CHARLENE CESTRONI, TRUSTEE OF DUFFY ASSET MANAGEMENT, LLC v. NORTHSTAR FUNDING PARTNERS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

CHARLENE CESTRONI, TRUSTEE OF DUFFY )

ASSET MANAGEMENT, LLC, )

DAVID DUFFY, )

LYNEL DUFFY, )

)

Plaintiffs, )

)

v. ) Case No. 1:22-cv-00985-TWP-KMB

)

NORTHSTAR FUNDING PARTNERS, )

)

Defendant. )

ORDER ON MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant Northstar Funding Partners' ("Northstar")

Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 (Filing No.

45). Plaintiffs Charlene Cestroni, Trustee of Duffy Asset Management, LLC (the "Trustee"), David

Duffy and Lynel Duffy (David and Lynel Duffy together, the "Duffys") (collectively, "Plaintiffs")

initiated this action after the Duffys' life insurance policy failed to perform as expected and they

terminated the policy. Plaintiffs assert claims for negligence, fraud, fraud in the inducement,

constructive fraud, and breach of contract against Northstar. For the following reasons, Northstar's

Motion for Summary Judgment is granted.

I. BACKGROUND

The following facts are not necessarily objectively true, but as required by Federal Rule of

Civil Procedure 56, the facts are presented in the light most favorable to Plaintiffs as the non-

moving parties. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Zerante v. DeLuca,

555 F.3d 582, 584 (7th Cir. 2009).

In or around 2011 or 2012, the Duffys met Parker, an independent insurance agent, through

family connections (Filing No. 48 at 3). When they met, Parker asked the Duffys if they had any

life insurance needs and mentioned several life insurance options for David Duffy, including a

premium finance life insurance policy. Id. Parker was “affiliated” with an independent marketing

organization called Simplicity Life ("Simplicity") and during his twenty-five-year career placed

all his business through Simplicity. Id. at 13. Parker had never previously sold a premium financed

life insurance program. The idea of proposing a premium finance policy came from Steve Jacobson

("Jacobson"), whom Parker knew through Simplicity. A premium finance policy is a high-

premium life insurance policy for which the insured finances the premiums through a loan. Ideally,

the high premium payments will yield returns that, over time, become large enough to not only

fund the policy premiums (eliminating the need for a loan) but also provide the insured with a

stream of income. Id.

The Duffys expressed interest in a premium finance policy, and Jacobson suggested

involving Northstar. Id.at 4. Northstar is, essentially, an insurance broker. Northstar assists

insurance agents in creating premium finance case designs for the agents' clients. Id. Jacobson

arranged an introductory phone call between David Duffy, Parker, and Kim Coulter ("Coulter"), a

representative of Northstar. During the call, Coulter presented an outline of the premium finance

process and an overview of Northstar's qualifications. Id. Coulter stated that he had worked on

hundreds, if not thousands, of premium finance deals in the past (Filing No. 48-2 at 8; Filing No.

69-5 at 6). During the call, David Duffy was shown projections for returns on a premium finance

policy issued by Allianz Insurance and Investment ("Allianz"). Parker and Coulter told David

Duffy that the projections he was being shown were "super low" and "not even realistic," because

premium finance policies through Allianz typically performed much better than projected (Filing

No. 69-5 at 7). There is no evidence that Northstar corresponded with the Duffys between this

initial phone call and the issuance of the Allianz policy at issue in 2015 (Filing No. 48 at 4).

The Duffys proceeded with obtaining a premium finance life insurance policy through

Allianz. To begin the process, Northstar provided a questionnaire1 to obtain information about

Parker and the Duffys (Filing No. 48 at 4). Parker also helped the Duffys complete a loan

underwriting form. Id. Additionally, the Duffys received several illustrations from Allianz (Filing

No. 48-6) and "quick views" from Northstar (Filing No. 48-7) projecting how the policy and

financing might work (Filing No. 48 at 5). Both the Allianz illustrations and Northstar "quick

views" state they were "prepared by" Parker for the Duffys, although Parker did not prepare them.

To fund the policy premiums, the Duffys applied for a loan through Global One Finance

("G1"). The loan would be secured by a line of credit issued by Stock Yards Bank, with the cash

surrender of the policy serving as collateral (Filing No. 48 at 6). Before Allianz issued the policy,

both Allianz and G1 performed underwriting on Plaintiffs. For the underwriting process, the

Duffys completed several forms, including a Supplement to the Life Insurance Application

Personal Finance Questionnaire (Filing No. 48-8) and a Premium Financing Disclosure Form

(Filing No. 48-9). After underwriting was completed, G1 approved and issued the loan for the first

policy year, and in April 2015, Allianz issued life insurance policy no. 60078973 (the "Policy")

(Filing No. 1-1).

After the first year of the Policy, the Duffys were notified that the cash surrender value of

the Policy was no longer sufficient to secure their G1 loan, and the Duffys were required to pay

additional monies and increase their letter of credit to obtain a loan for the next Policy year (Filing

1 The parties do not clarify whether Northstar provided this questionnaire directly to the Duffys or to Parker, but this

detail is immaterial for purposes of summary judgment.

No. 48 at 7). This same process occurred every year until March 2019, when Plaintiffs elected to

terminate the Policy. Id.

In June 2021, Plaintiffs initiated this action in state court, asserting claims for negligence,

breach of contract, fraud, fraud in the inducement, and constructive fraud against Parker and

Northstar (Filing No. 1-1). Plaintiffs' Complaint alleged, in part, that Parker was acting as an agent

of Northstar (Filing No. 48 at 7). On January 8, 2022, Plaintiffs and Parker entered into a General

Release and Confidentiality Agreement (the "Release Agreement") (Filing No. 1-2 at 9; Filing No.

69-4). On March 3, 2022, Plaintiffs and Parker filed a joint stipulation of dismissal as to Parker,

and the same day, the state court dismissed Plaintiffs' claims against Parker with prejudice (Filing

No. 1-2 at 9). The Duffys did not intend to release Northstar when they settled with and released

Parker. (Filing No. 69-3). Northstar removed this action to federal court on May 17, 2022, and

moved for summary judgment on April 7, 2023 (Filing No. 1; Filing No. 45).

II. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if "the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law." Hemsworth v. Quotesmith.com, Inc., 476 F.3d

487, 489–90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews "the

record in the light most favorable to the non-moving party and draw[s] all reasonable inferences

in that party's favor." Zerante, 555 F.3d at 584 (citation omitted). "However, inferences that are

supported by only speculation or conjecture will not defeat a summary judgment motion." Dorsey

v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted).

