                                                                      Oct 15 2015, 8:40 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Philip E. Kalamaros                                        Richard P. Samek
Hunt Suedhoff Kalamaros, LLP                               Larry L. Barnard
St. Joseph, Michigan                                       Carson Boxberger, LLP
                                                           Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

The Bar Plan Mutual Insurance                              October 15, 2015
Company,                                                   Court of Appeals Case No.
Appellant-Defendant,                                       02A03-1502-CT-65
                                                           Appeal from the Allen Superior
        v.                                                 Court
                                                           The Honorable Nancy Eshcoff
Likes Law Office, LLC; Kevin                               Boyer
L. Likes; Rickey D. Whitaker;                              Trial Court Cause No. 02D01-
and Cheryl L. Whitaker,                                    1211-CT-532
Appellees-Plaintiffs.




Riley, Judge.




Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015                    Page 1 of 23
                                    STATEMENT OF THE CASE
[1]   Appellant-Third-Party Defendant and Counter/Cross-Claimant, The Bar Plan

      Mutual Insurance Company (Bar Plan), appeals the trial court’s summary

      judgment in favor of Appellees-Third-Party Plaintiffs and Counter/Cross-

      Defendants, Likes Law Office, LLC; Kevin L. Likes, Esq. (Likes) and Rickey

      D. and Cheryl L. Whitaker (Whitaker), concluding that Likes made no material

      misrepresentation in his application for an insurance policy issued by the Bar

      Plan and was therefore entitled to coverage under the Bar Plan’s policy.


[2]   We reverse.


                                                     ISSUES

[3]   The Bar Plan raises three issues on appeal, two of which we find dispositive and

      which we restate as follows:


          (1)      Whether the trial court properly concluded that the designated and

                   undisputed evidence established that Likes did not make a material

                   misrepresentation in his 2011 application for renewal of his insurance

                   policy; and

          (2)      Whether the trial court abused its discretion in denying, in part, the

                   Bar Plan’s motion to strike Likes’ expert testimony as to the custom

                   and practice in the Professional Liability Insurance and Underwriting

                   Industry.


                            FACTS AND PROCEDURAL HISTORY


      Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 2 of 23
[4]   On December 19, 2008, Whitaker filed suit against Travis Becker (Becker),

      seeking to recover damages for personal injuries. Whitaker alleged that on

      December 21, 2006, Becker was driving negligently, and rear-ended his vehicle

      as a result. On January 19, 2009, Becker’s counsel sent Likes, Whitaker’s

      counsel, a set of interrogatories and a request for production of documents and

      informed Likes that, pursuant to Indiana Trial Rule 33, a response was required

      by February 23, 2009. Likes neither responded nor requested an extension of

      time.


[5]   On three separate occasions, April 14, April 29, and May 12, 2009, Becker’s

      counsel wrote to Likes, reminding him that his client’s responses were overdue.

      The third letter implicitly warned Likes that Becker would involve the trial

      court if no response was received. Likes did not respond to any of these three

      letters.


[6]   On May 27, 2009, Becker filed a motion to compel discovery. The trial court

      granted the motion on June 1, 2009, ordering Likes to respond to Becker’s

      discovery requests by June 16, 2009. On June 15, 2009, the day before the trial

      court’s deadline, Likes finally served his client’s sworn responses. On

      November 30, 2009, Becker filed a request for sanctions, claiming that dismissal

      of the cause was in order as Likes had provided false and misleading answers to

      the interrogatories and deliberately concealed certain evidence. Likes did not

      respond. After a hearing, the trial court granted Becker’s motion, finding that

      Likes had supplied deceptive interrogatory answers and had done so in bad

      faith. Whitaker appealed. On March 29, 2011, we reversed the trial court and

      Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 3 of 23
      Becker pursued transfer to the supreme court on April 28, 2011. Likes

      responded to Becker’s petition for transfer on May 17, 2011. On January 18,

      2012, the Indiana Supreme Court reversed the court of appeals and affirmed the

      trial court’s decision.


