Court of Appeals of Indiana | Memorandum Decision 10A04-1711-CT-2816 | August 2, 2018 Page 1 of 23

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

Alan W. Roles

Coleman, Roles & Associates, PLLC

Louisville, Kentucky

ATTORNEYS FOR APPELLEE

John W. Mervilde

Rick D. Meils

Meils Thompson Dietz & Berish

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Terry L. Balz,

Appellant-Defendant,

v.

Claims Professional 

Representatives, LLC,

Appellee-Plaintiff.

August 2, 2018

Court of Appeals Case No.

10A04-1711-CT-2816

Appeal from the Clark Circuit

Court 1

The Honorable Marsha Owens 

Howser, Special Judge

Trial Court Cause No.

10C01-1306-CT-091

Barnes, Senior Judge.

Case Summary

[1] Terry L. Balz appeals from the grant of summary judgment in favor of Claims 

Professional Representatives, LLC (“CPR”). We affirm.
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Issue

[2] The sole issue before us is whether genuine issues of material fact precluded 

entry of summary judgment in favor of CPR.

Facts

[3] On January 8, 2018, Balz’s home (“the premises”), located in Clark County,

was destroyed by fire and deemed a complete loss. Balz suffered serious 

injuries in the fire. At the time, the premises were insured under a 

homeowners’ insurance policy (“Policy”) issued by United Farm Family 

Mutual Insurance Company (“Farm Bureau”). The Policy included the 

following “Physical Damage Coverages”: $123,724 for the “Dwelling”; 

$12,372 for “Other Structures”; $61,900 for “Personal Property”; and $24,700 

for “Loss of Use.” App. Vol. II p. 35. The “functional replacement cost loss 

settlement” endorsement of the Policy states, in part: 

(1) “If, at the time of loss[ ] 

. . . 

(b) You contract for repair or replacement of the damaged building for 

the same use, within 180 days of the damage unless we otherwise agree; 

we will pay, after application of deductible, the lesser of the following 

amounts:

(a) [the policy limits applicable to the building]; or 
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(b) “[t]he necessary amount actually spent to repair or replace the 

damaged building on a “functional replacement cost” basis. . . . .

Id. at 91.

[4] On or about January 11, 2010, Balz received the first of three letters from CPR, 

a public adjusting company, seeking to represent him in his claim negotiations 

with Farm Bureau. Balz subsequently executed a “Limited Authority 

Authorization & Assignment” agreement with CPR on or about February 12, 

2010, wherein he gave CPR the right to “prepare and present” his claim to 

Farm Bureau; instructed Farm Bureau to “recognize [CPR] as a party in 

interest and [to] discuss limit of coverage and/or value(s) of the aforementioned 

loss(es) with [CPR]”; authorized Farm Bureau to release all insurance claim 

records to CPR; provided written notice to Farm Bureau that CPR’s agent, Lisa 

VanHimbergen, would “develop, present and negotiate” on his behalf; and 

agreed to pay CPR “10% of the amount of the settlement, judgment, or award 

proceeds, when recovered . . . .” App. Vol. III pp. 106, 117. Balz contends, 

and CPR disputes, that by executing the agreement with CPR, he relinquished 

his right to communicate with Farm Bureau directly and was foreclosed from 

doing so. 

[5] Before the fire, Balz, who was skilled in construction, had purchased materials 

to remodel his house. After the fire, he believed that he could rebuild the 

house—an approximately $60,000 repair—for approximately $35,000, if he 

provided some labor himself and hired subcontractors only for work that he 
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could not complete himself. He asked VanHimbergen to relay his request to 

Farm Bureau. 

[6] CPR counters that, by insisting on serving as the contractor responsible for 

performing the repairs and “demand[ing] that the money be paid directly to 

him,” Balz refused to comply with the Policy provision requiring him to “to 

contract for repair or replacement of the damaged building” and, thereby, 

forfeited recovery for functional replacement costs. App. Vol. II p. 10. 

