Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                ATTORNEYS FOR APPELLEE:

SARAH E. RESER                                         RICHARD P. SAMEK
Glaser & Ebbs                                          DIANA C. BAUER

                                                                                 FILED
Fort Wayne, Indiana                                    Carson Boxberger LLP
                                                       Fort Wayne, Indiana
                                                                              Dec 17 2012, 9:25 am

                               IN THE                                                 CLERK
                                                                                    of the supreme court,

                     COURT OF APPEALS OF INDIANA                                    court of appeals and
                                                                                           tax court




CHARLES KNIGHT,                                        )
                                                       )
       Appellant-Plaintiff,                            )
                                                       )
               vs.                                     )     No. 02A05-1206-PL-290
                                                       )
ALLSTATE PROPERTY AND CASUALTY                         )
INSURANCE COMPANY,                                     )
                                                       )
       Appellee-Defendant.                             )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Nancy Eshcoff Boyer, Judge
                              Cause No. 02D01-1104-PL-123


                                        December 17, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION


SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

      Charles Knight appeals the trial court’s grant of summary judgment to Allstate

Property and Casualty Insurance Company (“Allstate”) on his civil complaint for

insurance coverage. We affirm.

                                         ISSUE

      Knight raises one issue, which we restate as: whether the trial court erred by

granting summary judgment to Allstate.

                       FACTS AND PROCEDURAL HISTORY

      The relevant facts are not in dispute. On May 21, 2009, Knight was injured when

a vehicle operated by Brook Kelly struck his vehicle.         Allstate was Knight’s auto

insurance provider and paid him $25,000 pursuant to a provision of its policy governing

medical payments.

      Kelly also had auto insurance, and her insurer paid Knight $25,000, which was the

maximum limit of Kelly’s policy. Knight subsequently sought additional payment from

Allstate pursuant to its policy’s uninsured/underinsured motorist coverage. The policy

has   a   $50,000   per   person    coverage    limit   for   damages   caused   by   an

uninsured/underinsured motorist. Allstate rejected his claim, asserting that the coverage

had been exhausted. Next, Knight filed this lawsuit. Allstate filed a motion for summary

judgment, and Knight responded. After a hearing, the trial court granted Allstate’s

motion and entered judgment in favor of Allstate. Knight filed a motion to correct error,

which the trial court denied. This appeal followed.


                                            2
                             DISCUSSION AND DECISION

       Summary judgment is appropriate where the evidence shows that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law. Ind. Trial Rule 56(C). On appeal, we review a summary judgment order

de novo. Bules v. Marshall Cnty., 920 N.E.2d 247, 250 (Ind. 2010). We construe all

factual inferences in the nonmoving party’s favor and resolve all doubts as to the

existence of a material issue against the moving party. Id. We must carefully review a

grant of summary judgment to ensure a party was not improperly denied his or her day in

court. Gasser v. Downing, 967 N.E.2d 1085, 1087 (Ind. Ct. App. 2012).

       The parties present conflicting interpretations of the insurance policy at issue. The

proper interpretation of an insurance policy is generally a question of law appropriate for

summary judgment. Forman v. Penn, 945 N.E.2d 717, 720 (Ind. Ct. App. 2011), trans.

denied.   We interpret the terms of an insurance policy using the same rules of

interpretation applied to other contracts. Auto-Owners Ins. Co. v. Benko, 964 N.E.2d

886, 890 (Ind. Ct. App. 2012), trans. denied. The goal of contract interpretation is to

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

v. Huntington Cnty. Cmty. Sch. Corp., 898 N.E.2d 385, 388 (Ind. Ct. App. 2009), trans.

denied. When language in an insurance policy is clear and unambiguous, we give that

language its plain and ordinary meaning. Quiring v. GEICO Gen. Ins. Co., 953 N.E.2d

119, 129 (Ind. Ct. App. 2011).       An ambiguity is not established simply because a

controversy exists and the insured asserts an interpretation contrary to that asserted by the

                                             3
insurer. Castillo v. Prudential Prop. & Cas. Ins. Co., 834 N.E.2d 204, 206 (Ind. Ct. App.

2005). Furthermore, the meaning of an insurance contract can only be gleaned from a

consideration of all its provisions, not from an analysis of individual words or phrases.

Adkins v. Vigilant Ins. Co., 927 N.E.2d 385, 389 (Ind. Ct. App. 2010), trans. denied.

       Here, the parties agree that Kelly was an uninsured/underinsured motorist as

defined by Allstate’s policy, so Knight is entitled to uninsured/underinsured motorist

coverage under that policy, subject to a $50,000 per person limit. In addition, Knight

concedes that Allstate is entitled to subtract the $25,000 he received from Kelly’s insurer

from the $50,000 per person limit for uninsured/underinsured motorist coverage.

However, Knight contends that the trial court erred by subtracting the $25,000 he

received from Allstate for medical payments from the limits of the policy’s

uninsured/underinsured motorist coverage because he believes that the governing clauses

in the policy are ambiguous and should be construed in favor of coverage.

       Allstate responds that the policy is not ambiguous and requires the

uninsured/underinsured motorist coverage to be reduced by the $25,000 payment Knight

received under the medical payments coverage section of the policy.           If Allstate is

correct, then the coverage limit for damages caused by an uninsured/underinsured

motorist has been reached, and the trial court correctly concluded that Knight is not

entitled to any additional funds.

