Mark Frech and Jamie Frech, Appellants v. Karen R. Mullin and State Farm Mutual Automobile Insurance Company d/b/a State Farm, Appellees (2026)

MEMORANDUM DECISION

[1] Mark Frech and Jamie Frech (the “Frechs”) appeal the trial court's entry of summary judgment in favor of State Farm Mutual Automobile Insurance Company d/b/a State Farm (“State Farm”). We affirm.

Facts and Procedural History

[2] On March 14, 2022, the Frechs were involved in an automobile accident involving a vehicle owned by Karen Mullin and being driven by Emily Poundstone. Poundstone died as a result of the accident. At the time of the accident, the vehicle owned by Mullin and being driven by Poundstone was insured by Ohio Mutual Insurance Group. The Frechs were insured by State Farm pursuant to Policy Number 366, 1271-E15-14C (the “Policy”) which provided underinsured motor vehicle coverage in the amount of $250,000 per person and $500,000 per accident.

[3] On May 9, 2023, the Frechs filed a complaint against Mullin and State Farm alleging that they suffered injuries and damages as a result of the accident. The complaint alleged a negligent entrustment claim against Mullin for entrusting her vehicle to Poundstone.¹ As to State Farm, the complaint alleged an underinsured motorists claim. On June 19, 2023, State Farm filed its answer, affirmative defenses, and request for jury trial.

[4] On December 13, 2024, State Farm filed a motion for summary judgment, brief in support, and designation of evidence. State Farm argued that it is entitled to summary judgment as to the underinsured motor vehicle claim because “[n]either Emily Poundstone nor her estate is named as a Defendant in Plaintiffs’ Complaint” and “the Plaintiffs never made any claim against [Poundstone],” and “did not name [Poundstone] in this lawsuit, the driver of the alleged underinsured motor vehicle, despite being required to do so by the plain language of [the Policy].” Appellant's Appendix Volume II at 105-106. State Farm designated the Policy which reads in pertinent part as follows:

Insuring Agreements

* * * * *

2. Underinsured Motor Vehicle Coverage

We will pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an underinsured motor vehicle. The bodily injury must be:

a. sustained by an insured, and

b. caused by an accident that involves the operation, maintenance, or use of an underinsured motor vehicle as a motor vehicle.

We will pay only if the full amount of all available limits of all bodily injury liability bonds, Policies, and self-insurance plans that apply to the insured's bodily injury have been used up by payment of judgment or settlements, or have been offered to the insured in writing.

* * * * *

Deciding Fault and Amount – Uninsured Motor Vehicle Coverage and Underinsured Motor Vehicle Coverage

1. a. The insured and we must agree to answers to the following two questions:

(1) Is the insured legally entitled to recover compensatory damages from the owner or driver of the uninsured motor vehicle or underinsured motor vehicle?

(2) If the answer to 1.a(1) above is yes, then what is the amount of compensatory damages that the insured is legally entitled to recover from the owner or driver of the uninsured motor vehicle or underinsured motor vehicle?

b. If there is no agreement on the answer to either question in 1.a. above, then the insured shall:

(1) file a lawsuit, in a state or federal court that has jurisdiction, against:

(a): us;

(b); the owner and driver of the uninsured motor vehicle or underinsured motor vehicle.

(i) unless we have consented to a settlement offer proposed by or on behalf of such owner or driver; or

(ii) unless such owner or driver is unknown; ․

Appellant's Appendix Volume II at 68-69. An “Underinsured Motor Vehicle” is defined in pertinent part as a “land motor vehicle ․ for which the total limits of insurance or self-insurance for bodily injury liability from all sources: a. is less than the Underinsured Motor Vehicle Coverage limits of this policy.” Id. at 67.

[5] State Farm further designated the Frechs's deposition testimony. Specifically, in his deposition, Mark testified that he and his wife had not filed suit or made claims, arising out of the automobile accident, against any other persons or entities other than Mullin and State Farm. When asked if he had filed any suits or claims, or intended to do so, against Poundstone or her estate, Mark answered, “No.” Appellee's Appendix Volume II at 94. Similarly, when, in her deposition, Jamie was asked if she or her husband had “made any claims against any other individuals or entities as a result of this accident other than the claims you're making against Ms. Mullin and State Farm,” she responded, “No.” Id. at 127. When asked, if she or her husband had “made any claim or filed any lawsuit” against Poundstone or her estate,” Jamie responded, “No.” Id.

[6] On January 13, 2025, the Frechs filed their response in opposition to summary judgment and designation of evidence. On February 17, 2025, State Farm filed its reply in support of summary judgment.

