Jill Long Thompson, Appellant-Defendant/Cross-Appellee/Counterclaim Plaintiff/Crossclaim Plaintiff v. Shawn C. Thompson and Gretchan D. Thompson, Appellees-Defendants/Crossclaim Defendants (2026)

MEMORANDUM DECISION

[1] Jill Long Thompson (“Wife”) appeals—and 1st Source Bank (“Bank”) cross-appeals—the trial court's resolution of competing motions for summary judgment on claims related to an Individual Retirement Account (“IRA”) that belonged to Wife's now-deceased husband, Don Thompson (“Husband”). Concluding that Bank is entitled to summary judgment on all claims against it and agreeing with the trial court that Husband's children from a prior marriage—Shawn C. Thompson (“Son”) and Gretchan D. Thompson (“Daughter”)—are the proper beneficiaries of the IRA, we affirm in part, reverse in part, and remand for entry of summary judgment in favor of Bank.

Facts and Procedural History

[2] Husband died on July 14, 2022. Among his assets was an IRA with Bank (“the IRA”). On February 24, 2023, Bank filed an interpleader complaint seeking to deposit with the Marshall Circuit Court the assets of the IRA for distribution among the proper beneficiaries. Bank named as interpleader defendants three potential beneficiaries, which were Wife, Son, and Daughter. Wife filed a crossclaim against Son and Daughter, alleging that Wife was the rightful beneficiary. She also counterclaimed, alleging Bank was liable for negligent misrepresentation, breach of fiduciary duty, and constructive fraud related to Husband's beneficiary designations. She claimed Bank gained a “material advantage” by “siphoning funds from [the] IRA account to provide for attorneys’ fees accrued as a result of this litigation” and “by continuing to pay itself monthly fees from [the] IRA” under the circumstances. Appellant's App. Vol. II p. 80.

[3] All parties moved for summary judgment on March 17, 2025, and the facts were largely undisputed. In pertinent part, the designated evidence established that Husband and Wife married in September 1995. During the marriage, each maintained accounts with Bank and received financial investment advice from Bank's Wealth Advisory Department. In connection with the advisory relationship, Bank consolidated Husband's and Wife's accounts into a single statement and assessed management fees based on the aggregate balance. Moreover, Bank's Senior Trust Officer, Michael Evans (“Bank Official”), periodically met with Husband and Wife together to discuss their accounts.

[4] In March 2011, Husband opened the IRA. On the account application, Husband designated Wife as the primary beneficiary and his revocable trust as the contingent beneficiary (“the 2011 Designation”). Incorporated into the application was a Traditional Individual Retirement Trust Account Agreement governing the IRA (“the Account Agreement”). In the Account Agreement, Husband represented that “any information” he provided to Bank was “accurate and complete ․” Appellant's App. Vol. V p. 219. Husband also acknowledged that Bank would “rely on the information provided by [him]” and that Bank “ha[d] no duty to inquire about or investigate such information.” Id. The Account Agreement further provided that Bank was “not responsible for any losses or expenses that may result from [Husband's] information, direction, or actions, including [his] failure to act.” Id. Husband agreed to “hold [Bank] harmless, to indemnify, and to defend [Bank] against any and all actions or claims arising from, and liabilities and losses incurred by reason of [his] information, direction, or actions.” Id. There was also a Disclosure Statement (“the Disclosure Statement”) providing, among other things, that:

By completing the appropriate section on the corresponding IRA application[,] you may designate any person(s) as your beneficiary to receive your IRA assets upon your death. You may also change or revoke an existing designation in such manner and in accordance with such rules as your IRA trustee prescribes for this purpose․ Your IRA trustee may rely on the latest beneficiary designation on file at the time of your death, will be fully protected in doing so, and will have no liability whatsoever to any person making a claim to the IRA assets under a subsequently filed designation or for any other reason.

Id. at 221. Bank was the trustee of the IRA and used a form (“the Beneficiary Form”) for changing beneficiary designations. At pertinent times, the Beneficiary Form stated: “This designation revokes and super[s]edes all earlier beneficiary designations which may apply to this IRA.” Id. at 229.

