                                                                                       FILED
                                                                                   Jul 25 2018, 8:24 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
      Andrew J. Detherage                                        Scott A. Faultless
      Christian P. Jones                                         Craig Kelley & Faultless LLC
      Andrea S. Warren                                           Indianapolis, Indiana
      Barnes & Thornburg LLP
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      ONB Insurance Group, Inc.,                                 July 25, 2018
      d/b/a Old National Insurance,                              Court of Appeals Case No.
      and Joseph E. Kenworthy,                                   40A01-1707-CT-1513
      Appellants-Defendants,                                     Appeal from the Jennings Circuit
                                                                 Court
              v.                                                 The Honorable Jon W. Webster,
                                                                 Judge
      The Estate of Joann Marie                                  Trial Court Cause No.
      Megel, Deceased; the Estate of                             40C01-1105-CT-110
      Edward J. Megel, Deceased;                                 40C01-1205-CT-16
      Darcy Megel; Nicholas Megel;
      Christina Megel; and Amy
      Jones,
      Appellees-Plaintiffs



      May, Judge.


[1]   In this interlocutory appeal, ONB Insurance Group, Inc., d/b/a Old National

      Insurance, and Joseph E. Kenworthy (collectively, “ONI”) appeal the trial
      Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                     Page 1 of 24
      court’s denial of their motion for partial summary judgment in favor of The

      Estate of Joann Marie Megel, Deceased; the Estate of Edward J. Megel,

      Deceased; Darcy Megel; Nicholas Megel; Christina Megel; (collectively, “the

      Megel Parties” and Amy Jones (“Jones”) (collectively, “the Accident Parties”).

      ONI presents multiple issues for our review, which we restate as:


              1. Whether, as a matter of law, the Accident Parties can
              establish ONI owed them a common law duty;


              2. Whether, as a matter of law, ONI assumed a duty to the
              Accident Parties; and


              3. Whether ONI conspired with or aided and abetted an
              insured’s violation of the terms of the Federal Motor Carrier
              Safety Regulations (“FMCSR”).


      We reverse and remand.



                             Facts and Procedural History                                 1




                                            Background Facts
[2]   ONI is “an independent insurance broker that seeks insurance quotes from

      multiple brokers and insurance companies.” (App. Vol. XVIII at 126.)

      Kenworthy works as an agent for ONI. One of the insurance companies ONI




      1
       We held oral argument on this matter on May 17, 2018, in Jeffersonville, Indiana, as part of the Indiana
      Bar Association’s Leadership Development Academy. We thank the organizers for their hospitality and
      counsel for their congeniality and excellent presentations.

      Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                        Page 2 of 24
      worked with to procure insurance was Occidental Fire and Casualty Company

      of North Carolina (“Occidental”). ONI uses American Underwriting Services

      (“AUS”) 2 and Creative Underwriters (“CU”) to write insurance quotes.


[3]   William Hackney (“Hackney”) was the owner of Hackney Trucking (“HT”),

      formed in 2004. Hackney and ONI began their relationship in 2008, when

      Hackney owned HT. On August 18, 2010, Hackney sold all of HT’s assets to

      C&K Transport, Inc. (“C&K”), which is also owned by Hackney. C&K and

      HT had the same phone number, email, bank account, and business location.

      C&K utilized HT’s assets including trucks, equipment, and employees, and

      C&K’s earnings were used to pay HT’s outstanding debts.


[4]   To obtain federal operating authority for C&K, Hackney was required to

      submit a number of forms. In their brief, the Accident Parties delineated the

      required forms that are relevant to this case:


              1) OP-1: application for motor carrier authority, 49 CFR
              365.105(a), and mandating financial responsibility the applicant
              “must maintain and have on file with the FMCSA” of liability
              insurance in a minimum amount of $750,000;


              2) BMC-91X: part of the application, 49 CFR 365.109 &
              385.305(b)(3) & (c), and mandating financial responsibility for




      2
       “[AUS] was an authorized agent of Occidental, pursuant to a written agency agreement. Pursuant to the
      agency agreement, Occidental granted AUS the express authority to receive information about C&K,
      evaluate and underwrite C&K’s coverage, issue a binder for coverage, and compile and issue an insurance
      policy to C&K.” (App. Vol. VII at 5-6) (internal citations omitted).

      Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                      Page 3 of 24
              bodily injury be filed with the FMCSA; 49 CFR 365.109(5)(i);
              and


              3) BMC[-]34: part of the application, 49 CFR 365.109 &
              385.305(b)(3) & (c), and mandating financial responsibility for
              cargo liability be filed with the FMCSA; 49 CFR 365.109(5)(iii).