[7] The trial court held a summary judgment hearing on March 19, 2025. On May 27, 2025, the court issued its findings of fact, conclusions thereon, and order granting summary judgment in favor of State Farm.² The Frechs filed a motion to correct error on June 16, 2025.³ On October 31, 2025, the court held a hearing on the Frechs's motion. On November 4, 2025, State Farm filed a motion for leave to file an amended answer and affirmative defenses with such amended pleading attached. On November 7, 2025, the court denied the Frechs's motion to correct error and, on November 14, the court issued notice that State Farm's motion for leave to file an amended answer and affirmative defenses was deemed moot due to the denial of the motion to correct error.

Discussion

[8] The Frechs contend that the trial court erred in entering summary judgment in favor of State Farm. Our standard of review is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). Our review is de novo, drawing all reasonable inferences from the evidence in favor of the nonmovant. Ind. Dep't of Ins. v. Doe, 247 N.E.3d 1204, 1210 (Ind. 2024) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)). In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 designated materials. Catt v. Bd. of Commr's of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002). Summary judgment “is a desirable tool to allow the trial court to dispose of cases where only legal issues exist.” Hughley, 15 N.E.3d at 1003.

[9] The party appealing the trial court's summary judgment determination bears the burden of persuading the appellate court the ruling was erroneous. Ryan v. TCI Architects/Eng'rs/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

[10] Matters involving disputed insurance policy terms present legal questions and are particularly apt for summary judgment. Erie Indem. Co. for Subscribers at Erie Ins. Exch. v. Est. of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh'g denied. “Insurance policies are contracts ‘subject to the same rules of judicial construction as other contracts.’ ” Id. at 630 (quoting State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 56 N.E.3d 617, 619 (Ind. 2016)). “ ‘In construing a written insurance contract, we may not extend insurance coverage beyond that provided in the contract, nor may we rewrite the clear and unambiguous language of an insurance contract.’ ” Utica Mut. Ins. Co. v. Precedent Cos., 782 N.E.2d 470, 473 (Ind. Ct. App. 2003) (quoting American States Ins. Co. v. Adair Ins., Inc., 576 N.E.2d 1272, 1273 (Ind. Ct. App. 1991)).

[11] Here, the plain language of the Policy required the Frechs, in addition to naming State Farm as a defendant in their underinsured motorist claim, to make a claim against the driver of the alleged underinsured motor vehicle. This required action by the Frechs is what triggers underinsured motor vehicle coverage, and the Policy unambiguously requires them to take such action “unless” State Farm has “consented to a settlement offer proposed by or on behalf of such owner or driver.” Appellant's Appendix Volume II at 69. The undisputed evidence shows that the Frechs filed no claim against Poundstone or her estate, and there have been no previous settlement offers proposed by or on behalf of Poundstone. As aptly observed by the trial court,

Under the terms of the State Farm Policy, underinsured motor vehicle coverage is not triggered or qualified until the at fault driver pays his or her policy limits, in which case State Farm would be entitled to a set off for any payments that were made by the at fault driver or her carrier. Plaintiffs never made claim or filed suit against the at fault driver, Emily Poundstone, her estate, or her insurance carrier. Therefore, the liability limits available to Emily Poundstone or her estate were never offered, and there is no underinsured motor vehicle claim that can qualify or trigger coverage pursuant to the State Farm Policy.

Id. at 24.

[12] The Frechs concede that they failed to comply with the plain language of the Policy but maintain that reversal is warranted because the trial court “erroneously ruled on an affirmative defense that was never pled.” Appellant's Brief at 7. We disagree and decline to find that State Farm was required to plead the Frechs's failure to file suit against Poundstone as an affirmative defense.

[13] It is well settled that the purpose of uninsured and underinsured motorist insurance coverage is “to promote the recovery of damages for innocent victims of auto accidents with uninsured or underinsured motorists.” Just. v. Am. Fam. Mut. Ins. Co., 4 N.E.3d 1171, 1178 (Ind. 2014) (citation omitted). In making a claim against State Farm for underinsured motorist coverage, the Frechs have the burden to prove that they sustained bodily injury “caused by an accident that involves the operation, maintenance, or use of an underinsured motor vehicle[.]” Appellant's Appendix Volume II at 68. The Policy provides that State Farm will pay underinsured motorist benefits “only if the full amount of all available limits of all bodily injury liability bonds, Policies, and self-insurance plans that apply to the insured's bodily injury have been used up by payment of judgments, settlements, or have been offered to the insured in writing.” Id. By not making a claim or securing a judgment against Poundstone or her estate, the Frechs cannot meet their burden to establish that all available liability limits have been used up or exhausted or that Poundstone was, in fact, an underinsured motorist. This is fatal to their claim. In short, the underinsured motorist vehicle coverage provided by the Policy has not been triggered as a matter of law.

