MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Sep 07 2018, 8:44 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEES
Daniel A. Ladendorf                                      Mark R. Smith
Dustin F. Fregiato                                       Smith Fisher Maas Howard &
Ladendorf Law                                            Lloyd, P.C.
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher L. Holderman,                                September 7, 2018
Appellant,                                               Court of Appeals Case No.
                                                         71A05-1712-CT-2751
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
Zachary A. Lewis and West                                The Honorable Jenny Pitts Manier,
Bend Mutual Insurance                                    Judge
Company,                                                 Trial Court Cause No.
Appellees.                                               71D05-1605-CT-234




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018            Page 1 of 9
[1]   Christopher Holderman (“Holderman”) appeals the trial court’s grant of

      summary judgment in favor of West Bend Mutual Insurance Company (“West

      Bend”). We affirm.


                                        Facts and Procedural History

[2]   On or about June 12, 2013, Christine Lewis (“Christine”), the wife of Zachary

      Lewis (“Zachary”), submitted an Indiana Personal Auto Application to West

      Bend on behalf of herself and Zachary. The application named one vehicle for

      coverage, a 2012 Toyota Highlander. Policy HHE 6327193 was issued to

      Christine and Zachary on June 13, 2013, with effective dates of June 13, 2013,

      to June 13, 2014, and the 2012 Toyota Highlander was the only vehicle listed

      on the declarations page. The Policy excluded liability coverage for the

      “ownership, maintenance or use of . . . [a]ny vehicle, other than ‘your covered

      auto’, which is . . . [f]urnished or available for your regular use.” Appellant’s

      Appendix Volume IV at 10-11.


[3]   In 2013 and 2014, Christine drove the Highlander to work, and Zachary used a

      Saturn Ion to drive his children to school. At some point, the transmission in

      the Saturn Ion “went out.” Id. at 179. Zachary went to his grandmother’s

      house and obtained a gray 2004 Chevrolet Silverado pickup truck (the

      “Truck”), which was insured with State Farm and had previously been owned

      by Zachary’s grandfather who had died about two years earlier. Zachary

      already had his own set of keys and understood that he would use the Truck

      until he found a new vehicle or until June 1st when his daughter’s school year

      ended. Zachary’s grandmother indicated that he could use the Truck “pretty

      Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018   Page 2 of 9
      much just to and from [his daughter’s] school and to the feed store” and that

      was the “only thing” for which she wanted him to use the Truck. Id. at 185.

      Zachary believed he had standing permission to use the Truck during that

      period of time, but would have to call his grandmother and ask for permission

      for something other than taking his daughter to school or going to the feed

      store. For about two to three weeks prior to April 29, 2014, he drove the Truck

      to take his daughter to and from school, drove it to the feed store probably

      once, paid for gas for the Truck, and kept it in his garage. On April 29, 2014,

      he was driving it home after picking up his daughter from school and collided

      with Holderman, who was driving a motorcycle.


[4]   On April 28, 2016, Holderman filed a complaint for damages alleging

      negligence and negligence per se against Zachary and a request for declaratory

      judgment against West Bend. On June 17, 2016, West Bend filed an Answer,

      Affirmative Defenses, and Counterclaim/Cross-Claim for Declaratory

      Judgment which stated that West Bend had no duty to defend or indemnify

      Zachary against Holderman’s complaint. On August 29, 2016, West Bend filed

      a Motion for Leave to File Amended Answer, Affirmative Defenses, and

      Counterclaim/Cross-Claim for Declaratory Judgment. On March 20, 2017,

      West Bend filed a motion for summary judgment seeking judgment in West

      Bend’s favor and against Holderman on his complaint and counter-defendant,

      Holderman, and cross-claim defendant, Zachary, on West Bend’s

      counterclaim/cross-claim for declaratory judgment.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018   Page 3 of 9
[5]   On November 7, 2017, the court entered an order finding that Zachary’s use of

      the Truck was subject to the Regular Use Exclusion of the West Bend Policy

      and that West Bend had no duty under the Policy to defend or indemnify

      Zachary against Holderman’s complaint and granting West Bend’s motion for

      summary judgment.1


                                                       Discussion

[6]   The issue is whether the trial court erred in entering summary judgment in

      favor of West Bend. Summary judgment is appropriate only where there is no

      genuine issue of material fact and the moving party is entitled to judgment as a

      matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of

      Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable

      inferences drawn from those facts are construed in favor of the nonmovant.

      Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is

      limited to those materials designated to the trial court. Id. Under Trial Rule

      56(C), the moving party bears the burden of making a prima facie showing that



      1
       West Bend argues this appeal is premature and the appealed order was not properly certifiable. Ind. Trial
      Rule 56(C) provides:
               A summary judgment may be rendered upon less than all the issues or claims, including
               without limitation the issue of liability or damages alone although there is a genuine issue
               as to damages or liability as the case may be. A summary judgment upon less than all the
               issues involved in a claim or with respect to less than all the claims or parties shall be
               interlocutory unless the court in writing expressly determines that there is no just reason for
               delay and in writing expressly directs entry of judgment as to less than all the issues, claims
               or parties.
      The court’s order expressly states, “There being no just cause for delay, the Clerk of the Court is directed to
      enter judgment in favor of Defendant West Bend Mutual Insurance Company, and against Plaintiff,
      Christopher L. Holderman, only, accordingly.” Appellant’s Appendix Volume II at 11. Thus, we do not
      find West Bend’s argument persuasive.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018              Page 4 of 9
      there are no genuine issues of material fact and that it is entitled to judgment as

      a matter of law. Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.

      2012). If it is successful, the burden shifts to the nonmoving party to designate

      evidence establishing the existence of a genuine issue of material fact. Id. In

      reviewing a trial court’s ruling on a motion for summary judgment, we may

      affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v.

      Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).


[7]   Insurance policies are contracts subject to the same rules of judicial construction

      as other contracts. State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 56 N.E.3d 617,

      619 (Ind. 2016). Interpretation of a contract is a pure question of law and thus,

      is reviewed de novo. Id. Insurers are free to limit the coverage of their policies,

      but such limitations must be clearly expressed to be enforceable. Id. “Where

      provisions limiting coverage are not clearly and plainly expressed, the policy

      will be construed most favorably to the insured, to further the policy’s basic

      purpose of indemnity.” Id. (quoting Meridian Mut. Ins. Co. v. Auto-Owners Ins.

      Co., 698 N.E.2d 770, 773 (Ind. 1998)). When construing the language of an

      insurance policy, a court should construe the language of an insurance policy so

      as not to render any words, phrases or terms ineffective or meaningless. Id.


[8]   Holderman argues that Zachary’s restricted and limited use of the Truck did not

      constitute regular use under the West Bend Policy and that the court should

      have denied West Bend’s motion for summary judgment. He maintains that

      Zachary used the Truck for the limited purpose of transporting his daughter



      Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018   Page 5 of 9
       back and forth from school and that the Truck was not “available” or

       “furnished” for Zachary’s actual “use.” Appellant’s Brief at 15.


[9]    West Bend responds that Zachary had keys to the Truck and had standing

       permission to use it to drive his daughter to and from school and to pick up feed

       for his animals. It maintains that Zachary treated the Truck as his own vehicle,

       took care of the Truck and paid for gas, and that the facts establish as a matter

       of law that the Truck was furnished or available for Zachary’s regular use.


[10]   Holderman and West Bend are requesting the Court to interpret the insurance

       policy’s “furnished or available for . . . regular use” provision. Under

       “EXCLUSIONS,” the West Bend Policy provides: “We do not provide

       Liability Coverage for the ownership, maintenance or use of . . . [a]ny vehicle,

       other than ‘your covered auto’, which is . . . [f]urnished or available for your

       regular use.” Appellant’s Appendix Volume IV at 11. The Policy defines the

       term “[y]our covered auto” in part as “[a]ny vehicle shown in the

       Declarations.” Id. at 9.


