Robert Lee Chapman v. Nationwide Mutual Fire Insurance Company

FILED

Sep 10 2026, 8:53 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Court of Appeals of Indiana

Robert Lee Chapman and Barbara Chapman,

Appellants-Plaintiffs

v.

Nationwide Mutual Fire Insurance Company,

Appellee-Defendant

September 10, 2026

Court of Appeals Case No.

26A-PL-743

Appeal from the LaPorte Superior Court

The Honorable Richard R. Stalbrink, Jr., Judge

Trial Court Cause No.

46D02-2106-PL-1153

Opinion by Judge Brown

Judges Bailey and Weissmann concur.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 1 of 26

Brown, Judge.

[1] Robert Lee Chapman and Barbara Chapman (the “Chapmans”) appeal from

the trial court’s entry of summary judgment in favor of Nationwide Mutual Fire

Insurance Company (“Nationwide”). We affirm in part, reverse in part, and

remand.

Facts and Procedural History

[2] On June 15, 2019, high winds from a nearby tornado caused a large tree to fall

on the Chapmans’ house located on Dittemore Road in Bloomington (the

“Property”) causing damage to the house, personal property, and other

structures. At the time of the damage, the Chapmans maintained a

homeowners insurance policy (the “Policy”) with Nationwide. The Policy

provides “Coverage A—Dwelling limits” of $451,400. Appellants’ Appendix

Volume V at 6. The Policy also provides an Inflation-Protection provision

which adjusts the Coverage A limit to reflect increases in construction costs.

The Policy further includes the “H 03 06 0716 . . . Dwelling Replacement

Cost—150%” endorsement (“DRC Endorsement”) which increases the

Coverage A limit “if the replacement cost exceeds the declared limit.” Id. at 53.

The DRC Endorsement provides in relevant part:

[W]e will settle covered losses to the dwelling in which you live .

. . under Coverage A, up to 150% of the limit of liability shown

in the Declarations for Coverage A as follows:

1. We will pay the cost of repair or replacement, after

application of deductible, and without deduction for

depreciation, but not exceeding the replacement cost of the part

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 2 of 26

of the building damaged, for like construction and use on the

same premises.

2. We will pay the “actual cash value” of the damage until

repair or replacement is complete. You may make an additional

claim for payment on a replacement cost basis provided you:

a. Notify us within 180 days after the date of loss of your

intent to repair or replace the damaged building;

b. Complete the repair or replacement within 2 years of the

date of the loss; and

c. Have not reached the applicable limit of liability under this

policy.

Repair or replacement must be evidenced by the original

replacement receipt, invoice or bill.

Id.

[3] The day after the tree fell, Nationwide insurance adjuster Robert Greenlee

inspected the Property. Nationwide also hired Matthew Stocking at Donan

Engineering to assess the damage to the Property. Meanwhile, Nationwide

made a payment to the Chapmans for $10,000 for Dwelling coverage. On July

22, 2019, Stocking issued a thirty-five-page engineering report which

documented the damage to the Property. The report found extensive damage

to the home but did not find any damage to the foundation of the Property

caused by the storm.

[4] On August 15, 2019, Greenlee provided the Chapmans with Stocking’s report

as well as Nationwide’s estimate for the damage to the Property. The dwelling

replacement cost was valued at $226,447.19, which did not include foundation

replacement. In September 2019, Nationwide sent a check to the Chapmans in

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 3 of 26

the amount of $233,371.06, of which $217,606.55 was for Dwelling coverage. 1

Thereafter, because they did not agree with Stocking’s assessment that the

foundation of the Property had not been damaged by the storm, the Chapmans

retained RM Consulting and Engineering to inspect the Property. The

engineer, Roger Malone, inspected the Property on October 23, 2019, and

issued a three-page report that stated that a “portion of the foundation wall

ha[d] been damaged” due to the storm. Appellants’ Appendix Volume IV at

178. Malone recommended “that the entire foundation wall system around the

entire perimeter of the existing house be inspected for damage and excessive

movement.” Id. The Chapmans provided Nationwide with Malone’s report.

[5] On March 18, 2020, Donan Engineering, specifically Stocking, reinspected the

Property. On March 27, 2020, Stocking issued a thirty-seven-page report again

determining that the Property’s foundation was not damaged due to the June

15, 2019, storm winds or the fallen tree. Stocking’s report determined that any

foundation issues identified by Malone resulted from “deficiencies in

construction” and typical “differential movement of the foundation,” and that

there had been no “shifting of the foundation” caused by the storm.

Appellants’ Appendix Volume VI at 79. In April 2020, Nationwide made

another payment to the Chapmans for $2,971.58 for Dwelling coverage. At this

1

The record indicates that Nationwide subsequently issued a replacement check in the same amount,

without the mortgagee’s name on it, to replace the original check.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 4 of 26

point, Nationwide had paid the Chapmans a total of $230,578.13 for Dwelling

coverage.

