                                                                            FILED
                                                                       Oct 10 2018, 8:35 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Margaret M. Christensen                                    Ann Marie Waldron
Karl L. Mulvaney                                           Indianapolis, Indiana
Bingham Greenebaum Doll, LLP                               Michael E. Simmons
Indianapolis, Indiana                                      Hume Smith Geddes Green &
                                                           Simmons, LLP
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Progressive Southeastern                                   October 10, 2018
Insurance Co.,                                             Court of Appeals Case No.
Appellant-Plaintiff,                                       18A-PL-312
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Timothy Oakes,
Gregory Smith, et al.,                                     Judge
Appellee-Defendant.                                        Trial Court Cause No.
                                                           49D02-1701-PL-2865



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018                             Page 1 of 15
                                 STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Progressive Southeastern Insurance Co. (Progressive),

      appeals the trial court’s summary judgment in favor of Appellees-Defendants,

      Gregory Smith (Smith), Nolan Clayton (Clayton), Erie Insurance Group,

      Brackett Restaurant Group LLC d/b/a Stacked Pickle, and Allstate Insurance

      Company (Allstate), on Progressive’s Complaint for Declaratory Judgment

      requesting a determination that, according to the terms of its insurance policy

      with Smith, Smith was not entitled to coverage under the policy’s uninsured-

      motorist provisions for injuries sustained during an accident while being a

      passenger in his vehicle. 1


[2]   We reverse.


                                                      ISSUE
[3]   Progressive presents two issues on appeal, which we consolidate and restate as

      the following single issue: Whether the trial court erred by concluding that

      Smith is entitled to receive payment from Progressive for his bodily injury

      under his insurance policy’s uninsured motorist (UM) coverage, where his

      injury arose from a single-vehicle accident involving his insured vehicle and the

      driver’s liability insurance covered Smith’s bodily injury damages.




      1
       We held oral argument in this cause on September 13, 2018 in the Court of Appeals Courtroom in
      Indianapolis, Indiana. We thank counsel for their insightful advocacy.

      Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018                         Page 2 of 15
                       FACTS AND PROCEDURAL HISTORY
[4]   On February 18, 2016, Smith and Clayton attended a company event in Marion

      County, Indiana. They left the event together and Smith gave Clayton

      permission to drive Smith’s pick-up truck. Clayton lost control over the vehicle

      and ran into a tree, seriously injuring Smith. No other vehicles were involved

      in the accident.


[5]   At the time of the incident, Progressive insured Smith under a policy which

      provided coverage for liability, medical payments, UM coverage, coverage for

      damage to the insured’s vehicle, and roadside-assistance coverage.

      Accordingly, Progressive paid Smith’s vehicular damages in the amount of

      $10,937.71 and the medical payments coverage limits of $5,000. Smith also

      brought a negligence claim against Clayton, who was insured by Allstate.

      Allstate eventually settled out of court with Smith.


[6]   On January 19, 2017, Progressive filed its Complaint for Declaratory Judgment

      against Smith, requesting a determination that, according to the terms of his

      insurance policy, Smith was not entitled to coverage under the policy’s UM

      provisions or bodily injury provisions for injuries sustained in an accident in his

      truck and that Progressive was not required to defend or indemnify Clayton, as

      a permissive driver of the truck.


[7]   On April 27, 2017, Smith submitted a motion for summary judgment and

      designation of evidence, seeking damages for bodily injury under the policy’s

      UM coverage. In his motion, Smith argued that, even though his truck was

      Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018       Page 3 of 15
      covered under the policy, it was an uninsured motor vehicle pursuant to the

      provisions of the policy. On May 23, 2017, Progressive filed its response to

      Smith’s motion and filed its own motion for summary judgment with

      designation of evidence, arguing that Smith was not entitled to UM coverage

      under the policy. On December 14, 2017, without a hearing, the trial court

      signed Smith’s proposed findings and summarily granted judgment to him and

      against Progressive. On January 16, 2018, Progressive filed its motion to

      correct error, which the trial court denied the following day.


