                                                           FILED
                                                       Jul 20 2016, 8:28 am

                                                           CLERK
                                                       Indiana Supreme Court
                                                          Court of Appeals
                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Paul O. Watkiss                                            John W. Mervilde
State Auto House Counsel                                   Rick D. Meils
Naperville, Illinois                                       William M. Berish
                                                           Meils Thompson Dietz & Berish
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Milbank Insurance Company,                                 July 20, 2016
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           46A03-1512-PL-2096
        v.                                                 Appeal from the LaPorte Superior
                                                           Court
Indiana Insurance Company, et                              The Honorable Richard R.
al.,                                                       Stalbrink, Jr., Judge
Appellees-Respondents.                                     Trial Court Cause No.
                                                           46D02-1305-PL-844



Robb, Judge.




Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016               Page 1 of 20
                                 Case Summary and Issue
[1]   Milbank Insurance Company filed a declaratory judgment action seeking to

      determine, as between its personal auto policy and Indiana Insurance

      Company’s business auto policy, which policy was primary and which insurer

      owed a duty to defend and indemnify Sydney Mireles in an underlying personal

      injury action against her. On summary judgment, the trial court determined the

      Milbank policy was primary. Milbank now appeals, raising several issues

      which we consolidate and restate as whether the trial court erred in determining

      the Milbank policy was primary. Concluding Milbank’s appeal is untimely, but

      that regardless, the trial court did not err, we affirm.



                             Facts and Procedural History
[2]   At all relevant times, Milbank insured a vehicle owned by Paul Chandler. On

      May 15, 2012, Chandler took his car to a career center operated by Michigan

      City Area Schools (“School”) to provide vocational training to its students.

      Vehicles are repaired at the center for only the cost of parts. Mireles was a

      student at the School and participated in the auto repair class for which she

      received course credit. The School had a Commercial Auto/Garage Keepers

      insurance policy issued by Indiana Insurance. Mireles had automobile

      insurance with Geico Indemnity Company. When Mireles drove Chandler’s

      car into the garage area during class, she hit and injured Leon Klosowski, a

      teacher at the center. Klosowski filed a personal injury action against Mireles

      in July 2012.

      Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 2 of 20
[3]   On May 20, 2013, Milbank filed a complaint for declaratory judgment

      primarily against Indiana Insurance. The complaint also named Mireles,

      Klosowski, Chandler, the School, and Geico as “nominal but necessary” parties

      but made no claim for insurance coverage with respect to these nominal parties.

      Appellant’s Appendix at 47-48. The complaint sought a judgment declaring

      first, that the Indiana Insurance policy is primary and Indiana Insurance would

      owe a defense and indemnity to Mireles in the underlying personal injury

      lawsuit and second, that the Milbank policy is excess and Milbank would only

      owe a defense and indemnity to Mireles after the limits of the Indiana

      Insurance policy were exhausted. Indiana Insurance filed a counter- and cross-

      claim for declaratory judgment seeking a judgment declaring that Mireles is not

      covered under the Indiana Insurance policy at all and therefore the

      primary/excess distinction is irrelevant.1


[4]   Both Milbank and Indiana Insurance filed motions for summary judgment.2

      The parties stipulated to the following facts: Mireles was an insured under both

      the Milbank and Geico policies; Geico is providing a defense to Mireles in the

      personal injury action; Mireles is not an employee of the School; Mireles

      participated in the vocational class for which she received credit, educational




      1
        Geico also filed a counter- and cross-claim for declaratory judgment, seeking a determination it was excess
      to both Milbank’s and Indiana Insurance’s policies. Geico’s policy did not seem to be at issue at the trial
      court, see Transcript of Summary Judgment Hearing at 5 (Milbank’s counsel stating, “So you’ve basically got
      two competing policies. It’s either going to be the Milbank policy that’s primary or the Indiana Insurance
      Company policy that’s primary.”), and is not at issue on appeal.
      2
          Geico joined in Milbank’s motion for summary judgment.


      Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016                         Page 3 of 20
instruction, and training; once Mireles signed up for the class, her participation

was mandatory; and Mireles’s operation of Chandler’s car was within the scope

of the permission he gave when he left the car with the School for repairs. See

id. at 323-24. Following a hearing, the trial court entered the following order on

August 28, 2015:

        15. Milbank and Geico seek declaratory judgment that Mireles
        qualifies as an insured under the School’s Indiana [Insurance]
        Policy; that the Indiana [Insurance] Policy is primary; and that
        the Milbank Policy is excess, only kicking in after the liability
        limits of the Indiana [Insurance] Policy are met.