[6] On July 23, 2020, the Chapmans submitted an appraisal demand to Nationwide

pursuant to the Policy, which provides that if the parties “fail to agree on the

amount of loss, either may demand an appraisal of the loss” with each choosing

a “competent and impartial appraiser,” and the two appraisers choosing an

umpire if they also “fail to agree” as to the amount of the loss. Appellants’

Appendix Volume V at 33. The provision further states that the “appraisers and

umpire are only authorized to determine the ‘actual cash value’ replacement

cost, or cost to repair the property that is the subject of the claim. They are not

authorized to determine coverage, exclusions, conditions, forfeiture provisions,

conditions precedent, or any other contractual issues.” Id. at 34. The

Chapmans and Nationwide each appointed appraisers who inspected the

Property, prepared written appraisals, and submitted their appraisals to an

umpire. On January 15, 2021, the umpire issued an appraisal award. The

award provided:

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 5 of 26

Appellants’ Appendix Volume VII at 120. The Policy required Nationwide to

pay the Chapmans within sixty days of receipt of the appraisal award, which

would indicate a payment deadline of March 16, 2021. On February 15, 2021,

Nationwide paid the Chapmans $220,821.87, which was the difference between

the appraisal award replacement cost and the prior dwelling payments up to the

policy limit of $451,400. The undisputed facts indicate that the payment did

not include any actual cash value (“ACV”) or replacement cost value (“RCV”)

amounts in the appraisal based upon the DRC Endorsement. The payment

also did not include any amounts based on the Inflation-Protection provision of

the Policy. 2

[7] After receiving the initial appraisal payment, the Chapmans did not begin any

construction to repair or replace their home. On March 19, 2021, three days

after the March 16, 2021, sixty-day deadline, Nationwide issued a debrisremoval/demolition payment to the Chapmans in the amount of $21,399.65.

On May 5, 2021, the Chapmans, through their public adjuster, Nicholas Banks,

requested a six-month extension of the DRC Endorsement’s two-year repair or

replacement deadline, citing COVID-19 pandemic-related material and labor

shortages. Greenlee had previously informed them that they could obtain a sixmonth extension of the deadline simply by requesting one. The DRC

2

Although the parties dispute whether the Chapmans were owed the DRC Endorsement amounts, they

agree that the Chapmans were owed funds based upon the Inflation-Protection provision. However, they

disagree as to whether that amount should have been automatically calculated and included as part of the

appraisal award payment or whether it was a separate coverage payment. Regardless, as subsequently

discussed, albeit late, Nationwide has since paid this coverage amount plus interest.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 6 of 26

Endorsement does not contain a provision relating to an extension of the

deadline. Nationwide denied the request for an extension on June 7, 2021.

[8] On June 15, 2021, the Chapmans filed their complaint against Nationwide

alleging breach of contract and breach of the duty of good faith and fair dealing

based upon Nationwide’s handling of their insurance claim. Nationwide filed

its answer on October 21, 2021. On May 22, 2023, Nationwide issued a

payment to the Chapmans for $15,192.22 ($12,780.46 plus $2,411.76 in interest)

pursuant to the Inflation-Protection provision of the Policy. The Chapmans did

not cash or deposit this check. On October 10, 2023, at the Chapmans’ request,

a replacement check for the same amount was reissued. On February 15, 2024,

the Chapmans filed a Motion for Partial Summary Judgment, designation of

evidence, and memorandum. On January 22, 2025, Nationwide filed its

response as well as a Motion for Summary Judgment as to All Claims,

designation of evidence, and memorandum. On March 4, 2025, the Chapmans

filed their response and a Motion for Partial Counter Summary Judgment and

designation of evidence. On that same date, the Chapmans filed a motion to

strike certain evidence designated by Nationwide in support of its Motion for

Summary Judgment, specifically the Donan Engineering reports. On March

19, 2025, Nationwide filed a motion to strike the affidavit of the Chapmans’

insurance claim expert, Chris Johnson, along with a reply in support of its

Motion for Summary Judgment.

[9] The court held a hearing on July 30, 2025. On October 27, 2025, the court

entered an order granting Nationwide’s Motion for Summary Judgment as to

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 7 of 26

All Claims and denying the Chapmans’ Motions for Partial Summary

Judgment. On November 26, 2025, the Chapmans filed a Motion to Correct

Error. Following a hearing, the court denied the Motion to Correct Error on

March 4, 2026. The Chapmans filed a Notice of Appeal on March 23, 2026. 3

Discussion

[10] “We review summary judgment de novo, applying the same standard as the

trial court[.] Drawing all reasonable inferences in favor of . . . the non-moving

parties, summary judgment is appropriate if the designated evidentiary matter

shows that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Hughley v. State, 15 N.E.3d

1000, 1003 (Ind. 2014) (citations and quotations omitted). “A fact is ‘material’

if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if

a trier of fact is required to resolve the parties’ differing accounts of the truth, or

if the undisputed material facts support conflicting reasonable inferences.” Id.

