                                                                         FILED
                                                                    Nov 21 2017, 9:51 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
J. Thomas Vetne                                          Dennis F. Cantrell
Jones Obenchain, LLP                                     Keith D. Mundrick
South Bend, Indiana                                      Cantrell, Strenski & Mehringer, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Progressive Southeastern                                 November 21, 2017
Insurance Co.,                                           Court of Appeals Case No.
Appellant-Plaintiff,                                     32A05-1706-PL-1235
                                                         Appeal from the Hendricks
        v.                                               Superior Court
                                                         The Honorable Karen M. Love,
Empire Fire and Marine                                   Judge
Insurance Co.,                                           Trial Court Cause No.
Appellee-Defendant.                                      32D03-1603-PL-38




Robb, Judge.




Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017                 Page 1 of 19
                                Case Summary and Issue
[1]   Maria Rivera took her vehicle, which was insured by Progressive Southeastern

      Insurance Company (“Progressive”), to Terry Lee Honda for repairs. Terry

      Lee Honda provided Rivera with a courtesy car and requested she sign a

      “Rental Agreement for a Temporary Substitute Vehicle” (“Courtesy Car

      Agreement”). Terry Lee Honda insures its vehicles through Empire Fire and

      Marine Insurance (“Empire”). After Rivera had an accident in the courtesy car,

      Empire paid for the repairs and then sought to collect from Progressive, alleging

      Progressive was the primary insurer pursuant to the Courtesy Car Agreement.

      In turn, Progressive claimed that the Courtesy Car Agreement was an invalid

      rental agreement and the courtesy car was a loaned vehicle under Indiana law.


[2]   Progressive initiated this declaratory judgment action against Empire seeking

      an order stating: 1) Rivera was a permissive driver of a loaned vehicle; 2)

      Empire’s coverage was primary; and 3) Empire’s coverage must be exhausted

      before Progressive is obligated on any claim. In response, Empire filed a

      motion for arbitration pursuant to a preexisting arbitration agreement with

      Progressive. Progressive then filed an Amended Complaint, attempting to

      jettison issues subject to arbitration by asking the trial court to declare the

      courtesy car was a loaned vehicle under Indiana law. On cross-motions for

      summary judgment, the trial court concluded the Courtesy Car Agreement

      constituted a rental agreement and ordered any remaining dispute to

      arbitration.



      Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 2 of 19
[3]   Progressive now appeals, raising one issue for our review: whether the trial

      court erred in concluding the Courtesy Car Agreement constituted a rental

      agreement. Concluding the trial court erred in reaching the merits of the

      underlying claim because the dispute is subject to compulsory arbitration, we

      reverse in part, affirm in part, and remand to the trial court for entry of an order

      directing the parties to proceed to arbitration.



                            Facts and Procedural History                               1




[4]   On December 11, 2015, Rivera took her vehicle to Terry Lee Honda in Avon,

      Indiana, for service work. As part of the “Honda Courtesy Car Program,”

      Rivera was issued a Honda CR-V courtesy car to use while her vehicle was

      serviced. Before receiving the courtesy car, Rivera signed a contract titled,

      “Rental Agreement for a Temporary Substitute Vehicle” (“Courtesy Car

      Agreement”). Relevant to this appeal, the Courtesy Car Agreement provided:


              2. Rental: Consideration; Indemnity and Warranties. This is a
              contract for rental of the Vehicle. A fee You pay Us, or Our
              opportunity to service or repair Your vehicle and the benefits We
              receive for the service/repair work, is adequate consideration for
              rental of the Vehicle. We may repossess the Vehicle at Your
              expense without notice to You if the Vehicle is abandoned or
              used in violation of law or this Agreement. You agree to
              indemnify Us, defend Us and hold Us harmless from all claims,
              liability, costs and attorney fees We incur resulting from or



      1
       We heard oral argument in West Lafayette, Indiana in the Krannert Center for Executive Education at
      Purdue University on October 26, 2017. We thank Purdue University for their generous hospitality and
      commend counsel for their skilled and informative oral advocacy.

      Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017                 Page 3 of 19
        arising out of this Agreement or Your use of the Vehicle. We
        make no warranties, express, implied or apparent, regarding the
        Vehicle, no warranty of merchantability and no warranty that the
        Vehicle is fit for a particular purpose.


        ***


        4. Responsibility for Damage or Loss; Reporting to Police. You
        are responsible for theft of the Vehicle and damage to it whether
        or not You are at fault. . . .


