Hargis v. United Farm Bureau Mut. Ins. Co., 1-478A91
| Decision Date | 30 April 1979 |
| Docket Number | No. 1-478A91,1-478A91 |
| Citation | 180 Ind.App. 432,388 N.E.2d 1175 |
| Parties | Ernest D. HARGIS, d/b/a Paradise Lake, Thelma Harris and Ernest Hargis, d/b/a Paradise Lake, Ronald Gibbs, and Patricia Koch, Appellants (Defendants Below), v. UNITED FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
George N. Craig, Craig, Craig & Yelton, Brazil, for appellants Ernest D. Hargis and Thelma Harris, d/b/a Paradise Lake.
Luther G. Johnson, Mann, Chaney, Johnson, Hicks & Goodwin, Terre Haute, for appellants Ronald Gibbs and Patricia Koch.
Jerdie D. Lewis, Terre Haute, for appellee; Kenneth C. Miller, Brazil, Lewis & Lewis, Terre Haute, of counsel.
Ernest and Thelma Hargis, d/b/a Paradise Lake (Hargises), Ronald Gibbs and Patricia Koch appeal an adverse decision in a bench trial rendered in favor of appellee, United Farm Bureau Mutual Insurance Co. (Farm Bureau) in a declaratory judgment action. The trial court found that Farm Bureau had no insurance contract in effect with the Hargises and therefore was under no duty or obligation to appear and defend a tort action brought by Gibbs and Koch against the Hargises.
Three issues are raised on appeal. Gibbs and Koch contend that the trial court abused its discretion in refusing to allow them to amend their answer to include the affirmative defenses of waiver and estoppel. The Hargises, Gibbs and Koch all contend that the trial court decision was contrary to law in regard to the issues of waiver and estoppel and also whether the policy was in effect due to the use of unused advance premium from the previous year towards the premium due.
We affirm.
The facts most favorable to the appellee are that Farm Bureau issued a general liability insurance contract in 1970 to the Hargises for their recreational facility known as Paradise Lake for a period of one year. The policy was reissued each term and this was done, except for a period of sixteen months, until June 25, 1974. The policy in controversy was reissued for the period June 25, 1974, until June 25, 1975.
The insurance contract and billing statement/cancellation notice was sent out from the home office each term directly to the Hargises. Payment could be made to either the home office or to the local agent in Brazil. The policy began with a payment of an "advance premium" or deposit premium, which at the end of the term was readjusted dependent upon figures presented to the insurer by the insured showing how much business had been done in the term. According to the policy, if there was a downward adjustment, the unused portion of the "advanced premium" would be returned to the insured. The insurance company could cancel at will upon ten days' written notice, and the unearned portion of the premium returned to the insured on the date of cancellation or as soon thereafter as practicable.
On May 14, 1974, the policy and a billing statement/cancellation notice was sent to the Hargises for the amount of $221, which stated if not paid by July 8, 1974, cancellation of the policy would result. The Hargises admit they received this statement; however, the premium was not tendered or paid. Normally, copies of these statements are sent to the local agents at the time they are sent to the insured. In this case, no such statement was sent to the Brazil local agent of Farm Bureau.
On July 26, 1974, appellant Ronald Gibbs, a minor, was injured while using the swimming facilities of Paradise Lake. The Hargises notified the Brazil agent of Farm Bureau of the accident soon after it occurred. The Brazil agents, unaware that the policy had been cancelled and not informed of this by the Hargises, reassured Mrs. Hargis and, along with the regional adjuster (also uninformed), began to investigate and process the claim. Some minor medical bills were paid by Farm Bureau to Patricia Koch, mother of Ronald Gibbs, and Koch was told to purchase some medical equipment in expectation of reimbursement.
The failure to pay the premium was discovered by the regional adjuster in January of 1975, and on January 21, 1975, a letter of non-waiver was read and given to the Hargises by the claims adjuster which stated that the company was continuing investigation while checking the nonpayment of the premium, but did not waive the premium requirement. Gibbs and Koch filed a tort action against Hargises on January 24, 1975, which is still pending.
On February 13, 1975, this action was commenced asking for a declaratory judgment that Farm Bureau was not liable for insurance coverage arising out of the alleged tort, and that it had no duty to defend the Hargises. Gibbs, Koch, and the Hargises were named defendants. After a bench trial, the court found that there was no insurance policy in effect on July 26, 1974, and that there was no waiver and estoppel by Farm Bureau or its agents to give renewed effect to the policy.
On appeal, Gibbs and Koch first contend that the trial court abused its discretion in denying their motion to amend their answer to include the affirmative defenses of estoppel and waiver. Ind. Rules of Procedure, Trial Rule 15(A) provides for leave of the court to allow belated amendments when justice so requires. The grant or denial of leave to amend is a matter within the sound discretion of the trial court and reviewable only for an abuse thereof. Selvia v. Reitmeyer, (1973) 156 Ind.App. 203, 295 N.E.2d 869, and authorities cited therein. The trial court did not abuse its discretion in this matter in light of the fact that the trial court did allow the Hargises, parties to the insurance contract, to amend their answer to include these affirmative defenses. 1
The Hargises, Gibbs and Koch next contend that the trial court decision was contrary to law on two grounds. The Indiana Supreme Court has recently outlined the standard of review in Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc., (1978) Ind., 380 N.E.2d 1225, 1228:
It is fundamental that in reviewing actions of a trial court, an appellate court can neither weigh the evidence nor determine the credibility of witnesses. B & T Distributors, Inc. v. Riehle, (1977) Ind., 366 N.E.2d 178, 180. On appeal, this court looks only to the evidence and reasonable inferences therefrom which tend to support the finding of the trial court. Gariup v. Stern (1970), 254 Ind. 563, 261 N.E.2d 578. It is only where the evidence leads to but one conclusion and the trial court has reached the opposite result that the judgment will be disturbed as being contrary to law. Palmer v. Decker (1970), 253 Ind. 593, 255 N.E.2d 797.
The first ground upon which the Hargises, Gibbs and Koch contend the decision is contrary to law is that there was waiver and estoppel of the unpaid premium by Farm Bureau with the consequence that the policy remained in force through July 26, 1974.
The terms "waiver" and "estoppel" were defined in Travelers Insurance Co. v. Eviston, (1941...
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