                                                                          FILED
                                                                      Oct 30 2018, 6:31 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stephen C. Wheeler                                         Douglas A. Mulvaney
Smith Fisher Maas Howard & Lloyd,                          David T. Stutsman
P.C.                                                       Elkhart, Indiana
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Auto-Owners Insurance                                      October 30, 2018
Company,                                                   Court of Appeals Case No.
Appellant-Defendant,                                       18A-CT-852
                                                           Appeal from the Elkhart Superior
        v.                                                 Court
                                                           The Honorable Charles Carter
William Long, as Administrator                             Wicks, Judge
of the Estate of Theodore Long,                            Trial Court Cause No.
and Ellen Long, Individually,                              20D05-1706-CT-142
Appellees-Plaintiffs,

______________________________

Dean Loucks and The Art of
Design,
Defendants.1




1
  While neither Loucks nor The Art of Design participates in this appeal, Indiana Appellate Rule 17(A)
provides that a party of record in the trial court “shall be a party on appeal.”

Court of Appeals of Indiana | Opinion 18A-CT-852 | October 30, 2018                             Page 1 of 7
      Bradford, Judge.



                                            Case Summary
[1]   While working at a United States Postal Service processing facility, Theodore

      Long was exposed to a hazardous substance shipped by The Art of Design (“the

      Insured”) in violation of certain postal regulations. This appeal arises out of a

      declaratory judgment action filed by Long’s Estate (“the Estate”) to determine

      the applicable limits of the Insured’s commercial general liability insurance

      policy (“the Policy”) issued by Auto-Owners Insurance Company (“Auto-

      Owners”). The parties filed competing motions for summary judgment, with

      Auto-Owners arguing that the applicable Policy limits were $1,000,000 and the

      Estate arguing that the applicable Policy limits were $2,000,000. The trial court

      granted summary judgment in favor of the Estate, finding that the $2,000,000

      Policy limits applied. Because we conclude that the $1,000,000 policy limits

      apply, we reverse and remand with instructions for the trial court to enter

      judgment in favor of Auto-Owners.



                             Facts and Procedural History
[2]   In February of 2009, an employee of the Insured mailed a box containing ten

      bottles of a chemical product known as Medium Reducer AMR-2712 (“the

      Reducer”) to an individual located in Florida. The Reducer contained toxic

      chemicals such as toluene. During the shipping process, the box was passed



      Court of Appeals of Indiana | Opinion 18A-CT-852 | October 30, 2018       Page 2 of 7
      through a conveyor system known as a secondary induction-singulator (“the

      Singulator”) at a Postal Service processing facility in Allen Park, Michigan.


[3]   While passing through the Singulator, the box broke open and the bottles

      spilled out of the box. One of the bottles was damaged and leaked onto a

      conveyor belt, releasing toxic fumes. As he worked to clean up the spill, Long

      observed that the box was not labeled as containing hazardous materials and

      had been sealed only by a piece of masking tape.


[4]   During the clean-up process, Long was overcome by the fumes and later went

      to the hospital. The Estate claims that he was permanently disabled as a result

      of injuries sustained when he was exposed to the chemical fumes. The Estate

      also claims that the exposure to the Reducer was a direct and proximate cause

      of his death on June 24, 2016.


[5]   After investigating the spill, Postal Service employees determined that the

      Insured had violated Postal Service regulations relating to both the labeling and

      packaging of hazardous materials. Specifically, the Insured had failed to

      properly label the box to indicate that it contained hazardous materials and to

      package the Reducer in such a way as to prevent the box from breaking and the

      bottles from leaking. Had the box been properly labeled, it would not have

      been put through the Singulator but, rather, would have been hand-sorted.


[6]   On June 19, 2017, the Estate filed a declaratory judgment action seeking a

      determination of the applicable Policy limits provided in the Policy. The Estate



      Court of Appeals of Indiana | Opinion 18A-CT-852 | October 30, 2018      Page 3 of 7
      and Auto-Owners filed competing summary judgment motions. Following a

      hearing, the trial court entered summary judgment in favor of the Estate.



                                  Discussion and Decision
[7]   Auto-Owners appeals from the trial court’s grant of summary judgment to the

      Estate.


