                                                                               FILED
                                                                           Jul 31 2017, 5:34 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Mark R. Smith                                              Michael J. Anderson
Donna H. Fisher                                            Scott M. Keller
Smith Fisher Maas Howard &                                 Tracey S. Schafer
Lloyd P.C.                                                 Anderson, Agostino & Keller, P.C.
Indianapolis, Indiana                                      South Bend, Indiana
ATTORNEY FOR AMICUS CURIAE
INSURANCE INSTITUTE OF INDIANA, INC.
Bryan H. Babb
Bose McKinney & Evans LLP
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Erie Indemnity Company, as the
Attorney-In-Fact for the                                   July 31, 2017
Subscribers at Erie Insurance                              Court of Appeals Case No.
Exchange,                                                  46A03-1606-CT-1261
Appellant-Defendant/Counterclaimant,                       Appeal from the
                                                           LaPorte Superior Court
        v.
                                                           The Honorable
                                                           Richard R. Stalbrink, Jr., Judge
The Estate of Brian L. Harris, By
Its Special Representative, Laura                          Trial Court Cause No.
Harris, and Anna Marie Harris,                             46D02-1511-CT-2015
Spouse of Brian L. Harris,
Deceased,
Appellees-Plaintiffs/Counterdefendants.




Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017                           Page 1 of 16
      Kirsch, Judge.


[1]   Erie Indemnity Company, as the Attorney-In-Fact for the Subscribers at Erie

      Insurance Exchange (together, “Erie”),1 appeals the trial court’s summary

      judgment decision in favor of the widow and estate of Brian L. Harris. On

      appeal, Erie raises the following restated issue: Whether the trial court erred as

      a matter of law by finding that the uninsured motorist insurance issued to Brian

      L. Harris’s (“Brian”) employer, as part of its commercial auto fleet policy that

      covered Brian’s take-home car, provided coverage when Brian, while off duty

      and cutting his own lawn on a riding mower, was struck and killed by a car

      driven by an uninsured motorist.


[2]   We affirm.


                                  Facts and Procedural History2
[3]   On August 6, 2010, Brian was on a riding lawnmower, cutting grass at his

      Goshen, Indiana home, when, while close to the road, he was struck and killed

      by Noel M. Sparks (“Sparks”), who was driving a 1974 Chevy truck (“Chevy”).

      Sparks had borrowed the Chevy with the permission of its owners, Brent and

      Jamie Stouder (together, “the Stouders”). At the time of the accident, Sparks




      1
       Because Erie Indemnity Company and Erie Insurance Exchange appear to be one entity for purposes of this
      appeal, a reference to Erie is a reference to either or both entities unless otherwise stated.
      2
       We held oral argument on June 21, 2017 at Purdue University’s Krannert School of Executive
      Management. We thank counsel for their preparation and argument, and we commend them on their
      outstanding advocacy. We also thank the students for their insightful questions and comments posed after,
      but not specifically related to, the oral argument.

      Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017                       Page 2 of 16
      was driving on a suspended license and was under the influence of illegal drugs.

      Because Sparks was operating the vehicle as an unlicensed driver, the Stouders’

      insurance on the Chevy did not apply to the accident; accordingly, Sparks was

      deemed to be an uninsured motorist.


[4]   Brian, who was the husband of Anna Marie Harris (“Anna Marie”),3 had

      worked since January 1993 for Formco Inc. (“Formco”), a plastic design and

      manufacturing company in Elkhart County. During his employment, Brian

      drove a company-owned vehicle as his primary transportation for both business

      and personal uses. In August 2010, Brian’s vehicle was a 2004 Toyota pickup

      truck (“Toyota”).4


[5]   In December 1993, Formco submitted an application to Erie requesting

      Commercial Non-Fleet/Fleet Auto coverage. In Section 10 of that application,

      Formco was required to list: (1) the vehicles for which coverage was requested;

      and (2) each driver’s name and license number exactly “as it appears on the

      driver’s license.” Appellant’s App. Vol. 2 at 139. Brian’s name was submitted as

      one of only three named drivers in a policy that covered eleven vehicles. The

      other drivers listed were David Slagel, President of Formco, and Jean

      Woodworth, whose position was not provided. On December 11, 1993, Erie




      3
       Both parties incorrectly refer to Brian’s wife as “Anne Marie.” It is clear from her own affidavit that Brian’s
      wife is “Anna Marie.” Appellant’s App. Vol. 3 at 162-63.
      4
       In a sworn affidavit submitted to the trial court, Anna Marie stated that, during the time Brian used the
      Toyota for both business and personal transportation needs, he “did not own a vehicle which he regularly
      used for personal transportation.” Appellant’s App. Vol. 3 at 163

      Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017                           Page 3 of 16
issued a Commercial Auto Policy to Formco as the sole “Named Insured,”

designating the autos that were covered, but mentioning nothing about

individual drivers.5 That policy was renewed each year, and vehicles were

added and deleted as needed. The policy that was in effect at the time of the

accident was the sixteenth renewal (“the Policy”) and covered the term from

December 11, 2009 to December 11, 2010. The Policy included an

Uninsured/Underinsured Motorist Coverage Endorsement – Indiana (“UM

Endorsement”),6 which supplied coverage limits of $1,000,000 per accident, and

listed the Toyota as one of Formco’s scheduled vehicles. Brian paid no

premiums and was not a named insured under the Policy. Norman C. Flick,

the Section Supervisor, Commercial Property and Casualty Underwriting, for

the Commercial Lines and Reinsurance Division of Erie Insurance Exchange,

submitted an affidavit, as designated evidence, stating, “Brian was not listed as

a ‘named insured’ or an ‘additional insured’ in any of the renewals’

Declarations Pages; nor was Brian’s name listed anywhere in the renewals’

Declarations Pages. Rather, Brian was identified in [Erie]’s underwriting




5
  Erie contends, “If Formco or Brian had ever asked Erie to add Brian to the Policy or renewals as a “named
insured” or “additional insured,” Erie would have declined such a request – Erie’s underwriting guidelines do
not permit it to add an employee such as Brian as a “named insured” or “additional insured” to a
commercial auto policy issued to a named insured which is a corporation such as Formco.” Appellant’s Br. at
13 (citing Appellant’s App. Vol. 4 at 44).
6
 Because we are only concerned with the uninsured motorist coverage, we use the term “UM
Endorsement.”

Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017                        Page 4 of 16
      records as a ‘scheduled driver’ under the Policy.” Appellant’s App. Vol. 3 at 80;

      Appellant’s App. Vol. 4. at 44.


[6]   Following Brian’s death, his estate submitted a claim to Erie seeking damages

      for bodily injury under the Policy’s UM coverage. Erie denied that claim by

      letter dated September 6, 2010. In that denial letter, Erie asserted that UM

      coverage was unavailable because: (1) Brian did not meet the definition of a

      named insured “you,” as defined in the Policy; and (2) Brian was not using or

      occupying an auto insured by the Policy at the time of the accident.


[7]   Brian’s estate and Anna Marie (together “the Estate”) filed a Complaint for

      Damages and Declaratory Judgment in Elkhart Superior Court (Case No.

      20D03-1107-CT-11) (“Complaint”) on July 8, 2011.7 The Complaint set forth

      the following counts: Count I alleged negligent operation of a motor vehicle by

      Sparks; Count II alleged negligent entrustment by the Stouders of their Chevy

      to Sparks; and Count III sought declaratory judgment to determine whether the

      Policy’s UM insurance covered the damages that the Estate had suffered from

      the August 6, 2010 motor vehicle accident. In addition to its answer, Erie filed

      a counterclaim against the Estate.8




      7
        The Complaint was initially filed by Brian’s estate and Brian’s daughter Laura Harris, in her capacity as
      both Special Representative of the Estate and Individually. The Complaint was filed against Sparks, the
      Stouders, and Erie Exchange. Thereafter, however, Anna Marie was substituted as the real party in interest
      in the place of Laura, acting individually, and Erie Indemnity Company, as the Attorney-in-Fact for the
      Subscribers at Erie Exchange was substituted as the real party in interest in the place of Erie Exchange.
      8
       Following recusal by a judge of the Elkhart Superior Court, the case was assigned to a special judge in La
      Porte Superior Court (Case No. 46D02-1511-CT-2015).

      Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017                         Page 5 of 16
[8]   Erie also filed a motion for summary judgment as to Count III, seeking

      declaratory judgment that the Policy did not provide UM coverage9 and its

      designation of evidence. Following full briefing, the trial court held a hearing

      on the parties’ cross-motions for summary judgment and, on April 11, 2016,

      issued its interlocutory order denying Erie’s motion for summary judgment and

      granting the Estate’s cross-motion for summary judgment (“SJ Order”). In the

      SJ Order, the trial court addressed the liability issues and determined that the

      Estate was entitled to recover for Brian’s accident under the Policy’s UM

      Endorsement; however, the trial court did not address the damages issue. In an

      Agreed Entry, dated May 12, 2016, the parties stipulated “as to the damage

      issues,”10 but only “pursuant to a full and complete reservation of their

      respective appellate rights in connection with the appeal of the liability issues

      determined by the Court’s [SJ Order.]” Appellant’s App. Vol. 4 at 184. Erie now

      appeals.11




      9
        Erie’s Counterclaim also requested declaratory judgment that the Auto Medical Payments Endorsement in
      the Policy did not apply to the accident. Apparently, the Estate had submitted a claim for auto medical
      payment, which Erie had denied. It appears that the Estate did not address this coverage in its complaint,
      focusing, instead, on the UM coverage.
      10
       The parties agreed that, upon a finding of liability, the Estate was entitled to $1,000,000 under the Policy’s
      UM coverage and $160,000 of prejudgment interest. Appellant’s App. Vol. 4 at 184.
      11
        “On November 24, 2011, there was a judgment that was entered finding liability against Mr. Sparks and
      damages of $4,643,295.” Tr. at 31. The Stouders and Sparks, who is currently incarcerated, do not
      participate in this appeal.

      Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017                           Page 6 of 16
                                       Discussion and Decision
                                               Standard of Review

[9]    On appeal from a grant of summary judgment, our standard of review is the

       same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

       1167, 1173 (Ind. Ct. App. 2012), trans. denied. We stand in the shoes of the trial

       court and apply a de novo standard of review. Id. Our review of a summary

       judgment motion is limited to those materials designated to the trial court, and

       summary judgment is appropriate only where the designated evidence shows

       there are no genuine issues of material fact and the moving party is entitled to

       judgment as a matter of law. Ind. Trial Rule 56(C), (H); FLM, 973 N.E.2d at

       1173. We view the pleadings and designated materials in the light most

       favorable to the non-moving party. FLM, 973 N.E.2d at 1173. Additionally, all

       facts and reasonable inferences from those facts are construed in favor of the

       nonmoving party. Id.


[10]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. Id. Where

       a trial court enters specific findings and conclusions, they offer insight into the

       rationale for the trial court's judgment and facilitate appellate review, but are

       not binding upon this court. Id. We will affirm upon any theory or basis

       supported by the designated materials. Id. Here, the parties filed cross-motions

       for summary judgment, however, that does not alter our standard of review. Id.

       at 1173-74. “Instead, we must consider each motion separately to determine

       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017   Page 7 of 16
       whether the moving party is entitled to judgment as a matter of law.” Id. at

       1174.


[11]   At issue in this case is whether a term of the Policy, regarding whether Brian is

       protected by the Policy’s UM coverage, is ambiguous. Insurance policies are

       governed by the same rules of construction as other contracts, and their

       interpretation is a question of law. Bradshaw v. Chandler, 916 N.E.2d 163, 166

       (Ind. 2009). “When interpreting an insurance policy, our goal is to ascertain

       and enforce the parties’ intent as manifested in the insurance contract. We

       construe the insurance policy as a whole and consider all of the provisions of

       the contract and not just the individual words, phrases or paragraphs.” Buckeye

       State Mut. Ins. Co. v. Carfield, 914 N.E.2d 315, 318 (Ind. Ct. App. 2009), trans.

