Zehner v. MFA Ins. Co., 1-1182A333

• Decision Date: 12 July 1983
• Docket Number: No. 1-1182A333,1-1182A333
• Citation: 451 N.E.2d 65
• Parties: Rosemary Droste ZEHNER, Appellant (Plaintiff Below), v. MFA INSURANCE CO., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 65

451 N.E.2d 65

Rosemary Droste ZEHNER, Appellant (Plaintiff Below), v. MFA INSURANCE CO., Appellee (Defendant Below).

No. 1-1182A333.

Court of Appeals of Indiana First District.

July 12, 1983.

Jim Corbett, Lantz & Hamilton, Evansville, for appellant.

Stephen Hensleigh Thomas, Clark, Statham, McCray, Thomas & Krohn, Evansville, for appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Rosemary Droste Zehner (Zehner) appeals an order of the Vanderburgh Superior Court granting a summary judgment in favor of MFA Insurance Co. (MFA) since Zehner previously had filed the same action in another court. Therefore, the present action constituted an impermissible collateral attack on the prior order of the Spencer Circuit Court.

We affirm.

STATEMENT OF THE FACTS

On or about April 11, 1979, Zehner allegedly sustained storm damage to the roof of her home in Newburgh, Indiana. At the time of the loss, her home was covered under a policy of insurance issued by MFA. Zehner timely filed a claim of loss which MFA denied because of a deductible provision.

On May 4, 1981, more than two years after the date of the alleged loss, Zehner filed her original complaint against MFA, alleging a breach of the insurance contract. Shortly thereafter, MFA filed an Ind.Rules of Procedure, Trial Rule 12(B)(6) motion to dismiss the complaint because Zehner had failed to comply with the following insurance contract provision:

No suit or action on this policy for the recovery for any claim shall be sustainable in any court of law or equity unless the requirements of this policy shall have been complied with, and unless commenced within twelve months after inception of the loss.

The Spencer Circuit Court had granted MFA's motion to dismiss on August 20, 1981, and six weeks later, on October 8, 1981, Zehner filed a motion for leave to file an amended complaint. The proposed amended complaint contained three counts: the previously dismissed breach of contract action and two tort claims for misrepresentation and negligence based on the terms of the policy. MFA objected to the petition to file an amended complaint, and the Spencer Circuit Court denied Zehner's petition. After filing a motion to correct errors, which was overruled, Zehner abandoned any further appeal of that action.

Instead, Zehner filed a second cause of action against MFA in the Warrick Circuit Court on October 26, 1981, which later was venued to the Vanderburgh Superior Court. The present action contained the same tort claims as alleged in her proposed amended On May 25, 1982, the Vanderburgh Superior Court sustained MFA's motion to dismiss, finding that:

complaint which was denied by the Spencer Circuit Court.

"the complaint herein alleging claims for relief arising from the same contract of insurance which was the subject matter of the action in the Spencer Circuit Court, constitutes an impermissible collateral attack upon the orders of a Court of competent and concurrent jurisdiction."

Thereafter, the trial court granted MFA's motion for summary judgment, dismissing Zehner's action.

ISSUE

The question on appeal is whether the present action of Zehner against MFA constitutes an impermissible collateral attack of a prior dismissal order of the Spencer Circuit Court.

DISCUSSION AND DECISION

Zehner argues that the Spencer Circuit Court's order dismissing the original complaint and denying the proposed amended complaint does not bar her present cause of action for misrepresentation and negligence filed in another court of concurrent jurisdiction. Zehner further argues that the Spencer Circuit Court only dismissed the breach of contract action, and there is nothing in that court's order of dismissal which she must avoid to maintain the present action. Zehner relies on Peterson v. Culver Educational Foundation, (1980) Ind.App., 402 N.E.2d 448, for the proposition that since there is no mandatory joinder in Indiana, the only bar to successive suits between the same parties is common law res judicata.

Our standard of reviewing a summary judgment is the same as that of the trial court; summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Aetna Insurance Company of the Midwest v. Monteith Tire Company, Inc., (1983) Ind.App., 443 N.E.2d 880. While Zehner concedes that she failed to bring an action on the insurance contract within one year from the date of loss as required by the policy, she steadfastly maintains that the twelve-month limitation period for bringing actions on the policy does not bar non-contractual claims, such as her tort claims, brought within the statutory period. Therefore, Zehner concludes, she is not collaterally attacking the Spencer Circuit Court's dismissal of her contract action, but, rather, she is filing new causes in an independent action.

We first note that under Indiana law, a provision in an insurance policy limiting the time in which a suit may be brought to a period less than that fixed by the statute of limitations is binding, unless it contravenes a statute. Schafer v. Buckeye Union Insurance Company, (1978) Ind.App., 178 Ind.App. 70, 381 N.E.2d 519; and Stateman Insurance Company v. Reibly, (1978) Ind.App., 175 Ind.App. 317, 371 N.E.2d 414. A twelve-month limitation of actions provision in an insurance policy is valid and enforceable....