(citation omitted).

[11] We consider only those portions of the pleadings, depositions, and any other

matters specifically designated to the trial court by the parties for purposes of

the summary judgment motion. Ind. Trial Rule 56(C), (H). We resolve “all

factual inferences and all doubts as to the existence of a material issue” in favor

3

The Chapmans initially filed a Notice of Appeal simultaneously with their Motion to Correct Error. That

Notice of Appeal was subsequently dismissed without prejudice on February 4, 2026, to allow the trial court

to rule on the Motion to Correct Error.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 8 of 26

of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225 N.E.3d 146, 151 (Ind.

2024) (internal quotation marks omitted) (quoting Reed v. Reid, 980 N.E.2d 277,

285 (Ind. 2012)). In so doing, “we give careful scrutiny to make sure the

nonmovant’s day in court is not improperly denied.” Id. (internal quotation

marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187

(Ind. 2016)).

[12] “The party moving for summary judgment bears the burden of making a prima

facie showing that there is no genuine issue of material fact and that it is

entitled to judgment as a matter of law.” Abbott v. State, 183 N.E.3d 1074, 1079

(Ind. 2022). The movant “can make this showing when undisputed evidence

affirmatively negates a required element” of the nonmovant’s claim. Cmty.

Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 377 (Ind. 2022). Only if the

movant meets this prima facie burden does the burden then shift to the

nonmovant to “come forward with contrary evidence showing an issue for the

trier of fact.” Abbott, 183 N.E.3d at 1079.

[13] A trial court’s grant of summary judgment is “clothed with a presumption of

validity.” Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). The

party appealing the grant or denial of summary judgment has the burden of

persuading this Court that the trial court’s ruling was improper. Munster Steel

Co. v. CPV Partners, LLC, 186 N.E.3d 143, 148 (Ind. Ct. App. 2022). In the

present case, the trial court entered findings of fact and conclusions of law in

support of its judgment. Although the findings of fact and conclusions of law a

trial court may enter in support of its summary judgment do not bind us, they

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 9 of 26

facilitate appellate review. Matter of Supervised Est. of Kent, 99 N.E.3d 634, 637

(Ind. 2018).

A. Breach of Contract Claim

[14] The Chapmans assert that the trial court erred in concluding that Nationwide

was entitled to summary judgment on their breach of contract claim.

Specifically, they argue that the court erred in finding no breach where

Nationwide “failed to pay $16,777.40 in ACV” based on the DRC

Endorsement,4 “delayed the inflation-guard payment and demolition payment,

erroneously partially denied the foundation, and initially undervalued the loss

by about $330,000.” Appellants’ Brief at 8. We address each of the Chapmans’

breach theories in turn.

[15] Breach of contract requires the plaintiff to prove the existence of a contract,

breach of the contract by the defendant, and damages resulting from the

defendant’s breach. Auto-Owners Ins. Co. v. C & J Real Estate, Inc., 996 N.E.2d

803, 805 (Ind. Ct. App. 2013). First, regarding Nationwide’s initial adjustment,

which excluded foundation replacement and valued the loss at $330,659.32 less

than the amount later determined by the appraisal award, 5 we cannot say that

4

The Policy defines “Actual Cash Value” as “the amount it would cost to repair or replace covered property

with material of like kind and quality, less allowance for physical deterioration and depreciation, including

obsolescence.” Appellants’ Appendix Volume V at 12. As shown earlier, the appraisal award lists

$16,777.40 in the ACV column specifically related to the DRC Endorsement.

5

The amount of $330,659.32 equals the difference between the panel’s appraisal award which valued the

dwelling replacement cost at $557,106.51, and the dwelling replacement cost which Nationwide initially

valued at $226,447.19.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 10 of 26

such initial estimate constituted a breach of the insurance contract entitling the

Chapmans to damages distinct from the amounts resolved and awarded

through appraisal. The appraisal process exists precisely to resolve

disagreements as to the amount of loss, and it is undisputed that Nationwide

actively participated in such process as provided by the Policy. Nationwide is

entitled to judgment as a matter of law on this theory.

[16] Similarly, regarding the delayed demolition/debris-removal payment and the

Inflation-Protection payment, we cannot say that the designated evidence

supports a finding of material breach or damages award. As a general contract

matter, a material breach is one that “goes to the heart of the contract.” State v.

