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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. ATTORNEYS FOR APPELLANT: MICHAEL E. BROWN ERIC D. JOHNSON Kightlinger & Gray, LLP Indianapolis, Indiana

FILED
Mar 25 2010, 9:17 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
JOHN L. KILEY AGENCY, INC., d/b/a ROCCHIO KILEY INSURANCE, Appellant-Defendant, vs. DAN N. RENFRO, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) )

No. 34A04-0907-CV-412

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable Stephen M. Jessup, Judge Cause No. 34D02-0606-CT-544

March 25, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

John L. Kiley Agency, Inc., doing business as Rocchio Kiley Insurance ("Kiley"), appeals the trial court's denial of its motion for summary judgment. Kiley raises one issue, which we revise and restate whether the trial court erred in denying its motion for summary judgment. We reverse and remand. The relevant facts follow. In 1996, Dan N. Renfro ("Renfro") purchased a new boat. At some point, Joe Kiley, who was the father of Renfro's wife and a producer1 with Kiley, procured an insurance policy for the boat.2 Kiley originally procured an insurance policy for Renfro from Monroe Guaranty. Later, when Kiley "quit writing Monroe," Kiley procured a Commercial Policy (the "Policy") issued by Central Mutual Insurance Company ("Central") to Renfro Marketing & Public Relations, Inc., under which Renfro was a third party beneficiary, with an effective date of June 15, 2000. On June 15, 2000, while operating his boat on Lake Freeman in Indiana, Renfro was involved in a boating accident involving Mitchel Kobitz and Charlene Kobitz. After the accident, Central repaired Renfro's boat and replaced the Kobitzes' boat which had been damaged in the accident. On June 6, 2002, Mitchel and Charlene Kobitz filed a complaint (the "Kobitz Complaint") for damages against Renfro alleging that Renfro was negligent in the operation of his boat on June 15, 2000 which resulted in personal injury to both Mitchel Kobitz and Charlene Kobitz. In a letter to the attention of Renfro dated July 25, 2002, a

1 2

A producer was a person who generated accounts and earned commissions.

Renfro and his wife had obtained personal coverage for their home, automobiles, and other boats through Kiley as well.

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claims representative for Central informed Renfro that the Policy did not include liability coverage. The letter stated: "In handling the claim, I made the mistake of applying the liability coverage to the claimant's property damage loss involving their boat. Unfortunately, the [P]olicy does not provide liability coverage for your boat. I regret that we will be unable to handle the alleged injury claims." Appellant's Supplemental

Appendix at 40, 90. On August 26, 2002, the attorney who had undertaken Renfro's defense in the Kobitz lawsuit informed Renfro by letter that Central was denying coverage.3 On October 20, 2005, Renfro filed a third party complaint against Kiley alleging breach of contract, implied breach of contract and negligent procurement of insurance. Kiley filed a motion to dismiss Renfro's third party complaint, and the trial court found that Renfro's claims against Kiley were independent claims and granted Kiley's motion on May 30, 2006. On June 13, 2006, Renfro filed a complaint (the "Renfro Complaint") against Kiley alleging breach of oral contract, breach of implied contract, and negligent procurement of insurance. On July 7, 2006, Kiley filed its answer. On April 15, 2008, Kiley filed an amended answer, which alleged that the statute of limitations bars Renfro's claims.4

At his deposition, Renfro testified that the letter he received from the attorney was "the first time that [he] had heard" that Central "was denying coverage." Appellant's Suppl emental Appendix at 19.
3

According to the chronological case summary (the "CCS"), Renfro filed an objection to Kiley's motion for leave to file amended answer, and the CCS indicates that the objection was "moot" because Renfro "did not object in the period of time designated by the Court." Appellant's Appendix at 2. Renfro
4

3

On August 25, 2008, Kiley filed a motion for summary judgment, a brief in support of its motion for summary judgment, and a designation of evidence in support of its motion for summary judgment. In its brief in support of its motion for summary judgment, Kiley argued that "[a]lthough [Renfro] has specifically asserted breach of contract, breach of implied contract and negligence claims in the Complaint, a look beyond the form of the pleadings shows [Renfro's] alleged harm stems from Kiley's alleged negligence in failing to procure liability coverage for [Renfro's] boat." Id. at 6. Kiley argued that "negligence is the substance of [Renfro's] cause of action against Kiley." Id. Kiley also argued that, under either the statute of limitations governing a tort action5 or the statute of limitations governing an action based upon professional services rendered,6 Renfro "had two years" to file a complaint against Kiley and failed to do so. Id. at 7. On September 25, 2008, Renfro filed a brief in opposition to Kiley's motion for summary judgment and designated evidence in support of its opposition. In his brief in opposition to Kiley's motion for summary judgment, Renfro argued that "there was an oral agreement" between Renfro and Kiley whereby Kiley agreed to procure insurance coverage for the boat, "includ[ing] liability coverage." Id. at 52. Renfro further argued that Kiley's "actions were not tortious but a contractual breach." Id. at 53. Renfro also argued that "[i]rrespective of the date [Renfro's] contract claims accrued, July 25, 2002
also filed a motion to correct error, which the trial court denied. 5 See Ind. Code

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