                                                                                FILED
                                                                           May 16 2018, 8:54 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ryan O. Farner                                            Richard R. Skiles
Thomas E. Rosta                                           Carlo T. Girolamo
Metzger Rosta, LLP                                        Skiles Detrude
Noblesville, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

American Access Casualty                                  May 16, 2018
Company,                                                  Court of Appeals Case No.
Appellant-Defendant,                                      29A02-1712-CT-2792
                                                          Appeal from the Hamilton
        v.                                                Superior Court
                                                          The Honorable Jonathan Brown,
Cincinnati Insurance Company,                             Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          29D02-1312-CT-11485



Riley, Judge.




Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018                       Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, American Access Casualty Company (American Access),

      appeals the trial court’s denial of its motion for summary judgment on

      Appellee-Plaintiff’s, Cincinnati Insurance Company (Cincinnati Insurance),

      third party Complaint for declaratory judgment.


[2]   We affirm.


                                                     ISSUE
[3]   American Access presents us with one issue on appeal, which we restate as:

      Whether the business use exception in American Access’ insurance policy bars

      coverage to Cincinnati Insurance.


                       FACTS AND PROCEDURAL HISTORY
[4]   On August 4, 2013, Roland Hall (Hall), while riding a bicycle along

      Cumberland Road, was struck by a vehicle driven by Jairiel Berfect (Berfect).

      The vehicle driven by Berfect was owned by Demelece Stewart (Stewart). At

      all times relevant to this case, both Berfect and Stewart were insured by

      American Access under separate insurance policies. At the time of the

      accident, Berfect was employed part-time by Advantage Home Health Care

      (Advantage Home) as a home health aid and was scheduled to visit two

      patients. When the incident occurred, Berfect had concluded one appointment

      and was on her way to work her shift at a second patient’s residence.

      Advantage Home “does not compensate home health aides for their travel time

      to patient’s [sic] homes” or pay mileage for travel time. (Appellee’s App. Vol.
      Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018   Page 2 of 11
      II, p. 30). “Home health aide employees are paid only for on premise services

      performed at a patient’s residence.” (Appellee’s App. Vol. II, p. 30).

      Advantage Home is insured by Cincinnati Insurance.


[5]   Hall filed a complaint against Berfect and Advantage Home, alleging damages

      resulting from the collision. 1 On February 6, 2016, Advantage Home tendered

      its request to American Access to provide a defense to Advantage Home in the

      cause against Hall. American Access did not respond to the tender request. On

      October 18, 2016, in an effort to determine several coverage issues, Cincinnati

      Insurance, as Advantage Home’s insurer, filed a third party Complaint for

      declaratory judgment, seeking a judgment as to American Access’ defense and

      indemnity obligations to Advantage Home and the priority of coverage as to the

      respective Berfect and Stewart policies and Cincinnati’s insurance policy, and

      asserting, in part, that American Access had a duty to defend Advantage Home

      as “Advantage [Home] is an insured under the Berfect Policy[.]” (Appellant’s

      App. Vol. II, p. 32).


[6]   On January 27, 2017, Cincinnati Insurance filed a motion for summary

      judgment with respect to the coverage issues. The trial court granted the

      motion in the third party action and concluded that: (1) the American Access

      policy issued to Stewart provided primary coverage for Berfect and Advantage

      Home; (2) Berfect and Advantage Home were insureds under the American




      1
          The claims between Hall and Berfect were settled on April 18, 2017, and are not part of this appeal.


      Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018                             Page 3 of 11
      Access policy issued to Berfect; (3) as an insured under both the Stewart policy

      and the Berfect policy, American Access owed Advantage Home a defense of

      the claims brought by Hall; and (4) Berfect is not an insured under the

      Cincinnati Insurance policy issued to Advantage Home.


[7]   On May 2, 2017, American Access filed its motion for summary judgment,

      together with a memorandum of law, and designation of evidence, contending

      that American Access owed no duty to provide coverage as the policy excludes

      coverage “if the insured vehicle in question is being used for business

      purposes.” (Appellee’s App. Vol. II, p. 3). On September 7, 2017, Cincinnati

      Insurance filed its response in opposition, memorandum of law, and

      designation of evidence. On October 30, 2017, after a hearing, the trial court

      issued its Order, denying American Access’ motion for summary judgment.

      The trial court concluded, in pertinent part:


              The American Access policy contains an exclusion from
              coverage if the insured vehicle was being used for business use at
              the time of a crash. The provision in question is as follows:


                       “This policy does not apply to and does not provide
                       coverage under Part A – ‘Bodily Injury Liability and
                       Property Damage Liability’ Coverage for: . . . (b) any
                       automobile while used in the delivery, or any activity
                       associated with delivery, of food, mail, newspapers,
                       magazines, or packages for an employer or business
                       or in any trade or business.