[7] VanHimbergen presented Balz’s insurance claim to Farm Bureau, which agreed 

to pay the entire limits under the policy to or on behalf of Balz, including 

functional replacement costs of $34,277.46. App. Vol. II p. 10. On or about 

July 7, 2010, Farm Bureau paid full policy limits to CPR, but did not pay

functional replacement costs. CPR collected its fee in the amount of $19,572.40

and paid the remaining monies to Balz.

[8] On June 25, 2013, Balz sued CPR for breach of contract, breach of the duty of 

good faith and fair dealing, fraud in the inducement, constructive fraud, 

negligent misrepresentation, criminal conversion, tortious conversion, 

intentional infliction of emotional distress, negligent infliction of emotional 

distress, and punitive damages. In his complaint, Balz alleged that CPR: (1) 

fraudulently induced his execution of the representation agreement through

express and implied promises “made to lure [him] into executing the 

[agreement]”; (2) failed to perform its claims processing duties; (3) failed to 

collect functional replacement cost insurance proceeds owed to him in the
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amount of $34,277.46; (4) wrongfully collected a fee of $19,572.40; and (5) 

allowed the statute of limitations to run, resulting in Balz forfeiting his 

opportunity to recover insurance benefits for functional replacement costs.

App. Vol. III p. 172.

[9] On December 12, 2016, CPR moved for summary judgment. CPR’s 

designated materials included a deposition of Balz, taken on November 19, 

2015; and the deposition of VanHimbergen, taken on October 25, 2016. The 

trial court conducted a hearing on CPR’s motion for summary judgment on 

September 25, 2017. It entered summary judgment in CPR’s favor on October 

30, 2017. The trial court’s order provided, in part, as follows:

3. That on or about February 12, 2010, CPR and Balz

entered into a contract wherein CPR agreed “to render such 

services to the insured (Balz); to prepare and present insureds 

[sic] claim for loss and damage caused” by fire on January 8, 

2010. In exchange, Balz agreed to pay “CPR for services 

promised a sum of 10% of the amount of settlement.”

4. That CPR presented Balz’s claim to Balz’s insurer, Indiana 

Farm Bureau Insurance[,] thereby fulfilling its contractual 

obligations.

5. That Indiana Farm Bureau agreed to pay the entire limits 

under the policy to or on behalf of Balz.

6. That lndiana Farm Bureau agreed on behalf of Balz [to] 

“functional replacement costs” in the amount of $34,277.46.
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7. That the subject policy of insurance with Indiana Farm 

Bureau provided, “If at the time of the loss, (B) you contract for 

repair or replacement of the damaged building for the same use 

within l80 days [of the damage unless we and you otherwise 

agree; we will pay, after application of deductible, the lesser of 

the following amounts: (a) The limit of liability under this policy 

that applies to the building; or (b) The necessary amount actually 

spent to repair or replace the damaged building on a “functional 

replacement cost basis. . . . ”].

8. That Balz refused “to contract for repair or replacement of 

the damaged building” as expressly provided by the policy of 

insurance. Instead, he demanded that the money be paid directly 

to him.

9. That CPR fulfilled its contractual obligations and was 

entitled to a fee equal to 10% of the policy limits.

10. That Balz’s claims for (l) Breach of Contract, (2) Breach of 

the Duty of Good Faith and Fair Dealing, (3) Fraud in the 

lnducement, (4) Constructive Fraud, (5) Negligent 

Misrepresentation, (6) Criminal Conversion, (7) Tortious

Conversion, (8) Intentional lnfliction of Emotional Distress, and 

(9) Negligent lnfliction of Emotional Distress all fail as a matter 

of law.

App. Vol. II pp. 9-10. Balz now appeals.

Analysis

[10] Balz argues that the trial court erred by granting summary judgment to CPR. 

The purpose of summary judgment is to terminate litigation about which there 

can be no factual dispute and which can be determined as a matter of law. 
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Sheehan Const. Co., Inc. v. Cont’l Cas. Co., 938 N.E.2d 685, 689 (Ind. 2010). On 

appeal from a summary judgment, we apply the same standard of review as the 

trial court: summary judgment is appropriate only where the designated 

evidentiary matter shows there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law. Young v. Hood’s 

Gardens, Inc., 24 N.E.3d 421, 423-24 (Ind. 2015); see also Ind. Trial Rule 56(C). 

