Court of Appeals of Indiana | Memorandum Decision 45A03-1706-PL-1451 | December 28, 2017 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

William H. Walden

Munster, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Hoffman Adjustment

Incorporated,

Appellant-Plaintiff,

v.

Neal Nussbaum, Essie 

Nussbaum, and Illinois Farmers 

Insurance Company,

Appellees-Defendants

December 28, 2017

Court of Appeals Case No.

45A03-1706-PL-1451

Appeal from the Lake Superior 

Court 

The Honorable John R. Pera, 

Judge

Trial Court Cause No.

45D10-1408-PL-00092

Vaidik, Chief Judge.
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Case Summary

[1] Hoffman Adjustment Incorporated appeals the trial court’s judgment in favor of 

Essie Nussbaum and her sons Kent and Neal1 on its breach-of-contract claim. 

Hoffman Adjustment also appeals the trial court’s order vacating the default 

judgment against Illinois Farmers Insurance Company (Farmers). The 

appellees did not file briefs in this case, and Hoffman Adjustment has made a 

prima facie case that the trial court erred on its breach-of-contract claim. 

Hoffman Adjustment, however, has not made such a case on its defaultjudgment claim. Accordingly, we affirm in part, reverse in part, and remand. 

Facts and Procedural History

[2] Sometime in 2010, a barn located on the Nussbaums’ residential property in 

Remington was rented to the United States Department of Agriculture (USDA)

for poultry research. After signing the lease with the USDA, Kent called Ruben 

Perez, the Nussbaums’ insurance agent, to “[r]aise the insurance policy” on the 

barn and notified Perez that the barn was being rented by a third party. Tr. Vol. 

II p. 113. On May 20, 2012, lightning struck the barn, and it burned down. A 

well house located on the Nussbaums’ property also sustained some damage

 

1 The record is unclear as to which of the Nussbaums are still defendants in this case. During the trial-court 

proceedings, Essie died. Nevertheless, she still appears on documents in the record. For example, the CCS 

lists all three Nussbaums as defendants, Appellant’s App. Vol. II p. 2, while the trial court’s judgment lists 

only Neal and Essie, id. at 13. Because it is unclear which Nussbaums are currently parties to this matter, we 

refer to all of them. 
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during the storm. The Nussbaums contacted Farmers and filed a claim for the 

barn, well house, and debris clean up. 

[3] Two weeks after the storm, the Nussbaums contracted with Hoffman 

Adjustment “to assist in the adjustment of my (our) loss[.]” Pl. Ex. 2. The 

contract also stated, “[We] agree to pay [Hoffman Adjustment] a fee of 10% of 

claim proceeds when adjusted, or otherwise recovered on account of such loss, 

regardless of who effects the adjustment or recovery.” Id. The Nussbaums also 

agreed to pay Hoffman Adjustment for “legal fees and collection costs

regarding the pecuniary interest” Hoffman Adjustment had in their claim. Id. 

In addition to signing the contract, the Nussbaums also signed a notice to 

Farmers that Hoffman Adjustment was assisting with their claim. This notice 

was included on the same page as the contract. See id.

[4] Joseph Hoffman, a public adjuster and the sole incorporator of Hoffman 

Adjustment, immediately began working on the Nussbaums’ claims. He 

prepared and sent Farmers multiple documents: proof of loss, statement of loss, 

building loss evaluation, and inventory of lost goods. Hoffman calculated the 

replacement cost of the Nussbaums’ barn to be $878,383. The Nussbaums’ 

insurance policy had a limit of $280,000 for structures that were not the main 

residence, like the barn. 

[5] A few weeks after beginning work, Hoffman ran into complications with 

Farmers. Multiple coverage issues were discovered with the Nussbaums’ 

policy. First, Perez never physically appraised the barn after Kent asked for the 
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policy limit to be increased. Because no appraisal was done, Perez assigned an 

arbitrary replacement value of $280,000 to the barn. Additionally, Perez made 

no other changes to the policy despite knowing that the barn was being rented 

to a third party and was classified as a commercial property by Farmers. The 

Nussbaums’ policy continued to provide coverage to residential property only. 

