FOR PUBLICATION

ATTORNEY FOR APPELLANTS:                      ATTORNEY FOR APPELLEES:

DONALD E. WERTHEIMER                          J. THOMAS VETNE
South Bend, Indiana                           JANET G. HORVATH
                                              Jones Obenchain, LLP
                                              South Bend, Indiana

                                              ROBERT S. O’DELL
                                              O’Dell & Associates, P.C.
                                              Carmel, Indiana
                                                                          Aug 26 2014, 9:46 am



                            IN THE
                  COURT OF APPEALS OF INDIANA

DARYL SCHWEITZER and                          )
LYNN SCHWEITZER,                              )
                                              )
     Appellants-Plaintiffs,                   )
                                              )
            vs.                               )       No. 45A03-1307-CT-248
                                              )
AMERICAN FAMILY MUTUAL                        )
INSURANCE COMPANY and JENNIFER                )
GHOLSON INSURANCE AGENCY                      )
                                              )
     Appellees-Defendants.                    )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Gerald N. Svetanoff, Judge
                           Cause No. 45D04-1010-CT-242



                                    August 26, 2014


                              OPINION - FOR PUBLICATION

BROWN, Judge
        Daryl and Lynn Schweitzer appeal the trial court’s order granting summary

judgment in favor of American Family Mutual Insurance Company (“American Family”)

and Jennifer Gholson Insurance Agency (“Gholson,” and together with American Family,

“Appellees”). The Schweitzers raise two issues, which we revise and restate as whether

the court erred in entering summary judgment in favor of Appellees and against the

Schweitzers. We affirm.

                           FACTS AND PROCEDURAL HISTORY

        At some point prior to January 2008, the Schweitzers became interested in

insuring their home, automobiles, and rental properties using one insurance company.

Following conversations with Gholson, the Schweitzers purchased a homeowners

insurance policy from American Family. The policy provided that it was effective from

January 18, 2008, to January 18, 2009, and that the amount of the coverage limit for the

dwelling was $261,000.1 The policy also included coverage for personal property and

personal liability, and supplemental coverage of increased building limit coverage,

whereby American Family agreed to settle losses to the dwelling at replacement cost up

to a maximum of 120 percent of the dwelling limit, and inflation protection coverage

with respect to the dwelling and personal property, each as subject to the policy’s

provisions.




        1
          According to the affidavit of a senior property claim adjustor, “People’s Bank requested that
there be $261,000 in dwelling coverage on April 10, 2008, and the policy was increased at that time to the
limits shown in the Declarations.” American Family Appendix at 517.
                                                    2
        On December 19, 2008, a fire destroyed the Schweitzers’ house. The Schweitzers

reported the loss to Gholson, and a representative for American Family visited the

location of the house and discussed with the Schweitzers the coverage limits of their

policy. The Schweitzers submitted various claims, and American Family made several

payments to them totaling $326,040, which American Family indicated was the limit of

its policy for the dwelling.2 American Family informed the Schweitzers that it would not

be affording coverage for any damage to the driveway. American Family also received a

claim on September 20, 2010, alleging that a theft of certain property occurred on

January 28, 2009, and American Family initiated an investigation and requested

statements from the Schweitzers, but Daryl informed American Family that his wife

Lynn would not provide a statement.

        On October 18, 2010, the Schweitzers filed a complaint against American Family

and Gholson. As to American Family, they alleged that not all of the benefits due under

the policy were paid and that the remaining benefits due included amounts for losses to or

in connection with the structure, landscaping, pond, driveway, well and septic system,

relocation, additional living expenses, and contents in the house beyond the policy limits

improperly applied by American Family. The Schweitzers further claimed American

Family unreasonably delayed certain payments and that they should be considered

beneficiaries of a practice instituted by American Family requiring its agents to write

