The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 09 2018, 8:41 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
Brett M. Haworth Rick L. Weil
David M. Henn Reminger Co., L.P.A.
Henn Haworth Cummings & Page Indianapolis, Indiana
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ashley Poythress and February 9, 2018
LaVenita Burnett, Court of Appeals Case No.
Appellants-Plaintiffs, 49A05-1708-CT-1823
Appeal from the Marion Superior
v. Court
The Honorable Gary L. Miller,
Esurance Insurance Company, Judge
Appellee-Defendant. Trial Court Cause No.
49D03-1412-CT-39694
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 1 of 15
Case Summary and Issues
[1] Ashley Poythress and LaVenita Burnett (collectively, “Appellants”) appeal the
trial court’s entry of summary judgment in favor of Esurance Insurance
Company. Appellants raise two issues for our review: 1) whether the trial court
abused its discretion in denying Appellants’ motion to strike; and 2) whether
the trial court erred in entering summary judgment in favor of Esurance.
Concluding the trial court did not err, we affirm.
Facts and Procedural History
[2] Esurance Insurance Company issued a car insurance policy to Poythress on
January 28, 2013. The Esurance Policy Declarations page lists Poythress and
her vehicle, a 2002 Buick Park Avenue, as covered under the insurance policy.
On July 28, 2013, Poythress and her mother, LaVenita Burnett, were involved
in a car accident in Cincinnati, Ohio. Poythress and Burnett were passengers in
a friend’s vehicle that was struck by a car owned by Jonathan Tarter. The
driver of Tarter’s vehicle fled the scene of the accident.
[3] On December 5, 2014, Appellants filed their complaint for damages against
Esurance and Tarter alleging that, among other things, Esurance breached the
contract by failing to compensate the Appellants pursuant to the policy’s
uninsured motorist coverage. On May 20, 2015, Esurance filed its motion for
summary judgment arguing the policy provides no coverage to the Appellants
under these facts, and, even if the policy did apply, Poythress rejected uninsured
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 2 of 15
motorist coverage. In support of its motion, Esurance designated the car
insurance policy, the police report, an affidavit of an Esurance supervisor, the
transcript of the sales call between Poythress and an Esurance representative,
the Esurance Policy Viewer application, and an Indiana Auto Supplement. The
Indiana Auto Supplement is an electronically signed document rejecting
uninsured and underinsured motorists coverage. Next to the statements, “I
wish to reject uninsured/underinsured motorists bodily injury coverage in its
entirety[,]” and “I wish to reject uninsured motorist property damage coverage
in its entirety[,]” are the initials “AP[.]” Appellants’ Appendix, Volume 2 at
53. The document was electronically signed by “Ashley Poythress” on January
28, 2013. Id.
[4] On July 22, 2015, Appellants filed a motion to strike portions of the affidavit of
the Esurance supervisor and a motion in opposition to Esurance’s motion for
summary judgment. Appellants’ motion opposing summary judgment alleged
the policy does provide coverage to the Appellants and that there was no valid
rejection of uninsured motorist coverage under Indiana law. On August 11,
2015, the trial court granted Esurance’s motion for summary judgment.
Appellants now appeal.1
1
Appellants timely filed an appeal of the trial court’s summary judgment order on September 4, 2015. This
court dismissed Appellants’ appeal concluding the trial court’s order was not a final judgment. Poythress v.
Esurance Ins. Co., No. 49A05-1509-CT-1363 (Ind. Ct. App. Feb. 19, 2016). On July 6, 2017, the trial court
entered default judgment against Tarter making the judgment a final judgment.
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 3 of 15
Discussion and Decision
I. Motion to Strike
[5] Appellants first allege the trial court abused its discretion by denying their
motion to strike portions of the affidavit of Jennifer Patten, an Esurance
supervisor. Patten’s affidavit states, in relevant part,
3. I have extensively reviewed the audio recording of
[Poythress’s] phone call from January 28, 2013 as well as
her online Esurance Policy application that she completed
on January 28, 2013 . . . .
4. Based on my review, I have reached the following
conclusions:
i) Prior to calling Esurance to purchase insurance,
[Poythress] obtained a price quote online;
ii) [Poythress] then called Esurance to gather
additional information and purchase insurance
coverage for her motor vehicle;
iii) [Poythress] was fully advised of the coverage
options during her phone conference with the
Esurance sales agent. The sales agent reviewed all
the selected coverage options and the denied
coverage options;
iv) Based on her coverage selections, [Poythress] was
advised that she had not selected uninsured motorist
coverage. The sales agent specifically informed
[Poythress] that she did not select uninsured
motorist coverage to which [Poythress] replied,
“OK”;
v) [Poythress] completed the on-line application,
including submitting an electronic signature that
confirmed her acceptance of the policy terms, and a
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 4 of 15
specific rejection of uninsured motorist coverage
option.
