      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                         FILED
      this Memorandum Decision shall not be
                                                                                 Aug 02 2018, 9:11 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                   CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
      the defense of res judicata, collateral                                         and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Alan W. Roles                                            John W. Mervilde
      Coleman, Roles & Associates, PLLC                        Rick D. Meils
      Louisville, Kentucky                                     Meils Thompson Dietz & Berish
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Terry L. Balz,                                           August 2, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               10A04-1711-CT-2816
              v.                                               Appeal from the Clark Circuit
                                                               Court 1
      Claims Professional                                      The Honorable Marsha Owens
      Representatives, LLC,                                    Howser, Special Judge
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               10C01-1306-CT-091



      Barnes, Senior Judge.


                                             Case Summary
[1]   Terry L. Balz appeals from the grant of summary judgment in favor of Claims

      Professional Representatives, LLC (“CPR”). We affirm.

      Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018              Page 1 of 23
                                                     Issue
[2]   The sole issue before us is whether genuine issues of material fact precluded

      entry of summary judgment in favor of CPR.


                                                     Facts
[3]   On January 8, 2018, Balz’s home (“the premises”), located in Clark County,

      was destroyed by fire and deemed a complete loss. Balz suffered serious

      injuries in the fire. At the time, the premises were insured under a

      homeowners’ insurance policy (“Policy”) issued by United Farm Family

      Mutual Insurance Company (“Farm Bureau”). The Policy included the

      following “Physical Damage Coverages”: $123,724 for the “Dwelling”;

      $12,372 for “Other Structures”; $61,900 for “Personal Property”; and $24,700

      for “Loss of Use.” App. Vol. II p. 35. The “functional replacement cost loss

      settlement” endorsement of the Policy states, in part:


          (1) “If, at the time of loss[ ]


              ...


              (b) You contract for repair or replacement of the damaged building for

              the same use, within 180 days of the damage unless we otherwise agree;

              we will pay, after application of deductible, the lesser of the following

              amounts:


              (a) [the policy limits applicable to the building]; or



      Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 2 of 23
               (b) “[t]he necessary amount actually spent to repair or replace the

              damaged building on a “functional replacement cost” basis. . . . .


      Id. at 91.


[4]   On or about January 11, 2010, Balz received the first of three letters from CPR,

      a public adjusting company, seeking to represent him in his claim negotiations

      with Farm Bureau. Balz subsequently executed a “Limited Authority

      Authorization & Assignment” agreement with CPR on or about February 12,

      2010, wherein he gave CPR the right to “prepare and present” his claim to

      Farm Bureau; instructed Farm Bureau to “recognize [CPR] as a party in

      interest and [to] discuss limit of coverage and/or value(s) of the aforementioned

      loss(es) with [CPR]”; authorized Farm Bureau to release all insurance claim

      records to CPR; provided written notice to Farm Bureau that CPR’s agent, Lisa

      VanHimbergen, would “develop, present and negotiate” on his behalf; and

      agreed to pay CPR “10% of the amount of the settlement, judgment, or award

      proceeds, when recovered . . . .” App. Vol. III pp. 106, 117. Balz contends,

      and CPR disputes, that by executing the agreement with CPR, he relinquished

      his right to communicate with Farm Bureau directly and was foreclosed from

      doing so.


[5]   Before the fire, Balz, who was skilled in construction, had purchased materials

      to remodel his house. After the fire, he believed that he could rebuild the

      house—an approximately $60,000 repair—for approximately $35,000, if he

      provided some labor himself and hired subcontractors only for work that he


      Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 3 of 23
      could not complete himself. He asked VanHimbergen to relay his request to

      Farm Bureau.


[6]   CPR counters that, by insisting on serving as the contractor responsible for

      performing the repairs and “demand[ing] that the money be paid directly to

      him,” Balz refused to comply with the Policy provision requiring him to “to

      contract for repair or replacement of the damaged building” and, thereby,

      forfeited recovery for functional replacement costs. App. Vol. II p. 10.


[7]   VanHimbergen presented Balz’s insurance claim to Farm Bureau, which agreed

      to pay the entire limits under the policy to or on behalf of Balz, including

      functional replacement costs of $34,277.46. App. Vol. II p. 10. On or about

      July 7, 2010, Farm Bureau paid full policy limits to CPR, but did not pay

      functional replacement costs. CPR collected its fee in the amount of $19,572.40

      and paid the remaining monies to Balz.


