Filip v. Block

• Decision Date: 29 January 2008
• Docket Number: No. 75S05-0704-CV-149.,75S05-0704-CV-149.
• Parties: Idan (John) FILIP and Valaria Filip, Appellants (Plaintiffs below), v. Carrie BLOCK and 1St Choice Insurance Agency, Appellees (Defendants below).
• Court: Indiana Supreme Court

879 N.E.2d 1076

Idan (John) FILIP and Valaria Filip, Appellants (Plaintiffs below), v. Carrie BLOCK and 1St Choice Insurance Agency, Appellees (Defendants below).

No. 75S05-0704-CV-149.

Supreme Court of Indiana.

January 29, 2008.

Robert W. Mysliwiec, South Bend, IN, Attorney for Appellants.

Philip E. Kalamaros, St. Joseph, MI, Attorney for Appellees.

Paul L. Jefferson, Bryan H. Babb, Geoffrey G. Slaughter, Jana K. Strain, Kent D. Zepick, Indianapolis, IN, Attorneys for Amicus Curiae, Indianapolis Bar Association Appellate Practice Section.

On Petition To Transfer from the Indiana Court of Appeals, No. 75A05-0601-CV-10

BOEHM, Justice.

Indiana Trial Rule 56(C) requires parties to designate the evidence in support of or opposition to a motion for summary judgment. We hold that this designation may be accomplished in any one of several places but must be done consistently. A court may resolve any inconsistencies in designations against the designating party. We also hold that the statute of limitations for negligence claims against an insurance agent for failure to obtain a desired form of coverage begins to run at the time the failure was first discoverable through ordinary diligence.

Facts and Procedural History

In late 1998, Idan (John) and Valaria Filip purchased Sundown Apartments, a six-unit building in Knox, Indiana. In January of 1999, the Filips met with Carrie Block, an insurance agent for 1st Choice Insurance Agency, which had served the prior owner, Coet Bailey. The Filips told Block that they wanted the same coverage as Bailey, and Block arranged for a commercial insurance policy from Auto-Owners Insurance that was substantially similar to Bailey's. The Filips moved into one unit of Sundown and rented out the other five. Although Block was aware that the Filips lived in Sundown, the policy did not cover nonbusiness personal property, and there was no separate tenant's policy. According to the Filips, at the time the policy was first issued, Block told the Filips their property would "be covered" and she would visit the premises. Between 1999 and 2003, the Filips made several changes to their policy, including increasing the property damage limits from $250,000 to $350,000, adding Bailey as an additional insured, and changing the spelling of the Filips' names.

On April 8, 2003, a fire substantially destroyed Sundown. Because of the coverage limitations described below, a substantial part of the loss was uninsured. The Filips sued Block and 1st Choice, alleging negligence in the selection of insurance. Specifically, the Filips claimed that (1) their actual value coverage for the building provided approximately $50,000 less than its replacement cost; (2) the policy limit of $25,000 on business personal property was at least $17,000 less than replacement cost; (3) there was no coverage for the Filips' nonbusiness personal property in the unit that they occupied, valued at $128,000; and (4) there was no business interruption coverage, leaving an uninsured loss of at least $30,000.

Block and 1st Choice responded to the Complaint with a "Motion for Summary Judgment" and an accompanying "Memorandum of Law in Support of Motion for Summary Judgment." The motion identified the pages of the record they designated in support of their motion pursuant to Trial Rule 56(C), and the memorandum specified lines and paragraphs from the pages identified in the motion. In some instances, evidence arguably relevant to the motion appeared on the page identified in the motion but not in the lines specified in the memorandum.¹

The defendants' motion and memorandum were filed on August 1, 2005. On September 30, after the thirty days specified in Trial Rule 56(C), the Filips responded by filing "Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Disposition," "Plaintiff's Designation of Issues of Fact," and "Plaintiff's Designation of Evidence in Opposition to Defendant's Motion for Judgment." On December 9, 2005, the trial court struck the untimely designation of evidence, and limited the Filips' evidence in opposition to summary judgment to the lines and paragraphs specified in the defendants' memorandum. The same day, the trial court granted summary judgment in favor of the defendants, holding that the two-year statute of limitations for negligence started on the date of initial coverage in 1999.