        15. Indiana [Insurance], on the other hand, seeks declaratory
        judgment that Mireles does not qualify as an insured under the
        Indiana [Insurance] Policy and therefore, making a
        primary/excess distinction between the Indiana [Insurance]
        Policy and the Milbank Policy is irrelevant.


        ***


        27. [Klosowski] cannot sue the School for his injuries because
        that claim is covered by his workers compensation. It seems
        illogical then, for [Klosowski] to be able to collect from the
        School’s insurance by bringing the claim against his student. The
        School’s Indiana [Insurance] Policy was purchased to provide
        coverage if someone not involved in the School’s business or
        vocational class, in a manner of speaking an “outsider,” were to
        bring a claim. The policy was not intended to allow a teacher
        and employee to, in effect, sue the School through a fellow agent
        of the [S]chool, in this case a student in a vocational class.


        28. The Court finds that [Chandler’s] car was covered by the
        School’s Indiana [Insurance] Policy and that Mireles was acting
Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016    Page 4 of 20
              as an agent of the School’s auto repair “business” and vocational
              class, however the School’s Indiana [Insurance] Policy does not
              provide Mireles with liability coverage for a claim from another
              agent of the School, such as Mireles’s teacher [Klosowski].


              Therefore, it is ordered, adjudged and decreed that Indiana
              Insurance’s Motion for Summary Judgment is hereby, granted,
              and Milbank Insurance’s Motion for Summary Judgment, in
              which Geico Insurance joined, is hereby, denied.


      App. at 14-18. On September 28, 2015, Milbank filed in the trial court a

      purported Notice of Appeal, stating it was appealing from the August 28, 2015

      final judgment of the trial court granting summary judgment in favor of Indiana

      Insurance and denying Milbank’s cross-motion for summary judgment. No

      Notice of Appeal was filed with the Clerk of the Indiana Supreme Court, Court

      of Appeals, and Tax Court, no filing fee was tendered, and nothing further

      happened with respect to this “appeal.”


[5]   Thereafter, on November 17, 2015, Milbank filed in the trial court a “Motion to

      Clarify” alleging,

              1. That Milbank filed this declaratory judgment action seeking a
              declaration that the policy issued by Indiana [Insurance] was
              primary and the policy issued by Milbank was excess.


              2. That both Milbank and Indiana [Insurance] brought cross-
              motions for summary judgment.


              3. That Milbank’s motion for summary judgment sought a
              declaration that the Indiana [Insurance] policy was primary and
              that the Milbank policy was excess.
      Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 5 of 20
              4. That Indiana [Insurance]’s motion for summary judgment
              sought a declaration that its policy did not cover the defendant
              being sued and therefore made the primary/excess distinction
              between the two policies irrelevant.


              5. That while the court ultimately granted Indiana [Insurance]’s
              motion for summary judgment, the ruling is unclear as to the
              status of Milbank and whether it would therefore be primary.
              Since there was no declaration that Milbank’s policy was primary
              it is unclear as to whether a final order was entered as this issue
              remains undecided.


              Wherefore, [Milbank] moves this court for entry of an order
              clarifying that the order of August 28, 2015 granting summary
              judgment for [Indiana Insurance] and denying summary
              judgment for [Milbank] is a final order and that Milbank’s policy
              is primary.


      Id. at 403-04. The trial court entered an order on November 23, 2015, granting

      Milbank’s motion to clarify declaring that “the policy issued by [Milbank] is

      primary, and that no other issues remain to be decided.” Id. at 11. Milbank

      then filed a Notice of Appeal with the Clerk of the Supreme Court, Court of

      Appeals, and Tax Court purporting to appeal from the November 23, 2015

      order granting its motion to clarify.


[6]   Indiana Insurance filed a motion to dismiss Milbank’s appeal, asserting the trial

      court’s order of August 28, 2015, resolved all issues as to all parties, was

      therefore a final appealable order, and because Milbank did not perfect an

      appeal within thirty days of that order, its attempt to restart the clock with a

      motion to clarify and subsequent notice of appeal was untimely. The motion to

      Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 6 of 20
      dismiss was denied by the motions panel of this court and the parties proceeded

      to fully brief the case.