[8]   On June 25, 2013, Balz sued CPR for breach of contract, breach of the duty of

      good faith and fair dealing, fraud in the inducement, constructive fraud,

      negligent misrepresentation, criminal conversion, tortious conversion,

      intentional infliction of emotional distress, negligent infliction of emotional

      distress, and punitive damages. In his complaint, Balz alleged that CPR: (1)

      fraudulently induced his execution of the representation agreement through

      express and implied promises “made to lure [him] into executing the

      [agreement]”; (2) failed to perform its claims processing duties; (3) failed to

      collect functional replacement cost insurance proceeds owed to him in the


      Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 4 of 23
      amount of $34,277.46; (4) wrongfully collected a fee of $19,572.40; and (5)

      allowed the statute of limitations to run, resulting in Balz forfeiting his

      opportunity to recover insurance benefits for functional replacement costs.

      App. Vol. III p. 172.


[9]   On December 12, 2016, CPR moved for summary judgment. CPR’s

      designated materials included a deposition of Balz, taken on November 19,

      2015; and the deposition of VanHimbergen, taken on October 25, 2016. The

      trial court conducted a hearing on CPR’s motion for summary judgment on

      September 25, 2017. It entered summary judgment in CPR’s favor on October

      30, 2017. The trial court’s order provided, in part, as follows:


              3.      That on or about February 12, 2010, CPR and Balz
              entered into a contract wherein CPR agreed “to render such
              services to the insured (Balz); to prepare and present insureds
              [sic] claim for loss and damage caused” by fire on January 8,
              2010. In exchange, Balz agreed to pay “CPR for services
              promised a sum of 10% of the amount of settlement.”


              4.     That CPR presented Balz’s claim to Balz’s insurer, Indiana
              Farm Bureau Insurance[,] thereby fulfilling its contractual
              obligations.


              5.    That Indiana Farm Bureau agreed to pay the entire limits
              under the policy to or on behalf of Balz.


              6.    That lndiana Farm Bureau agreed on behalf of Balz [to]
              “functional replacement costs” in the amount of $34,277.46.




      Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 5 of 23
               7.     That the subject policy of insurance with Indiana Farm
               Bureau provided, “If at the time of the loss, (B) you contract for
               repair or replacement of the damaged building for the same use
               within l80 days [of the damage unless we and you otherwise
               agree; we will pay, after application of deductible, the lesser of
               the following amounts: (a) The limit of liability under this policy
               that applies to the building; or (b) The necessary amount actually
               spent to repair or replace the damaged building on a “functional
               replacement cost basis. . . . ”].


               8.    That Balz refused “to contract for repair or replacement of
               the damaged building” as expressly provided by the policy of
               insurance. Instead, he demanded that the money be paid directly
               to him.


               9.     That CPR fulfilled its contractual obligations and was
               entitled to a fee equal to 10% of the policy limits.


               10. That Balz’s claims for (l) Breach of Contract, (2) Breach of
               the Duty of Good Faith and Fair Dealing, (3) Fraud in the
               lnducement, (4) Constructive Fraud, (5) Negligent
               Misrepresentation, (6) Criminal Conversion, (7) Tortious
               Conversion, (8) Intentional lnfliction of Emotional Distress, and
               (9) Negligent lnfliction of Emotional Distress all fail as a matter
               of law.


       App. Vol. II pp. 9-10. Balz now appeals.


                                                   Analysis
[10]   Balz argues that the trial court erred by granting summary judgment to CPR.

       The purpose of summary judgment is to terminate litigation about which there

       can be no factual dispute and which can be determined as a matter of law.


       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 6 of 23
       Sheehan Const. Co., Inc. v. Cont’l Cas. Co., 938 N.E.2d 685, 689 (Ind. 2010). On

       appeal from a summary judgment, we apply the same standard of review as the

       trial court: summary judgment is appropriate only where the designated

       evidentiary matter shows there is no genuine issue as to any material fact and

       that the moving party is entitled to judgment as a matter of law. Young v. Hood’s

       Gardens, Inc., 24 N.E.3d 421, 423-24 (Ind. 2015); see also Ind. Trial Rule 56(C).