        2
           According to the affidavits of a property claims adjuster and a property claims manager, the
initial coverage limit with respect to the dwelling of $261,000 was increased to $271,700 as a result of the
provision providing for inflation protection coverage and that amount was increased to $326,040 pursuant
to the increased building limit coverage. American Family designated evidence that it made payments for
the dwelling of $326,040, personal property of $203,800, landscaping and debris removal of $13,585,
housing expenses while the new house was completed of $28,112.11, and an antenna claim of $524.36.
                                                     3
policies for full replacement coverage. The Schweitzers also alleged that the total limit

of structure coverage improperly utilized by American Family was $326,040, that the

actual loss they sustained substantially exceeded that limit, and that American Family

acted in bad faith, for which they requested punitive damages. As to Gholson, the

Schweitzers asserted they totally relied upon the professional services and advice of

Gholson and believed they had full and complete insurance coverage in the event of a

total loss of their residence. The Schweitzers alleged Gholson was negligent in part for

failing to follow a directive of American Family to issue full replacement cost policies to

its insureds, failing to cause a policy to be issued with sufficient amounts of coverages to

fully indemnify them against loss, and failing to make an adequate determination of the

proper amount of coverages.

       On August 6, 2012, Gholson filed a motion for summary judgment together with

designated evidence and a brief in support of the motion. The same day, American

Family filed a motion for summary judgment together with designated evidence, a brief

in support of the motion, and a statement of undisputed facts. The Schweitzers filed

designations of evidence and memoranda in opposition to the summary judgment

motions. The court held a hearing on the motions on December 4, 2012.

       On March 28, 2013, the court entered an order granting summary judgment in

favor of Appellees and against the Schweitzers. The court found that, as a result of a

meeting between the Schweitzers and Gholson, American Family issued a policy to the

Schweitzers and that Daryl reviewed the amount of the coverage provided under the

policy and did not disagree with the coverage limits or ever ask Gholson to increase the
                                           4
amount of the coverage. The court also found that, following the loss of the house,

American Family requested Lynn to provide a recorded statement pursuant to the terms

of its policy and that Lynn never provided the statement. The court cited Filip v. Block,

879 N.E.2d 1079 (Ind. 2008), reh’g denied, and Myers v. Yoder, 921 N.E.2d 880 (Ind.

Ct. App. 2010), and found that Gholson did not owe the Schweitzers the duty to tell them

about the adequacy of their coverage or any alternative coverage that may be available

and accordingly that the Schweitzers’ claim against Gholson for negligent procurement

of insurance must fail. The court further found that the designated evidence established

that American Family made payment of all amounts due under the applicable coverage

categories in the policy, and that American Family designated evidence, not rebutted by

the Schweitzers, establishing that the Schweitzers’ claim with respect to the alleged

damage to their driveway was excluded from coverage. Finally, the court found that the

Schweitzers breached the policy as a matter of law because Lynn never provided a

recorded statement to American Family under the terms of the policy.

                                      DISCUSSION

       The issue is whether the trial court erred in entering summary judgment in favor of

Appellees and against the Schweitzers. Summary judgment is appropriate only where

there is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural

Resources, 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn

from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973.

Our review of a summary judgment motion is limited to those materials designated to the
                                        5
trial court. Id. 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 Cnty., 779 N.E.2d 1, 3 (Ind. 2002). The entry of specific findings

and conclusions does not alter the nature of a summary judgment which is a judgment

entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk,

670 N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment context, we are not bound

by the trial court’s specific findings of fact and conclusions of law. Id. They merely aid

our review by providing us with a statement of reasons for the trial court’s actions. Id.

We review a summary judgment order de novo. Bules v. Marshall Cnty., 920 N.E.2d

247, 250 (Ind. 2010).

       We discuss the Schweitzers’ arguments related to Gholson and American Family

separately.

A.     Gholson

       The Schweitzers assert that Gholson had a duty to exercise reasonable care, skill,

and diligence in obtaining insurance for them, and that they did not identify the desired

coverage, but relied solely on Gholson’s expertise to obtain insurance which would

protect them in case of loss and thus that “[t]he Filip opinion does not apply.”

Appellants’ Brief at 19. They also contend that “[i]t should first be noted that the

Schweitzers’ claim against Gholson is not for its negligent failure to advise them about

coverage,” that their “claim is instead for Gholson’s negligent failure to obtain adequate

coverage to protect them in case of loss,” and “[t]he ‘special relationship’ required in the

Myers case is therefore not applicable in the present case.” Id. at 20. They further argue
                                             6
that, even assuming a special relationship is required to hold Gholson liable, they have

designated evidence sufficient to show that a special relationship existed and that

Gholson is not entitled to summary judgment on the issue of duty of care.               The

Schweitzers also claim that Gholson is a “captive” agent of American Family and as such

had a duty to comply with a directive by American Family to provide full replacement

cost to American Family’s insured. Id. at 21.