[7]   Likes was insured under several Lawyers’ Professional Liability Insurance

      policies issued by the Bar Plan. The first policy entered into effect on December

      1, 2009, and was renewed on a yearly basis. The policy at issue is a claims

      made policy, Policy No. 0010002-2011, effective from December 1, 2011,

      through December 1, 2012 (the Policy). The renewal application for this Policy

      was signed by Likes on November 14, 2011.


[8]   In its Exclusions section, the Policy provided, in pertinent part,

              III. EXCLUSIONS


              THIS POLICY DOES NOT PROVIDE COVERAGE FOR
              ANY CLAIM BASED UPON OR ARISING OUT OF:


              ***


              L. A Claim against an Insured who before the Policy effective
              date knew, or should reasonably have known, of any
              circumstance, act or omission that might reasonably be expected
              to be the basis of that Claim.


      (Appellant’s App. pp. 442-43).




      Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 4 of 23
[9]   On November 2, 2012, Whitaker filed a Complaint for damages for legal

      malpractice against Likes based on the dismissal of his negligence cause against

      Becker. On December 7, 2012, Likes notified the Bar Plan of Whitaker’s

      Complaint. Thereafter, on December 19, 2012, the Bar Plan declined coverage

      and indemnification, stating, in pertinent part:


              Although there is some discrepancy with regard to your notice in
              2012, you advised that your first notice to [t]he Bar Plan about
              this matter was made on January 27, 2012, following the Indiana
              Supreme Court’s decision. As you know, the [s]upreme [c]ourt’s
              decision was rendered on January 18, 2012. The [t]rial [c]ourt,
              however, dismissed [Whitaker’s] lawsuit and awarded sanctions
              on March 16, 2010.


              In addition, your renewal application submitted to [t]he Bar Plan
              on November 15, 2010 and November 14, 2011, specifically
              inquired whether the firm or any attorney in the firm had
              “knowledge of any incident, circumstance, act or omission which
              may give rise to a claim.” The responses on both applications
              were “no.”


              Based on the foregoing and our review, you were aware of
              circumstances which could give rise to a claim, as early as March
              16, 2010, when the [t]rial [c]ourt dismissed [Whitaker’s] lawsuit
              and awarded sanctions. The dismissal and award of sanctions
              occurred during the policy period of December 1, 2009 through
              December 1, 2010. However, your first notice to [t]he Bar Plan
              was not until January or March 2012, during a different policy
              period.


              Consequently, we must respectfully decline coverage of defense
              and coverage in this matter.


      Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 5 of 23
       (Appellant’s App. p. 425) (emphasis in original).


[10]   On March 4, 2013, Likes filed an Answer to Whitaker’s Complaint, as well as a

       Third-Party Complaint, adding the Bar Plan as a Third-Party defendant. On

       May 9, 2013, the Bar Plan filed an Answer, Counter-Claim, and Cross-Claim.

       On May 9 and July 8, 2013, Whitaker responded to the Counter and Cross

       Claim.


[11]   On July 22, 2014, the Bar Plan filed its motion for summary judgment to which

       Likes filed an opposition, as well as his own cross-motion for summary

       judgment on October 22, 2014. On November 18, 2014, the Bar Plan

       responded to Likes’ cross-motion for summary judgment and, on the same day,

       moved to strike inadmissible testimony of Likes’ expert witness. Likes opposed

       the Bar Plan’s motion to strike on December 31, 2014.


[12]   On January 7, 2015, the trial court heard arguments on the parties’ respective

       motions for summary judgment and the Bar Plan’s motion to strike. On

       February 2, 2015, the trial court issued its summary judgment in favor of Likes

       and denied the Bar Plan’s summary judgment motion, and in the same order,

       granted in part and denied in part the Bar Plan’s motion to strike.


[13]   The Bar Plan now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                             I. Summary Judgment

                                             A. Standard of Review

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 6 of 23
[14]   Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to a judgment as a matter of law.

       Ind. Trial Rule 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 facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[15]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.




