Court of Appeals of Indiana | Memorandum Decision 19A-CT-1512 | February 19, 2020 Page 1 of 16

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.

ATTORNEYS FOR APPELLANT

HISCOX INSURANCE COMPANY, INC.

Logan C. Hughes

Robert G. Sylvester

Reminger Co., L.P.A.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE 

MIDWAY AUCTION COMPANY

A/K/A GILBERT AND

ASSOCIATES, LLC

Glen E. Koch, II

Boren, Oliver & Coffey, LLP

Martinsville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Hiscox Insurance Company, Inc.,

Appellant-Defendant, Counter-Plaintiff/

Cross-Claimant,

v.

Sandra Sanford1and Midway 

Auction Company a/k/a Gilbert 

and Associates, LLC,

Appellee-Plaintiff, Counter-Defendant, 

Appellee-Defendant/Cross-Defendant.

February 19, 2020

Court of Appeals Case No.

19A-CT-1512

Appeal from the Morgan Superior 

Court 

The Honorable Sara A. Dungan, 

Judge

Trial Court Cause No.

55D03-1802-CT-261

Barnes, Senior Judge.

1

Sandford is represented by counsel in the trial court. Sanford’s counsel has entered an appearance in this 

interlocutory appeal but has not filed a brief with this Court. However, under Indiana Appellate Rule 17(A)

“A party of record in the trial court or Administrative Agency shall be a party on appeal.”
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1512 | February 19, 2020 Page 2 of 16

Statement of the Case

[1] Hiscox Insurance Company, Inc. (“Hiscox”) brings this interlocutory appeal 

from the trial court’s order denying its motion for summary judgment on a 

policy coverage issue, contending that the trial court erred by failing to find that 

Hiscox is entitled to judgment as a matter of law. We affirm.

Issue

[2] Hiscox presents the following issue which we restate as the following question:

Did the trial court err by failing to find that Hiscox properly 

cancelled the insurance policy issued to Gilbert and Associates, 

LLC (“Gilbert”) for non-payment of a premium, thus entitling 

Hiscox to judgment as a matter of law?

Facts and Procedural History

[3] Sandra Sanford (“Sanford”) filed a personal injury complaint alleging that she 

was injured on the premises of Midway Auction Company, owned and 

operated by Gilbert. Sanford’s injuries were alleged to have occurred on 

January 1, 2018, and her complaint was filed on February 16, 2018, contending 

that the injuries were suffered because of alleged negligence on the part of 

Gilbert. Gilbert then turned to Hiscox seeking coverage for Sanford’s claim 

under an insurance policy issued by Hiscox. Hiscox denied coverage alleging 

that the policy was cancelled for non-payment of the monthly premiums several 

months prior to Sanford’s alleged injury.
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[4] Next, on March 19, 2018, Sanford filed an amended complaint for damages 

seeking a declaratory judgment that Hiscox’s insurance policy was effective on 

the date of her alleged injury. On January 23, 2019, Hiscox filed its motion for 

summary judgment seeking a declaratory judgment that Hiscox properly 

cancelled its insurance policy for Gilbert’s non-payment of insurance premiums

such that the injuries alleged in Sanford’s complaint were not covered.

[5] On May 15, 2019, the trial court entered its order denying Hiscox’s motion for 

summary judgment. On June 14, 2019, Hiscox filed a motion to certify for 

interlocutory appeal the trial court’s decision on summary judgment, and the 

trial court granted Hiscox’s motion. This Court granted Hiscox’s request to 

accept the permissive interlocutory appeal.

[6] The pertinent facts developed through the argument on summary judgment are 

as follows. Hiscox markets and sells insurance products, including general 

liability insurance, professional liability insurance and a business owners policy 

which is combined property and liability coverage for small business owners in 

the United States. Those policies are sold directly to consumers on-line via the 

corporate website and through a call center. Insurance premiums are collected 

by credit or debit card, and insureds are given the option of paying premiums in 

a lump sum or monthly installments. Policy documents are transmitted to 

policyholders by email at the time of purchase.

[7] On May 25, 2017, Carl Gilbert (“Carl”), who owned Gilbert, contacted Hiscox 

and entered into a contract for a business owners policy No. UDC-1984671-
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BOP-17 (“the Policy”). During a phone call to Hiscox’s call center, Carl 

provided his name, telephone number, mailing address, email address, and 

debit card information linked to an account issued by Citizens Bank, to make

automatic, monthly payments. Carl was the only individual with access to that 

bank account.

