MEMORANDUM DECISION                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                      09/06/2017, 9:51 am
this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES –
Jeffrey C. Gerish                                        FAYE L. KESSLER AND
Plunkett Cooney                                          WILLIAM J. KESSLER
Bloomfield Hills, Michigan                               Matthew J. Schad
                                                         George A. Budd, V
                                                         Schad & Schad, P.C.
                                                         New Albany, Indiana

                                                         ATTORNEYS FOR APPELLEE –
                                                         LORETTA LYNN JOHNSON, AS
                                                         PERSONAL REPRESENTATIVE OF
                                                         THE ESTATE OF WILLIAM
                                                         JOSEPH CHARLES
                                                         Cara W. Stigger
                                                         Kerstin Schuhmann
                                                         Kaufman & Stigger, PLLC
                                                         Louisville, Kentucky



                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017              Page 1 of 11
      Grange Mutual Insurance                                  September 6, 2017
      Company and Fieldstar, Inc.,                             Court of Appeals Case No.
      Appellants-Defendants,                                   22A01-1702-CT-376
                                                               Appeal from the Floyd Superior
              v.                                               Court
                                                               The Honorable Susan L. Orth,
      Faye L. Kessler and William J.                           Judge
      Kessler,                                                 Trial Court Cause No.
      Appellees-Plaintiffs,                                    22D01-1501-CT-34

             and

      Loretta Lynn Johnson, as Personal
      Representative of the Estate of
      William Joseph Charles, et al.,

      Appellees-Defendants.




      Najam, Judge.


                                       Statement of the Case
[1]   Fieldstar, Inc. (“Fieldstar”) and Grange Mutual Insurance Company

      (“Grange”) appeal the trial court’s denial of their joint motion for summary

      judgment. Fieldstar and Grange present a single issue for our review, which we

      restate as whether the trial court erred when it concluded that Fieldstar and

      Grange are not entitled to judgment as a matter of law.


[2]   We affirm.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 2 of 11
                                 Facts and Procedural History
[3]   Fieldstar is an Indiana corporation that reads meters for utility companies. In

      2013, Fieldstar operated a fleet of about fifty vehicles at numerous locations

      throughout Indiana. Fieldstar orally contracted with Rick Day to have Day do

      various jobs for Fieldstar. Day’s work included performing vehicle repairs,

      which he did through his New Albany business, Rick’s Auto Body. Day’s

      relationship with Fieldstar also included transporting vehicles between

      Fieldstar’s various Indiana locations and selling Fieldstar’s vehicles when

      Fieldstar downsized its fleet. On some occasions, Day “would go pick . . . up”

      a vehicle that needed to be repaired and transport it to his shop to repair it.

      Appellants’ App. Vol. 2 at 177.


[4]   Usually, Fieldstar paid Day separately for each of those three types of work.

      Specifically, Day invoiced Fieldstar for repair work; Fieldstar paid Day a lump-

      sum for transporting vehicles between Fieldstar locations; and Fieldstar paid

      Day a commission for each vehicle he sold. However, Fieldstar sometimes

      paid Day “at once . . . for the repair and the $200 commission if he sold the

      vehicle” following the repair. Id. at 167.


[5]   In January of 2013, Fieldstar needed trucks transported from its location in

      Richmond, which it was closing, to its location in Bloomington. In

      Bloomington, the trucks were to be “swap[ped]” out for cars that needed to be

      transported from Bloomington to Day’s shop in New Albany. Id. at 182. And,

      in New Albany, the cars were “to be repaired” as needed “and sold.” Id. at

      166. Fieldstar paid for the fuel required to transport the vehicles; Fieldstar
      Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 3 of 11
      “control[led]” when Day could pick the vehicles up at a given Fieldstar

      location; and Fieldstar “instruct[ed]” Day on where to transport the vehicles.

      Id. at 178. Fieldstar never required Day to provide any proof of insurance.


[6]   On January 12, Fieldstar’s owner, Norman Stroud, contacted Day about

      transporting the vehicles. Day then contacted Aaron Weddle, a friend of Day’s

      son, and others to help Day transport the vehicles. Fieldstar paid Day a lump

      sum of $775 to transport the trucks and the cars. Day, in turn, paid Weddle a

      lump sum of $50.


[7]   Weddle transported a truck from Richmond to Bloomington. In Bloomington,

      Weddle picked up a Chevrolet Aveo to transport to New Albany. En route,

      Weddle crossed the center line of U.S. 150 and struck, head on, a vehicle being

      driven by Faye Kessler. William Joseph Charles was a passenger in Kessler’s

      vehicle. Prior to the collision, the Aveo had no known mechanical issues that

      required repair, and Stroud described the Aveo as “in service” for Fieldstar. Id.

      at 171.


[8]   At the time of the collision, neither Day nor his business had “any kind of

      insurance.” Id. at 178. However, Fieldstar had an automobile insurance policy

      with Grange. That policy stated as follows:


              SECTION II LIABILITY COVERAGE


              A. Coverage




      Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 4 of 11
              We will pay all sums an “insured” legally must pay as damages
              because of “bodily injury” or “property damage” to which this
              insurance applies, caused by an “accident” and resulting from the
              ownership, maintenance or use of a covered “auto.”