       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015    Page 7 of 23
[16]   We observe that, in the present case, the trial court entered findings of fact and

       conclusions of law in support of its Judgment. Special findings are not required

       in summary judgment proceedings and are not binding on appeal. Id.

       However, such findings offer this court valuable insight into the trial court’s

       rationale for its decision and facilitate appellate review. Id.


                                        B. Material Misrepresentation


[17]   The Bar Plan contends that Likes is not entitled to coverage under the Policy

       because Likes failed to properly notify the insurance carrier of his potential

       liability. Specifically, the Bar Plan argues that at the time Likes signed his

       renewal application of the Policy, he had knowledge or should reasonably have

       known that the trial court’s dismissal of the underlying cause could give rise to

       Whitaker’s legal malpractice claim.


[18]   An insurance policy is a contract, and as such is subject to the same rules of

       construction as other contracts. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249,

       252 (Ind. 2005). Interpretation and construction of contract provisions are

       questions of law. John M. Abbott, LLC v. Lake City Bank, 14 N.E.3d 53, 56 (Ind.

       Ct. App. 2014). As such, cases involving contract interpretation are particularly

       appropriate for summary judgment. Id. We review the contract as a whole,

       attempting to ascertain the parties’ intent and making every attempt to construe

       the contract’s language “so as not to render any words, phrases, or terms

       ineffective or meaningless.” Fisher v. Heymann, 943 N.E.2d 896, 900 (Ind. Ct.

       App. 2011), trans. denied.


       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 8 of 23
[19]   Where the terms of a contract are clear and unambiguous, we will apply the

       plain and ordinary meaning of the terms and enforce the contract according to

       its terms. Id. If necessary, the text of a disputed provision may be understood

       by referring to other provisions within the four corners of the document.

       Claire’s Boutiques, Inc. v. Brownsburg Station Partners, LLC, 997 N.E.2d 1093, 1098

       (Ind. Ct. App. 2013). The four corners rule states that where the language of a

       contract is unambiguous, the parties’ intent is to be determined by reviewing the

       language contained within the “four corners” of the contract, and “parol or

       extrinsic evidence is inadmissible to expand, vary, or explain the instrument

       unless there has been a showing of fraud, mistake, ambiguity, illegality, duress

       or undue influence.” Adams v. Reinaker, 808 N.E.2d 192, 196 (Ind. Ct. App.

       2004). Extrinsic evidence cannot be used to create an ambiguity. Id.


[20]   Likes’ Policy is a “claims made” policy. “A ‘claims made’ policy links

       coverage to the claim and notice rather than to the injury.” Paint Shuttle, Inc. v.

       Cont’l Cas. Co., 733 N.E.2d 513, 522 (Ind. Ct. App. 2000) (citing Home Ins. Co. of

       Ill. v. Adco Oil Co., 154 F.3d 739, 742 (7th Cir. 1998)), trans. denied. Thus, a

       ‘claims made’ policy protects the holder only against claims made during the

       life of the policy. Id. (citing St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531,

       535 n.3 (1978)).


[21]   The Policy required Likes to notify the Bar Plan during the Policy period if, at

       some point during that Policy period, Likes, “becomes aware of a specific

       incident, act or omission while acting in a professional capacity providing Legal

       Services, which may give rise to a Claim[.]” (Appellant’s App p. 439). This

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015    Page 9 of 23
       notice requirement “is not simply the part of the insured’s duty to cooperate, it

       defines the limits of the insurer’s obligation.” Paint Shuttle, Inc., 733 N.E. 2d at

       522. That is, “the notice requirement is ‘material, and of the essence of the

       contract.’” Id. at 520 (quoting London Guarantee & Accident Co. v. Siwy, 66 N.E.

       481, 482 (Ind. Ct. App. 1903)). This means that “[t]he duty to notify an

       insurance company of potential liability is a condition precedent to the

       company’s liability to its insured.” Id. (citing Shelter Mut. Ins. Co. v. Barron, 615

       N.E.2d 503, 507 (Ind. Ct. App. 1993)). And “[w]hen the facts of the case are

       not in dispute, what constitutes proper notice is a question of law for the court

       to decide.” Id.


