Evan v. Poe & Associates, Inc.

Decision Date05 September 2007
Docket NumberNo. 71A05-0611-CV-657.,71A05-0611-CV-657.
Citation873 N.E.2d 92
PartiesGeorge EVAN and Christine Evan, Appellants-Plaintiffs, v. POE & ASSOCIATES, INC. and Warren Tilford, Appellees-Defendants.
CourtIndiana Appellate Court

Donald E. Wertheimer, South Bend, IN, Attorney for Appellant.

Philip E. Kalamaros, Hunt Suedhoff Kalamaros, St. Joseph, MI, Attorney for Appellee.

OPINION

SHARPNACK, Judge.

George Evan and Christine Evan (collectively, "the Evans") appeal the trial court's grant of summary judgment to Poe & Associates, Inc. ("Poe") and Warren Tilford. The Evans raise two issues, which we consolidate and restate as whether the trial court erred by granting Poe and Tilford's motion for summary judgment. We affirm.

The relevant facts follow. The Evans sought the services of Poe, an insurance agency, to acquire a homeowner's insurance policy for their residence in Valparaiso. On September 22, 1995, Tilford, an insurance agent at Poe, handled the Evans' request for insurance and filled out the insurance application. The Evans told Tilford that they had a prior insurance loss or claim arising out of an accident that occurred "some months before" involving George, and George's injuries were visible to Tilford. Appellants' Appendix at 22. One of the questions on the application was whether there were "ANY LOSSES DURING THE LAST 3 YEARS?," followed by the words "YES" and "NO." Appellees' Appendix at 24. A handwritten "X" appears between "YES" and "NO." Id. The application states "IF YES, INDICATE BELOW" and nothing is filled in below. Id. The Evans had no knowledge of where the "X" should have been placed and relied on Tilford's expertise. Tilford represented to the Evans that an explanation of the prior loss was not necessary and that the underwriter would ask if there was any question. The application stated "APPLICANT'S STATEMENT: I HAVE READ THE ABOVE APPLICATION AND I DECLARE THAT TO THE BEST OF MY KNOWLEDGE AND BELIEF ALL OF THE [FOR]EGOING STATEMENTS ARE TRUE; AND THAT THESE STATEMENTS ARE OFFERED AS AN INDUCEMENT TO THE COMPANY TO ISSUE THE POLICY FOR [WHI]CH I AM APPLYING." Id. at 25. Safeco Insurance Company ("Safeco") subsequently issued a policy to the Evans.

On February 21, 2001, the Evans' residence was damaged by fire and smoke. The Evans submitted a claim to Safeco. Safeco paid some of the benefits but refused to pay all of the benefits under the policy because the Safeco adjuster asserted that the application had been filled out improperly because the question about any prior loss was marked "no" when George Evan had been involved in an automobile accident in another state and pursued a claim arising out of that accident. Appellants' Appendix at 23.

On March 1, 2002, the Evans signed a release agreement, which stated in part:

RELEASE AND AGREEMENT

(Read Carefully Before Signing)

                  RE: Safeco Insurance Company
                   Policy No: 0Z3458696
                   Claim No: 13A-01043-0644
                

WHEREAS, the Safeco Insurance Company did issue a policy as captioned above, insuring a structure and the contents thereof located at 3502 Oak Grove Drive, Valparaiso, Indiana; and WHEREAS, Dr. George Evan and Christine Evan, husband and wife, are named insureds under the above-captioned insurance contract; and

WHEREAS, Equicredit is named as Mortgagee on the above-captioned insurance contract; and

WHEREAS, the property in question was damaged by a fire which occurred on February 12, 2001; and

WHEREAS, the insureds have made claim to the Safeco Insurance Company pursuant to the above-captioned insurance contract for damage to the dwelling, the contents and additional living expense; and

WHEREAS, Dr. George Evan, Christine Evan and the Safeco Insurance Company have submitted the dispute regarding the amount of damages to the dwelling to the contractual appraisal process which has resulted in a determination by the appraisers that the replacement cost value for damage to the dwelling resulting from the fire of February 12, 2001 was $174,698.07; the actual cash value of the damage to the dwelling resulting from the fire of February 12, 2001 was $152,635.41; and that the recoverable depreciation upon repair of the dwelling pursuant to the replacement cost condition in the above-captioned contract is $22,062.66; and

WHEREAS, the Safeco Insurance Company has made prior payments on the dwelling coverage of $66,626.47 on March 29, 2001, $10,926.41 on April 23, 2001, and $75,082.53 on December 18, 2001; which payments total $152,635.41; which amount should be credited to the amount recoverable for damage to the dwelling as determined by the appraisal; and

