                                                                              FILED
                                                                         Sep 16 2016, 8:25 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
      Brian J. Johnson                                          Lewis S. Wooten
      Danville, Indiana                                         Michael R. Giordano
                                                                Lewis Wagner, LLP
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bradley Starr by Next Friend                              September 16, 2016
      Heather Starr-Haller and                                  Court of Appeals Case No.
      Heather Starr-Haller,                                     32A05-1605-PL-976
      Appellants-Plaintiffs,                                    Appeal from the Hendricks
                                                                Superior Court
              v.                                                The Honorable Stephenie LeMay-
                                                                Luken, Judge
      State Farm Mutual Automobile                              Trial Court Cause No.
      Insurance Company and the                                 32D05-1501-PL-12
      Indiana Bureau of Motor
      Vehicles,
      Appellees-Defendants.




      Najam, Judge.


                                        Statement of the Case
[1]   Heather Starr-Haller, on behalf of herself and her minor son, Bradley, appeals

      the trial court’s entry of summary judgment for State Farm Mutual Automobile

      Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016                Page 1 of 13
      Insurance Company (“State Farm”) on Starr-Haller’s complaint. Starr-Haller

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

      entered summary judgment for State Farm. We affirm.


                                  Facts and Procedural History
[2]   Between December of 2011 and September of 2014, Starr-Haller had an

      automobile insurance policy through State Farm for her 1998 Chevy Blazer.

      State Farm provided Starr-Haller’s coverage in six-month terms. However,

      State Farm billed Starr-Haller for her coverage on a monthly basis.


[3]   On three occasions between October 2012 and June 2014, Starr-Haller failed to

      timely pay the monthly installment due on her premium. Following each

      missed installment payment, State Farm mailed Starr-Haller a “Cancellation

      Notice” that stated both the amount due and a coverage “Cancel Date.”

      Appellants’ App. at 147, 149, 151. If Starr-Haller failed to pay her premium by

      the Cancel Date, the Cancellation Notices explained that the following would

      occur:

               Payment prior to the date and time of cancellation will reinstate
               your policies. If paid after that date and time, you will be
               informed whether your policies have been reinstated and, if so,
               the exact date and time of reinstatement. There is no coverage
               between the date and time of cancellation and the date and time of
               reinstatement.


      Id. (emphasis added).




      Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 2 of 13
[4]   On each of those three occasions, Starr-Haller failed to make the installment

      payment required prior to the relevant Cancel Date, but she did pay that

      amount thereafter during the same policy period. Following each late

      installment payment, State Farm mailed Starr-Haller a “Reinstatement Notice.”

      Id. at 148, 151, 154. Those notices stated again that, because Starr-Haller had

      made her installment payments after the relevant Cancel Dates, “there [wa]s no

      coverage between the date and time of Cancellation and the date and time of

      Reinstatement.” Id.


[5]   According to the terms of Starr-Haller’s insurance agreement with State Farm,

      “if [State Farm] cancel[s] this policy, then premium will be earned on a pro rata

      basis.[ ]Any unearned premium may be returned within a reasonable time after

      cancellation. Delay in the return of any unearned premium does not affect the

      cancellation date.” Id. at 144. While State Farm accepted each of Starr-

      Haller’s late installment payments in full, it did not refund any portion of the

      premium for the periods during which her coverage had lapsed.


[6]   In August of 2014, Starr-Haller again failed to pay her automobile insurance

      installment premium. Accordingly, on September 3, State Farm mailed Starr-

      Haller another Cancellation Notice. According to that Notice, State Farm

      would cancel Starr-Haller’s automobile insurance coverage if she did not pay




      Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 3 of 13
      her $430 premium1 by the Cancel Date, September 18. As with the prior

      Cancellation Notices, the September 3 Cancellation Notice informed Starr-

      Haller that her failure to pay the amount due by the September 18 Cancel Date

      would result in a lapse of coverage between that Cancel Date and the date that

      State Farm reinstated Starr-Haller’s coverage following her payment. Id. at 156.