                                 Discussion and Decision
                                              I. Timeliness
[7]   We first address Indiana Insurance’s request that we reconsider the ruling of the

      motions panel and dismiss this appeal as untimely. Although reluctant to do

      so, the writing panel has the inherent authority to reconsider any decision of the

      motions panel while an appeal remains pending. D.C., Jr. v. C.A., 5 N.E.3d 473,

      475 (Ind. Ct. App. 2014). We may do so where a more complete record reveals

      clear authority establishing that the motions panel ruling was in error. Haggerty

      v. Anonymous Party 1, 998 N.E.2d 286, 293 (Ind. Ct. App. 2013).


[8]   Indiana Appellate Rule 9 provides that a party initiates an appeal from a final

      judgment by filing a Notice of Appeal with the Clerk of the Indiana Supreme

      Court, Court of Appeals, and Tax Court within thirty days after the entry of the

      final judgment is noted in the Chronological Case Summary (“CCS”). Ind.

      Appellate Rule 9(A). A “final judgment” is defined, in part, as a judgment that

      disposes of all claims as to all parties. App. R. 2(H)(1). “Unless the Notice of

      Appeal is timely filed, the right to appeal shall be forfeited . . . .” App. R.

      9(A)(5).




      Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016    Page 7 of 20
[9]   Here, Milbank’s complaint for declaratory judgment, which named Indiana

      Insurance as the primary defendant and Geico, among others, as a “nominal

      but necessary party,” asked the trial court to


              enter judgment finding and declaring the rights of the parties as
              follows:


              A. That the [Indiana Insurance policy] is primary and would
              owe a defense and indemnity to Mireles in the underlying
              personal injury action . . . ;


              B. That the [Milbank policy] is excess and would only owe a
              defense and indemnity to Mireles in the underlying personal
              injury action . . . on an excess basis only after the liability limits
              in the [Indiana Insurance policy] have been exhausted . . . .


      App. at 47-48, 53. Milbank, joined by Geico, and Indiana Insurance each

      sought summary judgment in its favor. Milbank’s motion for summary

      judgment requested the trial court enter judgment exactly as requested by the

      prayer for relief in its complaint; namely, a declaration that Indiana Insurance is

      primary and Milbank is excess. Indiana Insurance’s motion for summary

      judgment requested the trial court enter summary judgment “in its favor, as

      against [Milbank’s] Complaint . . . .” Id. at 311-12. The trial court entered an

      order on those motions on August 28, 2015, which was noted in the CCS on

      September 3, 2015. See id. at 9. That order granted Indiana Insurance’s motion

      for summary judgment and denied Milbank’s motion. The question presented

      in the declaratory judgment action and by the motions for summary judgment



      Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016         Page 8 of 20
       was whether the Indiana Insurance or Milbank policy was primary.3 When the

       trial court denied Milbank’s motion for summary judgment and granted

       Indiana Insurance’s, it in essence declared, contrary to Milbank’s prayer for

       relief, that Milbank was primary, and the sole question raised by the declaratory

       judgment action was answered. No claims remained as to any party thereafter.

       And indeed, Milbank tried to initiate an appeal of the trial court’s judgment by

       filing a Notice of Appeal, in which it stated it was appealing from a final

       judgment. Unfortunately, Milbank filed its notice of appeal with the trial court

       only. Although that used to be the procedure for initiating an appeal, see App.

       R. 9(A)(1) (2011), such has not been the case since January 1, 2012.4 The trial

       court’s August 28, 2015, order was a final judgment and Milbank did not file an

       effective Notice of Appeal within thirty days, and, thus the case was concluded

       at that point.


[10]   Then, seventy-five days after the trial court’s summary judgment order was

       entered on the CCS and approximately fifty days after filing an ineffective

       notice of appeal, Milbank filed a “motion to clarify” alleging the trial court’s

       order, while ultimately granting Indiana Insurance’s motion for summary

       judgment, did not specifically declare that Milbank’s policy was primary and

       was therefore “unclear as to whether a final order was entered as this issue




       3
        Although Geico was nominally involved in the declaratory judgment action, no party suggested Geico was
       primary.
       4
        There was a grace period from January 1, 2012, until January 1, 2014, during which a notice of appeal filed
       with the trial court clerk would be deemed timely filed. App. R. 9(A)(5) (2012).