5. It is my professional opinion, based on my education,
training, and experience as a supervisor at Esurance
Insurance Company, as well as my personal knowledge of
the facts and evidence of this case, that [Poythress]
personally declined coverage for uninsured motorist
coverage both verbally during the recorded call, and by
virtue of her completed on-line application.
Appellants’ App., Vol. 2 at 93-94. Appellants argue the trial court erred in
failing to strike paragraphs 4v and 5.
[6] We review a trial court’s evidentiary decisions for an abuse of discretion.
McCutchan v. Blanck, 846 N.E.2d 256, 260 (Ind. Ct. App. 2006). A trial court
abuses its discretion when its decision is clearly against the logic and effect of
the facts and circumstances before the court. Id. Further, affidavits in support
of 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.” Ind. Trial Rule 56(E).
[7] As to paragraph 4v, Appellants state there is “no foundation in the Affidavit
that Ms. Patten saw or has any personal knowledge that [Poythress], herself,
completed on-line documents, or that Ms. Patten has any sort of computer or
special expertise that would allow her to know who completed online
documents.” Appellants’ Brief at 9. However, Patten does not purport to have
witnessed Poythress fill out the application. Patten’s affidavit unambiguously
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 5 of 15
states her opinion is based on her personal review of this case, including a
review of the audio recording of the sales call and the online application.
Additionally, we note the audio recording, reviewed by Patten, establishes that
an Esurance sales agent reviewed Poythress’s insurance selections with her.
Esurance [Agent]: I have the 25,000/50,000, property damage at
10,000, and then I got the comp [sic] and
collision deductibles at 500.
[Poythress]: Okay.
***
Esurance [Agent]: The only thing that you did not select would
be medical payments, uninsured motorist
bodily injury, uninsured motorist property
damage, for right now, and no custom parts
and equipment for the vehicle itself. That’s
the only thing that you did not select today.
[Poythress]: Okay.
Appellants’ App., Vol. 2 at 77-78. Poythress does not claim she did not make
this phone call and this information, combined with Patten’s personal review of
the other materials and her training and experience, is sufficient for her to
competently testify about the matters contained in paragraph 4v. Thus, the trial
court did not abuse its discretion in failing to strike this paragraph from the
affidavit.
[8] As to paragraph 5, Appellants assert Patten provided “expert testimony”
without sufficient foundation to be qualified as an expert. Appellants’ Brief at
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 6 of 15
10. Simply put, Patten did not provide expert testimony or purport to do so;
rather, Patten’s opinion is rationally based on her perception of the relevant
materials regarding Poythress’s insurance and is helpful to determine a fact at
issue—whether Poythress filled out the online application. Ind. Evidence Rule
701. The trial court did not abuse its discretion in failing to strike this
paragraph from Patten’s affidavit.2
II. Summary Judgment
[9] Appellants also allege the trial court erred in granting summary judgment in
favor of Esurance. Specifically, Appellants argue Poythress did not reject
uninsured motorist coverage in writing as required by Indiana Code section 27-
7-5-2; therefore, by operation of law, the policy contains uninsured motorist
coverage.3
[10] We review the grant or denial of summary judgment de novo. Hughley v. State,
15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment is appropriate if the
designated materials show there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Sedam v. 2JR Pizza
2
Appellants also allege the Esurance Policy Viewer Application is hearsay. See Appellants’ App., Vol. 2 at
95. On appeal, “[e]ach contention must be supported by citations to the authorities, statutes, and the
Appendix or parts of the Record on Appeal relied on[.]” Ind. Appellate Rule 46(A)(8)(a). Appellants do not
engage in any substantive hearsay analysis or point to any case law supporting their argument. “A party
generally waives any issue for which it fails to develop a cogent argument or support with adequate citation
to authority and portions of the record.” Romine v. Gagle, 782 N.E.2d 369, 386 (Ind. Ct. App. 2003), trans.
denied. We find Appellants have waived review of this issue.
3
Indiana Code section 27-7-5-2(a) states “uninsured and underinsured motorist coverages must be provided
by insurers . . . unless such coverages have been rejected in writing by the insured.”