Additionally, "[a] party who bears the burden of proof on a particular issue may not rest on its

pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a

genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490 (citation omitted).

"The opposing party cannot meet this burden with conclusory statements or speculation but only

with appropriate citations to relevant admissible evidence." Sink v. Knox County Hosp., 900 F.

Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).

"In much the same way that a court is not required to scour the record in search of evidence

to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits

of [the] claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation

marks omitted). "[N]either the mere existence of some alleged factual dispute between the parties

nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion

for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997)

(citations and quotation marks omitted).

III. DISCUSSION

In its Motion for Summary Judgment, Northstar asserts a variety of grounds for dismissal

of Plaintiffs' claims. Northstar first argues that Plaintiffs' negligence and fraud claims, to the extent

they are premised on vicarious liability, should be dismissed because the Release Agreement with

Parker also released Northstar from vicarious liability, and because Parker was not Northstar's

actual or apparent agent. Northstar further argues that Plaintiffs' claims are all governed by a two-

year statute of limitations and are time-barred. Next, Northstar contends that Plaintiffs' fraud

claims should be dismissed because Northstar did not make any actionable misrepresentations

under Indiana law, and because Northstar disclaimed any alleged misstatements in documents

signed by the Duffys. And finally, Northstar argues that Plaintiff's breach of contract claim should

be dismissed because Plaintiffs cannot show a contract between them and Northstar.

Plaintiffs respond that the Release Agreement with Parker did not also release Northstar;

that they have sufficiently shown that Parker was Northstar's apparent agent; that their claims are

not time-barred; that they have shown actionable misrepresentations by Parker and Northstar; and

that Northstar breached an oral contract with Plaintiffs. The Court will address each of Northstar's

arguments in turn.

A. Whether Plaintiffs' Vicarious Liability Claims Must be Dismissed

Northstar first argues that it cannot be held vicariously liable for Parker's alleged

misconduct because Plaintiffs' settlement with Parker released Northstar from liability, and

because Plaintiffs cannot show that Parker was Northstar's actual or apparent agent.

1. Release Agreement with Parker

Northstar first argues that any claims against it, to the extent they are premised on vicarious

liability, must be dismissed because Plaintiffs' settlement agreement with Parker released Northstar

from liability (Filing No. 48 at 9). Plaintiffs respond that Northstar has waived the affirmative

defense of release and, even if Northstar could raise the defense, Northstar was not released by the

Release Agreement with Parker. The Court need not address whether Northstar's release defense

has been waived because this defense is unsuccessful on its merits.

Northstar argues that under Indiana law, Plaintiffs' Release Agreement with Parker

automatically released Northstar from all vicarious liability, regardless of whether Plaintiffs and

Parker intended for the Release Agreement to do so. In support of its position, Northstar cites the

general principle of Indiana law that "[i]f the servant or agent is released of liability, no liability

can be imputed to the principal." Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 883, 887

(Ind., Ct. App. 2004) (citing Grzan v. Charter Hosp. of Nw. Ind., 702 N.E.2d 786, 792 (Ind. Ct.

App. 1998)). Northstar also cites a treatise that asserts "[s]ettlement with an agent constitutes

settlement with the principal, as far as the principal's potential liability is solely derivative, no

matter what the parties may have intended." 15A C.J.S. Compromise & Settlement § 50. Plaintiffs

respond that under Pelo v. Franklin College of Indiana, 715 N.E.2d 365 (Ind. 1999), a contractual

release of liability against an agent does not necessarily release the principal, and a court must look

to the language of the release agreement to determine its scope.

In Pelo, the plaintiff was injured in a collision with a car driven by Lee in the scope of her

employment with Franklin College. Id. at 366. The plaintiff sued Lee and Franklin College, as

Lee's principal. Plaintiff later entered into a settlement and release agreement with Lee. Franklin

College then moved for summary judgment, arguing that the release of Lee operated as a release

of Franklin. Id. Franklin College relied on United Farm Bureau Mut. Ins. Co. v. Blossom

Chevrolet, 668 N.E.2d 1289 (Ind. Ct. App. 1996), "which took the view that if a party's liability is

solely derivative of a second party's liability, a release of the latter terminated the liability of the

former as a matter of law." Pelo, 715 N.E.2d at 366. That is the same view Northstar asks the Court

to take. However, the Pelo court disapproved of Blossom Chevrolet. The Pelo court explained:

The primary mischief in the Blossom Chevrolet rule is that it sets a trap for those

litigants who are unaware of the exception for cases based on derivative liability,

notwithstanding the general rule announced in Huffman that a release will operate

as the parties intended. The law is not a game where the litigant with the lawyer

who happens to know all the traps wins.

Id. at 366.

The Pelo court held that settlement and release agreements should be construed like any

other contract. "[W]hen parties sign an agreement releasing one defendant with the clearly

expressed expectation that they will be able to proceed against others, that expectation should be

given effect by the courts." Id. Stated differently, under Pelo, settlement and release agreements

with an agent do not automatically release the principal from liability. Courts must look to the

agreement itself to determine whether the parties intended to also release the principal.

On reply, Northstar argues that "post-Pelo, Indiana courts continue to follow the general

rule that 'once the servant or agent is released of liability, no negligence can be imputed to the

principal." Grzan, 702 N.E.2d 786. This principle, however, applies only where the agent has been

absolved by verdict or judgment, not by private agreement. In Grzan v. Charter Hospital of

Northwest Indiana, 702 N.E.2d 786 (Ind. Ct. App. 1998), a post-Pelo case cited by Northstar, the

Indiana Court of Appeals held that the alleged principal could not be held liable under the doctrine

of respondeat superior because the trial court had properly entered summary judgment in favor of

the alleged agent. Id. at 792. And in Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 883

(Ind. Ct. App. 2004), the Indiana Court of Appeals held that a default judgment against a principal

should be set aside because the agent's liability had not yet been decided, and the default judgment

against the principal "would allow a potentially absurd and unjust result of [the agent] being

absolved of any wrongdoing but her company . . . being held liable for that very same alleged

wrongdoing." Id. at 888. To be sure, the Indiana Supreme Court has explained that "the reason for

this general rule is that because, under the doctrine of respondeat superior, an employer has a right

of action for indemnity against an employee if the employer is found liable for the employee's

conduct, '"and such right would be defeated by a verdict and judgment which released the

[employee]."'" Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 252 (Ind. Ct. App. 2013) (emphasis

added).