        ***


        6. Insurance. You are responsible for all damage or loss You
        cause to others. You agree to provide auto liability, collision and
        comprehensive insurance covering You, Us and the Vehicle.
        Your insurance is primary. If You have no auto liability
        insurance in effect on the date of a loss, or if We are required by
        law to provide liability insurance, We will provide auto liability
        insurance (the “Policy”) that is secondary to any other valid and
        collectible insurance whether primary, secondary, excess or
        contingent. . . .


Appellant’s Appendix, Vol. II at 59. The Courtesy Car Agreement provided for

a daily rental rate of $35 but Terry Lee Honda neither collected the charge

when Rivera signed the contract, nor did it collect the charge when Rivera

returned the courtesy car. Terry Lee Honda did, however, receive $1,420 for

service work paid by Rivera’s vehicle warranty provider.




Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 4 of 19
[5]   Prior to the events that led to this litigation, both Progressive and Empire signed

      a “Special Arbitration Agreement” (“Arbitration Agreement”), administered by

      Arbitration Forums, Inc.2 The Arbitration Agreement provides:


                 Upon settlement of a claim or suit, signatory companies must
                 submit any unresolved disputes to Arbitration Forums,
                 Incorporated (herein after referred to as AF) where:


                          (a) each has issued a policy of casualty insurance
                             covering, or as a self-insured covers, one or more
                             parties asserted to be legally liable for an accident,
                             occurrence or event out of which a claim or suit arises;
                             or


                          (b) each has issued separate policies of property or casualty
                              insurance providing, or as a self-insured provides,
                              concurrent coverage to the same party or parties
                              asserted to cover an accident, occurrence or event out
                              of which a first or third party claim or suit for bodily
                              injury or property damage arises; or


                          (c) a workers compensation carrier or a self-insured seeks
                              to recover reimbursement of workers compensation
                              benefits from an alleged tortfeasor.


      Id., Vol. III at 75. Arbitration Forums, Inc., defines “settlement” as:


                 Settlement – (Special Arbitration) The final disposition of a claim
                 or suit wherein the claimant or plaintiff releases any and all




      2
          Progressive does not dispute the existence or general enforceability of the Arbitration Agreement.


      Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017                        Page 5 of 19
               causes of action against all alleged responsible parties involved in
               the Special Arbitration filing. . . .

      Id. at 86. Concurrent coverage is defined as:


               Concurrent Coverage – (Special Arbitration) Two or more
               policies of insurance and/or self-insureds providing coverage to
               the same party or parties or the same risk or risks for the same
               accident, occurrence, or event. Concurrent coverage includes
               primary/excess disputes.


      Id. at 85.


[6]   While driving the courtesy car, Rivera had an accident which caused minor

      damage to the vehicle. Empire made full payment for the damage, minus the

      deductible paid by Terry Lee Honda. Empire then sought repayment of

      $328.45 from Progressive, claiming Progressive was the primary insurance

      provider pursuant to the Courtesy Car Agreement.3


[7]   In response, Progressive claimed the Courtesy Car Agreement was invalid

      because Terry Lee Honda did not comply with the statutory requirements for

      rental agreements found in Indiana Code section 24-4-9-5.4 Progressive argued

      that because the Courtesy Car Agreement was unenforceable, the courtesy car




      3
       Rivera’s policy with Progressive included insurance for a “non-owned auto.” See Appellant’s App. Vol. II,
      at 37, 40.
      4
       Specifically, Progressive argued that Indiana Code section 24-4-9-5 requires “charge for use of the vehicle is
      made at a periodic rate …” to constitute a rental agreement. Because Terry Lee Honda never collected the
      $35 daily rental fee provided by the Courtesy Car Agreement, Progressive alleges Terry Lee Honda failed to
      “charge” as required by statute.

      Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017                       Page 6 of 19
       was a loaned vehicle under Indiana Code section 27-8-9-7(b), and Empire’s

       insurance was primary because Rivera was a permissive driver.5


[8]    On March 24, 2016, Progressive initiated the current litigation by filing its

       Complaint for Declaratory Judgment, seeking an order declaring: 1) Rivera was

       a permissive driver of a loaned vehicle; 2) Empire’s coverage was primary; and

       3) Empire’s coverage must be exhausted before Progressive is obligated on any

       claim. In response, Empire filed a motion for arbitration pursuant to the

       Arbitration Agreement and, in the alternative, Empire argued the Courtesy Car

       Agreement qualified as a rental or lease under Indiana law.


