Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                Nov 20 2014, 5:40 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

STEPHEN J. PETERS                              WILMER E. GOERING
Plunkett Cooney, P.C.                          Madison, Indiana
Indianapolis, Indiana

DAVID E. WALKER
MARK R. SCHMIDT
Walker Wilcox Matousek LLP
Chicago, Illinois


                              IN THE
                    COURT OF APPEALS OF INDIANA
CERTAIN UNDERWRITERS AT                        )
LLOYD’S, LONDON,                               )
                                               )
       Appellants-Defendants,                  )
                                               )
              vs.                              )    No. 40A01-1312-PL-516
                                               )
THE LEE GROUP SHELBYVILLE                      )
HOLDING COMPANY, LLC,                          )
                                               )
       Appellee-Plaintiff.                     )


                     APPEAL FROM THE JENNINGS CIRCUIT COURT
                          The Honorable Jon W. Webster, Judge
                             Cause No. 40C01-1207-PL-36



                                    November 20, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        In this interlocutory appeal,                certain     underwriters      at Lloyd’s, London

(“Underwriters”) appeal the trial court’s denial of their motion for summary judgment

against The Lee Group Shelbyville Holding Company, LLC (“Lee Group”).1 Underwriters

raise one issue which we revise and restate as whether the trial court erred in denying their

motion for summary judgment. We affirm.

                              FACTS AND PROCEDURAL HISTORY

        Underwriters insured commercial property of Lee Group through a policy (the

“Policy”) for a period between March 28, 2011, and June 28, 2011.                        The Policy listed

Burns & Wilcox, Ltd. (“Burns”), as agent.2 On April 29, 2011, Lee Group submitted a

property loss notice to Underwriters asserting that it sustained damage to its roof during a

windstorm on April 27, 2011. Underwriters commenced an investigation to adjust the loss.

        A series of communications occurred between certain individuals. The roles or

positions of some of the individuals are not identified by the parties on appeal nor revealed

by our review of the record. On June 3, 2011, Robert Trombley, a property claims

examiner at Burns, sent an e-mail message to Murray Edward and attached the adjuster

report and the property loss notice and certificate of insurance.3 Trombley provided some


        1
          Underwriters list “Lloyd’s London” as the appellants on the caption page of their brief but indicate
that the appellants are “those Certain Underwriters at Lloyd’s, London subscribing severally as their
interests appear thereon and not jointly to Commercial Property Policy Number SRD440869,” and that they
were sued incorrectly as “Lloyd’s, London.” Appellant’s Brief at 1.
        2
         Lee Group alleged in its complaint that it had contracted with Burns through its authorized agent,
Regions Insurance, Inc., for a commercial policy insuring its real and personal property located at 701
Hodell Street in Shelbyville, Indiana.
        3
            The parties do not point to and our review of the record does not reveal the role of Murray Edward.
                                                       2
details regarding the claim and stated that Lee Group was not in compliance with the “80%

co-insurance.” Appellants’ Appendix at 427. Trombley wrote that Roxanne Logan

“advised the branch underwriter that based on these issues she was mailing out DNOC[4]

to be effective 6/1/2011 in lieu of letting the policy expire on 6/28/2011.” Id. Trombley

alleged that “it appears this risk was represented to us incorrectly.” Id. He stated that the

“DNOC [was] processed at 10:17 AM on the 29th of April prior to receiving notification

of the loss.” Id. He requested Edward to “review and advise how Underwriters wish to

proceed with the claim.” Id.

        On June 8, 2011, Daniel Mahoney sent an e-mail message to Trombley and Edward

stating “Lead Underwriter has noted W.P.[5] With the amount of discrepancies and issues

on this Risk would [Burns] not have been better placed to Rescind Policy due to material

mis-representation and Return Premium?” Id. at 429. On June 14, 2011, Trombley sent

an e-mail message to Mahoney and stated that “we do feel that there was material

misrepresentation but wanted to provide Underwriters with all the facts and strongly feel

that this should be referred to counsel” and recommended Walker Wilcox and Matousek.

Id. at 431.        On June 16, 2011, Chris Bristow e-mailed Trombley and stated that

Underwriters had agreed to the selection of Walker Wilcox and Matousek and were

awaiting their advice.


