Court of Appeals of Indiana | Opinion 20A03-1707-PL-1702 | February 14, 2018 Page 1 of 9

ATTORNEY FOR APPELLANT

Jay A. Rigdon

Rockhill Pinnick LLP

Warsaw, Indiana

ATTORNEYS FOR APPELLEE

Eileen S. Pruitt

Barnes & Thornburg LLP

South Bend, Indiana

Mark J. Crandley 

Annette England 

Barnes & Thornburg LLP 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Sandra S. Weaver,

Appellant-Plaintiff,

v.

Elkhart Community School 

Corporation,

Appellee-Defendant.

February 14, 2018

Court of Appeals Case No.

20A03-1707-PL-1702

Appeal from the Elkhart Circuit

Court

The Hon. Michael A. Christofeno, 

Judge

Trial Court Cause No. 

20C01-1406-PL-175

Bradford, Judge.
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Case Summary

[1] Appellant-Plaintiff Sandra Weaver was married to David McGuire, an 

employee of Appellee-Defendant Elkhart Community School Corporation 

(“ECS”). As part of McGuire’s employment contract with ECS (“the 

Contract”), ECS paid for a life insurance policy, with Weaver as the 

beneficiary. In 2012, after becoming ill, McGuire resigned from ECS 

(terminating the life insurance policy) and died early the next year. Weaver 

sued ECS, asserting several claims stemming from her allegation that an ECS 

employee advised her that McGuire should resign instead of applying for longterm disability coverage, which would have left the life insurance policy in 

place. 

[2] ECS moved to dismiss (and later for summary judgment on) Weaver’s claims, 

arguing that Weaver had failed to comply with the notice provisions of the 

Indiana Tort Claims Act (“the ITCA”). The trial court denied ESC’s motions 

on ITCA grounds but granted it summary judgment on the basis that Weaver’s 

claims are without merit as a matter of law. Weaver contends that the trial 

court erred in granting ECS summary judgment at all, while ECS argues that 

the trial court should have granted summary judgment and/or dismissed 

Weaver’s claims on ITCA grounds. Because we are convinced by ECS’s 

argument, we reverse the judgment of the trial court and remand with 

instructions to dismiss Weaver’s claims. 
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Facts and Procedural History

[3] Before he passed away, McGuire was married to Weaver and a supervisor of 

curriculum for ECS. Pursuant to the Contract, ECS paid for an insurance 

policy on his life, with Weaver as the beneficiary. McGuire developed brain 

cancer and, in the spring and summer of 2012, it became clear that he would 

not be able to continue working. On May 15, 2012, McGuire submitted his 

resignation to ECS, to be effective on July 1, 2012, which, inter alia, terminated 

the life insurance coverage. McGuire died on March 7, 2013. 

[4] On June 23, 2014, Weaver sued ECS, asserting several claims, namely breach 

of fiduciary duty, constructive fraud, interference with contractual relationship, 

and breach of implied contract of good faith and dealing. At the heart of all of 

Weaver’s claims is the allegation that an ECS employee advised her that 

McGuire should resign instead of applying for long-term disability coverage. It 

does not appear to be in dispute that, had McGuire applied for disability 

coverage instead of resigning, his life insurance coverage would have continued. 

Weaver requested damages in the amount of two years of McGuire’s salary. 

[5] On August 4, 2015, ECS moved to dismiss on the ground that Weaver had 

failed to serve the required statutory notice pursuant to the ITCA, which 

motion the trial court denied on January 6, 2016. On October 26, 2016, ECS 

moved for summary judgment both on the ITCA ground and the ground that 

the undisputed facts did not support Weaver’s claims as a matter of law. On 

March 21, 2017, the trial court granted ECS’s summary judgment motion. On 
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April 24, 2017 Weaver filed a motion to correct error that the trial court denied 

on June 26, 2017. 