       Gholson maintains that insurance agents owe their customers a general duty of

care and that, if a special relationship exists between the agent and the insured, the agent

has a duty to advise. Gholson argues that, “[b]y claiming that [she] negligently failed to

sell them a policy that covered the home’s full replacement cost, the Schweitzers are

trying to shoehorn a duty-to-advise argument into a general duty-of-care theory,” and that

“Indiana’s courts have steadfastly refused to expand the general duty’s scope in the

typical insurer-insured relationship.”   Gholson’s Brief at 5.     Gholson contends that

Indiana courts have repeatedly found that claims that an agent is obligated to identify an

insured’s desired coverage or advise the insured about alternative coverage “are really an

effort to impose a duty to advise under the guise of the general duty of care.” Id. at 7

(citing Filip, 879 N.E.2d at 1085). Gholson asserts that the Schweitzers cannot meet their

burden of showing that an intimate, long-term relationship between the parties existed,

that she was not the Schweitzers’ regular insurance agent, and that the Schweitzers had

not previously used her to obtain insurance and did not know her. Gholson argues that

the Schweitzers’ contact with her amounted to a general request for a homeowners

policy, no particular type of insurance coverage was requested, she did not hold herself
                                            7
out to be a highly skilled, one-of-a-kind insurance expert, and the Schweitzers did not pay

her anything beyond the usual premiums for any specialized advice. Gholson further

notes she made no specific representations that the policy provided full replacement cost

coverage and that Daryl reviewed the policy after receiving it and knew his home had

been appraised in 2003 and could have asked to increase his coverage and paid for the

increased coverage but did not do so. Finally, Gholson argues that the court in Myers

expressly rejected the notion that the general duty of care requires insurance agents to

perform a replacement-cost estimate before issuing homeowners policies.

       American Family adopted the reasoning and facts in Gholson’s brief and further

argues that Gholson was an independent contractor, not an agent of American Family,

and that American Family could not be liable based upon the alleged negligent acts of

Gholson. American Family also argues that the Schweitzers never provided it or Gholson

any documents to establish that the value of the property exceeded the policy limits

before the loss, that the Schweitzers were aware of the limits from the declarations page

of the policy, and that the mortgagee was also aware of the limits, having asked

American Family to increase the amount of coverage in April of 2008. American Family

also maintains it did not institute a policy directing its agents to write full replacement

cost policies for the type of policy purchased by the Schweitzers.

       In Filip v. Block, the Indiana Supreme Court held: “Insurance agents potentially

have both a general duty of care and a duty to advise their clients. Which duty governs in

a particular case is a matter of law. The law in Indiana is settled: an insured must

demonstrate some type of special relationship for a duty to advise to exist.” 879 N.E.2d
                                           8
at 1085 (citations and internal quotation marks and brackets omitted). In addressing the

Filips’ claims for failure to advise as to coverage, the Court noted that the Filips “do not

argue that they are entitled to a determination of a special relationship, but seek to

describe the duty of care broadly to include the obligation to ‘identify the insured’s

desires with regard to insurance and explain to the insureds various coverages available

to meet those desires,’” and that “[t]he Filips are essentially arguing the duty to advise

under the guise of the general duty of care.” Id.

       In Myers, Donald and Sandra Myers claimed the appellees, the insurance agent

Krueger and the insurance company, were negligent in failing to advise them about their

homeowners insurance policy and specifically argued that a genuine issue of material fact

existed as to whether the appellees breached their respective duties to provide adequate

coverage to them. 921 N.E.2d at 882. This court observed that an insurance agent’s duty

“does not extend to providing advice to the insured unless the insured can establish the

existence of an intimate, long-term relationship with the agent or some other special

circumstance.” Id. at 885 (citation omitted). “In other words, something more than the

standard insurer-insured relationship is required to create a special relationship obligating

the agent to advise the insured about coverage.” Id. (citing Am. Family Mut. Ins. Co. v.