Because of these issues, Hoffman was unable to move forward with Farmers 

regarding the damage to the barn and suggested that the Nussbaums hire an 

attorney. Hoffman, however, was able to continue processing the claims for the 

well house and debris clean up, and Farmers paid the Nussbaums a total of 

$10,974.57 for these claims. Pl. Ex. 6. The Nussbaums, in turn, paid Hoffman 

Adjustment $1097.06 for its services. Def. Ex. 4.

[6] While Hoffman was working on the well-house and debris claims, the 

Nussbaums followed his advice and hired an attorney to look into the problems 

with the barn’s insurance coverage. Hoffman provided the attorney with a copy 

of the documents he had amassed while attempting to process the barn claim

and agreed to serve as a factual witness. In October 2012, the Nussbaums filed 

suit against Farmers and Perez, claiming damages in excess of $800,000. The 

Nussbaums alleged that Farmers and Perez were negligent in failing to provide 

an insurance policy that properly covered their property. In April 2014, the 

Nussbaums, Farmers, and Perez reached an out-of-court settlement for 

$280,000—the exact amount the Nussbaums would have received had Farmers 

paid out their barn claim.
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[7] After learning about the settlement, Hoffman Adjustment informed the 

Nussbaums that it was entitled to 10%—$28,000—for its services. The 

Nussbaums denied Hoffman Adjustment’s request for payment, claiming that 

the company was “off the case” and that payment was “based on errors and 

omissions of Ruben Perez [and] had nothing to do with the policy[.]” Tr. Vol. 

II pp. 135, 156. In August 2014, Hoffman Adjustment filed suit against the 

Nussbaums and Farmers for recovery of its fee, interest, and attorney’s fees, for 

a total of $46,048.43 ($28,000 in actual damages, $6720 in interest, and 

$11,328.43 in attorney’s fees). Farmers did not respond to the suit, and a 

default judgment was entered against it, but the court delayed entering a 

damages award until after the trial between Hoffman Adjustment and the 

Nussbaums. 

[8] In May 2017, a trial was held on Hoffman Adjustment’s complaint. During the 

trial, Hoffman Adjustment argued that the settlement payment that the 

Nussbaums received for $280,000 was really an insurance payment for the loss 

of the barn and that the payment was covered under the contract it had with the 

Nussbaums. Hoffman Adjustment also noted that the settlement amount

matched the insurance-policy limit. The Nussbaums, on the other hand, argued 

that the settlement payment was not effectuated by any work that Hoffman 

Adjustment did and contended that the settlement was not a recovery under 

their insurance policy because the policy did not cover commercial property. 

They claimed that the settlement was due to negligence on the part of Perez. 
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[9] The trial court ruled in favor of the Nussbaums and vacated the default 

judgment against Farmers. The court emphasized that it had to give effect to 

the plain language of the contract but then quoted the notice provision sent to 

Farmers, believing it to be part of the contract: “[The contract] does have a 

provision in there and it says: The insured makes claim for all coverages 

granted by the insurance policy.” Id. at 206. The court concluded that the 

settlement payment had nothing to do with the work Hoffman Adjustment 

performed but, rather, was a result of Perez’s negligence and was not pursuant 

to coverage granted by the insurance policy. 

[10] Hoffman Adjustment appeals. 

Discussion and Decision

[11] We first note that neither the Nussbaums nor Farmers filed an appellee’s brief. 

When appellees fail to submit briefs, we will not undertake the burden of 

developing arguments for them. Price v. Lake Cty. Bd. of Elections & Registration, 

952 N.E.2d 807, 809 (Ind. Ct. App. 2011). We may reverse the trial court’s 

decision “if the appellant can establish prima facie error.” Id. Prima facie 

error, in this context, is defined as “at first sight, on first appearance, or on the 

face of it.” Id. If the appellant is unable to meet this burden, we will affirm. 

Trinity Home, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). 

