UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

MARKEL INSURANCE COMPANY, ) 

 ) 

Plaintiff, ) 

) 

v. ) 

) CASE NO.: 2:16-CV-220-HAB 

UNITED EMERGENCY MEDICAL ) 

SERVICES, LLC, ABRAHAM A. ) 

NADERMOHAMMADI, and LILLIAN ) 

MARLENE RAU, as Personal ) 

Representative of the Estate of ) 

Decedent, CHESTER R. STOFKO, ) 

) 

Defendants. ) 

___________________________________ ) 

 ) 

UNITED EMERGENCY MEDICAL ) 

SERVICES, LLC, ) 

) 

Third-Party Plaintiff, ) 

) 

v. ) 

) 

INSURANCE SERVICE CENTER, INC. ) 

n/k/a ARTHUR J. GALLAGHER & CO., ) 

) 

Third-Party Defendant. ) 

Defendants. ) 

___________________________________ ) 

 ) 

ERIE INSURANCE COMPANY, ) 

 ) 

Intervener. ) 

OPINION AND ORDER 

 A chain of regrettable events has led to this litigation, which features five groups 

of litigants with various competing and overlapping interests. On one side is Plaintiff 
2 

Markel Insurance Company (Markel). Markel seeks a declaration concerning insurance 

coverage for an ambulance owned by its insured, Defendant United Emergency Medical 

Services, LLC (United), who is part of the second category of litigant. This group also 

includes United’s employee, Defendant Abraham A. Nadermohammadi. On January 2, 

2016, Nadermohammadi was driving the ambulance when it was involved in a fatal 

accident with a vehicle occupied by Chester R. Stofko. 

 The third litigant group is Defendant Lillian Marlene Rau, as Personal 

Representative of the Estate of Decedent, Chester R. Stofko (Rau). She filed a lawsuit in 

state court against Nadermohammadi and United (the Rau Suit) to recover damages 

related to the accident. 

 The fourth group involved in this litigation is Third-Party Defendant Insurance 

Service Center (ISC), who was brought into the litigation when United filed a Third-Party 

Complaint alleging that, should a court determine that the Markel insurance policy does 

not provide coverage to United for the accident of January 2, 2016, the lack of coverage is 

due to ISC’s acts or omissions. United asserts that, even though it requested that ISC add 

the ambulance to its coverage in place of another vehicle, ISC did not make the requested 

change and procure the proper insurance coverage. 

 Finally, the intervener, Erie Insurance Company, insured Chester R. Stofko for 

underinsured/uninsured motorist coverage. Erie has an interest in the outcome of this 

declaratory action regarding Markel’s coverage because this determination will impact 

whether Erie affords underinsured/uninsured coverage. 
3 

PROCEDRUAL BACKGROUND 

Markel is seeking judgment that, as a matter of law, it has no duty to indemnify 

United or Nadermohammadi, and that it has no duty to defend with respect to the Rau 

Suit [ECF No. 94]. Rau objects to Markel’s Motion and has filed a cross-motion for 

summary judgment [ECF No. 114]. Rau argues that, under the facts of this case, Indiana 

law permits the ambulance to be deemed covered under the policy, notwithstanding that 

it was not formally listed in the policy. Rau submits that effective notice of a requested 

policy change was given when United sent an email to ISC on March 30, 2015. The email 

notified ISC that the ambulance was being placed back in service after being temporarily 

removed from the policy to undergo repairs. United’s email asked that an ambulance 

already listed in the policy be removed and that the repaired ambulance take its place. 

The ambulance, however, was never added to the schedule of covered vehicles. In fact, 

ISC disputes that it ever received the email. Rau maintains that, under Indiana’s Uniform 

Electronic Transfer Act, an email is effective when received even if no one is aware of its 

receipt. 

Rau also submits that equity demands that the Markel policy be reformed to cover 

the ambulance because there was a mutual mistake. Finally, Rau contends that, even if 

this Court determines that United failed to disclose that it wanted the ambulance 

reinstated, such failure was unintentional and cannot result in a denial of coverage under 

the policy’s “savings clause,” which provides that “any unintentional failure to disclose” 

a material fact “will not result in a denial of coverage under this policy.” 
4 

United also objects to Markel’s motion for summary judgment and filed a crossmotion for summary judgment [ECF No. 116] against Markel. United submits that it 

directed Markel to change the policy, through the March 30 email to its agent ISC, but 

Markel failed to do so. Like Rau, United advances theories of policy reformation due to 

mutual mistake, and extension of coverage through equity. 

ISC objects to Markel’s motion for summary judgment [ECF No. 117] and believes 

that the Court should find coverage (although it has not filed a cross-motion). ISC relies, 

not on notions of equity or reformation due to mutual mistake, but solely on the portion 

of the Markel policy related to unintentional failures to disclose, which contains the 

saving clause Rau referenced. Additionally, ISC opposes Rau’s Cross-Motion [ECF No. 

121], but only to the extent that Rau’s designated evidence and argument bear on its 

defense of the third-party claims United brought against ISC for failing to procure 

insurance for the ambulance. ISC moves for summary judgment [ECF No. 122] against 

United related to United’s Third-Party Complaint assertions that ISC committed 

professional negligence. 

United opposes ISC’s Motion related to the third-party claims [ECF No. 130].1 Rau 

also opposes ISC’s motion [ECF No. 131] and submit that, if the Court determines that 

 

1 On the docket, ECF No. 130 is linked to ECF No. 122, ISC’s Motion for Summary Judgment. 

However, ECF No. 130 is titled Defendant/Third-Party Plaintiff United Emergency Medical Services’ 

Reply (to Insurance Service Center, Inc.’s Response) in Support of Cross-Motion for Summary Judgment. 