       All facts and reasonable inferences drawn from those facts are construed in

       favor of the nonmovant. Sheehan Const. Co., Inc., 938 N.E.2d at 688. The party

       who lost in the trial court has the burden of demonstrating that the grant of

       summary judgment was erroneous. Auto-Owners Ins. Co. v. Benko, 964 N.E.2d

       886, 890 (Ind. Ct. App. 2012), trans. denied.


[11]   As to virtually all of his claims, Balz generally alleges the following:


               104. [Balz] has suffered damages as a result of the wrongful
               conduct of [CPR]. [CPR] is liable to [Balz] for such damages
               suffered, in a reasonable amount, to compensate him for his loss,
               including, but not limited to reasonable costs of this litigation and
               attorney’s fees, loss of his income and future financial stability
               and creditworthiness, mental anguish, mortification, extreme
               emotional distress and other damages.


               105. The conduct of [CPR] was willful and intentional, and
               entered into knowingly by [CPR]. Moreover, [CPR]’s conduct
               amounts to gross negligence, reckless disregard of the rights of
               [Balz], and made with malice and oppression. Based on its
               conduct, [CPR] is liable to [Balz] for punitive damages.


       App. Vol. III pp. 181-82.


       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 7 of 23
                      A. Breach of the Duty of Good Faith and Fair Dealing

[12]   Balz argues that genuine issues of material fact precluded entry of summary

       judgment in CPR’s favor regarding his claim of breach of CPR’s duty of good

       faith and fair dealing; in his complaint, he alleged:


               58. There is an implied duty of good faith and fair dealing in
               every contract, including the contract, and the course of dealings
               and patterns and practices—as well as any revisions offered by
               [CPR] —that amounted to contracts between [Balz] and [CPR].


               59. [CPR] breached its obligation of good faith and fair
               dealing with respect to the discharge of its contractual
               obligations, including, but not limited to (1) its failure to
               minimize the burden for [Balz]; (2) its refusal to abide by its
               contractual duties to assist in working with the insurer in
               processing [Balz’s] insurance claim; (3) its utter failure to collect
               all money due under the claim; (4) its obtaining a large fee that
               was not earned; (5) its continual refusal to honor its repeated
               promises to provide Mr. Balz an accounting and turn claims
               processing over to him; and (6) all other improper and intentional
               bad acts designed to undermine the contractual obligations
               [CPR] owed [Balz].


               60. Through all of its wrongful conduct, [CPR] exercised an
               unfair advantage over [Balz] by refusing to act in a reasonable
               and workmanlike manner regarding its contractual duties to
               [Balz]. All [CPR]’s conduct described herein amounts to
               wrongful interference and destruction of [Balz’s] business affairs.


               61. The breach of the duties of good faith and fair dealing to
               [Balz] committed by [CPR] has caused [Balz] damages, and has
               caused him to suffer monetary loss . . . .



       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 8 of 23
       App. Vol. III p. 11.


[13]   Indiana courts have recognized an implied covenant of good faith and fair

       dealing in contract law, but generally only in limited circumstances involving

       employment contracts and insurance contracts. Lake County Trust Co. v. Wine,

       704 N.E.2d 1035, 1039 (Ind. Ct. App. 1998). If the contract is ambiguous or

       expressly imposes such a duty on the parties, then the courts will impose such a

       duty. First Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 604 (Ind.

       1990). Our supreme court has explained our courts’ reluctance to extend this

       duty to other, unambiguous contracts:


               It is not the province of courts to require a party acting pursuant
               to such a[n unambiguous] contract to be “reasonable,” “fair,” or
               show “good faith” cooperation. Such an assessment would go
               beyond the bounds of judicial duty and responsibility. It would
               be impossible for parties to rely on the written expressions of
               their duties and responsibilities. Further, it would place the court
               at the negotiation table with the parties.


       Id.


[14]   Here, the underlying agreement is unambiguous; it is neither an employment

       nor an insurance contract. The involvement of insurer Farm Bureau does not

       implicate the latter, as Farm Bureau is not a party to the agreement between

       Balz and CPR. Having found that CPR owed no duty to Balz, he is in no

       position to assert that CPR failed to exercise such duties in good faith.

