High court clarifies evidence designation

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court upheld a trial court's grant of summary judgment in favor of a defendant and also clarified the designation of evidence in regards to Indiana Trial Rule 56(C).

In Idan (John) Filip and Valaria Filip v. Carrie Block and 1st Choice Insurance Agency, No. 75S05-0704-CV-149, the Filips filed a suit against Block and 1st Choice, alleging negligence in the selection of insurance on an apartment building they purchased in 1999.

Block was the insurance agent of the previous owner, and when the Filips purchased the building they worked with Block and told her they wanted the same coverage as the previous owner. The Filips lived in the building and rented out the other five units. During the following four years, the Filips made several changes to their policy. In April 2003, a fire substantially damaged the building, and because of insurance limitations, a major part of the loss was uninsured - the Filips discovered their non-business personal belongings were not covered in the fire.

Block and 1st Choice filed for summary judgment Aug. 1, 2005. The Filips had 30 days to respond and did not file their response until the end of September. The trial court struck the Filips' untimely designation of evidence and limited the Filips' evidence in opposition to the lines and paragraphs specified in Block's memorandum. The trial court granted summary judgment in favor of Block and 1st Choice because the two-year statute of limitations for negligence started on the date of the initial insurance coverage in 1999.

The Court of Appeals held the Filips could rely on the pages identified in the defendant's motion and were not limited to lines and paragraphs specified in the memorandum. Also, the Court of Appeals held the statute of limitations did not bar the Filips' complaint because the statutory period for negligence against an insurance agent starts to run when the claim is denied.

In the Supreme Court decision, Justice Theodore Boehm held the designation of evidence in support or opposition to a motion for summary judgment pursuant to Indiana Trial Rule 56(C) may be accomplished in several places, but must be done so consistently. The entire designation of evidence must be in a single place, whether as a separate document or appendix, or as a part of a motion or other filing. And, a party may rely on designations by an opposing party, even if inconsistently designated in different places. Block tried to allow only specific lines and paragraphs to be used by the Filips; however, the Filips can rely on the entire designated pages identified in the defendants' motion in opposing summary judgment, Justice Boehm wrote.

In regards to when the accrual date for a negligence action against an insurance agent begins, the Supreme Court agreed with the trial court. The trial court determined the statute of limitations began to run at the time of coverage. The Filips argued their negligence claim began when the fire occurred. Justice Boehm wrote in this case, all of the alleged problems the Filips claim their policy lacked could have been ascertained by reading the policy at any point before the fire. With the exception of their nonbusiness personal property, the limitations in this case began with the activation of the policy.

The Filips and Block both erroneously believed the Filips policy covered the Filips' nonbusiness personal property, and the Filips claim they relied on Block's statements they were covered.

"In sum, for the purposes of the summary judgment, there is evidence that Block breached the duty of care because she incorrectly believed nonbusiness personal property was covered. There are no damages from this breach, however," wrote Justice Boehm.

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