[5] In December 2014, Husband wrote to Bank requesting a change to his beneficiary designation for the IRA. In the letter (“the Letter”), he wrote:

Upon the advice of my attorney and certified public accountant, I would like to change the beneficiary on the [IRA] as follows:

50% to [Son]

AND

50% to [Daughter]

Enclosed is the [Beneficiary Form] that was provided to me.

Please confirm that this change from my prior designation of my Revocable Living Trust as beneficiary has been recorded.

Id. at 231 (emphasis added). Husband signed and returned the Beneficiary Form with the Letter. The form listed Son and Daughter as primary beneficiaries, designated no contingent beneficiary, and did not mention Wife. Bank processed the form, which at that point became the operative beneficiary designation for the IRA (“the 2014 Designation”), directing that Son and Daughter were fifty-fifty primary beneficiaries with no contingent beneficiary.

[6] Bank Official became Husband's IRA administrator around 2017, and Husband was diagnosed with recurrent cancer in the summer of 2021. By mid-2022, Husband was terminally ill. On June 22, 2022, at Husband's request, Wife emailed Bank Official and his colleague, Ben Fanning (“Bank Colleague”), asking to schedule a call to confirm that Husband's beneficiary designations were consistent with his wishes. Bank Official, who was aware of Husband's condition, scheduled the call for the next day. Ahead of the call, Bank Official reviewed a paper file for the IRA that contained only the 2011 Designation showing Wife as the sole primary beneficiary. Bank's official record for the account was accessible in its electronic file management system, which contained the 2014 Designation. In preparing for the call, Bank Official did not locate the 2014 Designation; Bank Official found only the 2011 Designation.

[7] Shortly before the call on June 23, 2022—which was three weeks before Husband's death—Bank Official e-mailed Wife a copy of the 2011 Designation. During the call, he confirmed that Wife was the primary beneficiary.¹ A few days later, Husband and Wife spoke with Bank Colleague about a Prudential Annuity that listed Wife as the primary beneficiary. Bank Colleague understood that Husband was updating his beneficiary designations and had worked with Bank Official on the IRA, where Wife was to be the beneficiary. Husband wanted to change the beneficiary designation for the Prudential Annuity so that it went to Son and Daughter instead of Wife. Husband later completed a change-of-beneficiary form for the Prudential Annuity, which Wife mailed for him, and the proceeds were eventually paid to Son and Daughter.

[8] After Husband's death on July 14, 2022, an employee of the Bank located the 2014 Designation in Bank's official electronic records. On July 25, 2022, Bank Official prepared an internal memorandum acknowledging his mistake, writing: “I do believe it was [Husband's] wish to have [Wife] have the IRA (even if we didn't get a new form signed—due to the newer beneficiary designation not being properly communicated back to him).” Appellant's App. Vol. III p. 147. Following Husband's death, Bank remained custodian of the IRA and continued to collect monthly fees from its assets. Once this litigation commenced, Bank also began using funds from the IRA to pay its attorneys’ fees. Bank's position was that the Account Agreement authorized using funds from the IRA for these purposes.

[9] The trial court held a hearing on the competing summary judgment motions on April 29, 2025. The hearing also addressed pending motions alleging that a portion of Wife's evidence was inadmissible and should not be considered. At the hearing, Son and Daughter argued that the 2014 Designation named them as beneficiaries, and therefore, they were entitled to the IRA. Wife argued that she was instead entitled to the IRA under principles of equitable reformation.

[10] As to Wife's claim of breach of fiduciary duty, Bank argued that it did not owe a fiduciary duty to Wife, only to Husband. Bank also argued that the relationship between Bank and Wife did not support a claim of constructive fraud. Finally, as to negligent misrepresentation, Bank argued that the claim was barred by the economic loss doctrine and, in any case, the claim failed because Wife could not establish the elements of duty and reasonable reliance.