The e-mail merely lists “Murray Edward,” and the cover sheet for the exhibit states: “Correspondence from
Robert Trombley to Murray Edward dated June 3, 2011.” Appellants’ Appendix at 426.
        4
          Although not defined in the record, we deduce that DNOC may stand for direct notice of
cancellation.
        5
            This abbreviation has not been defined in the record.
                                                       3
       Meanwhile, on June 8, 2011, Carolyn Smithhisler, a claims manager at Regions

Insurance Inc., sent an e-mail message to Joe Sandifer asking that he review the facts of

the claim and the attached paperwork and reconsider his decision. On July 28, 2011,

Smithhisler e-mailed Trombley and asked for any new updates on the claim and indicated

that she received a voicemail from Lee Group’s agent stating that Lee Group had decided

to demolish the part of the building where the roof was compromised and that “[t]hey

wanted to let everyone know in case any additional pictures need to be taken.” Id. at 441.

She also stated to contact Ruthy at Lee Group if there was anything additional he needed

regarding the claim.

       In a letter dated November 4, 2011, Wilmer Goering of Alcorn Goering & Sage,

LLP, informed Ben Holloway of Holloway & Associates that he understood that Ben

Holloway was the claim adjuster handling the claim, that he had been retained by Lee

Group to represent them, requested a copy of the insurance policy, and demanded that Lee

Group’s claim be paid in full within ten days of receipt of the letter. In a fax from Joshua

Stigdon of Alcorn Goering & Sage, LLP, to Holloway, and dated March 13, 2012, Stigdon

stated that a response to the November 4, 2011 letter had not been received and asked:

“Please direct us to whom we should discuss this claim.” Id. at 445.

       In a letter from Lee Group’s counsel to Underwriters’ counsel dated March 19,

2012, counsel attached the November 4, 2011 letter and asked for a response as soon as

possible. On April 5, 2012, Lee Group’s counsel sent an e-mail message to counsel for

Underwriters and indicated that he had not received a response to his March 19, 2012 letter

and asked counsel to verify that they were Underwriters’ counsel.
                                            4
          In a letter dated April 6, 2012, counsel for Underwriters informed counsel for Lee

Group that “[t]he adjustment of the loss revealed the existence of coverage issues and the

presence of a co-insurance penalty that appeared to place the loss, if covered, within the

insured’s $25,000 deductible.” Id. at 451. The letter also stated: “I am not aware of Lee

Group stating what precisely its claim is and/or the amount it is seeking. Underwriters will

promptly consider any additional information you can provide in that regard.” Id.

          In a letter dated May 24, 2012, counsel for Lee Group wrote counsel for

Underwriters and alleged that Lee Group suffered damage to their structure on April 27,

2011. The letter alleged that the roof was damaged and began to leak due to severe winds,

that over the course of the next week or so, the Shelbyville area received over two inches

of rain, and that due to the damaged roof, the rain was able to enter the structure and do

serious, irreversible damage. The letter provided a breakdown of Lee Group’s damages of

$640,000 for loss of the building, $150,000 for loss of business records, and $252,000 for

demolition and clean-up of the building. The letter demanded $753,374 to settle the

client’s claim which alleged to take into account the deductible of $25,000 and coinsurance

penalty of 80%. Weather reports from select days in the time period were attached to the

letter.

          In a letter dated June 25, 2012, counsel for Underwriters wrote counsel for Lee

Group and stated that the claim of roughly $753,000 in the May 24, 2012 letter was the

first presentation of any such damages to Underwriters and requested information




                                              5
regarding the claim.6 Underwriters’ counsel did not receive any response to his June 25,

2012 letter. On July 17, 2012, Underwriters’ counsel sent follow up correspondence to

Lee Group’s counsel regarding the requested documents, but did not receive the requested

materials. On July 18, 2012, Lee Group’s counsel informed Underwriters’ counsel that he

was discussing options with Lee Group.

       On July 30, 2012, Lee Group filed a complaint and jury demand against Burns

alleging that it had contracted with Burns through its authorized agent, Regions Insurance,

Inc., for a commercial policy insuring its real and personal property located at 701 Hodell

Street in Shelbyville, Indiana. The complaint alleged that Burns had breached its implied

covenant of good faith and fair dealing that runs from insurer to insured inherent in the

insurance policy issued to Lee Group.




       6
           Specifically, the letter requested:

                 Copies of all documents, communications and any other items of information such
                  as, but not limited to, correspondence with engineers, contractors, or other
                  personnel regarding damage to the structure, vendor invoices regarding any
                  repairs, photographs of the damage at any time between the storm and the date of
                  demolition, and other records (be they electronic or otherwise) depicting the
                  claimed damage or that pertain to the determination that a portion of the structure
                  had to be demolished.
                 Any documentation, information, pictures, etc. regarding any damage to the
                  building or roof caused by storms that took place prior to the April 27 storm.
                 Copies of all documents and items of information supporting the demolition and
                  clean up claim for $252,000.
                 Identification of the business records that were lost, along with copies of all
                  documents and items of information regarding the valuation given to those records.
                 Any and all documents, records or other information pertaining to the occupancy
                  of the building as of the date of the storm, including any leases or rental agreement
                  that would document the occupancy of the building.

