The Indiana Supreme Court affirmed summary judgment for American Family Insurance in a lawsuit filed by a couple after the insurer denied coverage for a 2003 fire at their home and voided the insurance policy from its beginning.

In Michael Dodd and Katherine Dodd v. American Family Mutual Insurance Company, 12S02-1203-CT-170, Michael and Katherine Dodd filed a claim with American Family after their garage was destroyed by a fire in 2003. Michael Dodd did not disclose in his application with American Family in 1998 that his then-fiancée Katherine’s home, where he lived, was destroyed in a fire earlier that year. Michael and Katherine Dodd didn’t marry until 2000, but they lived together when he applied for the policy.

In investigating the 2003 fire, Michael Dodd told American Family about the 1998 fire. The company treated it as a misrepresentation, voided the insurance policy ab initio and denied the Dodds' claim for the 2003 fire.

The couple sued for breach of contract and intentional infliction of emotional distress. The trial court ruled in favor of American Family. The Indiana Court of Appeals reversed in part and ordered more proceedings on the breach of contract claim.

The justices upheld the trial court’s grant of summary judgment to American Family, rejecting the Dodds’ argument that American Family couldn’t void or rescind the policy because it hadn’t first returned all paid premium amounts to them. They didn’t make that argument in response to the insurer’s motion for summary judgment and the issue wasn’t before the trial court, Chief Justice Brent Dickson wrote.

But even if the Dodds had made the argument before the lower court, an exception to this requirement has been met where an insurer doesn’t have to tender a return of premiums to rescind a contract when the insurer has paid a claim which is greater in amount than the premiums paid.

The Dodds received $5,500 from American family for hail damage, more than twice the amount of the premiums they paid.

The justices ordered the trial court to release and return the tender of premiums to American Family, which the trial court was holding until the conclusion of the Dodds’ appeal.