Even before Pelo, the Indiana Supreme Court held that recovery against a principal is not

necessarily precluded "where the evidence shows that the negligence of [a] servant . . . who if

joined as a party is not exonerated by the verdict, has caused the injury." Health & Hospital Corp.

of Marion Cnty. v. Gaither, 397 N.E.2d 589, 260 (Ind. 1979) (emphasis added) (quoting Estes v.

Hancock Co. Bank, 289 N.E.2d 728, 730 (Ind. 1972)). The principle cited by Northstar thus applies

to situations in which the agent has been affirmatively absolved of liability, not situations like this

one, in which the agent has been released by agreement, without any final determination as to

liability.

Northstar's reliance on treatise is also unavailing (Filing No. 48 at 9 (citing 15A C.J.S.

Compromise & Settlement § 50)). The treatise's statement that a settlement with an agent

constitutes a settlement with the principal, regardless of the parties' intent, is based on cases from

Illinois and Nebraska, and it is contradictory to the Indiana Supreme Court's decision in Pelo.

Pelo is therefore controlling here. There has been no verdict, judgment, or other final

determination as to Parker's liability (Filing No. 46-1 at 3, § VI ("The Parties represent, warrant,

and agree that this Release represents the compromise of disputed claims, and that the terms,

covenants, and payments set forth in this Release are not to be construed as an admission of liability

by Parker and that all liability is expressly denied by Parker." (emphasis in original))). The

Release Agreement thus did not automatically release Northstar.

The Court must look to the language of the release agreement itself to determine whether

the Plaintiffs and Parker intended to release Northstar. Northstar argues that they did. Northstar

notes that the Release Agreement released Parker and his "affiliates," and that "[a]gency is clearly

a form of affiliation between two parties." (Filing No. 48 at 9). Northstar's argument is unavailing.

It relies on a strained interpretation of one term in a boilerplate release provision. And, more

importantly, it ignores the parties' clear and unambiguous statement in Section 1 of the release

agreement that "[c]laims against NorthStar shall remain pending and unaffected by this Release"

(Filing No. 46-1 at 2). The Release Agreement provides that the parties did not intend to release

any of Plaintiffs' claims against Northstar, so Northstar is not entitled to summary judgment on the

basis of release.

2. Actual or Apparent Agency

Northstar next argues that Plaintiffs' vicarious liability claims against Northstar must be

dismissed because Parker was not Northstar's actual or apparent agent. In their response, Plaintiffs

appear to concede that Parker was not Northstar's actual agent, but they contend that Parker was

Northstar's apparent agent.

“Vicarious liability is ‘indirect legal responsibility.’ ... It is a legal fiction by which a court

can hold a party legally responsible for the negligence of another, not because the party did

anything wrong but rather because of the party's relationship to the wrongdoer.” Sword v. NKC

Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999) (quoting Black's Law Dictionary 1404 (5th ed.

1979)). Indiana courts have imposed vicarious liability on principals for the acts of their apparent

agents. “Apparent agency may be established when a third party reasonably believes there is a

principal-agent relationship based on the principal's manifestations to the third party.” Arrendale

v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1068 (Ind. 2022); Clark, 209 N.E.3d at 448

("[A]pparent agency does not depend on the principal's express or implied authorization for the

agent to act on the principal's behalf; rather, apparent agency exists when ‘a principal's

manifestations induce a third party to reasonably believe there is a principal-relationship.'"

(quoting Arrendale, 183 N.E.3d at 1068) (citing Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d

1164, 1167 (Ind. 1989))).

In their response, Plaintiffs identify several ways in which Northstar purportedly

manifested its agency relationship with Parker (Filing No. 68 at 13). First, Plaintiffs contend that

during David Duffy's initial call with Coulter and Parker, both Coulter and Parker stated that they

were working on the deal together, and that they had done "lots of deals" together. This assertion

mischaracterizes David Duffy's deposition testimony, on which Plaintiffs rely. In his deposition,

David Duffy asserted that he "perceived" Coulter and Parker to be putting the Allianz deal together,

not that Coulter or Parker stated as much (Filing No. 69-5 at 3). Additionally, David Duffy testified

that Cold stated he had "done hundreds and hundreds" of similar insurance deals (Filing No. 69-5

at 6), but not that he had ever worked with Parker before. Specifically, David Duffy was asked:

"Mr. Coulter said that he had done previous deals of a similar nature, but he never said that he had

done these deals with Mr. Parker, correct?" David Duffy responded: "Not that I can recall as

worded that way. . . . I just assumed -- my understanding was that this was something they did all

the time, together." Id. at 9 (emphasis added). David Duffy was later asked "As you sit here today,

can you point to a specific time and a specific call or meeting where Mr. Coulter ever told you that

he had worked with Mr. Parker previously?" and David Duffy responded "I just can't recall that

right off the top of my head, no. But, I mean, I always felt that when those guys were talking

together that they had done deals together." Id. (emphasis added). David Duffy's own testimony

confirms that Coulter never told David Duffy that he and Parker "had done hundreds of thousands

of premium finance deals together," despite David Duffy's assumptions (Filing No. 68 at 22

(emphasis in original).

Plaintiffs also contend that Northstar manifested an agency relationship with Parker by

joining several conference calls and/or attending meetings with David Duffy and Parker discussing

the benefits of a premium finance policy (Filing No. 68 at 14–15). Simply being on a conference

call with another person does not imply the existence of an agency relationship. And the substance

of these calls, according to Plaintiffs, was the proposed insurance policy, not Northstar's

relationship with Parker. Neither Northstar's presence at telephonic or in-person meetings with

Parker, nor Northstar's statements about the product that Northstar was attempting to sell,

manifested an agency relationship between Northstar and Parker.

Plaintiffs further argue that Northstar "shared in the commission of the sale of the Policy

to The Duffys," but Plaintiffs cite no designated evidence showing who designed or proposed the

commission-sharing arrangement (Filing No. 68 at 15). Absent evidence that Northstar proposed

the commission-sharing arrangement, it is not a manifestation from Northstar as to agency.

Lastly, Plaintiffs argue that Northstar manifested an agency relationship with Parker by

creating several Northstar documents that appeared as though Parker had prepared them, and by

placing Parker in a position to advise the Duffys about the policy that Northstar had designed.

Specifically, Northstar created analytical models titled "Premium Financing for Life Insurance

Cost Analysis." Each model contained Northstar's logo in the bottom right corner, but stated at the

top, "Analytical Model Prepared for Dave Duffy by Jim Parker" (Filing No. 48-7 at 2–4).