[11] On June 30, 2025, the trial court entered its order on summary judgment, noting that its decision was not based on the challenged evidence. The court determined that Son and Daughter were the beneficiaries of the IRA, and therefore, entitled to judgment on Wife's claim for its proceeds. In reaching this decision, the trial court determined that federal law prevented the exercise of equitable authority. The court further held that, because Wife was not the beneficiary of the IRA, she had no claim against Bank for allegedly improper withdrawals. As to Wife's claim that Bank was liable for breach of a fiduciary duty, the trial court granted Bank's motion for summary judgment, finding no Indiana authority recognizing a fiduciary relationship between a bank and a potential IRA beneficiary. The court also resolved the constructive fraud claim in favor of Bank, finding that Wife waived the claim due to inadequate briefing but, in any case, the relationship between Bank and Wife could not support this type of claim. Finally, as to Wife's claim of negligent misrepresentation, the trial court concluded that there were genuine issues of material fact, and therefore, neither Wife nor Bank was entitled to summary judgment.

[12] Wife appealed the IRA ruling as of right and perfected an interlocutory appeal as to the tort claim rulings; we consolidated those appeals. Bank cross-appeals.

Discussion and Decision

[13] Wife appeals, and Bank cross-appeals, the trial court's order on their competing motions for summary judgment. We review summary judgment decisions de novo. Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 684 (Ind. 2024). Summary judgment is appropriate only when the designated evidence shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We limit our review to the designated evidence, drawing all reasonable inferences in the non-movant's favor. Hardy v. Hardy, 963 N.E.2d 470, 473 (Ind. 2012). Moreover, in reviewing a ruling on summary judgment, we are not bound by the trial court's legal theories and “will affirm if the trial court's entry of summary judgment can be sustained on any theory or basis in the record.” Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1244 (Ind. 2025). The filing of competing motions for summary judgment does not alter our standard or change our analysis; we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Erie Indem. Co. v. Estate of Harris, 99 N.E.3d 625, 629 (Ind. 2018).

I. Equitable Reformation

[14] Wife challenges the trial court's determination that Son and Daughter were entitled to the IRA. An IRA is a trust created for the exclusive benefit of an individual or the individual's beneficiaries and must be governed by a written instrument. 26 U.S.C. § 408(a). Indiana courts interpret written trust instruments as questions of law, applying the same four-corners rule that governs other written instruments: so long as the instrument is unambiguous, we look no further than its text, and extrinsic evidence of what the account holder actually intended is inadmissible to alter what the instrument actually says. Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 531–32 (Ind. 2006).

[15] Wife is not disputing that the 2014 Designation unambiguously named Son and Daughter as equal primary beneficiaries. Rather, she argues that the trial court should have equitably reformed the beneficiary designation to name Wife as the beneficiary. Critically, Wife is seeking equitable intervention based on Husband's inaction—i.e., where Husband did not direct Bank to change his beneficiary. As we explain below, equity intervenes to carry out the decedent's intent when a change in beneficiary was set in motion by the decedent but the change was not effectuated due to circumstances outside the decedent's control. Equitable reformation is not available under these circumstances, where Husband did not take unequivocal affirmative actions to direct a change in beneficiary by following change-of-beneficiary procedures governing the IRA.

A. Federal Law

[16] As an initial matter, Wife challenges the trial court's determination that federal law prohibited it from exercising equitable authority to reform an IRA beneficiary designation. However, we need not consider federal law in resolving this case. As we explain below, even assuming for the sake of argument that federal law permits a state court to invoke equitable authority to reform an IRA beneficiary designation, Wife's request fails because the requirements of equitable reformation under Indiana law are not met.

B. Substantial Compliance

[17] Wife invokes the doctrine of substantial compliance. Under this doctrine, “equity will ․ aid in completing an incomplete change of beneficiary” so long as there was substantial compliance with the requirements of the governing instrument. Borgman v. Borgman, 420 N.E.2d 1261, 1263, 1265 (Ind. Ct. App. 1981). There is substantial compliance where the decedent did “everything within his power” to accomplish the change. Id. at 1265. “Substantial compliance, although a fact-sensitive determination, has been held to be a question of law.” Hamilton v. Hamilton, 132 N.E.3d 428, 437 (Ind. Ct. App. 2019).