Int’l Bus. Machines Corp., 51 N.E.3d 150 (Ind. 2016). It is undisputed that

Nationwide issued the debris-removal payment on March 19, 2021, a mere

three days after the Policy’s sixty-day, post-award deadline. Although we find

this delay relevant for other purposes as discussed in Part B, we do not find this

to be a material breach and no damages are due. It is further undisputed that

Nationwide did not pay the $12,780.46 Inflation-Protection payment until May

22, 2023, more than two years after it was due, and only after the issue surfaced

during discovery. Indeed, Nationwide concedes that this amount “should have

been included as part of [its] February 15, 2021, payment” to the Chapmans.

Appellee’s Brief at 25. Again, although this delay is relevant for other purposes,

it is undisputed that Nationwide has since made such Inflation-Protection

payment plus interest. In other words, the Chapmans have been made whole

for these coverages. As no further amounts are owed for these items pursuant

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 11 of 26

to the Policy, Nationwide is entitled to judgment as a matter of law on this

theory.

[17] Accordingly, we turn to the Chapmans’ allegation that Nationwide breached

the Policy in failing to pay the ACV amount of $16,777.40 included in the

appraisal award based on the DRC Endorsement. This breach claim does not

involve simply a disagreement as to the scope of the loss or delayed payment;

this claim involves a complete coverage denial under the DRC Endorsement.

Moreover, this claim is intertwined with Nationwide’s assertion, which we

address more fully in Part B, that it is entitled to judgment as a matter of law on

the Chapmans’ claim for any amounts pursuant to the DRC Endorsement. 6

[18] We observe that Nationwide reads the DRC Endorsement to condition

payment of any amount under it, including the ACV component, on the

insured’s completion of repair or replacement within two years and submission

of supporting documentation. The Chapmans read the first sentence of the

DRC Endorsement’s second numbered paragraph as an independent,

unconditional obligation to pay ACV “until repair or replacement is complete,”

with the enumerated conditions (a)-(c) governing only the separate “additional

claim” for the replacement-cost differential described in the Endorsement’s next

sentence. Appellants’ Appendix Volume V at 53.

6

Nationwide observes that, pursuant to the DRC Endorsement, “the Chapmans seek the replacement cost

appraisal amounts of $16,777.40 ACV and $105,706.51 RCV.” Appellee’s Brief at 13 (emphasis omitted).

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 12 of 26 [19] Here, the parties’ arguments require that we interpret the language of the

insurance policy. “In Indiana, insurance contracts are subject to the same rules

of interpretation as other contracts.” Ebert v. Illinois Cas. Co., 188 N.E.3d 858,

864 (Ind. 2022). “Ordinarily, we construe ambiguous policy provisions in favor

of the insured, especially if the ‘provisions limiting coverage are not clearly and

plainly expressed.’” Id. (quoting Meridian Mut. Ins. Co. v. Auto-Owners Ins. Co.,

698 N.E.2d 770, 773 (Ind. 1998)). “On the other hand, we give clear and

unambiguous language in a policy its plain and ordinary meaning.” Id. “A

policy is unambiguous if reasonable persons cannot honestly differ as to its

meaning.” Id.

[20] Our review of the DRC Endorsement reveals that both parties’ readings find

some textual support. The second paragraph of the DRC Endorsement states

the ACV obligation in one sentence and then, in a following sentence,

conditions an “additional claim for payment on a replacement cost basis” on

three enumerated requirements. This structure is consistent with the

Chapmans’ view that the ACV obligation and the replacement-cost differential

are sequential and separately conditioned. The trial court’s summary judgment

order does not address the Chapmans’ textual argument that the DRC

Endorsement “states ACV will be paid first” before repair or replacement,

Appellants’ Brief at 40; it simply resolves the breach claim involving the DRC

Endorsement in Nationwide’s favor without discussing the relationship

between the Endorsement’s first and second numbered paragraphs, or the

relationship between the first and second sentences of paragraph 2. We cannot

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 13 of 26

say that the DRC Endorsement’s provisions, which Nationwide asserts limit

coverage, are clearly and plainly expressed. 7

[21] Further, the record before us does not establish that the appraisal award of

$16,777.40 ACV was intended to be contingent on future completion of the

repair or replacement. Indeed, the Chapmans point to testimony from

Nationwide’s own adjuster, who could identify no reason the amount had not

been paid and confirmed her understanding that payment of the ACV is not

conditioned on repair or replacement. 8 The Chapmans also point to testimony

from one of the members of the appraisal panel, who testified that he believed

the amount to be currently owed under the coverage extension provided by the

DRC Endorsement. 9 Under the circumstances, Nationwide has not met its

burden, as the summary judgment movant, to establish that its reading of the

DRC Endorsement is correct as a matter of law, or that no question remains

regarding whether the $16,777.40 ACV payment was due and payable under

7

The ambiguity of the language of the DRC Endorsement is further highlighted by Nationwide’s assertion

that its payment of the Dwelling Policy limit of $451,400 ACV satisfied the DRC Endorsement’s provision

that “We will pay the ‘actual cash value’ of the damage until repair or replacement is complete.” Appellants’

Appendix Volume V at 53. In other words, there is a genuine dispute on which ACV value is referenced in

the DRC Endorsement and when the appraisal ACV amount of $16,777.40 based upon the Endorsement

would be due and payable.