[9]    Attempting to jettison issues subject to arbitration, Progressive filed an

       Amended Complaint asking the court to declare that the Courtesy Car

       Agreement between Rivera and Terry Lee Honda was, as a matter of law, a

       loan and not a rental or lease. Both parties moved for summary judgment.

[10]   Following a hearing on April 7, 2017, the trial court issued its findings of fact

       and conclusions thereon granting summary judgment in favor of Empire and

       denying Progressive’s motion for summary judgment. The trial court

       concluded the Courtesy Car Agreement was a rental agreement as defined by

       Indiana Code section 24-4-9-5 and that any remaining dispute was subject to

       arbitration. Progressive now appeals.




       5
           Indiana Code section 27-8-9-6(d) provides:

                “Permittee” means any person who is granted permission to operate a motor vehicle by the
                owner of the motor vehicle.

       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017                    Page 7 of 19
                                  Discussion and Decision
                                       I. Standard of Review
[11]   Our standard of review in matters of summary judgment is the same as the trial

       court: summary judgment is appropriate only where the evidence shows there

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

       judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

       2014); Ind. Trial Rule 56(C). Cross-motions for summary judgment do not

       alter our standard of review and we consider each motion separately to

       determine whether the moving party is entitled to judgment as a matter of law.

       Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012). We review de novo the trial

       court’s interpretation of a contract, Showboat Marina Casino P’ship v. Tonn &

       Blank Constr., 790 N.E.2d 595, 597 (Ind. Ct. App. 2003), as well as orders

       compelling arbitration, Brumley v. Commonwealth Bus. Coll. Educ. Corp., 945

       N.E.2d 770, 775 (Ind. Ct. App. 2011).


                                   II. Agreement to Arbitrate
[12]   Empire contends the dispute is subject to arbitration while Progressive argues

       the dispute is outside the scope of the Arbitration Agreement and, even if the

       dispute is within the scope, Empire failed to meet its burden to compel

       arbitration.




       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 8 of 19
                            A. Scope of the Arbitration Agreement
[13]   Although often comingled, we view Progressive’s argument regarding the scope

       of the Arbitration Agreement as consisting of two, separate components. First,

       Progressive argues that its action is outside the scope of the Arbitration

       Agreement because it sought a determination of whether the courtesy car was a

       loan, a rental, or a lease, rather than a determination of priority. Second,

       Progressive contends that declaratory judgment actions are outside the scope of

       the Arbitration Agreement.


[14]   Indiana recognizes a strong policy favoring enforcement of arbitration

       agreements. Northwestern Mut. Life Ins. Co. v. Stinnett, 698 N.E.2d 339, 343 (Ind.

       Ct. App. 1998). However, because arbitration is a matter of contract, a party

       cannot be required to submit to arbitration unless he or she has agreed to do so.

       Int’l Creative Mgmt., Inc. v. D & R Entm’t Co. Inc., 670 N.E.2d 1305, 1311 (Ind.

       Ct. App. 1996), trans. denied. In other words, arbitration is a method to resolve

       disputes, but only disputes that the parties have mutually agreed to submit to

       arbitration.


                                       1. Issue of Concurrent Coverage

[15]   We first consider the scope of the Arbitration Agreement. Whether parties

       have agreed to arbitrate a dispute is a matter of contract interpretation and the

       parties’ intent. Am. Arbitration Ass’n v. North Miami Cmty. Sch., 866 N.E.2d 296,

       301 (Ind. Ct. App. 2007). In determining whether parties agreed to arbitrate a

       particular dispute, the court decides whether the dispute, on its face, is within


       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 9 of 19
       the language of the arbitration provision. Chesterfield Mgmt., Inc. v. Cook, 655

       N.E.2d 98, 101 (Ind. Ct. App. 1995), trans. denied. A reviewing court must

       attempt to determine the intent of the parties at the time the contract was made

       by examining the language used to express their rights and duties. Anonymous,

       M.D. v. Hendricks, 994 N.E.2d 324, 329 (Ind. Ct. App. 2013). Additionally,

       “[w]hen construing arbitration agreements, every doubt is to be resolved in

       favor of arbitration,” and the “parties are bound to arbitrate all matters, not

       explicitly excluded, that reasonably fit within the language used.” Mislenkov v.