       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016                        Page 9 of 20
       remains undecided.” App. at 404. Indiana does not recognize a “motion to

       clarify.” Hedrick v. Gilbert, 17 N.E.3d 321, 326 (Ind. Ct. App. 2014). In Hedrick,

       we treated a self-styled “motion to clarify” as a motion to correct error for

       purposes of determining the timeliness of an appeal. Id. (stating, “[i]f we were

       to treat [the motion to clarify] as something other than a motion to correct error

       or a motion to reconsider, practitioners would have no guidance on what such a

       motion should be, its timelines, or its possible end results”). A motion to

       correct error must be filed within thirty days of a final judgment, however, and

       Milbank’s motion was not. We could also possibly consider the “motion to

       clarify” a motion for relief from judgment, which does not carry the same strict

       timelines as a motion to correct error. See Ind. Trial Rule 60(B) (stating a

       motion for relief from judgment must be filed not more than one year after the

       judgment was entered for certain enumerated reasons, and within a reasonable

       time for others). However, Milbank’s motion to clarify does not contain any

       allegations that would arguably fit within the enumerated provisions of Trial

       Rule 60(B).


[11]   The fact that the trial court purported to rule on the motion to clarify is

       immaterial. A trial court has inherent power to reconsider, vacate, or modify

       any previous order until the case proceeds to final judgment. See T.R. 54(B)

       (stating that non-final judgments are “subject to revision at any time before the

       entry of judgment adjudicating all the claims and the rights and liabilities of all

       the parties”). After a final judgment is rendered in a particular case, however,

       the trial court retains only “such continuing jurisdiction as is permitted by the


       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 10 of 20
       judgment itself, or as is given the court by statute or rule.” Waas v. Ill. Farmers

       Ins. Co., 722 N.E.2d 861, 862 (Ind. Ct. App. 2000) (quotation omitted). Since

       Milbank did not file a timely motion to correct error following the entry of final

       judgment on August 28, 2015, and did not allege any grounds for relief from

       judgment, the trial court had no continuing jurisdiction over this case and its

       order on the motion to clarify had no effect, including restarting the clock for

       filing an appeal.


[12]   Milbank’s failure to timely file a notice of appeal from the trial court’s final

       judgment forfeited its right to appeal absent “extraordinarily compelling

       reasons.” In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). We do not

       find any extraordinarily compelling reasons to consider this untimely appeal and

       Milbank does not offer any.5 However, given our long-standing preference for

       deciding cases on the merits, Teaching Our Posterity Success, Inc. v. Ind. Dep’t of

       Educ., 20 N.E.3d 149, 154 (Ind. 2014), and given that the motions panel denied

       the motion to dismiss and the parties thereafter fully briefed this case, we will

       proceed to consider the merits of the parties’ arguments.




       5
         Milbank continues to assert that the August 28, 2015 order did not dispose of all claims as to all parties and
       falls back on the issue of timeliness already being decided by the motions panel. See Appellant’s Amended
       Reply Brief at 8. Milbank has failed to identify why the order, in granting summary judgment to Indiana
       Insurance and deciding Indiana Insurance was not primary, did not also effectively decide that Milbank’s
       policy was primary.

       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016                           Page 11 of 20
                                      II. Summary Judgment
                                        A. Standard of Review
[13]   We review the grant of summary judgment de novo. Lyons v. Richmond Cmty.

       Sch. Corp., 19 N.E.3d 254, 259 (Ind. 2014). Our review is limited to those facts

       designated to the trial court, T.R. 56(H), and we construe all facts and

       reasonable inferences drawn from those facts in favor of the non-moving party,

       Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013). We will affirm a grant of

       summary judgment only if the designated evidence shows there is no genuine

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

       law. T.R. 56(C). On appeal, the non-moving party carries the burden of

       persuading us the grant of summary judgment was erroneous. Hughley v. State,

       15 N.E.3d 1000, 1003 (Ind. 2014).


                                         B. Primary Insurance
[14]   Milbank concedes Mireles was covered under its policy as a permissive user.

       See App. at 323 (stipulation of facts stating “[t]hat Mireles qualifies as an

       insured under the Geico Policy and Milbank Policy”); see also id. at 84 (Part A

       of the Milbank policy stating it “will pay damages for bodily injury . . . for

       which any insured becomes legally responsible because of an auto accident”

       and defining “insured” to include “[a]ny person using your covered auto”)