It specifically “incorporates each and every statement and argument put forth by Rau at [ECF No.] 127.” 

(ECF No. 130 at 2.) Those statement and arguments largely concern the effect of United’s email to ISC, 

and are intended to defeat Markel’s Motion for Summary Judgment and support judgment as a matter of 

law in favor of coverage. United’s filing ends by requesting that the Court enter summary judgment in 

favor of United on all counts, and against ISC and Markel. 
5 

Markel is not obligated to provide coverage for the ambulance, then it should determine 

that ISC breached its duty to procure insurance coverage and deny ISC’s motion for 

summary judgment on the third party claims United has brought against ISC. 

In summary, the following motions are pending: Plaintiff’s Motion for Summary 

Judgment [ECF No. 94]; Rau’s Cross-Motion for Summary Judgment [ECF No. 114]; 

United Emergency Medical Services, LLC’s Cross-Motion for Summary Judgment [ECF 

No. 116], and; Third Party Defendant Insurance Service Center, Inc.’s Motion for 

Summary Judgment Against Third Party Plaintiff United Emergency Medical Services, 

LLC [ECF No. 122]. Also pending is Rau’s Motion to Take Judicial Notice of Computer 

Science Facts [ECF No. 115], and ISC’s Request for Oral Argument [ECF No. 129]. 

STANDARD OF REVIEW 

Summary judgment is warranted when “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). The non-moving party must marshal and present the court 

with evidence on which a reasonable jury could rely to find in their favor. Goodman v. 

Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court must deny a motion for 

summary judgment when the nonmoving party presents admissible evidence that creates 

a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) 

(citations omitted). A court’s role in deciding a motion for summary judgment “is not to 

sift through the evidence, pondering the nuances and inconsistencies, and decide whom 

to believe. The court has one task and one task only: to decide, based on the evidence of 
6 

record, whether there is any material dispute of fact that requires a trial.” Waldridge v. 

Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). 

Facts that are outcome determinative under the applicable law are material for 

summary judgment purposes. Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 

1997). Although a bare contention that an issue of material fact exists is insufficient to 

create a factual dispute, a court must construe all facts in a light most favorable to the 

nonmoving party, view all reasonable inferences in that party’s favor, Bellaver v. Quanex 

Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and avoid “the temptation to decide which 

party’s version of the facts is more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 

2003). 

The fact that cross-motions for summary judgment are pending does not alter the 

standard. When evaluating each side’s motion, the court simply “construe[s] all 

inferences in favor of the party against whom the motion under consideration is made.” 

Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 561–62 (7th Cir. 2002) (quoting HendricksRobinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)). 

STATEMENT OF FACTS2

 United is a limited liability company that runs a fleet of ambulances. Steven Pavek, 

who served as United’s Administrative Director, was tasked with obtaining insurance for 

the ambulances. Since about 2007, Pavek worked with Jack Rosen of ISC to procure 

insurance. In insurance terminology, ISC is considered a producer for Markel. Although 

 

2 Additional facts crucial to resolution of the issues may be set forth in the analysis 

section of this Opinion and Order.
7 

Pavek and Rosen worked together for many years prior to the January 2016 accident, they 

only communicated by telephone and email, and routinely exchanged documents and 

forms by email. 

 United’s annual insurance renewal deadline was March 5. For the 2014–2015 

policy period, Rosen sent an email to Pavek on January 29, 2014, reminding United of the 

upcoming renewal. Rosen asked that the application be completed on or before February 

12, 2014. Rosen directed Pavek to verify the vehicle schedule, stressing the importance of 

listing “every operable bus on the policy.” (ECF No. 123-3 at 1.) Pavek responded ten 

days later by email, asserting that he had left Rosen voice messages and emails with no 

response, asking Rosen to get in touch with Pavek at his earliest convenience. (Id.) 

According to Rosen, he did not receive any emails or calls from Pavek as claimed in the 

email. 

 On March 3, 2014, two days before the renewal deadline, Rosen called United and 

spoke to Pavek, who told Rosen to work with United owner Jason Blankinship. During 

this call, Rosen learned that Pavek was ill and this illness was the likely reason for 

United’s delayed communications about renewal. On the morning of March 4, 2014, 

Rosen emailed Pavek and Blankinship instructing them what paperwork was needed to 

effectuate United’s renewal. Pavek responded by email with the required forms and 

requested that coverage be bound for renewal. 

 The next day, Pavek emailed Rosen to inquire whether he had received Pavek’s 

March 4 email, including the signed documentation. Rosen’s response, thirty-eight 

minutes later, was that he had not received United’s email with the signed forms. 
8 

However, Rosen advised that he was able to renew coverage effective March 5, 2014, 

without the documents, and that they could be forwarded at his convenience. Pavek 

emailed a response to Rosen, explaining that he thought United’s email server was “not 

pushing mail out sometimes.” (ECF No. 123-5 at 1.) Pavek acknowledged that he 

suspected Rosen had not received the email, as Rosen would have indicated that he got 

it. Rosen acknowledged Pavek’s email, indicated that he received what was needed to 

renew United’s coverage, and reminded Pavek that United still needed to make the 

premium payment. 

 As the next renewal anniversary approached, Rosen again reached out to United 

to begin the renewal process. Rosen emailed Pavek on January 30, 2015, asking that he 

turn in United’s renewal paperwork by February 9, 2015. Rosen did not receive a 

response from Pavek by February 9, 2015, so he called Pavek to determine if United was 

going to provide renewal information. On February 10, 2015, Pavek emailed that he 

would have United’s paperwork to Rosen by the end of the day. 