All facts and reasonable inferences drawn from those facts are construed in 

favor of the nonmovant. Sheehan Const. Co., Inc., 938 N.E.2d at 688. The party 

who lost in the trial court has the burden of demonstrating that the grant of 

summary judgment was erroneous. Auto-Owners Ins. Co. v. Benko, 964 N.E.2d 

886, 890 (Ind. Ct. App. 2012), trans. denied.

[11] As to virtually all of his claims, Balz generally alleges the following:

104. [Balz] has suffered damages as a result of the wrongful 

conduct of [CPR]. [CPR] is liable to [Balz] for such damages 

suffered, in a reasonable amount, to compensate him for his loss, 

including, but not limited to reasonable costs of this litigation and 

attorney’s fees, loss of his income and future financial stability 

and creditworthiness, mental anguish, mortification, extreme 

emotional distress and other damages. 

105. The conduct of [CPR] was willful and intentional, and 

entered into knowingly by [CPR]. Moreover, [CPR]’s conduct 

amounts to gross negligence, reckless disregard of the rights of 

[Balz], and made with malice and oppression. Based on its 

conduct, [CPR] is liable to [Balz] for punitive damages.

App. Vol. III pp. 181-82.
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A. Breach of the Duty of Good Faith and Fair Dealing

[12] Balz argues that genuine issues of material fact precluded entry of summary 

judgment in CPR’s favor regarding his claim of breach of CPR’s duty of good 

faith and fair dealing; in his complaint, he alleged:

58. There is an implied duty of good faith and fair dealing in 

every contract, including the contract, and the course of dealings 

and patterns and practices—as well as any revisions offered by 

[CPR] —that amounted to contracts between [Balz] and [CPR].

59. [CPR] breached its obligation of good faith and fair 

dealing with respect to the discharge of its contractual 

obligations, including, but not limited to (1) its failure to 

minimize the burden for [Balz]; (2) its refusal to abide by its 

contractual duties to assist in working with the insurer in 

processing [Balz’s] insurance claim; (3) its utter failure to collect 

all money due under the claim; (4) its obtaining a large fee that 

was not earned; (5) its continual refusal to honor its repeated 

promises to provide Mr. Balz an accounting and turn claims 

processing over to him; and (6) all other improper and intentional 

bad acts designed to undermine the contractual obligations 

[CPR] owed [Balz].

60. Through all of its wrongful conduct, [CPR] exercised an 

unfair advantage over [Balz] by refusing to act in a reasonable 

and workmanlike manner regarding its contractual duties to 

[Balz]. All [CPR]’s conduct described herein amounts to 

wrongful interference and destruction of [Balz’s] business affairs.

61. The breach of the duties of good faith and fair dealing to 

[Balz] committed by [CPR] has caused [Balz] damages, and has 

caused him to suffer monetary loss . . . .
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App. Vol. III p. 11.

[13] Indiana courts have recognized an implied covenant of good faith and fair 

dealing in contract law, but generally only in limited circumstances involving 

employment contracts and insurance contracts. Lake County Trust Co. v. Wine,

704 N.E.2d 1035, 1039 (Ind. Ct. App. 1998). If the contract is ambiguous or 

expressly imposes such a duty on the parties, then the courts will impose such a 

duty. First Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 604 (Ind. 

1990). Our supreme court has explained our courts’ reluctance to extend this 

duty to other, unambiguous contracts:

It is not the province of courts to require a party acting pursuant 

to such a[n unambiguous] contract to be “reasonable,” “fair,” or 

show “good faith” cooperation. Such an assessment would go 

beyond the bounds of judicial duty and responsibility. It would 

be impossible for parties to rely on the written expressions of 

their duties and responsibilities. Further, it would place the court 

at the negotiation table with the parties.

Id. 

[14] Here, the underlying agreement is unambiguous; it is neither an employment 

nor an insurance contract. The involvement of insurer Farm Bureau does not 

implicate the latter, as Farm Bureau is not a party to the agreement between 

Balz and CPR. Having found that CPR owed no duty to Balz, he is in no 

position to assert that CPR failed to exercise such duties in good faith. 