[7]   Seven weeks later, on October 30, Starr-Haller dropped a check off at her State

      Farm agent’s place of business, after business hours, in the amount of $350.

      Later that evening, Starr-Haller’s minor son, Bradley, was involved in a one-car

      accident in the Chevy Blazer that resulted in injuries to him and totaled the

      vehicle. Sometime thereafter, Starr-Haller paid the remaining $80 due. Upon

      receiving the total balance due, State Farm reinstated Starr-Haller’s automobile

      insurance coverage.2 State Farm did not refund to Starr-Haller any portion of

      her premium during that policy term.


[8]   Starr-Haller filed a claim with State Farm for coverage relating to the October

      30 accident. State Farm denied the claim on the ground that it had cancelled

      Starr-Haller’s coverage, which had not been reinstated as of the accident date.

      On January 21, 2015, Starr-Haller filed a complaint against State Farm for



      1
        Starr-Haller had several insurance policies with State Farm, and she paid her premium installments for
      each of those policies in one combined monthly payment. Of the $430 she owed in September of 2014,
      $49.48 was for the Chevy Blazer.
      2
        This is according to Starr-Haller’s affidavit, which, unlike the other claims of reinstatement, is not
      supported by documentation from State Farm. See Appellants’ App. at 187. And, on appeal, State Farm
      disputes that it would have reinstated coverage for a totaled vehicle. Appellee’s Br. at 15. We acknowledge
      State Farm’s skepticism of Starr-Haller’s statement, but, as she is the summary judgment nonmovant, we are
      obliged to construe all facts favorable to her, even if the only basis for those facts is a “perfunctory and self-
      serving” affidavit. Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014).

      Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016                          Page 4 of 13
      breach of contract, along with other claims against other parties. On December

      3, State Farm moved for summary judgment, which the trial court granted.

      The court entered its judgment for State Farm as a final judgment pursuant to

      Indiana Trial Rule 54(B), and this appeal ensued.


                                     Discussion and Decision
[9]   Starr-Haller asserts that the trial court erred when it entered summary judgment

      for State Farm. As our supreme court has stated:

              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving
              party is entitled to judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


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


      Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 5 of 13
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

       Hughley).


[10]   According to Starr-Haller, State Farm has “waived” its right to deny, and “is

       estopped from denying[,] coverage for the October 30, 2014[,] accident because

       of its pattern of repeatedly accepting late and non-conforming [installment]

       payments . . . and reinstating the policy.” Appellants’ Br. at 11. More

       specifically, Starr-Haller asserts:

               The payments made . . . were clearly installment payments
               towards the policy premium. On the prior occasions, when
               [Starr-Haller] would make delinquent payments, State Farm
               would accept the payment[] and send [her] a statement indicating
               that her coverage had been reinstated as of the date . . . the
               payment was received, indicating that the policy had “lapsed”
               from the time the payment was due until it was received . . . .


                . . . State Farm, when accepting the [late] payment[s], did not
               refund or credit [Starr-Haller], pro rata, the portion of the
               payment for the time for which she was allegedly not covered,
               but instead [State Farm] accepted the payments in full as if [she]
               had continuous, uninterrupted coverage . . . .


       Id. at 14-15. We cannot agree with Starr-Haller’s assessment that State Farm’s

       failure to remit her unearned premium on a pro rata basis, without more,

       demonstrates that State Farm waived its right to deny her coverage for the




       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 6 of 13
       October 30 accident or that State Farm should be estopped from denying her

       that coverage.


[11]   As we have explained:


               It is well settled that contractual provisions of an insurance policy
               may be waived or that the insurer may be estopped from
               asserting such provisions. More specifically, provisions in an
               insurance policy providing for its forfeiture for nonpayment of
               the premiums is for the insurer’s benefit, and may be waived. . . .


                                                       ***


               Waiver is generally a question of fact. Where there are no
               disputed facts and the undisputed facts establish a party is
               entitled to judgment as a matter of law, however, summary
               judgment is proper. . . .


