MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Mar 26 2018, 9:16 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Paul B. Overhauser                                       David L. Taylor
April M. Jay                                             Misti Presnell DeVore
Overhauser Law Offices, LLC                              Taylor DeVore P.C.
Greenfield, Indiana                                      Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Victor Spina,                                            March 26, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         55A05-1710-CT-2401
        v.                                               Appeal from the Morgan Circuit
                                                         Court
Owners Insurance Company,                                The Honorable Daniel F. Zielinski,
Appellee-Defendant.                                      Special Judge
                                                         Trial Court Cause No.
                                                         55C01-1507-CT-1181



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018              Page 1 of 6
                                          Case Summary
[1]   Appellant-Plaintiff Victor Spina appeals following the trial court’s

      determination that his homeowner’s insurance provider, Appellee-Defendant

      Owners Insurance Company (“Owners”), did not owe a duty to defend him in

      an underlying lawsuit relating to his business dealings. Spina contends that

      because he requested a jury trial shortly after initiating his lawsuit against

      Owners, the trial court erroneously violated his constitutional right to a jury

      trial by making a judicial determination as to the question of whether Owners

      owed him a duty to defend. Because applicable authority indicates that the

      question of whether an insurance provider owes an insured a duty to defend is

      to be determined by the court, we affirm.



                            Facts and Procedural History
                    A. Facts Relating to the Underlying Lawsuit
[2]   On January 26, 2015, DirecTV, LLC (“DirecTV”) filed a lawsuit against Spina

      and his brother, William Spina, individually and in their official capacities as

      principals in a company owning Texas Corral restaurants in Martinsville and

      Shelbyville, Indiana (“the DirecTV lawsuit”). The DirecTV lawsuit alleged that

      Spina and his brother had violated both federal and state law by committing

      acts “that constitute theft, misappropriation and/or unauthorized interception

      and display of DirecTV satellite signals and programming … at Texas Corral

      restaurants … operated at Martinsville and Shelbyville, Indiana for commercial



      Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018   Page 2 of 6
      benefit without a valid commercial account [and] without paying a commercial

      rate.” Appellant’s App. Vol. II, p. 115.


             B. Facts Relating to Spina’s Claims Against Owners
[3]   On April 1, 2015, Spina filed a claim under his homeowner’s insurance policy

      relating to the DirecTV lawsuit. After Owners denied coverage under the

      homeowner’s policy, Spina filed a lawsuit against Owners alleging breach of

      contract, breach of fiduciary duty, and bad faith and seeking injunctive relief.

      Spina also filed a request for a jury trial. Owners subsequently filed a

      counterclaim in which it requested a declaratory judgment as to whether it had

      a duty to defend Spina in the DirecTV lawsuit under the terms of Spina’s

      homeowner’s policy.


[4]   On October 13, 2016, Owners filed a motion to bifurcate the question of

      whether it had a duty to defend Spina in the DirecTV lawsuit from the

      remaining claims levied in Spina’s complaint. Spina subsequently filed a brief

      in opposition to Owners’s motion to bifurcate.


[5]   On or about November 1, 2016, the trial court issued an order granting

      Owners’s motion to bifurcate trial. This order indicated that the question of

      coverage would first be determined by a bench trial. The order set the bench

      trial on the coverage issue for January 3, 2017. On November 14, 2016, Spina

      filed a motion in which it requested that the trial court reconsider the

      bifurcation order and set the entire matter for a single jury trial. The trial court

      denied Spina’s motion to reconsider in an order dated December 22, 2016.

      Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018   Page 3 of 6
[6]   The trial court conducted a bench trial solely on the question of coverage on

      June 29, 2017. At the conclusion of this trial, the trial court concluded that

      Owners did “not owe a duty to defend or indemnify Spina against the claims of

      DirecTV[.]” Appellant’s App. Vol. II, p. 126. This appeal follows.



                                 Discussion and Decision
[7]   The parties’ numerous claims and arguments on appeal can be succinctly

      restated as whether the trial court violated Spina’s constitutional right to a jury

      trial by making a judicial determination as to whether Owners had a duty to

      defend Spina in the DirecTV lawsuit. Generally,


              [a]n insurance company’s duty to defend is broader than its duty
              to indemnify. Seymour Mfg. Co. v. Commercial Union Ins. Co., 665
              N.E.2d 891, 892 (Ind. 1996). An insurer, after making an
              independent determination that it has no duty to defend, must
              protect its interest by filing a declaratory judgment action for a
              judicial determination of its obligations under the policy or defend
              its insured under a reservation of rights. Liberty Mut. Ins. Co. v.
              Metzler, 586 N.E.2d 897, 902 (Ind. Ct. App. 1992), trans. denied.


      Emp’rs Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1025 (Ind. Ct.

      App. 1999) (emphasis added).


[8]   A judicial determination of whether an insurer owes the insured a duty to

      defend is appropriate because in order to make such a determination, the court

      must interpret the terms of the insurance policy, i.e., the contract, agreed to by

      the parties. Interpretation of an insurance contract is a matter of law. Burkett v.


      Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018   Page 4 of 6
       Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind. Ct. App. 2000); Westfield Cos. v.

       Rovan, Inc., 722 N.E.2d 851, 855 (Ind. Ct. App. 2000). Issues of law “are not

       the proper subject of jury analysis.” Winney v. Bd. of Comm’rs of Vigo Cty., 174

       Ind. App. 624, 628, 369 N.E.2d 661, 663 (1977). Therefore, when a party files

       a motion for declaratory relief, issues of law within the claim “will be

       determined by the court, either by a separate decision or by instructions to the

       jury.” Id. at 629, 369 N.E.2d at 664.


[9]    By seeking a declaratory judgment as to whether it had a duty to defend Spina

       and requesting the bifurcation of the issue from the other claims levied against it

       by Spina, Owners sought a judicial determination as to whether it had a duty to

       defend Spina before proceeding to trial on the claims asserted by Spina. The

       trial court conducted a bench trial focused solely on this question. The record

       reveals that had the trial court found that Owners owed Spina a duty to defend,

       the matter would have proceeded to a jury trial on Spina’s claims. However,

       following this bench trial, the trial court determined that Owners did not have a

       duty to defend Spina. The trial court did not make any findings or conclusions

       thereon relating to any other issue. Given the applicable authority indicating

       that a determination as to whether an insurance company owes an insured a

       duty to defend is to be made by the trial court, see Emp’rs Ins. of Wausau, 716

       N.E.2d at 1025, we conclude that the trial court did not violate Spina’s

       constitutional right to a jury trial by making such a determination.


[10]   The judgment of the trial court is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018   Page 5 of 6
Robb, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018   Page 6 of 6