 When Rosen did not receive United’s renewal paperwork on February 10, 2015, 

Rosen followed up with an email on February 13, 2015. On February 23, Pavek indicated 

that he was resending the materials, and thought United was “having email issues again” 

as he had “sent this twice.” (ECF No. 123-8 at 1.) Pavek wrote, “If I do not get a reply by 

the end of Business day I will call to confirm and fax instead. Please let me know you 

received it.” (Id.) 

 On February 27, 2015, still during the renewal process, Pavek emailed Rosen about 

insurance changes. Specifically, he identified two trucks with motor issues. He thought 
9 

that “Truck 1” identified as a 1999 Chevy C3500 with VIN # 1GBJC34J2XFO97228 was 

“permanently done” and should be removed. (ECF No. 114-2 at 69.) With respect to a 

second ambulance, “Truck 2” Pavek asserted that he did not know if it was salvageable. 

He asked that Truck 2, identified as a 2003 Ford E-350 with VIN# 1FDSS34F32HA74497 

(Ford #4497) be removed. He advised, “This unit is the unit I am unsure of viability 

moving forward but it will [be] some time before I do, say at least 60 days + repair time.” 

(Id.) Ford #4497 is the ambulance that was involved in the January 2016 accident. Pavek’s 

email also identified a third ambulance that United wanted to add to the Policy. 

Rosen forwarded Pavek’s email about removing Truck 1 and Truck 2 and adding 

the third vehicle to ISC’s Gladys Jara. The accompanying message read: “United will be 

renewing their program. Please see below for changes that we will be making on their 

program Monday.” (ECF No. 114-2 at 69.) On March 3, 2015, Jara sent an email to Markel 

asking that it bind coverage effective March 5, 2015, with the changes identified in 

Pavek’s February 27 email: the removal of two vehicles, including the Ford #4497, and 

the addition of another vehicle. 

Markel renewed United’s coverage for the 2015-2016 policy year under policy 

number MTA70000847-02, effective from March 5, 2015, to March 5, 2016 (the Policy). 

When the Policy was issued, the following five autos were listed in the Business Auto 

Declarations section in Item Three of the Policy: 
10 

As requested by United in Pavek’s February 27, 2015, email, the schedule of vehicles did 

not contain the Ford #4497. However, when ISC sent auto ID cards for the renewal to 

Pavek’s email, it included a card for the Ford #4497 in addition to the other five vehicles 

listed in the Policy. 

 On March 30, 2015, Pavek emailed Rosen, and copied Blankinship, requesting that 

the Ford #4497 be put back on the Policy, and that the 1994 Ford that was listed on the 

Policy be removed. Pavek did not confirm Rosen’s receipt of the email or otherwise 

follow-up regarding the request. 

 On January 2, 2016, an ambulance owned by United and driven by 

Nadermohammadi struck a vehicle occupied by Stofko. According to the police report 

generated by the responding officer, the ambulance operated by Nadermohammadi at 

the time of the automobile collision was a 2002 Ford Econoline E350, VIN Number 

1FDSS34F32HA74497, i.e., the Ford #4497. 

After the accident, Blankinship located the March 30, 2015, email. By this time, it 

had become apparent that the Ford #4497 had not been put back on the Policy and that 

Rosen was asserting that he had not received any instruction from Pavek regarding the 

Ford #4497 subsequent to the February 27 correspondence asking that it be removed from 

the Policy at renewal. On January 4, 2016, Blankinship forwarded the email to Pavek, who 
11 

forwarded it to Rosen at ISC. Pavek explained to Rosen that he had worked with United’s 

mail host, Google, to restore all the emails in their domain name, which allowed United 

to locate messages going back seven years. Pavek admitted that he had not been able to 

locate any reply from Rosen with respect to the March 30 email. 

The email that Pavek forwarded to Rosen was formatted as follows: 

From: Steven Pavek [mailto:s.pavek@unitedems.com] 

Sent: Monday, March 30, 2015 5:49 PM 

To: 

' 

Jack Rosen 

' CC: 'Jason Blankinship' 

Subject: Re: Ambulance Change 

Jack, 

Also before I forget we took a truck off the policy a few months ago for a 

transmission issue that was down for a few months. I’m sure you recall this, 

I know Thomco doesn’t like us to add & remove units like musical chairs. 

However this truck I have just been informed passed inspection so it can be 

pressed back into service. The back truck that old 1994 that we added at 

renewal. Let take that off as it will be removed from service. It will still be 

plated and certified as a back up unit but removed from service with 

supplies and stock there is no need to insure it. 

So remove 1994 E-350 VIN 1FDJS34M4RHB34050 

And put back on the truck that we took off which is. 

2003 E-350 VIN #1FSS34F32HA74497 

I can just write int in on the state form and hopefully they wont have a 

problem with it. 

Steven Pavek 

Partner / Executive Director 
12 

(ECF No. 116-7 at 1 (errors in original).) Pavek also testified that the March 30 email 

appeared in his sent mail folder. During the discovery conducted in this litigation, a copy 

of the March 30, 2015, email was provided that did not identify Blankinship as a cc’d 

recipient. Rather, it showed Pavek sending Blankinship a copy of the email sometime 

after its original transmission. (ECF No. 118-1 at 2.) According to Rosen, the first time he 

saw the March 30 email was when Pavek forwarded it to him in January 2016, after the 

accident. 

