Probate

While there have been no decisions lately from the appellant courts directly addressing probate litigation matters, the Indiana Supreme Court recently handed down a decision that probate attorneys may wish to consider in the context if the situation where a person assumes a duty to another person – a situation which can oftentimes arise in matters resulting in probate litigation.

Estate of Jerome Mintz v. Connecticut General Life Ins. Co. and Wayne E. Gruber

Case No. No. 49S05-0805-CV-214

This case involved, in part, the alleged failure of an insurance agent to properly convert group life insurance polices to individual polices after the insured retired. The trial court granted summary judgment to the agent and the estate of the insured appealed.  The Court of Appeals affirmed the summary judgment in an unpublished opinion, but the Indiana Supreme Court reversed, in part, the decision.

The Indiana Supreme Court first noted that in order to recover under a theory of negligence, a plaintiff must establish (1) the defendant's duty to conform his conduct to a standard of care arose from his relationship with the plaintiff, (2) the failure of the defendant to conform his conduct to that standard of care, and (3) an injury to the plaintiff proximately caused by the defendant’s breach.  In this instance, the trial court had concluded that the agent was entitled to summary judgment on the negligence claim because the insured’s injuries “were not proximately caused by [the agent’s] negligence . . . .”  The Court addressed this conclusion with two observations:

First, the Court noted that “summary judgment is generally inappropriate in negligence cases because issues of contributory negligence, causation, and reasonable care are more appropriately left for the trier of fact.” Second, “even if the [insured’s and his wife’s] actions were a proximate cause of their injuries, [the agent's] actions could also be a proximate cause of the injuries. It is not necessary for a defendant’s act or omission to be the proximate cause of the plaintiff’s injury, so long as the conduct is a proximate cause of the injury.’” (emphasis in original).  Based on the facts of the matter, Court concluded that a trier of fact “could very well conclude” that [the insured’s and his wife’s] actions as well as the agent’s actions were proximate causes of the injuries. “As such the apportionment principles of comparative fault are triggered. And as with the determination of proximate cause, ‘The Comparative Fault Act entrusts the allocation of fault to the sound judgment of the fact-finder.’” The Court concluded that the trial court therefore erred when it entered summary judgment for the agent.

The agent, however, argued that even if the trial court erred in granting summary judgment in his favor on the basis of a lack of proximate cause, the trial court could still be affirmed because “the [insured’s] claim fails under a duty analysis because any duty [the agent] owed . . . was an assumed duty, and his failure to perform his promise was an act of nonfeasance.” This contention was based on the theory that there is a distinction between “malfeasance” (i.e. negligent conduct or active misconduct) and “nonfeasance” (i.e.the complete omission or failure to perform.)  The Court, while noting “there is a difference of opinion in the Court of Appeals on this issue”, concluded that “we need not resolve this dispute today” because “[e]ven adopting [the agent’s] view of the law, the point remains that ‘failure to do what a reasonably prudent person would do after taking control of a situation, i.e., after undertaking a duty to act, is nonetheless misfeasance.’ . . . And as with the determination of proximate cause, whether and to what extent [the agent] acted as a ‘reasonably prudent person’ is a question of fact for the fact-finder to resolve. Accordingly, the trial court’s grant of summary judgment in [the agent’s] favor cannot be sustained on this ground.”

This decision was handed down on March 25, 2009 and a fully text of the decision can be found here.