              * * * * The [c]ourt finds the interpretation that harmonizes the
              terms of this exclusion is that the exclusion applies when the

      Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018    Page 4 of 11
              automobile is being used in delivery situations for a business. At
              the time of the accident, Berfect was not delivering anything in
              particular to her next customer. She was not using the vehicle for
              the delivery of food, mail, newspapers, magazines or packages.
              These are activities for which coverage would absolutely be
              excluded. Berfect was using the vehicle to travel between work
              locations for the benefit of her employer and herself. This fact is
              not disputed by the parties.


              Further, the [c]ourt must also harmonize the final clause of the
              provision. In so doing, this [c]ourt interprets the final clause of
              the provision to be a reference back to the delivery of goods.
              Namely, the section that states “an employer or business or in
              any trade or business” references back to the delivery element of
              the provision, for which nothing was being physically delivered
              by Berfect to the subsequent location she was reporting to for
              work. Berfect was not being paid during her interim period
              between job assignments nor was she delivering goods.


              This [c]ourt is not holding that American Access cannot have a
              business-use exception in a policy, just that such exception needs
              to be set forth more clearly and not be ambiguous.


      (Appellant’s App. Vol. II, pp. 23-25).


[8]   American Access now appeals. Additional facts will be provided if 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,
      Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018       Page 5 of 11
       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.

       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 entered 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.

       Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018       Page 6 of 11
                                             II. Designated Evidence


[11]   Prior to turning to the merits of this case, we need to address a contention

       between both parties with respect to the evidence necessary to be included in

       the Appellant’s Appendix. Contending that the sole issue before this court is

       the interpretation of the policy’s exclusion clause and concerned about

       “overwhelming the Court of Appeals with extra items that are completely

       unnecessary to resolution of the issue,” American Access provided in its

       Appendix only the chronological case summary, the trial court’s Order, the

       third party Complaint, and American Access’ insurance policy. (Appellant’s

       Reply Br. p. 8). American Access maintains that no other evidence is necessary

       to decide the issue and therefore all other submissions are irrelevant. However,

       should other evidence be required, American Access maintains that “Cincinnati

       [Insurance] included all such material in their appendix.” (Appellant’s Reply

       Br. p. 10).


[12]   The purpose of the appendix in civil appeals it to provide us “only those parts of

       the record on appeal that are necessary for the Court to decide the issues

       presented.” Ind. Appellate Rule 50(A)(1). “The appellant’s Appendix shall

       contain . . . copies of the following documents . . . (f) pleadings and other

       documents from the Clerk’s Record in chronological order that are necessary

       for resolution of the issues raised on appeal.” App. R. 50(A)(2)(f). When

       reviewing the grant of a motion for summary judgment, we may consider only

       those portions of the pleadings, depositions, and any other matter specifically

       designated to the trial court for purposes of the motion for summary judgment.

       Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018   Page 7 of 11
       SLR Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193, 198 (Ind. Ct. App. 2001).

       Thus, when appealing the grant or denial of a motion for summary judgment, it

       is incumbent on the appellant to include “within their appellant’s appendix all

       documents relating to the disposition of the motion for summary judgment,

       including any documents that [appellee] designated and filed with the trial

       court.” Kelly v. Levandowski, 825 N.E.2d 850, 856 (Ind. Ct. App. 2005), trans.

       denied. In other words, American Access’ Appendix falls woefully short as it

       omits the motion for summary judgment, the response thereto, the parties’

       respective memoranda, and the designated evidence. Even though Cincinnati

       Insurance submitted an Appellee’s Appendix, which was complete and

       contained all designated materials necessary for this court’s review, we caution

       American Access that it is the Appellant’s obligation to present an adequate

       record on appeal to permit a fair and intelligent review of the issue before us.

       See Rausch v. Reinhold, 716 N.E.2d 993, 1002 (Ind. Ct. App. 1999), trans. denied.


                                            II. Exclusion of Coverage


[13]   Turning to the merits of American Access’ argument, the insurance company

       contends that although Cincinnati Insurance is recognized as an insured under

       its policy, coverage is nevertheless precluded due to the business use exclusion.

       Insurance policies are governed by the same rules of construction as other

       contracts. Briles v. Wausau Ins. Companies, 858 N.E.2d 208, 213 (Ind. Ct. App.

       2006). As with other contracts, the interpretation of an insurance policy is a

       question of law. Id. When interpreting an insurance policy, our goal is to

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

       Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018   Page 8 of 11
       Id. 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. Id. If the language is clear and unambiguous, we give the language

       its plain and ordinary meaning. Id. An ambiguity exists where a provision is

       susceptible to more than one interpretation and reasonable persons would differ

       as to its meaning. Id. However, an ambiguity does not exist merely because

       the parties proffer differing interpretations of the policy language. Id. We must

       accept an interpretation of the contract language that harmonizes the

       provisions, rather than one that supports conflicting versions of the provisions.