Appellants’ Appendix at 349-350.
                                                       6
       On August 13, 2012, counsel for Underwriters sent a letter to Lee Group’s counsel

stating that Underwriters had not received the requested information and invoked their right

to conduct an “Examination Under Oath (‘EUO’) of The Lee Group pursuant to Loss

Condition E.3b. of the Policy.” Id. at 358. In an e-mail dated August 13, 2012, Lee

Group’s counsel informed Underwriters’ counsel that it had filed suit in the Jennings

Circuit Court. In an e-mail dated August 14, 2012, Lee Group’s counsel informed

Underwriters’ counsel that, “[a]s for the EUO, you obviously have the right to take a

deposition of our client, which we will assist in scheduling, but since litigation is pending,

I believe a deposition is more appropriate.” Id. at 364. In a letter dated August 22, 2012,

Underwriters’ counsel informed Lee Group’s counsel that Underwriters were not parties to

the litigation that Lee Group filed and requested that a representative of Lee Group sit for

an EUO.

       On September 6, 2012, Lee Group filed a first amended complaint and jury demand

against Burns and “Lloyd’s London.” Id. at 59. Under Count I, Lee Group alleged that

Underwriters had yet to pay the claim, that Underwriters breached their implied covenant

of good faith and fair dealing that runs from insurer to insured inherent in the Policy, and

that the breach is both an actionable tort and a breach of contract. Under Count II, Lee

Group alleged that Underwriters “acted with dishonest purpose, moral obliquity, furtive

design, and ill will toward Shelbyville Holdings and is liable for punitive damages pursuant

to Indiana Code § 35-41-3.” Id. at 61.

       In an e-mail dated September 14, 2012, and in response to the August 22, 2012

letter, Lee Group’s counsel wrote Underwriters’ counsel and stated:
                                           7
       You incorrectly stated in your letter that I had advised you the Lee Group
       would not appear for an EUO. Our position is that we will assist you in
       scheduling a deposition of our client. As for how you decide to do your
       deposition is up to you. By that I mean if you wish to conduct an EUO at the
       same time as your deposition, that is perfectly acceptable and in our view,
       meets the policy requirements of our client.

Id. at 378.

       On October 1, 2012, Burns filed a motion to dismiss, which the court later granted.

In a letter dated October 3, 2012, Underwriters’ counsel wrote a letter to Lee Group’s

counsel which stated:

       A deposition in the Lawsuit is no substitution for the EUO, which is a
       condition precedent to coverage. They are two entirely different things.
       Your letter also overlooks that the Lee Group breached the Policy when it
       sued Underwriters before sitting for the EUO and before producing
       documents to support the loss.

Id. at 382. That same day, Underwriters filed an answer, affirmative defenses, and

counterclaim.   Underwriters asserted that the trial court should grant a declaratory

judgment in their favor ordering that Lee Group was not entitled to coverage based on Lee

Group’s breach of the Policy’s “Duties In the Event of Loss or Damage” Condition and,

furthermore, that Lee Group had no right to bring legal action against Underwriters under

the “Legal Action Against Us” provision. Id. at 129. On November 29, 2012, Lee Group

filed its answer to Underwriters’ counterclaim.

       On February 21, 2013, Underwriters filed a motion for summary judgment.

Underwriters requested that the court grant summary judgment in their favor and that “Lee

Group is not entitled to coverage based on Lee Group’s breach of the Policy’s ‘Duties In

the Event of Loss or Damage’ Condition and, furthermore, that [Lee Group] had no right

                                            8
to bring legal action against Underwriters under the ‘Legal Action Against Us’ provision.”

Id. at 269. Underwriters also requested that the court dismiss Lee Group’s action against

them.

        On March 6, 2013, Lee Group filed a motion for enlargement of time to respond to

Underwriters’ motion for summary judgment. On March 11, 2013, the court granted Lee

Group’s motion for enlargement of time and ordered Lee Group to respond by May 22,

2013. On March 14, 2013, Underwriters filed a motion to reconsider and vacate the March

11, 2013 order. On March 19, 2013, the court denied Underwriters’ motion to reconsider.