[8]   Progressive now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION
                                              I. Standard of Review


[9]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

      shoes of the trial court, applying the same standards in deciding whether to

      affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

      891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

      must determine whether there is a genuine issue of material fact and whether

      the trial court has correctly applied the law. Id. at 607-08. In doing so, we

      consider all of the designated evidence in the light most favorable to the non-

      moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

      it helps to prove or disprove an essential element of the plaintiff’s cause of

      action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

      opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

      Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018           Page 4 of 15
       Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.

       When the defendant is the moving party, the defendant must show that the

       undisputed facts negate at least one element of the plaintiff’s cause of action or

       that the defendant has a factually unchallenged affirmative defense that bars the

       plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be

       reversed if the record discloses an incorrect application of the law to the facts.

       Id.


[10]   We observe that, in the present case, the trial court did not enter findings of fact

       and conclusions of law in support of its judgment. Special findings are not

       required in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its review and facilitate appellate review. Id


[11]   Construction of the terms of a written contract is a pure question of law for the

       court, reviewed de novo. State Farm Mut. Auto Ins. Co. v. Leybman, 777 N.E.2d

       763, 765 (Ind. Ct. App. 2002), trans. denied. Provisions of insurance contracts

       are subject to the same rules of construction as other contracts; we interpret an

       insurance policy with the goal of ascertaining and enforcing the parties’ intent

       as revealed by the insurance contract. Westfield Cos. v. Knapp, 804 N.E.2d 1270,

       1274 (Ind. Ct. App. 2004), reh’g denied, trans. denied. In accomplishing this goal,

       we must construe the insurance policy as a whole, rather than considering

       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018          Page 5 of 15
       individual words, phrases or paragraphs. Id. “Although some ‘special rules of

       construction of insurance contracts have been developed due to the disparity in

       bargaining power between insurers and insureds, if a contract is clear and

       unambiguous, the language therein must be given its plain meaning.’” Beam v.

       Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002). As a result, “[p]olicy terms

       are interpreted from the perspective of an ordinary policyholder of average

       intelligence,” and if reasonably intelligent persons may honestly differ as to the

       meaning of the policy language, the policy is ambiguous. Burkett v. Am. Family

       Ins. Grp., 737 N.E.2d 447, 452 (Ind. Ct. App. 2000). “‘Where there is

       ambiguity, insurance policies are to be construed strictly against the insurer’

       and the policy language is viewed from the standpoint of the insured.” Bosecker

       v. Westfield Ins. Co., 724 N.E.2d 241, 244 (Ind. 2000) (quoting Am. States Ins. Co.

       v. Kiger, 663 N.E.2d 945, 947 (Ind. 1996)). “When construing the meaning of

       an insurance policy, “‘an ambiguity is not affirmatively established simply

       because a controversy exists and one party asserts an interpretation contrary to

       that asserted by the opposing party.’” Id. (quoting Auto. Underwriters, Inc. v.

       Hitch, 349 N.E.2d 271, 275 (Ind. 1976)). One way of determining whether

       reasonable persons might differ is to see if the policy language is susceptible to

       more than one interpretation. Westfield Cos., 804 N.E.2d at 1274.


                                                     II. Analysis


[12]   Progressive contends that the trial court erred in issuing summary judgment in

       favor of Smith because Smith’s vehicle was not an uninsured motor vehicle as

       defined under the UM coverage of the policy and Smith’s bodily injuries were
       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018       Page 6 of 15
       covered by Clayton’s liability insurer. Progressive posits that because Smith’s

       Progressive policy covered damages to Smith’s truck and his medical payments

       and Clayton’s insurer tendered its full policy limits to Smith to answer for the

       damages Clayton caused, Smith cannot recover under an uninsured motorist

       claim as coverage is available to him.


[13]   Indiana law defines an ‘uninsured motor vehicle’ as ‘a motor vehicle without

       liability insurance’ or otherwise not in compliance with the financial

       responsibility requirements of Indiana law. Ind. Code § 27-7-5-4(a). Thus, “to

       recover on an uninsured motorist claim, the insured must prove that there is no

       policy applicable to the vehicle driven by the tortfeasor.” Matteson v. Citizens Ins.