               “The term ‘estoppel’ has a meaning distinct from ‘waiver’ but the
               terms are often used synonymously with respect to insurance
               matters.” The existence of waiver may be implied from the acts,
               omissions, or conduct of one of the parties to the contract. The
               conduct of an insurer inconsistent with an intention to rely on the
               requirements of the policy that leads the insured to believe that
               those requirements will not be insisted upon is sufficient to
               constitute waiver.


                                                       ***


                . . . The doctrine of estoppel springs from equitable principles,
               and it is designed to aid in the administration of justice where,
               without its aid, injustice might result. Use of the doctrine is not
               limited to circumstances involving an actual or false
               representation or concealment of an existing material fact.
       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 7 of 13
               Instead, equitable estoppel is available if one party through his
               course of conduct knowingly misleads or induces another party
               to believe and act upon his conduct in good faith and without
               knowledge of the facts.


       Am. Stand. Ins. Co. v. Rogers, 788 N.E.2d 873, 876-77, 879 (Ind. Ct. App. 2003)

       (footnote and citations omitted). Thus, “[a] waiver is an intentional

       relinquishment of a known right involving both knowledge of the existence of

       the right and the intent to relinquish it.” Id. at 877 n.4. “The elements of

       estoppel are the misleading of a party entitled to rely on the acts or statements

       in question and a consequent change of position to that party’s detriment.” Id.


[12]   In Rogers, American Standard issued a policy of automobile insurance to

       Wilson. On at least eight occasions prior to December of 1997, American

       Standard had cancelled Wilson’s policy due to his failure to timely pay his

       premiums only to later “re-issue[]” the policy upon Wilson’s eventual payment,

       with no apparent loss of coverage and no refund of a portion of the premiums

       for the days for which the policy had been cancelled. Id. at 877. On December

       24, 1997, American Standard sent another cancellation letter to Wilson due to

       his failure to timely pay his premium. That cancellation letter stated that

       Wilson’s policy would be cancelled on January 8, 1998, unless Wilson paid the

       total amount owed—$958.80—prior to that date. On December 29, 1997,

       Wilson submitted a payment in the amount of $374.30. Wilson made no

       further payments on his account.




       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 8 of 13
[13]   On March 4, 1998, Rogers was operating one of Wilson’s vehicles with

       Wilson’s permission and was involved in a collision with a vehicle driven by

       Roberts. Thereafter, American Standard sought a declaratory judgment that its

       policy with Wilson did not provide coverage for that accident because the

       policy had been cancelled in January of 1998, approximately two months

       before the accident. Rogers argued that American Standard had waived its

       right to deny coverage and, in the alternative, was estopped from denying that

       coverage.


[14]   On appeal, we first held that American Standard’s December 1997 cancellation

       notice made clear that it was not waiving its right to deny future claims of

       coverage in the event that Wilson failed to timely pay his premium. Id. at 877-

       78. In particular, we noted that the insured “had notice of cancellation prior to

       his [final, partial] payment”; that he “was further notified that failure to remit

       the payment . . . in full prior to the cancellation date . . . would result in an

       interruption of coverage”; and, “[f]ollowing the [insurer’s] acceptance of the

       partial payment, American Standard continued to assert its right to

       cancellation.” Id. at 878 n.7. We did not consider the prior cancellations and

       reissuances relevant to our analysis because there was no evidence that

       American Standard had reissued the insurance coverage after January of 1998,

       which was the only cancellation relevant to the accident at issue.


[15]   We then held that there was “no evidence to support the conclusion that

       American Standard” should be estopped from denying coverage. Id. at 879.

       Specifically, we concluded:

       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 9 of 13
               American Standard repeatedly informed Wilson that the Policy
               would be, and was, canceled effective January 8, 1998. There is
               no evidence to suggest that Wilson was not aware of the fact that
               the Policy was in fact cancelled or that he acted to his detriment
               based upon his misunderstanding that the Policy was in full
               effect. It would be inequitable to extend the Policy two months
               beyond January 8, 1998[,] when it is clear from the actions of
               both American Standard and Wilson that the Policy was
               terminated prior to the date of the accident between Rogers and
               Roberts.