       Accurate Metal Detinning, Inc., 743 N.E.2d 286, 289 (Ind. Ct. App. 2001). We do

       not, however, extend arbitration agreements beyond the clear language of the

       agreement and we will not extend arbitration agreements by construction or

       implication. Id.


[16]   Empire contends that Progressive asked the trial court to determine priority in a

       concurrent coverage dispute and this is therefore “precisely the type of matter

       that is required to be arbitrated under the [Arbitration Agreement].” Brief of

       Appellee at 11. In support of its argument, Empire points to the language of the

       Arbitration Agreement and alleges that once a settlement occurred and it

       sought to collect a remaining $328.45 from Progressive, the dispute became a

       dispute of concurrent coverage subject to compulsory arbitration.


[17]   To determine whether a dispute falls within the provisions of an arbitration

       agreement we turn to the contract’s plain language. Chesterfield Mgmt., 655

       N.E.2d at 101. Here, the Arbitration Agreement provides that arbitration is

       compulsory where both parties have “issued separate policies of property . . .

       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 10 of 19
       insurance . . . or . . . concurrent coverage to the same party or parties asserted to

       cover an accident, occurrence or event out of which a . . . claim or suit for . . .

       property damage arises.” Appellant’s App., Vol. III at 75. Through concurrent

       coverage—Progressive’s coverage of Rivera and Empire’s coverage of Terry Lee

       Honda—both parties allege the other’s policy covers an accident out of which

       property damage arose, i.e., Rivera’s accident in the courtesy car.


[18]   Turning to the parties’ intent, the Arbitration Agreement reveals that

       Progressive and Empire sought to resolve disputes of concurrent coverage by

       arbitration. Indeed, the Arbitration Agreement is written broadly and includes

       only six enumerated exclusions, none of which are alleged to be present here.

       See Appellant’s App., Vol. III at 75. Furthermore, the contract provides:


               The decision of the arbitrator(s):


               (a) shall be based on local jurisdictional law consistent with
                   accepted claim practices.
               (b) is final and binding without the right of rehearing or appeal
                   except when allowed . . . .


       Id. (emphasis added).


[19]   Accordingly, the dispute presented, one of concurrent coverage asserted to

       cover an accident out of which property damage arose, is within the plain

       language of the Arbitration Agreement. Given the Arbitration Agreement’s

       plain language, limited exclusions, and the parties’ intent to resolve such

       disputes by compulsory arbitration, we conclude that Empire and Progressive

       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 11 of 19
       agreed to arbitrate the determination of priority in concurrent coverage

       disputes.


                                             2. Question of Priority

[20]   Next, we consider whether Progressive’s action is outside the scope of the

       Arbitration Agreement because it sought a determination that the courtesy car

       was a loan. Through its Amended Complaint for Declaratory Judgment,

       Progressive asked the trial court to enter an order declaring:


               (A) that the arrangement Ms. Rivera had with Terry Lee Honda
                  was, as a matter of Indiana law, not a rental agreement or a
                  lease agreement;


               (B) that under Indiana law, Terry Lee Honda loaned the 2016
                  Honda CRV to Maria Rivera; and that


               (C) the Court grant Progressive all other just and proper relief in
                  the premises.


       Appellant’s App., Vol. II at 78.


[21]   Insurance coverage for loaned vehicles are governed by Indiana Code section

       27-8-9-7(b), which provides:


               In any case arising from a permittee’s use of a motor vehicle for
               which the owner of the vehicle has motor vehicle insurance
               coverage, the owner’s motor vehicle insurance coverage is
               considered primary if both of the following apply:




       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 12 of 19
                        (1) The vehicle, at the time damage occurred, was
                        operated with the permission of the owner of the motor
                        vehicle.


                        (2) The use was within the scope of the permission
                        granted.


       Under Indiana Code section 27-8-9-7(b), Empire’s coverage would be

       considered primary as the motor vehicle insurance coverage of the owner of the

       courtesy car, Terry Lee Honda.


[22]   Because Progressive asked the trial court to declare the courtesy car was a

       loaned vehicle and Empire’s coverage would therefore be primary, Empire

       characterizes Progressive’s Amended Complaint for Declaratory Judgment as

       an attempt to sidestep the Arbitration Agreement by asking the trial court to

       declare, “‘One fourth plus one fourth equals two fourths,’ but ask[ing] the court

       to refrain from declaring, ‘Two fourths equal one half.’” Br. of Appellee at 15.


