Michael Dodd and Katherine Dodd v. American Family Mutual Insurance Company

Summary

The Indiana Supreme Court affirmed summary judgment for American Family Mutual Insurance Company after the insurer voided an insurance policy based on the insureds' failure to disclose a prior fire loss. The court held that the insureds had not preserved or supported their argument that the insurer's failure to tender paid premiums prevented rescission, and further held that the tender requirement did not apply because the insurer had previously paid a claim exceeding the premiums at issue.

Holdings

1. The Dodds could not obtain reversal based on American Family's alleged failure to tender premiums because they did not raise that issue or submit designated evidence on it in opposition to summary judgment; they first raised it in their motion to correct error.
2. An insurer generally must offer to return premiums within a reasonable time after discovering the insured's alleged breach, and failure to do so may constitute waiver of the alleged fraud.
3. An insurer need not tender a return of premiums before rescinding the policy when it has paid a claim under the policy in an amount greater than the premiums paid.

Questions Presented

1. Whether American Family was barred from voiding or rescinding the insurance policy because it had not first returned or tendered the premiums paid by the Dodds.
2. Whether the Dodds preserved and supported the premium-tender issue in opposition to summary judgment.
3. Whether the prior payment of a claim exceeding the amount of premiums created an exception to the premium-tender requirement.

Disposition

affirmed