Pepkowski v. Life of Indiana Ins. Co.

• Decision Date: 09 August 1988
• Docket Number: No. 64A04-8710-CV-307,64A04-8710-CV-307
• Citation: 526 N.E.2d 1015
• Parties: Kim PEPKOWSKI, Appellant (Plaintiff Below), v. LIFE OF INDIANA INSURANCE COMPANY; Quinet Life and Casualty Corp.; Donald Webber Mortgage Company; and Michael Wytrykus, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1015

526 N.E.2d 1015

Kim PEPKOWSKI, Appellant (Plaintiff Below), v. LIFE OF INDIANA INSURANCE COMPANY; Quinet Life and Casualty

Corp.; Donald Webber Mortgage Company; and

Michael Wytrykus, Appellees (Defendants Below).

No. 64A04-8710-CV-307.

Court of Appeals of Indiana,

Fourth District.

Aug. 9, 1988.

Richard A. Miller, Gouveia & Miller, Merrillville, for appellant.

Thomas C. Hays, N. Kathleen Wenzel, Lewis, Bowman, St. Clair Wagner, Indianapolis, John McCrum, Eichhorn, Eichhorn & Link, Hammond, for appellees.

CONOVER, Presiding Judge.

Plaintiff-Appellant Kim Pepkowski (Pepkowski) appeals the trial court's grant of summary judgment in favor of Defendants-Appellees Life of Indiana Insurance Company (Life of Indiana), Quinet Life and Casualty Corporation (Quinet), Donald Webber Mortgage Company (Webber), and Michael Wytrykus (Wytrykus) (collectively, the appellees).

We reverse.

Because we reverse, we address only the issue of whether the trial court erred in granting summary judgment on the issue of equitable estoppel.

The evidence favoring the non-movant indicates Webber employed Pepkowski on September 3, 1985. At the time of hiring Pepkowski was covered by a health insurance policy issued by State Farm Insurance Company. The policy was due to terminate at the end of September. Webber had a group insurance policy plan with Life of Indiana, which was administered by Quinet. The policy provided an employee who had worked at Webber for thirty days and who was accepted for enrollment by Life of Indiana was eligible for coverage on the 15th day of the month following an initial thirty day waiting period, which began running on the first day of employment. Eligibility for coverage was based on the acceptance of an employee's application and the payment of the premium.

Pepkowski inquired as to Webber's insurance coverage and was referred to Wytrykus, a Webber employee. Wytrykus helped Pepkowski complete an application, gave her a booklet detailing Life of Indiana's policy benefits, then sent the application to the insurance company for her. Wytrykus told Pepkowski the insurance coverage would begin on October 1, 1985.

Pepkowski terminated her insurance with State Farm at the end of September believing her coverage with Life of Indiana began October 1, 1985. On October 9, 1985, Pepkowski was seriously injured in an automobile accident as she returned to work from lunch and was hospitalized. Elizabeth Gard (Gard), the hospital's insurance verifier, spoke with Wytrykus to verify Pepkowski's insurance coverage and was informed of an October 1, 1985, coverage date. Wytrykus later informed Gard of an October 15, 1985, coverage date. Life of Indiana and Quinet accepted Pepkowski's application, but denied her claim on the basis her insurance coverage did not begin until October 15, 1985.

Pepkowski filed suit based on a theory of equitable estoppel to avoid the 30 day waiting period language in Life of Indiana's policy. Life of Indiana, Quinet, Webber, and Wytrykus filed their motions for summary judgment. All were granted by the court. Pepkowski contends summary judgment was not appropriate because genuine issues of material fact exist as to her equitable estoppel theory.

Further facts as necessary appear below.

Summary judgment is appropriate only in limited situations. Ind.Rules of Procedure, Trial Rule 56 provides in part

(C) Motion and Proceedings Thereon.

... The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits filed pursuant to Trial Rule 5(D), together with any testimony show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law....

(E) Form of Affidavits--Further Testimony--Defense Required....

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.... (Emphasis supplied).

Thus, the moving party carries the burden of establishing:

(a) there is no issue as to any material fact, and

(b) he is entitled to judgment as a matter of law.

Hinkle v. Niehaus Lumber Co. (1987), Ind.App., 510 N.E.2d 198, 200, reh. denied. The moving party must fulfill these two requirements before any burden shifts to the non-movant. Id. The non-movant may rest upon his pleadings until the moving party establishes no genuine factual issue exists. Hinkle, supra, at 200-201. If, however, the moving party successfully demonstrates no genuine issue exists, the nonmoving party must show the presence of such a fact to stave off summary judgment. Fort Wayne Community Schools v. Fort Wayne Education Association, Inc. (1986), Ind.App., 490 N.E.2d 337, 339; Conrad v. Waugh (1985), Ind.App., 474 N.E.2d 130, 134. In doing so, the nonmoving party may not merely rest upon his pleadings, but his response must set forth specific facts indicating an issue of material fact exists. Raymundo v. Hammond Clinic Assoc. (1983), Ind., 449 N.E.2d 276, 281; Popp v. Hardy (1987), Ind.App., 508 N.E.2d 1282, 1284; Fort Wayne Community Schools, supra, at 340; Ind.Rules of Procedure, T.R. 56(E). If the non-movant fails to meet this burden, summary judgment may be granted. Raymundo, supra, at 280; Williams v. Lafayette Production Credit Association (1987), Ind.App., 508 N.E.2d 579, 582, reh. denied; Conrad, supra, at 134; Ind.Rules of Procedure, T.R. 56(E).

When reviewing the grant of a summary judgment motion, we stand in the shoes of the trial court. Hinkle, supra, at 201. All evidence must be construed in favor of the non-movant and all doubts as to the existence of a material issue must be resolved against the movant. Raymundo, supra, at 280; Hinkle, supra, at 201; Penwell v. Western & Southern Life Ins. Co. (1985), Ind.App., 474 N.E.2d 1042, 1044; Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723, 729. Even if facts are not in dispute, summary judgment is inappropriate if conflicting inferences arise. Hinkle, supra, at 201; Board of Aviation Commissioners of St. Joseph County v. Hestor (1985), Ind.App., 473 N.E.2d 151, 153.

Summary judgment is not a substitute for a trial to resolve factual disputes. Though the trial court may believe the nonmovant will be unsuccessful at trial, summary judgment should not be granted where material facts are disputed or conflicting inferences arise. Hinkle, supra, at 201.

Pepkowski first contends her theory of equitable estoppel prevents the appellees from defending based upon the language of the insurance policy. The doctrine of equitable estoppel states a person who, by his language or conduct, leads another to do something he would not have done otherwise, will not be permitted to subject such person to loss or injury by disappointing the expectations on which he acted. International Harvester Co. of America v. Holley (1939), 106 Ind.App. 329, 18 N.E.2d 484, 487, reh. denied. To invoke the doctrine of equitable estoppel, the following elements must be established.

1) the defendant made a false representation of material fact or concealed a material fact,

2) the misrepresentation or concealment was made with actual or constructive knowledge of the true facts,

3) the misrepresentation or concealment was made to one who was without knowledge or a reasonable means of knowledge of the true facts,

4) the misrepresentation or concealment was made with the intent it should be relied upon, and

5) the plaintiff relied upon the misrepresentation or concealment to his detriment.

Kahf, supra, at 733.

The appellees contend Pepkowski fails to fulfill the elements of equitable estoppel. They argue she knew or possessed the means to know the date coverage began. Life of Indiana and Quinet further assert they made no false...