Dye, 634 N.E.2d 844, 848 (Ind. Ct. App. 1994), reh’g denied, trans. denied). We further

explained:

              Factors demonstrating the existence of a special relationship
       between the agent and insured include whether the agent: 1) exercised
       broad discretion in servicing the insured’s needs; 2) counseled the insured
       concerning specialized insurance coverage; 3) held himself out as a highly-
       skilled insurance expert; or 4) received compensation for the expert advice
                                             9
       provided above the customary premium paid. While the question of
       whether the relationship gives rise to such a duty may involve questions of
       fact, whether an insurance agent owes the insured a duty to advise based on
       undisputed facts is a question of law for the court. The burden of
       establishing an intimate long-term relationship or other special
       circumstance is on the insured.

Id. at 885-886.

       This court then found that the undisputed evidence demonstrated that no intimate,

long-term relationship or other special relationship existed between Krueger and the

Myerses. Id. at 887. In support of this conclusion, we observed that Krueger was not the

Myerses’ regular insurance agent and the Myerses had not previously used Krueger to

obtain insurance for other matters. Id. We noted that no special circumstances were

present that justified imposing a duty on the appellees to provide the Myerses with advice

as to the amount of homeowners insurance coverage that was needed, the Myerses did

not consult with Krueger regarding any special insurance needs, Krueger did not counsel

the Myerses concerning any specialized insurance coverage, there was no evidence that

Krueger held herself out as a highly-skilled insurance expert, and Krueger never advised

the Myerses regarding the type or amount of insurance that should be obtained. Id. at

888. We then noted that, “[n]otwithstanding these circumstances, the Myerses assert that

because Sandra requested ‘full coverage’ for the residence, a duty was imposed on the

appellees to determine what she meant in making that statement.” Id. We observed in

part: “Moreover, we have recently determined that an insured’s expectation of ‘full

coverage’ is not enough to impose a duty on an agent to provide advice to an insured

regarding the amount of coverage that should be purchased.” Id. at 889 (citing Barnes v.

                                           10
McCarty, 893 N.E.2d 325, 329 (Ind. Ct. App. 2008), trans. denied). As to the Myers’s

contention that the appellees acted unreasonably in issuing the homeowners policy

without performing a replacement cost estimate, we found that, although couched in

terms of what amounts to reasonable care when issuing an insurance policy, the Myerses’

argument had been rejected by the Indiana Supreme Court in Filip as an attempt to

impose a duty to advise under the guise of the general duty of care owed by an insurance

agent. Id. at 889-890. We stated that Filip “establishes that insurers are not under a duty

to perform such an estimate.” Id. at 890.

       In this case, the designated evidence reveals that a special relationship did not

exist between Gholson and the Schweitzers. The designated evidence shows that Daryl

performed some searches on the Internet for insurance covering the Schweitzers’ home,

automobiles, and rental properties, that he discussed coverage through American Family

with his wife, and that the Schweitzers met with Gholson at their house. This was the

first time Schweitzers and Gholson had business dealings with each other, and the

Schweitzers did not know anything about Gholson or her qualifications or experience.

The Schweitzers did not inform Gholson of the amounts of coverage they desired.

       Gholson obtained an insurance policy from American Family with an effective

date of January 18, 2008, and the declarations page of the policy set forth the coverage

limit for the dwelling as well as the fact the policy included certain supplemental

coverage.3 The designated evidence shows that the Schweitzers received an appraisal in


       3
        In their reply to American Family’s summary judgment motion, the Schweitzers argued that
American Family instituted a policy which directed its agents that “All HO-3 and FR-3 new business
                                               11
2003 in connection with the refinancing of their home mortgage and were told at the time

that “the house, the land, and all the buildings were $350,000,” and thus the Schweitzers

were aware of the approximate value of the house.4 American Family Appendix at 557.

