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Personal Resource Management, Inc. v. Evanston Ins. Co.

Court of Appeals of Indiana

March 12, 2014

PERSONAL RESOURCE MANAGEMENT, INC., and MARGARET A. DITTEON, Appellants-Plaintiffs,
v.
EVANSTON INSURANCE COMPANY, Appellee-Defendant

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE VIGO SUPERIOR COURT. The Honorable David R. Bolk, Judge. Cause No. 84D03-1105-PL-3628.

ATTORNEY FOR APPELLANTS: MARK D. HASSLER, Hunt, Hassler, Lorenz & Kondras, LLP, Terre Haute, Indiana.

ATTORNEYS FOR APPELLEE: STEPHEN J. PETERS, WILLIAM N. IVERS, Harrison & Moberly, LLP, Indianapolis, Indiana.

NAJAM, Judge. BAKER, J., and CRONE, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE

Personal Resource Management, Inc. (" PRM" ) and Margaret A. Ditteon (collectively " the Insureds" ) appeal the trial court's entry of summary judgment in favor of Evanston Insurance Company on the Insureds' complaint alleging breach of contract and seeking damages and a declaration that claims they submitted are covered under two professional liability policies issued by Evanston. The Insureds present five issues for review, which we consolidate and restate as whether the trial court erred when it granted summary judgment and declaratory judgment in favor of Evanston. We affirm.

FACTS AND PROCEDURAL HISTORY

The trial court entered extensive findings in this matter explaining the facts and issues, which, to the extent they are undisputed, we reproduce here:

A. PRM Formation and Business Operation.
11. In 1990, Margaret A. Ditteon and her former partner Judy Eifert formed Personal Resource Management; Ditteon became the sole owner of PRM in 1995. The services provided by PRM to the elderly changed and expanded to include representation as a power of attorney, representation as a guardian, and if no other family member was available, representation as personal representative of an estate. PRM would serve as both a guardian of the person and a guardian of the person's financial affairs.

B. PRM's Undisclosed Pre-Existing Potential Claims .

12. In September of 2006, Ditteon contacted Valerie Kinnaman of Tatem & Associates, PRM's agent since at least 2002 to inquire about E & O [(Errors and Omissions)] coverage. Ditteon reported a potential claim involving the failure to pay insurance coverage with respect to an individual over whom they [sic] were appointed guardian. The carrier denied the claim, as the policy did not provide coverage for the loss.
13. In November of 2006, a guardianship proceeding was filed in the Parke Circuit Court under Cause Number 61C01-0611-GU-22. PRM was appointed as guardian for Charles E. Mitchell and eventually was required to post a $2,000,000.00 bond. Ditteon assigned Jan Riddle to serve as the case manager for Mr. Mitchell until he died in April of 2008.
14. In May of 2008, Ditteon discovered that Riddle had engaged in wrongful acts and embezzled from Mr. Mitchell's guardianship.
15. An estate was opened on May 7, 2008, and the Court appointed Ditteon/PRM as the personal representative of the supervised Estate of Mitchell in Vigo County under Cause Number 84D03-0804-ES-03954.

C. PRM Insurance Application and Ditteon Misrepresentations .

16. On September 9, 2008, Ditteon asked her insurance agent, Kinnaman, about adding employee dishonesty coverage to PRM's policy. Kinnaman advised that, due to the existence of a pending ...

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