       Id.


[16]   Unlike here, in Rogers the policy had been cancelled and had not been reinstated

       after the accident had occurred. But the fact pattern in Rogers is otherwise

       similar and provides helpful guidance for the resolution of this case. Nearly

       two months prior to the October 30 accident, State Farm informed Starr-Haller

       that the untimely payment of her premium installment would result in State

       Farm cancelling her coverage until she had paid that installment and State

       Farm had affirmatively reinstated her coverage. The language in the

       Cancellation Notice was consistent with three such prior notices State Farm

       had sent to Starr-Haller. In reinstating Starr-Haller’s coverage on each of those

       three prior occasions, State Farm had expressly informed Starr-Haller that it

       had cancelled her coverage between the relevant Cancel Dates and

       Reinstatement Dates. And Starr-Haller’s contract with State Farm specifically

       declared that any “[d]elay [by State Farm] in the return of any unearned

       premium does not affect the cancellation date.” Appellants’ App. at 144. In

       other words, State Farm reserved the right to accept late installment payments

       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 10 of 13
       and to reinstate the policy and coverage prospectively but not to reinstate

       coverage retroactively during the period in which coverage had been cancelled

       due to nonpayment of the premium.


[17]   State Farm’s actions with respect to the dates that encompassed the October 30

       accident were identical to its actions during the three prior occasions in which

       State Farm had also cancelled Starr-Haller’s coverage. That undisputed

       evidence plainly shows that State Farm did not intend to relinquish its right to

       deny Starr-Haller coverage during the period in which those cancellations of

       coverage had occurred. Likewise, that evidence demonstrates that State Farm’s

       course of conduct did not knowingly mislead or induce Starr-Haller to believe

       that she would have retroactive coverage if she did not pay her premium

       installment when due. See Rogers, 788 N.E.2d at 879.


[18]   Finally, we are not persuaded by Starr-Haller’s reliance on State Farm’s failure

       to issue her pro rata refunds of her premiums for the periods in which her

       coverage had been cancelled. First, as in Rogers, there is no question that at the

       time of the accident State Farm had clearly and affirmatively cancelled Starr-

       Haller’s coverage, regardless of whether State Farm subsequently reinstated the

       coverage. While the instant facts are unlike Rogers in that State Farm

       eventually did accept Starr-Haller’s subsequent installment payments, thereby

       reinstating her coverage as of the reinstatement date, nonetheless State Farm

       made it clear to Starr-Haller that such late payments did not reinstate coverage

       during the periods in which her coverage had lapsed due to nonpayment of the



       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 11 of 13
       installment then due, and State Farm’s position was the same as its position on

       the three prior occasions.


[19]   There is nothing in State Farm’s conduct that would have given Starr-Haller a

       right to rely upon anything other than the express terms of her insurance

       contract. Indeed, Starr-Haller’s argument that her unrefunded payments entitle

       her to coverage contravenes her contract with State Farm. Again, in the

       contract State Farm expressly reserved the right to accept late installment

       payments without reinstating coverage retroactively, declaring that any “[d]elay

       [by State Farm] in the return of any unearned premium does not affect the

       cancellation date.” Appellants’ App. at 144. At best, Starr-Haller has

       demonstrated that she is entitled to a refund from State Farm for those

       unearned premium payments,3 but she has not demonstrated that she is entitled

       to coverage.


[20]   In sum, the undisputed designated evidence shows that State Farm did not

       waive its right to deny Starr-Haller the coverage she now claims. The

       undisputed designated evidence likewise shows that State Farm is not estopped

       from denying her that coverage. Accordingly, State Farm met its burden to

       demonstrate that it is entitled to judgment as a matter of law, and Starr-Haller

       has failed to designate evidence to create a genuine issue of material fact on her

       claims against State Farm. Thus, we affirm the trial court’s entry of summary

       judgment for State Farm.


       3
           Starr-Haller has not sought such a refund in her complaint.

       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 12 of 13
[21]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Opinion 32A05-1605-PL-976 | September 16, 2016   Page 13 of 13