       Accordingly, the trial court did not err in granting summary judgment in favor



       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 9 of 23
       of CPR regarding Balz’s claim of breach of the duty of good faith and fair

       dealing.


                                            B. Breach of Contract

[15]   Balz argues as follows that genuine issues of material fact precluded entry of

       summary judgment in CPR’s favor regarding his breach of contract claim. In

       his complaint, he alleged:


               53. At all relevant times, [CPR] had a contract with [Balz] and
               agreed to assist him in processing his insurance claim after his
               house fire on January 8, 2010.


               54. At all relevant times, [CPR] failed to perform its claims
               processing duties as promised, said failure amounting to breaches
               of contract.


               55. As a result of [CPR]’s breaches, but not limited to the
               violations stated herein, [Balz] has been damaged, has suffered
               monetary loss . . . .


               56. The breaches by [CPR] were willful and intentional, and
               entered into knowingly by [CPR]. Moreover, [CPR]’s conduct
               amounts to gross negligence, reckless disregard of the rights of
               [Balz], and made with malice and oppression. Based on its
               conduct, [CPR] is liable to [Balz] for punitive damages.


       App. Vol. III p. 175.


[16]   “The essential elements of a breach of contract action are the existence of a

       contract, the defendant’s breach thereof, and damages.” Fairfield Dev., Inc. v.

       Georgetown Woods Sr. Apartments Ltd. P’ship, 768 N.E.2d 463, 473 (Ind. Ct. App.
       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 10 of 23
       2002). Here, the designated materials disclose that Balz entered into a written

       agreement with CPR, wherein CPR would represent Balz in claim negotiations

       with Farm Bureau in exchange for a fee of ten percent of the claim settlement.

       VanHimbergen presented Balz’s claim to Farm Bureau; Farm Bureau agreed to

       pay policy limits, including functional replacement costs of $34,277.46, to Balz.

       In order for Balz to recover functional replacement costs, the Policy required

       Balz to “contract for the repair of the damaged building . . . within 180 days of

       the damage” unless Farm Bureau and Balz/CPR otherwise agreed. App. Vol.

       II p. 91.


[17]   The designated materials, particularly Balz’s deposition testimony, establish

       that he was intent on serving as the contractor for purposes of the repair (and

       having the money paid directly to him) rather than contracting with another

       person or entity to complete the repair, as was required under the terms of the

       Policy. As CPR argues, “Balz knew he was required to contract with someone

       to rebuild his residence, he had no intention of doing so, and CPR had no way

       of compelling him to do so.” Appellee’s Br. p. 24.


[18]   Based on the foregoing, we conclude that CPR fulfilled its contract obligations

       to prepare and present Balz’s claim to Farm Bureau when it obtained Farm

       Bureau’s commitment to pay him policy limits, including $34,277.46 in

       functional replacement costs; however, the functional replacement costs were

       forfeited as a result of Balz’s own actions and omissions. No genuine issue of

       material fact precluded entry of summary judgment regarding his breach of

       contract claim.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 11 of 23
                                        C. Fraud in the Inducement

[19]   Balz argues that genuine issues of material fact precluded entry of summary

       judgment in CPR’s favor regarding his claim of fraud in the inducement. In his

       complaint, he alleged:


               70. [CPR] made material misrepresentations of past or
               existing facts, including all the facts set forth supra, and
               including, but not limited to, statements that [CPR] would
               perform its duties to [Balz] in a reasonable and businesslike
               manner, and would honor its contracts with [Balz], including,
               but not limited to performing an inventory and making sure all
               monies owed [Balz] under his claim were, in fact, paid. [Balz]
               also relied on statements made by [CPR] that promised him a full
               accounting for its services and promises that it, [CPR], would
               relinquish the claims processing to [Balz]’s care, as well as other
               statements designed to make [Balz] act in reliance of same.


               71. The misrepresentations made by [CPR] to [Balz] were
               false.


               72. [CPR] made the misrepresentations to [Balz] knowing the
               statements were false or in reckless ignorance of the falsity.


               73. [Balz] relied upon [CPR]’s statements and such reliance
               was justifiable.


