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Schmidt v. Indiana Ins. Co.

Court of Appeals of Indiana

January 14, 2015

CHRISTOPHER SCHMIDT, Appellant-Plaintiff,
v.
INDIANA INSURANCE COMPANY, C& F INSURANCE GROUP, LLC, and BART STITH, Appellees-Defendants

APPEAL FROM THE FLOYD SUPERIOR COURT. The Honorable Susan L. Orth, Judge. Cause No. 22D01-1104-PL-455.

ATTORNEYS FOR APPELLANT: RICHARD R. FOX, KRISTI FOX, STEVEN A. GUSTAFSON, The Law Office of Richard R. Fox, New Albany, Indiana.

ATTORNEYS FOR APPELLEES: Attorneys for Indiana Insurance Co.: JOHN C. TRIMBLE, LEWIS S. WOOTEN, MICHAEL R. GIORDANO, Lewis Wagner LLP, Indianapolis, Indiana; Attorneys for C& F Insurance, LLC and Bart Stith: RICHARD T. MULLINEAUX, CRYSTAL G. ROWE, ASHLEY GILLENWATER EADE, Kightlinger & Gray, LLP, New Albany, Indiana.

MAY, Judge. NAJAM, J., and PYLE, J., concur.

Page 517

OPINION

MAY, Judge

Christopher Schmidt appeals summary judgment for Indiana Insurance, C& F Insurance Group, and Bart Stith (collectively, " Appellees" ). He presents multiple issues for our review, which we consolidate and restate as whether the trial court erred in granting summary judgment because there were genuine issues of material fact. We reverse in part, affirm in part, and remand.

FACTS AND PROCEDURAL HISTORY[1]

In December 2004, Schmidt inherited property that included a house at 1526 E. Oak Street in New Albany, Indiana (" the Oak Street Property" ). He allowed his cousin to live in the house and did not obtain insurance on the property at that time. In early 2009, Schmidt's cousin moved out of the residence. Approximately two months later, Schmidt started receiving calls from the police department and animal control about animals left on the property and odors emanating from the house.

On July 1, 2009, the local animal control agency was called to the Oak Street Property. Animal Control Officer Carrie Mooser observed:

Looking through side door window, house appears to be full of trash, debris, furniture. Feces and garbage is apparent covering floor. Smell coming from inside house is foul and unbearable to breathe in. Can see two dogs inside house, both appear to be extremely emaciated. Upon entering house, securing both dogs in ACO truck. Dogs are covered in fleas and walking through house and yard, I quickly became covered in fleas, to the point of extreme discomfort from flea bites. In back room of house, off kitchen, found a dead dog, also covered with fleas.

(App. at 105.) Based on these discoveries, the Floyd County Health Department investigated on the same day and determined the house was unfit for human habitation. After the house was condemned, no one was permitted to enter unless they were cleaning it. Schmidt indicated he began cleaning the premises at some time after the condemnation.

Page 518

In April 2010, Schmidt contacted Stith, who was an agent with C& F Insurance Group, about purchasing insurance for the Oak Street Property. Stith and Schmidt met, and Stith asked Schmidt a series of questions, which he entered into a computer database that generated a " Dwelling Fire Application" with Indiana Insurance. The application indicated the Oak Street Property was " a primary dwelling occupied daily by a tenant" and was not undergoing " renovation or construction[.]" ( Id. at 261.) Schmidt indicated Stith was a " very meticulous person," ( id. at 181), and Stith went over the contents of the application with him. Stith testified he saw Schmidt sign the application.[2] Based ...


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