       denied. Further, we “seek to harmonize the provisions, rather than leave them

       in conflict.” Erie Ins. Exch. v. Sams, 20 N.E.3d 182, 188 (Ind. Ct. App. 2014),

       trans. denied. “[W]here, as here, we interpret an endorsement to an insurance

       policy, the endorsement ‘must be read together, construed, and reconciled with

       the policy to give effect to the whole.’” Masten v. AMCO Ins. Co., 953 N.E.2d

       566, 569 (Ind. Ct. App. 2011) (quoting Stevenson v. Hamilton Mut. Ins. Co., 672

       N.E.2d 467, 473 (Ind. Ct. App. 1996), trans. denied), trans. denied. “We construe

       the policy and relevant endorsements from the perspective of ‘an ordinary

       policyholder of average intelligence,’ and if ‘reasonably intelligent people may

       interpret the policy’s language differently,’ the policy is ambiguous.” Id.

       (quoting Bradshaw, 916 N.E.2d at 166). “If there is an ambiguity, we construe




       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017   Page 8 of 16
       the policy strictly against the insurer.” Milbank Ins. Co. v. Indiana Ins. Co., 56

       N.E.3d 1222, 1229 (Ind. Ct. App. 2016).


[12]   Pursuant to Indiana Code section 27-7-5-2, insurance companies must provide

       UM coverage in all existing or newly issued automobile policies up to the

       policy limits, unless such coverage is rejected in writing. Liberty Mut. Fire Ins.

       Co. v. Beatty, 870 N.E.2d 546, 549 (Ind. Ct. App. 2007). The UM Endorsement

       in Erie’s Policy reads, in pertinent part: 12


               OUR PROMISE

               We will pay damages for bodily injury and property damage that
               the law entitles you or your legal representative to recover from
               the owner or operator of an uninsured motor vehicle or
               underinsured motor vehicle.

               Damages must result from a motor vehicle accident arising out of
               the ownership or use of the uninsured motor vehicle or
               underinsured motor vehicle as a motor vehicle and involve:

               1. bodily injury to you or others we protect. Bodily injury means
               physical harm, sickness, disease or resultant death to a person; or

               2. when purchased – property damage, meaning destruction of or
               injury to . . . .

               OTHERS WE PROTECT

               1. Any relative, if you are an individual.




       12
         The UM Endorsement begins with a Definitions section that defines uninsured motor vehicle and
       underinsured motor vehicle and explains what each of those terms “does not include.” That language is
       omitted here because the parties agree that Sparks drove an uninsured motor vehicle.

       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017                      Page 9 of 16
               2. Anyone else, while occupying any owned auto we insure
               other than one being used without the permission of the owner.

               3. Anyone else who is entitled to recover damages because of
               bodily injury to any person protected by this coverage.

               ....

               LIMITATIONS ON OUR DUTY TO PAY

               What we Do Not Cover - Exclusions

               This insurance does not apply to:

                        ....

               7. injury sustained by anyone we protect while occupying or
               struck as a pedestrian by an uninsured or underinsured motor
               vehicle which is owned by you or a relative.

       Appellant’s App. Vol. 2 at 118-19 (emphasis in original).


[13]   The first part of the Policy set forth Definitions, which were prefaced with the

       phrase: “Throughout your policy and its endorsement forms, the following words have

       a special meaning when they appear in bold type[.]” Appellant’s App. Vol. 2 at 93.

       The pertinent terms for the UM coverage defined in the Policy are “we, us, our,

       and The ERIE,” “you, your, or Named Insured,” “individual,” “anyone we

       protect,” “autos we insure,” and “owned auto.” Id. at 93-95, 108. The key

       term at issue here is “others we protect” as used in the following paragraph

       under OUR PROMISE:


               Damages must result from a motor vehicle accident arising out of
               the ownership or use of the uninsured motor vehicle or
               underinsured motor vehicle as a motor vehicle and involve:

       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017    Page 10 of 16
               1. bodily injury to you or others we protect. Bodily injury means
               physical harm, sickness, disease or resultant death to a person[.]


       Id. at 118 (underlining added). “Others we protect” is not defined in the Policy.


[14]   Here, the question is whether the UM coverage allows the Estate to recover

       damages in connection with Brian’s death. The parties disagree regarding their

       interpretation of “others we protect.” Appellant’s App. Vol. 3 at 118. Erie

       emphasizes that the phrase “others we protect” is used only in the UM

       Endorsement and that the description following the heading OTHERS WE

       PROTECT is set forth in the very next paragraph. Erie argues that a

       reasonable person reading that section would conclude that the term “others we

       protect” is defined by the language under the heading OTHERS WE

       PROTECT, a heading under which neither Brian nor the Estate falls.