[22]   The Bar Plan now argues that Likes did not properly notify it of his potential

       liability because Likes failed to advise it as soon as the law firm had a

       reasonable basis to believe that it had committed acts or omissions which could

       give rise to a malpractice claim, as required under the Policy. The Bar Plan

       asserts that, at the time of the renewal application for the Policy and prior to the

       Policy taking effect, Likes knew or reasonably should have known that it had

       committed such acts or omissions. “As an Indiana attorney doing appellate

       work, he knew the March 2011 favorable [c]ourt of [a]ppeals opinion was

       subject to a pending Petition to Transfer and thus, as a matter of law, was not a

       final decision upon which he could rely in November 2011 [at the time of the

       renewal application] to avoid revealing the situation regarding the dismissal.”

       (Appellant’s Br. p. 17). As such, the Bar Plan relies on the exclusionary

       language of the Policy to deny coverage to Likes.


       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 10 of 23
[23]   In response, Likes contends that the Exclusion provision of the Policy is not

       applicable as “the undisputed evidence establishes that at the time Likes

       submitted his application for the 2011 Policy, this [c]ourt had handed down its

       opinion reversing the dismissal of Whitakers’ personal injury claim.

       Accordingly, there was no known potential claim.” (Appellee’s Br. p. 6). 1


[24]   Thus, the proper question is whether, at the time of its application for renewal,

       Likes had knowledge or should have had reasonable knowledge of an act or

       omission on its part that might reasonably be expected to be the basis of a

       malpractice claim by Whitaker. Responding to this question affirmatively, the

       Bar Plan relies on Koransky, Bouwer & Poracky, P.C. v. Bar Plan Mut. Ins. Co., 712

       F.3d 336 (7th Cir. 2013).


[25]   Even though Koransky is a federal decision, the Seventh Circuit Court applied

       Indiana law in evaluating the application of the professional liability insurance

       Koransky had entered into with the Bar Plan. Due to an accidental misfiling in

       Koransky’s office, a real estate sale was rescinded by the seller of the property.

       Id. at 339. The buyer, Koransky’s client, initiated a professional malpractice

       claim against its counsel. Id. Meanwhile, and prior to the commencement of

       the law suit, Koransky was in the process of renewing its professional liability

       insurance policy with the Bar Plan. Id. In completing its application for




       1
         Throughout his appellate brief, Likes relies on the affidavit of his expert to support his claims with
       references to the custom and practice in the professional and liability insurance and underwriting industry.
       However, because we conclude in the second issue that these statements are inadmissible, we will not
       respond to Likes’ arguments relying on those parts of his expert’s affidavit.

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015                        Page 11 of 23
       renewal, Koransky responded in the negative to the question: “Does the firm

       or any attorney or employee in the firm have knowledge of any accident,

       circumstance, act or omission, which may give rise to a claim not previously

       reported to us?” Id. Thereafter, the Bar Plan issued Koransky a new policy. Id.

       at 340. Relying on the same exclusionary provision as in the instant case, the

       Bar Plan denied coverage, claiming that Koransky did not properly notify it of

       his potential liability. Id. at 342.


[26]   Invoking the exclusionary language, the Seventh Circuit Court rephrased the

       issue before it as “whether in February and March 2007, prior to the 2007-08

       policy’s effective date, [Koransky] had knowledge of an act or omission on its

       part that might reasonably be expected to be the basis of a malpractice claim by

       Buyer.” Id. at 343. Analyzing the facts, the Seventh Circuit Court concluded

       that “[a] reasonable attorney in [Koransky’s] position would realize that his

       client might bring a malpractice claim against him because, as a result of the

       attorney’s mistake, Seller was refusing to complete the negotiated sale.” Id. at

       343. Koransky objected and noted that

               it had no reason to think that the [real estate] deal was truly
               doomed because it had on good authority—a former Alabama
               Supreme Court Chief Justice—that the Alabama court would not
               exercise jurisdiction and Buyer’s Ohio counsel informed
               [Koransky] that the contract was enforceable because Ohio law
               does not require delivery.