8

The Chapmans designated certain deposition testimony of Nationwide adjuster, Daphne Boulware. When

asked, “Now, the actual cash value payment, the policy holder does not have to repair or replace the damage

in order to get that payment, is that fair,” Boulware responded, “That’s correct.” Appellants’ Appendix

Volume XII at 118.

9

The Chapmans designated certain deposition testimony of appraisal panel member Banks. When asked,

“As you sit here today, based upon your familiarity in handling 1,500 to 2,000 claims as well as being an

appraiser on this file, can you think of any legitimate reason why Nationwide has not paid the [$16,777.40]

actual cash value part of the coverage extension,” Banks responded, “No.” Appellants’ Appendix Volume

XIII at 131.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 14 of 26

the DRC Endorsement independent of completion of repair or replacement.

See Zemco Mfg., Inc. v. Navistar Int’l Transp. Corp., 759 N.E.2d 239, 244 (Ind. Ct.

App. 2001) (“Even if the facts are undisputed, summary judgment is

inappropriate where the record reveals an incorrect application of the law to the

facts”), reh’g denied, trans. denied. We reverse the grant of summary judgment to

Nationwide on the Chapmans’ claim that it breached the Policy in this regard.

B. Enforceability of the DRC Endorsement’s Replacement Deadline

[22] In addition to the $16,777.40 ACV component of the DRC Endorsement

awarded by the appraisal, the Chapmans also seek the appraisal award of

$105,706.51 RCV under the Endorsement. Regarding these amounts, the trial

court ruled that the DRC Endorsement “required that the Chapmans complete

the repair or replacement of their dwelling within 2 years of the June 15, 2019

date of loss and to provide Nationwide with evidence of the repair or

replacement cost. Plaintiffs did not meet these requirements for payment under

the DRC endorsement.” Appellants’ Appendix Volume II at 19-20. The

Chapmans contend “the trial court erred in holding the two-year replacement

deadline enforceable against [them].” Appellants’ Brief at 31 (emphasis

omitted). 10

10

To the extent that Nationwide contends the Chapmans have waived this claim for failure to raise it below,

we disagree. The Chapmans specifically raised this claim in their summary judgment briefing and the trial

court specifically considered and ruled upon their unenforceability claim in its summary judgment order.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 15 of 26 [23] It is undisputed that the Chapmans did not complete repair or replacement of

their dwelling within two years of the date of the loss as required for coverage

extension under the DRC Endorsement. Recognizing this, they invoke the

equitable principle that their non-performance of such condition precedent

should be excused because Nationwide hindered their performance, or at the

very least, substantially contributed to the delay in their ability to timely

complete repair or replacement. The Chapmans direct us to two cases in which

this Court has applied equitable principles in determining the enforceability of a

homeowner’s policy’s replacement-cost completion deadline. In Rockford Mut.

Ins. Co. v. Pirtle, 911 N.E.2d 60, 65-67 (Ind. Ct. App. 2009), reh’g denied, trans.

denied, the insurer’s initial estimate excluded significant damage later confirmed

at trial, the insurer refused to pay replacement cost absent completed repairs,

and the insurer did not tender even actual cash value until many months after

the loss and only after foreclosure proceedings had begun. This Court upheld a

jury instruction stating that a party who prevents the other from performing is

excused from further performance and may recover damages flowing from that

prevention. Id. at 63-64, 66. We acknowledged that,

other courts, including our own Seventh Circuit, have held that

the contract must be strictly construed to require the completion

of the repair or replacement before liability under the

replacement cost endorsement attaches. See e.g. Bourazak v. N.

River Ins. Co., 379 F.2d 530, 532 (7th Cir. 1967) (complaint

dismissed because insured failed to satisfy condition precedent

for claim of loss); W. Suburban Bank of Darien v. Badger Mut. Ins.

Co., 947 F. Supp. 333, 336-37 (N.D. Ill. 1996) (replacement cost

valuation does not apply until repair or replacement of destroyed

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 16 of 26

property). However, we are convinced that equitable principles

win the day in this situation; otherwise, the repair or replacement

endorsement paid for by Pirtle would be rendered illusory.

Rockford had the ability to advance sums of money under that

endorsement to assist in commencement of the rebuilding, and

could have joined Pirtle in agreements entered into for repairs.

Id. at 66-67.