[15]   The Estate’s position focuses on: (1) Policy language found in the Definitions

       section of the Indiana Endorsement -- “Words and phrases in bold type are used as

       defined in [the Indiana Endorsement]. If a word or phrase in bold type is not defined in

       this endorsement, then the word or phrase is defined in the DEFINITIONS Section of the

       policy,” Appellant’s App. Vol. 3 at 107; and (2) Policy language found in the UM

       Endorsement -- “Words in bold type are used as defined in the policy or in this

       form.” Id. at 118. Erie admits that words in the Policy that appear in bold type

       have special defined meanings. Appellant’s App. Vol. 3 at 140. The Estate notes

       that this phrase does not appear in bold anywhere in the Policy and argues that

       the absence of this phrase in the Definitions section and the UM Endorsement


       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017       Page 11 of 16
       contravenes Erie’s contention that “others we protect” is a defined term under

       the OUR PROMISE section of the UM Endorsement. Appellee’s Br. at 35.

       Accordingly, the Estate argues that the phrase “others we protect” is

       ambiguous because the phrase is not bold and, therefore, not defined. Appellee’s

       Br. at 31. The Estate asserts that Brian falls within the category “others we

       protect” because Erie admits that, under certain circumstances, Brian “could

       have rights to uninsured motorist bodily injury . . . coverage” under the UM

       Endorsement. Appellant’s App. Vol. 3 at 143.


[16]   Erie contends that the only person who meets the definition of “you” is

       Formco. Appellant’s App. Vol. 3 at 152. Formco is a corporate entity, not a

       living person capable of sustaining personal injuries in an accident with an

       uninsured motorist. Id. Erie admits that there are no circumstances under

       which Formco could ever claim entitlement to coverage under the UM

       Endorsement for personal injury resulting from an accident involving an

       uninsured or underinsured motor vehicle. Id. at 153. Thus, as written, the

       coverage the UM Endorsement purports to provide to “you,” is illusory because

       there are no circumstances under which Formco could ever make a claim for

       bodily injury under the UM Endorsement. Here, finding that the Estate can

       recover under the UM Endorsement for Brian’s bodily injury, advances the

       public policy of providing coverage to those protected by an insurance policy.


[17]   When reviewing insurance policy language, “If the language [in an

       insurance policy] is clear and unambiguous, [courts] give the language its

       plain and ordinary meaning.” Masten, 953 N.E.2d at 569 (citation omitted);
       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017   Page 12 of 16
       see also, Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind. 1992). “An ambiguity

       exists where a provision is susceptible to more than one interpretation and

       reasonable persons would differ as to its meaning.” Id. at 569-570 (citation

       omitted); see also, Eli Lilly & Co. v. Home Ins. Co., 482 N.E.2d 467, 470 (Ind.

       1985).


[18]   We agree with the trial court that the phrase “others we protect” is

       “susceptible to more than one interpretation” where reasonable people, or in

       this case reasonable lawyers, “would differ as to its meaning.” Here,

       reasonable people differ as to the meaning of the policy language, as shown

       through the parties’ many brief filings, oral arguments, and the SJ Order.

       Both Erie’s argument -- that the Estate and Brian are not covered because

       they do not qualify as “you” or “others we protect” as defined by the policy

       -- and the Estate’s argument -- that the Estate and Brian do qualify as

       “others we protect” because the phrase “others we protect” is not all bolded

       and is not expressly defined – are reasonable. Therefore, the language

       providing coverage for “others we protect” is ambiguous.


[19]   Generally, where the terms of a policy are ambiguous, we construe the

       ambiguity strictly against the insurer.” Milbank Ins., 56 N.E.3d at 1229.

       Erie argues that Brian was not a named insured when he made his claim

       against the Policy for UM coverage, and therefore, we must give a neutral

       construction to ambiguities in the policy language because he was claiming

       coverage as a third party to the agreement. See Empire Fire v. Frierson, 49

       N.E.3d 1075, 1079 (Ind. Ct. App. 2016) (dispute between third-party

       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017   Page 13 of 16
       claimant and insurer requires determination of general intent of contract

       from neutral stance).