[12] Hoffman Adjustment contends that the trial court erred when it ruled that the 

settlement payment the Nussbaums received from Farmers and Perez was
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outside the scope of the contract because it was based on Perez’s negligence and 

was not a payment under the insurance policy. When an issue of contract 

interpretation arises, we interpret the contract with the goal of “ascertaining and 

enforcing the parties’ intent” as revealed by the contract. Am. Family Mut. Ins. 

Co. v. Ginther, 843 N.E.2d 575, 578 (Ind. Ct. App. 2006). To do this, we must 

construe the contract as a whole. Id. Contract interpretation is a question of 

law, which we review de novo. Id. 

[13] The Nussbaums agreed that Hoffman Adjustment would “assist in the 

adjustment of my (our) loss” in exchange for “a fee of 10% of claim proceeds 

when adjusted, or otherwise recovered on account of such loss, regardless of 

who effects the adjustment or recovery.” Id. (emphasis added). The contract 

plainly states that Hoffman Adjustment is owed 10% of any claim proceeds 

recovered “on account of” the loss of the Nussbaums’ barn. It does not limit 

Hoffman Adjustment’s payment to recovery under only the insurance claim. 

The settlement payment was “on account of” the burning of the barn. 

Accordingly, under its contract with the Nussbaums, Hoffman Adjustment is 

entitled to recover 10% of the settlement amount.2 

 

2 Although the trial court reached a different conclusion, we understand why it might have done so. First, 

the Nussbaums signed a notice that Hoffman Adjustment was assisting with their claims. That notice was 

included on the same page as the contract and said, “The insured makes claim for all coverages granted by 

the insurance policy.” Pl. Ex. 2 (emphasis added). The contract and notice were separated by only 

signature and date lines and neither had a heading/title. See id. And second, during closing arguments, the 

Nussbaums’ attorney incorrectly represented the notice as part of the contract, stating, “And he says, right in 

his contract, where it says this at the bottom: the insured makes claim for all coverages granted by the 

insurance policy.” Tr. Vol. II p. 196. The trial court then requoted this language in its holding. The 
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[14] Furthermore, the court also stressed that Hoffman Adjustment was not able to 

effectuate the $280,000 payment and that it would be “patently unfair” for 

Hoffman Adjustment to recover its fee. Tr. Vol. II p. 206. The contract, 

however, explicitly stated that Hoffman Adjustment was to recover its fee 

“regardless of who effects the adjustment or recovery.” Pl. Ex. 2. Hoffman, as 

an employee of Hoffman Adjustment, did everything he could to assist in the 

adjustment of the Nussbaums’ barn claim. He submitted multiple documents to 

Farmers, including proof of loss, statement of loss, and inventory of lost goods, 

and calculated the total replacement value of the barn. It is not uncommon for 

a public adjuster to have to hand over a claim to an attorney to effectuate 

payment. But in this case, the hand off does not prevent Hoffman Adjustment

from recovering its 10% fee. Denying Hoffman Adjustment its fee ignores the 

plain language of the contract. Hoffman Adjustment has established a prima 

facie case that the trial court erred and that it is entitled to recovery under its

contract with the Nussbaums. 

[15] Hoffman Adjustment also argues that the trial court erred when it vacated the 

default judgment against Farmers. The trial court found that the settlement 

payment was not made under the insurance policy but was due to Perez’s 

negligence. However, the notice that Hoffman Adjustment sent Farmers was 

for the “claim for all coverages granted by the insurance policy.” Pl. Ex. 2. 

 

misunderstanding of what language was in the contract likely caused the trial court to narrow the scope of the 

contract to payments made under the insurance policy instead of payments “on account of” the barn burning. 
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Because Farmers’ payment to the Nussbaums was not made under the 

insurance policy, Farmers did not have proper notice to withhold Hoffman 

Adjustment’s 10% fee. Hoffman Adjustment has failed to establish a prima 

facie case of error. Accordingly, we affirm the trial court’s order vacating the 

default judgment against Farmers.

[16] As for the additional claims for attorney’s fees and interest, we remand to the

trial court for a hearing on damages to determine what amount Hoffman 

Adjustment is owed. 

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

May, J., and Altice, J., concur.