On reply, Northstar argues that these models are not sufficient manifestations of an

apparent agency relationship because: (1) Plaintiffs did not identify these documents, or an

apparent agency theory, in their Complaint; (2) the models have been presented "in isolation

without a discussion of any other documents or facts"; and (3) it is undisputed that Plaintiffs knew

Parker was their agent (Filing No. 70 at 16–17). As to Northstar's first argument, Plaintiffs were

not required to cite evidence or plead specific legal theories in their Complaint (Filing No. 62

(holding Plaintiffs were not required to plead a specific agency theory in their Complaint)).

Plaintiffs' failure to specifically identify the analytical models or an apparent agency theory in their

Complaint is not a basis for rejecting Plaintiffs' arguments on summary judgment. Second,

Northstar does not explain what "other documents or facts" Plaintiffs should have identified to

provide more context to the analytical models, and underdeveloped arguments are deemed waived.

See M.G. Skinner & Assocs. Ins. Agency, Inc. v. Norman-Spencer Agency, Inc., 845 F.3d 313, 321

(7th Cir. 2017) (“Perfunctory and undeveloped arguments are waived, as are arguments

unsupported by legal authority.”); Boomer v. AT&T Corp., 309 F.3d 404, 422 n.10 (7th Cir. 2002)

(stating that where party fails to support position with any legal analysis or citation, the argument

is waived). And third, Northstar cites no caselaw supporting its position that Parker cannot be both

Plaintiffs agent, for purposes of fiduciary duties, and Northstar's apparent agent, for purposes of

vicarious liability. Indeed, doctors, lawyers, therapists, and other professionals are regularly

employed as agents of larger organizations for purposes of vicarious liability but still owe their

clients fiduciary duties.

The Court concludes that Northstar has not shown it is entitled to summary judgment on

the issue of apparent agency. Considering that Northstar prepared and distributed Northstar-

branded analytical models purportedly prepared by Parker and made Parker the Duffys' soul

resource for completing and submitting their Northstar and Allianz applications, and drawing all

reasonable inferences in Plaintiffs' favor, there exists a genuine dispute of material fact as to

whether Parker was Northstar's apparent agent. See Gallant Ins. Co. v. Isaac, 751 N.E.2d 672, 678

(Ind. 2001) ("[W]hen [the plaintiff] Isaac first acquired the Gallant policy on her [automobile], a

Thompson-Harris employee filled out Isaac's pre-printed insurance application form. After the pre-

printed application form and a pre-application checklist were signed by Isaac and the employee,

the employee told Isaac that her coverage with Gallant would be 'bound' as of June 2, 1994. . . .

[T]he evidence appears to us without dispute that Thompson-Harris had apparent authority to bind

Gallant, e.g., Gallant's dealings with Isaac just recited contained the manifestations required under

applicable case law to cause Isaac reasonably to believe that Thompson-Harris had authority to

bind Gallant." (emphasis in original)); Indy Auto Man, LLC v. Keown & Kratz, LLC, 114 N.E.3d

32, 35–36 (Ind. Ct. App. 2018) (finding law firm created apparent agency by allowing agent to use

firm's mailing address, providing agent with business cards, letterhead, and email address,

allowing agent to use Firm's contract information in court filings, and adding agent to malpractice

insurance policy); CR23, LLC v. Diamond Equipment, Inc., No. 09-cv-138, 2010 WL 5463393, at

*2 (S.D. Ind. Dec. 29, 2010) ("[B]ecause Bangle was acting as the sole negotiator and there was

no direct or indirect communication by Ireland, it was reasonable for Defendant to believe that

Bangle had authority to complete this transaction.").

B. Whether Plaintiffs' Claims are Time-Barred

Northstar next argues that all of Plaintiffs' claims are a variation of its professional

negligence claim against Parker and are therefore governed by Indiana's two-year statute of

limitations. Northstar points out that Plaintiffs filed their Complaint more than two years after all

the claims accrued and argues all claims should be dismissed as time-barred. The Court will

address whether Plaintiffs' negligence, fraud, and breach of contract claims are time-barred in turn.

1. Plaintiffs' Negligence Claim

Whether Plaintiffs' negligence claim is time-barred is a straightforward inquiry. The parties

agree that the statute of limitations for claims of professional negligence is two years. Ind. Code

§ 34-11-2-3; Overton v. Grillo, 896 N.E.2d 499, 502 (Ind. 2008); (Filing No. 68 at 16). The parties

vigorously dispute when Plaintiffs' claims first accrued, but the parties agree that the claims

accrued no later than March 2019, when the Duffys terminated the Policy (Filing No. 68 at 20

("[T]he statute of limitations on The Duffys' negligence claims did not accrue until they could no

longer meet the collateral requirements and were forced to terminate the Policy in March 2019.");

id. at 21 ("[T]he limitations period for the negligence of Parker and Northstar did not begin to run

until the Policy was terminated in March of 2019.")). Plaintiffs did not initiate this action until

more than two years later, in June 2021 (Filing No. 1-1).

However, Plaintiffs argue that Northstar is equitably estopped from raising a statute of

limitations defense because Parker and Northstar attempted to conceal that the Policy was not

performing as expected. But the doctrine of equitable estoppel (also called fraudulent concealment)

does not toll the statute of limitations indefinitely or preclude a defendant from ever asserting a

statute of limitations defense. The doctrine only "toll[s] the statute of limitations until the equitable

grounds cease to operate as a reason for delay." Ne. Rural Elec. Membership Corp. v. Wabash

Valley Power Assoc, Inc., 56 N.E.3d 38, (Ind. Ct. App. 2016); see also Obiefuna v. Hypotec, Inc.,

451 F. Supp. 3d 928, 942 (S.D. Ind. 2020) (explaining that equitable estoppel "is often referred to

as 'fraudulent concealment,' though fraudulent concealment is technically one aspect or example

of the broader doctrine of equitable estoppel"). Any alleged fraudulent concealment ended in

March 2019, when the Duffys discovered that the Policy was failing and terminated it. Plaintiffs'

negligence claims are thus untimely and must be dismissed.2

2. Plaintiffs' Fraud Claims

Plaintiffs assert claims for actual fraud, fraud in the inducement, and constructive fraud

(Filing No. 1-1 at 5–8). Northstar argues that all of these claims are barred by Indiana's two-year

statute of limitations because the fraud claims, in substance, allege professional negligence.

Whitehouse v. Quinn, 477 N.E.2d 270, 273–74 (Ind. 1985) ("[T]he appliable statute of limitations

is ascertained by identifying the nature of substance of the cause of action.") Plaintiffs respond

that their fraud claims do not arise from their allegations of professional malpractice because

several of alleged misrepresentations were made before they purchased the Policy "and before

there was even a professional relationship," and because Plaintiffs have sufficiently alleged all of

the elements of fraud (Filing No. 68 at 17–18).