[24] In Westfield Nat. Ins. Co. v. Nakoa, 963 N.E.2d 1126, 1132 (Ind. Ct. App. 2012),

trans. denied, this Court explained,

It is well settled that contractual provisions of an insurance policy

may be waived or that the insurer may be estopped from

asserting such provisions. American Standard Ins. Co. of Wisconsin

v. Rogers, 788 N.E.2d 873, 876 (Ind. Ct. App. 2003). Whether

there has been waiver of a policy provision by an insurer

generally is a question of fact. Id. at 877. Although the terms

“estoppel” and “waiver” are technically distinct, the terms often

are used synonymously with respect to insurance matters. Id.

Waiver is an intentional relinquishment of a known right

involving both knowledge of the existence of the right and the

intent to relinquish it, while the elements of estoppel are the

misleading of a party entitled to rely on the acts or statements in

question and a consequent change of position to that party’s

detriment. Id.

In light of the foregoing, we held that an insurer who paid virtually nothing

toward a total loss for years, while the insured pursued an unnecessary

appraisal process, waived the right to enforce a replacement-cost completion

condition, reasoning that “it seems unreasonable and unrealistic” to expect a

homeowner to rebuild without meaningful funding. 963 N.E.2d at 1132-1133.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 17 of 26 [25] The trial court distinguished these decisions on grounds that Nationwide,

unlike the insurers in Rockford and Nakoa, “consistently” made payments to the

Chapmans. Appellants’ Appendix Volume II at 22. However, neither case

held that payment alone, for any amount or on any timetable, foreclosed a

claim of estoppel or unenforceability as a matter of law. The designated

evidence, construed favorably to the Chapmans as the nonmoving parties on

Nationwide’s motion, presents a genuine factual dispute on this point.

Nationwide’s initial adjustment excluded foundation replacement entirely and

fell $330,659.32 short of the amount the appraisal panel later determined was

required. The evidence further indicates that Nationwide instructed the

Chapmans not to undertake repairs without its approval and warned that

unapproved work would be performed at their own expense. Nationwide did

not approve foundation replacement until the appraisal award issued in January

2021, roughly eighteen months after the loss. Nationwide further did not issue

the demolition/debris removal payment necessary to begin reconstruction until

March 19, 2021, leaving, on the Chapmans’ account, fewer than ninety days to

complete demolition and full reconstruction of a home requiring foundation

replacement before the June 15, 2021 deadline, during a period of documented

pandemic-related shortages.

[26] Nationwide responds that the Chapmans could have used the roughly $230,000

paid by September 2019 to begin some form of repair, and that their choice not

to do so defeats any claim that Nationwide’s behavior prevented them from

doing so. Whether an insured’s receipt of funds covering only a fraction of the

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 18 of 26 ultimately required scope of repair, while the insurer simultaneously withholds

approval of the balance of the necessary work, renders subsequent

noncompletion the insured’s own doing, or the foreseeable consequence of the

insurer’s own adjustment and approval process, is the kind of multi-factintensive question Rockford and Nakoa address; it is not resolved by the bare fact

that payment issued. Given the competing evidence concerning the adequacy

of Nationwide’s initial payment relative to the true scope of loss, the practical

feasibility of partial reconstruction pending resolution of the foundation dispute

which was ultimately resolved in the Chapmans’ favor, and the timetable the

Chapmans were left with when all was said and done, we conclude that

genuine issues of material fact preclude summary judgment for either party on

whether the Chapmans’ noncompliance with the DRC Endorsement’s two-year

repair or replacement completion deadline should be excused. See RAP Indy,

LLC v. Zurich Am. Ins. Co., No. 119CV04657JRSMJD, 2021 WL 2416740, at *7

(S.D. Ind. June 14, 2021) (disputes of fact remained as to whether insurer

hindered insureds’ performance of conditions precedent to replacement cost

provision preventing the court from granting summary judgment to either party

as to the challenged loss); but see Novogroder Cos., Inc. v. Hartford Fire Ins. Co., No.

2:10-CV-193 RM, 2012 WL 3637602, at *11 (N.D. Ind. Aug. 21, 2012)

(granting summary judgment for insurer and holding that insured was not

excused from similar condition precedent where it “received actual cash value

amount at the outset and could have used those funds to repair the property”),

aff’d, 528 F. App’x 644 (7th Cir. 2013).

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 19 of 26

C. Breach of the Duty of Good Faith and Fair Dealing Claim

[27] The Chapmans next assert that the trial court erred in concluding that

Nationwide was entitled to summary judgment on their claim that Nationwide

breached its duty of good faith and fair dealing. In Baldwin v. Standard Fire Ins.

Co., 269 N.E.3d 1197, 1204 (Ind. 2025), the Indiana Supreme Court explained:

In recognition of an insurer’s “special relationship” with its

insured, Indiana imposes on insurers an implied duty of good

faith and fair dealing. Erie Ins. Co. v. Hickman, 622 N.E.2d 515,

518 (Ind. 1993). Any breach of this legal duty, which we imply

“in all insurance contracts”, exposes the insurer to compensatory

damages, like any other breach of contract. Id. at 518-19. But an

insurer that goes further and acts in bad faith toward its insured

may be liable for punitive damages. Id. at 520. Though punitive

damages are prohibited “in a breach of contract action”, a badfaith claim is “an independent tort for the breach of the insurer’s

obligation to exercise good faith . . . upon which punitive

damages may be based.” Ibid.