       Co. of Am., 844 N.E.2d 188, 192 (Ind. Ct. App. 2006). The purpose of Indiana’s

       statutory requirement that insurers make UM coverage available is to ensure

       that “every insured—within the definition of that term in the policy—[is]

       entitled to recover uninsured motorist benefits for the damages he/she would

       have recovered from the offending motorist if that person had maintained a

       policy of liability insurance.” Ind. Lumbermens Mut. Ins. Co. v. Vincel, 452

       N.E.2d 418, 426 (Ind. Ct. App. 1983). In other words, “[t]he purpose of the

       Financial Responsibility Act is to assure a source of compensation for victims

       harmed by the negligent operation of motor vehicles.” Northern Ind. Pub. Serv.

       Co. v. Bloom, 847 N.E.2d 175, 182 (Ind. 2006).


[14]   Part III of Progressive’s policy, which provides the UM coverage, specifies in

       pertinent part:



       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018        Page 7 of 15
        PART III – UNINSURED/UNDERINSURED MOTORIST
        COVERAGE


        INSURING AGREEMENT –
        UNINSURED/UNDERINSURED MOTORIST BODILY
        INJURY COVERAGE


        If you pay the premium for this coverage, we will pay for
        damages that an insured person is legally entitled to recover from
        the owner or operator of an uninsured motor vehicle or
        underinsured motor vehicle because of bodily injury:


        Sustained by an insured person;


        Caused by an accident; and


        Arising out of the ownership, maintenance or use of an
        uninsured motor vehicle or underinsured motor vehicle.


        ****


        An “uninsured motor vehicle” does not include any vehicle or
        equipment:
              a. owned by you, a relative, or a rated resident or furnished or
              available for the regular use of you, a relative, or a rated resident;
              [or]

                 ****

                 g. that is a covered auto

(Appellant’s App. Vol. III, pp. 109-11).




Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018        Page 8 of 15
[15]   Accordingly, the unambiguous language of the policy does not extend UM

       coverage to Smith’s bodily injuries sustained in an accident caused by his own

       truck because Smith’s truck is a covered auto as defined by the policy, and thus

       not included in the uninsured motor vehicle definition which would trigger

       coverage of the policy. In other words, no vehicle that Smith owns or insures

       can ever be an “uninsured motor vehicle” for UM coverage purpose. “[A]n

       insurance policy that is unambiguous must be enforced according to its terms,

       even those terms that limit an insurer’s liability.” Empire Fire v. Frierson, 49

       N.E.3d 1075, 1079 (Ind. Ct. App. 2016). Insurance companies are free to limit

       their liability in a manner not inconsistent with public policy as reflected by

       case or statutory law. Evans v. Nat’l Life Acc. Ins. Co., 467 N.E.2d 1216, 1219

       (Ind. Ct. App. 1984), reh’g denied.


[16]   If a plainly expressed insurance policy is not contrary to public policy, it is

       entitled to construction and enforcement as expressed. Id. Our interpretation

       today is consistent with this court’s interpretation of similar policy provisions

       excluding from the scope of UM coverage vehicles owned by the insured and

       not identified in the policy. See, e.g., Jones v. State Farm Mut. Ins. Co., 635

       N.E.2d 200, 202 (Ind. Ct. App. 1994) (rejecting a claim for underinsured

       motorist coverage where the policy at issue precluded the insured vehicle from

       the definition of “underinsured motor vehicle”), trans. denied. It is also

       consistent with the Indiana Financial Responsibility Act which requires car

       owners to purchase liability insurance for injuries sustained by others, but does




       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018          Page 9 of 15
       not require such insurance for personal injury sustained by the owner himself.

       See Allstate Ins. Co. v. Boles, 481 N.E.2d 1096, 1098 (Ind. 1985).