[20]   In Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 615 (Ind. Ct. App. 2011), trans.

       denied, our court observed that the factor distinguishing cases in “which we

       apply a neutral stance. . . appears to be that the party that was seeking to

       benefit . . . was not a party to the contract.” Id. (citing Burkett v. Am. Family

       Ins. Grp., 737 N.E.2d 447, 452 (Ind. Ct. App. 2000) (citing Indiana

       Lumbermens Mut. Ins. Co. v. Statesman Ins. Co., 260 Ind. 32, 291 N.E.2d 897

       (1973), and Am. Family Mutual Ins. Co. v. Nat’l Ins. Ass’n, 577 N.E.2d 969

       (Ind. Ct. App. 1991))). Whether the claimant was a party to the policy is

       not dispositive. We agree with the Argonaut Court, that a more helpful

       distinction lies in whether the “claimants to the insurance policy were

       strangers to the policyholders entirely.” Id. at 615-16.


[21]   Here, Brian was not a stranger to either the insurer or the insured. Brian

       had been Formco’s employee for more than seventeen years and was one of

       only three drivers listed on the application for a commercial policy

       purchased to cover more than eleven vehicles. Erie knew of Brian because

       it calculated Formco’s premium by using the information that Brian was a

       scheduled driver, along with Jean Woodworth and David Slagel, President

       of Formco.


[22]   Because Brian was not a stranger to the policy and fit squarely within the

       class of individuals that the policy was intended to benefit, we reject a


       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017   Page 14 of 16
       neutral reading and construe the ambiguity against Erie. We recognize that

       the term “others we protect” is neither bolded nor listed in any of the

       definitions in the Policy. If that phrase was intended to be a specifically

       defined phrase, it needed to appear completely in bold, instead of just

       “other we protect.” Moreover, the complete phrase must have been set

       forth as a definition. As such, we find that Brian, who Erie agrees has

       protection under the Policy, falls within the group of “others we protect.”

       See Milbank Ins., 56 N.E.3d at 1229. Here, the Estate can recover UM

       damages in this wrongful death suit, because, under the terms of the UM

       Endorsement, the Estate falls within the category that allows recovery to

       “Anyone else who is entitled to recover damages because of bodily injury to

       any person protected by this coverage.” Appellant’s App. Vol. 2 at 118.


[23]   Concluding that Brian falls within the category of “others we protect,” the

       question remains whether the UM Endorsement provides coverage to Brian

       when he is outside a scheduled vehicle, e.g., when he is a pedestrian. We

       find that it does. The UM Endorsement expressly excludes coverage for

       injuries “sustained by anyone we protect while . . . struck as a pedestrian by

       an uninsured or underinsured motor vehicle which is owned by you or a

       relative.” Appellant’s App. Vol. 3 at 143. Erie would not have included this

       exclusion unless it was necessary to set forth an exception to its general rule

       that the UM Endorsement covers “others we protect” when they are

       pedestrians. Brian was covered unless he was struck as a pedestrian by an

       uninsured or underinsured vehicle owned by Formco.

       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017   Page 15 of 16
[24]   Erie admitted that “the phrase ‘struck as a pedestrian’ includes ‘anyone we

       protect’ who is struck by an ‘uninsured or underinsured motor vehicle’

       when ‘anyone we protect’ is not inside an ‘uninsured’ or ‘underinsured

       motor vehicle.’” Id. at 145. Here, Brian was struck while outside the

       uninsured Chevy, which Formco did not own. We agree with the Estate

       that the inclusion of this limitation leads to the conclusion that Brian had a

       commensurate right to coverage when, as a pedestrian, he was struck by an

       uninsured or underinsured vehicle like the Chevy, which Formco did not

       own.


[25]   Construing the ambiguous language against the insurer, we find that Brian

       fell within the Policy’s UM coverage. There are no genuine issues of

       material fact, and we affirm the trial court’s entry of summary judgment.


[26]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 46A03-1606-CT-1261 | July 31, 2017   Page 16 of 16