      (Br. of Appellees at 48) (grammatical errors in original) (citations to the record

      omitted).


[5]   On August 16, 2010, Stacy Hicks of GL Authority 3 helped Hackney complete

      and submit the OP-1. As part of the OP-1, Hackney was asked, “Do you have

      now, or have you ever had, any relationship with any other FMCSA Regulated

      entity within the past 3 years?” (App. Vol. XIV at 70.) Hackney answered,

      “No.” (Id.) On August 30, 2010, Carla Carson, a representatives from ONI,

      emailed the AUS underwriter and requested Occidental, who was to provide

      insurance for C&K, to file a BMC-91X form with the FMCSA, which would

      provide the FMCSA with information regarding C&K’s liability insurance

      coverage. The FMCSA accepted all relevant forms on August 30, 2010, and

      C&K obtained its operating authority the same day.




      3
        Hackney described GL Authority as “a service where we had our fuel cards. It’s actually GetLoaded.com,
      we had our fuel cards through. They had a service where they could get your operating authority for you. I
      don’t know whether I filled it out online or talked to them personally on the phone.” (App. Vol. XIX at 30)
      (errors in original).

      Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                        Page 4 of 24
                          Facts of Incident Prompting Litigation
[6]   On February 25, 2011, C&K driver Kenneth Kelley stopped at a weigh station

      in Lima, Ohio. At the weigh station, he discovered the truck (“C&K Truck”)

      was overweight and the brakes were not working properly. Kelley parked the

      C&K Truck. The next morning, Kelley heard air coming from the brake area

      and called Hackney, who asked Kelley to drive the C&K Truck from Lima,

      Ohio, to Mitchell, Indiana, on a route that did not have any weigh stations.

      Kelley refused.


[7]   On February 26, 2011, Hackney drove to Ohio. He did not perform any repairs

      on the truck before driving it back to Mitchell, Indiana, and he drove the C&K

      Truck on the route with no weigh stations. Around 8:00 p.m. that day, Edward

      Megel was driving on U.S. 50 with his wife, JoAnn Megel, and his

      granddaughter, Darcy Megel. Edward was waiting to make a left turn when

      Amy Jones approached him as part of oncoming traffic. Hackney saw

      Edward’s vehicle and realized he might not be able to stop. Hackney, driving

      the C&K Truck, collided with Edward’s and Jones’ vehicles. Edward and

      Darcy sustained injuries from the crash. JoAnn died on March 11, 2011, from

      injuries sustained in the collision. Jones was also injured. It is undisputed by

      the parties that the C&K Truck driven by Hackney was at fault for the accident.


                           Procedural History of Current Matter
[8]   On May 23, 2011, the Megel Parties filed an action for damages against

      multiple parties, including Occidental, stemming from the accident. On May


      Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 5 of 24
      18, 2012, Jones filed a separate action for damages against the same parties

      stemming from the accident. ONI was not an original party to either action.

      On January 3, 2012, Occidental filed third-party claims in both actions against

      ONI, alleging ONI made misrepresentations to Occidental that purportedly

      induced Occidental to issue an insurance policy to C&K. In February 2013,

      both the Megel Parties and Jones amended their complaints to include ONI as a

      defendant.


[9]   On December 8, 2014, ONI filed a motion for summary judgment with regard

      to Occidental’s third-party defendant claims against ONI, arguing Occidental

      could not sue ONI, as C&K’s insurance agent, for alleged misrepresentations

      on C&K’s application for insurance. Additionally, the motion argued

      Occidental’s claim that ONI conspired with C&K to fraudulently procure

      insurance failed as a matter of law because “an agent cannot conspire with a

      principal . . . [and] civil conspiracy allegations require an underlying tort, and

      there is no underlying misrepresentation claim here.” (App. Vol. VI at 238.)

      On August 17, 2016, the trial court granted ONI’s motion for summary

      judgment as to Occidental’s third-party claims against ONI, stating, “As a

      matter of law, the Court grants summary judgment for ONI/ONB and

      Kenworthy on these claims” under the heading, “II. Common Law, Statutory




      Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 6 of 24
       and Actual Fraud/Misrepresentation Claims of Occidental.” (App. Vol. XVII

       at 194.) 4


[10]   On December 8, 2014, ONI filed a motion for summary judgment against the

       Megel Parties, alleging their claims failed as a matter of law. On January 21,

       2015, ONI filed a motion for summary judgment against Jones, alleging her

       claims failed as a matter of law. On August 17, 2016, the trial court denied

       both of ONI’s motions for summary judgment. 5 The trial court certified its

       decision for interlocutory appeal, but our court declined to accept jurisdiction

       over the matter.