[17]   Smith now attempts to insert an ambiguity in the policy by referring to

       exclusion 1.b of Progressive’s UM coverage, which provides


               EXCLUSIONS - READ THE FOLLOWING EXCLUSIONS
               CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE
               WILL NOT BE AFFORDED UNDER THIS PART III.


               Coverage under this Part III will not apply:


               To bodily injury sustained by any person while using or
               occupying:


               ****


               A motor vehicle that is owned by or available for the regular use
               of you, a relative, or a rated resident. This exclusion does not
               apply to a covered auto that is insured under this Part III.


       (Appellant’s App. Vol. III, pp. 109-11). Smith maintains that by exempting the

       covered auto from the exclusion of the UM coverage, his injuries should fall

       within the scope of coverage. However, “[a]n exception to an exclusion cannot

       create coverage where none exists. Exclusion clauses do not grant or enlarge

       coverage; rather, they are limitations on the insuring clause.” Hartford Cas. Ins.

       Co. v. Evansville Vanderburgh Pub. Library, 860 N.E.2d 636, 646 (Ind. Ct. App.

       2007), trans. denied.



       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018      Page 10 of 15
[18]   In a similar effort to trigger the UM coverage of Progressive’s policy, Smith

       claims that Progressive denied payment for Smith’s injuries under the liability

       coverage portion of the policy and thus rendered his claim subject to the UM

       coverage of the policy. Specifically, Smith points to correspondence between

       Smith’s counsel’s office and a Progressive claims adjuster. On June 30, 2016,

       Smith’s counsel’s office contacted Progressive’s claim adjuster, asking


               Thanks for your assistance in this matter thus far – I have been
               unable to confirm fax/and or email addresses for the liability
               adjuster. Could you confirm their contact information? I need to
               provide them with a copy of the suit filed as well as all medical
               bills now in our possession.


       (Appellant’s App. Vol. II, p. 150). That same day, Progressive’s claims adjuster

       replied:


               To my knowledge, there is no bodily injury on this claim as it is a
               single vehicle accident. There is $5,000.00 of medical payments
               available and once that is exhausted health insurance will pick
               up. The file owner is [] and she handled the collision portion.


       (Appellant’s App. Vol. II, p. 150). The following day, July 1, 2016, Smith’s

       counsel’s office responded, in part:


               It is our understanding that Progressive has not opened a bodily
               injury or uninsured/underinsured motorist claim in this matter,
               despite our request that one be established. We respect that this
               is Progressive’ [sic] position and request that the appropriate
               adjuster confirm receipt of the above documents. To date, we
               have been unable to establish fax and/or email contact with the


       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018       Page 11 of 15
               appropriate party and we would request that this information be
               forwarded to appropriate party within Progressive.


       (Appellant’s App. Vol. II, p. 149). Within an hour, Progressive replied with the

       requested contact information.


[19]   Based on this correspondence, coupled with the filing of the Complaint for

       Declaratory Judgment, Smith observes that it “clearly evidences Progressive’s

       denial of coverage for the bodily injury claims of Smith[.]” (Smith’s Br. p. 18).

       Added to this, Smith claims that Progressive stipulated to its denial of coverage

       during a hearing on a motion for protective order on September 9, 2017.


[20]   While we agree with Smith that “a tortfeasor vehicle that had its coverage

       denied is an uninsured motorist vehicle for the purpose of the Financial

       Responsibility Act,” at no point did Progressive concede that Smith had

       submitted a claim that was denied. Indiana Ins. Guar. Assoc. v. Smith, 82 N.E.3d

       383, 385 (Ind. Ct. App. 2017). The correspondence relied upon by Smith to

       support his argument merely demonstrates that Progressive’s claims adjuster

       stated Progressive’s position that the policy does not provide bodily injury

       coverage because it was a single vehicle accident. Instead of denying coverage,

       Progressive applied the policy and paid Smith $5,000 in medical payment, and

       also covered the repair of his truck under the collision provisions of the policy.


