                                                                                 FILED
                                                                            Mar 10 2017, 10:05 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel H. Pfeifer                                         Benjamin D. Ice
Jerome W. McKeever                                        William A. Ramsey
James P. Barth                                            Barrett McNagny, LLP
Pfeifer, Morgan & Stesiak                                 Fort Wayne, Indiana
South Bend, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

The Estate of Robert Curtis, Sr.,                         March 10, 2017
by its Personal Representative,                           Court of Appeals Case No.
Theresa Brade,                                            71A05-1610-PL-2438
Appellants-Defendants,                                    Appeal from the St. Joseph Circuit
                                                          Court
        v.                                                The Honorable David T. Ready,
                                                          Judge
GEICO General Insurance                                   The Honorable Larry L. Ambler,
Company,                                                  Magistrate

Appellee-Plaintiff                                        Trial Court Cause No.
                                                          71C01-1501-PL-16



Baker, Judge.




Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017                            Page 1 of 11
[1]   Drake Matovich and Robert Curtis engaged in a physical altercation in a

      grocery store parking lot. Curtis was severely injured and eventually died,

      allegedly as a result of the altercation. Matovich and Curtis’s estate entered

      into an agreed judgment, pursuant to which Matovich admitted liability and

      assigned his claims against his automobile insurer, GEICO General Insurance

      Company (GEICO), to Curtis. GEICO filed a declaratory judgment action

      against Curtis, seeking a declaration that the altercation was not covered under

      GEICO’s insurance policy with Matovich because Matovich was not “using”

      the covered vehicle at the time of the incident. The trial court granted GEICO’s

      summary judgment motion. On appeal, both parties make multiple arguments,

      but we find one dispositive—whether this altercation was covered by the policy

      as a matter of law. Finding that it was not, we affirm.


                                                      Facts
[2]   During the relevant period of time, Matovich was insured by GEICO under an

      automobile liability policy (the Policy) covering a 2004 Chevrolet truck. On

      September 17, 2009, Matovich was sitting in his parked truck in the parking lot

      of a Meijer in Mishawaka. Another vehicle, being driven by Curtis, bumped

      into Matovich’s parked vehicle but did not stop.


[3]   Matovich pursued Curtis’s vehicle, pulling his truck alongside Curtis and asking

      him to roll down his window. Curtis stopped his vehicle and Matovich stopped

      his truck next to it. Curtis rolled down his window and Matovich said, “You

      just hit my truck. I need you to stop.” Appellant’s App. Vol. II p. 110.


      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017   Page 2 of 11
      Matovich then exited his truck and walked over to Curtis’s window, saying,

      “You hit my truck. You can’t just drive away. I’m going to need your

      information.” Id. at 111.


[4]   Curtis exited his vehicle and approached Matovich aggressively, saying, “f*ck

      you” repeatedly. Id. at 112. Curtis then chest bumped Matovich, who retreated

      to the rear of his truck, with Curtis following. Curtis made contact with

      Matovich again, and Matovich told Curtis to take it easy, stay back, and calm

      down. Curtis made contact with Matovich again. Matovich then put his hand

      out and said, “You need to stop and stay back.” Id. at 115. Curtis made

      contact with Matovich, walking into his outstretched hand; Curtis’s eyes rolled

      up, his arms went limp, and he collapsed. Curtis eventually died on June 21,

      2010, and his Estate contends that his death stemmed from the altercation with

      Matovich.


[5]   On May 20, 2011, Curtis’s Estate filed a wrongful death suit against Matovich,

      alleging that Matovich’s recklessness and negligence had resulted in Curtis’s

      death. GEICO paid for Matovich’s defense but reserved its rights to later deny

      coverage. Following mediation, the parties entered into an agreement. The

      Agreed Judgment, which was entered as an order by the trial court on July 31,

      2014, provided, in pertinent part, as follows:


              2.       After the minor bump of the two vehicles, Mr. Matovich
                       in connection with the use of his vehicle, exited his
                       vehicle. In the process of exiting his vehicle, Mr.
                       Matovich negligently came into contact with [Curtis]


      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017   Page 3 of 11
                       causing [Curtis] to fall on the parking lot at the Meijer
                       store.


                                                        ***


              4.       As a direct and proximate result of the negligence of
                       [Matovich], [Curtis’s Estate] has sustained medical
                       expenses in the amount of $357,868.45 and [Curtis]
                       incurred extensive pain and suffering until his ultimate
                       death on June 21, 2010.


              5.       The parties agree and stipulate that the negligence of
                       [Matovich] caused [Curtis’s] injury.


                                                        ***


              8.       The parties agree and request the Court enter an Order for
                       judgment against [Matovich] in the amount of
                       $357,868.45.


              9.       In consideration of the mutual agreements contained
                       herein, Matovich hereby assigns any and all claims which
                       he may have against his own automobile insurance
                       company as a result of the matters contained within this
                       litigation.