[18] In seeking equitable reformation, Wife principally relies on two cases—Borgman and Hamilton. Both cases involved decedents who tried to change their beneficiary designations but were unable to do so for reasons outside their control. Borgman involved an insurance policy where the insured informed his agent that he wanted his new wife named as the policy beneficiary in place of his father; the insured made repeated, unsuccessful attempts to reach the agent to complete the change before he was killed in a car accident. 420 N.E.2d at 1262–64. This court affirmed the trial court's determination that equity applied under the circumstances, warranting reformation of the beneficiary designation. Id. at 1265–66. Similarly, in Hamilton, a father contacted his financial advisor about changing his IRA beneficiary designation to his daughters. 132 N.E.3d at 430. He drove to the advisor's office with a document the advisor requested—only to learn the advisor was on vacation. Id. at 431. The father left the document with office staff, was critically injured the next day, and died the day after, while waiting for the advisor to prepare necessary paperwork. Id. This court affirmed summary judgment for the father's estate on alternative grounds—(1) the ex-wife waived her interest and (2) the father had “done everything within his power” to complete the change and was “deemed to have completed these changes pursuant to the equitable rule of substantial compliance.” Id. at 438.

[19] Wife argues that “[p]osthumous reformation of beneficiaries is, in virtually every affirmative manifestation, principally premised upon effectuating the clear intent of the deceased.” Appellant's Br. p. 18. However, Borgman and Hamilton look to whether the decedent substantially complied with governing procedures to effect a change of beneficiary. In those cases, the decedent's intent is disclosed by his affirmative actions to direct a change of beneficiary through the governing procedures. A decedent cannot be said to substantially comply with procedures governing a change in beneficiary where, as here, the claim is that the defendant failed to formally initiate a change. In other words, this case is distinguishable from Borgman and Hamilton because Husband did not have a beneficiary change in progress when he died, nor had Husband done everything in his power to effect a change. Instead, the claim is that Bank Official provided inaccurate information that led Husband to believe that the current designation was consistent with his wishes and that no change was necessary. In circumstances like these, the decedent's intent is not disclosed through an action in compliance with governing procedures directing a change in beneficiary. Wife directs us to cases from other jurisdictions. To the extent those cases would allow reformation of a beneficiary designation without the decedent's substantial compliance with procedures governing the change, we decline to extend Indiana's equitable doctrine.

C. Effect of Interpleader

[20] Citing Modern Brotherhood of America v. Matkovich, Wife argues that when an institution interpleads disputed funds, courts take a more relaxed approach to change-of-beneficiary procedures as between the competing claimants. 104 N.E. 795, 797–98 (Ind. Ct. App. 1914). However, Modern Brotherhood—like Borgman and Hamilton—involved a decedent who did everything possible to effect a change. Indeed, in that case, the insured wanted to change her beneficiary designation, but the existing beneficiary “refused to surrender” a necessary document, “ma[king] it impossible for the insured to comply with the regulations prescribed for a change of beneficiary ․” Id. at 798. The case did not dispense with the requirement of an attempted change, and Husband made no such attempt. Moreover, Wife separately relies on an Ohio Supreme Court case, LeBlanc v. Wells Fargo, 981 N.E.2d 839, 846–47 (Ohio 2012), for the proposition that an interpleading custodian waives its change-of-beneficiary procedures. However, as discussed above, we decline to extend Indiana law.

[21] For the foregoing reasons, the trial court correctly determined that Son and Daughter were the beneficiaries of the IRA and entitled to summary judgment.

II. Tort Claims

[22] Wife next challenges the denial of her motion for summary judgment on claims of breach of fiduciary duty and constructive fraud—which the trial court resolved in favor of Bank—and on her claim of negligent misrepresentation, which survived summary judgment. Bank cross-appeals, claiming it was also entitled to summary judgment on the claim of negligent misrepresentation.

[23] We conclude that Wife's claims fail as a matter of law. In general, Wife is attempting to stand in Husband's shoes and recover for the consequences of misinformation to Husband. The essence of Wife's claims is that, but for Bank Official's inaccurate statement about the beneficiary designation, Husband would have made her the beneficiary of the IRA. Were these claims brought by Husband's estate, our analysis would differ. See generally Ind. Code § 34-9-3-1(a) (providing that, in general, a “cause of action survives [death] and may be brought by ․ the representative of the deceased party”). However, in this case, Wife is the plaintiff—not Husband's estate. Therefore, in analyzing the scope of Bank's potential tort liability, we must focus on Bank's relationship with Wife rather than Bank's relationship with Husband, the account holder.