       Allstate’s policy contains three sections that address different coverages: liability

insurance for bodily injury and property damage, medical payments coverage, and



                                             4
uninsured/underinsured motorist coverage.1 A clause in the medical payments coverage

section provides:

        There will be no duplication of payments made under the Bodily Injury
        Liability Insurance, Uninsured Motorists Insurance, and Automobile
        Medical Payments coverage of this policy. All payments made to or on
        behalf of any person under this coverage will be considered as advance
        payments to that person. Any damages payable under the Bodily Injury
        Liability Insurance or Uninsured Motorists coverages of this policy will be
        reduced by that amount.

Appellant’s App. p. 105. This reduction clause clearly and unambiguously states that

payments under the medical payments section of the policy must be set off against

“damages payable” under the uninsured/underinsured motorist coverage.                                Id.

Furthermore, the uninsured/underinsured motorist coverage section provides as follows,

in relevant part:

        [W]e will pay damages which an insured person is legally entitled to
        recover from the owner or operator of an uninsured auto because of:

        1.      bodily injury sustained by an insured person, . . . .

Id. (emphases in original). Thus, the uninsured/underinsured motorist section of the

policy uses the term “damages” to describe what the insurer will pay by reason of bodily

injury. Giving these clauses their plain and ordinary meaning, we conclude that Knight’s

uninsured/underinsured motorist coverage must be reduced by Allstate’s payments to him

under the medical payments coverage section of the policy. Thus, the trial court properly

concluded that the $25,000 payment for medical payments coverage, in combination with

1
  A fourth section of the policy addresses coverage for loss to the insured automobile, including towing
and labor costs, comprehensive insurance for direct and accidental loss not caused by a collision, and
rental reimbursement coverage, among other provisions. The parties do not discuss this section, and it is
not relevant to the question presented on appeal.
                                                   5
the payment Knight received from Kelly’s insurer, exhausted the limits of the

uninsured/underinsured motorist coverage. See Am. Econ. Ins. Co. v. Motorists Mut. Ins.

Co., 605 N.E.2d 162, 164 (Ind. 1992) (determining that the policies’ reduction language

at issue was “clearly delineated” and limited the plaintiff’s total recovery); Medley v. Am.

Econ. Ins. Co., 654 N.E.2d 313, 316 (Ind. Ct. App. 1995) (determining that under the

plain language of the policy, the underinsured motorist coverage must be reduced by

payments to the insured for bodily injury), trans. denied.

       Knight argues that the uninsured/underinsured motorist coverage may only be

reduced by payments made under the policy’s bodily injury liability coverage. He cites

the following provision in the uninsured/underinsured motorist section of the policy, in

relevant part:

       The limits of this Uninsured Motorists Insurance shall be reduced by:

       1. All amounts paid or payable by or on behalf of any person or
          organization that may be legally responsible for the bodily injury for
          which the payment is made, including, but not limited to, any amounts
          paid under the bodily injury liability coverage of this or any other
          insurance policy; . . . .[2]

Appellant’s App. p. 107. This section provides for reduction of limits payable under

uninsured/underinsured coverage by amounts paid as described. This section does not

refer to payments under medical payments coverage. Such payments do not reduce the

limits under uninsured/underinsured motorist coverage, but they are, as provided in the

medical payments         coverage,     to    be deducted        from damages payable             under

2
 This section also provides that limits of the uninsured/underinsured motorist coverage shall be reduced
by amounts paid as worker’s compensation or disability benefits. Neither restriction is relevant to this
appeal.
                                                   6
uninsured/underinsured motorist coverage. There is no conflict or inconsistency between

the two policy provisions.

       Knight cites Tate v. Secura Ins., 587 N.E.2d 665 (Ind. 1992), in support of his

claim that the policy is ambiguous and must be construed in his favor.              Tate is

distinguishable. In that case, Tate was assisting with a stalled car when it was struck by a

drunk driver, resulting in injury to Tate. After the drunk driver’s insurance company paid

the maximum limits under its coverage, Tate sued his insurer, Secura, for underinsured

motorist coverage. Secura’s policy contained a reduction clause, which provided, in

relevant part, “Amounts payable will be reduced by . . . [a]mounts paid because of the

bodily injury by, or on behalf of, persons or organizations who may be legally

responsible.” Id. at 668. Tate contended that when the total damages to an insured

person exceeded the tortfeasor’s liability limits, the amount of recovery under his

underinsured motorist coverage was the full amount of damages sustained less the

tortfeasor’s liability limits already received, or the limits of the underinsured motorist

coverage, whichever is less. Secura responded that where the tortfeasor’s liability

insurance limits are equal to those of the policy’s underinsured motorist coverage, the

reduction clause of the policy precluded payment. Our Supreme Court determined that

the “plain and ordinary” meaning of the clause prevailed, therefore:

       the phrase “amounts payable” refer[s] to the initial insuring agreement for
       Coverage C-2 Underinsured Motorists Coverage wherein Secura promises
       to pay such bodily injury damages as its insured is legally entitled to
       recover from the operator of an underinsured motor vehicle. It is this
       amount of damages, not the coverage limit, which is the “amounts payable”
       to be reduced by the amount paid to Tate by or on behalf of the tortfeasor.


                                             7
Id. Thus, Tate’s underinsured motorist coverage limits were not a bar to his claim, and

the trial court erred by granting summary judgment to Secura.

       By contrast, in the current case the policy’s reduction clauses use different, more

specific   language,    and   they    plainly    provide   that   payments        under   the

uninsured/underinsured motorist portion of the policy must be reduced by payments to

the insured pursuant to the medical payments coverage portion of the plan. Thus, Tate is

not controlling and does not compel reversal of the trial court’s judgment.

                                     CONCLUSION

       For the reasons stated above, we affirm the judgment of the trial court.

       Affirmed.

ROBB, C.J., and PYLE, J., concur.




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