[11]   On December 19, 2016, ONI filed renewed motions for summary judgment

       against the Megel Parties and Jones. The renewed motions were based on the

       Indiana Supreme Court’s holding in Goodwin v. Yeakle’s Sports Bar and Grill, Inc.,

       62 N.E.3d 384 (Ind. 2016). The Goodwin court stated, regarding a trial court’s

       analysis of foreseeability of an injury for purposes of allocating duty, that the

       “court is tasked with engaging in a general analysis of the broad type of plaintiff




       4
         Much of the Accident Parties’ arguments regarding duty center around events that occurred between ONI
       and Occidental in the process of insurance procurement. The record reflects ONI employee Carla Carson
       told AUS, an agent of Occidental, that Hackney “ha[d] been owner of another trucking firm for over 20 years
       - he recently decided to form a new company and obtain his authority under the new name.” (App. Vol. XIII
       at 158.) The record also indicates that Hackney converted HT into C&K to allegedly circumvent FMCSR.
       However, because those facts pertain to the communications between ONI and Occidental, and no party
       challenged the trial court’s earlier conclusion that ONI did not make any material misrepresentations to
       Occidental, we are confined to the facts relevant only to the filing of the operating authority paperwork.
       5
         At some point during the proceedings, the trial court began hearing the two claims together based on the
       fact they involved the same defendants, including ONI, and arose from the same accident. While the cases
       were not officially consolidated at trial, the appealed order is captioned to address ONI’s motions for
       summary judgment in both cases and only one appellate cause number exists.

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                        Page 7 of 24
       and harm involved without regard to the facts of the actual occurrence.” Id. at

       394. Based thereon, ONI argued the evidentiary material designated as part of

       Accident Parties’ responses to ONI’s earlier motion for summary judgment


               focused on the actual facts of the transactions and events that
               Plaintiffs contend led to the accident at issue. Under Indiana law
               as articulated by Goodwin, Plaintiffs’ argument was wrong as a
               matter of law, and the extensive evidentiary material Plaintiffs
               relied upon to oppose summary judgment was immaterial and
               irrelevant on summary judgment.


       (App. Vol. XVIII at 59.) In response, the Accident Parties filed a motion

       opposing ONI’s renewed motion for summary judgment and argued a duty of

       care existed under Goodwin, ONI assumed a duty, ONI owed a statutory duty

       of care, and ONI was liable for aiding, abetting, and conspiracy.


[12]   The trial court held a hearing on ONI’s renewed motion for summary judgment

       on April 20, 2017, and summarily denied ONI’s renewed motion for summary

       judgment on April 28, 2017. On June 14, 2017, the trial court certified its

       denial for interlocutory appeal under Indiana Rule of Appellate Procedure

       14(B)(1)(c)(ii). On August 11, 2017, our court accepted jurisdiction over the

       matter and granted the parties’ motions to consolidate the actions for appeal.




       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 8 of 24
                                   Discussion and Decision
                                           Standard of Review
[13]   We review summary judgment using the same standard as the trial court:

       summary judgment is appropriate only where the designated evidence shows

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

       judgment as a matter of law. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).

       All facts and reasonable inferences are construed in favor of the non-moving

       party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the

       challenge to summary judgment raises questions of law, we review them de

       novo. Rogers, 63 N.E.3d at 320.


                                Existence of Common Law Duty
[14]   To prevail on a claim of negligence, the Accident Parties must demonstrate (1)

       ONI owed them a duty; (2) ONI breached that duty by allowing its conduct to

       fall below the applicable standard of care; and (3) ONI’s breach of duty

       proximately caused Accident Parties’ injuries. See Rogers, 63 N.E.3d at 321

       (setting forth elements of negligence). Absent a duty, there can be no breach.

       Id.


[15]   Whether a duty exists is a question of law for the court to decide. Id. at 321.

       We therefore review de novo whether ONI owed the Accident Parties a duty.

       See id. at 320 (reviewing existence of duty de novo). In determining whether a

       duty exists when it has not been established by law, we use a three-part

       balancing test under which we consider: (1) the relationship between the

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 9 of 24
       parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns.

       Goodwin, 62 N.E.3d at 387. Based on our Indiana Supreme Court’s holding in

       Goodwin, ONI argues it did not owe a common law duty to the Accident

       Parties.