Discussion and Decision

[6] Weaver contends that the trial court erred in entering summary judgment in 

favor of ECS on the basis that her claims failed as a matter of law. Also, 

apparently anticipating ECS’s lead argument, Weaver argues that her claims 

are not subject to the ITCA, as they arose from the Contract and are, therefore, 

contract claims. ECS argues that the trial court should have dismissed 

Weaver’s claims or entered summary judgment in favor of ECS on the ground 

that they sound in tort and that she failed to satisfy the notice requirements of 

the ITCA. We choose to address the fundamental question of whether 

Weaver’s claims sound in tort or contract, the answer to which renders it 

unnecessary to address them further. 

[7] As mentioned, Weaver brought claims of breach of fiduciary duty, intentional 

interference with contract, constructive fraud, and breach of the implied 

contract of good faith and dealing: 

14. Defendant’s action in advising McGuire and Weaver 

that McGuire should resign instead of applying for long term 

disability was a breach of Defendant’s fiduciary responsibility to 

McGuire and to Plaintiff. Defendant was aware of the financial 

advantages that would accrue to it and the disadvantages that 

would accrue to Weaver should the alternative be taken, and 

failed to advise McGuire of those advantages. 

15. Defendant’s actions in this case constituted 

constructive fraud, and damaged Weaver.
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16. Defendant’s advice to McGuire interfered with the 

contractual relationship that existed between McGuire and the 

life insurance company providing insurance coverage for 

McGuire.

17. Defendant breached its implied contract of good faith 

and fair dealing as an employer of McGuire, and its advice cost 

McGuire a benefit that he believed he was entitled to, and 

Weaver insurance coverage that she would have received.

Appellant’s App. Vol. II pp. 34–35. 

[8] The question is whether these allegations sound in tort or in contract, the claim 

that they sound in tort being the basis of ECS’s motion to dismiss. 

A motion to dismiss under Ind. Trial Rule 12(B)(6) is made to 

test the legal sufficiency of the claim, not the supporting facts. 

Hosler ex rel. Hosler v. Caterpillar, Inc., 710 N.E.2d 193, 196 (Ind. 

Ct. App. 1999). When reviewing a T.R. 12(B)(6) motion to 

dismiss, we view the pleadings in the light most favorable to the 

non-moving party, and draw every reasonable inference in favor 

of that party. Minks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App. 

1999). We will affirm a successful T.R. 12(B)(6) motion when a 

complaint states a set of facts, which, even if true, would not 

support the relief requested in that complaint. Burress v. Indiana 

Farmers Mut. Ins. Group, 626 N.E.2d 501, 503 (Ind. Ct. App. 

1993), trans. denied (1994). Moreover, we will affirm the trial 

court’s grant of a motion to dismiss if it is sustainable on any 

theory or basis found in the record. Id. When reviewing a ruling 

on a motion to dismiss, we stand in the shoes of the trial court 

and must determine if the court erred in its application of the 

law. Novicki v. Rapid-American Corp., 707 N.E.2d 322, 323 (Ind. 

Ct. App. 1999). 

C & E Corp. v. Ramco Indus., Inc., 717 N.E.2d 642, 643–44 (Ind. Ct. App. 1999). 
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[9] As a commentator has observed, 

The fundamental difference between tort and contract lies in the 

nature of the interests protected. Tort actions are created to 

protect the interest in freedom from various kinds of harm. The 

duties of conduct which give rise to them are imposed by the law, 

and are based primarily upon social policy, and not necessarily 

upon the will or intention of the parties. They may be owed to 

all those within the range of harm, or to some considerable class 

of people. Contact actions are created to protect the interest in 

having promises performed. Contract obligations are imposed 

because of conduct of the parties manifesting consent, and are 

owed only to the specific individuals named in the contract. 

WILLIAM L. PROSSER, LAW OF TORTS 634 (3d. ed. 1964). Along the same 

lines, the Indiana Supreme Court has noted that “[i]t is axiomatic that tort 

obligations arise, not from an agreement between the parties, but by operation 

of law.” Erie Ins. Co. v. Hickman by Smith, 622 N.E.2d 515, 518 (Ind. 1993). 