The Filips appealed. The Court of Appeals reversed on two grounds. First, the Court of Appeals held that the Filips could rely on the pages identified in the defendants' motion, and were not limited to the lines and paragraphs specified in the memorandum. Filip v. Block, 858 N.E.2d 143, 150 (Ind.Ct.App.2006). Second, the Court of Appeals held that the statute of limitations did not bar the Filips' complaint because the statutory period for negligence against an insurance agent starts to run when the claim is denied. Id. at 152. We granted transfer. 869 N.E.2d 455 (Ind. 2007).

Standard of Review

This Court applies the same standard as the trial court when reviewing decisions of summary judgment. Row v. Holt, 864 N.E.2d 1011, 1013 (Ind.2007). Therefore, this Court must reverse summary judgment unless there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Id. All facts and reasonable inferences from them are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).

I. Designation of Evidence Pursuant to Trial Rule 56(C)

Trial Rule 56(C) requires that "[a]t the time of filing the motion [for summary judgment] or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion." From time to time, the Court of Appeals has observed that there is no general agreement as to the place or manner of making the required designation. See, e.g., Nat'l Bd. of Exam'rs for Osteopathic Physicians & Surgeons, Inc. v. Am. Osteopathic Ass'n, 645 N.E.2d 608, 615 (Ind.Ct.App.1994). Some panels of the Court of Appeals have expressed a preference that parties place the designation "in their motions or responses, not necessarily in the supporting briefs." Id. at 613 (emphasis omitted) (quoting Pierce v. Bank One-Franklin, NA, 618 N.E.2d 16, 19 (Ind.Ct.App.1993)). However, the Court of Appeals has, in various circumstances, allowed parties to use a brief or memorandum, even affidavits, to fulfill the designation requirement as long as the trial court is informed of the materials relied upon. See, e.g., 3A William F. Harvey, Indiana Practice: Rules of Procedure Annotated § 56.7, at 283 (3d ed. 2002) ("[A] brief or memorandum may be used as the means to fulfill the designation requirement of Trial Rule 56.") (collecting cases); see also Swan v. TRW, Inc., 634 N.E.2d 794, 796 n. 1 (Ind.Ct.App. 1994) (holding that although the parties did not follow the recommended format, "the trial court was apparently apprised of the specific material" relied upon by the parties); Mid State Bank v. 84 Lumber Co., 629 N.E.2d 909, 913 (Ind.Ct.App.1994) (holding that a party could use affidavits noting specific exhibits, attached to the complaint, to fulfill its designation requirement); Vogler v. Dominguez, 624 N.E.2d 56, 58 (Ind.Ct.App.1993) (holding that identification in "a summary judgment brief complies with the designation requirement of T.R. 56(C)").

In this case, the Court of Appeals held that "the main designation of evidence should take place in the motion and response, with the accompanying briefs or memoranda playing merely a supporting persuasive role." Filip v. Block, 858 N.E.2d 143, 149 (Ind.Ct.App.2006). The defendants identified entire pages from depositions in their motion but specified lines and paragraphs from those pages in their memorandum. The Court of Appeals held that "absent any further specification in Appellees' Motion [for Summary Judgment], the entire page is designated and available to establish the propriety of the summary judgment." Id. at 150.

Trial Rule 56(C) does not mandate either the form of designation, i.e., the degree of specificity required, or its placement, i.e., the filing in which the designation is to be made. Trial Rule 56(C) does compel parties to identify the "parts" of any document upon which they rely. The Rule thus requires sufficient specificity to identify the relevant portions of a document, and so, for example, the designation of an entire deposition is inadequate. AutoXchange.com, Inc. v. Dreyer & Reinbold, Inc., 816 N.E.2d 40, 45 (Ind. Ct.App.2004). Although page numbers are usually sufficient, a more detailed specification, such as supplying line numbers, is preferred. Adding verbatim quotations of the selected items gives the trial court a more convenient reference, but is not required and may be excessive if large quantities of text are designated.

Parties may choose the placement of evidence designation. Id. at 46; Am. Osteopathic Ass'n, 645 N.E.2d at 615. Designation may be placed in a motion for summary judgment, a memorandum supporting or opposing the motion, a separate filing identifying itself as the designation of evidence, or an appendix to the motion or memorandum. The only requirement as to placement is that the designation clearly identify listed materials as designated evidence in support of or opposition to the motion for summary judgment. If the designation is not in the motion itself, it must be in a paper filed with the motion, and the motion should recite where the designation of evidence is to be found in the accompanying papers.

The defendants here designated evidence both in their motion and their memorandum. They now claim that only the more specific designations in their memorandum are designated evidence for the purposes of Trial Rule 56(C). Although a party can choose where to...