[16]   In Goodwin, our Indiana Supreme Court set forth a new standard by which a

       court should review the reasonable foreseeability of harm when considering

       whether a party owed a duty to another party in a negligence action. ONI’s

       motion for summary judgment argued the holding regarding foreseeability in

       Goodwin changed how the trial court should consider the evidence of

       foreseeability designated by the Accident Parties and, under Goodwin, ONI was

       entitled to summary judgment. We agree.


[17]   In Goodwin, three patrons of Yeakle’s Sports Bar and Grill, Goodwin,

       Randolph, and Washington (collectively “Goodwin”), sued Yeakle’s after all

       three were injured during an altercation with Carter, another bar patron.

       Goodwin argued Yeakle’s was negligent for “failing to provide security for its

       patrons; . . . failing to search Rodney Carter for weapons; . . . [and] failing to

       warn [P]laintiffs that Rodney Carter was armed and dangerous.” Goodwin, 62

       N.E.3d at 386 (ellipses in original). Yeakle’s filed for summary judgment

       arguing, “Carter’s criminal acts were unforeseeable and thus [Yeakle’s] had no

       duty to anticipate and take steps to prevent Carter’s conduct.” (Id.) The trial

       court granted Yeakle’s motion for summary judgment and Goodwin appealed.




       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 10 of 24
[18]   Our Indiana Supreme Court concluded, as an initial matter, that foreseeability

       is different when considering duty than when considering proximate cause. Id.

       at 389. To that end, the Court stated, “[i]n sum, because foreseeability is - in

       this particular negligence action - a component of duty, and because whether a

       duty exists is a question of law for the court to decide, the court must of

       necessity determine whether the criminal act at issue here was foreseeable.” Id.


[19]   To illustrate how a trial court should examine the issue of foreseeability, our

       Indiana Supreme Court relied upon the West Virginia Supreme Court’s opinion

       in Strahin v. Cleavenger, 603 S.E.2d 197 (2004), in which that court held:


               [A] court’s task - in determining “duty” - is not to decide whether
               a particular plaintiff’s injury was reasonably foreseeable in light of
               a particular defendant’s conduct, but rather to evaluate more
               generally whether the category of negligent conduct at issue is
               sufficiently likely to result in the kind of harm experienced that
               liability may appropriately be imposed on the negligent party.
               The jury, by contrast, considers “foreseeability” . . . [in] more
               focused, fact-specific settings.


       Id. at 207 (emphasis and ellipsis in original). To further clarify, the Goodwin

       Court adopted language from the Court of Appeals opinion Goldsberry: “the

       foreseeability component of proximate cause requires an evaluation of the facts

       of the actual occurrence, while the foreseeability component of duty requires a

       more general analysis of the broad type of plaintiff and harm involved, without

       regard to the facts of the actual occurrence.” Goodwin, 62 N.E.3d at 391

       (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans.

       denied).

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018    Page 11 of 24
[20]   Many subsequent cases have interpreted Goodwin, but these cases have dealt

       mostly with premises liability. See, e.g., Polet v. ESG Sec., 66 N.E.3d 972, 983

       (Ind. Ct. App. 2016) (security company hired by the Indiana State Fair did not

       owe a duty of care to those patrons who were injured as part of a stage collapse

       due to high winds because the court did “not believe that security firms

       routinely contemplate that a stage might collapse”); see also Neal v. IAB Fin.

       Bank, 68 N.E.3d 1114, 1122 (Ind. Ct. App. 2017) (Bank employees who helped

       a man with a flat tire did not owe Neal a duty because “[t]o require every

       individual who undertakes to aid a stranded motorist to safeguard against the

       possibility that motorist may be intoxicated would be requiring those

       individuals to ensure the safety of all motorists. We do not believe reasonable

       persons would recognize such a duty exists.”), trans. denied; and see Jones v.

       Wilson, 81 N.E.3d 688, 695 (Ind. Ct. App. 2017) (Wilson, the promoter of a

       wrestling event at a county fairground owed no duty of care to Jones, a person

       injured by a third party in the parking lot of the event, because “the harm

       inflicted on Jones was not normally to be expected, and thus not foreseeable”).


[21]   However, our court recently applied Goodwin to facts similar to those before us

       today. Estate of Staggs by and through Coulter v. ADS Logistics Co., LLC, 64A03-

       1708-CT-1961 (Ind. Ct. App. May 14, 2018), trans. pending. In that case, Staggs

       and other plaintiffs (collectively, “Staggs”) were injured or killed when a large

       steel coil came unsecured from the truck on which it was loaded and collided

       with several vehicles. Like in the case before us, the plaintiffs sued a number of

       parties for negligence, alleging each played a small part in the accident.