      Id. at 211-12. The trial court entered judgment in favor of Curtis, finding that

      Matovich owed damages to the Estate in the amount of $357,868.45 plus the

      costs of the action.


[6]   Curtis filed a proceeding supplemental against GEICO, which filed a motion to

      stay the proceedings. That motion was granted, and GEICO then filed a

      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017    Page 4 of 11
declaratory judgment action against Matovich and Curtis on January 9, 2015.

GEICO alleged that it had defended Matovich under a reservation of rights and

that it had determined that it had no obligation to pay the judgment, as the

incident was not covered by the Policy. GEICO eventually filed a motion for

summary judgment. Following briefing and a hearing, the trial court granted

summary judgment in favor of GEICO. In pertinent part, the trial court found

that


        [t]he undisputed facts in this case show that coverage does not
        exist because the injuries to the Deceased did not arise out of
        Matovich’s ownership, maintenance or use of the insured motor
        vehicle within the meaning of the coverage clause of the policy.


                                                  ***


        . . . Matovich and the Deceased had already exited from their
        motor vehicles when Matovich’s physical contact of the
        Deceased caused the latter’s injuries. Even prior to Matovich
        making physical contact, the Deceased “chest bumped”
        Matovich three (3) times. Matovich’s actions did not arise out of
        the use or ownership or maintenance of the insured motor
        vehicle within the meaning of the Policy’s coverage term. The
        injury occurred at a time and a distance away from the physical
        contact of the vehicles and after both Matovich and the
        Decease[d] exited their respective vehicles, and after a heated
        “conversation” between them. Matovich’s physical contact was
        not [causally] connected to the use of his motor vehicle and can
        not be construed to be within the contemplation of [Curtis] and
        Malovich [sic] to be covered under the Policy.


Id. at 12-13. Curtis now appeals.


Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017   Page 5 of 11
                                    Discussion and Decision
                                      I. Standard of Review
[7]   Our standard of review on summary judgment is well established:

              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary 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.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[8]   This Court has noted that where, as here, a primary issue is a question

      regarding the interpretation of an insurance policy, the case is especially

      appropriate for summary judgment because it turns solely on a matter of law.

      Marling Family Trust v. Allstate Ins. Co., 981 N.E.2d 85, 88 (Ind. Ct. App. 2012).

      Our Supreme Court has described the appellate review of insurance policies as

      follows:


              Insurance policies are contracts that are subject to the same rules
              of construction as are other contracts. When the language of an
              insurance contract is clear and unambiguous, we will assign to
              the language its plain and ordinary meaning. An insurance
              policy that is unambiguous must be enforced according to its
      Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017     Page 6 of 11
                terms, even those terms that limit an insurer’s liability. Thus, we
                may not extend insurance coverage beyond that provided by the
                unambiguous language in the contract. Also, insurers have the
                right to limit their coverage of risks and, therefore, their liability
                by imposing exceptions, conditions, and exclusions.


       Sheehan Constr. Co. v. Cont’l Cas. Co., 935 N.E.2d 160, 169 (Ind. 2010) (internal

       citations omitted), opinion adhered to as modified on reh’g, 938 N.E.2d 685 (Ind.

       2010).


                                                II. Coverage
[9]    Although the parties each raise multiple arguments, we find one issue to be

       dispositive—whether Matovich’s actions were covered under the Policy as a

       matter of law. The Policy’s liability provision states that GEICO agreed to pay

       damages for which Matovich became legally obligated to pay because of bodily

       injury “arising out of the ownership, maintenance, or use of the owned

       auto . . . .” Appellant’s App. Vol. II p. 172. The primary issue in the case

       before us is whether the altercation between Matovich and Curtis arose out of

       the “use” of Matovich’s vehicle.


[10]   Our Supreme Court has interpreted the phrase “ownership, maintenance, and

       use” of a vehicle, in the context of an insurance policy, to mean “being caused

       by use of” the vehicle. Ind. Lumbermens Mut. Ins. Co. v. Statesmen Ins. Co., 260

       Ind. 32, 34, 291 N.E.2d 897, 899 (1973). Therefore, an accident arises out of

       the ownership, maintenance, and use of a vehicle only if such ownership, use,

       or maintenance is the incident’s “efficient and predominating cause.” Id.


       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017     Page 7 of 11
       Indiana has intentionally adopted a narrower construction of the phrase than

       that used by courts in other jurisdictions. Shelter Mut. Ins. Co. v. Barron, 615

       N.E.2d 503, 506 (Ind. Ct. App. 1993).


[11]   Coverage under an “ownership, maintenance, or use” clause “‘does not extend

       to results distinctly remote, though within the line of causation.’” Moons v.

