                                                                     Jan 21 2016, 9:02 am




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
John C. Trimble                                            David W. Stone IV
Richard K. Shoultz                                         STONE Law Office & Legal
Wandini B. Riggins                                         Research
Lewis Wagner, LLP                                          Anderson, Indiana
Indianapolis, Indiana                                      Rom Byron
                                                           Ken Nunn Law Office
                                                           Bloomington, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Empire Fire and Marine                                     January 21, 2016
Insurance Company,                                         Court of Appeals Case No.
Appellant-Defendant,                                       49A02-1503-CT-126
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Timothy W.
Charlene Frierson and Roderick                             Oakes, Judge
Frierson,                                                  Trial Court Cause No.
Appellees-Plaintiffs.                                      49D13-1111-CT-42812




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016                  Page 1 of 17
[1]   Empire Fire and Marine Insurance Company (“Empire”) appeals from the trial

      court’s order denying its motion for summary judgment in favor of Charlene

      Frierson and Roderick Frierson (collectively, the “Friersons”) and the denial of

      its motion to correct error. Empire raises three issues, one of which we find

      dispositive and which we revise and restate as whether the court erred in

      denying Empire’s motion for summary judgment. We reverse.


                                       Facts and Procedural History

[2]   On April 25, 2011 Charlene Frierson was involved in an automobile accident

      with Ashley Talsma. At the time, Talsma was insured under an automobile

      liability insurance policy issued by Allstate which provided bodily injury

      liability coverage in the amount of $25,000 for each person and $50,000 for

      each occurrence. Before trial, Talsma’s carrier tendered $25,000 in policy

      liability limits to the Friersons. Charlene was insured under a separate

      automobile policy issued by Allstate, and the Friersons sought Underinsured

      Motorist (“UIM”) benefits from Allstate, which also tendered $25,000 of UIM

      coverage after setting off Talsma’s liability limits.


[3]   Charlene was operating an automobile that she had rented from Enterprise.

      She completed a rental agreement with Enterprise under which she purchased

      optional Supplemental Liability Protection (“SLP”). The rental agreement (the

      “Rental Agreement”) provided in part:

              7. Responsibility to Third Parties. . . . Except to the extent
              required by the motor vehicle financial responsibility laws of the
              applicable state or otherwise by law, Owner [Enterprise] does not

      Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 2 of 17
              extend any of its motor vehicle financial responsibility or provide
              insurance coverage to Renter . . . . Renter agrees to provide
              coverage for damage resulting from the operation of the vehicle.


              9. Personal Injury Protection and Uninsured/Underinsured
              Motorist Protection. Except as required by law, Owner
              [Enterprise] does not provide Personal Injury Protection, No
              Fault Benefits or Medical Payment Coverage (collectively “PIP”)
              or Uninsured/Underinsured Motorist Protection (“UM/UIM”)
              through this Agreement. If Owner is required by law to provide
              PIP and/or UM/UIM, Renter expressly selects such protection
              in the minimum limits with the maximum deductible and
              expressly waives and rejects PIP and/or UM/UIM limits in
              excess of the minimum limits required by law.


      Appellant’s Appendix at 43.


[4]   In addition, the Rental Agreement in Paragraph 17, titled “Optional

      Supplemental Liability Protection,” contained a summary of the optional SLP

      product. Paragraph 17 first states: “THIS IS A SUMMARY ONLY AND IS

      SUBJECT TO ALL PROVISIONS, LIMITATIONS, EXCEPTIONS AND

      EXCLUSIONS OF THE SLP POLICY. UPON REQUEST, A COPY OF

      THE POLICY IS AVAILABLE FOR REVIEW. . . .” Id. Paragraph 17 further

      states that when a renter elects to purchase SLP, the renter is provided with

      “minimum financial responsibility limits (at no charge to Renter) as outlined in

      the applicable motor vehicle financial responsibility laws of the state where the

      Vehicle is operated AND excess Insurance provided by the Insurance policy . . .

      .” Id. Also, under the heading “SLP Exclusions,” it states: “For all exclusions,

      see the SLP policy issued by Empire Fire and Marine Insurance Company.

      Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 3 of 17
      Here are a few key exclusions: . . . (d) Liability arising out of or benefits payable

      under any uninsured or underinsured motorist law, in any state . . . .” Id. The

      SLP purchased by Charlene was provided through Empire (the “Empire

      Policy”). The designated evidence does not indicate that Charlene requested a

      copy of the Empire Policy, and she was not provided with a copy of such

      policy. Id. at 45.


[5]   Enterprise Holdings, Inc. (“Enterprise”) is the policyholder under the Empire

      Policy, which covers all of Enterprise’s rental vehicles, including the

      automobile rented by Charlene. The Empire Policy states that it provides

      “excess auto liability insurance,” id. at 95, and it contains language excluding

      Uninsured Motorist (“UM”) and UIM coverage unless specifically listed for

      certain states as follows:


              D. EXCLUSIONS


                       In addition to the exclusions contained in the “underlying
                       insurance,” this insurance does not apply to the following:


                                                 *****


                                5. Liability arising out of benefits payable under any
                                uninsured or underinsured motorist law, in any
                                state.




      Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016     Page 4 of 17
      Id. at 96. By endorsement, Empire provided UM and UIM coverage in five

      specified states, but Indiana is not on the list.1


[6]   On November 7, 2011, the Friersons filed a complaint for damages against

      Talsma, which they later amended on January 24, 2013 to include Empire.2

      Empire filed an appearance on December 1, 2011, and on January 9, 2012, filed

      its Answer, Affirmative Defenses and Request for Jury Trial. On October 1,

      2012, Empire filed a motion for summary judgment in which it sought a

      determination that the Empire Policy did not provide either UM or UIM

      coverage to the Friersons. On November 29, 2012, the Friersons filed their

      response to Empire’s motion.


[7]   On January 9, 2013, a hearing was held on Empire’s motion, and on January

      15, 2013, the court entered an order summarily denying the motion.


[8]   A trial was held on November 5 and 6, 2014, and ultimately the jury returned a

      verdict in favor of the Friersons in the amount of $185,000 which was

      subsequently reduced to a net verdict of $129,500 based on comparative fault.

      On December 9, 2014, Empire filed a Consolidated Motion for Set-off and a

      motion to correct error, and on January 28, 2015, the court held a hearing on

      the consolidated motions. On February 3, 2015, the court entered an order




      1
          The specified states are Florida, Louisiana, New Hampshire, Vermont, and West Virginia.
      2
       The amended complaint also named Allstate Property and Casualty Insurance Company as a defendant;
      however, that party was later dismissed.

      Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016                    Page 5 of 17
       denying Empire’s motion to correct error but granting in part its request for set

       off against the verdict, reducing the judgment against Empire to $79,500 after

       setting off the $50,000 received by the Friersons from Talsma and Allstate.


                                                     Discussion

[9]    The dispositive issue is whether the court erred in denying Empire’s motion for

       summary judgment. We review an order for summary judgment de novo,

       applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000,

       1003 (Ind. 2014). The moving party bears the initial burden of making a prima

       facie showing that there are no genuine issues of material fact and that it is

       entitled to judgment as a matter of law. Manley v. Sherer, 992 N.E.2d 670, 673

       (Ind. 2013). Summary judgment is improper if the moving party fails to carry

       its burden, but if it succeeds, then the nonmoving party must come forward

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

       We construe all factual inferences in favor of the nonmoving party and resolve

       all doubts as to the existence of a material issue against the moving party. Id.


[10]   The construction of a contract is particularly well-suited for de novo appellate

       review, because it generally presents questions purely of law. Holiday Hospitality

       Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind. 2013) (citing

       Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997)). Insurance

       contracts are governed by the same rules of construction as any other contract.

       Id. Clear and unambiguous policy language is given its ordinary meaning in

       order to accomplish the primary goal of contract interpretation: “to determine

       the intent of the parties at the time the contract was made as disclosed by the
       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 6 of 17
       language used to express their rights and duties.” Id. at 577-578 (quoting First

       Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 603 (Ind. 1990)).


[11]   Where contractual language is ambiguous, we generally resolve those

       ambiguities in favor of the insured, but will not do so if such an interpretation

       fails to harmonize the provisions of the contract as a whole. Id. at 578.