[11]   In Smith v. Allstate Ins. Co., 681 N.E.2d 220 (Ind. Ct. App. 1997), this Court

       examined the phrases “furnish” and “regular use.” Utilizing dictionary

       definitions, we defined “furnish” as “to provide with what is needed, . . .

       supply, give.” 681 N.E.2d at 223 (quoting WEBSTER’S NINTH NEW

       COLLEGIATE DICTIONARY, 499 (1985)). We defined “regular” as “recurring,

       attending, or functioning at fixed or uniform intervals . . . constituted,

       conducted or done in conformity with established or prescribed usages, rules or


       Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018   Page 6 of 9
       discipline.” Id. (quoting WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY,

       992).


[12]   Holderman cites Buckeye State Mut. Ins. Co. v. Carfield, 914 N.E.2d 315 (Ind. Ct.

       App. 2009), trans. denied. In that case, Keith Carfield and his father Weldon

       Carfield were farmers, and each farmed approximately 600 acres on their

       respective farms. Carfield, 914 N.E.2d at 317. Weldon purchased a Chevy

       Silverado to use as a farm truck, which was available for Keith’s use. Id. Any

       use of the vehicle by Keith was almost exclusively during the spring planting

       period and the fall harvest period and Keith did not have to ask Weldon for

       permission to use the truck for farm purposes. Id. At all times, the keys were

       left in the truck, and Keith did not have his own set of keys. Id. On October 9,

       2004, Keith was involved in a car accident while driving the truck. Id. At the

       time, the truck was insured by Weldon. Id. The truck was not listed on Keith’s

       auto liability insurance policy with his insurer, Buckeye State Mutual Insurance

       Company (“Buckeye”), and was not a “covered auto” pursuant to the policy.

       Id. Keith’s policy provided that Buckeye did not provide liability coverage for

       the ownership, maintenance, or use of any vehicle which is “[f]urnished or

       available for your regular use.” Id. The trial court concluded that the truck was

       not furnished to or available for Keith’s regular use, that the policy exclusion

       was not applicable, and that Keith was entitled to coverage under his policy

       with Buckeye. Id. On appeal, we noted that there were an aggregate sixty-two

       days per year that Keith might be driving the truck, that Keith kept the truck



       Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018   Page 7 of 9
       overnight at his farm a few times, and that Keith did not have his own set of

       keys. Id. at 319. We held:


               Although the facts before us indicate that there was a clear
               periodic use of the Silverado by Keith, we agree with the trial
               court that this does not reach the level of consistent, regular use
               called for under the policy’s exclusion. Because the vehicle is a
               farm truck, twice yearly and for a limited time, the vehicle would
               be used on Keith’s fields. However, depending on who was
               driving the heavy farm equipment, Keith or Weldon would be
               driving the truck. Thus, even during these sixty-two days that the
               truck was available for Keith’s use, it was not furnished to him
               nor did he drive the Silverado on a routine or recurring basis.
               Therefore, we find that the exclusion does not apply and Keith is
               entitled to coverage under Buckeye’s policy.


       Id.


[13]   The record here, unlike in Carfield, reflects that Zachary had his own keys to the

       Truck, that he kept the Truck overnight on a daily basis during the two to three-

       week period prior to the accident, and that he used the Truck on a routine and

       recurring basis during the same period. Zachary believed he had “[s]tanding

       permission” to use the Truck for the transportation of his daughter to and from

       school and to go to the feed store. Appellant’s Appendix Volume IV at 187.

       The trial court did not err in granting West Bend’s motion for summary

       judgment. See Smith, 681 N.E.2d at 223 (holding that a delivery van owned by

       the plaintiff’s employer which the plaintiff drove in the course of his

       employment six nights a week but did not drive home or use for personal

       business fell within the exception to coverage of a vehicle furnished for his


       Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018   Page 8 of 9
       regular use); Myles v. Gen. Agents Ins. Co. of America, Inc., 197 F.3d 866, 869-870

       (7th Cir. 1999) (holding that the use of a car “only to drive to and from work for

       a few days before the accident” was “clearly routine” and that the use of a

       vehicle as transportation to and from work on a routine and recurring basis over

       the course of several days fell within the scope of the regular use exclusion of an

       insurance policy, and affirming the grant of summary judgment in favor of the

       insurer).


                                                    Conclusion

[14]   For the foregoing reasons, we affirm the trial court’s grant of West Bend’s

       motion for summary judgment.


[15]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1712-CT-2751 | September 7, 2018   Page 9 of 9