       Keith, 758 N.E.2d 960, 964 (Ind. Ct. App. 2001) (quoting 6B Insurance Law &

       Practice § 4317 (Buckley ed. 1979)). In other words, if a vehicle’s use is only

       tangentially related to an incident, coverage does not exist under such a clause.

       Id.; see also Sizemore v. Erie Ins. Exch., 789 N.E.2d 1037, 1040 (Ind. Ct. App.

       2003) (finding no coverage where the vehicle merely transported tortfeasor to

       the scene of an incident); Barron, 615 N.E.2d at 506 (finding no coverage where,

       “[a]t most, the truck was little more than a platform that was only incidentally

       related to the accident”); State Farm Mut. Ins. Co. v. Spotten, 610 N.E.2d 299, 302

       (Ind. Ct. App. 1993) (finding that a passenger’s random act of violence did not

       qualify for coverage); Miller v. Loman, 518 N.E.2d 486, 492-93 (Ind. Ct. App.

       1987) (finding connection between passenger kicking a truck’s muffler out of

       the road and the “use” or “maintenance” of the truck was “too unsubstantial”

       and “simply too farfetched” to qualify for coverage).


[12]   Curtis directs our attention to Argonaut Insurance Company v. Jones, 953 N.E.2d

       608 (Ind. Ct. App. 2011), in support of his argument that summary judgment

       was improper. In Argonaut, Monroe County Sheriff’s Deputy Sarah Jones was

       called to the scene of a traffic accident. Following procedure, she placed her

       vehicle in the southwest-bound lane of the road, left the engine running, and

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017   Page 8 of 11
       activated her police vehicle’s emergency lights. Deputy Jones then began to

       direct traffic using hand signals and a flashlight. After about fifteen minutes,

       Deputy Jones was struck by a vehicle and later died as a result of her injuries.

       Id. at 611-12. Her husband and her estate sued a number of entities, including

       Argonaut Insurance Company, which insured Monroe County.


[13]   The policy at issue in Argonaut contained a nearly identical version of the

       liability provision at issue in the case at hand, providing coverage for bodily

       injury resulting from the ownership, maintenance, or use of a covered vehicle.

       Id. at 617. The trial court found that the deputy was “using” her vehicle at the

       time of the accident, granting summary judgment in favor of the plaintiffs on

       that issue. Id. Argonaut appealed. After exploring a line of relevant cases, the

       Argonaut Court synthesized the caselaw by holding that “whether there is an

       ‘active’ relationship between the claimant and the vehicle and the reasonable

       expectations of the parties upon entering into the insurance agreement are the

       crucial questions to answer in determining coverage issues.” Id. at 619 (internal

       citation omitted).


[14]   Emphasizing evidence that Deputy Jones’s vehicle and its specialized

       equipment were “vital” and “integral” to the scene and to her role in traffic

       control, this Court found that Deputy Jones had an “active relationship to the

       vehicle at the time of the collision.” Id. We noted that neither distance from

       the vehicle nor time spent away from the vehicle are critical; instead, what

       mattered was whether Deputy Jones was in an active relationship with her

       vehicle at the time of the accident. The Court found that because she had an

       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017   Page 9 of 11
       active relationship to the vehicle and because the vehicle was central to her role

       in controlling traffic at the scene, the vehicle was in “use” at the time of the

       accident. Id. at 620. We also observed that the deputy’s relationship to her

       patrol car at the time of the accident “was clearly within the contemplation of

       the parties to the policy” and that “the reasonable scope of covered uses of

       Deputy Jones’s patrol car necessarily includes its deployment and use in traffic

       control situations like the one at issue.” Id. Therefore, we affirmed summary

       judgment on the issue of coverage.


[15]   We find Argonaut distinguishable from the case at hand. Most importantly, the

       police vehicle in Argonaut had an integral role to the scene and to Deputy

       Jones’s role directing traffic. It was being used to block a lane of traffic as she

       directed vehicles around it. In other words, she unquestionably had an active

       relationship with that vehicle at the time of the accident. Here, in contrast,

       when Matovich exited his vehicle to confront Curtis, engaging in a protracted

       and physical confrontation with the other man, he no longer had an active

       relationship with his vehicle. His vehicle no longer played a role in the

       incident; instead, it was merely an altercation between the two men.

       Furthermore, we cannot conclude that the reasonable expectations of the

       parties at the time they entered into the Policy would have included coverage

       for a physical altercation that merely happened to occur near the covered

       vehicle. As a result, we find that the trial court properly granted summary

       judgment in favor of GEICO based on a conclusion that, as a matter of law,




       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017   Page 10 of 11
       Matovich was not “using” his vehicle at the time of the altercation with Curtis.

       Because no coverage exists under the Policy, Curtis is not entitled to relief.


[16]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 71A05-1610-PL-2438 | March 10, 2017   Page 11 of 11