 On past occasions when United had emailed ISC to add or remove vehicles from 

Markel’s policy, United received an endorsement from Markel to reflect the changes. No 

endorsement was sent to United showing the changes requested in the March 30 email. 

The Policy contemplated the ability to make changes to the Policy as follows: 

This policy contains all the agreements between you and us concerning the 

insurance afforded. The first Named Insured shown in the Declarations is 

authorized to make changes in the terms of this policy with our consent. 

This policy’s terms can be amended or waived only by endorsement issued 

by us and made a part of this policy. 

(ECF No. 19-1 at 19.) United was the Named Insured. However, to initiate changes, the 

producer (ISC) was required to send a written request to Markel. The request would then 

be placed in Markel’s underwriting file. As the producer, ISC did not have any authority 

to bind coverage. 

An endorsement added the following condition to the Markel Policy: “Notice 

given by or on behalf of the insured to any of our authorized agents in Indiana, with 

particulars sufficient to identify the insured, shall be considered to be notice to us.” (ECF 

No. 19-1 at 24.) 
13 

ANALYSIS 

 In moving for summary judgment, Markel designates evidence to show that the 

Policy that was in effect on January 2, 2016, did not list the Ford #4497 in the schedule of 

covered autos. It is undisputed that the Policy provided “Symbol 7” coverage, which 

meant that autos covered were “[o]nly those ‘autos’ described in Item Three of 

Declarations for which a premium charge is shown.” (ECF No. 19-1 at 11, 27.) Markel 

had not issued any endorsement that made changes to the autos that were covered when 

the Policy was renewed in March 2015. 

Rau, United, and ISC all submit that this is not the end of the inquiry, but for 

different reasons. 

A. ISC & Rau-Unintentional Failure to Disclose Hazards 

According to ISC and Rau, the Ford #4497 should be covered by operation of a 

provision of the Policy titled “Unintentional Failure to Disclose Hazards.” The provision 

was contained in a Medical Transport Commercial Automobile Extension, and provided: 

Paragraph B.2. Concealment, Misrepresentation or Fraud of SECTION 

IV- BUSINESS AUTO CONDITIONS is replaced by the following: 

2. Concealment, Misrepresentation or Fraud 

This policy is void in any case of fraud by you at any time as it relates to 

this policy. It is also void if you or any other “insured,” at any time, 

intentionally conceal or misrepresent a fact concerning: 

a. This policy; 

b. The covered ‘auto’; 

c. Your interest in the covered ‘auto’; or 

d. A claim under this policy. 
14 

Any unintentional failure to disclose or misrepresentation of a material fact 

at any time by you or any other “insured” will not result in a denial of 

coverage under the policy because of such concealment or 

misrepresentation. 

(ECF No. 19-1 at 62.) ISC and Rau refer to the last paragraph of this provision as a 

“savings clause.” 

ISC and Rau argue that any failure by United to disclose the Ford #4497 as a 

scheduled auto was unintentional. Moreover, the replacement of the Ford #4497 with 

another vehicle would have maintained five vehicles on the covered auto list, and Markel 

would have collected the same premium. Accordingly, under the terms of the savings 

clause, United’s unintentional failure to disclose a material fact cannot be a reason to deny 

coverage. 

 Markel counters that it is not attempting to void the Policy or deny coverage due 

to any concealment or misrepresentation of a material fact, but because the Ford #4497 is 

not listed in the Business Auto Declaration as a covered auto. Further, none of United’s 

actions amended the Policy or otherwise met the requirements for the formation of a 

contract. Markel argues that the Court cannot “save” coverage that does not otherwise 

exist. 

“Contracts of insurance are governed by the same rules of construction as other 

contracts.” Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997) (first citing 

Eli Lilly & Co. v. Home Ins. Co., 482 N.E.2d 467, 470 (Ind. 1985); then citing Shedd v. Auto. 

Ins. Co., 196 N.E. 227, 230 (1935)). Insurance contracts “must be construed as a whole,” 

which “requires reading beyond isolated phrases.” Weidman v. Erie Ins. Grp., 745 N.E.2d 
15 

292, 297 (Ind. Ct. App. 2001). Although ambiguities are construed in favor of the insured, 

clear and unambiguous policy language must be given its ordinary meaning. Eli Lilly, 482 

N.E.2d at 470. An ambiguity exists where the provision is susceptible to more than one 

reasonable interpretation. Id. 

 ISC and Rau argue that the Policy is written broadly so that it applies to “any 

unintentional failure to disclose . . . at any time.” Thus, failure to disclose that the Ford 

#4497 was to be added to the Policy’s list of covered autos, in replacement of another 

covered auto, is not a reason to deny coverage. The Court finds that ISC’s and Rau’s 

interpretation improperly relies on isolated phrases in the Policy without reference to the 

contract as a whole. 

 The Court assumes, for purposes of summary judgment, that United intended to 

change the Policy and that the failure to accomplish the task was unintentional. However, 

the Court cannot find, under the language of the Policy, that this unintentional failure 

creates coverage that would not otherwise exist. The Policy stated that any changes to the 

terms of the Policy required Markel’s “consent.” (ECF No. 19-1 at 19.) Further, it provided 

that “the policy’s terms can be amended or waived only by endorsement issued by us 

and made a part of this policy.” (Id.) Regardless of where the breakdown in 

communication occurred, there is no dispute that the producer did not make a change 

request in writing and that Markel did not consent to any change. Under the plain 

language of the contract, no changes to the Policy to add coverage for the Ford #4497 

were made. 
16 

 Thus, to find coverage, the Court would have to find that the provision regarding 

misrepresentations overrides the other provisions of the Policy or that there is some 

ambiguity created by the Policy, which would be construed in favor of the insured. 