[28] To succeed on an insurance-based bad faith claim, the claimant “must prove,

first, a breach of the duty of good faith.” 11 Baldwin, 269 N.E.3d at 1209 (citing

11

Nationwide implies that we need consider only the Chapmans’ allegation of bad faith and request for

punitive damages and we need not consider whether it breached the duty of good-faith and fair dealing

because “[c]learly, the Chapmans only asserted a bad faith claim[.]” Appellee’s Brief at 41 n.2. However,

the Indiana Supreme Court has explained,

There is a close relationship between a claim alleging a breach of the duty of good faith and one

alleging bad faith. In Indiana, the latter derives from the former. Erie Ins. Co., 622 N.E.2d at

520. A claimant must prove, first, a breach of the duty of good faith. Ibid. Only then does the

claimant have the opportunity “to establish the right to punitive damages” by proving the

insurer acted more culpably—i.e., in bad faith. Ibid. As we explained in Erie Insurance Company,

“breach of the insurer’s obligation to exercise good faith provides the tort upon which punitive

damages may be based.” Ibid.

Baldwin, 269 N.E.3d at 1209.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 20 of 26

Hickman, 622 N.E.2d at 520). That duty “requires the insurer ‘to refrain from’

certain behavior,” including (1) “making an unfounded refusal to pay policy

proceeds,” (2) “causing an unfounded delay in making payment,” (3)

“deceiving the insured,” and (4) “exercising any unfair advantage to pressure an

insured into a settlement of his claim.” Id. at 1207 (quoting Hickman, 622

N.E.2d at 519); see also Cosme v. Clark, 232 N.E.3d 1141, 1153 (Ind. 2024) (citing

Monroe Guar. Ins. v. Magwerks Corp., 829 N.E.2d 968, 976 (Ind. 2005)). Provided

the claimant succeeds on this underlying claim, he then has the burden of

proving by clear and convincing evidence that the insurer “acted with malice,

fraud, gross negligence, or oppressiveness which was not the result of a mistake

of fact or law, honest error or judgment, overzealousness, mere negligence, or

other human failing.” Hickman, 622 N.E.2d at 520 (quoting Bud Wolf Chevrolet,

Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988)). If the claimant proves both

a breach of the duty of good faith and fair dealing as well as bad faith, the jury

may award the claimant punitive damages “in the sum [that the jury believes]

will serve to punish the defendant and to deter it and others from like conduct

in the future.” Id. (quoting Robertson, 519 N.E.2d at 137-138).

[29] Applying these principles here, we cannot say that Nationwide is entitled to

judgment as a matter of law as to whether it breached its duty of good faith and

fair dealing. The Chapmans argue that the designated evidence creates genuine

disputes on whether Nationwide engaged in “unfounded refusal to pay and

unfounded delay,” “deception,” and “unfair settlement pressure.” Appellants’

Brief at 50-53. We agree and conclude that the record, when construed

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 21 of 26

favorably to the Chapmans, includes evidence bearing on each of Hickman’s

four categories. Moreover, the parties’ competing characterizations of

Nationwide’s conduct in adjusting the claim, including payment delay,

representations regarding extensions of time, and coverage denial, and the

significance of that conduct, are factual matters for a jury to weigh. Nationwide

is not entitled to judgment as a matter of law on this claim.

D. Evidentiary Rulings

[30] Finally, the Chapmans argue that two of the trial court’s evidentiary rulings

were erroneous. First, the Chapmans assert that the trial court should have

granted their motion to strike the two Donan Engineering reports included in

Nationwide’s designation of evidence as unauthenticated hearsay, because the

reports were never accompanied by an affidavit from the preparing engineer

and Nationwide did not otherwise lay a foundation under Ind. Evidence Rules

803(6) or 902(11). Nationwide responds that the Chapmans’ own deposition

testimony identifying the reports as the reports prepared regarding their house

satisfies Ind. Evidence Rule 901(a)’s authentication requirement, and that, in

any event, the appraisal umpire did not rely on the Donan reports in reaching

the appraisal award, such that any error in admitting them was not outcomedeterminative.

[31] The trial court has broad discretion in ruling on the admissibility of evidence.

Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 886 (Ind.

Ct. App. 2002). This discretion extends to rulings on motions to strike. Id.

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 22 of 26 [32] We agree with Nationwide that any error by the trial court in declining to strike

the Donan reports would not, on this record, require reversal. Significantly, the

appraisal award superseded the initial adjustment for purposes of setting the

amount of loss and did not depend on the Donan reports’ conclusions regarding

the foundation. We express no opinion on whether the reports were properly

authenticated or fall within an exception to the hearsay rule, because our

resolution of the contract claims in Parts A and B already returns certain claims

to the trial court for further proceedings, in which the admissibility of the

Donan reports may be again addressed on a more complete evidentiary record.