[8] The correct mailing address for Gilbert is as follows:

Gilbert and Associates, LLC

554 W. State Rd. 42

Mooresville, IN 46158

The address entered into the Hiscox database was as follows:

Gilbert and Associates, LLC

554 W. State Rd. 42

42

Mooresville, IN 46158

Appellant’s App. Vol. II, pp. 153, 167.

[9] The incorrect address is found in four separate places in the Policy. Id. at 39, 

114, 116. In the application summary, the address for Gilbert is listed twice 

with the additional “42” on a separate line. Id. at 114, 116. That same address 

appears twice in the “Businessowners Insurance Declarations” portion of the 

Policy. Id. at 39.

[10] The “Your Insurance documents” section of the Policy includes two provisions 

reading as follows:
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1512 | February 19, 2020 Page 5 of 16

Enclosed you will find the policy documents that make up your 

insurance contract with us.

 

Please read through all of these documents. If you have any 

questions or need to update any of your information please call 

us at 888-202-3007 (Mon-Fri, 8am-10pm EST).

* * *

Application Summary

This is a summary of the information that you provided to us as 

part of your application. Please review this document and let us 

know if any of the information is incorrect.

Id. at 37.

[11] Hiscox received two subsequent payments from Gilbert on July 26, 2017 and 

August 28, 2017 but received no additional premium payments for the Policy. 

Sometime around September 15, 2017, the debit card number associated with 

Gilbert’s account with Citizens Bank changed. Although automatic payments

for other Gilbert’s contractual obligations continued after the card number 

changed, no payments were made for the Policy after September 2017, and 

Hiscox did not receive a payment due in September 2017. Gilbert’s bank 

statement did not include a record of payment for the insurance premium in 

September. 

[12] When an insured fails to pay its premium, Hiscox will cancel the policy 

pursuant to the terms of cancellation set forth in the Policy, which provides in 

pertinent part as follows:
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III–COMMON POLICY CONDITIONS (APPLICABLE TO 

SECTION I–PROPERTY AND SECTION II–LIABILITY) 

A. Cancellation

* * *

2. We may cancel this policy by mailing or delivering to the first 

Named Insured written notice of cancellation at least:

* * *

b. 10 days before the effective date of cancellation if we cancel 

for nonpayment of premium. 

3. We will mail or deliver our notice to the first Named Insured’s 

last mailing address known to us.

* * *

6. If notice is mailed, proof of mailing will be sufficient proof of 

notice.

Id. at 88-89.

[13] Hiscox’s normal business practice in Indiana for cancelling policies for 

nonpayment of a premium is to mail a notice of cancellation to the last known 

address of the named insured at least ten days prior to the effective date of the 

cancellation. Hiscox’s normal business practice also includes obtaining a 

certificate of mailing from the United States Postal Service verifying the date 

the notice of cancellation was transmitted to the named insured at the address 

in the Policy. The address listed on the certificate of mailing was as follows:

Gilbert and Associates, LLC

554 W State Rd 42 42

Mooresville, IN 46158
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Appellant’s App. Vol. II, p. 166.

[14] On October 11, 2017, Hiscox prepared a notice of cancellation of the Policy to 

Gilbert at the address with the additional “42” on a separate line as appeared in 

the Policy and informed Gilbert that the Policy would be cancelled on October 

26, 2017 at 12:01 a.m. local time. Id. at 34, 120. The notice also indicated that 

if the premium due was received prior to the cancellation date, the Policy 

would remain in effect. Id. The certificate of mailing issued by the United 

States Postal Service, however, confirmed the mailing of the notice on October 

11, 2017, but at the address with the additional “42” appearing on the same line 

instead of a separate line. Id. at 120.

[15] Hiscox claimed that it also took the additional step, not required by contract, of 

leaving a voicemail message to Gilbert from Hiscox’s call center informing 

Gilbert of the unpaid premium. Hiscox further claimed it did not receive 

payment of the outstanding premium and did not receive a response from 

Gilbert after the notice was mailed. Hiscox stated the Policy was cancelled by 

means of a cancellation endorsement on October 26, 2017. Hiscox further 

stated that the endorsement was transmitted to Gilbert via email.