Neither is true. The provision unambiguously refers to a failure to disclose or a 

misrepresentation that cannot form the basis of a denial of coverage. Under this 

provision, had United’s intent to add the Ford #4497 been communicated to Markel, and 

the change accepted through an endorsement, an unintentional misrepresentation 

regarding the vehicle would not have been grounds to deny coverage. Here, no 

misrepresentations were made to Markel about the Ford #4497. United did not fail to 

disclose any material facts about the Ford #4497 in the March 30 email, and Markel is not 

relying on such concealment or misrepresentation as grounds to deny coverage. 

Accordingly, the provision titled “Unintentional Failure to Disclose Hazards” was not 

triggered. 

If the interpretation advanced by United and Rau is correct, then there would be 

no practical difference between the circumstances of this case and the circumstance where 

the insured had intended to request a coverage change, and even had an internal memo 

to back up the claimed intent, but (unintentionally) forgot to make the request. To find 

coverage under that scenario would run counter to black letter law: It is a well-settled 

principle of Indiana law that courts “may not rewrite an insurance contract.” Keckler v. 

Meridian Sec. Ins. Co., 967 N.E.2d 18, 28 (Ind. Ct. App. 2012) (quoting Bowen v. Monroe 

Guar. Ins. Co., 758 N.E.2d 976, 980 (Ind. Ct. App. 2001)). “The power to interpret insurance 
17 

policies does not extend to changing their terms.” Id. (citing Gregg v. Cooper, 812 N.E.2d 

210, 215 (Ind. Ct. App. 2004)). 

 For these reasons, the Court finds that the provision related to unintentional 

misrepresentations does not require that Markel provide coverage for the Ford #4497. 

B. United and Rau—Reformation and Equity 

1. Reformation 

United and Rau argue that the Policy should be reformed to provide coverage for 

the Ford #4497 due to mutual mistake. Markel does not agree that there was a mutual 

mistake or a meeting of the minds. 

 In Indiana, courts may reform written documents where there is “a mutual 

mistake—meaning there has been a meeting of the minds, an agreement actually entered 

into, but the document in its written form does not express what the parties actually 

intended.” Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, 490 (Ind. Ct. App. 2004); see 

also Plumlee v. Monroe Guar. Ins. Co., 655 N.E.2d 350, 356 (Ind. Ct. App. 1995) (“The 

primary purpose of reformation is to effectuate the common intentions of the parties to 

the instrument which were incorrectly reduced to writing.”) (citing Pearson v. Winfield, 

313 N.E.2d 95, 99 (Ind. Ct. App. 1974)). Reformation is not available where there has been 

no meeting of the minds because reforming a contract in favor of one party contrary to 

the intent of the other party is the impermissible rewriting of a new or different contract. 

Plumlee, 655 N.E. 2d at 356. 

 Rau asserts that the parties had a meeting of the minds: 
18 

ISC knew of UEMS’ intent to put the Ford #4497 back on the policy. UEMS’ 

February 27, 2015, email to ISC revealed UEMS’ intent to take the Ford 

#4497 off the policy for 60 days while being repaired and then to put it back 

on the policy. Thus, ISC, as MIC’s agent, had shared knowledge of that 

intent and knew the Ford #4497 vehicle information, but failed to follow 

through with putting it back on the policy either by UEMS’ direct request 

on March 30 via email, or by the end of the 60-day period, which would 

have been April 28, 2015. 

(Rau’s Resp. and Cross-Mot. 17, ECF No. 114.) The February 27, 2015, email is central to 

Rau’s assertions that the parties had a meeting of the minds. The Court, having 

considered the February 27 email, finds that it does not express an intention to put the 

Ford #4497 on the Policy after a designated period of time. 

 Rau characterizes the email as an understanding that the Ford #4497 would only 

be removed from the schedule of covered vehicles for sixty days. The wording of the 

email belies this interpretation. Pavek’s email identified two trucks with motor issues. 

Pavek asserted that he did not know if the Ford #4497 was “salvageable.” He asked that 

Truck 2 be removed, and advised, “This unit is the unit I am unsure of viability moving 

forward but it will [be] some time before I do, say at least 60 days + repair time.” This, of 

course, was not a request to automatically put the Ford #4497 back on the Policy in sixty 

days. Pavek did not even know if the vehicle was salvageable. He thought it would be at 

least sixty days before he could even determine the vehicle’s status. 

 For its part, United argues that there was a mutual mistake because United 

mistakenly thought that Markel would “do as directed” and that the Ford #4497 was 

properly insured, and Markel mistakenly failed to add the Ford #4497 to the Policy or to 

notify United that the Ford #4497 would not be a covered auto. (United Resp. and Cross-
19 

Mot. 11, ECF No. 116.) Putting aside the obvious fact that this does not describe a mutual 

mistake, or a meeting of the minds, nothing in the Policy required Markel to do as United 

directed. As stated above, any changes required Markel’s consent. So if United believed 

that all it had to do to change its existing coverage was email ISC, and Markel would be 

compelled to consent to the change, the mistake was theirs alone. 

 Reformation is an extreme equitable remedy used to relieve the parties of mutual 

mistake or fraud. Estate of Reasor v. Putnam Cty., 635 N.E.2d 153 (Ind. 1994). The evidence 

does not establish that the true intentions of both parties was to insure the Ford #4497. 

To find otherwise would be to rewrite the contract in a way Markel never intended when 

it provided “Symbol 7” coverage. 

2. Equitable Relief 

 United and Rau assert that coverage must be extended as a matter of equity. 

