Opinion
24A-PL-399
07-17-2024
Bruce Moberley, Appellant-Defendant v. Indiana Farm Bureau Insurance, a/s/o Albert McMichael, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Cameron S. Huffman Kopka Pinkus Dolin PC Carmel, Indiana ATTORNEY FOR APPELLEE Michelle A. Cobourn-Baurley McNeely Law LLP Shelbyville, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Porter Superior Court The Honorable Michael A. Fish, Judge Trial Court Cause No. 64D01-2210-PL-8314
ATTORNEY FOR APPELLANT Cameron S. Huffman Kopka Pinkus Dolin PC Carmel, Indiana
ATTORNEY FOR APPELLEE Michelle A. Cobourn-Baurley McNeely Law LLP Shelbyville, Indiana
MEMORANDUM DECISION
BRADFORD, JUDGE
Case Summary
[¶1] After Bruce Moberley admitted fault for having caused a fire that had spread to his neighbor's home, the trial court entered summary judgment in favor of Indiana Farm Bureau Insurance ("Farm Bureau") and awarded damages consistent with the amount set forth in Farm Bureau's designated evidence. Moberley contends on appeal that the trial court erred in awarding Farm Bureau summary judgment on both the issue of fault and the issue of damages. We affirm.
Facts and Procedural History
[¶2] In March of 2021, Moberley lived next door to Albert McMichael in Valparaiso. A fire occurred at Moberley's residence on March 30, 2021, which spread to McMichael's property and residence. Moberley subsequently admitted that "due to his actions on March 30, 2021, a fire occurred at his property which then spread to the McMichael residence and property, and he is 100% liable for the fire." Appellee's App. Vol. II p. 11. At the time of the fire, Farm Bureau insured McMichael's residence. Pursuant to McMichael's insurance policy, Farm Bureau paid damages in the amount of $373,830.54.
[¶3] On October 3, 2022, Farm Bureau filed suit against Moberley, alleging that the fire had been caused by Moberley's careless and negligent actions. Farm Bureau sought to recover from Moberley the $373,830.54 in damages that it had paid to McMichael. Farm Bureau moved for summary judgment on September 7, 2023. On January 17, 2024, the trial court granted Farm Bureau's motion for summary judgment and awarded Farm Bureau "$373,830.54 plus court costs of $157.00 for a total judgment of $373,987.54, plus pre-judgment interest at the statutory rate of 8% per annum ($81.935 per day) beginning April 3, 2023 up to and including the date of" the trial court's order. Appellant's App. Vol. II p. 53.
Discussion and Decision
[¶4] Moberley contends that the trial court erred in granting summary judgment in favor of Farm Bureau. "We review summary judgment using the same standard as the trial court: summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Quirk v. Delaware Cnty., 91 N.E.3d 1008, 1013 (Ind.Ct.App. 2018). "The party moving for summary judgment bears the burden of making a prima[-]facie showing that there is no issue of material fact and that it is entitled to judgment as a matter of law." Burton v. Benner, 140 N.E.3d 848, 851 (Ind. 2020). "The burden then shifts to the non-moving party to show the existence of a genuine issue." Id. "All facts and reasonable inferences are construed in favor of the non-moving party." Quirk, 91 N.E.3d at 1013 . "Where the challenge to summary judgment raises questions of law, we review them de novo." Id.
[¶5] In challenging the trial court's award of summary judgment, Moberley asserts that Farm Bureau had failed to make a prima-facie showing of fault. As Moberley states, "[c]ausation, or the requirement of a reasonable connection between a defendant's conduct and the damages which a plaintiff has suffered, is an essential element in a negligence action." Smith v. Beaty, 639 N.E.2d 1029, 1033 (Ind.Ct.App. 1994). Moberley argues that the designated evidence "in no way establishes that Moberley is the proximate cause of Farm Bureau's damages[.]" Appellant's Br. p. 9. We disagree.
Moberley does not argue that he had not owed a duty to McMichael, and we have previously recognized that an individual has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners. See Marshall v. Erie Ins. Exchange, 923 N.E.2d 18, 25 (Ind.Ct.App. 2010), trans. denied.
[¶6] In support of its motion for summary judgment, Farm Bureau designated Moberley's amended answer and the affidavit of Farm Bureau employee Salli Horst. The relevant portion of Moberley's amended answer stated the following:
5. On March 30, 2021, Defendant was improperly handling flammable materials at his property, causing a fire.
ANSWER: Defendant admits that on March 30, 2021, a fire occurred at his residence located at 475 Scarborough Road, Valparaiso, Indiana, and he is 100% liable for the fire.