[16] Carl filed an affidavit in opposition to Hiscox’s motion. He denied receiving 

the notice of cancellation via U.S. Mail or receiving the voicemail message 

from Hiscox’s call center. Id. at 53-54. Further, he averred that when he made 

the claim with Hiscox an agent told him over the phone that Hiscox’s system 

had a problem delivering email to Gmail accounts. Id. at 153. Carl further 
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stated that he had a Gmail address, and that he had never received an email 

notifying him that he was delinquent in paying the premiums or that the Policy 

was going to be cancelled. Id. at 154. Additionally, he stated that it was a 

Hiscox agent who had entered the address into their database and that he never 

had access to or manipulated Hiscox’s databases. Id. at 153-54. 

[17] After hearing arguments and considering the designated materials, the trial 

court entered its order denying Hiscox’s motion for summary judgment. 

Discussion and Decision

[18] Hiscox appeals from the denial of its motion for summary judgment. Our wellsettled standard of review is as follows:

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. 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.

The initial burden is on the summary-judgment movant to 

demonstrate the absence of any genuine issue of fact as to a 

determinative issue, at which point the burden shifts to the nonmovant to come forward with contrary evidence showing an

issue for the trier of fact. And although the non-moving party 

has the burden of persuading us that the grant of summary 

judgment was erroneous, we carefully assess the trial court’s 
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decision to ensure that he was not improperly denied his day in 

court.

* * * 

Summary judgment is a desirable tool to allow the trial court to 

dispose of cases where only legal issues exist. But it is also a 

blunt . . . instrument, by which the non-prevailing party is 

prevented from having his day in court. We have therefore 

cautioned that summary judgment is not a summary trial, and 

the Court of Appeals has often rightly observed that it is not 

appropriate merely because the non-movant appears unlikely to 

prevail at trial. In essence, Indiana consciously errs on the side 

of letting marginal cases proceed to trial on the merits, rather 

than risk short-circuiting meritorious claims.

Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014) (internal quotations, 

citations, and parentheticals omitted).

[19] “It has long been held in Indiana that insurance policies are governed by the 

law of contracts.” Pekin Ins. Co. v. Wheeler, 493 N.E.2d 172, 174 (Ind. Ct. App. 

1986). “[T]he term ‘cancellation’ refers to the termination of a policy at the end 

of the policy period.” Am. Family Mut. Ins. Co. v. Ramsey, 425 N.E.2d 243, 244 

(Ind. Ct. App. 1981). “As a general rule, once a valid contract of insurance has 

been effectuated, the right of either party to cancel it at pleasure can accrue in 

only three ways: by a concurrent agreement, by a reservation in the policy, by 

statute.” Cook v. Mich. Mut. Liab. Co., 289 N.E.2d 754, 758 (Ind. Ct. App. 1972)

(quoting Bushnell v. Krafft, 183 N.E.2d 340, 343 (Ind. Ct. App. 1962)), trans. 

denied. 
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1512 | February 19, 2020 Page 10 of 16

[20] Where the right to cancel exists only by contract, a cancellation clause is a 

condition requiring strict compliance to make an attempted cancellation valid. 

Hibler v. Conseco, Inc., 744 N.E.2d 1012, 1018 (Ind. Ct. App. 2001) (citing 3

ERIC M. HOLMES, HOLMES’ APPLEMAN ON INSURANCE 2D § 16.7 at 

354 (2d ed.1998)). In Moore v. Vernon Fire & Cas. Ins. Co., 234 N.E.2d 661, 663 

(Ind. Ct. App. 1968), the Court at that time held that strict compliance with the 

terms of the policy was not necessary, that is, where the notice of cancellation 

stated an effective date less than ten days from the mailing of the notice, the 

notice was sufficient to cancel the policy ten days after the mailing of the notice. 

The Court further held that the notice was sufficient to inform the insured of the 

insurer’s intentions to cancel the policy and to provide the insured with more 

time than required in the policy to obtain other insurance. 

[21] Several cases from this jurisdiction and others have analyzed a variety of 

aspects of cancellation of insurance policies. We recite them here to thoroughly 

explain our decision.

[22] Starting first with cases involving the law in Indiana, the Seventh Circuit Court 

of Appeals, in State Farm Mut. Auto. Ins. Co. v. Perrin, 331 F.2d 565, 568 (7th Cir. 

1964), observed that the majority view among states was that these cancellation 

clauses similar to the one at issue here were not ambiguous and that proof of 

depositing in the mail was sufficient to constitute notice regardless of the 

insured’s lack of actual receipt.
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[23] In deciding that case, the Seventh Circuit quoted from Cnty. of Williamson v. 