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 7 of 15
Enters., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). The moving party must first
demonstrate the “absence of any genuine issue of fact as to a determinative
issue . . . .” Hughley, 15 N.E.3d at 1003 (citation omitted). Then, the non-
moving party must “come forward with contrary evidence” demonstrating an
issue to be resolved by the trier of fact. Id. (citation omitted).
[11] Appellants attempt to demonstrate a genuine issue of material fact regarding
whether Poythress rejected uninsured motorist coverage by stating that
“Poythress never signed any documents when purchasing her policy of
insurance from Esurance. Poythress never reviewed nor finalized any
documents online when purchasing her policy of insurance with Esurance.”
Appellants’ Br. at 14. These assertions stem from Poythress’s deposition
testimony.
[Esurance]: How did you get the terms on what would be
covered and – well, you wanted everything covered.
How did you work that out; on the phone?
[Poythress]: Yes, on the phone.
[Esurance]: How many phone calls were there?
[Poythress]: One.
[Esurance]: There wasn’t a second call?
[Poythress]: No.
***
[Esurance]: Did you go on the computer and click on exactly
what you wanted and confirm it?
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 8 of 15
[Poythress]: No.
[Esurance]: You never initiated or finalized this policy via
computer?
[Poythress]: No.
***
[Esurance]: So as you sit here today, you have no recollection of
ever entering any confirmation, finalization,
anything via computer for this insurance policy; is
that true?
[Poythress]: That’s correct.
[Esurance]: As far as you’re concerned, you had a phone call
and then Esurance sent you documents in the mail?
[Poythress]: Yes.
***
[Esurance]: So you never signed any documents from Esurance
where you actually signed and sent [the documents]
back?
[Poythress]: No.
Appellants’ App., Vol. 2 at 131-34.
[12] In Hughley v. State, the State sought civil forfeiture of the defendant’s money and
vehicle after he was convicted of dealing in cocaine. 15 N.E.3d at 1005. There,
our supreme court held that the defendant’s self-serving affidavit denying the
State’s allegations was sufficient to defeat the State’s motion for summary
judgment. Id. However, Hughley did not overrule a line of cases which state a
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 9 of 15
party cannot create a genuine issue of material fact by submitting sworn
testimony that contradicts his or her own prior testimony. 5200 Keystone Ltd.
Realty, LLC v. Netherlands Ins. Comp., 29 N.E.3d 156, 163 (Ind. Ct. App. 2015),
trans. denied.
[13] In Gaboury v. Ireland Rd. Grace Brethren, Inc., 446 N.E.2d 1310 (Ind. 1983), a
plaintiff submitted an affidavit in response to the defendant’s motion for
summary judgment that directly contradicted statements the plaintiff had made
in a previous deposition. Our supreme court held that the affidavit did not
create a genuine issue of material fact and concluded that a party cannot create
such an issue simply by submitting an affidavit contradicting his or her own
prior testimony. Id. at 1314.
[14] We applied this rule in Crawfordsville Square, LLC v. Monroe Guar. Ins. Co., 906
N.E.2d 934, 939 (Ind. Ct. App. 2009), trans. denied, to resolve a conflict between
an affidavit and a letter written by the plaintiff prior to litigation. There, we
determined the property buyer could not create a genuine issue of material fact
by designating an affidavit disclaiming knowledge of environmental
contamination on the land that conflicted with the earlier letter he had written
informing the seller of the contamination and the need for corrective action. Id.
We disregarded the affidavit and held the plaintiff failed to establish a genuine
issue of material fact. Id.
[15] We have similar reason to disregard Poythress’s sworn testimony. Poythress’s
deposition testimony stated she completed the entire insurance transaction
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 10 of 15
during one phone call with Esurance. She testified that she never used a
computer or mailed documents to Esurance and she never signed or reviewed
any documents. However, Poythress’s testimony is undercut by the transcript
of her phone call with the Esurance agent and the Esurance Policy Viewer
Application. First, the transcript of the sales call between Poythress and the
Esurance agent strongly suggests this was not their first communication and
that Poythress took affirmative action in procuring insurance before the sales
call.
Esurance [Agent]: All right. So I’m going to pull your quote
back up here. So did you get a chance to talk
to [LaVenita Burnett]?
[Poythress]: Yes.
***
Esurance [Agent]: I have the 25,000/50,000, property damage at
10,000, and then I got the comp and collision
deductibles at 500.
[Poythress]: Okay.
Esurance [Agent]: And I have emergency road service at $75 per
tow, maxing out at 450.
[Poythress]: Okay.