[14] To the extent the Frechs claim that their failure to sue Poundstone or her estate was “a condition precedent” to underinsured motorist coverage and thus, the trial court erroneously ruled on an affirmative defense that State Farm was required to specifically plead pursuant to Ind. Trial Rules 8(C) and 9(C), we cannot say reversal is warranted.⁴ The Frechs rely on general caselaw which states that “the failure to perform a condition precedent is an affirmative defense that must be specifically and particularly asserted in a responsive pleading.” Dave's Excavating, Inc. v. City of New Castle, 959 N.E.2d 369, 383 (Ind. Ct. App. 2012), reh'g denied, trans. denied. Although making a claim against the purported underinsured driver, Poundstone, is specifically linked to coverage conditions under the Policy, we disagree with its characterization as a condition precedent. A condition precedent is “a condition which must be performed before the agreement of the parties becomes a binding contract or which must be fulfilled before the duty to perform a specific obligation arises.” New Hampshire Ins. Co. v. Ind. Auto. Ins. Plan, 176 N.E.3d 514, 522 (Ind. Ct. App. 2021) (quoting AquaSource, Inc. v. Wind Dance Farm, Inc., 833 N.E.2d 535, 539 (Ind. Ct. App. 2005), reh'g denied), trans. denied. This is a term of art reserved for specific circumstances, and we decline to apply it here. Rather, we view the Policy as including a contractual restriction that the limits of underinsured motor vehicle coverage with State Farm are only provided for a qualifying incident under the terms of the Policy. As stated above, under the clear terms of the Policy, underinsured motor vehicle coverage is not triggered or qualified until the at fault driver pays his or her policy limits. As the Frechs never made a claim against Poundstone, her estate, or her insurance carrier, the liability limits available to Poundstone were never offered and there is no underinsured motor vehicle claim that can qualify or trigger coverage pursuant to the Policy.⁵

[15] Even assuming we found the Frechs's failure to be the failure as to a condition precedent and thus an affirmative defense that State Farm was required to specifically plead, it would have been within the trial court's discretion to allow State Farm to amend its answer to add an affirmative defense. Indeed, the alleged condition precedent of the Frechs's failure to sue Poundstone was argued extensively during summary judgment and the hearing on the motion to correct error. State Farm filed a motion to amend its answer to add an affirmative defense to conform to the evidence that the trial court deemed moot shortly after its denial of the Frechs's motion to correct error.

[16] The general policy of Indiana courts is “liberally to allow the amendment of pleadings,” Lilge v. Russell's Trailer Repair, Inc., 565 N.E.2d 1146, 1151 (Ind. Ct. App. 1991), and the grant or denial of a motion to amend is a matter within the sound discretion of the trial court and reviewable only for an abuse thereof. Kimberlin v. DeLong, 637 N.E.2d 121, 128 (Ind. 1994). The record here reveals that the Frechs alleged in their complaint that they are entitled to “available limits under the applicable underinsured motor vehicle provisions” of the Policy and “make demand for available limits of coverage in the event that the incident referenced in this Complaint qualifies under the terms of the [P]olicy as an underinsured motor vehicle claim.” Appellant's Appendix Volume II at 33 (emphasis added). They further alleged that they had “fulfilled all conditions precedent required of them under the terms” of the Policy. Id. In its answer, State Farm responded that it was “without sufficient information to either admit or deny” those allegations. Id. at 91. At the time the answer was filed, “State Farm simply knew that an [underinsured] motorist claim was being made and no additional information as to whether there had been a settlement with the [tortfeasor] or not” and thus “the answer was made accurately based upon what State Farm knew or did not know at the time.” Transcript Volume II at 48. State Farm deposed the Frechs on August 5, 2024, and that's when State Farm “heard confirmation” that the Frechs never made any claim against Poundstone as required under the Policy. Id. Under the circumstances, we would decline to find an abuse of discretion in the event the trial court had permitted State Farm to amend its answer, which further supports the affirmance of judgment as a matter of law in State Farm's favor.⁶