United argues that it consistently paid premiums to insure five ambulances, and at no 

time had more than five ambulances on the road. Further, it followed the procedures 

required of it when it gave notice to ISC. 

 Rau similarly contends that United properly sent the March 30 email to effectuate 

coverage. The changes United requested would not have caused any increase in 

premiums or resulted in any increased risk exposure for Markel. Further, given the 

history of their dealings, United had no reason to doubt that ISC and Markel would make 

the requested policy change. United further had no reason to believe that Rosen had not 

received Pavek’s March 30 email. Accordingly, it was through no fault of the insured that 

the requested policy change was not effectuated. 
20 

 Rau cites State Farm Mutual Automobile Insurance Co. v. Oss, 468 N.E.2d 439, 442 (Ill. 

App. Ct. 1984), for the proposition that coverage should not be denied when an insured 

is not at fault for a contemplated contract not being effectuated. Although the principle 

may be accurate, the facts of that case established that “the creation of a written contract 

of insurance was contemplated by the parties” because they first had an oral contract. Id.

(finding that where an oral contract of insurance existed, insurance company could not 

deny coverage when company failed to properly process request so that plaintiff did not 

receive the application). Thus, in Oss, the required elements for formation of a contract 

existed. It simply had not been reduced to writing. 

 Here, regardless of whether Markel would have changed the Policy, it did not 

actually agree to. It is undisputed that (1) ISC did not have authority to bind coverage, 

and; (2) United received no response to its request. A one-sided inquiry does not form a 

contract. See, e.g., Hinkel v. Sataria Distrib. & Packaging, Inc., 920 N.E.2d 766, 770 (Ind. Ct. 

App. 2010) (“The modification of a contract, since it is also a contract, requires all the 

requisite elements of a contract.”) (quoting Hamlin v. Steward, 622 N.E.2d 535, 539 (Ind. 

Ct. App. 1993)). The Policy unambiguously provided that autos covered were “[o]nly 

those ‘autos’ described in Item Three of Declarations for which a premium charge is 

shown.” (ECF No. 19-1 at 11, 27.) Thus, the premiums charged were for those specific 

vehicles, and no others. That Markel may not have charged additional premiums had it 

issued an endorsement removing the 1994 Ford and adding Ford #4497, does not change 

the nature of the coverage the parties specifically contemplated and contracted for. 
21 

 In arguing, as they do to support their claim of equitable relief, that United did 

nothing wrong, the parties largely ignore whether Markel did anything wrong. “Estoppel 

is an equitable doctrine designed to prohibit an injustice that would occur without its 

application.” Little v. Progressive Ins., 783 N.E.2d 307, 315 (Ind. Ct. App. 2003) (citing Levin 

v. Levin, 645 N.E.2d 601, 604 (Ind. 1994)). To assert equitable estoppel against an insurer, 

“the conduct of the insurer must be of a sufficient affirmative character to prevent inquiry 

or to elude investigation or to mislead and hinder.” Paramo v. Edwards, 563 N.E.2d 595, 

599 (Ind. 1990); see also Little, 783 N.E.2d at 315. Indiana adheres to the general rule that 

the doctrine of estoppel is not available to create or extend the scope of coverage of an 

insurance contract. Employers Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1028 

(Ind. Ct. App. 1999).; see also Little, 783 N.E.2d at 316 (noting that “application of the 

doctrine of estoppel is not intended to create new rights” but to “preserve rights that one 

party already had”). Consequently, while an insurer’s conduct can waive provisions of 

an existing policy, equitable estoppel cannot extend coverage that does not exist. Little, 

783 N.E. 2d at 316 (citing Egnatz v. Med. Protective Co., 581 N.E.2d 438, 441–42 (Ind. Ct. 

App. 1991)). 

 The Court finds that the analysis in Little is instructive to this case. In Little, the 

insurer denied uninsured motorist coverage to a driver named on the insurance policy 

because the policy owner had rejected uninsured motorist coverage when he obtained 

the policy. 783 N.E.2d at 309. The named driver argued that adding her to the policy was 

akin to the issuance of a new policy that required the insurer to once again offer 

uninsured motorist coverage. The named driver argued that, by sending a form for the 
22 

policy holder to reject uninsured motorist coverage along with the letter indicating that 

the named driver had been added to the policy, the insurer’s actions were sufficient to 

lead her to believe that uninsured motorist coverage was being provided to her. Id. at 314. 

 Although noting that equitable estoppel “is not limited to circumstances in which 

an actual false representation or concealment of existing material fact occurred,” id. at 

315, the court nonetheless held that equitable estoppel was not available to the named 

driver. Whether conduct rises to the level sufficient to justify the application of equitable 

estoppel depends on the facts and circumstances of that particular case. Id. “If two parties 

‘stand mentally on equal footing, and in no fiduciary relation,’ we will not protect a 

person who failed to exercise common sense and judgment.” Id. (quoting Paramo, 563 

N.E.2d at 599). The court acknowledged that combining the rejection form and the 

declarations page in the same mailing “may have caused some confusion,” but thought 

“it should have led to further inquiry . . . rather than prohibiting further inquiry.” Id. If 

the named driver had read the forms that had been sent to her, she would have been 

aware that she was not receiving uninsured motorist coverage. Finding that the insurer 

did not mislead or prevent inquiry, and that instead the named driver failed to exercise 

her common sense, the court held that equitable estoppel was not available based on all 

of the facts and circumstances of that particular case. Id. at 316. 