A. Breach of Fiduciary Duty

[24] Wife argues that Bank is liable for a breach of fiduciary duty. As explained below, this claim turns on whether Bank owed Wife a duty to accurately communicate information about Husband's current beneficiary designation.

[25] A claim of breach of fiduciary duty requires “(1) the existence of a fiduciary relationship; (2) a breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary.” Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 79 (Ind. Ct. App. 2010), trans. denied. Thus, the claim fails if the parties’ fiduciary relationship does not extend to the specific duty invoked. See id.

[26] Here, the undisputed evidence establishes that Wife was not a party to the Account Agreement. Therefore, whatever fiduciary duties arose from the Account Agreement itself—such as a duty to relay accurate information to Husband—those fiduciary duties ran only to Husband. Accordingly, the dispositive inquiry is not about Husband, but instead whether Bank owed Wife a fiduciary duty to accurately inform her of Husband's beneficiary designation.

1. Financial Advisor Relationship

[27] Wife argues that Bank owed her fiduciary duties independent of the IRA, as Bank was serving as the couple's financial advisor. She points to authority recognizing that a bank acting in an advisory capacity can occupy a fiduciary relationship with its client. See, e.g., Gaunt v. Peoples Tr. Bank, 379 N.E.2d 495, 496–97 (Ind. Ct. App. 1978); Teeling v. Ind. Nat'l Bank, 436 N.E.2d 855, 858 (Ind. Ct. App. 1982). Wife directs us to evidence that Bank “routinely discharged its advisory function” to Wife and Husband as a single unit, “going so far as to consolidate all their accounts (including [the] IRA) into a comprehensive statement and to assess fees based upon the aggregate of all [the] accounts rather than upon individual balances.” Appellant's Br. pp. 21–22.

[28] However, advising Wife on the marital portfolio is a different function than accurately relaying the current beneficiary designation for Husband's IRA. Cf. Gaunt, 379 N.E.2d at 496–97 (recognizing that the scope of a bank's duty to a client is shaped by the nature of the relationship with the client). In other words, when it comes to the advisory relationship, it is one thing to say that Bank owed Wife a duty to accurately communicate account balances and investment holdings; that information would assist Wife in making financial decisions. However, Bank's advisory function did not extend to Husband's beneficiary designation. See id. (concluding that a bank “acquired no investigator[y] duties” where it was “merely the depository of [the] funds”). Rather, any advisory duty Bank owed Wife as to the IRA concerned the account's holdings and performance—information that guided the couple's financial decisions—not decision-making about who would receive Husband's account upon his death. Wife had no control over Husband's beneficiary designation, and the designation was not an outgrowth of investment guidance.

2. Duties of a Trustee

[29] Wife directs us to decisions holding that, under Indiana law, a trustee's fiduciary obligations run to the beneficiaries of the trust it administers. See, e.g., In re Stuart Cochran Irrevocable Tr., 901 N.E.2d 1128, 1138–39 (Ind. Ct. App. 2009), trans. denied. However, the cited cases (which do not involve IRAs) recognized duties owed to actual beneficiaries and, even then, only to the extent established by statute or the trust instrument. After Husband completed the 2014 Designation, Wife was not a designated beneficiary on the IRA account.

3. Estate Planning

[30] Wife also relies on Walker v. Lawson, where our Supreme Court determined that the intended beneficiary of a will may sue the drafting attorney for negligence in implementing the testator's estate plan. 526 N.E.2d 968 (Ind. 1988) (identifying the intended beneficiary as “known third party”). We are unaware of any Indiana precedent holding that a financial institution has the same professional responsibilities as an attorney, whose duties are borne of the unique nature of an attorney-client relationship. Rather, as a sister court has explained, the trustee of an IRA has only limited fiduciary duties—and those duties do not “expand to make [the] trustee the equivalent of an attorney preparing a will for the [account holder].” Holtz v. Hilliard, 1 F. Supp. 2d 887, 894 (S.D. Ind. 1998) (noting that “none of the defendants had undertaken fiduciary duties to [the decedent] that would include advising him about his estate planning or challenging his intentions concerning the designation of beneficiaries”). Therefore, we conclude that the reasoning in Walker does not extend to recognize a fiduciary duty to Wife under the circumstances.²

[31] We conclude that, as a matter of law, Bank did not owe Wife a duty—fiduciary or otherwise—to accurately inform her of Husband's beneficiary designation. Therefore, the trial court properly granted Bank summary judgment on Wife's claim of breach of fiduciary duty.