[17] Finally, to the extent that the Frechs assert that they were “unable” to sue Poundstone because she was deceased and thus “was not a person who could be sued,” that assertion is incorrect in this context. Appellant's Brief at 9. Regarding a claim for insurance policy proceeds specifically, it is well established that an attorney or interested party must open an estate if they intend to litigate against a deceased individual. Ind. Farmers Mut. Ins. Co. v. Richie, 707 N.E.2d 992, 996 (Ind. 1999) (“The opening of the estate so as to bring the insurance policy into the estate is a formal requirement because the insurance company needs a representative of the defendant to serve as a client.”) (citing Ind. Code § 29-1-14-1(f)). In other words, in seeking underinsured motorist coverage under the Policy, it was the Frechs's responsibility to prove that Poundstone was indeed an underinsured motorist by bringing the Ohio Mutual Insurance Group policy or any other applicable policy into her estate in order to determine the full amount of all available limits of all bodily injury liability.⁷

[18] For the foregoing reasons, we affirm the trial court's entry of summary judgment in favor of State Farm.

[19] Affirmed.

[20] The majority observes that “[a] condition precedent is ‘a condition which must be performed before the agreement of the parties becomes a binding contract or which must be fulfilled before the duty to perform a specific obligation arises.’ ” Slip op. at 10 (quoting New Hampshire Ins. Co., 176 N.E.3d at 522). The majority further observes,

[U]nder the clear terms of the Policy, underinsured motor vehicle coverage is not triggered or qualified until the at fault driver pays his or her policy limits. As the Frechs never made a claim against Poundstone, her estate, or her insurance carrier, the liability limits available to Poundstone were never offered and there is no underinsured motor vehicle claim that can qualify or trigger coverage pursuant to the policy.

Id. at 10-11.⁸

[21] The foregoing are conditions which must be fulfilled before State Farm is obligated to provide the Frechs with underinsured motor vehicle coverage under the Policy. Thus, they are conditions precedent, and I am unpersuaded by the majority's attempt to characterize them as something other than what they clearly are.⁹ It is undisputed that State Farm failed to specifically and particularly assert the Frechs’ failure to fulfill those conditions precedent as an affirmative defense, as required by Trial Rules 8(C) and 9(C) and relevant case law. See, e.g., Dave's Excavating, Inc., 959 N.E.2d at 383 (stating that failure to assert this defense results in waiver).¹⁰ Therefore, I respectfully dissent and would reverse and remand for further proceedings.¹¹

FOOTNOTES

1.   This claim is not part of this appeal.

2.   The trial court's summary judgment order states that it “is a final and appealable order.” Appellant's Appendix Volume II at 29. On the same date, the court also issued its findings of fact, conclusions thereon, and order granting summary judgment in favor of Mullin.

3.   Although the motion is titled a “Motion to Reconsider,” it states that it was filed pursuant to Ind. Trial Rule 59 and seeks the court “to correct error” in its “order granting summary judgment in favor of [State Farm].” Appellant's Appendix Volume II at 120.

4.   Ind. Trial Rule 8(C) provides a nonexhaustive list of affirmative defenses that a “responsive pleading shall set forth affirmatively and carry the burden of proving,” and Ind. Trial Rule 9(C) provides that “[i]n pleading the performance or occurrence of promissory or non-promissory conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed, have occurred, or have been excused. A denial of performance or occurrence shall be made specifically and with particularity, and a denial of excuse generally.”

5.   The dissent's expansive view of what constitutes a condition precedent in an automobile insurance contract is an oversimplification. It conflates a true condition precedent with the insured's burden to establish a right to coverage under the terms of the contract and, by its logic, almost all coverage conditions would be swallowed into that oversimplification. Indeed, the dissent's position would relieve the Frechs of their burden to plead and ultimately prove that the accident qualifies for coverage. As we have observed, we may not extend insurance coverage beyond that provided in the contract, Utica Mut. Ins. Co., 782 N.E.2d at 473, and the Frechs, as plaintiffs, bear the burden to establish their contractual right to underinsured motorist coverage.

6.   As observed by State Farm, even if we were to find “procedural” error on the part of State Farm and this case were to be remanded, the next “logical” step would be for the trial court to allow for the amendment of State Farm's answer to conform to the evidence presented during the summary judgment proceedings under Ind. Trial Rule 15. Appellee's Brief at 16; see Paint Shuttle, Inc. v. Cont'l Cas. Co., 733 N.E.2d 513, 525 (Ind. Ct. App. 2000) (explaining that “[Ind.] Trial Rule 15(B) provides an escape hatch for a defendant if an affirmative defense has not been pled in responsive pleadings”), trans. denied. Thereafter, the Frechs would still be unable to prove a “critical element” of their claim against State Farm because the undisputed facts establish that “they failed to comply with the State Farm Policy to trigger underinsured motor vehicle benefits.” Appellee's Brief at 16.