Standard Accident Ins. Co., 32 Ill. App. 2d 363, 365, 178 N.E.2d 149, 150 (Ill. Ct. 

App. 1961), because the court found no Indiana cases yet addressing the issue. 

In that case, the insurer denied a claim, contending that the policy had been 

cancelled pursuant to a clause providing that mailing of notice shall be 

sufficient proof of notice. The address on the policy was incorrect but was 

mailed to the incorrect address as shown on the policy and was never actually 

received by the insured. The court noted that the insured had the policy in its 

possession for seven months prior to cancellation, and that the insured did not 

object to the correctness of the address reflected in the policy. The court cited

to several cases, which follow, in support of its decision.

[24] In Raiken v. Commercial Cas. Ins. Co., 135 A. 479, 480 (N.J. 1926). The New 

Jersey Supreme Court was asked to decide whether a notice of cancellation 

mailed to the address, which was incorrect, but listed in the policy, and 

returned to the insurer, constituted a valid cancellation of the policy. Despite 

evidence showing that the insurer was aware of the correct address of the 

insured, but had not corrected the policy to reflect such, the insurer had 

followed the terms of the policy and the cancellation was valid. 

[25] Next, in Duff v. Secured Fire & Marine Ins. Co., 227 S.W.2d 257 (Tex. Civ. App. 

1949), a notice of cancellation was held to be valid because the address listed in 

the policy was the only post office in Texas with that specific address. Evidence 

that the address did not completely match that as listed in the policy because it 

failed to include “El Paso” did not render the cancellation ineffective. The 
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parties had contracted for delivery of the notice to the post office and not the 

individual insured. Evidence that the insured did not receive the notice did not 

invalidate the cancellation. 

[26] In contrast, in Irving v. Sunset Mut. Life Ins. Co., 4 Cal. App. 455, 41 P.2d 194, 

196 (Cal. App. 1935), a case in which the insured notified the insurer of a 

mistake in address, but the agent failed to make a correction, proof of mailing 

was ineffective to constitute notice of cancellation. The mistake was made by 

an agent of the insurer and the policy was not corrected. Such prevented the 

insurer from asserting a defense against coverage under the policy. 

[27] In Boyle v. Inter Ins. Exch. of Chi. Motor Club, 82 N.E.2d 179, 180 (Ill. Ct. App. 

1948), the court held that a complete defense was shown by the insurer. The 

cancellation clause is the same as that in the present appeal and in the other 

cases. The evidence in Boyle showed that the notice of cancellation was mailed 

to the insured by the insurer to the address, albeit the incorrect address, but the 

one set forth in the policy.

[28] Later, returning to Indiana cases, in Farber v. Great Am. Ins. Co., 406 F.2d 1228, 

1229 (7th Cir. 1969), the Seventh Circuit Court of Appeals applied Indiana law 

to resolve a dispute involving two attacks on the cancellation clause of the 

insurance policy. The insured attacked the effectiveness of the cancellation 

because it was mailed less than the 10 days before cancellation. The insured 

also attacked the validity of the cancellation on the grounds that the notice was 

never actually received in the mail. The Seventh Circuit cited Moore, 234 
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N.E.2d at 663, to hold that, under the cancellation clause at issue, mailing of 

notice, not actual receipt, was sufficient to comply with the terms of the 

insurance contract. The cancellation was, therefore, valid and became effective

ten days from the date of its mailing. 

[29] United Farm Bureau Mut. Ins. Co. v. Adams, 251 N.E.2d 696, 700 (Ind. Ct. App. 

1969), involves a declaratory judgment action. The insureds were involved in a 

collision and sought coverage from their insurer. The insurer denied coverage, 

claiming that the policy had been cancelled by mailing notice prior to the 

accident due to the insured’s failure to pay premiums. The policy contained the 

same cancellation clause as the one involved in the present case, including the 

provision that mailing of notice shall be sufficient proof of notice. The insured 

claimed that no notice of cancellation was received. Because of language in the 

policy, the issue of receipt of the notice was factually irrelevant, but the issue of 

proof upon mailing was a live issue. There were enough gaps in the evidence to 

find that there was insufficient proof of mailing.