***
Esurance [Agent]: The only thing that you did not select would be
medical payments, uninsured motorist bodily
injury, uninsured motorist property damage . . . .
That’s the only thing that you did not select
today.
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 11 of 15
[Poythress]: Okay.
Appellants’ App., Vol. 2 at 74, 77-78 (emphasis added). The transcript
illustrates the sales agent reaffirming what Poythress has already selected, not
asking her what insurance she desires; therefore, there must have been some
prior action on Poythress’s part to procure insurance. Second, the Esurance
Policy Viewer Application contains information that was not specifically given
by Poythress over the phone to the Esurance agent, such as the make and
model of her vehicle, her date of birth, marital status, and gender.4 Thus,
Poythress’s sworn statement that the entire transaction occurred over a single
phone call is not well taken.
[16] Finally, Esurance submitted an Indiana Auto Supplement in support of its
motion for summary judgment. This document is a rejection of uninsured
motorist coverage and is electronically signed by “Ashley Poythress.”
Appellants’ App., Vol. 2 at 53. Appellants make no challenge to this document
other than to argue an electronic signature is not valid to reject uninsured
motorist coverage.
[17] Indiana’s Uniform Electronic Transactions Act (“UETA”) “applies to
electronic records and electronic signatures that relate to a transaction.”
4
We also note the inconsistency with Appellants’ argument Poythress never signed any documents. If we
were to embrace this argument, Poythress would have no insurance policy at all, let alone a claim to
uninsured motorist coverage.
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 12 of 15
Indiana Code § 26-2-8-103(a). An “electronic record” means a “record created,
generated, sent, communicated, received, or stored by electronic means.”
Indiana Code § 26-2-8-102(9). An “electronic signature” is an “electronic
sound, symbol, or process attached to or logically associated with an electronic
record and executed or adopted by a person with the intent to sign the
electronic record.” Indiana Code § 26-2-8-102(10). The UETA applies to
transactions among parties that have agreed to conduct transactions
electronically. A customer and a business are presumed to have agreed to
conduct transactions electronically unless the governing documents of a
business limit or prohibit such action or the business entity expressly states
another method of conducting business. Indiana Code § 26-2-8-104(b). A
signature may not be denied legal effect or enforceability solely because it is in
electronic form. Indiana Code § 26-2-8-106(a). If the law requires a signature,
the law is satisfied with respect to an electronic record if the electronic record
includes an electronic signature. Indiana Code § 26-2-8-106(d). “An . . .
electronic signature is attributable to a person if it was the act of the person.
The act of the person may be proved in any manner . . . .” Indiana Code § 26-
2-8-108(a).
[18] Indiana law is clear that electronic signatures are given the same legal effect as
all other types of signatures and Esurance submitted the Indiana Auto
Supplement containing Poythress’s electronic signature. The document is dated
January 28, 2013, the same date Poythress obtained her underlying insurance
policy. Moreover, the Esurance agent on the sales call specifically reaffirmed to
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 13 of 15
Poythress that she had not selected uninsured motorist insurance. Poythress
accepted that notion as correct, which is consistent with the uninsured motorist
coverage rejection form. The Indiana Auto Supplement is a valid rejection, in
writing, of uninsured motorist coverage.
[19] Because we have determined the Indiana Auto Supplement is a valid rejection
of uninsured motorist coverage by Poythress, Esurance met its initial burden of
demonstrating the absence of any genuine issue of fact of a determinative issue.
Hughley, 15 N.E.3d at 1003. The law, then, burdens Appellants to come
forward with contrary evidence demonstrating a genuine issue to be determined
by the trier of fact. Id. Appellants have failed to produce any evidence
sufficient to show Poythress did not reject the coverage. Further, Appellants’
argument Poythress did not agree to conduct transactions electronically does
not create an issue of fact regarding whether she rejected the coverage.5 The
trial court did not err in granting summary judgment in favor of Esurance.
Conclusion
5
We are equally unpersuaded by Appellants’ argument Esurance tendered two documents in discovery
misspelling Poythress’s name as “Ashley Poyphress.” Appellants’ Br. at 13-15. Poythress’s deposition
testimony that she knows the correct spelling of her name does not create a genuine issue of material fact that
she nonetheless did reject uninsured motorist coverage.
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 14 of 15
[20] The trial court did not abuse its discretion in denying Appellants’ motion to
strike or err in granting summary judgment in favor of Esurance. Accordingly,
the judgment of the trial court is affirmed.
[21] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CT-1823 | February 9, 2018 Page 15 of 15