[23]   We agree with Empire that Progressive poses a question of priority by another

       name. Contrary to Progressive’s repeated assertions on appeal that it asked the

       trial court to determine whether the courtesy car was loan, a rental, or a lease, it

       did not. Rather, Progressive asked the trial court to declare “that under

       Indiana law, Terry Lee Honda loaned the [courtesy car] to Maria Rivera[.]”

       Appellant’s App., Vol. II at 78. The law of priority is clear, if the courtesy car

       was a loaned vehicle, Empire’s coverage is primary. See Ind. Code § 27-8-9-

       7(b). In our view, Progressive presented the trial court with a concurrent

       coverage dispute and sought a determination of priority. As discussed above,

       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 13 of 19
       such questions are reserved for compulsory arbitration and Progressive’s

       attempt to circumvent the Arbitration Agreement must fail.


                                            3. Declaratory Judgment

[24]   Progressive next contends that its declaratory judgment action is outside the

       scope of the Arbitration Agreement and that even if it was not, it is “perfectly

       fitting for Indiana’s trial judges to declare what Indiana law is, even when

       another forum might be able to do the same work.” Appellant’s Reply Br. at 8.


[25]   Progressive seeks a declaratory judgment pursuant to the Uniform Declaratory

       Judgment Act. The Act provides Indiana courts have the “power to declare

       rights, status, and other legal relations whether or not further relief is or could

       be claimed[,]” Ind. Code § 34-14-1-1, under a “written contract, or other

       writings constituting a contract, or whose rights, status, or other legal relations

       are affected by a statute, municipal ordinance, [or] contract,” Ind. Code § 34-

       14-1-2.


[26]   We find Progressive’s argument regarding declaratory judgment actions

       inconsistent with Indiana’s strong policy in favor of enforcing arbitration. See

       Nightingale Home Healthcare, Inc. v. Helmuth, 15 N.E.3d 1080, 1084 (Ind. Ct.

       App. 2014) (“[I]t is well settled that Indiana recognizes a strong policy favoring

       enforcement of arbitration agreements.”). Arbitrators are routinely called upon

       to interpret Indiana law. See Wright v. City of Gary, 963 N.E.2d 637, 645 (Ind.

       Ct. App. 2012), trans. denied. (noting that only where an arbitrator manifestly

       disregards the law may a reviewing court interfere); Fiducial Inv. Advisors v.


       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 14 of 19
       Patton, 900 N.E.2d 53, 60 (Ind. Ct. App. 2009) (noting that when we review an

       arbitration, a mistake of law or erroneous interpretation of the law does not

       constitute an act in excess of the arbitrator’s powers). Moreover, allowing

       declaratory judgment actions would undermine the purpose of arbitration,

       which is to afford parties an opportunity to reach a disposition in an easier,

       more expeditious manner than by litigation.6 Bopp v. Brames, 677 N.E.2d 629,

       631 (Ind. Ct. App. 1997).


[27]   Accordingly, we conclude Progressive’s declaratory judgment action cannot be

       said to be outside the scope of the Arbitration Agreement where there is

       evidence the parties intended for an arbitrator to decide matters of law.7

       Indeed, if we were to allow such artful pleading, no party would be bound to

       arbitrate disputes involving issues of statutory interpretation.


[28]   However, the parties were free to exclude declaratory judgment actions or

       issues requiring statutory interpretation from the Arbitration Agreement. In

       fact, the parties were free to exclude anything they wished. Ransburg v. Richards,

       770 N.E.2d 393, 395 (Ind. Ct. App. 2002) (“As a general rule, the law allows

       persons of full age and competent understanding the utmost liberty of

       contracting, and their contracts, when entered into freely and voluntarily, are




       6
         The case before us, involving a dispute over $328.45, is a prime example of the costly litigation arbitration is
       intended to avoid.
       7
         The Arbitration Agreement provides: “The decision of the arbitrator(s): (a) shall be based on local
       jurisdictional law consistent with accepted claim practices.” Appellant’s App., Vol. III at 75.



       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017                        Page 15 of 19
       enforced by the courts.”); Bopp, 677 N.E.2d at 632 (“[A]rbitration arises

       through contract, and the parties are essentially free to define for themselves

       what questions may be arbitrated, remedies the arbitrator may afford, and the

       extent to which a decision must conform to the general principles of law.”).