 Here, Rau and United do not point to any conduct of Markel that prevented 

inquiry, eluded investigation, or mislead and hindered United in any way. See Little, 783 

N.E.2d at 315; Paramo, 563 N.E.2d at 599. Although the Policy stated that notice to its agent 

would be considered notice to Markel, that referred only to how the insured could 
23 

communicate. It changed nothing concerning ISC’s inability to bind coverage. Nor did it 

alter what kind of response was necessary to effectuate any change the notice requested. 

The provision of the Policy referring to changes unambiguously required Markel’s 

consent. There is nothing misleading about that provision. Nor was the type of coverage 

misleading. It was plainly set forth in the Policy and Pavek acknowledged in his email to 

Rosen that he was aware that the insurer did not like United to add and remove units 

“like musical chairs.” 

 United assumed that its March 30 email to ISC was adequate notice to Markel that 

United wanted to add the Ford #4497 to the Policy. That may have been an appropriate 

assumption in a vacuum, but it ignores the entirety of the facts and circumstances of the 

case. No action by Markel or language in the Policy suggested that further inquiry or 

confirmation was not reasonably required when United did not hear from ISC or receive 

an endorsement in response to its notice. United’s decision not to confirm coverage, 

whatever its genesis, was wholly unrelated to Markel’s conduct. Equity does not require 

that Markel be estopped from denying coverage. 

C. The March 30, 2015, Email 

 Rau, United, and ISC all present argument regarding the impact of the March 30 

email. Rau asserts that the Court should find, as a matter of law, that United sent the 

March 30, 2015, email to Rosen at ISC, and that it is more likely than not that Rosen 

received it. United likewise asserts that it should be determined, as a matter of law, that 

United properly directed that Markel list the Ford #4497 on the Policy when it emailed 

ISC. ISC’s position is that if the March 30, 2015, email was sent, it did not reach Rosen or 
24 

ISC. Additionally, United did nothing to confirm that coverage was bound on that 

vehicle. 

 The Court finds that the facts surrounding the March 30, 2015, email are genuinely 

disputed. Pavek claims that he sent the email. Rosen asserts that he did not receive it. 

These two claims are not necessarily inconsistent, but there is a dispute as to what 

happened to the email after Pavek pushed “send.” According to Pavek, he did not receive 

a delivery failure message letting him know that the email had not been received by its 

intended recipient. But Pavek had, in the past, sent emails that Rosen had no record of 

receiving, and Pavek did not claim to receive delivery error messages for these emails 

either. Rather, he thought they were getting hung up in ISC’s email server. 

 Post-accident, Pavek forwarded the email that Blankinship, the purported internal 

cc recipient, located. When Pavek forwarded the email to Rosen, he admitted that he 

could not locate a reply to his original email. United produced two copies of the email 

during discovery. One, which was contained in the post-accident email Pavek sent to 

Rosen, showed that Blankinship had been copied on the email. In fact, it was Blankinship 

who located the email and sent it to Pavek. A second copy had no markings showing 

Blankinship as a cc recipient. Rather, it appeared to be sent to Blankinship later. 
25 

(See ECF No. 118-1 at 2.) Markel hired an expert to conduct a forensic search of United’s 

email system, but the oldest email in the account, as of May 18, 2018, was from May 15, 

2016. Accordingly, he could not determine the existence, or the content, of an email from 

March 30, 2015. 

 Rau has offered information (See Rau’s Motion to Take Judicial Notice of 

Computer Science Facts, ECF No. 115), describing how emails are typically created and 

delivered. This general information does little to establish what happened in this 

particular case in light of the facts set forth above. For example, although delivery failure 

messages are typically generated when an error in the delivery process has occurred, the 
26 

facts of this case suggest that previous emails from United had not been received by 

Rosen, yet no such bounce messages were generated in those instances either. 

 Rau and United also rely on Indiana’s Uniform Electronic Transactions Act 

(UETA) to argue that the Court should find that United sent the March 30, 2015, email. 

See Ind. Code § 26-2-8-101 et al. Indiana’s UETA provides the following regarding when 

an electronic record, including an email, is considered sent: 

(a) Unless otherwise agreed between the sender and the recipient, an 

electronic record is sent when the information is addressed or otherwise 

directed properly to the recipient and either: 

(1) enters an information processing system outside the control of 

the sender or of a person that sent the electronic record on behalf of 

the sender; or 

(2) enters a region of an information processing system that is 

under the control of the recipient. 

Ind. Code § 26-2-8-114(a). The statute provides the following regarding receipt: 

(b) Unless otherwise agreed between the sender and the recipient, an 

electronic record is received when: 

(1) it enters an information processing system that the recipient has 

designated or uses for the purpose of receiving electronic records 

or information of the type sent from which the recipient is able to 

retrieve the electronic record; and 

(2) the electronic record is in a form capable of being processed by 

that system. 

Ind. Code § 26-2-8-114(b). 

 United and Rau have submitted some evidence that the March 30 email was sent. 

Pavek testified that he sent the email and did not receive a delivery error message. Pavek 

also testified that he found a copy of the email in his sent mail folder. The record contains 

a copy of the March 30 email that Pavek forwarded to Rosen after the accident, purporting 

to be first forwarded from Blankinship to Pavek. However, this evidence does not 
27 

conclusively establish that the email was, in fact, sent as that term is defined in the UETA. 

Further, ISC has designated evidence that a jury could rely on to conclude that the March 

30 email, even if it was sent, was not received. But ISC’s lack of receipt is not entirely 

without evidentiary challenge. Pavek’s testimony that he was able to locate it in his sent 

folder, and that he never received an error message are facts that a jury could consider. 