       (internal quotation marks omitted). But Milbank contends its “Other

       Insurance” provision makes it the excess insurer in this case. The “Other

       Insurance” provision states:


       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 12 of 20
                Any insurance we provide for a vehicle you own shall be excess
                to that of a person engaged in the business of: 1. Storing; 2.
                Parking; 3. Servicing; or 4. Repairing; motor vehicles if the
                accident occurs while the vehicle is under that person’s control or
                the control of that person’s employee or agent.


       Id. at 73 (internal quotation marks omitted). Milbank contends Indiana

       Insurance admitted in a Right of Reservation letter that Mireles was an insured

       under its policy, and that irrespective of the letter, Mireles meets the definition

       of an insured under the Indiana Insurance policy.6 Therefore, Milbank asserts

       the trial court erred in denying its motion for summary judgment and granting

       Indiana Insurance’s motion.


[15]   With respect to the alleged admission, Milbank attached as an exhibit to its

       complaint a January 3, 2013, letter from Indiana Insurance notifying Geico of

       its reservation of rights. After citing several provisions of the Indiana Insurance

       policy, the letter stated,

                [Mireles] is potentially considered a “volunteer worker.” We
                believe she is an insured, but only on an excess basis over any
                other collectible insurance . . . .




       6
         Milbank also asserts the trial court erred in using tort law principles of liability when the issue is contract
       interpretation. The trial court’s summary judgment order included findings and analysis supporting its
       conclusion. Although such findings are helpful to our review by giving insight into the trial court’s rationale
       for its decision, they are neither required nor binding and they do not change our standard of review. Kesling
       v. Hubler Nissan, Inc., 997 N.E.2d 327, 331-32 (Ind. 2013). Our review is de novo, and if the trial court’s
       judgment can be sustained on any basis supported by the evidence, we will affirm. Hicks v. Thatcher, 44
       N.E.3d 1258, 1261 (Ind. Ct. App. 2015). Therefore, we focus not on the reasoning by which the trial court
       reached its result, but on the result itself.

       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016                            Page 13 of 20
                By raising issues and referring to policy language in this letter we
                do not intend to waive the right to raise or rely on other defenses
                or policy language. We specifically reserve the right to amend
                our coverage position and any accompanying letter.


       App. at 226. Milbank asserts the statement “[w]e believe she is an insured” is

       an admission by party opponent under Evidence Rule 801(d) and that when

       Indiana Insurance subsequently denied that Mireles was an insured under its

       policy in the summary judgment proceedings, it acted deceptively and in bad

       faith. See Appellant’s Brief at 9, 15. Milbank willfully ignores the entirety of

       Indiana Insurance’s letter, which is equivocal as to Mireles’s status as an

       insured, see app. at 223 (letter stating Mireles “may be an insured,”), id. at 226

       (“[w]e believe she is an insured, but only on an excess basis,” and “Mireles

       potentially has excess coverage available”), and specifically reserves the right to

       amend its position. To the extent Indiana Insurance’s letter is relevant to the

       coverage question, it is merely evidence to be considered in light of the actual

       language of the policies at issue. And Indiana Insurance certainly did not act in

       bad faith in tentatively positing early in the proceedings there may be coverage

       and then determining as the proceedings progressed that there was not.7


[16]   We turn then to the language of the Indiana Insurance policy. We interpret an

       insurance contract under the same rules of construction as any other contract.




       7
         Moreover, Milbank cites Erie Ins. Co. v. Hickman, 622 N.E.2d 515 (Ind. 1993), in support of its assertion that
       Indiana Insurance acted in bad faith. Erie Ins. Co. recognized a cause of action for “tortious breach of an
       insurer’s duty to deal with its insured in good faith.” Id. at 519 (emphasis added). This is wholly inapplicable
       to this situation.

       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016                          Page 14 of 20
       WellPoint, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 29 N.E.3d 716, 721

       (Ind. 2015). We construe the policy as a whole rather than considering

       individual words, phrases, and paragraphs, and we give clear and unambiguous

       policy language its plain and ordinary meaning. See Dunn v. Meridian Mut. Ins.

