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Messmer v. KDK Financial Services, Inc.

Court of Appeals of Indiana

September 14, 2017

Evelyn Messmer, Appellant-Plaintiff,
v.
KDK Financial Services, Inc., et al., Appellees-Defendants.

         Appeal from the Monroe Circuit Court Trial Court Cause No. 53C01-1508-PL-1598 The Honorable E. Michael Hoff, Judge

          Attorneys for Appellant Robert Madison Oakley Daniel Kyle Dilley Carmel, Indiana

          Attorneys for Appellees Anthony L. Holton Reminger Co., LPA Indianapolis, Indiana

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Plaintiff, Evelyn Messmer (Messmer), appeals the trial court's summary judgment in favor of Appellees-Defendants, KDK Financial Services, Inc. (KDK Financial) and Fred Kern (Kern), Individually (collectively, Appellees).[1]

         [¶2] We affirm.

         ISSUES

         [¶3] Messmer raises two issues for our review, which we restate as:

(1) Whether the continuing representation doctrine tolled the statute of limitations on Messmer's fraud allegations; and
(2) Whether a genuine issue of material fact exists establishing that Appellees fraudulently misrepresented the surrender of an insurance annuity.

         FACTS AND PROCEDURAL HISTORY

         [¶4] At the time of the trial court proceedings, Messmer was eighty-eight years old and resided in an assisted living community. She began using the services of KDK Financial in 2002, shortly after her husband died. KDK Financial is in the business of selling fixed annuities, [2] an insurance product which is not considered a security under Indiana law. Throughout the entire time Messmer used KDK Financial's services, Messmer primarily interacted with Dwight Wade (Wade), and occasionally spoke with Kern. By 2007, Messmer had purchased six fixed annuities through KDK Financial: five of the annuities were issued by Allianz Insurance (Allianz), with the remaining annuity issued by Washington National Insurance Company (Washington National).

         [¶5] As of January 10, 2007, the policy details for the Allianz annuities included both the account value, as well as the value of the accounts upon surrender. Between December 28, 2007, and April 15, 2008, Messmer surrendered her Allianz annuities and purchased five new fixed annuities issued by Athene. On November 19, 2008, Messmer mailed a signed grievance to Allianz, requesting a reduction in the surrender charges incurred due to the early surrender of her five Allianz annuities. Mesmer's letter to Allianz stated, in pertinent part, as follows:

The manner in which I was notified by Allianz as to the amount of surrender charges which I would incur was deceiving. For example, regarding policy number 70456119; I received a letter stating the amount of money being sent to the new company was $33, 070.76. It did not state nor specify that I was losing $15, 621.30. The same procedure was used for the other four policies. I was not told that I was losing the bonus nor was I told what the surrender charge actually was.
I believe you should have been straight forward with our transactions and advised me in clear and comprehensible terms which I could understand. If I had known what the actual surrender charges were, I would not have proceeded with the new deal. The manner in which Allianz sends notification of surrender charges is devious, confusing and wrong. I expected a reasonable charge. My hope is after reviewing my ...

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