Accordingly, the trial court did not err in granting summary judgment in favor 
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of CPR regarding Balz’s claim of breach of the duty of good faith and fair 

dealing.

B. Breach of Contract

[15] Balz argues as follows that genuine issues of material fact precluded entry of 

summary judgment in CPR’s favor regarding his breach of contract claim. In 

his complaint, he alleged:

53. At all relevant times, [CPR] had a contract with [Balz] and 

agreed to assist him in processing his insurance claim after his 

house fire on January 8, 2010.

54. At all relevant times, [CPR] failed to perform its claims 

processing duties as promised, said failure amounting to breaches

of contract.

55. As a result of [CPR]’s breaches, but not limited to the 

violations stated herein, [Balz] has been damaged, has suffered 

monetary loss . . . .

56. The breaches by [CPR] were willful and intentional, and 

entered into knowingly by [CPR]. Moreover, [CPR]’s conduct 

amounts to gross negligence, reckless disregard of the rights of 

[Balz], and made with malice and oppression. Based on its 

conduct, [CPR] is liable to [Balz] for punitive damages.

App. Vol. III p. 175.

[16] “The essential elements of a breach of contract action are the existence of a 

contract, the defendant’s breach thereof, and damages.” Fairfield Dev., Inc. v. 

Georgetown Woods Sr. Apartments Ltd. P’ship, 768 N.E.2d 463, 473 (Ind. Ct. App. 
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2002). Here, the designated materials disclose that Balz entered into a written 

agreement with CPR, wherein CPR would represent Balz in claim negotiations 

with Farm Bureau in exchange for a fee of ten percent of the claim settlement. 

VanHimbergen presented Balz’s claim to Farm Bureau; Farm Bureau agreed to 

pay policy limits, including functional replacement costs of $34,277.46, to Balz. 

In order for Balz to recover functional replacement costs, the Policy required 

Balz to “contract for the repair of the damaged building . . . within 180 days of 

the damage” unless Farm Bureau and Balz/CPR otherwise agreed. App. Vol. 

II p. 91. 

[17] The designated materials, particularly Balz’s deposition testimony, establish 

that he was intent on serving as the contractor for purposes of the repair (and 

having the money paid directly to him) rather than contracting with another 

person or entity to complete the repair, as was required under the terms of the 

Policy. As CPR argues, “Balz knew he was required to contract with someone 

to rebuild his residence, he had no intention of doing so, and CPR had no way 

of compelling him to do so.” Appellee’s Br. p. 24. 

[18] Based on the foregoing, we conclude that CPR fulfilled its contract obligations 

to prepare and present Balz’s claim to Farm Bureau when it obtained Farm 

Bureau’s commitment to pay him policy limits, including $34,277.46 in 

functional replacement costs; however, the functional replacement costs were 

forfeited as a result of Balz’s own actions and omissions. No genuine issue of 

material fact precluded entry of summary judgment regarding his breach of 

contract claim.
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C. Fraud in the Inducement

[19] Balz argues that genuine issues of material fact precluded entry of summary 

judgment in CPR’s favor regarding his claim of fraud in the inducement. In his 

complaint, he alleged:

70. [CPR] made material misrepresentations of past or 

existing facts, including all the facts set forth supra, and 

including, but not limited to, statements that [CPR] would 

perform its duties to [Balz] in a reasonable and businesslike 

manner, and would honor its contracts with [Balz], including, 

but not limited to performing an inventory and making sure all 

monies owed [Balz] under his claim were, in fact, paid. [Balz] 

also relied on statements made by [CPR] that promised him a full 

accounting for its services and promises that it, [CPR], would 

relinquish the claims processing to [Balz]’s care, as well as other 

statements designed to make [Balz] act in reliance of same.

71. The misrepresentations made by [CPR] to [Balz] were 

false.

72. [CPR] made the misrepresentations to [Balz] knowing the 

statements were false or in reckless ignorance of the falsity.

73. [Balz] relied upon [CPR]’s statements and such reliance 

was justifiable.