7.   As explained by State Farm's counsel during the summary judgment hearing, “[T]he Plaintiff's attorneys – the practice is that they open an estate on behalf of the deceased Defendant and they proceed. This is very common practice in making these kind of claims.” Transcript Volume II at 40. He further stated, “[w]hat Plaintiffs should have done in this case is they should have just made a claim with Ohio Mutual and either settle that claim and then go on to State Farm and presented their [underinsured motorist] claim. Or they should have named [Poundstone] ․ Plaintiffs have not preserved State Farm's subrogation rights against [Poundstone]. It's clear in the language of the policy that they're required to name [Poundstone] as a Defendant.” Id. He continued, “I don't know what else to say about bringing their suit against a deceased person. They could have ․ simply named [Poundstone] as a Defendant, and then we could have sorted out whether an estate needed to be opened ․ it's just very commonplace for plaintiff's attorneys in personal injury actions when there's a defendant that's deceased. The plaintiff's attorney goes to the probate court. It's very simple. They open an estate for the purpose of pursuing insurance coverage ․ it's done all the time and it wasn't done in this case.” Id. at 48-49.

8.   As mentioned above, if State Farm and its insured cannot agree as to whether or how much the insured is entitled to recover from the “owner or driver” of an underinsured motor vehicle, the Policy requires the insured to file a lawsuit against State Farm as well as the “owner and driver” of the vehicle. Appellants’ App. Vol. 2 at 68-69 (emphases added). The record suggests that Poundstone was judgment-proof, or at least uninsured, at the time of her death. See Tr. Vol. 1 at 44 (Frechs’ counsel: “[I]t doesn't appear that Miss Poundstone did have any auto insurance[.]”), 46 (State Farm's counsel: “I don't know of any individual policy [held by Poundstone].”). With respect to the Frechs’ failure to name the potentially impecunious Poundstone or her estate as a defendant, our Supreme Court has cautioned that “[t]he law does not require the doing of a useless thing[.]” Stropes by Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989). But certainly, a nonparty defense could have been asserted under Indiana Code Section 34-51-2-14.

9.   The majority asserts that my “view of what constitutes a condition precedent in an automobile insurance contract is an oversimplification” and “conflates a true condition precedent with the insured's burden to establish a right to coverage under the terms of the contract[.]” Slip op. at 11 n.5. The majority further claims that my “position would relieve the Frechs of their burden to plead and ultimately prove that the accident qualifies for coverage.” Id. But the Frechs did not have to bear that burden in response to State Farm's motion for summary judgment. Rather, it was State Farm's burden to establish that it is entitled to judgment as a matter of law under the Policy, but the Frechs raised an insurmountable procedural bar by pointing out that State Farm had failed to assert as an affirmative defense to their complaint that the Frechs had failed to fulfill the foregoing conditions precedent. I believe at this juncture that it is apropos to recite the old proverb that what is good for the goose is good for the gander.

10.   In its answer to the Frechs’ complaint, State Farm asserted the following affirmative defenses:1. Plaintiff fails to attach a copy of the applicable insurance policy pursuant to Indiana Trial Rule 9.2.2. That Defendant, State Farm ․, alleges that under the terms and conditions of the applicable policy of insurance, State Farm is entitled to independently litigate the issues of liability, if any, of the purported underinsured motorist, Karen Mullin, and the issues of the nature, extent and value of any injuries alleged to have been suffered by Plaintiffs in the automobile accident in question.3. That Defendant, State Farm ․, is not bound by any judgment against or agreement by the purported underinsured motorist, Karen Mullin.Appellants’ App. Vol. 2 at 91. These defenses make no mention of Poundstone.

11.   If we were to reverse and remand, as I propose, the trial court may well exercise its discretion to allow State Farm to amend its answer, as the majority suggests. But the court could also entertain a motion to amend the pleadings from any party, not just State Farm, and, in doing so, it might preclude some affirmative defenses and invite others. Nevertheless, the litigation would rightfully proceed under a tort action for which the Frechs paid their premiums, rather than State Farm seeking to avoid its obligations under the Policy by insisting that a useless thing be done. See Mullen v. Cogdell, 643 N.E.2d 390, 399 (Ind. Ct. App. 1994) (“Amendments to the pleadings are to be liberally allowed in order that all issues involved in a lawsuit are presented to the jury.”), trans. denied.

Brown, Judge.

Weissmann, J., concurs. Bailey, J., dissents with separate opinion.