              Our standard of review for a trial court’s grant of a motion for
              summary judgment is well[-]settled. 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.
              All facts and reasonable inferences drawn from those facts are
              construed in favor of the nonmovant. Our review of a summary
              judgment motion is limited to those materials designated to the
              trial court. We must carefully review a decision on summary
              judgment to ensure that a party was not improperly denied its
              day in court.


      MacGill v. Reid, 850 N.E.2d 926, 928 (Ind. Ct. App. 2006) (internal citations

      omitted). “The fact that the parties made cross motions for summary judgment

      does not alter our standard of review.” Id. “When considering cross motions

      for summary judgment, we consider each motion separately, construing the

      facts most favorably to the non-moving party in each instance and determine

      whether the moving party is entitled to judgment as a matter of law.” Id. at

      929.


[8]   Auto-Owners contends that the trial court erred in interpreting the Policy.

      Specifically, Auto-Owners claims that the trial court erred in finding that there


      Court of Appeals of Indiana | Opinion 18A-CT-852 | October 30, 2018         Page 4 of 7
       were two occurrences under the terms of the Policy. It is undisputed that the

       applicable Policy limits in this case are directly related to the number of

       occurrences causing injury. The parties agree that if there was only one

       occurrence, the $1,000,000 limit applies, and if there were two occurrences, the

       $2,000,000 limit applies.


[9]    “Interpretation of an insurance contract is a question of law which is

       particularly well-suited for disposition by summary judgment.” Adkins v.

       Vigilant Ins. Co., 927 N.E.2d 385, 389 (Ind. Ct. App. 2010). “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.” Id. “An insurance policy is ambiguous where a

       provision is susceptible to more than one interpretation and reasonable persons

       would differ as to its meaning.” Id. “An ambiguity, however, does not exist

       merely because the parties favor different interpretations.” Id. Upon review,

       we accept “an interpretation of the contract language that harmonizes the

       provisions rather than the one which supports a conflicting version of the

       provisions.” Id. The power to interpret insurance contracts “does not extend to

       changing their terms, and we will not give insurance policies an unreasonable

       construction to provide added coverage.” Id.


[10]   The Policy at issue defines an occurrence as “an accident, including continuous

       or repeated exposure to substantially the same general harmful conditions.”

       Appellant’s App. Vol. II p. 43. We considered an identical definition of an

       occurrence in Thomson Inc. v. Insurance Co. of North America, 11 N.E.3d 982 (Ind.

       Court of Appeals of Indiana | Opinion 18A-CT-852 | October 30, 2018           Page 5 of 7
       Ct. App. 2014). In Thomson, we adopted the “cause theory” of determining the

       number of occurrences causing injury, under which “the number of occurrences

       is determined by referring to the cause or causes of the damages.” 11 N.E.3d at

       1005 (internal citation omitted).


[11]   In this case, it is undisputed that the box contained hazardous materials as

       defined by Postal Service and, as a result, the Insured was required to follow

       certain procedures when mailing the box. The designated materials establish

       that the box was not properly labeled or packaged. The crux of the parties’

       disagreement is whether the violations should be considered collectively, i.e.,

       one occurrence, or separately, i.e., two occurrences.


[12]   While the Insured failed to both properly label and package the box, there was

       only one accident that resulted from the Insured’s failure to take appropriate

       preventative measures to avoid a spill. Stated differently, although the Insured

       did two things wrong in shipping the package, the wrongdoing resulted in one

       spill, i.e., “one proximate, uninterrupted, and continuing cause which resulted

       in” Long’s injury. See id. at 1001; see also Estate of Flemming v. Air Sunshine, Inc.,

       311 F.3d 282, 297 (3d Cir. 2002) (providing that where the decedent survived a

       plane crash but subsequently drowned when allegedly negligent acts caused the

       plane to sink, the plane crash and the events stemming from the crash all

       constituted a single accident, resulting in a single occurrence under the terms of

       the applicable insurance policy). We therefore conclude there was only one

       occurrence under the terms of the Policy. Accordingly, we reverse the



       Court of Appeals of Indiana | Opinion 18A-CT-852 | October 30, 2018           Page 6 of 7
       judgment of the trial court and remand with instructions for the court to enter

       summary judgment in favor of Auto-Owners.


[13]   The judgment of the trial court is reversed and remanded with instructions.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-852 | October 30, 2018      Page 7 of 7
