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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Mar 06 2013, 8:26 am

ATTORNEY FOR APPELLANTS: DAVID P. MURPHY David P. Murphy & Associates, P.C. Greenfield, Indiana

ATTORNEY FOR APPELLEES: ROBERT S. O'DELL O'Dell & Associates, P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER GROCE and TRACEY GROCE, Husband and Wife, ) ) ) Appellants-Plaintiffs, ) ) vs. ) ) AMERICAN FAMILY INSURANCE COMPANY ) and MICHAEL A. MEEK, ) ) Appellees-Defendants. )

No. 48A02-1208-CT-703

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Rudolph R. Pyle, III, Judge Cause No. 48C01-0911-CT-967

March 6, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Christopher Groce and Tracey Groce filed a complaint for damages against American Family Mutual Insurance Company ("American Family") and Michael Meek alleging negligence and breach of contract. American Family and Meek moved for summary judgment, which the trial court granted following a hearing. The Groces appeal and present a single dispositive issue, namely, whether their claims are barred by the applicable statute of limitations. We affirm. FACTS AND PROCEDURAL HISTORY In 1997, the Groces purchased a residence in Henry County for $47,500. The Groces procured homeowner's insurance with a policy limit of $50,000 from Kevin Michaels, an insurance agent with American Family. In August 2003, Meek replaced Michaels as the Groces' insurance agent with American Family. Also in August 2003, Tracey advised Meek of the amount of the Groces' mortgage on the residence, and Meek obtained a new American Family homeowner's policy for the Groces with policy limits of $121,900. In November 2003, the Groces advised Meek that they had added a "24x32 story frame addition" to the house, and Meek provided them with a quote to increase the dwelling coverage to $140,000. Appellants' App. at 7. In July or August 2005, in conjunction with a refinance of their mortgage, the Groces' mortgage company asked Meek to increase the policy limits on the Groces' policy to $176,000. Thereafter, the

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policy limits were ultimately increased to $200,900 pursuant to "inflation protection coverage" under the policy. Appellants' App. at 328. On October 21, 2007, a fire destroyed the Groces' residence. Marc Patterson, a claims adjustor for American Family, determined that "the amount to replace or repair the residence would be $231,231.73" and that the "actual cash value of the damage to the residence as provided by the terms of the policy of insurance was $156,527.82 after subtracting the depreciation of $74,703.91." Id. at 330. Thereafter, All Star Building Corporation ("All Star") provided an estimate to rebuild the house for $185,999.75. But on January 3, 2008, All Star amended its estimate to account for extra costs associated with bringing older parts of the house up to code and repairing a footer that had "eroded over the years." Id. at 332. The revised estimate to rebuild the Groces' house was increased by $39,246.15, for a total of $225,245.90. The Groces had requested, and Meek had promised, "replacement cost" coverage for their dwelling. The American Family policy defined "replacement cost" in relevant part as follows: Buildings which have a permanent foundation and roof will be settled at replacement cost without deduction for depreciation, subject to the following: *** (2) Replacement Cost. (a) If at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately prior to the loss, and the building is repaired or replaced, we will pay the full cost to repair or replace the damaged building without deducting depreciation, but not exceeding the smallest of:

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i. the limit in this policy for the building, including any additional amount of insurance as provided by the Inflation Protection Coverage; ii. the cost to replace the damaged building with like construction for similar use on the same premises; or iii. the amount actually and necessarily spent for repair or replacement of the damaged building. Id. at 71 (emphases added). Accordingly, American Family paid only up to the policy limit of $200,900 (plus the cost of debris removal) towards rebuilding the Groces' house. The Groces were left to pay the difference out-of-pocket. On June 27, 2009, the Groces filed a complaint against American Family and Meek alleging negligence for failure to obtain replacement cost coverage for their dwelling and breach of contract for failure to pay the entire cost of the damage. American Family and Meek filed a joint motion for summary judgment, which the trial court granted following a hearing. This appeal ensued. DISCUSSION AND DECISION The Groces contend that the trial court erred when it granted American Family and Meek's joint summary judgment motion. Our standard of review for summary judgment appeals is well established: When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a "genuine issue as to any material fact" and whether "the moving party is entitled to a judgment as a matter of law." In answering these questions, the reviewing court construes all factual inferences in the non-moving party's favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party
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to designate and produce evidence of facts showing the existence of a genuine issue of material fact. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009) (citations omitted). The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009). Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo. Crum v. City of Terre Haute ex rel. Dep't of Redev., 812 N.E.2d 164, 166 (Ind. Ct. App. 2004). While we are not bound by the trial court's findings and conclusions and give them no deference, they aid our review by providing the reasons for the trial court's decision. See GDC Envtl. Servs. Inc. v. Ransbottom Landfill, 740 N.E.2d 1254, 1257 (Ind. Ct. App. 2000). Here, in its memorandum in opposition to summary judgment, the Groces clarified their negligence claims as follows: Plaintiffs contend this is a negligence case because[,] regardless of any limit of coverage, on August 18, 2003, Meek stated "I'm assuming you want replacement cost coverage . . . if anything ever happens--fire, tornado, wind [the residence] will be replaced 100%." When [Tracey] said "yes" and he replied, "I'll get this written up," Meek created a nondelegable duty on his part to obtain "100% replacement cost coverage" on the Residence. Plaintiffs reasonably relied on Meek's statements to determine how much insurance equaled "100% replacement cost coverage" because they were concerned about having enough insurance to rebuild their Residence and Meek was the insurance professional. Plaintiffs further contend that such a policy would have been in effect on the day of the fire but for the negligence of Michael Meek in (1) failing to determine the value of the Residence on August 18, 2003[,] and (2) failing to obtain "100% replacement cost coverage" in the last week in July or the first week in August 2007 when he was notified of the latest refinancing of Plaintiff's mortgage. These allegations in the Complaint focus on Meek's negligence
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and the culpability of American Family as Meek's principal at all times relevant to the case. Appellants' App. at 350-51. American Family and Meek argued, and the trial court found, that the Groces' negligence claims were barred by the applicable two-year statute of limitations. See Ind. Code

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