       However, the failure to define a contractual term does not necessarily make that

       term ambiguous, nor does a simple disagreement about the term’s meaning. Id.

       “Rather, an ambiguity exists where the provision is susceptible to more than

       one reasonable interpretation.” Id.


[12]   This court has observed that “[i]nsurance companies are free to limit their

       liability, so long as they do so in a manner consistent with public policy as

       reflected by case or statutory law.” Gheae v. Founders Ins. Co., 854 N.E.2d 419,

       423 (Ind. Ct. App. 2006). Also, “[a]n insurance policy that is unambiguous

       must be enforced according to its terms, even those terms that limit an insurer’s

       liability.” Haag v. Castro, 959 N.E.2d 819, 823 (Ind. 2012). Where an

       ambiguity exists, the policy is generally construed in favor of the insured. USA

       Life One Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 538 (Ind. 1997). This is

       particularly the case where a policy excludes coverage. Id.; Am. States Ins. Co. v.

       Kiger, 662 N.E.2d 945 (Ind. 1996), reh’g denied. However, when a case involves

       a dispute between a third party and an insurer, the court does not construe it

       strictly against the insurer, but determines the general intent of the contract

       from a neutral stance. Burkett v. Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind.

       Ct. App. 2000); Ind. Lumbermens Mut. Ins. Co. v. Statesman Ins. Co., 260 Ind. 32,
       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 7 of 17
       34, 291 N.E.2d 897, 899 (1973). In addition, an ambiguity does not exist

       simply because an insured and an insurer disagree about the meaning of a

       provision, but only if reasonable people could disagree about the meaning of the

       contract’s terms. Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002),

       reh’g denied; Bosecker v. Westfield Ins. Co., 724 N.E.2d 241, 244 (Ind. 2000) (“An

       ambiguity exists where a provision is susceptible to more than one

       interpretation and reasonable persons would differ as to its meaning.”).


[13]   Empire argues that its policy clearly and unambiguously excluded UM and

       UIM coverage except in five states, none of which are Indiana, and that

       Enterprise accordingly paid no premium for UIM coverage for vehicles rented

       and operated in Indiana. It argues that in 2009 subsection (d) was added to Ind.

       Code § 27-7-5-2, which specifically addresses the issue presented, and was a

       direct response by the legislature to the Indiana Supreme Court’s holding in

       United Nat’l Ins. Co. v. DePrizio, 705 N.E.2d 455 (Ind. 1999), “that a commercial

       umbrella policy providing excess automobile liability coverage qualified as ‘an

       automobile liability policy or motor vehicle liability policy’ and insurers were to

       provide UM and UIM coverage under” Ind. Code § 27-7-5-2(a). Appellant’s

       Brief at 10. Empire also directs our attention to a United States Federal District

       Court case, Ohio Cas. Ins. Co. v. Herring-Jenkins, 830 F. Supp. 2d 566 (N.D. Ind.

       2011), interpreting subsection (d), as well as another state court case finding

       that the policy issued in that case, which Empire suggests is identical to its

       policy, finding the policy in that case to be “a true excess policy.” Appellant’s

       Brief at 14 (citing Collins v. Randall, 836 So.2d 352 (La. App. 2002)). To the


       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 8 of 17
       extent the Friersons assert that Charlene requested “full coverage,” Empire

       contends that their argument assumes the Empire Policy is an “automobile

       liability or motor vehicle liability policy of insurance” when in fact it is a

       “commercial umbrella or excess liability policy.” Appellant’s Reply Brief at 4.


[14]   The Friersons assert that Charlene averred in a designated affidavit that she

       “asked the Enterprise salesman for ‘full coverage’ to insure” the vehicle, and

       that the Rental Agreement was “in very small print and very difficult to read.”

       Appellees’ Brief at 11. They argue that this court has previously held that “if an

       insurance carrier desires to exclude coverage, this should be spelled out for the

       policyholder in clear and unmistakable language with conspicuous and plain

       positioning,” and that “[t]here is nothing clear or unmistakable about any

       claimed exclusion of UM/UIM coverage in the only partly legible fine print.”