               74. [CPR]’s wrongful conduct injured [Balz] and caused him
               damages. [CPR] is liable to [Balz] for such damages suffered, in
               a reasonable amount, to compensate him for his loss . . . .


       App. Vol. III p. 177.



       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 12 of 23
[20]   CPR counters that “[n]othing in the record suggests that anything CPR said in

       any of those letters was a misrepresentation of a past or existing fact”; “Balz’s

       only evidence in support of his position is his subjective belief that he could

       have received a larger settlement”; and “CPR’s statements plainly were

       statements about the outcomes for previous clients and did not constitute an

       express or implied promise that Balz’s claim would turn out in a certain way.”

       Appellee’s Br. p. 12.


[21]   To sustain an action for fraud, it must be proven that a material representation

       of a past or existing fact was made which was untrue and known to be untrue

       by the party making it or else recklessly made and that another party did in fact

       rely on the representation and was induced thereby to act to his detriment.

       Fleetwood Corp. v. Mirich, 404 N.E.2d 38, 42 (Ind. Ct. App. 1980). Fraud need

       not be proven by direct or positive evidence; it may be proven by circumstantial

       evidence, provided there are facts from which the existence of all the elements

       can be reasonably inferred. Plymale v. Upright, 419 N.E.2d 756, 760 (Ind. Ct.

       App. 1981).


[22]   Fraudulent inducement occurs when a party is induced through fraudulent

       misrepresentation to enter into a contract. Lightning Litho, Inc. v. Danka Indus.,

       776 N.E.2d 1238, 1241 (Ind. Ct. App. 2002), trans. denied. Because the essential

       elements of fraudulent inducement are no different from any other action on

       fraud, the action may not be predicated upon representations of future conduct.

       Siegel v. Williams, 818 N.E.2d 510, 515 (Ind. Ct. App. 2004). While an oral

       promise as to future conduct will not support an ordinary fraud action, such

       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 13 of 23
       promise may form the basis of a constructive fraud action if the promise induces

       one to place himself in a worse position than he would have been in had no

       promise been made and if the party making the promise derives a benefit as a

       result of the promise. Id.


[23]   Here, the designated facts establish that CPR’s primary objectives were to

       present Balz’s claim to Farm Bureau and to obtain a favorable claim payment.

       CPR successfully obtained Farm Bureau’s promise to pay Balz the policy limits,

       including functional replacement costs. As Balz acknowledged in his deposition

       testimony, he did not accept Farm Bureau’s express condition as to functional

       replacement costs; he, consequently, forfeited recovery of those benefits. Given

       that he otherwise recovered policy limits, and that his primary injury—the

       forfeiture—resulted directly from his own actions/omissions, Balz cannot

       establish that his reliance on any of CPR’s statements, which really amounted

       to future predictions or puffery, caused the forfeiture. The trial court did not err

       in granting summary judgment in CPR’s favor as to Balz’s claim of fraud in the

       inducement.


                                            D. Constructive Fraud

[24]   Balz argues that genuine issues of material fact precluded entry of summary

       judgment in CPR’s favor regarding his claim of constructive fraud. In his

       complaint, he alleged:


               77. [CPR] had a duty to [Balz] by virtue of its contractual
               relationship between the [CPR] and [Balz].


       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 14 of 23
               78. [CPR] violated its duty to [Balz] by the making of deceptive
               material misrepresentations of the past or existing facts or
               remaining silent when the duty to speak exists, including, but not
               limited to, statements that [CPR] would obtain more money for
               [Balz] if [CPR] handled the claim than if [Farm Bureau] handled
               the claim directly, as well as statements that [CPR] would obtain
               all proceeds [Balz] was entitled to receive under his policy of
               insurance. [CPR] also promised—falsely - that it would perform
               an inventory, but required [Balz]—in fragile health due to
               injuries incurred in the house fire—to do the work. [CPR] also
               promised to provide a complete accounting and turn over the
               claims processing to [Balz], and made other statements and
               omissions designed to unfairly mislead [Balz].


               79. [Balz] relied thereon on the false statements made by [CPR].


               80. [Balz] was injured by the wrongful conduct of [CPR] . . . .