The Schweitzers did not object or raise any concern regarding the limits of the policies

and did not request to increase the amount of coverage.5 Daryl believed the dwelling

limit of the policy from American Family was about $267,000, did not know if this

amount was higher or lower than his previous policy’s limit, and did not know whether

the amount was enough to replace the house.6 While Gholson assisted the Schweitzers

with obtaining a homeowners policy from American Family, there is no evidence that

must be written at 100% [] replacement cost, starting December 3, 2007.” Appellants’ Appendix at 73.
The policy issued to the Schweitzers was an “HO-5 (IN) Ed. 6/94” policy. American Family Appendix at
165. The affidavit of a senior claim attorney for American Family in the record states that, pursuant to his
personal knowledge and experience, American Family never issued a policy which directed agents as
claimed by the Schweitzers and that, even if such a policy did exist, it would not have applied to the
Schweitzers because they were issued an HO-5 policy.
        4
          During his deposition, Daryl testified he had approximately 3.75 acres of land and, when asked
about the number of outbuildings, answered that “[a]t the time there was a pole barn with an attached pool
and deck and gazebo.” American Family Appendix at 557. American Family designated a residential
assessment from the Lake County Assessor which showed, as of March 1, 2007, a land valuation of
$30,700, a building valuation of $173,700, and a total valuation of $204,400.
        5
          During his deposition, when asked “[d]id you review the amounts,” Daryl testified “I would
suspect so.” American Family Appendix at 556. When asked “[d]id you disagree with any of the values
she had on the policies” and if he ever asked “to increase the amount of coverage,” Daryl replied “[n]ot to
my knowledge.” Id.
        6
           Daryl testified during his deposition that he was expecting coverage to replace his home.
Earlier in his deposition, when asked whether, together with the 2003 appraisal he had received and the
fact that he had a mortgage of “200-something thousand,” he thought the amount of coverage was too
low, Daryl testified “[w]ell, appraisal value would be what it’s worth to sell, and that has no relationship
with cost to rebuild.” American Family Appendix at 557. Daryl further testified that American Family’s
property claim manager assigned to his claim informed him he could “build anything [he] want[ed] as
long as it’s one physical structure” and that American Family would pay only up to the policy’s limit. Id.
at 571. Daryl testified that the new house was “about thirty-two or three hundred square foot versus just
under 2,000 [for the old house]” and that there were various other differences between the houses, such as
an attached three-bay garage and a larger master bedroom suite in the new house. Id. He later testified
that the original house had been built in two stages, the basement in 1952 and the upstairs around 1957.
                                                    12
Gholson exercised broad discretion in servicing the Schweitzers insurance needs, that the

Schweitzers relied on Gholson for expert advice as to insurance coverage or that she

counseled them concerning specialized coverage, that Gholson held herself out as a

highly-skilled insurance expert, or that she received any compensation above that

associated with the customary premium paid.

      Based upon the record, we find the circumstances do not constitute a special

relationship between Gholson and the Schweitzers and no special circumstances exist

which would give rise to a duty to advise. Accordingly, Gholson was under no duty to

advise the Schweitzers about the adequacy of the coverage or any alternative coverage

which may have been available, and Gholson did not breach her general duty. See

Myers, 921 N.E.2d at 882-890.       Further, Gholson was under no duty to provide a

replacement cost estimate, and an expectation of full replacement coverage does not in

itself impose a duty on an agent to provide advice to an insured regarding the amount of

coverage that should be purchased. Id. at 889. The trial court did not err in granting

summary judgment in favor of Gholson.

B.    American Family

      The Schweitzers also assert there are genuine issues of material fact precluding

summary judgment in favor of American Family. Specifically, they claim that American

Family was in material breach of the insurance policy which excused further performance

by Lynn in providing a requested statement and that American Family caused unfounded

delays and refused to pay certain benefits due under the policy, including sums for actual

cash value payments, driveway losses, theft losses, additional living expenses losses,
                                        13
debris removal, and losses to antennas. American Family maintains that it fulfilled its

obligations under the terms of the policy, it paid the entire policy limits for the dwelling,

personal property, debris removal and landscaping coverage, it paid all of the additional

living expenses owed under the policy, there was no delay of payments, the driveway was

not a covered loss, the Schweitzers breached their duties as to the theft loss, and that the

Schweitzers are not entitled to the replacement cost of an antenna as claimed.