       Id. (quoting Nat’l Mut. Ins. Co. v. Curtis, 867 N.E.2d 631, 637 (Ind. Ct. App.

       2007)). The Friersons assert that Empire did not establish that the policy at

       issue in Collins is the same as the Empire Policy, and they direct our attention to

       a case from the Arizona Supreme Court discussing “the realities of purchasing

       insurance in connection with a rental car transaction . . . .” Id. at 12 (citing

       Philadelphia Indem. Ins. Co. v. Barerra, 200 Ariz. 9, 21 P.3d 395 (2001)).3




       3
        The Friersons assert that Empire waived its right to claim it was not required to provide UIM coverage,
       arguing that it did not object to certain jury instructions. Because we hold that the court erred in denying
       summary judgment in Empire’s favor, however, we need not address this argument.

       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016                          Page 9 of 17
[15]   At the time of the accident, Ind. Code § 27-7-5-2, titled “Coverage for bodily

       injury or death; required provisions; rejection,” provided in relevant part:


               (a) Except as provided in subsection (d), the insurer shall make
               available, in each automobile liability or motor vehicle liability
               policy of insurance which is delivered or issued for delivery in
               this state with respect to any motor vehicle registered or
               principally garaged in this state, insuring against loss resulting
               from liability imposed by law for bodily injury or death suffered
               by any person and for injury to or destruction of property to
               others arising from the ownership, maintenance, or use of a
               motor vehicle, or in a supplement to such a policy, the following
               types of coverage:


                        (1) in limits for bodily injury or death and for injury to or
                        destruction of property not less than those set forth in IC 9-
                        25-4-5 under policy provisions approved by the
                        commissioner of insurance, for the protection of persons
                        insured under the policy who are legally entitled to recover
                        damages from owners or operators of uninsured or
                        underinsured motor vehicles because of bodily injury,
                        sickness or disease, including death, and for the protection
                        of persons insured under the policy who are legally entitled
                        to recover damages from owners or operators of uninsured
                        motor vehicles for injury to or destruction of property
                        resulting therefrom; or


                        (2) in limits for bodily injury or death not less than those
                        set forth in IC 9-25-4-5 under policy provisions approved
                        by the commissioner of insurance, for the protection of
                        persons insured under the policy provisions who are
                        legally entitled to recover damages from owners or
                        operators of uninsured or underinsured motor vehicles
                        because of bodily injury, sickness or disease, including
                        death resulting therefrom.

       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016      Page 10 of 17
        The uninsured and underinsured motorist coverages must be
        provided by insurers for either a single premium or for separate
        premiums, in limits at least equal to the limits of liability
        specified in the bodily injury liability provisions of an insured’s
        policy, unless such coverages have been rejected in writing by the
        insured. However, underinsured motorist coverage must be
        made available in limits of not less than fifty thousand dollars
        ($50,000). At the insurer’s option, the bodily injury liability
        provisions of the insured’s policy may be required to be equal to
        the insured’s underinsured motorist coverage. Insurers may not
        sell or provide underinsured motorist coverage in an amount less
        than fifty thousand dollars ($50,000). Insurers must make
        underinsured motorist coverage available to all existing
        policyholders on the date of the first renewal of existing policies
        that occurs on or after January 1, 1995, and on any policies
        newly issued or delivered on or after January 1, 1995. Uninsured
        motorist coverage or underinsured motorist coverage may be
        offered by an insurer in an amount exceeding the limits of
        liability specified in the bodily injury and property damage
        liability provisions of the insured’s policy.


                                               *****


        (d) An insurer is not required to make available the coverage
        described in subsection (a) in a commercial umbrella or excess
        liability policy, including a commercial umbrella or excess
        liability policy that is issued or delivered to a motor carrier (as
        defined in IC 8-2.1-17-10) that is in compliance with the
        minimum levels of financial responsibility set forth in 49 CFR
        Part 387.




Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016    Page 11 of 17
       (Subsequently amended by Pub. L. No. 116-2011, § 2 (eff. July 1, 2011); Pub.

       L. No. 125-2012, § 403 (eff. July 1, 2012); Pub. L. No. 148-2013, § 1 (eff. July 1,

       2013)).4


[16]   We find that the Empire Policy is indeed an excess liability policy under Ind.