                                                      ***


              1. Who is An Insured


              The following are “insureds”:


                                                      ***


              b. Anyone else while using with your permission a covered
              “auto” you own . . . except:


                                                      ***


              (3) Someone using a covered “auto” while he or she is working in a
              business of selling, servicing, repairing, parking or storing “autos” unless
              that business is yours.


      Id. at 91 (italics added).


[9]   Following the collision, Kessler and her husband filed suit against Fieldstar,

      Grange, Rick’s Auto Body, Weddle, and Auto-Owners Insurance Company,

      which had an insurance contract with the Kesslers. Loretta Lynn Johnson, as




      Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 5 of 11
       the personal representative for the estate of Charles, was also joined as a party.1

       Thereafter, Fieldstar and Grange (hereinafter collectively referred to as

       “Fieldstar”) jointly moved for summary judgment on the theory that Weddle

       was not an “insured” under the policy. The Kesslers responded and cross-

       moved for summary judgment.


[10]   The trial court denied Fieldstar’s motion for summary judgment but did not

       rule on the Kesslers’ motion. However, in its order denying summary judgment

       for Fieldstar, the court stated that “the insurance policy in question provides

       insurance coverage regarding the actions of Aaron Weddle on January 12,

       2013.” Id. at 245. The court entered its order as a final judgment, and this

       appeal ensued.


                                        Discussion and Decision
[11]   Fieldstar appeals the trial court’s denial of its motion for summary judgment.

       Our standard of review is clear:

                As we have recently reiterated, summary judgment imposes a
                heavy factual burden on the moving party—and a
                correspondingly light burden for the non-movant’s response—
                because “Indiana consciously errs on the side of letting marginal
                cases proceed to trial on the merits, rather than risk short-
                circuiting meritorious claims.” Hughley v. State, 15 N.E.3d 1000,
                1004 (Ind. 2014). By definition, cases that hinge upon disputed
                facts are inappropriate for summary judgment, because



       1
         It is not clear from the record on appeal the degree to which Kessler or Charles were injured in the car
       accident or whether Charles’ ensuing death was a result of injuries sustained in that accident.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017            Page 6 of 11
               “weighing [evidence]—no matter how decisively the scales may
               seem to tip—[is] a matter for trial, not summary judgment.” Id.
               at 1005-06.


               By contrast, matters of contract interpretation are “particularly
               well-suited for de novo appellate review,” because they
               “generally present [ ] questions purely of law.” Holiday
               Hospitality Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577
               (Ind. 2013). A contract may be construed on summary judgment
               if it “is not ambiguous or uncertain,” or if “the contract
               ambiguity, if one exists, can be resolved without the aid of a
               factual determination.” Warrick County ex rel. Conner v. Hill, 973
               N.E.2d 1138, 1144 (Ind. Ct. App. 2012), trans. denied. The
               meaning of a contract is a question for the factfinder, precluding
               summary judgment, only where interpreting an ambiguity
               requires extrinsic evidence. Tate v. Secura Ins., 587 N.E.2d 665,
               668 (Ind. 1992).


               Moreover, our standard of review remains unchanged when, as
               here, the parties file cross-motions for summary judgment—we
               simply “consider each motion separately to determine whether
               the moving party is entitled to judgment as a matter of law.” SCI
               Propane, LLC v. Frederick, 39 N.E.3d 675, 677 (Ind. 2015) (quoting
               Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)).


       Mid-America Sound Corp. v. Ind. State Fair Comm’n (In re Ind. State Fair Litigation),

       49 N.E.3d 545, 548 (Ind. 2016) (alterations, except the addition of the footnote,

       in the original).


[12]   As an initial matter, we recognize that, in denying Fieldstar’s motion for

       summary judgment, the trial court affirmatively declared that “the insurance

       policy in question provides insurance coverage regarding the actions of Aaron


       Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 7 of 11
       Weddle on January 12, 2013.” Appellants’ App. Vol. 2 at 245. Nevertheless, it

       does not appear from the record that the trial court has entered an order on the

       Kesslers’ cross-motion for summary judgment. Rather, insofar as we can

       discern, the trial court’s statement in its order on Fieldstar’s motion is

       gratuitous in that the court has not entered summary judgment for the Kesslers.

       Thus, we confine our review to the only issue raised on appeal, namely,

       whether Fieldstar is entitled to judgment as a matter of law. Nothing in this

       decision shall be construed as an opinion or comment on the Kesslers’ cross-

       motion for summary judgment.


[13]   On appeal here, the parties dispute the application of the policy to the

       designated evidence. Again, the policy excludes from coverage someone who

       uses a covered automobile “while he or she is working in a business of selling,

       servicing, repairing, parking or storing ‘autos’ unless that business is yours.”