               81. [CPR] gained an unfair advantage at the expense of [Balz].


               82. As a result, [Balz] suffered damages, and [CPR] is liable to
               [Balz] for such damages suffered . . . .


       App. Vol. III pp. 178-179.


[25]   Constructive fraud may be found where one party takes unconscionable

       advantage of his dominant position in a confidential or fiduciary relationship.

       Stoll v. Grimm, 681 N.E.2d 749, 757 (Ind. Ct. App. 1997); see Estates of Kalwitz v.

       Kalwitz, 717 N.E.2d 904, 913 (Ind. Ct. App. 1999) (“Any breach of a duty

       arising from a confidential or fiduciary relation, without any actual fraudulent

       intent gains an advantage at the expense of any one to whom he owes such


       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 15 of 23
       duty, amounts to a constructive fraud.”). In addition, a representation

       regarding future conduct can, in some situations, give rise to a constructive

       fraud. Wells v. Stone City Bank, 691 N.E.2d 1246, 1250 (Ind. Ct. App. 1998),

       trans. denied. A confidential or fiduciary relationship exists when confidence is

       reposed by one party in another with resulting superiority and influence

       exercised by the other. Drudge v. Brandt, 698 N.E.2d 1245, 1250 (Ind. Ct. App.

       1998). The question of whether a confidential relationship exists is one of fact

       to be determined by the finder of fact. Dawson v. Hummer, 649 N.E.2d 653, 661

       (Ind. Ct. App. 1995).


[26]   It is well-settled Indiana law that the parties cannot rely on a contractual

       relationship to create a duty. Contractual agreements do not give rise to a

       fiduciary relationship creating a duty. See Comfax Corp. v. North American Van

       Lines, Inc., 587 N.E.2d 118, 125-26 (Ind. Ct. App. 1992) (holding that an arms-

       length, contractual arrangement does not create a fiduciary relationship and

       does not provide a basis for constructive fraud claim); see also Orem v. Ivy Tech

       State College, 711 N.E.2d 864, 869 (Ind. Ct. App. 1999) (“There must always be

       a violation of some duty owing to plaintiff, and generally such duty must arise

       by operation of law and not by mere agreement of the parties.”) (citing

       BLACK’S LAW DICTIONARY 1489 (6th ed. 1990)), trans. denied.


[27]   Absent a special relationship, which does not exist here, CPR does not have a

       duty to Balz. The trial court properly found that Balz’s constructive fraud claim

       fails as a matter of law.



       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 16 of 23
                                      E. Negligent Misrepresentation

[28]   Balz argues that genuine issues of material fact precluded entry of summary

       judgment in CPR’s favor regarding his claim of negligent misrepresentation. In

       his complaint, he alleged:


               85. [CPR], in the course of its business, profession or
               employment, and in a transaction in which [CPR] had a
               pecuniary interest, supplied false information for the guidance of
               [Balz] in his business transactions, including but not limited to
               promises that [CPR] would provide insurance claims processing
               services for [Balz] in a reasonable and businesslike manner, and
               all promises [CPR] made to [Balz] that it would provide a full
               accounting for all the work it performed under the contracts in
               question and would turn the claims processing over to [Balz],
               and other statements which were caused by conduct precipitated
               by [CPR], and other such false statements, all designed for [Balz]
               to rely upon, and upon which he did rely, and acted upon to his
               detriment.


               86. [Balz] looked to [CPR]—who claimed to have expertise in
               claims handling as a public adjuster licensed under the laws of
               Indiana—to share its expertise regarding the transactions in
               question.


               87. [CPR] provided advice and guidance to [Balz], including
               but not limited to the advice described supra, and provided such
               advice and guidance with intent that the information provided
               would influence [Balz] in making his decisions.


               88. [Balz] had a justifiable reliance upon the information
               provided to him by [CPR].




       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 17 of 23
               89. [CPR] failed to exercise reasonable care or competence in
               obtaining or communicating the information about the
               transactions to [Balz].


               90. [Balz] acted upon the information provided by [CPR] to
               his detriment and has suffered damages as a result of the
               wrongful conduct of [CPR]. . . . .


       App. Vol. III p. 180.