       Id. at 343. The Seventh Circuit rejected the argument because “whether a court

       would eventually rule in favor of [Koransky’s] former client is irrelevant. The

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 12 of 23
       question is whether [Koransky] had reason to believe that its acts or omissions

       may result in a claim for malpractice.” Id. (emphasis in original). As the court

       agreed that it “may well be difficult to determine exactly when an act or

       omission ‘might reasonably be expected to be the basis’ of a malpractice claim,”

       the court opined that

               [o]nce the Alabama case was filed, [the law firm] knew or should
               have known that the only thing standing between it and a
               probable malpractice claim was the question of whether the
               Alabama court would exercise jurisdiction. No matter how we
               construed the record, it is clear that a reasonable attorney would
               have recognized that his failure to deliver the contract, in light of
               the communications and activity that quickly followed, was an
               omission that could reasonably be expected to be the basis of a
               legal malpractice claim.


       Id. at 343-44.


[27]   While we agree with Koransky that reasonable minds could differ on the

       interpretation of the exclusionary provision language, as in Koransky, we

       conclude that the evidence clearly designates that Likes’ omission to timely and

       correctly respond to interrogatories and the trial court’s subsequent dismissal of

       the cause could reasonably be expected to trigger a malpractice claim. See Kessel

       v. State Auto. Mut. Ins. Co., 871 N.E.2d 335, 338 (Ind. Ct. App. 2007) (noting

       that contract terms are ambiguous “where a reasonable person could find the

       terms are susceptible to more than one interpretation”). On March 16, 2010,

       the trial court dismissed Whitaker’s claim against Becker for damages resulting

       from a car accident based on Likes’ failure to respond to Becker’s

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 13 of 23
       interrogatories and deliberate concealment of certain evidence. This court

       subsequently reversed the trial court on March 29, 2011. At the time of the

       appellate reversal, Likes could reasonably affirm that he had no reason to

       believe any of his acts or omissions “may result in a claim for malpractice.” Id.

       at 343.


[28]   However, all that changed on April 28, 2011, when Becker filed his petition for

       transfer to the supreme court. At that point, Likes was put on notice that

       Becker was pursuing an affirmance of the trial court’s dismissal of his cause.

       Therefore, because of the severity of the trial court’s remedy—dismissal of the

       cause—any reasonable attorney in Likes’ position would realize that his client

       might pursue a potential legal malpractice claim against him should the

       supreme court affirm the trial court. Accordingly, when Likes signed his

       renewal application on November 14, 2011, Likes knew or reasonably should

       have known that the only thing standing between him and a probable

       malpractice claim was the supreme court ruling. Therefore, he should have

       disclosed these facts on his application for renewal.


[29]   Relying on French v. State Farm Fire & Cas. Co., 950 N.E.2d 303 (Ind. Ct. App.

       2011), trans. denied, Likes now asserts that “the Bar Plan may only rescind the

       policy of insurance if the misrepresentation was material to the risks involved.”

       (Appellee’s Br. p. 10). In support of his claim, Likes points to the Bar Plan’s

       renewal of the Policy in the following year, November of 2012, even though the

       Bar Plan was aware of the pending legal malpractice claim. Therefore, Likes

       maintains that “at the very least, a genuine issue of material fact existed [] as to

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 14 of 23
       whether any alleged misrepresentation contained in the application for the 2011

       Policy was material.” (Appellee’s Br. p. 11).