To start, Plaintiffs entirely fail to support their position that a fiduciary relationship

between Plaintiffs and Parker and/or Northstar was not formed until Plaintiffs purchased the

Policy. "[A] fiduciary relationship exists when a confidence is reposed by one party in another

2 Because Plaintiffs' negligence claim is dismissed as time-barred, the Court need not and does not address Northstar's

claims regarding the admissibility of expert testimony as to Northstar's alleged duties to Plaintiffs.

with resulting superiority and influence exercised by the other." Doe v. Roman Catholic

Archdiocese of Indianapolis, 958 N.E.2d 472, 477 (Ind. Ct. App. 2011). Nevertheless, the Court

agrees that Plaintiffs' fraud and fraud in the inducement claims are distinct from their negligence

claim. In their negligence claim, Plaintiffs allege that Parker negligently failed to obtain a specific

type of insurance and ensure that policy performed as expected. Plaintiffs' actual fraud and fraud

in the inducement claims, in contrast, allege that Northstar and Parker made material

misrepresentations and omissions about the design, effect, and maintenance of the Policy with the

intent to deceive Plaintiffs, and induced the Duffys to purchase the Policy. Although this

distinction may be slight, any doubt as to what statute of limitations to apply must be resolved in

favor of applying the longer period. Wells v. Stone City Bank, 691 N.E.2d 1246, 1249 (Ind. Ct.

App. 1998). The Court thus applies the six-year statute of limitations to Plaintiffs' actual fraud and

fraud in the inducement claims, to the extent they are based on misrepresentations made before the

Duffys purchased the Policy.

Plaintiffs' fraud claims based on later misrepresentations about the Policy's performance,

however, are substantively the same as Plaintiffs' negligence claim. All of these claims arise from

the Policy's failure to perform as expected. The two-year statute of limitations therefore applies to

Plaintiffs' fraud claims arising from misrepresentations made after the Policy's issuance, and those

claims are time-barred.

Plaintiffs' claim for constructive fraud is likewise substantively the same as Plaintiffs'

negligence claim. While Plaintiffs' actual fraud and fraud in the inducement claims arise from

alleged misstatements about the Policy, Plaintiff's constructive fraud claim arises from the Policy's

failure to perform as expected, and the resultant breach of Parker's fiduciary relationship with

Plaintiffs. Specifically, the Complaint alleges:

29. Defendant Parker represented to Plaintiffs his expertise in procuring a

premium financed life insurance product thereby creating a duty to Plaintiffs

arising from the special relationship so created between Plaintiffs and Defendants.

30. Parker breached the duty by providing inaccurate, incomplete and erroneous

information and disclosures to Plaintiffs regarding the performance of the Policy

he sold to Plaintiffs and Plaintiffs['] resulting ability to maintain the Policy in force.

31. Plaintiffs justifiably relied upon Parker's misrepresentations regarding the

Policy.

32. The Policy failed to perform as represented by the Defendants.

33. As a result of such failure of the policy to perform, Plaintiffs have been

damaged by the loss of the Policy, loss of the premium investment, loss of their line

of credit and ability to borrow, interest, attorney's fees and costs.

(Filing No. 1-1 at 7 (emphasis added)).

Plaintiffs' constructive fraud claim is a restatement of their negligence claim. Both claims

allege that Parker owed Plaintiffs a duty to procure a specific insurance policy and ensure that it

performed as promised, but he breached that duty. The two-year statute of limitations therefore

applies to Plaintiffs' constructive fraud claim, and that claim is time-barred.

In their response brief, Plaintiffs argue that their fraud claims are subject to the statute of

limitations for fraud claims, and not negligence claims, because their claims adequately assert each

of the elements of a fraud claim, and applying the negligence statute of limitations would

essentially nullify the six-year statute of limitations for fraud. Plaintiffs rely on Lawyers Title

Insurance Corp. v. Pokraka, 595 N.E.2d 244 (Ind. 1992), and Wells v. Stone City Bank, 691 N.E.2d

1246 (Ind. Ct. App. 1998). Neither case is applicable here. In Lawyers Title, the defendant

allegedly failed to record a mortgage, and plaintiff sued for breach of contract. The defendant

argued that Indiana's two-year statute of limitations should apply because "'the substance of a cause

of action is ascertained by an inquiry into the nature of the alleged harm,'" and plaintiff alleged a

property harm, which is compensable under tort law. Lawyers Title, 595 N.E.2d at 246 (quoting

Whitehouse v Quinn, 477 N.E.2d 270, 274 (Ind. 1985)). The Indiana Court of Appeals disagreed,

holding that applying a statute of limitations for fraud and breach of oral contract based solely on

the type of harm alleged "would be tantamount to judicially repealing these six-year statutes of

limitations because a recovery on theories of fraud or breach of an oral contract would always

involve either personal injury or damage to property." Id. at 247. Similarly, in Wells, the defendant

argued that the two-year statute of limitations should apply to the plaintiff's breach of contract

claim because plaintiff alleged loss of reputation and loss of business income, which are personal

injuries. Wells, 691 N.E.2d at 1248. The Wells court, citing Lawyers Title, held that the two-year

statute of limitations did not apply "just because some of the consequential damages [the plaintiff]

allege[d] might be more appropriately sought in a tort action." Id. at 1250.

In sum, Lawyers Title and Wells held only that the applicable statute of limitations should

not be determined based solely on the type of harm alleged. Schuman v. Kobets, 698 N.E.2d 375,

378 n.2 (Ind. Ct. App. 1988), aff'd in relevant part, 716 N.E.2d 355, 356 (Ind. 1999) ("In Lawyers,

our supreme court rejected the contention that all claims involving personal injuries or injuries to

personal property would be governed by the two-year statute of limitations found at Ind. Code

§ 34-1-2-2(1) . . . ."). Neither case held, as Plaintiffs contend, that all adequately alleged fraud

claims are always subject to the six-year statute of limitations. Id. ("We believe that the Lawyers

court did not intent to impliedly overrule the well-established authority [holding that the substance

of an action determines the applicable statute of limitations] and, therefore, we believe that

Lawyers should be limited to its facts.").

Here, while Plaintiffs' Complaint might allege each of the elements of fraud, some of those

fraud claims are nevertheless substantively the same as Plaintiffs' negligence claim. The Court

therefore finds that Plaintiffs' actual fraud and fraud in the inducement claims based on

misrepresentations or omissions made after issuance of the Policy and Plaintiffs' constructive fraud

claim are governed by Indiana's two-year statute of limitations. As with Plaintiffs' negligence

claim, these fraud claims accrued no later than March 2019 and are therefore time-barred.

