a legally binding contract there must be an offer,

       acceptance, and consideration. Ind. Dep’t of State Revenue v. Belterra Resort Ind.,

       LLC, 935 N.E.2d 174, 179 (Ind. 2010). If the contract is in writing, Indiana

       Trial Rule 9.2(A) requires the plaintiff to attach the original or a copy to his

       pleading.

[12]   The only document the Crawleys attached to their third-party complaint is the

       Anthem Benefit Booklet. See Ex. A; Appellant’s App. Vol. II pp. 51-136. At

       the close of discovery, the booklet remained as the only alleged source of a

       contract. Section five of the booklet discusses eligibility for enrollment in an

       Anthem health-insurance plan, but it clearly states, “For more specific eligibility

       information you should see your Human Resources or benefits department.”

       Appellant’s App. Vol. II p. 85. The booklet makes no offer of benefits but

       rather serves as an educational tool; it is not the source of a contract between

       the Diocese and Douglas.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 7 of 12
[13]   On appeal, the Crawleys claim that they will “offer evidence at trial to show

       [the Diocese’s] policy provision of health insurance benefits to its employees.”

       Appellees’ Br. p. 35. They continue that at trial they will bring “documents,

       including policies and forms of documentation” to support their claim of breach

       of contract. Id. at 36. But this is precisely why we have summary judgment; it

       provides the court an opportunity to review the evidence that is to be presented

       at trial in support of each party’s case to determine what, if any, claims proceed

       to trial. The party moving for summary judgment has the burden to make 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. Doe, 53 N.E.3d at 494. The burden

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

       showing the existence of a genuine issue of material fact.” Id. Regardless of

       whether the alleged contract was written or oral, the Crawleys must do more

       than generically state that they will present evidence of a contract at trial. They

       have failed to meet their burden. We therefore conclude that the trial court

       erred when it denied summary judgment for the Diocese on the Crawleys’

       breach-of-contract claim.


                                                    II. Fraud2
[14]   The Diocese next contends that the Crawleys have failed to prove that there is a

       genuine issue of material fact as to their claims of actual and constructive fraud.




       2
         The Crawleys’ complaint asserts claims of actual and constructive fraud. Both claims allege the same set of
       facts, so we will address these arguments together.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017              Page 8 of 12
       To prevail on a claim of actual fraud (also referred to as common-law fraud),

       the plaintiff must show:

               (1) a material misrepresentation of past or existing fact which (2)
               was untrue, (3) was made with knowledge of or in reckless
               ignorance of its falsity, (4) was made with the intent to deceive,
               (5) was rightfully relied upon by the complaining party, and (6)
               which proximately caused the injury or damage complained of.


       Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 335 (Ind. 2013). The elements of

       constructive fraud vary slightly from those of actual fraud:

               (1) a duty owing by the party to be charged to the complaining
               party due to their relationship; (2) violation of that duty by the
               making of deceptive material misrepresentations of past or
               existing facts or remaining silent when a duty to speak exists; (3)
               reliance thereon by the complaining party; (4) injury to the
               complaining party as a proximate result thereof; and (5) the
               gaining of an advantage by the party to be charged at the expense
               of the complaining party.


       Sheaff Brock Inv. Advisors, LLC v. Morton, 7 N.E.3d 278, 288 (Ind. Ct. App. 2014),

       trans. denied.


[15]   The Crawleys claimed that the Diocese engaged in fraudulent activity because:

       (1) the Diocese had a duty to disclose to Douglas that he was eligible for health-

       insurance benefits; (2) the Diocese attempted to have Douglas sign a back-dated

       form that waived his health-insurance benefits; and (3) the Diocese told Pat

       Mason, who worked for St. Catherine Hospital, that Douglas was not eligible

       for health-insurance benefits. Appellants’ App. Vol. II pp. 41-46.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 9 of 12
[16]   The Diocese first disputes that it committed fraud by not informing Douglas

       that he was eligible for health insurance. The Diocese argues that this

       allegation is a “repackaging” of the breach-of-contract claim. Appellants’ Br. p.