       Co., 836 N.E.2d 249, 251-52 (Ind. 2005). If there is an ambiguity, we construe

       the policy strictly against the insurer. Bradshaw v. Chandler, 916 N.E.2d 163,

       166 (Ind. 2009). An insurance policy is ambiguous only if a provision is

       susceptible to more than one reasonable interpretation. FLM, LLC v. Cincinnati

       Ins. Co., 24 N.E.3d 444, 454 (Ind. Ct. App. 2014), trans. denied. “[T]he 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.” Thomson Inc. v. Ins. Co. of N. Am., 11 N.E.3d 982, 994 (Ind. Ct. App.

       2014) (alteration in original) (quotation omitted), trans. denied.


[17]   The named insured on the Indiana Insurance policy is “Michigan City Area

       Schools.” App. at 108. Thus any reference in the policy to “you” means the

       School. The policy states it will “pay all sums an ‘insured’ legally must pay as

       damages because of ‘bodily injury’ or ‘property damage’ to which this insurance

       applies, caused by an ‘accident’ and resulting from the ownership, maintenance

       or use of a covered ‘auto.’” Id. at 113. A “covered auto,” for purposes of this

       liability coverage, is defined as “any ‘auto.’” Id. at 112. And finally, the policy

       provides:

               1. Who Is An Insured



       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 15 of 20
                The following are “insureds”:


                a. You for any covered “auto.”


                b. Anyone else while using with your permission a covered
                “auto” you own, hire or borrow except:


                          ***


                          (3) Someone using a covered “auto” while he or she is
                          working in a business of selling, servicing, repairing,
                          parking or storing “autos” unless that business is yours.


       Id. at 113 (emphasis added).


[18]   Milbank asserts that because Mireles was using Chandler’s covered car with the

       School’s permission while working in the School’s own business of servicing or

       repairing the car, Mireles is an insured under subparagraph 3 of the Indiana

       Insurance policy. In order to be an insured under this provision of the policy,

       however, Mireles must also have been using a covered auto that was owned,

       hired or borrowed by the School.8 There is no dispute that Chandler owned the

       car, not the School. Further, there is no evidence or even suggestion that the




       8
         Milbank asserts in its reply brief that it is unnecessary to determine whether the School owned, hired, or
       borrowed Chandler’s car because the exception set forth in subparagraph 3 of the definition of insured
       “stands alone and is a separate definition of who is insured” under the Indiana Insurance policy. Appellant’s
       Am. Reply Br. at 6. This assertion ignores the plain language and organizational structure of the policy.
       Subparagraph 3 describes an exception to the general definition of an insured as anyone besides the School
       while using with the School’s permission a vehicle the School owns, hires, or borrows. Therefore, we look
       first to the language of paragraph b to determine if Mireles is an insured under that definition, and if it applies,
       then we look to the exceptions in the following subparagraphs.

       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016                              Page 16 of 20
       School hired the car. That means Mireles could only potentially be an insured

       if the School borrowed Chandler’s car.


[19]   In Protective Ins. Co. v. Coca-Cola Bottling Co., 423 N.E.2d 656 (Ind. Ct. App.

       1981), this court considered a “Truckmen’s Endorsement” providing coverage

       to the named insured and any other person while using the insured vehicle with

       the permission of the named insured. However, the policy further provided if

       bodily injury or property damage arises out of the loading or unloading of the

       vehicle, coverage is only provided if the other person is a lessee or borrower of

       the automobile. Such a clause, excluding from coverage persons who are users

       but not borrowers or lessees of the vehicle “limits the insurer’s liability for

       injuries resulting from acts of nonemployees of the named insured.” Id. at 660.

       With respect to who is a “borrower,” the court explained:

               A person can be using the vehicle without being a borrower of
               the vehicle. The term “borrower” has been defined as someone
               who has, with the permission of the owner, temporary possession
               and use of the property for his own purposes. To be a borrower,
               a person must have possession of the vehicle, possession
               connoting the right to exercise dominion and control over the
               vehicle. General supervision or even the actual performance of
               loading or unloading operations will not make one a borrower of
               the vehicle involved; there must be evidence of possession.