3. Plaintiffs' Breach of Contract Claim

In their Complaint, Plaintiffs allege that "Plaintiffs and Defendants entered a life insurance

contract (Policy No. 60078973[)]," and that "Defendants breached the life insurance contract"

(Filing No. 1-1 at 6–7). However, Plaintiffs appear to have abandoned their claim that Northstar

has breached the Policy, and now claim that Northstar entered into and breached an oral contract,

under which Northstar agreed to "procure a life insurance policy for The Duffys which would,

among other things, provide them with a stream of income in retirement and that would be an asset

that they could put on their balance sheet" (Filing No. 68).

Indiana state and federal courts have repeatedly held that breach of contract claims against

insurance agents alleging a failure to obtain particular insurance coverage are, in substance,

negligence claims. See Lift–A–Loft Corp. v. Rhodes-Roper-Love Ins. Agency, Inc., 975 F.2d 1305,

1309 (7th Cir. 1992) (observing that “a review of the record reveals that the allegations” of the

plaintiff's breach of contract count “are vague at best and simply restate [the plaintiff's] claim for

negligence” and holding that Indiana's two-year statute of limitations applied); Page v. Hines, 594

N.E.2d 485, 486–87 (Ind. Ct. App. 1992) (holding that breach of contract claim against insurance

agent alleging failure to procure particular type of insurance coverage sounded in negligence and

was subject to the two-year statute of limitations); Butler v. Williams, 527 N.E.2d 231, 232–34

(Ind. Ct. App. 1988) (stating that "appellees have not provided . . . any details about the nature of

the contract they claim was breached," and that "[t]he nature of substance of the cause of action is

negligence in failing to obtain a particular type of insurance coverage," so the two-year statute of

limitations applied).

Plaintiffs contend that Northstar breached an oral contract with them by failing to procure

an insurance policy that would achieve the Duffys' retirement goals (Filing No. 68 at 28). Under

well-settled Indiana law, this type of breach of contract claim sounds in negligence and is governed

by Indiana's two-year statute of limitations. Plaintiffs' breach of contract claim is therefore time-

barred and must be dismissed.

C. Whether Plaintiffs Have Shown Actionable Misrepresentations

Northstar next argues that Plaintiffs' fraud claims must be dismissed because Plaintiffs

cannot identify any actionable misrepresentation by Northstar. In response, Plaintiffs identify

seven alleged misrepresentations made by Northstar and/or Parker on which the Duffys allegedly

relied to their detriment. The Court will address each alleged misrepresentation in turn.

1. Misrepresentation about Parker and Coulter's Prior Deals

First, Plaintiffs assert "Parker and Kim Coulter told David Duffy that they had done

hundreds or thousands of premium finance deals together" (Filing No. 68 at 22 (emphasis in

original)). To the extent Parker made this misstatement, Northstar is not vicariously liable because

the misstatement was made before Parker was Northstar's apparent agent. As explained above, any

apparent agency relationship arose when Northstar provided the Duffys with analytical models

purportedly prepared by Parker, and when it placed Parker in a position to help the Duffys

complete and submit their policy application and underwriting paperwork. All of these

manifestations occurred after the introductory phone call between David Duffy, Parker, and

Coulter. At the time of the introductory call, the only manifestation of an agency relationship

between Northstar and Parker was Parker's alleged statement that he had worked with Northstar in

the past. But a statement by an agent cannot create an apparent agency relationship. Arrendale,

183 N.E.3d at 1068.

Northstar cannot be held directly liable for this alleged misstatement, either. Again, as

explained above, the designated evidence shows that Coulter never told David Duffy that Northstar

had previously worked with Parker. Northstar is therefore neither derivatively nor directly liable

for the alleged misstatement about Coulter and Parker's past work together.

2. Misrepresentation about Policy Being Listed on Balance Sheet

Second, Plaintiffs assert that Coulter and Parker misrepresented to David Duffy "that the

Policy at issue could be listed as an asset on his balance sheet" (Filing No. 68 at 23). However,

there is no designated evidence supporting Plaintiff's assertion. In his deposition, David Duffy

testified that Parker told him generally that "people put [the value of similar policies] . . . on their

asset sheet," (Filing No. 69-5 at 24), not that the Duffys could put the value of the Policy at issue

on their balance sheet. Parkers deposition confirms that he never made any such statement, though

he believes a former employee at Stock Yards Bank did (Filing No. 69-6 at 64 ("Q: Did you ever

tell the Duffys that that the accumulated value of the life insurance policy could be added to their

asset column on any balance sheet? A: I didn't tell them that, no."). None of the designated

evidence shows that Coulter ever made any such misrepresentation. Northstar is therefore not

derivatively or directly liable for this second alleged misstatement.

3. Misrepresentation about Design of Policy

Third, Plaintiffs state that "Northstar and/or Parker told David Duffy that the premium

finance life insurance program was designed to create a stream of income in retirement when, in

fact, such was not true" (Filing No. 68 at 23). Plaintiffs cite designated evidence supporting this

contention, and Northstar does not offer any opposing evidence. Instead, Northstar argues that any

such misrepresentation about the design of the Policy "is directly contrary to the documents that

were previously referenced and which the Duffys signed shortly before Allianz issued the Policy"

(Filing No. 70 at 17–18). Northstar appears to refer to the Allianz Supplement to the Life Insurance

Application Personal Financial Questionnaire ("Supplemental Application"), which Plaintiffs

signed on March 5, 2015 (Filing No. 48-8). Northstar essentially argues that Plaintiffs' reliance on

any misstatement about the purpose of the Policy could not have been reasonable in light of the

information contained in the Supplemental Application. The Court agrees.

In Indiana, "[t]he traditional rule has been that reliance is not justified where the injured

party has a written instrument available and fails or neglects to read it." Plough v. NN Investors

Life Ins. Co., Inc., 583 N.E.2d 1233, 1237 (Ind. Ct. App. 1992). Indiana courts have made an

exception to this rule for complex insurance contracts. In Medtech Corporation v. Indiana

Insurance Company, 555 N.E.2d 844 (Ind. Ct. App. 1990), transfer denied, the Indiana Court of

Appeals stated that "[g]iven the complexity of today's insurance contracts [the court] cannot say

as a matter of law, that such reliance [on contrary statements by an agent is] unjustified." Id. at

850. Accordingly, "whether a party's reliance upon an agent's representations is reasonable even

though he failed to exercise the opportunity to read the policy is a question of fact for the

factfinder." Plough, 583 N.E.2d at 1237.