74. [CPR]’s wrongful conduct injured [Balz] and caused him 

damages. [CPR] is liable to [Balz] for such damages suffered, in 

a reasonable amount, to compensate him for his loss . . . .

App. Vol. III p. 177.
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[20] CPR counters that “[n]othing in the record suggests that anything CPR said in 

any of those letters was a misrepresentation of a past or existing fact”; “Balz’s 

only evidence in support of his position is his subjective belief that he could 

have received a larger settlement”; and “CPR’s statements plainly were 

statements about the outcomes for previous clients and did not constitute an 

express or implied promise that Balz’s claim would turn out in a certain way.” 

Appellee’s Br. p. 12.

[21] To sustain an action for fraud, it must be proven that a material representation 

of a past or existing fact was made which was untrue and known to be untrue 

by the party making it or else recklessly made and that another party did in fact 

rely on the representation and was induced thereby to act to his detriment. 

Fleetwood Corp. v. Mirich, 404 N.E.2d 38, 42 (Ind. Ct. App. 1980). Fraud need 

not be proven by direct or positive evidence; it may be proven by circumstantial 

evidence, provided there are facts from which the existence of all the elements 

can be reasonably inferred. Plymale v. Upright, 419 N.E.2d 756, 760 (Ind. Ct. 

App. 1981). 

[22] Fraudulent inducement occurs when a party is induced through fraudulent 

misrepresentation to enter into a contract. Lightning Litho, Inc. v. Danka Indus.,

776 N.E.2d 1238, 1241 (Ind. Ct. App. 2002), trans. denied. Because the essential 

elements of fraudulent inducement are no different from any other action on 

fraud, the action may not be predicated upon representations of future conduct. 

Siegel v. Williams, 818 N.E.2d 510, 515 (Ind. Ct. App. 2004). While an oral 

promise as to future conduct will not support an ordinary fraud action, such 
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promise may form the basis of a constructive fraud action if the promise induces 

one to place himself in a worse position than he would have been in had no 

promise been made and if the party making the promise derives a benefit as a 

result of the promise. Id.

[23] Here, the designated facts establish that CPR’s primary objectives were to 

present Balz’s claim to Farm Bureau and to obtain a favorable claim payment. 

CPR successfully obtained Farm Bureau’s promise to pay Balz the policy limits, 

including functional replacement costs. As Balz acknowledged in his deposition 

testimony, he did not accept Farm Bureau’s express condition as to functional 

replacement costs; he, consequently, forfeited recovery of those benefits. Given 

that he otherwise recovered policy limits, and that his primary injury—the 

forfeiture—resulted directly from his own actions/omissions, Balz cannot 

establish that his reliance on any of CPR’s statements, which really amounted

to future predictions or puffery, caused the forfeiture. The trial court did not err 

in granting summary judgment in CPR’s favor as to Balz’s claim of fraud in the 

inducement.

D. Constructive Fraud

[24] Balz argues that genuine issues of material fact precluded entry of summary 

judgment in CPR’s favor regarding his claim of constructive fraud. In his 

complaint, he alleged:

77. [CPR] had a duty to [Balz] by virtue of its contractual 

relationship between the [CPR] and [Balz].
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78. [CPR] violated its duty to [Balz] by the making of deceptive 

material misrepresentations of the past or existing facts or 

remaining silent when the duty to speak exists, including, but not 

limited to, statements that [CPR] would obtain more money for 

[Balz] if [CPR] handled the claim than if [Farm Bureau] handled 

the claim directly, as well as statements that [CPR] would obtain 

all proceeds [Balz] was entitled to receive under his policy of 

insurance. [CPR] also promised—falsely - that it would perform 

an inventory, but required [Balz]—in fragile health due to

injuries incurred in the house fire—to do the work. [CPR] also 

promised to provide a complete accounting and turn over the 

claims processing to [Balz], and made other statements and 

omissions designed to unfairly mislead [Balz].

79. [Balz] relied thereon on the false statements made by [CPR].

80. [Balz] was injured by the wrongful conduct of [CPR] . . . .