       Appellants’ App. Vol. 2 at 91. We have acknowledged that such exclusions

       apply when the use of the automobile is “pursuant to the performance of” or

       “to effectuate” a third party’s independent business in one of the listed fields of

       work. Am. Fam. Ins. Co. v. Nat’l Ins. Ass’n, 577 N.E.2d 969, 972 (Ind. Ct. App.

       1991) (quoting Truck Ins. Exch. v. Aetna Cas. & Sur. Co., 538 P.2d 529, 532

       (Wash. Ct. App. 1975)).


[14]   The parties’ arguments on appeal are based on selected readings of the

       designated evidence. Fieldstar asserts that Weddle is excluded by the policy

       because he was driving the Aveo as an employee for Day; that Day had an

       independent automobile repair business; and that Day was going to repair and

       Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 8 of 11
       sell the Aveo pursuant to that business.2 On the other hand, the Kesslers, joined

       in a separate brief by Johnson, assert that Weddle is covered by the policy

       because he was merely transporting the Aveo and was not himself in the

       business of repairing or selling automobiles. Alternatively, the Kesslers and

       Johnson assert that Fieldstar often hired Day—who then hired others, including

       Weddle—to transport vehicles from one Fieldstar location to another and that

       that work had nothing to do with Day’s automobile repair business.


[15]   The designated evidence supports the conclusion that Fieldstar had an informal

       relationship with Day and hired Day to work in different capacities. In one

       capacity, Day serviced or repaired Fieldstar’s vehicles through Day’s New

       Albany business, for which he invoiced Fieldstar. In another capacity, Day

       transported Fieldstar’s vehicles from one Fieldstar location to another, for

       which he was separately paid in lump sums by Fieldstar. And in a third

       capacity, Day sold Fieldstar’s vehicles, for which Day received a commission

       from each sale. Thus, the central question on appeal is the capacity in which

       Day—through Weddle—acted pursuant to Fieldstar’s January 12, 2013,

       request.


[16]   Contrary to Fieldstar’s argument on appeal, the designated evidence creates a

       genuine issue of material fact regarding whether Weddle transported the Aveo

       in furtherance of Day’s independent automobile repair business. While a



       2
        Fieldstar does not allege that Weddle’s act of transporting the Aveo from Bloomington to New Albany was
       within the policy’s exclusions for “parking” or “storing” that vehicle.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017     Page 9 of 11
       reasonable fact finder could conclude that Fieldstar hired Day, and—contrary

       to the Kesslers’ and Johnson’s arguments on appeal—that Day then hired

       Weddle, to transport the Aveo from Fieldstar’s Bloomington location to Day’s

       New Albany shop location, there is no designated evidence that Day intended

       or expected to perform any repairs on the Aveo driven by Weddle. Rather,

       although Day and Stroud testified that Day often repaired vehicles before he

       sold them, Stroud expressly testified that there were no known mechanical

       problems with the Aveo driven by Weddle on January 12, 2013, that required

       repairs. Appellants’ App. Vol. 2 at 171. He further expressly testified that the

       Aveo was “in service for Fieldstar” at the time of the accident. Id. Thus, a

       reasonable fact finder could conclude that Weddle’s operation of the Aveo was

       not in furtherance of Day’s independent automobile repair business.


[17]   But we agree with Fieldstar that the designated evidence supports the

       conclusion that Day intended to sell the Aveo. He testified that the vehicles

       were being transported to his shop in New Albany so that he could sell them

       from that location. And he hired Weddle to assist him in bringing the Aveo to

       New Albany to sell it.


[18]   Nonetheless, we disagree with Fieldstar that that evidence demonstrates that it

       is entitled to judgment as a matter of law. Fieldstar’s policy exclusion does not

       apply when the “business of selling . . . is yours.” Appellants’ App. Vol. 2 at

       91. And a reasonable fact finder could conclude from the designated evidence

       that Day’s selling of the vehicles was not independent of Fieldstar’s business.

       Rather, Fieldstar paid Day a commission on the sale of each vehicle. A

       Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 10 of 11
       reasonable inference from that evidence is that Fieldstar retained the remainder

       of the sale proceeds. Further, Fieldstar retained control over the fuel costs for

       transporting the Aveo from Bloomington to New Albany; Fieldstar controlled

       when Day could pick up the Aveo to transport it; Fieldstar controlled where

       Day was permitted to drive the Aveo; and, again, Stroud admitted that the

       Aveo continued to be “in service” for Fieldstar on the date in question. Id. at

       171.


[19]   Accordingly, the designated evidence does not demonstrate that Fieldstar is

       entitled to judgment as a matter of law. Rather, one reasonable inference and

       conclusion from that evidence is that Fieldstar hired Day, who then hired

       Weddle, not “pursuant to the performance of” or “to effectuate” Day’s repair

       business but, rather, pursuant to Fieldstar’s business of selling its own vehicles.

       See Am. Fam. Ins. Co., 577 N.E.2d at 972. As such, we cannot say that

       Weddle’s use of the Aveo was excluded by the policy as a matter of law. Thus,

       we affirm the trial court’s denial of Fieldstar’s motion for summary judgment.


[20]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1702-CT-376 | September 6, 2017   Page 11 of 11