However, this exception is limited, as the Court of Appeals explained in Wiggam v.

Associates Financial Services of Indiana, Inc., 677 N.E.2d 87 (Ind. Ct. App. 1997). In Wiggam,

the plaintiffs, Mr. and Mrs. Wiggam, applied for a personal loan from defendant Associates

Financial Services of Indiana, Inc. ("AFS"). During the application process, AFS offered to

procure single credit life insurance ("Credit Life insurance") and credit accident and health

insurance ("Credit Disability insurance") on the loan, which would make payments on the loan if

the Wiggams became disabled and could not pay. The Wiggams decided to purchase the insurance,

which was reflected on the Wiggams' two-page loan application. A portion of the application, titled

"INSURANCE," showed Mr. Wiggam's signature next to the premium amounts and under the

respective sentences, "I want single credit life insurance," and "I want credit accident and health

insurance." Id. at 88.

A couple of years later, the Wiggams applied for a second personal loan through AFS. The

AFS employee who assisted the Wiggams with this transaction offered to procure the same Credit

Life and Credit Disability insurance that covered the Wiggams' first loan, and the employee

ensured the Wiggams that if one of them became disabled, the insurance would continue making

payments on the second loan. The Wiggams completed a second loan application form, which was

identical to the two-page application for the first loan. In the "INSURANCE" section of the second

application, Mr. Wiggam signed next to the premium for the Single Credit life insurance and under

the words "I want single credit life insurance." However, the stated premium for the credit accident

and health insurance was "–0–," and Mr. Wiggam did not sign under the words "I want credit

accident and health insurance." Id. at 88–89.

A few years later, Mr. Wiggam became totally disabled, and the Wiggams made a claim to

AFS for Credit Disability insurance benefits. AFS informed the Wiggams that they had Credit

Disability insurance for only the first loan and not the second loan. The Wiggams filed suit against

AFS, alleging negligence, estoppel, and fraud. The trial court granted summary judgment in favor

of AFS. The Wiggams appealed, arguing that under Medtech, the Wiggams' reliance on the AFS

employees' misrepresentations about their insurance coverage were reasonable despite the terms

of the second loan application. AFS responded that Medtech did not apply because the case did

not involve a complex insurance contract. The Wiggam court agreed with AFS:

The court explained that the holding in Medtech was justified by the nature and complexity

of insurance contracts . . . . [T]he exception described in Medtech simply has no application here.

This case does not involve the terms of a complex insurance policy. Rather, it involves a few clear

terms in a two-page application for insurance. Nor is this a contract of adhesion under which one

must accept the terms of a pre-printed insurance policy as they are written or decline coverage

altogether. It is clear from the face of the loan application that, while the Wiggams may not have

had any meaningful choice as to the terms of the Credit Life or Credit Disability policies, they

were free to choose whether or not their loan would be covered by either of these policies.

Wiggam, 677 N.E.2d at 91.

Here, the document contradicting Parker and Northstar's purported misrepresentations

about the design of the Policy is not a complex insurance contract, like the contracts in Medtech

or Plough. Rather, it is the simple, two-page Supplemental Application, like the application in

Wiggam. On the second page of the Supplemental Application, the applicant is asked to identify

the purpose of the policy. That portion is shown below:

ClincomeReplscement CRetirementincome [Xilestate Preservation C) Finalexpenses

() Charitable Giving— Provide annual donationamount □□

Ui Mortgage Protection - Provide mortgage amount = §

(Debt repayment/loan protection -Loanamount § (Provide a copy of the loan)

CQ) other:

(Filing No. 48-8 at 3). The Duffys could have checked the "Retirement Income" box, which was

the purpose they had intended the Policy to serve, but they instead checked the "Estate

Preservation" box. It is clear from the face of the Supplemental Application that the purpose of the

Policy was estate preservation, not retirement income. As such, as a matter of law, Plaintiffs could

not reasonably have relied on Parker and Northstar's alleged assurance that the Policy was designed

to create retirement income.

4. Implicit Misrepresentation about Parker's Qualifications

Fourth, Plaintiffs argue that by presenting the Duffys with illustrations purportedly

prepared by Parker, Northstar and Parker "implicitly represent[ed] that Parker had the skill,

24

expertise and knowledge to advise The Duffys about their investment," even though Parker did

not prepare any of the illustrations (Filing No. 68 at 23). Northstar replies that Plaintiffs have not

identified any misrepresentation, "but merely a legal argument attempting to extrapolate

illustrations that indicate they are estimates into a 'representation' about Parker" (Filing No. 70 at

18). The Court again agrees with Northstar.

Plaintiffs have not identified any statement or omission by Northstar. They have identified

only the Duffys' assumptions, and they offer no caselaw supporting their position that implied

assertions or assumptions can form the basis of a fraud claim. Indiana caselaw clearly holds that

fraud claims must be based on an affirmative misrepresentation or an omission. Northstar's alleged

"implicit[]" misrepresentation about Parker's qualifications is neither of those, so it cannot form

the basis for a fraud claim.

5. Misrepresentation about Parker's Title

The next alleged misrepresentation is a similar implied misstatement that is not actionable.

Plaintiffs state that Parker signed the Northstar illustrations as a "Financial Professional," despite

admitting that "he was not an accountant, nor a financial planner or even a financial advisor," that

the financial risks associated with a premium financed life insurance were "'way out of his league,'"

and that "he was unable to render advice to The Duffys as to whether to purchase the Policy

because he was not qualified" (Filing No. 68 at 23). Plaintiffs appear to argue that the illustration's

use of the phrase "financial professional" implied that Parker was qualified to advise the Duffys

regarding the Policy. For the reasons explained above, the Duffy's assumptions about Parker's

qualifications based on the phrase "financial professional" are not an actionable misrepresentation

or omission on which to base their fraud claims.

6. Misrepresentation about Performance of Policy

Plaintiffs assert that "[a]fter the policy at issue was issued, Parker repeatedly told David

Duffy that the Policy was performing well when, in fact, it was failing" (Filing No. 68 at 23).

Northstar replies that this allegation "do[es] not relate to Northstar" but does not address whether

the statement is actionable. As an initial matter, for the reasons discussed above, Plaintiffs' fraud

claims based on misrepresentations made after issuance of the Policy are time-barred. But even

assuming the fraud claims based on these post-issuance misrepresentations were not time barred,

they still would not survive summary judgment because Plaintiffs have not identified the alleged

misrepresentations with adequate particularity.