[10] Consistent with these principles, the appellate courts of Indiana have addressed 

whether each of the specific claims brought by Weaver is a tort and have 

determined that each is. This court has determined that “[b]reach of fiduciary 

duty is a tort claim for injury to personal property[.]” Farmers Elevator Co. of 

Oakville v. Hamilton, 926 N.E.2d 68, 79 (Ind. Ct. App. 2010), trans. denied. As 

for constructive fraud, this court has declared that “[e]ven though a constructive 

fraud claim can relate to a contract, it is grounded in duty, breach of duty and 

deceit. Hence, a constructive fraud claim is a tort, and the Indiana Tort Claims 

Act applies to this claim.” Ind. Dep’t Of Transp. v. Shelly & Sands, Inc., 756 

N.E.2d 1063, 1077–78 (Ind. Ct. App. 2001), trans. denied. A claim for 
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interference with a contractual relationship—even though clearly related to and 

derivative of a contractual relationship—sounds in tort: “In contrast to a 

breach of contract claim, which does not necessarily involve intentional 

wrongdoing, a claim of intentional interference with contract is established only 

when there is tortious conduct, i.e., that which is intentional and unjustified.” 

Bilimoria Computer Sys., LLC v. Am. Online, Inc., 829 N.E.2d 150, 156 (Ind. Ct. 

App. 2005). 

[11] Finally, a claim that a party to a contract has breached its duty of good faith 

and fair dealing with another party has also been squarely held to be a tort, 

despite, again, arising out of a contractual relationship: 

Indiana law has long recognized that there is a legal duty implied 

in all insurance contracts that the insurer deal in good faith with 

its insured.[1] [Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 

609, 349 N.E.2d 173, 181 (Ind. 1976)]; Wedzeb Enterprises v. Aetna 

Life & Cas. Co. (1991), Ind. App., 570 N.E.2d 60, 63; [Liberty 

Mutual Ins. Co. v. Parkinson, 487 N.E.2d 162, 164 (Ind. Ct. App. 

1985), trans. denied]. Whether breach of this duty constitutes a 

tort involves a judicial balancing of three factors: (1) the 

relationship between the parties, (2) the reasonable foreseeability 

of harm to the person injured, and (3) public policy concerns. 

[Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991)]. 

Erie Ins., 622 N.E.2d at 518. So, while we express no opinion on the merits of 

any of Weaver’s claims, they are clearly all torts, as she alleges violations of 

 

1

 We shall assume, without deciding, that ECS qualifies as an “insurer” and therefore had a duty to act in 

good faith with McGuire. 
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duties imposed by law, not by contract. None of Weaver’s claims allege that 

ECS breached the terms of the contract in any respect, and a claim that does 

not allege the violation of a contractual duty is not a contract claim. 

[12] Having determined that Weaver’s claims sounded in tort, compliance with the 

notice provisions of the ITCA is a condition precedent to filing a tort suit

against a qualifying political subdivision, which Weaver acknowledges did not 

occur in this case. See Orem v. Ivy Tech State College, 711 N.E.2d 864, 869 (Ind.

Ct. App. 1999) (noting that the “notice provision is ... procedural precedent 

which must be fulfilled before filing suit”), trans. denied. A claimant must tender 

the statutorily prescribed notice within 180 days after the alleged loss. See Ind. 

Code §§ 34-13-3-8, -12; Orem, 711 N.E.2d at 869 (noting that tort claims 

brought against a political subdivision “are barred unless the governing body of 

the political subdivision is given notice of the claim within one hundred and 

eighty days after the loss occurs.”). Once a defendant raises the failure to 

comply with the ITCA, “the burden shifts to the plaintiff to prove 

compliance[,]” Davidson v. Perron, 716 N.E.2d 29, 34 (Ind. Ct. App. 1999), 

which Weaver does not even attempt to do. Indiana courts have consistently 

held that the failure to comply with the ITCA’s notice requirements requires 

dismissal. See, e.g., Orem, 711 N.E.2d at 870. Because Weaver brought only 

tort claims against ECS but failed to comply with the notice provisions of the 

ITCA, we reverse the judgment of the trial court and remand with instructions 

to dismiss Weaver’s claims on that basis. 

[13] We reverse the judgment of the trial court and remand with instructions. 
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Robb, J, and Crone, J., concur.