       20. A plaintiff who brings “both a breach of contract and a fraud claim must

       prove that (1) the breaching party committed the separate and independent tort

       of fraud; and (2) the fraud resulted in injury distinct from that resulting from the

       breach.” Sheaff Brock, 7 N.E.3d at 288.


[17]   This fraud allegation relies on the same facts underlying the breach-of-contract

       claim: the Diocese owed Douglas a duty to disclose his eligibility for health

       insurance and failed to make such a disclosure. These allegations amount to a

       claim for breach of contract and nothing more. See Tobin v. Ruman, 819 N.E.2d

       78, 86 (Ind. Ct. App. 2004) (“[T]he allegations making up his fraud claim

       amount to a series of misrepresentations stemming from and about the contract

       itself. At best, such evidence merely establishes that Ruman and RCH

       breached the oral contract . . . .”). Additionally, the prayers for relief under

       these claims are almost verbatim; they seek payment for Douglas’s medical

       services while he worked for the Diocese and was eligible for its insurance plan

       but was not informed of his eligibility. The Crawleys have not offered any

       proof as to how they suffered distinct injuries from the alleged fraud. We agree

       with the Diocese: this fraud allegation is a repackaged version of the breach-of-

       contract claim. The alleged duty to disclose, if any, would arise from the

       alleged contractual relationship between the Diocese and Douglas. But, as




       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 10 of 12
       already discussed, the Crawleys have failed to present any evidence that a

       contract existed between Douglas and the Diocese.

[18]   The second allegation that the Diocese challenges is that in April 2007, six

       months after Douglas was hospitalized and a few days after Mason contacted

       the Diocese regarding Douglas’s health-insurance eligibility, the Diocese tried

       to get him to sign a back-dated form that said he had waived his benefits

       election in January 2006—after he was employed full-time but before he was

       hospitalized. But Douglas never signed the form. To establish a prima facie

       case under both actual and constructive fraud, the Crawleys are required to

       prove that they relied on a material misrepresentation and that reliance caused

       them some type of injury. The Crawleys have not satisfied this burden.

       Douglas’s injury—his medical and hospital bills—occurred six months before

       the Diocese approached him with the back-dated form. The Crawleys cannot

       claim that they detrimentally relied on the Diocese’s request to sign the back-

       dated form. The Diocese’s actions do not amount to actual or constructive

       fraud.

[19]   The Diocese also challenges the Crawleys’ third allegation that it fraudulently

       misrepresented Douglas’s benefits eligibility to Pat Mason. The Crawleys

       present two different theories of what was told to Mason—either Douglas was

       not eligible for health-insurance coverage, or Douglas waived his coverage.

       Regardless of the statement that was actually made to Mason, the Diocese did

       not engage in actual or constructive fraud for the same reasons the back-dated

       form did not constitute fraud. In her affidavit, Mason stated that she spoke to

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017   Page 11 of 12
       the Diocese in April 2007 about Douglas’s benefits eligibility. She further

       stated that based on this conversation, St. Catherine Hospital determined that

       Douglas was not eligible for health-insurance coverage through the hospital,

       and his claims from October 2006 were ultimately denied. The Crawleys,

       again, have failed to establish a prima facie case for actual or constructive fraud.

       The undisputed facts are clear: Mason did not speak with the Diocese until six

       months after Douglas’s injury. The Crawleys cannot now claim detrimental

       reliance on a statement made after the medical and hospital bills began

       accruing. We conclude that the trial court erred when it denied the Diocese’s

       motion for summary judgment on the Crawleys’ fraud claims.3

[20]   Reversed.

       Bailey, J., concurs.

       Robb, J., concurs in result without opinion.




       3
         Count I of the Crawleys’ complaint was captioned “Claim for Damages.” Appellant’s App. Vol II. p. 40.
       Because recovery of damages is contingent upon the breach-of-contract or fraud counts surviving summary
       judgment, the Diocese is also entitled to summary judgment on Count I.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PL-2342 | May 31, 2017         Page 12 of 12