       Id. Additionally, the power to interpret contracts does not extend to changing

       their terms and we will not give insurance policies an unreasonable construction

       to provide additional coverage. Id.


[14]   In the case at bar, the insurance policy excludes from coverage:


               Any automobile while used in the delivery, or any activity
               associated with delivery, of food, mail, newspapers, magazines,
               or packages for an employer or business or in any trade or
               business[.]


       (Appellant’s App. Vol. II, p. 41). Focusing on the language of the business use

       exclusion, American Access contends that “[t]he first few clauses of the

       exclusion are meant to identify specific instances the exclusion is meant to

       cover (i.e. delivery of food, mail, etc.) and then the last clause is meant as a

       catch all to cover all other non-listed trade or business activities (i.e. or in any

       trade or business).” (Appellant’s Br. p. 7). Claiming that Berfect was using the


       Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018      Page 9 of 11
       vehicle for business at the time of the collision, American Access maintains that

       it can deny coverage. Like the trial court, we are not persuaded.


[15]   If the exclusion, as American Access claims, bars coverage every time a vehicle

       is being used for business purposes, it logically includes the situation when the

       vehicle is being used for delivery for a business. Such interpretation would

       render the beginning of the exclusion superfluous and meaningless. Rather, in

       order to harmonize all the terms of the exclusion, we find that the final clause

       “any trade or business”—especially in the absence of a comma—references

       back to the initial part of the clause, “delivery, or any activity associated with

       delivery[.]” (Appellant’s App. Vol. II, p. 41). As such, no coverage is offered

       when the vehicle is used in the delivery of items for an employer or business or

       in a trade or business—with ‘business’ qualifying ‘employer’ and ‘trade.’


[16]   Here, it is undisputed that Berfect was not delivering anything. At the time of

       the accident, she was driving from one patient to the next. Moreover, even if

       we were to interpret the exclusion as encouraged by American Access, the

       business use exclusion would still not bar coverage. Pursuant to her

       employment with Advantage Home, Berfect’s traveling expenses are not

       reimbursed; instead, she is paid only for on-premises services performed at a

       patient’s residence. Thus, her time and expense to drive from one patient to the

       next are not within her employment remuneration. Accordingly, in the

       situation before us, the business use exclusion of American Access’ policy has

       no application. “It is well settled law that a condition or exclusion in an

       insurance policy must clearly and unmistakably bring within its scope the

       Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018   Page 10 of 11
       particular act or omission that will bring the condition or exclusion into play in

       order to be effective, and coverage will not be excluded or destroyed by an

       exclusion or condition unless such clarity exists.” Asbury v. Indiana Union Mut.

       Ins. Co., 441 N.E.2d 232, 241 (Ind. Ct. App. 1982). Therefore, we affirm the

       trial court’s denial of American Access’ motion for summary judgment. 2


                                                   CONCLUSION
[17]   Based on the foregoing, we conclude that the business use exception in

       American Access’ insurance policy is ambiguous and does not bar coverage to

       Cincinnati Insurance.


[18]   Affirmed.


[19]   May, J. and Mathias, J. concur




       2
         An unpublished memorandum decision by the Appellate Court of Illinois in American Access Cas. Co. v.
       Rodriguez, 2014 WL 527307 (Ill Ct. App., Febr. 6, 2014), analyzed the same exclusion under nearly identical
       circumstances and rejected the same argument made by American Access in the instant case. Rodriguez was
       driving her personal vehicle from one meeting for her employer to another meeting when she struck a
       pedestrian. In affirming the trial court’s conclusion that the exclusion was ambiguous, the Appellate Court of
       Illinois addressed the ambiguity in the exclusion as follows:
                   At first glance, it appears the policy exclusion at issue here only encompasses a delivery-use
                   exclusion to coverage, as each separate exclusion appears to be separated by subparagraphs
                   and not combined within subparagraphs. However, a closer look at the language of
                   subsection (b) reveals that it is unclear whether the phrase “or in any trade or business” is
                   intended to be separate from the rest of the delivery-use exclusion encompassed in
                   subsection (b), thereby acting as a broad business-use exclusion, or whether the “or in any
                   trade or business” phrase modifies the language in subsection (b) to include exclusions on
                   deliveries in “any trade or business.” As such, we find that the language if the exclusion in
                   subsection (B) of the [American Access] policy is susceptible to more than one reasonable
                   interpretation and, therefore, is ambiguous.
       Id. at 3.

       Court of Appeals of Indiana | Opinion 29A02-1712-CT-2792 | May 16, 2018                              Page 11 of 11