       Id. (citations and footnote omitted). In contrast, “[a] bailment is an agreement,

       either express or implied, that one person will entrust personal property to

       another for a specific purpose and that when the purpose is accomplished the



       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 17 of 20
       bailee will return the property to the bailor.” Pitman v. Pitman, 717 N.E.2d 627,

       631 (Ind. Ct. App. 1999).


[20]   Chandler left his car with the School for the specific purpose of having repair

       work done. He did not lend his car to the School to use for its own purposes.

       In this regard, the relationship between Chandler and the School was not that

       of lender-borrower; it was bailor-bailee. As in Protective Insurance Company, even

       the actual performance of repairing of the vehicle did not make the School a

       “borrower” of the car because that was the purpose for which Chandler left his

       car with the School. Accordingly, Mireles is not an insured under definition (b)

       of the Indiana Insurance policy because she was not using a car the School

       owned, hired, or borrowed.


[21]   Mireles could also be an insured under the Indiana Insurance policy if she was

       a volunteer worker of the School. The School Business Auto Extension

       Endorsement to the Indiana Insurance policy amends the basic policy definition

       of “insured” to add:


               g. A “volunteer worker” of yours while using a covered “auto”
               you do not own, hire or borrow in your business or your personal
               affairs or while performing duties related to the conduct of your
               business. Insurance provided by this endorsement is excess over
               any other collectible insurance available to any “volunteer
               worker.”


               For the purpose of this endorsement provision, Section V –
               Definitions is amended by adding the following:



       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016   Page 18 of 20
               “Volunteer worker” means a person who donates their services to
               you with your knowledge and consent and who is not paid a fee,
               salary or other remuneration.


       App. at 126-27.9 This provision does not require that the auto be owned, hired

       or borrowed by the School. However, it does require Mireles to have given her

       services to the School without any remuneration.

               A donation is defined . . . to be the act by which the owner of a
               thing voluntarily transfers the title and possession of the same
               from himself to another person, without any consideration [or]
               that which is given or bestowed; that which is transferred to
               another gratuitously, or without a valuable consideration; a gift;
               a grant.


       Ind. N. & S. Ry. Co. v. City of Attica, 56 Ind. 476, 486-87 (1877) (internal

       quotation marks omitted). The parties stipulated that Mireles was required to

       attend class and she received class credit, education, and training for her

       participation; therefore, she neither donated her services nor forewent

       remuneration. Therefore, she does not satisfy the definition of a “volunteer

       worker” so as to be an insured under the Indiana Insurance policy.


[22]   In addition, as the trial court pointed out, if Mireles were a volunteer worker or

       other agent of the School, Klosowski’s exclusive remedy would be through

       worker’s compensation and not through the School’s private insurance. See



       9
        The endorsement also adds “any ‘employee’ of yours while using a covered ‘auto’ you do not own, hire or
       borrow” to the definition of insured. App. at 126. The parties stipulated Mireles was not an employee of the
       School. Id. at 324.

       Court of Appeals of Indiana | Opinion 46A03-1512-PL-2096 | July 20, 2016                       Page 19 of 20
       Ind. Code § 22-3-2-6 (stating the “rights and remedies granted to an employee

       subject to IC 22-3-2 through IC 22-3-6 on account of personal injury . . . shall

       exclude all other rights and remedies of such employee”); see also Sims v. U.S.

       Fid. & Guar. Co., 782 N.E.2d 345, 349-50 (Ind. 2003) (noting the worker’s

       compensation exclusivity provision bars a court from hearing a common law

       action brought by an employee for injuries arising out of and in the course of

       employment, but does permit “an action against third party tortfeasors, so long

       as the third party is neither the plaintiff’s employer nor his fellow employee”) (emphasis

       added).


[23]   We disagree somewhat with the trial court’s reasoning, inasmuch as the trial

       court found Mireles was an insured under the Indiana Insurance policy but

       Klosowski’s remedy lies elsewhere and we hold she was not an insured under

       the policy. We agree, however, with the trial court’s result: the Milbank policy

       is primary.



                                                Conclusion
[24]   The trial court’s grant of summary judgment to Indiana Insurance and denial of

       summary judgment to Milbank, resulting in a declaration that the Milbank

       policy is primary, is affirmed.


[25]   Affirmed.


       Najam, J., and Crone, J., concur.


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