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 12 of 24
[22]   ADS had a contract with ArcelorMittal, USA, LLC (“Mittal”), to house

       Mittal’s steel coil. Mittal sold steel coils to Eagle Steel Products, Inc. (“Eagle”),

       who hired Kendall Transportation to haul the steel coil from the ADS

       warehouse to Eagle’s location in Ohio. Kendall Transportation contracted with

       Israel Rankin, who owned and operated a tractor-trailer under the motor carrier

       authority of Kendall Transportation, to drive the tractor-trailer that would

       transport the steel coil.


[23]   On January 11, 2010, Rankin arrived at ADS to pick up the steel coil. “Kendall

       Transportation’s dispatcher and Rankin controlled the means and methods of

       delivering a load to a customer. Rankin had been trained how to secure a steel

       coil through previous employment and through his work at Kendall

       Transportation.” Id. at *1. The crane operator at ADS followed Rankin’s

       directions regarding “where and how to place the steel coil on the flatbed.” Id.

       After the crane operator loaded the coils on the flatbed, Rankin secured the

       coils. ADS, Kendall Transportation representatives, and Rankin testified “that

       it is the driver’s responsibility to secure the load onto the driver’s vehicle.” Id.

       Rankin left the ADS facility, stopped for lunch, and then was involved in the

       accident.


[24]   The appeal before our court concerned Staggs’ negligence claim against ADS,

       to which the trial court granted summary judgment in favor of ADS, “finding as

       a matter of law that ADS had no duty to the plaintiffs ‘regarding securing the

       load to the tractor trailer that was involved in this incident.’” Id. at *2. Our

       court affirmed the trial court’s grant of summary judgment in favor of ADS

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 13 of 24
       because, based on the analysis set forth in Goodwin, ADS did not owe a

       common law duty to Staggs. We examine each of these factors through the

       lens of Staggs and apply them to the case before us.


                                       Relationship Between the Parties

[25]   Under certain circumstances, our Indiana Supreme Court has held a sufficient

       relationship exists between strangers to impose a common law duty. See, e.g.,

       Gariup Const. Co., Inc. v. Foster, 519 N.E.2d 1224, 1229 (Ind. 1988) (Gariup, who

       hosted a party during which its employee, Orner, became intoxicated, had a

       duty to exercise reasonable care to Foster, who was injured when Orner drove

       intoxicated); see also Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1220 (Ind. 1988)

       (“there is a common law action against those unlawfully selling or furnishing

       intoxicating liquor in favor of third persons subsequently injured by the acts of

       the purchasers as a result of their intoxicated condition”) (quoting Whisman v.

       Fawcett, 470 N.E.2d 73, 80 (Ind. 1984)). ONI contends there is no relationship

       between ONI and the Accident Parties. We agree. 6




       6
         The Accident Parties also note a relationship between parties that creates a duty can exist by virtue of a
       statute. See, e.g., Goldsberry, 672 N.E.2d at 480 (holding duty existed based on relationship created by Indiana
       Code section 8-20-1-28). Here, the Accident Parties argue Indiana state and federal regulations create a
       relationship between ONI and the Accident Parties. Indiana Code section 8-2.1-24-18(a) incorporates 49
       CFR § 385.306 and 49 CFR § 390.13 into Indiana law. 49 CFR § 385.306 states: “A carrier that furnishes
       false or misleading information, or conceals material information in connection with the registration process,
       is subject to . . . [a]ssessment of the civil and or criminal penalties prescribed in 49 USC 521 and 49 USC
       chapter 149.” 49 CFR § 390.13 states, “No person shall aid, abet, encourage, or require a motor carrier or its
       employees to violate the rules of this chapter.”
       However, ONI did not provide false or misleading information during the registration process. The Accident
       Parties make much of the information passed and actions taken by ONI in the procurement of insurance for
       C&K; however, the trial court ruled ONI did not make material misrepresentations in that process and that
       ruling was not challenged. Additionally, ONI did not have oversight of the OP-1, on which Hackney

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                          Page 14 of 24
[26]   In Staggs, our Court held:


               As for the relationship between ADS and the Appellants, there is
               none. ADS’s only involvement was to warehouse the steel coil
               and then load it onto Rankin’s flatbed per Rankin’s instructions.
               ADS also had no contractual relationship with Rankin, Kendall
               Transportation, or Eagle Steel, nor did it have any right of
               control over Rankin’s acts, including the securing of the coil onto
               the flatbed. The accident did not occur on ADS’s property, it did
               not involve ADS’s employees or vehicles, and it did not involve
               anyone with whom ADS has a contractual relationship.