On May 22, 2013, Lee Group filed a response to Underwriters’ motion for summary

judgment. On June 12, 2013, Underwriters filed a reply memorandum in support of their

motion for summary judgment.

        On September 13, 2013, the court held a hearing on Underwriters’ motion for

summary judgment and took the matter under advisement.7 On September 23, 2013, the

court denied Underwriters’ motion for summary judgment.                            On October 23, 2013,

Underwriters filed a motion to certify the court’s order for interlocutory appeal. On

November 4, 2013, the court certified its order and stayed further trial court proceedings

pending appeal.8 On December 5, 2013, Underwriters filed a motion for an interlocutory

appeal, and this court granted the motion to accept jurisdiction.




        7
            The record does not contain a copy of the transcript of the hearing.
        8
            This order was noted in the chronological case summary on November 7, 2013.
                                                       9
                                      DISCUSSION

       The issue is whether the trial court erred in denying Underwriters’ motion for

summary judgment. Summary judgment is appropriate only where there is no genuine

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

Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970,

973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed

in favor of the nonmovant. Mangold, 756 N.E.2d at 973.

       The Indiana Supreme Court recently held that summary judgment is a “high bar”

for the moving party to clear in Indiana and held:

       Summary judgment is a desirable tool to allow the trial court to dispose of
       cases where only legal issues exist. But it is also a “blunt . . . instrument,”
       by which “the non-prevailing party is prevented from having his day in court.
       We have therefore cautioned that summary judgment is not a summary trial,
       and the Court of Appeals has often rightly observed that it is not appropriate
       merely because the non-movant appears unlikely to prevail at trial. In
       essence, Indiana consciously errs on the side of letting marginal cases
       proceed to trial on the merits, rather than risk short-circuiting meritorious
       claims.

Hughley v. State, 15 N.E.3d 1000, 1003-1004 (Ind. 2014) (quotations and citations

omitted).

       Our review of a summary judgment motion is limited to those materials designated

to the trial court. Mangold, 756 N.E.2d at 973. In reviewing a trial court’s ruling on a

motion for summary judgment, we may affirm on any grounds supported by the Indiana

Trial Rule 56 materials. Catt v. Bd. of Commr’s of Knox Cnty., 779 N.E.2d 1, 3 (Ind.

2002). The entry of specific findings and conclusions does not alter the nature of a

summary judgment which is a judgment entered when there are no genuine issues of
                                     10
material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the

summary judgment context, we are not bound by the trial court’s specific findings of fact

and conclusions thereon. Id. They merely aid our review by providing us with a statement

of reasons for the trial court’s actions. Id.

       Underwriters argue that they are entitled to judgment as a matter of law based on

Lee Group’s refusal to produce documents and sit for an EUO before suing Underwriters.

They assert that they are entitled to judgment on all of Lee Group’s causes of action,

“whether sounding in breach of contract, bad faith or for punitive damages, based on Lee

Group’s breach of the Underwriters Policy Conditions.” Appellants’ Brief at 21. They

contend that Lee Group’s breach prevented Underwriters from determining the basis for

the $753,347 claim made in Lee Group’s May 24, 2012 letter, prevented them from

concluding their claim investigation, and put them to the expense of this suit and appeal.

Underwriters also appear to argue that Lee Group’s claims for bad faith and punitive

damages fail as a matter of law because the “undisputed material facts establish that Lee

Group breached the Underwriters Policy’s ‘Duties In the Event of Loss or Damage’

Condition and ‘Legal Action Against Us’ Condition by failing to produce requested

documents and sit for an EUO . . . .” Id. at 26.

       Lee Group argues that Underwriters failed to even mention Lee Group’s cause of

action for breach of good faith in its motion for summary judgment and that Lee Group

had no burden to designate a dispute of material fact, and that Underwriters’ motion was

properly denied. Lee Group contends that the facts and reasonable inferences taken in the

light most favorable to it demonstrate collusion, intentionality, and deception on the part
                                            11
of Underwriters. Lee Group asserts that Underwriters’ allegation that Lee Group breached

the terms of the contract ignores the fact that Underwriters denied Lee Group’s claim, in

violation of the contract, before Underwriters’ sought to enforce the contract provisions,

and that summary judgment is not appropriate when discovery is ongoing. Lee Group

further argues that it seeks discovery directly related to Underwriters’ denial of the claim

and Underwriters’ decision to “slow walk and stonewall any review or update to the claim

for more than one year following the loss.” Appellee’s Brief at 16-17. In their reply brief,

Underwriters contend that Lee Group’s claim that they had twice denied the claim was not

supported by the record.