81. [CPR] gained an unfair advantage at the expense of [Balz].

82. As a result, [Balz] suffered damages, and [CPR] is liable to 

[Balz] for such damages suffered . . . .

App. Vol. III pp. 178-179.

[25] Constructive fraud may be found where one party takes unconscionable 

advantage of his dominant position in a confidential or fiduciary relationship. 

Stoll v. Grimm, 681 N.E.2d 749, 757 (Ind. Ct. App. 1997); see Estates of Kalwitz v. 

Kalwitz, 717 N.E.2d 904, 913 (Ind. Ct. App. 1999) (“Any breach of a duty 

arising from a confidential or fiduciary relation, without any actual fraudulent 

intent gains an advantage at the expense of any one to whom he owes such 
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duty, amounts to a constructive fraud.”). In addition, a representation 

regarding future conduct can, in some situations, give rise to a constructive 

fraud. Wells v. Stone City Bank, 691 N.E.2d 1246, 1250 (Ind. Ct. App. 1998), 

trans. denied. A confidential or fiduciary relationship exists when confidence is 

reposed by one party in another with resulting superiority and influence 

exercised by the other. Drudge v. Brandt, 698 N.E.2d 1245, 1250 (Ind. Ct. App.

1998). The question of whether a confidential relationship exists is one of fact 

to be determined by the finder of fact. Dawson v. Hummer, 649 N.E.2d 653, 661 

(Ind. Ct. App. 1995).

[26] It is well-settled Indiana law that the parties cannot rely on a contractual

relationship to create a duty. Contractual agreements do not give rise to a 

fiduciary relationship creating a duty. See Comfax Corp. v. North American Van 

Lines, Inc., 587 N.E.2d 118, 125-26 (Ind. Ct. App. 1992) (holding that an armslength, contractual arrangement does not create a fiduciary relationship and 

does not provide a basis for constructive fraud claim); see also Orem v. Ivy Tech 

State College, 711 N.E.2d 864, 869 (Ind. Ct. App. 1999) (“There must always be 

a violation of some duty owing to plaintiff, and generally such duty must arise 

by operation of law and not by mere agreement of the parties.”) (citing 

BLACK’S LAW DICTIONARY 1489 (6th ed. 1990)), trans. denied. 

[27] Absent a special relationship, which does not exist here, CPR does not have a 

duty to Balz. The trial court properly found that Balz’s constructive fraud claim 

fails as a matter of law. 
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E. Negligent Misrepresentation

[28] Balz argues that genuine issues of material fact precluded entry of summary 

judgment in CPR’s favor regarding his claim of negligent misrepresentation. In 

his complaint, he alleged:

85. [CPR], in the course of its business, profession or 

employment, and in a transaction in which [CPR] had a 

pecuniary interest, supplied false information for the guidance of 

[Balz] in his business transactions, including but not limited to 

promises that [CPR] would provide insurance claims processing 

services for [Balz] in a reasonable and businesslike manner, and

all promises [CPR] made to [Balz] that it would provide a full 

accounting for all the work it performed under the contracts in 

question and would turn the claims processing over to [Balz], 

and other statements which were caused by conduct precipitated 

by [CPR], and other such false statements, all designed for [Balz]

to rely upon, and upon which he did rely, and acted upon to his 

detriment.

86. [Balz] looked to [CPR]—who claimed to have expertise in 

claims handling as a public adjuster licensed under the laws of 

Indiana—to share its expertise regarding the transactions in 

question.

87. [CPR] provided advice and guidance to [Balz], including 

but not limited to the advice described supra, and provided such 

advice and guidance with intent that the information provided 

would influence [Balz] in making his decisions.

88. [Balz] had a justifiable reliance upon the information

provided to him by [CPR].
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89. [CPR] failed to exercise reasonable care or competence in 

obtaining or communicating the information about the 

transactions to [Balz].

90. [Balz] acted upon the information provided by [CPR] to 

his detriment and has suffered damages as a result of the 

wrongful conduct of [CPR]. . . . .

App. Vol. III p. 180.