[29]   In its motion for summary judgment, CPR cited Darst v. Illinois Farmers Ins. Co,

       716 N.E.2d 579, 585 (Ind. Ct. App. 1999), for the proposition that “despite the

       limited recognition of the tort in the context of an employer-employee

       relationship, Indiana does not recognize the tort of negligent

       misrepresentation.” See Short v. Haywood Printing Co., Inc., 667 N.E.2d 209, 213

       (Ind. Ct. App. 1996) (holding that the tort of negligent misrepresentation is

       recognized only in employer-employee context under Indiana law). The

       designated materials establish the relationship of the parties to be as follows:

       Balz, a private individual, contracted with public adjusting company CPR, to

       negotiate his insurance claim against Farm Bureau; theirs is not an employer-

       employee relationship. Accordingly, the trial court did not err in granting

       summary judgment in favor of CPR regarding Balz’s negligent

       misrepresentation claim.


                            F. Intentional Infliction of Emotional Distress

[30]   Balz argues that genuine issues of material fact precluded entry of summary

       judgment in CPR’s favor regarding his claim of intentional infliction of


       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 18 of 23
       emotional distress. Specifically, he alleges that CPR solicited him when he had

       just lost his home, was dealing with medical injuries sustained in the fire, and

       “in shock”; he also argues that “as negotiations progressed with [Farm Bureau’s

       adjuster], CPR did not return [his] calls, . . . did not negotiate with his

       homeowner’s adjuster so that he could be the contractor for repairs of his

       home”; “caused him to lose insurance proceeds to which he was entitled”;

       “took its full fee from the benefit proceeds of the policy”; and “let the statute of

       limitations run.” Appellant’s Br. p. 23.


[31]   Balz maintains that a question of fact exists as to whether CPR’s conduct

       constituted intentional infliction of emotional distress. In his complaint, he

       alleged:


               111. [CPR] engaged in extreme and outrageous conduct in that
               it lured [Balz], in a weakened and fragile state, to enter a contract
               with [CPR] when [CPR]’s past conduct has shown that after it
               collects its unearned fee, it fails to complete the claims
               procedures it promised to handle. [CPR] preyed upon [Balz] and
               is destroying the fabric of our society by engaging in depraved
               conduct designed to deprive [Balz] of his insurance proceeds by
               skimming a ten percent (10%) fee from the insurance proceeds
               and allowing the statute to run on $34,277.46 of loss of structure
               proceeds simply because [CPR] had no “cut” of the remaining
               proceeds. It is outrageous and shocking that a public adjuster
               licensed to do business in the State of Indiana would enter a
               contract with [Balz] and fail to fulfill its duties to [Balz] under the
               contract. Indeed, [Farm Bureau] has stated it is [CPR]’s normal
               course of dealings and pattern and practice of conduct in the
               State of Indiana to prey upon individuals whose lives have been
               hit with tragedy. Approaching individuals after a fire ravages
               their home—or after being beset by some other equally tragic

       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 19 of 23
               loss—with only the intention of skimming a ten percent (10%) fee
               off the victim’s insurance money re-victimizes such individuals.
               In this case, it goes without saying that the conduct [CPR]
               engaged in exceeds all bounds usually tolerated by a decent
               society and has caused [Balz] mental distress of a very serious
               kind. [CPR]’s conduct is atrocious and utterly intolerable in a
               civilized society as it has stripped [Balz] of his dignity by [CPR]’s
               conduct designed to re-victimize [Balz] after a total loss and
               serious injuries.


       App. Vol. III pp. 183-85.


[32]   In Cullison v. Medley, our Supreme Court adopted the tort of intentional

       infliction of emotional distress and described it as “extreme and outrageous

       conduct [that] intentionally or recklessly causes severe emotional distress to

       another.” 570 N.E.2d 27, 31 (Ind. 1991) (quoting Restatement (Second) Of

       Torts § 46 (1965)). The intent to harm emotionally constitutes the basis of the

       tort. Cullison, 570 N.E.2d at 31. The elements of the tort are that a defendant

       (1) engages in extreme and outrageous conduct that (2) intentionally or

       recklessly (3) causes (4) severe emotional distress to another. Lachenman v. Stice,

       838 N.E.2d 451 (Ind. Ct. App. 2005), trans. denied. The requirements to prove

       this tort are “rigorous.” Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d

       514, 523 (Ind. Ct. App. 2001).