[30] In Conrad v. Universal Fire & Cas. Ins. Co., 686 N.E.2d 840 (Ind. 1997), our 

Supreme Court addressed an appeal involving the mailing by an insurer of a 

cancellation notice by certified mail return receipt requested. The address used 

for mailing was the correct address as it appeared in the policy. The policy 

neither required nor prohibited the use of certified mail return receipt requested

as the method of mailing. The language in the policy included the provision 

that “proof of mailing shall be sufficient proof of notice.” Id. at 841. The Court 

held that proof of mailing did not create an irrebuttable presumption of notice, 
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where the notice was returned to the insurer marked “unclaimed.” Summary 

judgment in favor of the insurer was reversed. In the present case, there was no 

certified mail issue, therefore, there was no return of the notice showing the 

mailing was “unclaimed.” 

[31] Although there are many other cases from other jurisdictions addressing the 

issue, the above is a sufficient sampling of decisions regarding challenges to 

cancellation notices and the addresses to which they are sent. Further, we note 

it appears that compliance with Indiana statutes pertaining to cancellation of 

policies is not at issue in the present case. See Ind. Code §§ 27-1-31-2, 2.5

(1988).

[32] Turning to the present appeal, we conclude that the trial court correctly denied 

Hiscox’s motion for summary judgment. The incorrect address in the policy 

appears in the document providing a notice of cancellation. However, the 

certificate of mailing stamped by the United States Postal Service shows that the 

notice was mailed to an address different from the one appearing in the Policy, 

but also incorrect. The additional “42” did not appear on a separate line as it 

does in the Policy. As in Adams, 251 N.E.2d 696, the issue of receipt of the 

notice is factually irrelevant. However, the issue of proof of mailing presents a 

genuine issue of material fact including, but not limited to, who was responsible 

for the error in entering Gilbert’s address into the Hiscox database, and what 

happens when a means of delivery used by the parties to the contract, such as 

electronically by email, fails or has intermittent delivery issues. 
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[33] The following language from Adams, concerning public policy considerations, 

albeit regarding motor vehicle liability insurance, seems relevant here. The 

following quote is worth considering.

However, before moving to that task, we are moved to remark that 

the method in which this question is brought before the court is very 

appropriate in light of the important policy considerations inherent 

in the situation. Notice of motor vehicle liability insurance 

cancellation touches an area of public interest far beyond the scope 

of the relationship of the parties before us. The dangers of driving 

uninsured vehicles are obvious. Not only may one be subjected to 

the risk of a large financial liability at the hands of a negligently 

injured person, but the opportunity for that other injured party to 

gain a reasonable amount of damages for his injury is considerably 

lessened. It is for the benefit of every driver and passenger on our 

roads today, as well as ourselves, that we carry liability insurance. 

When this protection is being cancelled, public policy demands a 

strict compliance with the procedure involved so that the insured, or 

former insured, may be given reasonable opportunity to make other 

insurance arrangements before his old coverage is denied.

145 Ind. App. at 519-20, 251 N.E.2d at 698.

[34] As industries evolve to take advantage of advancements in technology, 

adjustments have been made to the means of acquiring insurance. We must be 

mindful to strike a balance between the competing interests of lowering the cost 

of overhead and generating more business volume against providing liability 

coverage at a reduced rate while providing coverage to protect those whose risk

is contemplated by the insurance. 

[35] As stated in Hibler, “Where the right to cancel exists only by contract, a 

cancellation clause is a condition requiring strict compliance to make an 
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attempted cancellation valid.” 744 N.E.2d at 1018. Hiscox claims that it 

mailed the notice to the address provided in the Policy and that it was Gilbert’s 

contractual duty to read the contract in its entirety and notify Hiscox of any 

inaccuracies. Gilbert argues that it was never in charge of nor had access to the 

Hiscox database and provided the agent at the call center with the correct 

information. Hiscox supports its argument in part by the certificate of mailing, 

which visibly shows an incorrect address not appearing in the Policy. Yet, the 

Policy provides that proof of mailing is sufficient proof of notice. Resolution of 

this issue requires a trier of fact where the parties’ accounts of the truth differ, or 

the undisputed material facts support conflicting reasonable inferences. See 

Hughley, 15 N.E.3d at 1003. Such is the case here.

[36] Viewing the evidence most favorable to Gilbert, the non-moving party, we 

conclude, as did the trial court, that there exists a genuine issue of material fact 

such that summary judgment in favor of Hiscox is inappropriate.

Conclusion

[37] In light of the foregoing, we affirm the trial court’s denial of Hiscox’s motion 

for summary judgment.

[38] Affirmed.

Mathias, J., and Pyle, J., concur.