       American Family designated evidence that it made payments in the amounts of the

coverage limits with respect to the dwelling of $326,040, personal property of $203,800,

and landscaping and debris removal of $13,585. The designated evidence also shows

American Family made payments for housing expenses while the Schweitzers’ new

house was completed of $28,112.11 and for an antenna claim of $524.36. With respect to

debris removal, the homeowners policy included supplemental coverage for reasonable

expenses incurred to remove debris of covered property following a covered loss, if the

damage to that property and the cost of the debris removal was more than the limit for the

property, in an amount up to an additional five percent of the limit for that property.

American Family made payment to the Schweitzers of $13,585, the amount of the limit

under the policy.7 The Schweitzers’ argument that they were entitled to payment for

debris removal as calculated based on the full replacement cost of the dwelling is not

persuasive as they were paid the amount due under the policy.

       With respect to their antenna claim, the Schweitzers did not complete the

replacement of the antenna within one year of the date of loss as required by the policy in

       7
           Five percent of $271,000 is $13,585.
                                                  14
order to receive replacement coverage, and as a result were not entitled to the full

replacement cost claimed of $631.75. American Family paid the Schweitzers the actual

cash value of the antenna of $524.36. The Schweitzers do not point to designated

evidence suggesting they were prevented from replacing or were otherwise not required

under the policy to replace the antenna within one year of the date of loss due to the fact

they lived in temporary housing or had cable service during that time, and they are not

entitled to additional payments.

       The Schweitzers also argue they were entitled to additional housing expenses,

namely, additional payments related to increased mileage. In support of their argument,

the Schweitzers point to a letter they received from an adjuster which provided in part:

       Mileage, I will accept the mileage for April 2010 since I know you were
       moving to the rental house. The mileage for May, June, July, August,
       September, October and November is excessive. The rental house is 2
       miles closer to school with bus service if necessary. If you were going to
       the house to do work that is your choice since you hired a general
       contractor to do the rebuilding. If you want [American Family] to consider
       the extra mileage I need a written log as to what this mileage was used for
       and why.

American Family Appendix at 409. The Schweitzers do not point to designated evidence

showing they are entitled to additional payments for mileage during the time their house

was rebuilt.

       With respect to the Schweitzers’ argument that American Family made an

unfounded refusal to pay for damage to their driveway, the designated evidence shows

that American Family informed the Schweitzers that it had hired an engineer to inspect

the driveway to determine if the damages were related to the equipment used to

                                            15
extinguish the fire, that the opinion of the engineer stated in part that the fire truck did not

damage the driveway and the driveway was in poor condition with evidence of past

repairs in the rutted areas, and that, based upon the finding of the engineer and the policy

exclusions, American Family would not be affording coverage for any damage to the

driveway. American Family referenced the policy’s language stating that the policy did

not cover loss resulting from, among certain other causes, wear and tear or deterioration.

American Family also noted the policy’s language providing in part that the policy did

not cover loss resulting from faulty, inadequate, or defective construction, repair, or

materials used in construction, design, workmanship or specifications, grading or

compaction, or maintenance. The engineer’s report, in the analysis and conclusions

section, provided in part that “[i]t was reported that the fire truck parked in the driveway

northeast of the house; therefore none of the damages from that point south to the

detached garage were caused by the fire truck.” Id. at 441. The report further provided

that the driveway “is generally in poor condition with alligator cracking and breakup of

the asphalt surface,” that “[t]he condition is caused by insufficient base material and/or

wet poorly drained material,” that “[t]he cracking itself is caused by freeze-thaw cycles,”

and that “[t]raffic will then knock the material loose and if the base is soft, rutting occurs

or if the ground is frozen and surface water is present, potholes form.” Id. The report

also provided that “[t]he fire occurred in December when the ground was frozen [when]

the driveway would be stronger than when it thaws and is wet and soft” and “[i]t is

unlikely that the fire truck would damage the driveway at that time even in its poor


                                              16
condition.” Id. at 442. The designated evidence supports the entry of summary judgment

in favor of American Family with respect to the driveway.