[30]   Nevertheless, we find French not dispositive to the cause before us. French

       pertained to coverage under a homeowners’ policy, which is a conventional

       liability insurance policy. French, 950 N.E.2d at 306. Conventional liability

       insurance policies are “occurrence policies,” which link coverage to the date of

       the tort rather than to the suit. Paint Shuttle, Inc., 733 N.E.2d at 522. On the

       other hand, a “claims made policy,” like the one before us, links coverage to the

       claim and notice rather than to the injury. Id. Whether Likes properly notified

       the Bar Plan of a claim under its Policy has no bearing on the Bar Plan’s

       business decision as to whether a subsequent policy will be issued. Moreover,

       even if proper notification can be excused by waiver or acquiescence by the

       insurance company, as proposed by Likes, here, the Bar Plan’s conduct belies

       the opposite. Throughout the proceedings, the Bar Plan’s acts consistently

       reflect adherence to the terms of its Policy.


[31]   Accordingly, based on the designated evidence we conclude that because Likes

       knew or reasonably should have known of the potential legal malpractice claim

       at the time of the renewal application of the Policy, his failure to timely notify




       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 15 of 23
       the Bar plan thereof now precludes coverage under the Policy’s exclusionary

       provision. 2


                                                II. Motion to Strike

[32]   The Bar Plan maintains that, while the trial court granted its motion to strike in

       part, the trial court abused its discretion in admitting certain paragraphs

       included in Likes’ affidavit and in the affidavit of Likes’ expert. These affidavits

       were designated in Likes’ response to the Bar Plan’s motion for summary

       judgment and cross-motion, and the Bar Plan now contends that these

       documents contained “legal conclusions, speculation, and parol evidence,”

       which have no bearing on this case. (Appellant’s Br. p. 25).


[33]   The standard of review for admissibility of evidence is an abuse of discretion.

       Blocher v. DeBartolo Properties Management, Inc., 760 N.E.2d 229, 233 (Ind. Ct.

       App. 2001), trans. denied. The trial court abuses its discretion only when its

       action is clearly erroneous and against the logic and effect of the facts and

       circumstances before the court. Id. Affidavits in support of or in opposition to

       a motion for summary judgment are governed by Indiana Trial Rule 56(E),

       which provides that:

                [s]upporting and opposing affidavits shall be made on personal
                knowledge, shall set forth such facts as would be admissible in
                evidence, and shall show affirmatively that the affiant is




       2
         Because we decide this cause based on the exclusion clause of the Policy, we will not address the Bar Plan’s
       alternative argument, whether the insurance company is entitled to rescission of the Policy.

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015                        Page 16 of 23
               competent to testify to the matters stated herein. Sworn or
               certified copies not previously self-authenticated of all papers or
               parts thereof referred to in an affidavit shall be attached thereto
               or served therewith.


       The affidavit requirements of Ind. Trial Rule 56(E) are mandatory and a trial

       court considering a summary judgment motion should disregard inadmissible

       information contained in supporting or opposing affidavits. McCutchan v.

       Blanck, 846 N.E.2d 256, 260 (Ind. Ct. App. 2006). A party offering the affidavit

       bears the burden of establishing its admissibility. Id. Because we already

       determined that the contested terms of the contract are ambiguous, we are not

       constricted to the terms of the contract, but can consider extrinsic evidence. See

       Kessel, 871 N.E.2d at 338.


                                               A. Likes’ Affidavit


[34]   The Bar Plan contends that paragraph 4 of Likes’ affidavit should have been

       stricken by the trial court as it contained “inadmissible self-serving legal

       conclusions.” (Appellant’s Br. p. 25). Paragraph 4 of Likes’ affidavit affirms

               4. Based upon the Opinion of the [c]ourt of [a]ppeals, Affiant did
               not have any knowledge of any incident, circumstance, act or
               omission which may give rise to a claim not previously reported
               to the [Bar Plan] at the time he executed the Renewal
               Application.


       (Appellant’s App. p. 663).




       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015     Page 17 of 23
[35]   While, at first glance, it appears that this paragraph rephrases the decision

       reached by this court in the underlying cause, this is not the case. The appellate

       decision, issued on March 29, 2011, and subsequently vacated and reversed by

       the supreme court, concluded that based on fairness and equity the trial court

       had abused its discretion in dismissing the cause. We noted that Likes was not

       aware that the trial court was considering the “death knell” sanction of

       dismissal and the arguable misrepresentation by Likes in the interrogatory

       response merely resulted in “a lack of proper diligence on the part of [Likes].”