       Code § 27-7-5-2(d). In Section I, Paragraph A, Subparagraph 1 of the Empire

       Policy, located on the first page of the policy, states unequivocally: “This policy

       provides excess auto liability insurance . . . .” Appellant’s Appendix at 95. It

       also states, under the heading “GENERAL CONDITIONS,” the following:

       “UNDERLYING INSURANCE. The policy or policies of insurance, bond,

       cash deposits or self-insurance must be maintained in full effect by the

       ‘policyholder’ or ‘insured’, during the term of this policy as a condition

       precedent to coverage. . . .” Id. at 98. The Rental Agreement is consistent that

       the Empire Policy is an excess policy. In Paragraph 17, found on the third page

       of the four page document, under the heading “ADDITIONAL TERMS AND

       CONDITIONS, it states that the SLP product provides the renter with

       “minimum financial responsibility limits (at no charge to Renter) as outlined in

       the applicable motor vehicle financial responsibility laws of the state where the

       Vehicle is operated AND excess Insurance provided by the Insurance policy,”

       which is a reference to the Empire Policy. Id. at 43 (emphasis added). Because

       the Empire Policy is an excess liability policy, it is not required to provide




       4
           The current version of Ind. Code § 27-7-5-2 is nearly identical to the 2010 version.


       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016                 Page 12 of 17
       UM/UIM coverage. Ind. Code § 27-7-5-2(d); see also Herring-Jenkins, 830 F.

       Supp. 2d at 582-583 (noting that the General Assembly enacted Ind. Code § 27-

       7-5-2(d) as a response to the Indiana Supreme Court’s opinion in DePrizio,

       which previously held that “the uninsured/underinsured motorist statute

       applied to all umbrella policies that provided third party auto liability

       coverage”).


[17]   The crux of the Friersons’ claims on appeal is that the exclusion of UM/UIM

       coverage was not spelled out for Charlene in clear and unmistakable language

       with conspicuous and plain positioning in the Rental Agreement, relying on

       this court’s statements in Curtis. In Curtis, this court examined whether a

       homeowner’s policy issued by National Mutual to the Curtises provided

       coverage against a claim by Justin Beaulieu for personal injury liability for

       injuries arising out of the ownership or use of a trampoline. 867 N.E.2d at 632.

       The court held that the placement of the trampoline exclusion in the policy was

       inconspicuous and amounted to an ambiguity in the policy. Id. at 637. In so

       holding, the court stated that “only a very hardy soul would have plowed

       through all of the fine print and separate sections in an effort to understand the

       many terms and conditions listed in the main policy and the convoluted

       additions thereto,” noting that “[o]n reaching the main policy’s fifteenth page, a

       reading of the liability coverage and its exclusions would have furnished

       reassurance of coverage in the event of personal injuries incurred in the use of

       the trampoline.” Id. at 636. The court stated that “[f]urther investigation of the

       main policy would not have divulged anything to the contrary,” and that


       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 13 of 17
       “[n]owhere was there any straightforward and unconditional statement that the

       policy was not intended to protect the homeowners in this situation.” Id. It

       noted that “[i]t is not until fourteen pages of long, fine print later, in a section

       misleadingly entitled Supplemental Extensions, that—almost as an

       afterthought—National Mutual excludes personal injuries arising out of the

       ownership, maintenance, and use of a trampoline,” and further that “[u]nlike

       the different sections of the main policy, the Supplemental Extensions two-page

       form does not employ any significant bolding, capitalization, or interlineations

       to clarify and set apart the separate exclusions.” Id. at 636-637.


[18]   The court also discussed the “scant Indiana case law establishing that the

       structural complexity of a policy can result in an ambiguity.” The court first

       discussed Hessler v. Fed. Cas. Co. of Detroit, Mich., 190 Ind. 68, 129 N.E. 325

       (1921), in which the Indiana Supreme Court “refused to enforce an exclusion of

       coverage that contradicted statements made elsewhere in the insurance policy.”