B. Constructive Fraud

[32] Wife claims she was entitled to summary judgment on the claim of constructive fraud. We conclude the claim fails because, for the reasons already discussed, Bank did not owe a pertinent duty to Wife—and even if it owed such a duty, Bank cannot be said to have gained an advantage from its mistake at Wife's expense.

[33] The tort of constructive fraud requires (1) a duty owed by the party to be charged, arising from the parties’ relationship; (2) violation of that duty through a deceptive material misrepresentation of fact, or silence where a duty to speak exists; (3) reliance on the misrepresentation by the complaining party; (4) resulting injury; and (5) the gaining of an advantage by the party to be charged at the expense of the complaining party. Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996). In this context, the defendant gains an advantage if it profited at the plaintiff's expense, with no corresponding benefit to the plaintiff. See Wells v. Stone City Bank, 691 N.E.2d 1246, 1251 (Ind. Ct. App. 1998) (identifying a potential gained advantage where the bank's actions allegedly generated income for the bank while producing no benefit to the account holder), trans. denied. The trial court determined that Bank was entitled to summary judgment on the claim of constructive fraud, reasoning that Wife waived the claim through inadequate briefing and, regardless, the relationship between Wife and Bank could not support the first element of the claim. We agree with the court that the claim fails as a matter of law. As earlier discussed, Bank did not owe Wife a duty to relay accurate information about Husband's beneficiary designation. Furthermore, regardless of the scope of Bank's duties, Wife's claim requires evidence that—at her expense—Bank gained an advantage from a deceptive misrepresentation. The only advantage the designated evidence could support is Bank's continued collection of fees and its use of the IRA funds to pay attorneys’ fees. Even if this could be considered an actionable advantage, as we determined earlier, the IRA belongs to Son and Daughter—not Wife. Thus, any sort of advantage was gained at their expense, not Wife's. We, therefore, affirm the trial court's decision granting Bank summary judgment on the claim.

III. Negligent Misrepresentation

[34] Finally, the trial court determined that neither party was entitled to summary judgment on the claim of negligent misrepresentation. On cross-appeal, Bank argues the claim is barred by the economic loss rule. In the alternative, Bank argues that Wife failed to establish the element of reliance. We resolve the claim on the element of reliance and do not reach the economic loss rule. As explained below, the claim turns on whose reliance—Husband's or Wife's—caused the loss she now claims. Wife cannot recover for Husband's reliance.

[35] The Indiana Supreme Court discussed the tort of negligent misrepresentation in U.S. Bank, N.A. v. Integrity Land Title Corp., referencing Section 552 of the Restatement (Second) of Torts as Indiana's governing standard. 929 N.E.2d 742, 747 (Ind. 2010). In pertinent part, Section 552 provides as follows:

One who, in the course of his business, profession[,] or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552(1). The Restatement (Third) of Torts: Liability for Economic Harm—which was finalized after the U.S. Bank decision—provides guidance on the scope of a defendant's liability.³ Section 5 restates the tort in substantially the same terms, with Comment (g) stating:

In some cases, a plaintiff suffers economic loss not from reliance on a defendant's negligent statements, but because the statements are relied upon by a third party; the negligent statements affect judgments the third party makes about the plaintiff. Courts routinely reject tort liability on these facts for the party who made the misrepresentation. The result can be explained by noting the plaintiff's lack of reliance, or by observing that the defendant's purpose was not to supply information for the plaintiff's benefit or guidance.

Restatement (Third) of Torts: Liab. for Econ. Harm § 5 cmt. (g) (2020).