WHEREAS, Dr. George Evan and Christine Evan have made claim for additional living expense under the above-captioned insurance contract; and

WHEREAS, Dr. George Evan and Christine Evan have received payment for additional living expenses claimed to result from the fire of February 12, 2001 under the above-captioned contract in the amount of $65,500.35; and

WHEREAS, Dr. George Evan and Christine Evan have made claim for damage to their personal property resulting from the fire of February 12, 2001; and

WHEREAS, Dr. George Evan and Christine Evan have received and advanced payments from the Safeco Insurance Company for damage to the contents totaling $50,000.00, which amount should be credited to any amount payable for damage to personal property resulting from the fire; and

WHEREAS, the Safeco Insurance Company has paid to AmeriClean the sum of $23,090.13 for cleaning of contents damaged in the fire of February 12, 2001, which sum should be credited to any amount payable under the above-captioned insurance contract for damage to the personal property resulting from the fire of February 12, 2001; and

WHEREAS, the Safeco Insurance Company has issued a check payable to Dr. George Evan and Christine Evan and Lansing Cleaners in the amount of $1,623.96, which said sum should be credited to the amount payable under the policy for damage to the personal property resulting from the fire of February 12, 2001; and

WHEREAS, Dr. George Evan and Christine Evan have secured the services of Midwest Public Adjusting Company and Donald Wertheimer to assist them in their presentation of their claim resulting from the fire of February 12,

2001 to the Safeco Insurance Company; and

WHEREAS, Dr. George Evan and Christine Evan are obligated to pay one-half of the charge of the Umpire, Tom Figura, of Babcock & Figura, Inc., for the appraisal that determined the amount of the loss to the dwelling resulting from the fire of February 12, 2001; and

WHEREAS, Equicredit, the Mortgagee, is protected by the mortgage clause contained within the above-captioned insurance contract and consequently has an interest in the resolution of the portion of the claim dealing with damage to the dwelling; and

WHEREAS, the Safeco Insurance Company has investigated the above-captioned loss; and

WHEREAS, the Safeco Insurance Company has asserted that there were material misrepresentations in the original application for insurance; that the material misrepresentations in the application for insurance by Dr. George Evan and Christine Evan caused the Safeco Insurance Company to issue Policy # 0Z3458696; that had the Safeco Insurance Company been aware of the true facts; the Safeco Insurance Company would not have issued the above-captioned insurance contract; and

WHEREAS, it is the desire of Dr. George Evan, Christine Evan and the Safeco Insurance Company to fully and finally resolve any and all claims and disputes that they may have against one another arising out of the above-captioned insurance contract, including but not limited to any claims arising out of the fire of February 12, 2001, the subsequent claim submitted to the Safeco Insurance Company by Dr. George Evan and Christine Evan, and the issuance of Policy # 0Z3458696 by the Safeco Insurance Company.

NOW, THEREFORE, for and in consideration of the payment of $22,062.66 to Dr. George Evan, Christine Evan, their attorney Donald Wertheimer, Midwest Public Adjusting Co. and Equicredit Corp., and $2,800.00 payable to Dr. George Evan, Christine Evan, AmeriClean, Donald Wertheimer, Attorney at Law, and Midwest Public Adjusting Co., the receipt of which is hereby acknowledged, Dr. George Evan and Christine Evan do hereby release, acquit and forever discharge the Safeco Insurance Co. of America and Spangler, Jennings & Dougherty, P.C., their respective agents, employees, representatives, attorneys, heirs, executors, administrators, successors and assigns, together with all other persons, firms and corporations, from any and all claims for damages, costs, expenses and compensations, including but not limited to any claim for breach of a duty of good faith and fair dealing or for punitive damage, whatsoever at law or in equity, and however arising, on account of, or in any way growing out of the issuance of Safeco Insurance Policy # 0Z3458696 to Dr. George Evan and Christine Evan, and/or a fire loss which occurred on February 12, 2001 at 3502 Oak Grove Drive, Valparaiso, IN; and on account of which it is asserted that the undersigned sustained damages and losses for which the parties hereby released are legally liable, all of which is denied and disputed by them.

It is further understood and agreed by and between the parties to this Agreement that the Safeco Insurance Company has no further obligation to make any further payment or do any act or thing in regard to the claims of Dr. George Evan and Christine Evan.

The undersigned agrees, for further consideration for the above-mentioned payment, that this Release applies to all damages and losses resulting from the above-mentioned fire, the insurance policy, and the adjustment of a loss, even though those damages and losses may now be unanticipated, unexpected and unknown, as well as to all damages and losses which have already developed which are now known or anticipated. It is understood that this document constitutes a full and...

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