[21]   Moreover, recent case law confirms that UM coverage is not triggered when

       statutorily-required liability insurance coverage is available. In both State Farm

       Auto. Ins. Co. v. Leybman, 777 N.E.2d 763, 764 (Ind. Ct. App. 2002), trans. denied


       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018      Page 12 of 15
       and Matteson v. Citizens Ins. Co. of America, 844 N.E.2d 188, 194 (Ind. Ct. App.

       2006), this court concluded that UM coverage is not triggered when another

       policy is available to pay the policy limits.


[22]   In State Farm Auto. Ins. Co. v. Leybman, 777 N.E.2d 763, 764 (Ind. Ct. App.

       2002), trans. denied, James Gaddy was driving a vehicle owned by his father,

       John Gaddy, without his father’s permission. Although James did not have

       insurance, John maintained insurance on the vehicle through GRE Insurance

       Company (GRE). Id. The policy did not list James as an insured driver. Id. In

       addition, the GRE policy provided coverage for the permissive use of the

       vehicle but not for any nonpermissive use. Id. GRE offered the policy limits to

       the Leybmans to settle the case. Id. The settlement was contingent on the

       Leybmans executing a release of liability of both John and James. Id. GRE’s

       offer had not been withdrawn or accepted when the Leybmans filed a

       declaratory judgment action against their insurer, State Farm, requesting the

       $50,000 limits of their policy’s uninsured motorist provision. Id. The trial court

       concluded that GRE’s settlement offer to pay John’s policy limits of $25,000

       did not constitute insurance coverage for the “ownership, maintenance or use”

       of the vehicle at the time of the accident. Id. On appeal, we held


               Through GRE’s offer of $25,000 policy limits, James Gaddy, can
               be made to respond to the damages resulting from the accident.
               This offer of the policy limits satisfies the minimum requirements
               prescribed by the [F]inancial [R]esponsibility [A]ct. The
               insurer’s offer of the policy limits, as a result, constituted
               coverage of the accident. Because insurance was available for the


       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018     Page 13 of 15
               offending party’s act, there was no need to resort to Leybman’s
               uninsured motorist policy.


       Id. at 766.


[23]   In Matteson v. Citizens Ins. Co. of America, 844 N.E.2d 188, 194 (Ind. Ct. App.

       2006), Matteson’s husband collided with a semi-truck and a policy provided by

       the commercial carrier did not name the specific truck or driver under the

       policy. Matteson sought UM coverage under her own policy and attempted to

       distinguish Leybman on the ground that Leybman’s policy insured the specific

       vehicle driven by the tortfeasor. Id. This court disagreed, noting “even though

       the [insurance] policy did not specifically list the vehicle, [its owner, or the

       driver], the fact that [the insurance company] paid out its policy limits to

       Matteson indicates that the vehicle was insured and the purpose of the [UM]

       statute had been met.” Id.


[24]   Likewise here, Smith’s policy covered damages to Smith’s truck and his

       medical payments and Clayton’s insurer tendered its full policy limits to Smith

       to answer for the damages Clayton caused. Accordingly, in line with Leybman

       and Matteson, as the policy limits satisfy the minimum requirements of the

       Financial Responsibility Act, coverage was available and Smith cannot claim

       under the UM provisions of his policy.


[25]   Accordingly, as Progressive’s policy unambiguously excluded Smith’s truck

       from UM coverage and the policy reimbursed Smith for the damage to his

       vehicle and his medical payments pursuant to the policy’s requirements, the

       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018        Page 14 of 15
       trial court incorrectly applied the law to the facts. See First Farmers Bank & Trust

       Co., 891 N.E.2d at 607. Therefore, we reverse the trial court’s grant of

       summary judgment in favor of Smith.


                                               CONCLUSION
[26]   Based on the foregoing, we hold that the trial court erred by concluding that

       Smith is entitled to receive payment from Progressive for his bodily injury

       under his insurance policy’s UM coverage, where his injury arose from a single-

       vehicle accident involving his insured vehicle and the driver’s liability insurance

       covered Smith’s bodily injury damages.


[27]   Reversed.


[28]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 18A-PL-312 | October 10, 2018       Page 15 of 15