[29] In its motion for summary judgment, CPR cited Darst v. Illinois Farmers Ins. Co,

716 N.E.2d 579, 585 (Ind. Ct. App. 1999), for the proposition that “despite the 

limited recognition of the tort in the context of an employer-employee 

relationship, Indiana does not recognize the tort of negligent 

misrepresentation.” See Short v. Haywood Printing Co., Inc., 667 N.E.2d 209, 213 

(Ind. Ct. App. 1996) (holding that the tort of negligent misrepresentation is 

recognized only in employer-employee context under Indiana law). The 

designated materials establish the relationship of the parties to be as follows: 

Balz, a private individual, contracted with public adjusting company CPR, to 

negotiate his insurance claim against Farm Bureau; theirs is not an employeremployee relationship. Accordingly, the trial court did not err in granting 

summary judgment in favor of CPR regarding Balz’s negligent 

misrepresentation claim.

F. Intentional Infliction of Emotional Distress

[30] Balz argues that genuine issues of material fact precluded entry of summary 

judgment in CPR’s favor regarding his claim of intentional infliction of 
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emotional distress. Specifically, he alleges that CPR solicited him when he had 

just lost his home, was dealing with medical injuries sustained in the fire, and 

“in shock”; he also argues that “as negotiations progressed with [Farm Bureau’s 

adjuster], CPR did not return [his] calls, . . . did not negotiate with his 

homeowner’s adjuster so that he could be the contractor for repairs of his 

home”; “caused him to lose insurance proceeds to which he was entitled”; 

“took its full fee from the benefit proceeds of the policy”; and “let the statute of 

limitations run.” Appellant’s Br. p. 23. 

[31] Balz maintains that a question of fact exists as to whether CPR’s conduct 

constituted intentional infliction of emotional distress. In his complaint, he

alleged:

111. [CPR] engaged in extreme and outrageous conduct in that 

it lured [Balz], in a weakened and fragile state, to enter a contract 

with [CPR] when [CPR]’s past conduct has shown that after it 

collects its unearned fee, it fails to complete the claims 

procedures it promised to handle. [CPR] preyed upon [Balz] and 

is destroying the fabric of our society by engaging in depraved 

conduct designed to deprive [Balz] of his insurance proceeds by

skimming a ten percent (10%) fee from the insurance proceeds 

and allowing the statute to run on $34,277.46 of loss of structure 

proceeds simply because [CPR] had no “cut” of the remaining

proceeds. It is outrageous and shocking that a public adjuster 

licensed to do business in the State of Indiana would enter a 

contract with [Balz] and fail to fulfill its duties to [Balz] under the

contract. Indeed, [Farm Bureau] has stated it is [CPR]’s normal 

course of dealings and pattern and practice of conduct in the 

State of Indiana to prey upon individuals whose lives have been 

hit with tragedy. Approaching individuals after a fire ravages 

their home—or after being beset by some other equally tragic 
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loss—with only the intention of skimming a ten percent (10%) fee 

off the victim’s insurance money re-victimizes such individuals. 

In this case, it goes without saying that the conduct [CPR] 

engaged in exceeds all bounds usually tolerated by a decent 

society and has caused [Balz] mental distress of a very serious 

kind. [CPR]’s conduct is atrocious and utterly intolerable in a 

civilized society as it has stripped [Balz] of his dignity by [CPR]’s 

conduct designed to re-victimize [Balz] after a total loss and 

serious injuries.

App. Vol. III pp. 183-85.

[32] In Cullison v. Medley, our Supreme Court adopted the tort of intentional 

infliction of emotional distress and described it as “extreme and outrageous 

conduct [that] intentionally or recklessly causes severe emotional distress to 

another.” 570 N.E.2d 27, 31 (Ind. 1991) (quoting Restatement (Second) Of 

Torts § 46 (1965)). The intent to harm emotionally constitutes the basis of the 

tort. Cullison, 570 N.E.2d at 31. The elements of the tort are that a defendant 

(1) engages in extreme and outrageous conduct that (2) intentionally or 

recklessly (3) causes (4) severe emotional distress to another. Lachenman v. Stice,

838 N.E.2d 451 (Ind. Ct. App. 2005), trans. denied. The requirements to prove 

this tort are “rigorous.” Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 

514, 523 (Ind. Ct. App. 2001).

