Smith v. Auto-Owners Insurance Co.

877 N.E.2d 1220, 2007 Ind. App. LEXIS 2749, 2007 WL 4326797
CourtIndiana Court of Appeals
DecidedDecember 12, 2007
Docket84A01-0611-CV-516
StatusPublished
Cited by3 cases

This text of 877 N.E.2d 1220 (Smith v. Auto-Owners Insurance Co.) 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
Smith v. Auto-Owners Insurance Co., 877 N.E.2d 1220, 2007 Ind. App. LEXIS 2749, 2007 WL 4326797 (Ind. Ct. App. 2007).

Opinions

OPINION

KIRSCH, Judge.

Mary Lou Smith, Heather Nicole Smith, and Mary Lou Smith and John W. Smith as natural parents and guardians of Jonathan Travis Smith (collectively, “the Smiths”) appeal the trial court’s grant of summary judgment in favor of Auto-Owners Insurance Company (“Auto-Owners”). They raise the following restated issue: whether the Smiths’ uninsured motorist claim was barred by the language of the insurance policy and by IC 27-7-5-4.

We reverse.

FACTS AND PROCEDURAL HISTORY

This case arises from an auto accident that occurred on February 10, 1999, between the Smiths’ vehicle and Nellie Rogers’s vehicle. The Smiths were purportedly injured in the collision and filed a personal injury action against Rogers on February 9, 2001. Rogers had an auto insurance policy with Highlands Insurance Company (“Highlands”). The Smiths had an auto insurance policy with Auto-Owners.

The matter was set for trial March 8, 2004. Four days before the trial, on March 4, counsel for Rogers disclosed to the Smiths’ counsel that Highlands had filed for receivership in the State of Texas. The trial was continued, and the Smiths’ attorney submitted a letter to Auto-Owners to inform the company that the Smiths would be making an uninsured motorist claim. On June 11, 2004, Auto-Owners filed a complaint for declaratory judgment against the Smiths, alleging it had no duty to provide coverage for an uninsured motorist claim. On June 29, 2004, the Smiths amended their complaint to add Auto-Owners as a defendant and make an uninsured motorist claim against it. Auto-Owners moved for summary judgment in the declaratory judgment action on October 18, 2005. In its motion, Auto-Owners contended that Indiana statutes and the terms of the insurance policy prevented an insured from making an uninsured motorist claim more than two years after an accident. The trial court granted summary judgment to Auto-Owners. The Smiths now appeal.

DISCUSSION AND DECISION

In our review of a summary judgment ruling, we apply the same standard as the trial court. Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1282 (Ind.2006). We will affirm a grant of summary judgment if it can be sustained on any theory or basis in the record. Beineke v. Chem. Waste Mgmt. of Ind., LLC, 868 N.E.2d 534, 537 (Ind.Ct.App.2007). Summary judgment shall be entered “if the designated eviden-tiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). On review, all facts and reasonable inferences drawn from them are construed in favor of the nonmoving party. Beineke, 868 N.E.2d at 537.

The Smiths argue that the trial court erred when it granted Auto-Owners’s motion for summary judgment because their [1222]*1222complaint against Auto-Owners was not time-barred. They contend that they timely filed their complaint both under the terms of the insurance policy and under IC 27-7-5-4 because it was filed within two years of their discovery of Highlands’s insolvency. Auto-Owners counters that the trial court properly granted their motion for summary judgment because the Smiths’ cause of action was time-barred by the policy limitation period and because Rogers was not an uninsured motorist under the terms of the policy or under Indiana law.

This case hinges on the interpretation and application of the insurance policy and the definition of insolvency regarding uninsured motorist claims as set out by the Indiana Code. We review an insurance policy using the same rules of interpretation applied to other contracts, namely if the language is clear and unambiguous we will apply the plain and ordinary meaning. Cincinnati Ins. Co. v. Am. Alternative Ins. Corp., 866 N.E.2d 326, 332 (Ind.Ct.App.2007), trans. denied. The interpretation of an insurance policy is generally a question of law appropriate for summary judgment. Progressive Ins. Co. v. Bullock, 841 N.E.2d 238, 240 (Ind.Ct.App.2006), trans denied.

We are to consider the statutes governing uninsured motorist coverage as a part of every automobile insurance contract, as if written therein. Kinslow v. GEICO Ins. Co., 858 N.E.2d 109, 114 (Ind.Ct.App.2006). IC 27-7-5-4 is instructive on the availability of insolvency protection as it relates to uninsured motorist coverage. The statute provides in part:

(a)For the purpose of this chapter, the term uninsured motor vehicle, subject to the terms and conditions of such coverage, means a motor vehicle without liability insurance or a motor vehicle not otherwise in compliance with the financial responsibility requirements of IC 9-25 or any similar requirements applicable under the law of another state, and includes an insured motor vehicle where the liability insurer of the vehicle is unable to make payment with respect to the legal liability of its insured within the limits specified in IC 9-25-4-5 because of insolvency.
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(c) An insurer’s insolvency protection applies only to accidents occurring during a policy period in which its insured’s uninsured motorist coverage is in effect and where the liability insurer of the tortfeasor becomes insolvent within two (2) years after such an accident. However, nothing contained in this section shall be construed to prevent any insurer from affording insolvency protection under terms and conditions more favorable to its insured than is provided under this section.

IC 27-7-5-4.

The Auto-Owners’s policy at issue here provides coverage for insolvency of a tort-feasor’s insurance company. It contains the following multi-part definition of an “uninsured automobile”:

Uninsured automobile means an automobile:

(a) to which no bodily injury or property damage liability bond or policy applies:
1) at the time of the occurrence;
2) in the minimum amounts required by the Financial Responsibility Law in the state where your automobile is normally garaged.
(b) insured by a company that becomes insolvent.
(c) insured by a company that has issued a successful written denial of coverage.
(d) that is a hit and run automobile. By this we mean an automobile:
[1223]*12231) that causes bodily injury by actual physical contact with the injured person or the automobile that injured person is occupying; and
2) whose owner or operator is unknown.
An occurrence involving a hit and run automobile must be reported to the police within 24 hours of when it takes place.

Appellants’ App. at 144.

Clearly, part (b) includes protection for insolvency.

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877 N.E.2d 1220, 2007 Ind. App. LEXIS 2749, 2007 WL 4326797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-auto-owners-insurance-co-indctapp-2007.