We affirm the trial court’s denial of the Chapmans’ motion to strike the Donan

reports, without prejudice to renewal of that motion, or reconsideration of

admissibility on remand for trial purposes.

[33] Next, the Chapmans argue that the court abused its discretion when it struck, in

its entirety, the affidavit and accompanying report of attorney Chris Johnson,

the Chapmans’ purported claims-handling expert. Nationwide moved to strike

the affidavit in its entirety arguing that the affidavit “reads as a legal brief” and

Johnson “does nothing more than provide factual recitation followed by

arguments and conclusory opinions on the question of bad faith based upon his

review of the claims file materials and case docket.” Appellants’ Appendix

Volume XIII at 194.

[34] In determining a motion for summary judgment, a trial court can consider only

material deemed appropriate by Ind. Trial Rule 56(E). Duncan v. Duncan, 764

N.E.2d 763, 766 (Ind. Ct. App. 2002). “Supporting and opposing affidavits

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 23 of 26

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).

“Mere assertions in an affidavit of conclusions of law or opinions will not

suffice.” City of Gary v. McCrady, 851 N.E.2d 359, 364 (Ind. Ct. App. 2006)

(citation omitted). Ind. Evidence Rule 704(a) permits opinion testimony that

“embraces an ultimate issue” so long as it is otherwise admissible, and this

Court has recognized that expert testimony on industry custom and practice—

including in the insurance-claims-handling context—is a proper subject of

expert opinion. Mundy v. Angelicchio, 623 N.E.2d 456, 462 (Ind. Ct. App. 1993);

Ind. Evidence Rule 702. The party offering the affidavit into evidence bears the

burden of establishing its admissibility. Duncan, 764 N.E.2d at 766.

[35] A court considering a motion for summary judgment should disregard

inadmissible information contained in supporting or opposing affidavits. City of

Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind. Ct. App. 2010). Here, the trial

court struck the entirety of Johnson’s two-line affidavit and attached singlespaced, twenty-three page “report,” rather than parsing out the objectionable

parts. Appellants’ Appendix Volume XIII at 66-89.

[36] Upon review, while we are confident that the lion’s share of the report consists

of inadmissible “mere assertions” dressed up as “facts,” and impermissible legal

conclusions dressed up as “opinions held,” see id., we cannot say that each and

every line of the report fails to meet the requirements of Ind. Trial Rule 56(E)

and only those specific portions that do not meet the Rule’s parameters should

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 24 of 26

have been stricken. Cf. Price v. Freeland, 832 N.E.2d 1036, 1042 (Ind. Ct. App.

2005) (holding trial court abused its discretion in denying defendant’s motion to

strike four specific paragraphs of plaintiff’s affidavit). The trial court’s ruling

striking the report in its entirety, while understandable in light of the way in

which it was prepared to read more like a supplemental legal brief submitted in

opposition to summary judgment, was overbroad. Accordingly, we conclude

the court abused its discretion. Upon remand, the parties may raise arguments

regarding the admissibility of specific portions of Johnson’s affidavit so that the

trial court may reissue a proper ruling.

[37] For the foregoing reasons, we affirm the trial court’s grant of summary

judgment in Nationwide’s favor on the Chapmans’ breach of contract theories

based on the low initial adjustment, three-day delay in the debrisremoval/demolition payment, and the since-cured delay in the InflationProtection payment. We also affirm the court’s denial of the Chapmans’

motion to strike the Donan Engineering reports. We reverse the trial court’s

grant of summary judgment to Nationwide on the Chapmans’ breach of

contract claims as to whether the $16,777.40 ACV payment was due pursuant

to the DRC Endorsement independent of completion of repair or replacement,

and as to whether the Chapmans are excused from the DRC Endorsement’s

two-year replacement completion deadline. We further reverse the court’s grant

of summary judgment in Nationwide’s favor on the Chapmans’ claim for

breach of the duty of good faith and fair dealing and associated claim for

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 25 of 26

punitive damages as well as its ruling striking the Johnson affidavit in its

entirety. We remand for further proceedings consistent with this opinion.

[38] Affirmed in part, reversed in part, and remanded.

Bailey, J., and Weissmann, J., concur.

ATTORNEY FOR APPELLANTS

William D. Beyers

Buchanan & Bruggenschmidt, P.C.

Zionsville, Indiana

ATTORNEY FOR APPELLEE

Jeffrey P. McSherry

Bricker Graydon Wyatt LLP

Cincinnati, Ohio

Court of Appeals of Indiana Opinion 26A-PL-743 September 10, 2026 Page 26 of 26