       Whitaker v. Becker, 946 N.E.2d 51, 57 (Ind. Ct. App. 2011), trans. granted and

       vacated, 960 N.E.2d 111 (Ind. 2012). Viewed in this light, Likes’ affirmation

       amounts to a legal conclusion which he hopes we will reach in this matter. As

       an affiant may not testify to a legal conclusion, the trial court abused its

       discretion by admitting paragraph 4 of Likes’ affidavit. See Ind. Evid. R. 704.


                                              B. Expert’s Affidavit


[36]   Ind. Evidence Rule 702 relates to the admissibility of expert testimony. It

       assigns to the trial court a gatekeeping function of ensuring that an expert’s

       testimony both rests on a reliable foundation and is relevant to the task at hand.

       Lytle v. Ford Motor Co., 814 N.E.2d 301, 309 (Ind. Ct. App. 2004), trans. denied.

       The Rule states:


               (a) If scientific, technical, or other specialized knowledge will
                   assist the trier of fact to understand the evidence or to
                   determine a fact in issue, a witness qualified as an expert by
                   knowledge, skill, experience, training, or education, may
                   testify thereto in the form of an opinion or otherwise.

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015    Page 18 of 23
               (b) Expert scientific testimony is admissible only if the court is
                   satisfied that the scientific principles upon which the expert
                   testimony rests are reliable.


       However, where, as here, an expert’s testimony is based upon the expert’s skill

       or experience rather than on the application of scientific principles, the

       proponent of the testimony must only demonstrate that the subject matter is

       related to some field beyond the knowledge of laypersons and that the witness

       possesses sufficient skill, knowledge, or experience in the field to assist the trier

       of fact in understanding the evidence or determining a fact in issue. Lytle, 814

       N.E.2d at 308-09.


[37]   In the present case, the Bar Plan merely takes issue with Likes’s expert’s, Ty R.

       Sagalow (Sagalow), personal knowledge about the specific Bar Plan’s policies

       and underwriting process but does not dispute Sagalow’s qualification as an

       expert of the insurance industry per se. Specifically, the curriculum vitae

       attached to Sagalow’s affidavit details that he is a thirty-year veteran of the

       insurance industry who specializes in, among other things, professional liability

       insurance.


[38]   Turning to the affidavit itself, the Bar Plan takes issue with paragraphs 15

       (second sentence), 17 to 24, and 26, which read as follows:

               15. [] This is the only application of relevance in this case as this
               was the sole application for the 2011 Policy.


               17. Based on the custom and practice of the professional liability
               insurance and underwriting industry, there was no act or incident

       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015    Page 19 of 23
        as of the date of the insurance application for the 2011 Policy
        which reasonably would give rise to a potential claim against
        Likes as a result of the Opinion of the [c]ourt of [a]ppeals.


        18. Based on the custom and practice of the professional liability
        insurance and underwriting industry, Exclusion L of the 2011
        Policy, the known wrongful fact exclusion, has no application in
        this case for the same reason, that is because at the time of the
        policy effective date, the [c]ourt of [a]ppeals’s opinion in favor of
        Likes has been issued. It was not until after the inception date of
        the 2011 Policy that the Indiana Supreme Court reversed the
        opinion of the [c]ourt of [a]ppeals. At that point, Likes advised
        the Bar Plan of the circumstances that could give rise to a claim.
        It did not, in fact, give rise to a claim until many months later, on
        November 12, 2012. There is no dispute between the parties that
        Likes timely reported the claim under the 2011 Policy.


        19. Based upon the custom and practice of the professional
        liability insurance and underwriting industry, Exclusion L relates
        to the knowledge of the insured at the time of the application for
        the policy of insurance at issue, and not globally at all periods of
        time prior to that. This is especially true here, where any such
        prior knowledge became moot as a result of the reason of the
        [c]ourt of [a]ppeals opinion of March 29, 2011.