Additionally, the cc recipient also located the email. On the other hand, because 

Blankinship was a United recipient his receipt may not be proof that the email “entered 

an information processing system that the recipient has designated or uses for the 

purpose of receiving” emails. Ind. Code § 26-2-8-114(b)(1). 

 As stated above, a court’s role in deciding a motion for summary judgment “is not 

to sift through the evidence, pondering the nuances and inconsistencies, and decide 

whom to believe. The court has one task and one task only: to decide, based on the 

evidence of record, whether there is any material dispute of fact that requires a trial.” 

Waldridge, 24 F.3d at 920. The Court finds that questions of fact remain whether Pavek 

attempted to send an email on March 30, 2015, whether the email left United’s server, and 

whether ISC received it. As will be discussed in the next section, those issues of fact 

preclude summary judgment on the third-party claims. 

D. Third-Party Claims 

 United’s Third-Party Complaint against ISC sets forth a claim for breach of 

contract and negligent performance of duties related to the procurement of insurance for 

the Ford #4497. ISC argues that it is entitled to summary judgment because there was no 

meeting of the minds as United did not follow-up on the March 30, 2015, email. 
28 

 “All insurance agents who undertake to procure coverage owe their clients a 

general duty of reasonable care and skill in obtaining insurance and following their 

clients’ instructions.” Ind. Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 

260, 264 (Ind. 2015) (citing Filip v. Block, 879 N.E.2d 1076, 1085 (Ind. 2008)). An insured 

may allege a breach of the duty to procure as either a claim for negligence or a breach of 

contract. Id. Once an agreement is established under either theory, the duty to procure is 

the same. Id. at 268. 

 “The question of agency for the insured must be determined from all the facts and 

circumstances of the case, together with the conduct of the parties and the 

communications between them.” Stockberger v. Meridian Mut. Ins. Co., 395 N.E.2d 1272, 

1279 (Ind. Ct. App. 1979). Here, the Court cannot agree with ISC that, taking the facts 

most favorable to United, there was no meeting of the minds. For purposes of ISC’s 

summary judgment motion, the Court must assume that ISC received United’s email, at 

least as the term receipt is defined under Indiana’s UETA. The email provided the 

information that would have been sufficient for ISC to submit a written request to Markel 

for a change in the Policy. The parties had previously added and removed vehicles using 

the same information communicated via the same method. 

 United argues that ISC was required to confirm that coverage had been bound, 

and cites to Stockberger. However, Stockberger does not stand for the proposition that an 

implied contract to procure insurance cannot arise where the insured does not confirm 

coverage. In Stockberger, the plaintiff “was aware that he had not provided [the agent] 

with specific information to effectuate a transfer” of coverage based on their coffee shop 
29 

conversation. 395 N.E.2d at 1279. It was this lack of essential details, in combination with 

the failure to confirm coverage, that caused the court to conclude that the insured’s own 

omission caused his loss. Here, taking the facts most favorable to United, it was not aware 

that any additional items of information were necessary. In the same vein, ISC did not 

lack necessary details to effectuate coverage changes. 

 Likewise, in Estate of David Stone v. Peoples Ins. Agency, LLC, No. 

415CV00015TWPTAB, 2016 WL 4458473 (S.D. Ind. Aug. 24, 2016), also cited by ISC, the 

representative of an estate left a voicemail message attempting to procure coverage. But 

the estate was a new potential insured, and never provided the agent with the essential 

elements and details it needed to procure insurance coverage. In fact, the agent had never 

even had prior dealings with the plaintiff. 2016 WL 4458473, at *4. Under those 

circumstances, there was no agency relationship and no meeting of the minds that could 

give rise to a duty to procure insurance. Id. at *5. 

 For reasons set forth above, there are issues of fact surrounding the sending and 

receipt of the March 30 email. However, for purposes of ISC’s motion for summary 

judgment against United, the Court must assume that ISC received the email. This email 

contained all the necessary details to request that Markel replace one of the covered 

vehicles with the Ford #4497. Further, based on the parties’ previous dealings, United 

had reason to believe that ISC would take action to obtain an endorsement or, at the very 

least, advise United with any problems with its request. Material questions of fact thus 

preclude the issuance of summary judgment in favor of ISC on United’s third-party 

claims. 
30 

CONCLUSION

 For the reasons set forth above, Plaintiff’s Motion for Summary Judgment [ECF 

No. 94] is GRANTED; Rau’s Cross-Motion for Summary Judgment [ECF No. 114] is 

DENIED; United Emergency Medical Services, LLC’s Cross-Motion for Summary 

Judgment [ECF No. 116] is DENIED, and; Third Party Defendant Insurance Service 

Center, Inc.’s Motion for Summary Judgment Against Third Party Plaintiff United 

Emergency Medical Services, LLC [ECF No. 122] is DENIED. Rau’s Motion to Take 

Judicial Notice of Computer Science Facts [ECF No. 115] and ISC’s Request for Oral 

Argument [ECF No. 129] are DENIED AS MOOT. 

 By separate order, the Court will set a telephone scheduling conference concerning 

the Third-Party Complaint. 

 Finding no just reason for delay, the Court directs the entry of final declaratory 

judgment as follows: 

(a) MARKEL has no duty under the Policy to defend UNITED against the Rau Suit; 

(b) MARKEL has no duty under the Policy to defend NADERMOHAMMADI against 

the Rau Suit; 

(c) MARKEL has no duty under the Policy to indemnify UNITED with respect to the 

Rau Suit; and 

(d) MARKEL has no duty under the Policy to indemnify NADERMOHAMMADI 

with respect to the Rau Suit. 

SO ORDERED on June 27, 2019. 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT