Seeber v. Gen. Fire & Cas. Co.

• Decision Date: 29 October 2014
• Docket Number: No. 53A01–1405–PL–208.,53A01–1405–PL–208.
• Citation: 19 N.E.3d 402
• Parties: Tom SEEBER, Appellant–Plaintiff, v. GENERAL FIRE AND CASUALTY COMPANY, Indiana Insurance Company, and Peerless Indemnity Insurance Company, Appellees–Defendants.
• Court: Indiana Appellate Court

19 N.E.3d 402

Tom SEEBER, Appellant–Plaintiff

v.GENERAL FIRE AND CASUALTY COMPANY, Indiana Insurance Company, and Peerless Indemnity Insurance Company, Appellees–Defendants.

No. 53A01–1405–PL–208.

Court of Appeals of Indiana.

Oct. 29, 2014.

Christine L. Zook, Ferguson & Ferguson, Bloomington, IN, Attorney for Appellant.

James A. Goodin, Elizabeth J. Wysong Berg, Goodin Abernathy, LLP, Indianapolis, IN, Attorneys for Appellee, General Fire and Casualty Company.

Rick D. Meils, William M. Berish, John W. Mervilde, Meils Thompson Dietz & Berish, Indianapolis, IN, Attorneys for Appellee, Indiana Insurance Company and Peerless Insurance Company.

OPINION

BRADFORD, Judge.

CASE SUMMARY

In the fall of 2008, Appellant–Plaintiff Tom Seeber owned a commercial building located on North College Avenue in Bloomington (the “Building”). The Building was leased to Harry and Karen Kidwell, who operated Delilah's Pet Shop. On November 3, 2008, the Building was destroyed by fire and determined to be a total loss. At the time of the fire, Seeber had an insurance policy for the Building that was issued by Appellee–Defendant General Fire and Casualty Company (“General Fire & Casualty”). The Kidwells had an insurance policy relating to their interests in the Building that was issued by Appellees–Defendants Indiana Insurance Company and Peerless Indemnity Insurance Company (collectively, “Indiana Insurance”). As a result of the fire, General Fire & Casualty and Indiana Insurance (collectively, “the Insurance Companies”) agreed that the actual cash value of the Building was $512,418.12 and the replacement cost was $650,812.70. The Insurance Companies thereafter collectively paid Seeber the full $512,418.12 actual cash value of the building.

Seeber subsequently claimed that he was entitled to receive the full $650,812.70 replacement cost of the building. Seeber filed a complaint for declaratory judgment on November 1, 2010, asking the trial court to interpret his rights under the relevant insurance policies. On December 30, 2013, Seeber filed a motion for summary judgment, along with designated evidence and a memorandum in support of his motion. Also on December 30, 2013, General Fire & Casualty and Indiana Insurance each filed motions for summary judgment, designated evidence, and supporting memoranda. The trial court conducted a hearing on all outstanding motions on March 21, 2014. On April 17, 2014, the trial court entered an order denying Seeber's motion for summary judgment and granting summary judgment in favor of the Insurance Companies.

On appeal, Seeber contends that the trial court erred in denying his request for summary judgment and in granting summary judgment in favor of the Insurance Companies. Seeber specifically claims that the Insurance Companies were not entitled to an award of summary judgment because, under the applicable policy language, he was entitled to recover $650,812.70, the replacement cost of the building that was destroyed by fire. Concluding that the trial court properly denied Seeber's request for summary judgment and granted summary judgment in favor of the Insurance Companies, we affirm.

FACTS AND PROCEDURAL HISTORY

A. Facts Relating to the Building Destroyed by Fire

In the fall of 2008, Seeber owned the Building.¹ The Building was leased to Harry and Karen Kidwell, who operated Delilah's Pet Shop. On November 3, 2008, the Building was destroyed by fire and was determined to be a total loss.

At the time of the fire, Seeber had an insurance policy for the Building that was issued by General Fire & Casualty. The Kidwells had an insurance policy relating to their interests in the Building that was issued by Indiana Insurance. At some point, the Kidwells and Seeber entered into a “settlement agreement and mutual release” that stated, in part: “The Kidwells hereby assign to [Seeber] any and all right, title and interest the Kidwells may have to receive additional proceeds under the [Indiana Insurance] Policy for loss or destruction of the improvements on [the Building].” Appellant's App. p. 67 (emphasis added). The release further stated, however, that “[Seeber] acknowledge[s] that the Kidwells are making no representation that any additional proceeds are available under the policy.” Appellant's App. p. 67.

After the fire, the Insurance Companies agreed that the actual cash value of the Building was $512,418.12 and the replacement cost of the Building was $650,812.70. Based upon an unwritten, agreed upon split for the actual cash value payment, General Fire & Casualty paid $220,339.84 and Indiana Insurance paid $292,078.39 to the insureds. These payments totaled the full agreed actual cash value of the Building.

B. Facts Relating to the Proposed Replacement Properties

In December of 2008, approximately one month after the fire, Seeber purchased a 25% interest in a property located on North Walnut Street² in Bloomington. This property is a three-story mixed-use building, with one-third of the building devoted to retail space and the other two-thirds devoted to residential rental space. Seeber's interest in the building was valued at $422,118.00.

On August 12 and 27, 2010, Seeber notified Indiana Insurance of his purchase of an interest in the North Walnut Street property and indicated that he intended to use the purchase as a replacement property. On October 5, 2010, Seeber notified General Fire & Casualty of the purchase of the proposed replacement property. At this time, Seeber's counsel was informed that General Fire & Casualty would review the replacement property proposal. Seeber filed the underlying action before General Fire & Casualty finished their review of the proposal.

During the pendency of the underlying action, on January 15, 2014, Seeber purchased four condominiums located on West Allen Street in Bloomington. Each of the condominiums is a single-story residential building. The value of the condominiums was $355,000.00.

C. Procedural History

Seeber filed a complaint for declaratory judgment on November 1, 2010, requesting that the trial court interpret his rights under the relevant insurance policies. In making this request, Seeber claimed that he was entitled to receive the full $650,812.70 replacement cost of the Building. Thus, Seeber argued that he was entitled to recover an additional $138,394.58 from the Insurance Companies.

On December 30, 2013, Seeber filed a motion for summary judgment, along with designated evidence and a memorandum in support of his motion. Also on December 30, 2013, General Fire & Casualty and Indiana Insurance each filed motions for summary judgment, designated evidence, and supporting memoranda. The Insurance Companies filed briefs in opposition to Seeber's motion for summary judgment, and Seeber filed a brief in opposition to each of the Insurance Companies' motions for summary judgment. Each party also filed a reply memorandum in support of its motion for summary judgment.

The trial court conducted a hearing on the competing summary judgment motions on March 21, 2014. Following the hearing, the trial court took the matter under advisement and ordered each party to submit a proposed summary judgment order within two weeks. On April 17, 2014, the trial court entered an order denying Seeber's motion for summary judgment and granting summary judgment in favor of the Insurance Companies. This appeal follows.

DISCUSSION AND DECISION

Seeber contends that the trial court abused its discretion in denying his motion for summary judgment and in granting summary judgment in favor of the Insurance Companies. The Insurance Companies, for their part, contend that the trial court properly denied Seeber's motion for summary judgment and granted summary judgment in their favor.

A. Standard of Review

Insurance contracts are governed by the same rules of construction as other contracts. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997) ; see also Bowers v. Kushnick, 774 N.E.2d 884, 887 (Ind.2002). Proper interpretation of an insurance policy, even if it is ambiguous, generally presents a question of law that is appropriate for summary judgment. Guzorek, 690 N.E.2d at 667. Clear and unambiguous policy language must be given its ordinary meaning. Id. However, where there is an ambiguity, insurance policies are to be construed strictly against the insurer. Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind.1996), reh'g denied. “This strict construal against the insurer is driven by the fact that the insurer drafts the policy and foists its terms upon the customer.” Id. “The insurance companies write the policies; we buy their forms or we do not buy insurance.” Id.

Failure to define a term in an insurance policy does not necessarily make it ambiguous. Guzorek, 690 N.E.2d at 667. Rather, an insurance policy is ambiguous only if a provision is susceptible to more than one reasonable interpretation. Id. Additionally, an “ambiguity is not affirmatively established simply because controversy exists and one party asserts an interpretation contrary to that asserted by the opposing party.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind.2002), reh'g denied.

Am. Home Assur. Co. v. Allen, 814 N.E.2d 662, 666–67 (Ind.Ct.App.2004), trans. dismissed.

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887 (Ind.Ct.App.2002).

When reviewing the grant or denial of a motion for summary judgment “we stand in the shoes of the trial court.” City of Gary v. Ind. Bell Tel. Co., 732 N.E.2d 149, 153 (Ind.2000).... “In reviewing cross-motions for summary judgment, we consider each motion separately.” Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250, 253 (Ind.2013). Where, as here, the dispute is one of law rather than fact, our standard of review is de novo.

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