       Staggs, slip op. at *4. The same can be said here.


[27]   It is undisputed that there is no direct relationship between ONI and the

       Accident Parties. It is true ONI was involved with the procurement of

       insurance for C&K; however, the trial court found, when granting summary

       judgment in favor of ONI, that ONI did not make any material

       misrepresentations to Occidental in the process of procuring insurance for

       C&K. ONI also supplied information to the federal government to assist C&K

       in obtaining an operating license, though only insomuch as to indicate whether

       C&K had insurance. The accident did not happen on ONI’s land, nor did it

       involve an ONI employee or vehicle. Like in Staggs, ONI offered a service to a




       misrepresented his company history. The only actions at issue here are ONI’s statement for the BMC-91X,
       in which ONI was asked if C&K had insurance. It is undisputed ONI answered in the affirmative, as C&K
       had a policy with Occidental.



       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                    Page 15 of 24
       client to aid in the procurement of another service, after which an accident

       occurred. We hold this factor weighs against a duty.


                                                   Foreseeability

[28]   Based on Goodwin’s holding, ONI filed a renewed motion for summary

       judgment in which it argued:


               In opposing ONI’s prior summary judgment motion, Plaintiffs
               submitted reams of evidentiary material that they purported to
               summarize in a 75-page fact statement supporting their argument
               that it was reasonably foreseeable that ONI’s conduct would
               cause harm to the Plaintiffs. This evidentiary material focused
               on the actual facts of the transactions and events that Plaintiffs
               contend led to the accident at issue. Under Indiana law
               articulated by Goodwin, Plaintiffs’ argument was wrong as a
               matter of law, and the extensive evidentiary material Plaintiffs
               relied upon to oppose summary judgment was immaterial and
               irrelevant on summary judgment.


       (App. Vol. XVIII at 59) (internal citations omitted). ONI suggested the proper

       application of Goodwin to the facts in the case with the Accident Parties:


               When applied here, the Goodwin analytical framework also leads
               to the conclusion that ONI owed no duty to Plaintiffs as a matter
               of law. The “broad type of plaintiff” involved in this case is any
               motorist traveling on a public road. The harm involved is the
               risk that an insured driver, once able to drive legally because he
               has obtained insurance, will injure such motorists in automobile
               accidents. As in Goodwin, although any client of any insurance
               agency is potentially likely to be involved in an automobile
               accident, insurance agents do not routinely contemplate that a
               client will independently operate its own vehicle in a manner that
               will cause an accident.

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 16 of 24
       (Id. at 63.)


[29]   Similarly, on appeal, ONI argues its role as an insurance agent is not “to

       determine whether their clients deserve coverage, or at what price.” (Br. of

       Appellants at 25.) Instead, it contends, insurance underwriters “evaluate the

       risk of those clients being involved in accidents,” (id.), and then the insurance

       companies make the decision whether to provide insurance to a client. ONI

       argues it is merely “an intermediary” in this process. (Id.) ONI asserts, to

       “impose a duty on insurance agents like ONI to safeguard against the

       possibility that one of their clients will harm a member of the general public

       would make insurance agents the ‘insurer’ of the general public’s safety.” (Id. at

       26.)


[30]   In Staggs, our Court undertook a foreseeability analysis of duty as prescribed in

       Goodwin: “[T]he foreseeability component of duty requires a more general

       analysis of the broad type of plaintiff and harm involved, without regard to the

       facts of the actual occurrence.” Goodwin, 62 N.E.3d at 389 (quoting Goldsberry,

       672 N.E.2d at 479). The Staggs court then considered the question of what type

       of broad plaintiffs, defendants, and harm were involved. In that case, the broad

       plaintiff was identified as “motorists,” the defendants were “a warehousing

       entity,” and the harm was “a vehicular accident after commercial cargo became

       unsecured and struck the motorists.” Staggs, slip op. at *4. Based on those

       parameters, the Staggs Court concluded:


               As a general matter, of course it is foreseeable that large and
               heavy cargo, which is secured to a flatbed trailer, could become
       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 17 of 24
               unsecured on a public roadway and cause injuries to nearby
               motorists. But the broad type of defendant here—a warehousing
               entity—would have no reason to foresee that its own conduct, in
               warehousing the cargo or in loading the cargo onto another
               entity’s vehicle, at the instruction of the other entity’s driver,
               would result in harm to motorists. Put another way, an entity
               that has no role whatsoever in securing the cargo to the flatbed
               could not foresee that its own actions would result in that cargo
               becoming unsecured. This factor weighs against a finding of
               duty.