        20. Accordingly, neither the application for insurance nor
        Exclusion L excludes coverage for the Whitakers’ claim.


        21. Further, if Likes had provided notice to the Bar Plan of the
        Whitakers’ potential claim immediately after the dismissal of the
        Whitakers’ case on March 16, 2010 (as the Bar Plan would want
        one to believe he should have), there would have been coverage
        for the Whitakers’ claim under the policy of Professional
        Liability Insurance issued by the Bar Plan, Policy No: 0010002-


Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 20 of 23
        2009, effective from December 1, 2009 through December 1,
        2010 (“2009 Policy”).


        22. Specifically, pursuant to the Discovery Clause (Clause C of
        Part ii, Coverage) if the insured gives written notice to the Bar
        Plan of a specific incident, act or omission, which may give rise
        to a claim for which coverage is provided under the policy, then
        any claim that may subsequently be made against the insured
        arising out of such incident, act or omission, is deemed, for the
        purposes of insurance, to have been made during the policy
        period when the notice was given.


        23. Accordingly, any attempt by the Bar Plan to refuse to issue a
        policy in the future as a result of such notice would have been
        unavailing, as there would be coverage for the Whitakers’ claim
        under the 2009 Policy. Since the terms, conditions, limits and
        retention of the 2011 Policy and 2009 Policy were the same, and
        there were no other claims under either policy, there would have
        been coverage for Likes even if he acted as the Bar Plan would
        wish.


        24. In her affidavit filed in connection with the Motion for
        Summary judgment, Valerie Polites, Senior Claims Counsel for
        the Bar Plan, asserts that had the facts and circumstances of the
        Whitaker matter been disclosed to the Bar Plan, the Bar Plan
        may have declined to issue the 2011 Policy.


        ***


        26. Accordingly, the Bar Plan, with full knowledge of the
        Whitakers’ claim, issued the 2012 Policy to Likes.


(Appellant’s App. pp. 656-58).



Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 21 of 23
[39]   Although Sagalow claims that his opinions are derived from the insurance

       industry’s custom and practice, nowhere in his affidavit does Sagalow clarify

       what these customs actually are or identify his sources therefor. Rather, the

       paragraphs touch immediately upon the heart of the matter and the issue this

       court is prevailed upon to answer, i.e., whether Likes is entitled to coverage

       under the Policy and, as such, the paragraphs propone a legal conclusion. See

       Ind. Evid. R. 704. A mere generalized statement of “based on the custom and

       practice of the professional liability insurance and underwriting industry”

       without any further clarification does not lift these paragraphs from the

       impermissible realm of legal conclusion into valid expert opinion. Accordingly,

       we conclude that the trial court abused its discretion in admitting paragraphs 15

       through 23 of Sagalow’s affidavit.


[40]   With respect to paragraph 24, we note that this is a correct paraphrasing of

       Valerie Polites’ affidavit, and an expert may utilize hearsay information in

       forming his opinion when “the expert has been made aware of [the facts or

       data] or personally observed.” Ind. Evid. R. 703; Jackson v. Trancik, 953 N.E.2d

       1087, 1093 (Ind. Ct. App. 2011). Thus, we conclude that the trial court

       properly admitted paragraph 24. However, paragraph 26 again draws a legal

       conclusion with respect to the knowledge of the Bar Plan, which is directly at

       issue in this cause. Therefore, paragraph 26 amounts to an impermissible legal

       conclusion which should have been stricken by the trial court.


                                                CONCLUSION


       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 22 of 23
[41]   Based on the foregoing, we conclude that the trial court erred in granting

       summary judgment to Likes because the undisputed evidence establishes that

       Likes failed to timely notify the Bar Plan of the Claim and therefore is now

       precluded from coverage under the Policy. In addition, we find that the trial

       court abused its discretion when it admitted paragraph 4 of Likes’ affidavit and

       paragraphs 15-23 and 26 of Sagalow’s affidavit.


[42]   Reversed.


[43]   Brown, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 02A03-1502-CT-65 | October 15, 2015   Page 23 of 23
