RUCKER, J.
The Estate of Mintz appeals the trial court’s grant of summary judgment in favor of Connecticut General Life Insurance Company and Agent Wayne Gruber. We affirm in part and reverse in part the judgment of the trial court.
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A review of the facts most favorable to the Estate – the nonmoving party – reveals the Mintzes informed Gruber that Mintz was terminally ill with lung disease and leukemia and wanted to convert the entire value of the group coverage to individual policies. According to Mrs. Mintz, Gruber responded, “Absolutely. Just leave it to me. I will do everything.” App. at 609. In April 1995, Gruber mailed an application to Mintz to convert the $62,300 lost by the first reduction of group coverage into an individual policy. When Connecticut General informed Mintz the check for the premium was insufficient, Mrs. Mintz spoke with Gruber who informed her that everything was fine and that she did not need to worry about anything. Gruber never sent the Mintzes an application for the second conversion nor did anything to “take care of everything” as he had assured. Whether Gruber’s actions proximately caused the Mintzes’ injuries is highly fact sensitive and more appropriately left for resolution by a fact-finder than resolved by summary disposition. Indeed a fact-finder could very well conclude that the Mintzes’ actions as well as Gruber’s actions were proximate causes of the Mintzes’ injuries. As such the apportionment principles of comparative fault are triggered. And as with the determination of proximate cause, “The Comparative Fault Act entrusts the allocation of fault to the sound judgment of the fact-finder.” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). We conclude therefore that the trial court erred in granting summary judgment in Gruber’s favor on the basis of a lack of proximate cause. On this issue we reverse the judgment of the trial court.
Invoking the rule that a reviewing court can affirm a trial court’s grant of summary judgment on any theory the Rule 56 materials support, SMDfund, Inc. v. Fort Wayne-Allen County Airport Auth., 831 N.E.2d 725, 728 (Ind. 2005), Gruber contends that even if the trial court erred in granting summary judgment in his favor on the basis of a lack of proximate cause, the trial court can still be affirmed. This is so according to Gruber because “the Estate’s claim fails under a duty analysis because any duty Gruber owed the Mintzes was an assumed duty, and his failure to perform his promise was an act of nonfeasance.” Appellee Wayne Gruber’s Br. at 8-9. Gruber’s contention is based on the premise that there is a distinction between “malfeasance” and “nonfeasance.” See, e.g., J.A.W. v. Roberts, 627 N.E.2d 802, 809 (Ind. Ct. App. 1994) (“This court has held that when a defendant’s alleged negligence arises from nonfeasance, the complete omission or failure to perform, as opposed to misfeasance, negligent conduct or active misconduct, then the duty to act must arise from a special relationship between the parties”); Harper v. Guar. Auto Stores, 533 N.E.2d 1258, 1263 n.4 (Ind. Ct. App. 1989) (declaring that a failure to act has been considered an act of nonfeasance, and although a tortfeasor remains liable for his or her misfeasance, a person who gratuitously assumes a duty generally is not liable for his or her nonfeasance). But there is a difference of opinion in the Court of Appeals on this issue. See, e.g., Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361, 366 (Ind. Ct. App. 2002) (“In our view, however, the distinction between nonfeasance and misfeasance was abandoned by our supreme court in Webb v. Jarvis, [575 N.E.2d 992 (Ind. 1991)]”); accord City of Gary ex rel. King v. Smith & Wesson Corp., 776 N.E.2d 368, 385 n.12 (Ind. Ct. App. 2002) trans. granted, opinion vacated on other grounds, 801 N.E.2d 1222 (Ind. 2003). In any event we need not resolve this dispute today. Even adopting Gruber’s view of the law, the point remains that “failure to do what a reasonably prudent person would do after taking control of a situation, i.e., after undertaking a duty to act, is nonetheless misfeasance.” Ember v. B.F.D. Inc., 490 N.E.2d 764, 771 (Ind. Ct. App. 1986). And as with the determination of proximate cause, whether and to what extent Gruber acted as a “reasonably prudent person” is a question of fact for the fact-finder to resolve. Accordingly, the trial court’s grant of summary judgment in Gruber’s favor cannot be sustained on this ground.
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We affirm in part and reverse in part the judgment of the trial court. This cause is remanded for further proceedings.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.