       Id.


[31]   The same rationale can be applied to the facts before us now. The broad

       plaintiffs here are motorists, the defendants are an insurance agency and its

       agent, and the type of harm involved was a multi-vehicle collision caused by

       faulty brakes on a large tractor-trailer. We hold the insurance agency and its

       agent, who had no role whatsoever in the decision to put the vehicle on the

       road in its condition, could not foresee that its actions relevant to this matter,

       which are only answering questions regarding whether their client had

       insurance coverage, 7 would result in injury to a motorist. This factor weighs

       against finding duty.




       7
         As the trial court found and concluded ONI did not make misrepresentations to Occidental in the
       procurement of the insurance policy for C&K, we need not evaluate whether or how the actions taken prior
       to the issuance of the insurance policy may have factored into this foreseeability analysis.

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018                     Page 18 of 24
                                                    Public Policy

[32]   The final factor in the Goodwin test is the public policy consideration of “who is,

       or should be, in the best position to prevent injury and how society should

       allocate the costs of such injury.” Cox v. Stoughton Trailers, Inc., 837 N.E.2d

       1075, 1080 (Ind. Ct. App. 2005). The Staggs Court held, “[i]t is apparent that

       the party best suited to prevent an injury to motorists with respect to

       commercial cargo secured to a flatbed trailer is the entity responsible for

       securing, hauling, and checking the cargo during the drive.” Staggs, slip op. at

       *5. In Staggs, those entities were the driver Rankin and his employer Kendall

       Transportation,. Here, the entities best suited to prevent injury to a motorist

       were Hackney, who drove the truck that caused the accident even though he

       knew of its defective brakes, and C&K, which owned the truck. As ONI had

       no control over the actual means by which the accident occurred, this factor

       weighs against finding ONI had a duty to the Accident Parties.


[33]   All three of the factors we are to consider when determining whether one party

       owed a common law duty to another party weigh in favor of holding ONI did

       not owe a duty to the Accident Parties. Therefore, we conclude the trial court

       erred when it denied ONI’s renewed motion for summary judgment on the

       issue of whether ONI owed the Accident Parties a common law duty.


                                                   Assumed Duty

[34]   In Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014), our Indiana Supreme Court

       set forth the standard of review for determining assumed duty: “[T]he concept


       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 19 of 24
       of assumed duty is expressed in the Restatement and requires a focus upon the

       specific services undertaken. While an actor may be accountable for negligence

       in the performance of certain services actually undertaken, such liability does

       not extend beyond the undertaking.” Id. at 521. The Restatement referenced

       therein is Restatement (Third) of Torts: Physical and Emotional Harm § 42

       (2012), which states:


               An actor who undertakes to render services to another and who
               knows or should know that the services will reduce the risk of
               physical harm to the other has a duty of reasonable care to the
               other in conducting the undertaking if:


               (a) the failure to exercise such care increases the risk of harm
               beyond that which existed without the undertaking, or


               (b) the person to whom the services are rendered or another relies
               on the actor’s exercising reasonable care in the undertaking.


       Id. at 517. “Thus, to impose liability resulting from breach of assumed duty, it

       is essential to identify and focus on the specific services undertaken. Liability

       attaches only for the failure to exercise reasonable care in conducting the

       ‘undertaking.’” Id.


[35]   In Yost, a college student, Yost, sued the college he attended, Wabash, for

       negligence after Yost was injured in a fraternity hazing incident. Yost argued

       Wabash assumed a duty of care because it engaged in educational outreach

       programs to encourage appropriate student behavior and curb hazing. Our

       Indiana Supreme Court rejected this argument:

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 20 of 24
               [T]here is no direct evidence or reasonable inferences in this case
               to establish that Wabash deliberately and specifically undertook
               to control and protect Yost from the injuries he sustained or to
               generally prevent its students from engaging in injurious private
               conduct toward each other. Nor is there evidence that Yost in
               any way relied upon Wabash to take action in furtherance of the
               claimed gratuitously assumed duty. Wabash’s policies and
               investigations with respect to hazing do not rise to the level of a
               specific undertaking that demonstrate a special relationship
               between Yost and Wabash so as to justify the imposition upon
               Wabash of a gratuitously assumed duty to protect Yost from
               hazing. To the contrary, colleges and universities should be
               encouraged, not disincentivized, to undertake robust programs to
               discourage hazing and substance abuse. To judicially impose
               liability under a theory of gratuitously assumed duty is unwise
               policy and should be cautiously invoked only in extreme
               circumstances involving a negligently performed assumed
               undertaking - circumstances not here present.