       A contract for insurance is subject to the same rules of interpretation as other

contracts. USA Life One Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 537-538 (Ind.

1997). Thus, if the language in the insurance policy is clear and unambiguous, it should

be given its plain and ordinary meaning. Id. at 538. However, if the language of the policy

is ambiguous, we may apply the rules of construction in interpreting the language. Id.

When an insurance policy contains an ambiguity, it should be strictly construed against the

insurance company. Id. A policy is ambiguous only if it is “susceptible to more than one

interpretation and reasonably intelligent persons would differ as to its meaning.” Id.

       Indiana law has long recognized a legal duty, implied in all insurance contracts, for

the insurer to deal in good faith with its insured. Erie Ins. Co. v. Hickman, 622 N.E.2d

515, 518 (Ind. 1993). A good faith dispute concerning insurance coverage cannot provide

the basis for a claim in tort that the insurer breached its duty to deal in good faith with its

insured. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 976 (Ind. 2005). As
                                         12
a general proposition, “[a] finding of bad faith requires evidence of a state of mind

reflecting dishonest purpose, moral obliquity, furtive design, or ill will.” Id. at 977. This

obligation of good faith and fair dealing includes the obligation to refrain from: (1) making

an unfounded refusal to pay policy proceeds; (2) causing an unfounded delay in payment;

(3) deceiving the insured; and (4) exercising an unfair advantage to pressure an insured

into settlement of his claim. Hickman, 622 N.E.2d at 519. Fact issues may preclude

summary judgment in favor of an insurer on an insured’s bad faith claim. Hoosier Ins. Co.

v. Audiology Found. of Am., 745 N.E.2d 300, 310 (Ind. Ct. App. 2001), reh’g denied,

trans. denied.

       The designated evidence includes communications between various individuals

which, as noted earlier, the parties do not identify and our review of the record does not

reveal. The evidence reveals that Lee Group submitted a property loss notice on April 29,

2011, asserting that it sustained damage to its roof during a windstorm on April 27, 2011.

Lee Group designated evidence of its communications and a summary of communications

with Underwriters or its agents.

       Lee Group’s brief alleges that Underwriters denied its claim “for the first time in

June 2011 when it communicated to Regions that due to ‘discrepancies’ the policy would

not cover the damage.” Appellee’s Brief at 15 (citing Appellants’ Appendix at 427). Page

427 of the Appellants’ Appendix contains the e-mail message dated June 3, 2011, from

Trombley at Burns to “Murray Edward.” Appellants’ Appendix at 427. The e-mail

message does not contain the word “discrepancies” as quoted by Lee Group, but does

discuss some discrepancies (i.e., square footage of building(s)) and indicates that an
                                          13
individual was sending a “DNOC,” which, as noted above, may indicate a direct notice of

cancellation. The factual assertions regarding the discrepancies in the e-mail appear to

have been disputed by Lee Group, and Underwriters do not point to designated evidence

indicating that a cancellation of the Policy was authorized as a matter of law.

       Based upon our review of the designated evidence, issues of material fact exist as

to whether Underwriters acted in bad faith or breached the contract, and we cannot say that

the trial court abused its discretion in denying Underwriters’ motion for summary

judgment. See Kempf v. St. Paul Reinsurance Co. Ltd., 872 N.E.2d 162, 169 (Ind. Ct.

App. 2007) (holding that neither party has established that summary judgment is warranted

on the issue of the insured’s claim that the insurer acted in bad faith), reh’g denied.

       To the extent that Underwriters argue summary judgment is proper based on Lee

Group’s refusal to produce documents and sit for an EUO before suing Underwriters, we

observe that “[a] party first guilty of a material breach of contract may not maintain an

action against the other party or seek to enforce the contract against the other party should

that party subsequently breach the contract.” Illiana Surgery & Med. Ctr., LLC. v. STG

Funding, Inc., 824 N.E.2d 388, 403 (Ind. Ct. App. 2005). Accordingly, because we

conclude that issues of material fact exist as to whether Underwriters acted in bad faith or

breached the contract and that the trial court did not abuse its discretion in denying

Underwriters’ motion for summary judgment, we need not address Underwriters’ argument

regarding any possible subsequent breach by Lee Group.




                                             14
                                    CONCLUSION

      For the foregoing reasons, we affirm the trial court’s denial of Underwriters’ motion

for summary judgment.

      Affirmed.

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




                                           15