       They, of course, did not, and we must resolve every doubt in favor of

       arbitration. Mislenkov, 743 N.E.2d at 289.


[29]   In sum, we find Progressive poses a question of priority by another name.

       Progressive blatantly asked the trial court to determine priority in its original

       complaint, an issue which falls under the provisions of the Arbitration

       Agreement. Then, through artful pleading of the Amended Complaint,

       Progressive asked the trial court to declare the courtesy car was a loaned

       vehicle. Because the law of priority is clear, despite amending its complaint,

       Progressive was still seeking a determination that Empire’s coverage was

       primary. Had Progressive not contracted away its right to seek declaratory

       judgment, that tactic might have been successful. However, as it stands,

       Progressive’s argument is one of form over substance and the dispute is still

       subject to arbitration.


                                 B. Burden to Compel Arbitration
[30]   Progressive also argues Empire failed to meet its burden in seeking to compel

       arbitration. Under Indiana contract law, the party seeking to compel

       arbitration has the burden of demonstrating the existence of an enforceable

       arbitration agreement. Wilson Fertilizer & Grain, Inc. v. ADM Milling Co., 654


       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 16 of 19
       N.E.2d 848, 849 (Ind. Ct. App. 1995), trans. denied. Then, the movant must

       demonstrate that the disputed matter is the type of claim the parties agreed to

       arbitrate. Brumley, 945 N.E.2d at 776.


[31]   Progressive does not dispute it is a signatory of the Arbitration Agreement.

       Instead, Progressive maintains that Empire failed to meet its burden by relying

       on hearsay evidence, in the form of the “Frequently Asked Questions” page of

       Arbitration Forums, Inc.’s website, to show that the disputed matter is a type of

       claim the parties agreed to arbitrate. Notwithstanding hearsay concerns,

       Empire also argued that the specific dispute fell within the plain language of the

       Arbitration Agreement and that the issue was nothing more than one of

       concurrent coverage and a primary/excess dispute. In support thereof, Empire

       designated the Arbitration Agreement along with an affidavit supporting the

       fact that both Progressive and Empire were signatories to the Arbitration

       Agreement. Appellant’s App., Vol. III at 68. This evidence alone is sufficient

       to satisfy Empire’s burden to demonstrate that the specific dispute is subject to

       arbitration.


[32]   Satisfied that Empire and Progressive intended to arbitrate the dispute

       Progressive brought in the trial court, such arbitration must be compelled.

       TWC, Inc., v. Binford, 898 N.E.2d 451, 453 (Ind. Ct. App. 2008) (“Once the

       court is satisfied that the parties contracted to submit their dispute to

       arbitration, the court is required by statute to compel arbitration.”).




       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 17 of 19
                                           C. Rental Agreement
[33]   Finally, Progressive argues the trial court erred by declaring the Courtesy Car

       Agreement a rental agreement. We agree, but for reasons different than

       Progressive posits.


[34]   The trial court found that the Courtesy Car Agreement was a valid rental

       agreement as defined by Indiana Code section 24-4-9-5 before ordering any

       remaining issues to arbitration. In doing so, the court effectively denied part of

       Empire’s motion for summary judgment—i.e., the argument that the entire

       dispute was subject to arbitration. Most of the parties’ arguments on summary

       judgment and now on appeal involve the question of whether the Courtesy Car

       Agreement, and its underlying transaction, was a rental under Indiana Code

       section 24-4-9-5, a loan under Indiana Code section 27-8-9-7, or a lease under

       Indiana Code section 27-8-9-9. Because the Arbitration Agreement controls the

       dispute presented, that question must remain for an arbitrator. See St. John

       Sanitary Dist. v. Town of Schererville, 621 N.E.2d 1160, 1162 (Ind. Ct. App. 1993)

       (noting that when determining whether a dispute is subject to arbitration “the

       court will not rule on the potential merits of the underlying claims.”). The trial

       court erred in concluding otherwise.



                                               Conclusion
[35]   For the reasons discussed above, we conclude that the Arbitration Agreement

       controls the dispute now before us. Accordingly, we reverse the trial court’s

       finding that the Courtesy Car Agreement was a rental agreement, affirm the
       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 18 of 19
       trial court’s order of partial arbitration, and remand to the trial court to enter an

       order compelling the entire dispute to arbitration.


[36]   Affirmed in part, reversed in part, and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 32A05-1706-PL-1235 | November 21, 2017   Page 19 of 19