[33]   “Liability for intentional infliction of emotional distress is found only if there is

       extreme and outrageous conduct.” Bradley v. Hall, 720 N.E.2d 747, 752 (Ind.

       Ct. App. 1999). In describing what constitutes extreme and outrageous

       conduct, we have cited the following comment:

       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 20 of 23
               d. Extreme and outrageous conduct. The cases thus far decided have
               found liability only where the defendant’s conduct has been
               extreme and outrageous. It has not been enough that the
               defendant has acted with an intent which is tortious or even
               criminal, or that he has intended to inflict emotional distress, or
               even that his conduct has been characterized by “malice,” or a
               degree of aggravation which would entitle the plaintiff to punitive
               damages for another tort. Liability has been found only where
               the conduct has been so outrageous in character, and so extreme
               in degree, as to go beyond all possible bounds of decency, and to
               be regarded as atrocious, and utterly intolerable in a civilized
               community. Generally, the case is one in which the recitation of
               the facts to an average member of the community would arouse
               his resentment against the actor, and lead him to exclaim,
               “Outrageous!”


       Id. at 752-53 (quoting Restatement (Second) of Torts § 46). In other words,

       intentional infliction of emotional distress is found where conduct exceeds all

       bounds usually tolerated by a decent society and causes mental distress of a

       very serious kind. Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 514

       (Ind. Ct. App. 2001). What constitutes extreme and outrageous conduct

       depends, in part, upon prevailing cultural norms and values. Id. In the

       appropriate case, the question can be decided as a matter of law. Id.


[34]   Considering the facts in the light most favorable to Balz as the non-moving

       party and even assuming that CPR was inattentive or failed to attend to Balz’s

       needs as it should have, we can conclude as a matter of law that CPR’s conduct

       does not constitute “outrageous” behavior as contemplated by the narrow

       definition adopted from the Restatement. We cannot say that CPR’s conduct

       was so extreme as to go beyond all possible bounds of decency or that it can be

       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 21 of 23
       regarded as atrocious and utterly intolerable in a civilized society. See Bradley,

       720 N.E.2d 752-53. As we have observed: “The law does not provide a

       remedy for every annoyance that occurs in everyday life. Many things which

       are distressing or may be lacking in propriety or good taste are not actionable.”

       Branham, 744 N.E.2d at 518 (citations omitted). Such is the case here,

       especially given that Balz’s insistence on being designated as the contractor of

       record is the sole reason that he forfeited recovery of functional replacement

       costs benefits. The trial court did not err in granting the CPR’s motion for

       summary judgment on the Balz’s claim for intentional infliction of emotional

       distress.


                                     G. Request for Punitive Damages

[35]   Balz argues that genuine issues of material fact precluded entry of summary

       judgment in CPR’s favor regarding his claim for punitive damages. He alleges

       that he is entitled to punitive damages because CPR engaged in “outrageous

       conduct” and “acted with gross negligence,” in “reckless disregard” of his

       rights, “and with malice and oppression in its actions and material omissions.”

       App. Vol. III p. 186.


[36]   To award punitive damages, “some evidence should be required that is

       inconsistent with the hypothesis that the tortious conduct was the result of a

       mistake of law or fact, honest error of judgment, overzealousness, mere

       negligence or other such noniniquitous human failing.” Travelers Indemnity Co.

       v. Armstrong, 442 N.E.2d 349, 362 (Ind. 1982). Furthermore, the public interest


       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 22 of 23
       must be served by the imposition of punitive damages. Id. at 362-363. Such

       damages must be proven by clear and convincing evidence. Id. at 363.


[37]   Balz cannot meet his burden. Here, even construing the materials submitted for

       the summary judgment determination in the light most favorable to Balz, the

       conduct he alleges does not approach the level of egregious behavior required to

       recover punitive damages. The trial court thus properly granted summary

       judgment to CPR on the issue of punitive damages.


                                                 Conclusion
[38]   The trial court did not err in granting summary judgment in CPR’s favor; Balz’s

       claims each fail as a matter of law. We affirm.


[39]   Affirmed.


[40]   Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018   Page 23 of 23