6. On March 30, 2021, the fire at Defendant's residence which occurred as a result of Defendant's negligent actions, spread and caused damaged to the McMichael residence and property.
ANSWER: Defendant admits that due to his actions on March 30, 2021, a fire occurred at his property which then spread to the McMichael residence and property, and he is 100% liable for the fire.
Defendant is without sufficient knowledge to either admit or deny the remaining allegations contained within rhetorical paragraph six (6) of Plaintiff's Complaint pertaining to damages and demands strict proof thereof.Appellant's App. Vol. III p. 6 (emphases omitted).
[¶7] Moberley asserts that "[s]imply put, Moberley's Amended Answer does not establish that [his] actions were the proximate cause of Farm Bureau's damages" and "nothing within Farm Bureau's designated evidence establishes a causal link between Moberley's actions and Farm Bureau's damages." Appellant's Br. p. 9. A plain reading of Moberley's admissions, however, reveals that Moberley had admitted to being "100% liable" for the fire that had started on his property and had spread to McMichael's residence and property. Appellant's App. Vol. III p. 6. Likewise, a plain reading of Horst's affidavit establishes that Farm Bureau had insured McMichael's property at the time of the fire and had paid $373,830.54 in damages that had resulted from the fire. We conclude that Farm Bureau's designated evidence regarding fault is sufficient to make a prima-facie showing that there is no issue of material fact and that it is entitled to judgment as a matter of law.
[¶8] Moberley also asserts that Farm Bureau failed to adequately prove damages. We have previously noted that a prima-facie showing of damages "is established when the costs of reparation are admitted into evidence." City of Marion v. Taylor, 785 N.E.2d 663, 665 (Ind.Ct.App. 2003), trans. denied; see also Dado v. Jeeninga, 743 N.E.2d 291, 296 (Ind.Ct.App. 2001) (noting authority holding that "when a plaintiff presents evidence of the cost to repair damaged personal property, the plaintiff makes a prima[-]facie case of his right to recover those costs, and the burden then shifts to the defendant to show that recovery of the repair costs will produce an over-recovery").
[¶9] Moreover, Trial Rule 56(E) provides that affidavits supporting a motion for summary judgment shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously selfauthenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
We have previously held that an employee who reviews and relies on documents kept in the normal course of the affiant's employer's business has sufficient personal knowledge under Trial Rule 56(E) to aver to the facts stated therein. See Hussain v. Salin Bank &Trust Co., 143 N.E.3d 322, 330 (Ind.Ct.App. 2020) (providing that the custodian of records for the bank who had reviewed the relevant records had acquired the requisite knowledge to aver to the facts stated in his affidavit regarding the debt owed), trans. denied.
[¶10] With respect to the damages incurred by Farm Bureau, Horst averred that "[a]n investigation as to the amount of damages was conducted by [Farm Bureau], which then resulted in payment of damages of $373,830.54 to or on behalf of Albert McMichael for the property damages to the property at issue." Appellant's App. Vol. III p. 11. Horst's affidavit clearly set forth the amount of damages incurred by Farm Bureau. In addition to averring to the amount of damages incurred, Horst averred that she is a Farm Bureau employee "with responsibilities regarding subrogation" and that she had "relied on the documents kept in the regular course of business in the [Farm Bureau] claim file that is the subject matter of this case." Appellant's App. Vol. III p. 11. Horst also attached copies of the documents on which she had relied in calculating the total amount of damages incurred by Farm Bureau in connection with the loss.As was the case with the question of fault, we conclude that the designated evidence regarding damages is sufficient to make a prima-facie showing that there is no issue of material fact and that Farm Bureau is entitled to judgment as a matter of law.
We are unconvinced by Moberley's assertion that the documents regarding damages were inadmissible because Horst's affidavit had failed to establish that they were kept in normal course of Farm Bureau's business. As is noted above, Horst's affidavit clearly indicated that she had "relied on documents kept in the regular course of business." Appellant's App. Vol. III p. 11.
[¶11] In challenging the trial court's award of summary judgment, Moberley has not designated or pointed to any evidence which he claims demonstrated a genuine issue of material fact as to fault or damages. Given our conclusions that Farm Bureau's designated evidence is sufficient to make a prima-facie showing that Farm Bureau was entitled to judgment as a matter of law with respect to both fault and damages coupled with the lack of evidence demonstrating an issue of material fact, we cannot say that the trial court erred in granting Farm Bureau summary judgment.
While Farm Bureau presents an argument in support of its claim for prejudgment interest in its appellate brief, we note that Moberley did not challenge the portion of the trial court's order awarding Farm Bureau prejudgment interest on appeal.
[¶12] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.