[36] While acknowledging that liability “occasionally may be established on theories outside [Section 5],” Comment (g) provides an illustration of the type of third-party reliance that does not support a claim of negligent misrepresentation:

Buyer makes a preliminary agreement to purchase a house from Seller, pending the outcome of an appraisal ordered by Buyer. Appraiser's report negligently understates the value of Seller's house. Acting in reliance on the report, Buyer refuses to close the deal. Seller has no claim against Appraiser for negligent misrepresentation. The result may be explained by pointing out that Seller did not rely on Appraiser's report; he may have “relied” in the sense that he was counting on Appraiser to do a competent job, but he did not change position in reliance on anything that Appraiser said. The result also may be explained on the ground that Appraiser was not supplying information for the purpose of guiding Seller.

Id. When it comes to negligent misrepresentation, actionable reliance “occurs when a misrepresentation is an immediate cause of a plaintiff's conduct, which alters [the plaintiff's] legal relations ․” Glassford v. Dufresne & Assocs., P.C., 124 A.3d 822, 832 (Vt. 2015) (alteration in original) (quoting Am. Trim, L.L.C. v. Oracle Corp., 383 F. 3d 462, 473 (6th Cir. 2004)); see also Rodriguez v. ECRI Shared Servs., 984 F. Supp. 1363, 1366 (D. Kan. 1997) (declining the plaintiff's invitation to “expand the scope of a negligent misrepresentation action” where the plaintiff claimed it should be “sufficient for the plaintiff to show reliance by a third party where such reliance results in damage to the plaintiff”).⁴

[37] Wife argues she can prevail because Bank “knew and intended” that she and Husband “would rely upon the information and attach significance to it in effectuating [Husband]’s dying wishes and instructions.” Appellant's Br. p. 33. We conclude, however, that the dispositive question is not what Bank believed; it is whether Wife's own reliance, rather than Husband's, produced the loss she claims. Bank Official's misrepresentation about the designation was communicated to both Husband and Wife, but the power to change or preserve that designation was Husband's alone. After the call, Husband treated the beneficiary matter as resolved and forewent corrective action before his death. That reliance was his, not Wife's—she had no authority over the designation and could neither change it nor preserve it through any independent act of her own.

[38] Because the alleged loss did not flow from any reliance of her own, Wife cannot satisfy the elements of negligent misrepresentation.⁵ We, therefore, reverse and remand for entry of summary judgment in favor of Bank on the negligent misrepresentation claim.⁶

Conclusion

[39] We affirm summary judgment in favor of Son and Daughter regarding their rights to the IRA. We further affirm summary judgment in favor of Bank on Wife's claims of breach of fiduciary duty and constructive fraud. However, because we conclude, as a matter of law, that the designated evidence does not support a claim of negligent misrepresentation, we reverse and remand with instructions to grant Bank's motion for summary judgment in its entirety.

[40] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   The designated evidence conflicts as to whether Husband was present for this call, but the conflict does not affect our analysis.

2.   Resolving the claim on this basis, we do not address arguments regarding other elements of Wife's claim.

3.   The Indiana Supreme Court consulted an early Council Draft of the Restatement (Third) of Torts when it referred to Section 552 and discussed the scope of the economic loss rule. See U.S. Bank, N.A. v. Integrity Land Title Corp., 929 N.E.2d 742, 746 (Ind. 2010) (citing Restatement (Third) of Economic Torts and Related Wrongs § 12 (Council Draft No. 2, 2007)); see also Indianapolis-Marion Cnty. Pub. Libr. v. Charlier Clark & Linard, P.C., 929 N.E.2d 722, 727 n.6 (Ind. 2010) (providing background on the Council Draft).

4.   To the extent Wife identifies out-of-state authorities that would expand the tort to encompass Husband's reliance, we adhere to the third-party limitation specifically illustrated in Comment (g) of the Restatement.

5.   Wife focuses her argument on the IRA rather than the Prudential Annuity. Nevertheless, to the extent it could be said that Wife's help mailing the change-of-beneficiary paperwork reflected reliance of her own, Wife's action was not the cause of her pecuniary loss. That is, the change of beneficiary did not flow from anything Wife did, but instead from Husband's decision to redirect the annuity to Son and Daughter. Cf. Appellant's Br. p. 18 n.5 (focusing on Husband's decision-making in light of the information provided).

6.   Resolving the issue on this ground, we do not address other arguments regarding the claim of negligent misrepresentation, such as Bank's contention that contractual provisions independently foreclose liability.

Foley, Judge.

Tavitas, C.J., and Weissmann, J., concur.