[33] “Liability for intentional infliction of emotional distress is found only if there is 

extreme and outrageous conduct.” Bradley v. Hall, 720 N.E.2d 747, 752 (Ind.

Ct. App. 1999). In describing what constitutes extreme and outrageous 

conduct, we have cited the following comment:
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d. Extreme and outrageous conduct. The cases thus far decided have 

found liability only where the defendant’s conduct has been 

extreme and outrageous. It has not been enough that the

defendant has acted with an intent which is tortious or even 

criminal, or that he has intended to inflict emotional distress, or 

even that his conduct has been characterized by “malice,” or a 

degree of aggravation which would entitle the plaintiff to punitive 

damages for another tort. Liability has been found only where 

the conduct has been so outrageous in character, and so extreme 

in degree, as to go beyond all possible bounds of decency, and to 

be regarded as atrocious, and utterly intolerable in a civilized 

community. Generally, the case is one in which the recitation of 

the facts to an average member of the community would arouse 

his resentment against the actor, and lead him to exclaim, 

“Outrageous!”

Id. at 752-53 (quoting Restatement (Second) of Torts § 46). In other words, 

intentional infliction of emotional distress is found where conduct exceeds all 

bounds usually tolerated by a decent society and causes mental distress of a 

very serious kind. Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 514 

(Ind. Ct. App. 2001). What constitutes extreme and outrageous conduct 

depends, in part, upon prevailing cultural norms and values. Id. In the 

appropriate case, the question can be decided as a matter of law. Id.

[34] Considering the facts in the light most favorable to Balz as the non-moving 

party and even assuming that CPR was inattentive or failed to attend to Balz’s 

needs as it should have, we can conclude as a matter of law that CPR’s conduct

does not constitute “outrageous” behavior as contemplated by the narrow 

definition adopted from the Restatement. We cannot say that CPR’s conduct

was so extreme as to go beyond all possible bounds of decency or that it can be 
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regarded as atrocious and utterly intolerable in a civilized society. See Bradley,

720 N.E.2d 752-53. As we have observed: “The law does not provide a 

remedy for every annoyance that occurs in everyday life. Many things which 

are distressing or may be lacking in propriety or good taste are not actionable.” 

Branham, 744 N.E.2d at 518 (citations omitted). Such is the case here, 

especially given that Balz’s insistence on being designated as the contractor of 

record is the sole reason that he forfeited recovery of functional replacement 

costs benefits. The trial court did not err in granting the CPR’s motion for 

summary judgment on the Balz’s claim for intentional infliction of emotional

distress.

G. Request for Punitive Damages

[35] Balz argues that genuine issues of material fact precluded entry of summary 

judgment in CPR’s favor regarding his claim for punitive damages. He alleges 

that he is entitled to punitive damages because CPR engaged in “outrageous 

conduct” and “acted with gross negligence,” in “reckless disregard” of his 

rights, “and with malice and oppression in its actions and material omissions.” 

App. Vol. III p. 186.

[36] To award punitive damages, “some evidence should be required that is 

inconsistent with the hypothesis that the tortious conduct was the result of a 

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

negligence or other such noniniquitous human failing.” Travelers Indemnity Co. 

v. Armstrong, 442 N.E.2d 349, 362 (Ind. 1982). Furthermore, the public interest 
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must be served by the imposition of punitive damages. Id. at 362-363. Such 

damages must be proven by clear and convincing evidence. Id. at 363.

[37] Balz cannot meet his burden. Here, even construing the materials submitted for 

the summary judgment determination in the light most favorable to Balz, the 

conduct he alleges does not approach the level of egregious behavior required to 

recover punitive damages. The trial court thus properly granted summary

judgment to CPR on the issue of punitive damages.

Conclusion

[38] The trial court did not err in granting summary judgment in CPR’s favor; Balz’s 

claims each fail as a matter of law. We affirm.

[39] Affirmed.

[40] Vaidik, C.J., and Pyle, J., concur.