Asklar v. Gilb

979 N.E.2d 664, 2012 Ind. App. LEXIS 564, 2012 WL 5519616
CourtIndiana Court of Appeals
DecidedNovember 15, 2012
DocketNo. 02A03-1204-CT-170
StatusPublished
Cited by2 cases

This text of 979 N.E.2d 664 (Asklar v. Gilb) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asklar v. Gilb, 979 N.E.2d 664, 2012 Ind. App. LEXIS 564, 2012 WL 5519616 (Ind. Ct. App. 2012).

Opinion

OPINION

VAJODIK, Judge.

Case Summary

Derek and Pauline Asklar (“the Ask-lars”) appeal the trial court’s decision to grant summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”). The Asklars contend that the trial court erred in holding that as a matter of law, Georgia law governs this dispute and that Empire’s uninsured/underin-sured motorist coverage limit was only $75,000. Finding that Indiana law should apply in this case, but that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm in part and reverse in part.

Facts and Procedural History

On July 30, 2008, Derek Asklar was employed by Premium of North Carolina, and his services were being leased by Wer-ner Transportation Services, Inc., a Georgia corporation. He was driving a semi-tractor trailer, owned by Schilli Leasing, an Indiana company, westbound on 1-68 in West Virginia. The tractor-trailer was registered, principally garaged, and licensed in Indiana. Appellant’s App. p. 199. While stopped at the bottom of an exit ramp, Derek’s tractor-trailer was hit from behind by another semi truck driven by David Gilb in the course of his employment with One Trucking. As a result of the collision, six other people were injured, Derek required medical treatment, including neck surgery, and he has been unable to work since. Gilb’s truck was insured by Northland Insurance Company and had a single liability limit of $1,000,000. Because of all of the claims against Gilb resulting from this collision, Derek also attempted to recover under Werner Transportation’s uninsured/underinsured (UM/UIM) motorist coverage.

Werner Transportation’s liability insurance was with Empire. It provided $5,000,000 in liability coverage, but only $75,000 in UM/UIM motorist coverage. Id. at 88. John Werner, in writing and on behalf of Werner Transportation, elected to reduce the amount of UM/UIM coverage under its policy to $75,000. Appellee’s App. p. 16-20.

The Asklars brought suit against Gilb, One Trucking, Northland Insurance Company, and Werner Transportation’s insurance company, Empire, alleging negligence and seeking compensation for his injuries. Empire was joined in the lawsuit to deter[666]*666mine how much of its UM/UIM coverage was available to Derek to fully compensate him for his injuries. After filing the lawsuit, the Asklars filed a motion for partial summary judgment against Empire, alleging that the UM/UIM coverage limit should be $5,000,000 under Indiana law. Empire filed a memo in opposition and filed its own motion for summary judgment, alleging that Georgia law applied to this case and the UM/UIM coverage was in accordance with the law at $75,000. The trial court held a hearing on the cross motions for summary judgment and granted Empire’s motion and denied the Ask-lars’ motion.

The Asklars filed a motion to correct errors, and Empire filed a statement in opposition. The trial court held a hearing on the motion to correct errors and entered an order denying the motion.

The Asklars now appeal.

Discussion and Decision

There are three arguments raised on appeal: (1) whether the Asklars waived the argument that Georgia law does not apply by admitting in open court that it applied; (2) whether the trial court erred in granting summary judgment for Empire and finding that Georgia law applied; and (3) whether the trial court erred in granting summary judgment for Empire and finding its UM/UIM coverage limit to be $75,000.

I. Waiver

Empire contends that the Ask-lars have waived the argument that Georgia law does not apply to this case because his attorney admitted in open court that Georgia law did apply. A judicial admission is “a clear and unequivocal admission of fact, or a formal stipulation that concedes any element of a claim or defense ....” Bandini v. Bandini, 935 N.E.2d 253, 265 (Ind.Ct.App.2010) (emphases added).

In this case the following exchange took place between the trial court judge and the Asklars’ attorney during a discovery motion hearing:

THE COURT: It’s not a coverage issue. It’s not whether they gave notice and all of those contractual questions. The question is to the amount of the underinsured motorist and whether there was a proper waiver, correct?
MANGES: Correct
THE COURT: Under Georgia law?
MANGES: Yes, absolutely.

Appellee’s App. p. 47. Empire argues that this constitutes a judicial admission. We disagree.

The statement made by the Asklars’ attorney at the hearing was neither a factual admission nor an element of the claim being asserted; this was a statement dealing with the potential choice-of-law issue that may arise in this case. Because this statement does not fall under the definition of a judicial admission, we find that the Asklars’ attorney did not make a binding admission that Georgia law applies in this case, and the issue is therefore not waived for our review.

II. Summary Judgment

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch, 864 N.E.2d 1058, 1062 (Ind.2007).

[667]*667 A. Application of Georgia Law

Finding that the Asklars have not waived the argument that Georgia law does not apply, we now must address the issue of whether the trial court erred in granting summary judgment for Empire and finding that Georgia law applies. The Asklars contend that the trial court erred in granting summary judgment in favor of Empire, arguing that Indiana law is applicable in this situation.

Indiana Code section 9-25-4-l(b) deals with the financial requirements of Indiana drivers and provides in relevant part:

A person may not:
(1) register a motor vehicle;
5⅛ ⅜ ⅜ ⅜ ⅜ ⅜
in Indiana if financial responsibility is not in effect with respect to the motor vehicle under section 4 of this chapter, or the person is not otherwise insured in order to operate the motor vehicle.

Indiana Code section 27-7-5-2 addresses UM/UIM insurance and states that it applies to “any motor vehicle registered or principally garaged in this state.” While we recognize that Stonington Insurance Company v. Williams, 922 N.E.2d 660

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979 N.E.2d 664, 2012 Ind. App. LEXIS 564, 2012 WL 5519616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asklar-v-gilb-indctapp-2012.