       Id. at 635. The Court observed that the fire insurance policy at issue

       “prominently proclaimed broad accident coverage and then, further along in

       the policy ‘printed in small type, without any further headlines’ was an

       exclusion of certain coverage.” Id. (quoting Hessler, 129 N.E. at 326). The

       Court “refused to enforce the exclusion ‘hidden away in small type, in clause

       (m) following, without headlines, other clauses . . .’ and instead enforced the

       ‘unequivocal statement on the back of the policy, presented in a manner as to

       catch the eye of the insured.’” Id. (quoting Hessler, 129 N.E. at 327).




       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 14 of 17
[19]   The Curtis court also discussed the case of Redar v. Allstate Ins. Co., 497 N.E.2d

       566 (Ind. Ct. App. 1985), wherein appellant Redar argued “that the

       exclusionary clauses of the policy were not conspicuously placed in the contract

       since they were inserted on pages two and three, after the omnibus clause.” Id.

       (citing Redar, 497 N.E.2d at 567). We disagreed, holding that although “the

       exclusionary clause followed the omnibus clause by one page, we do not believe

       this creates any ambiguity with regard to who is or is not covered under the

       policy,” and that it was not “unreasonable for the general coverage of the

       omnibus clause to be limited by specific exclusions which follow, clearly

       marked, on the next page of the contract.” Id. (quoting Redar, 497 N.E.2d at

       568). We also noted that we could not say, “as a matter of law, that such

       placement is inconspicuous so as to excuse an insured from being aware of such

       exclusions.” Id. (quoting Redar, 497 N.E.2d at 568).


[20]   We find Curtis to be distinguishable. First, to the extent that the Friersons assert

       that the Rental Agreement was comprised of fine print which was difficult to

       read, we note that such fine print is only two and one-half pages in length. The

       Rental Agreement states in Paragraph 7 that Enterprise “does not extend any of

       its motor vehicle financial responsibility or provide insurance coverage to

       Renter,” and in Paragraph 9, titled “Personal Injury Protection and

       Uninsured/Underinsured Motorist Protection,” that Enterprise “does not

       provide Personal Injury Protection, No Fault Benefits or Medical Payment

       Coverage (collectively ‘PIP’) or Uninsured/Underinsured Motorist Protection

       (‘UM/UIM’) through this Agreement.” Appellant’s Appendix at 43. Unlike in


       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 15 of 17
       Hessler, neither the Empire Policy nor the Rental Agreement purports to provide

       broad coverage only to further down the policy list certain exclusions. In fact,

       the top of the Rental Agreement’s discussion of the SLP in Paragraph 17

       contains language in all caps that the SLP is “SUBJECT TO ALL

       PROVISIONS, LIMITATIONS, EXCEPTIONS AND EXCLUSIONS OF

       THE SLP POLICY.” Id. That same paragraph notes specifically, under the

       heading “SLP Exclusions,” that “[l]iability arising out of or benefits payable

       under any uninsured or underinsured motorist law, in any state” is excluded

       from coverage. Id. We further note that the Empire Policy itself contains

       easily-readable typeface, is six pages in length, and states on the second page of

       the policy, under the heading “EXCLUSIONS,” that “Liability arising out of

       benefits payable under any uninsured or underinsured motorist law, in any

       state” is excluded from coverage. Id. at 96. Under the circumstances, we

       cannot say that the rule espoused in Curtis applies.


[21]   The Empire Policy purchased by the Friersons for SLP coverage did not

       provide UIM coverage to the Friersons. Accordingly, we conclude that the

       court erred when it denied Empire’s motion for summary judgment.5




       5
         Because we reverse the trial court’s denial of Empire’s motion for summary judgment, we need not address
       its arguments that: (A) the court treated the denial of Empire’s motion for summary judgment as a grant of
       summary judgment in favor of the Friersons on the issue of coverage and accordingly impermissibly limited
       the issues at trial to liability and damages; and (B) the court should have reduced its UIM exposure to zero
       because there should have been a limit of $50,000 imposed.

       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016                     Page 16 of 17
                                                     Conclusion

[22]   For the foregoing reasons, we grant Empire’s motion for summary judgment.


[23]   Reversed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1503-CT-126 | January 21, 2016   Page 17 of 17