Federal Rule of Civil Procedure 9(b) states that "[i]n alleging fraud or mistake, a party must

state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. Pro. 9(b). To

plead with the requisite particularity, the plaintiff must provide more than conclusory allegations,

see Robin v. Arthur Young & Co., 915 F.2d 1120, 1127 (7th Cir.1990), and detail "the who, what,

when, where, and how." DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990). Stated

differently, the plaintiff must "identi[fy] . . . the person making the misrepresentation, the time,

place, and content of the misrepresentation, and the method by which the misrepresentation was

communicated to the plaintiff." Kennedy v. Venrock Assocs., 348 F.3d 584, 593 (7th Cir. 2003)

(citation omitted).

In their Complaint and response brief, Plaintiffs identify only the "who"—Parker—and the

"what"—the Policy's performance (Filing No. 1-1 at 7 (alleging Parker "provid[ed] inaccurate,

incomplete and erroneous information and disclosures to Plaintiffs regarding the performance of

the Policy"); Filing No. 68 at 23). Plaintiffs do not identify when Parker made these alleged

statements, beyond the general allegation that they were made "repeatedly" throughout several

years following the Policy's issuance. Plaintiffs likewise do not specify where Parker or David

Duffy were when the statements were made, or the method by which Parker made them.

Plaintiffs' designated evidence does not provide this necessary information, either.

Plaintiffs cite only David Duffy's affidavit, in which he states that during the first three to four

years of the Policy, "James Parker repeatedly told [him] that [the] investment was doing very well

and was performing as expected" (Filing No. 69-3 at 1). This assertion does not state when, where,

or how Parker made the alleged misrepresentations about the Policy's performance, and Plaintiffs

have therefore failed to satisfy Rule 9's particularity requirement. In the absence of adequate

pleading and evidence, Northstar is entitled to summary judgment. See Young v. Indianapolis

Metro. Police Dep't, No. 22-cv-00301, 2023 WL 3848377, at *7 (S.D. Ind. June 6, 2023) (granting

summary judgment to defendants on fraud claim because statement that "[p]laintiff was told [she]

was going to the hospital to have a rape kit done at a hospital" did not satisfy the Rule 9 heightened

pleading requirement); Wine & Canvas Development LLC v. Weisser, No. 11-cv-01598, 2014 WL

4053928, at *15 (S.D. Ind. Aug. 15, 2014) (granting summary judgment to defendant because

plaintiff failed to plead fraudulent misrepresentation with sufficient particularity).

7. Misrepresentation about Monthly Policy Premiums

Plaintiffs lastly claim that "Parker and/or Northstar advised The Duffys that their supposed

$2000 per month investment was an 'investment' but it was actually a loan interest payment"

(Filing No. 68 at 23). Plaintiffs do not cite any designated evidence supporting this assertion. David

Duffy's deposition, though, directly contradicts it. In his deposition, David Duffy was asked "Did

anybody tell you what the $2,000 payment was for?" and David Duffy responded "No. They just

told -- I thought it was for putting into -- to help feed the fund" (Filing No. 69-5 at 25 (emphasis

added)). The undisputed evidence shows that neither Parker nor Northstar made a

misrepresentation to David Duffy about their monthly premium being an "investment."

Because Plaintiffs have failed to identify any actionable misrepresentation by Parker or

Northstar, Northstar is entitled to summary judgment on Plaintiffs' fraud claims that are not time-

barred.

D. Whether an Oral Contract Existed

Northstar lastly argues that Plaintiffs' breach of contract claim must be dismissed because

it fails to identify a contract between Plaintiffs and Northstar (Filing No. 48 at 32). Northstar asserts

that Plaintiffs' breach of contract claim, as alleged in the Complaint, is based on the Policy between

Plaintiffs and Allianz, and does not apply to Northstar. Northstar continues that instead of

conceding that they have no contract claim against Northstar, Plaintiffs have post-hoc constructed

a claim for breach of oral contract, which Plaintiffs and Northstar allegedly formed through "the

sum of the written communications, emails, oral representations, and actions of [sic] the part of

Northstar, including its agent, James Parker" (Filing No. 48). Northstar argues that this breach of

oral contract claim should be dismissed as insufficiently pled. Id.

Plaintiffs respond that they have adequately alleged the basic elements of contract

formation: offer, acceptance, and consideration. They state:

Northstar offered to provide a life insurance policy for The Duffys which would,

among other things, provide them with a stream of income in retirement and that

would be an asset that they could put on their balance sheet. As is obvious from the

conduct of the parties discussed throughout the Response, The Duffys accepted

Northstar's offer. Northstar received consideration in the form of a commission

from the sale of the life insurance policy to The Duffys.

(Filing No. 68 at 28).

As an initial matter, the Court notes that Plaintiffs' breach of contract claim is untimely and

must be dismissed for that reason. But even if the claim were timely, the Court agrees with

Northstar that it is insufficiently alleged.

"An oral or written contract to procure insurance requires a meeting of the minds on five

critical elements: '(1) the subject of the insurance; (2) the risk or peril insured against (3) the

amount of coverage; (4) the limit and duration of the risk; and (5) the amount of premium to be

paid." Ind. Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 269 (Ind. 2015).

The Plaintiffs’ claim for breach of oral contract, as alleged in their response brief, only generally

alleges the goals of the insurance policy Northstar agreed to procure. It does not contain factual

allegations adequate to plead a claim for breach of oral contract. Plaintiffs’ breach of contract claim

against Northstar is therefore subject to dismissal for this additional reason.

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Defendant Northstar Funding

Partners’ Motion for Summary Judgment (Filing No. 45). Plaintiffs Charlene Cestroni, Trustee of

Duffy Asset Management, LLC, David Duffy, and Lynel Duffy's claims against Northstar are

DISMISSED on summary judgment. With no other claims remaining to be adjudicated, all other

pending motions (Filing No. 55, Filing No. 82, Filing No. 93, Filing No. 102, Filing No. 103 and

Filing No. 104) are DENIED as moot, and the final pretrial conference and the trial are

VACATED. Final judgment will issue under separate order.

SO ORDERED.

Date: = 12/28/2023 \ an \ 4

Hon. Tan¥a Walton Pratt, Chief Judge

United States District Court

Southern District of Indiana

29

Distribution:

E. Davis Coots

COOTS HENKE & WHEELER, P.C.

dcoots@chwlaw.com

Joseph Reel Delehanty

Dickinson Wright PLLC

jdelehanty@dickinson-wright.com

Logan J. Mayfield

Dickinson Wright PLLC

lmayfield@dickinsonwright.com

David A Owen

Dickinson Wright PLLC

dowen@dickinsonwright.com

Jeffrey S. Zipes

COOTS HENKE & WHEELER

jzipes@chwlaw.com