       With respect to the Schweitzers’ claim that they incurred a theft loss, a property

claim field manager for American Family stated in his affidavit that an e-mail message

had been sent from the American Family claim call center to Gholson on September 20,

2010, noting that the Schweitzers had reported a loss. The field manager stated that the

date of loss was reported as January 28, 2009, and that the Schweitzers alleged they

“came home and discovered outdoors bathroom door lock was broken and door was

kicked in at back entrance to garage” and “[d]iscovered items stolen, then discovered a

lawn and garden tractor missing.” Id. at 506. According to the field manager’s affidavit,

a representative of American Family met with Daryl at the loss location, took

photographs, and asked about the location of the equipment and tools when they were

stolen. The field manager stated that Daryl “stated the garage door had been repaired so

there were no signs of forced entry.” Id. at 507. The field manager’s affidavit stated that

the representative advised Daryl that “he needed to arrange an in person interview with

he [sic] and his wife in regard to the claim file” and that Daryl “stated his wife does not

know anything and she does not know what was missing so did not understand why they

needed a statement.” Id.

       The field manager’s affidavit further stated that the “theft loss raised several issues

for investigation,” including “whether any of the items claimed taken in the theft loss

were also claimed in the fire loss,” the “reason for the late notice to American Family for

making the theft claim,” the “fact that initially Mr. Schweitzer claimed only tools were
                                            17
taken . . . but now he claimed a tractor was missing,” the “actual date of loss,” whether

“any of the tools were used for business purposes,” the “age, condition and description of

the tractor which was allegedly taken,” and “whether the Schweitzers were neglectful in

protecting and preserving the property after the fire loss.” Id. The field manager’s

affidavit stated that “[t]o address each of these issues, I needed statements from the

named insureds.” Id. The affidavit stated that on October 8, 2010, Daryl “stated his wife

declined a statement,” that he wanted “a copy of the first statement he gave before he

gives a statement,” and that “he will not give a recorded interview unless he receives a

transcribed copy of the statements given to the call center and prior adjustor.” Id. at 507-

508. The field manager’s affidavit stated that Daryl was advised that he was “still under

investigation [and American Family] will not release any statements until the

investigation is complete.” Id. at 508.

       Finally, the affidavit stated that, on October 14, 2010, American Family sent a

letter to the Schweitzers requesting their cooperation with the current investigation, citing

the relevant provisions of the policy, and that “[e]ven though coverage questions exist,

American Family will continue to investigate this claim.” Id. Prior to filing the lawsuit,

Lynn never provided a statement with respect to the claim as requested. The policy

included provisions which required all insureds, as reasonably required by American

Family, to provide records and documents as requested and to “let [American Family]

record [the insureds] statements and submit to examinations under oath . . . , while not in

the presence of any other insured, and sign the transcript of the statements and


                                             18
examinations.” Id. at 174. The trial court properly entered summary judgment in favor

of American Family with respect to this claim.

       The Schweitzers also argue American Family unduly delayed payment because the

loss occurred on January 9, 2009, and they did not receive any actual cash value payment

until March 31, 2009, over sixty days after the date of loss. However, the policy did not

require American Family to make any payment within sixty days of the date of loss but

rather provided that payment would be made within sixty days after American Family

received the insured’s “properly completed proof of loss and: a. we reach agreement with

you; b. there is an entry of a final judgment; or c. there is a filing of an arbitration award

with [American Family].” Id. at 173. The designated evidence does not show that there

was a completed proof of loss and an agreement between American Family and the

Schweitzers on the day of the fire or loss, and American Family did not fail to comply

with the payment provision above on this basis. Schweitzers received proceeds of the

coverage limit for the dwelling under the policy. To the extent the Schweitzers claimed

punitive damages and based the claim in part upon the timing of payment by American

Family, the designated evidence does not present a genuine issue of material fact

regarding whether American Family acted in good faith, and entry of summary judgment

in favor of American Family on this issue was proper.

       Based upon the designated evidence set forth above and in the record, we find the

Schweitzers are not entitled to additional payments under their homeowners insurance

policy and that the trial court did not err in granting summary judgment in favor of

American Family.
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                                  CONCLUSION

      For the foregoing reasons, we affirm the trial court’s grant of summary judgment

in favor of Appellees.

      Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.




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