       Id. at 518.


[36]   Our Indiana Supreme Court further clarified its analysis of assumed duty when

       it interpreted Yost as part of Doe #1 v. Indiana Dept. of Child Servs., 81 N.E.3d

       199 (Ind. 2017). In Doe #1, an individual who reported alleged abuse to the

       Department of Child Services (“DCS”) sued DCS for negligently disclosing his

       identity, which resulted in harassment to his family. Doe #1 argued DCS

       assumed a duty of care when the employee told Doe #1 that his identity was

       “confidential. Nobody will find out.” Id. at 201. The employee’s statement

       was consistent with established DCS policy. Our Indiana Supreme Court

       reviewed Yost and a similar opinion, Lanni v. NCAA, 42 N.E.3d 542, 553 (Ind.

       Ct. App. 2015), in which our court held merely communicating a rule - that is,

       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 21 of 24
       the boundaries of a fencing area during a fencing tournament - was not an

       “undertaking” which triggered an assumed duty. The Court analogized Yost

       and Lanni to the facts in Doe #1:


               And that is all the DCS hotline employee did here. By informing
               John that his report was confidential, the employee did no more
               than the college in Yost or the NCAA in Lanni - she simply
               communicated an existing rule. Granted, the employee did
               summarize Section 2 using her own words: “[I]t’s confidential.
               Nobody will find out.” But given the demanding standard for
               “specific undertaking,” and given our caution in finding
               gratuitously assumed duties, we cannot read the hotline worker’s
               words as an offer to take on additional common-law liability.


       Doe #1, 81 N.E.3d at 206.


[37]   Here, ONI’s “undertakings” were helping C&K obtain insurance, engaging

       C&K in training, and answering questions truthfully concerning whether C&K

       had insurance in order for C&K to obtain its federal operating authority. ONI

       contends those undertakings were provided to C&K, not the Accident Parties,

       and thus no assumed duty exists “because Plaintiffs had no connection

       whatsoever to ONI’s provision of those services.” (Br. of Appellants at 31.)

       We agree.


[38]   Much like Wabash College in Yost, ONI attempted to supply Hackney with

       tools he could use to rehabilitate the safety rating of HT. ONI scheduled a

       mock audit and sent a representative to train HT employees regarding the new

       safety standards, which would focus on past and present driving records of the

       operator. Additionally, like in Doe #1, ONI employees repeatedly informed
       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 22 of 24
       Hackney of the new procedures and how they would affect his business.

       However, this diligence does not rise to an assumed duty under Yost because,

       like in that case, ONI did not oversee or control Hackney’s behavior, here

       driving a vehicle with faulty brakes, following these undertakings. See Yost, 3

       N.E.3d at 518 (university provided educational materials, but did not undertake

       to protect or control Yost or other students from engaging in injurious

       behavior). ONI did not assume a duty to the Accident Parties, and the trial

       court should have entered summary judgment for ONI on this theory of

       liability. See id.


                             Joint Liability for Tortious Conduct
[39]   As part of the actions against ONI, the Accident Parties claimed “ONI

       knowingly, intentionally, and fraudulently aided and abetted C&K to become a

       chameleon carrier.” (Br. of Appellees at 43.) The Accident Parties also alleged

       ONI conspired with C&K to do the same. However, the Accident Parties did

       not identify the tort it claimed ONI aided and abetted or conspired to commit,

       and thus no action can accrue. See Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir.

       2006) (aiding and abetting is not an independent tort; a person who aids and

       abets is liable for the tort itself); and see Winkler v. V.G. Reed & Sons, Inc., 638

       N.E.2d 1228, 1234 (Ind. 1994) (“civil conspiracy is not an independent cause of

       action”). Therefore, we conclude the trial court erred when it denied ONI’s

       renewed motion for summary judgment on this issue.



                                                 Conclusion
       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018      Page 23 of 24
[40]   ONI did not owe the Accident Parties a common law duty, ONI did not

       assume a duty, and no statutory duty existed. Nor can ONI be liable for aiding,

       abetting, or conspiring when the Accident Parties did not allege a

       corresponding tort ONI was to aid, abet, or conspire to commit. Because all

       those theories of liability fail, the trial court erred when it denied ONI’s motion

       for summary judgment. Accordingly, we reverse and remand for proceedings

       consistent with this opinion.


[41]   Reversed and remanded.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 40A01-1707-CT-1513 | July 25, 2018   Page 24 of 24
