ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
J. Blake Hike                                              Dustin F. Fregiato                  FILED
Larry L. Barnard                                           Ladendorf Law                   Aug 17 2020, 9:56 am
Carson LLP                                                 Indianapolis, Indiana
                                                                                               CLERK
Fort Wayne, Indiana                                                                        Indiana Supreme Court
                                                                                              Court of Appeals
                                                                                                and Tax Court




                                            IN THE
    COURT OF APPEALS OF INDIANA

Progressive Southeastern                                   August 17, 2020
Insurance Company,                                         Court of Appeals Case No.
Appellant-Defendant,                                       20A-CT-876
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Kurt Eisgruber,
Robert Chastain,                                           Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           49D06-1901-CT-4289



Brown, Judge.




Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020                     Page 1 of 19
[1]   Progressive Southeastern Insurance Company (“Progressive”) appeals the trial

      court’s entry of summary judgment in favor of Robert Chastain and against it.

      We reverse.


                                       Facts and Procedural History

[2]   On November 9, 2018, Chastain was the registered owner of a 2015 Kymco

      Scooter bearing VIN LC2U2A021FC200649. On that day, while operating a

      2017 Bashan Scooter bearing VIN LEHTCB15XHR000095, Chastain was

      involved in an accident in Indianapolis with a vehicle driven by Rafael Zuniga.

      Chastain had been the owner of the 2017 Bashan Scooter for more than thirty

      days and had not registered the scooter with the Bureau of Motor Vehicles.

      Prior to the accident, Chastain moved the license plate from the Kymco Scooter

      to the Bashan Scooter but “had not officially switched the plate over with the

      Bureau of Motor Vehicles.” Appellant’s Appendix Volume II at 98. In a letter

      dated December 17, 2018, Zuniga’s insurer, Safe Auto Insurance, indicated to

      Chastain’s counsel that it was tendering the policy limits of $25,000 on behalf of

      Zuniga. At some point, Chastain filed a claim against his insurer, Progressive,

      and in a letter dated January 9, 2019, Progressive informed Chastain: “As you

      were driving a moped that you were the owner of at the time of the accident,

      based on the policy, we must respectfully deny underinsured bodily injury

      coverage . . . .” Id. at 177.




      Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020      Page 2 of 19
[3]   At the time of the accident, Chastain was insured under an auto insurance

      policy (the “Policy”), which listed a 2002 Jeep Liberty, a 1998 Damion Motor

      Coach Hornet, and a 1999 Dodge Ram Pickup. 1 Under the heading

      “GENERAL DEFINITIONS,” the Policy states:


              2. “Auto” means a land motor vehicle:
                  a.   of the private passenger, pickup body, or cargo van type;
                  b.   designed for operation principally upon public roads;
                  c.   with at least four wheels; and
                  d.   with a gross vehicle weight rating of 12,000 pounds or less,
                       according to the manufacturer’s specifications.

              However, “auto” does not include step-vans, parcel delivery
              vans, or cargo cutaway vans or other vans with cabs separate
              from the cargo area.


      Id. at 108. The Policy did not include a definition for motor vehicle under the

      heading “GENERAL DEFINITIONS.” Id. The Policy provides:


                                 PART I – LIABILITY TO OTHERS
                                                     *****
              If you pay the premium for this coverage, we will pay damages for
              bodily injury and property damage for which an insured person
              becomes legally responsible because of an accident.




      1
        The policy states: “Your coverage began on November 10, 2018 at 12:01 a.m.” Appellant’s Appendix
      Volume II at 102. In its brief on appeal, Progressive notes: “Chastain had a previous Progressive insurance
      policy that lapsed on November 1, 2018. On November 9, 2018, before the Accident occurred, Chastain paid
      the premium for the Policy. While the Policy’s declarations page indicates a policy period that began on
      November 10, 2018, and while the November 9, 2018 premium payment would not technically have initiated
      coverage until 12:01 am on November 10, 2018, Progressive agreed to treat the Accident as having occurred
      within the policy period for the Policy.” Appellant’s Brief at 9 n.1.

      Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020                             Page 3 of 19
                                               *****
        EXCLUSIONS – READ THE FOLLOWING EXCLUSIONS
        CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE
        WILL NOT BE AFFORDED UNDER THIS PART I.
                                               *****
        12. bodily injury or property damage arising out of the
        ownership, maintenance or use of any vehicle owned by you or
        furnished or available for your regular use, other than a covered
        auto for which this coverage has been purchased;
                                               *****
        14. bodily injury or property damage arising out of your, a
        relative’s, or a rated resident’s use of a vehicle, other than a
        covered auto, without the permission of the owner of the vehicle
        or the person in lawful possession of the vehicle;
                                               *****
        PART II – MEDICAL PAYMENTS COVERAGE
                                               *****
        If you pay the premium for this coverage, we will pay the
        reasonable expenses incurred for necessary medical services
        received within three years from the date of a motor vehicle
        accident because of bodily injury:
        1. sustained by an insured person; and
        2. caused by that motor vehicle accident.

        ADDITIONAL DEFINITIONS

        When used in this Part II:
                                               *****
        3. “Motor vehicle” means a land motor vehicle designed for use
        principally on public roads.
                                               *****



Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020     Page 4 of 19
              EXCLUSIONS – READ THE FOLLOWING EXCLUSIONS
              CAREFULLY. IF AN EXCLUSION APPLIES,
              COVERAGE WILL NOT BE AFFORDED UNDER THIS
              PART II.
              Coverage under this Part II will not apply to bodily injury:
                                                     *****
              9. sustained by any person while occupying or when struck by
              any vehicle owned by you or furnished or available for your
              regular use, other than a covered auto for which this coverage
              has been purchased;


      Id. at 110-115.


[4]   The Policy also provides:


              PART III – UNINSURED/UNDERINSURED MOTORIST
              COVERAGE
                                                     *****
              If you pay the premium for this coverage, we will pay for
              damages that an insured person is legally entitled to recover from
              the owner or operator of an uninsured motor vehicle or
              underinsured motor vehicle because of bodily injury:

              1. sustained by an insured person;
              2. caused by an accident; and
              3. arising out of the ownership, maintenance or use of an
              uninsured motor vehicle or underinsured motor vehicle.

                                                     *****

              ADDITIONAL DEFINITIONS

              When used in this Part III:

              1. “Insured person” means:

      Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020       Page 5 of 19
             a. you, a relative, or a rated resident;
             b. any person while operating a covered auto with the
                permission of you, a relative, or a rated resident;
             c. any person occupying, but not operating, a covered auto;
                and
             d. any person who is entitled to recover damages covered by
                this Part III because of bodily injury sustained by a person
                described in a., b. or c. above.

                                               *****

        3. “Underinsured motor vehicle” means a land motor vehicle or
        trailer to which a bodily injury liability bond or policy applies at
        the time of the accident, but the sum of the limits of liability for
        bodily injury under all applicable policies or bonds:

             a. is less than the coverage limit for Uninsured/Underinsured
                Motorist Bodily Injury Coverage shown on the
                declarations page; or
             b. has been reduced by payments for bodily injury to persons
                injured in the accident such that the amount actually
                received by an insured person is less than the per person
                coverage limit for Uninsured/Underinsured Motorist
                Bodily Injury Coverage shown on the declarations page.

        An “underinsured motor vehicle” does not include any vehicle
        or equipment:

            a. owned by you, a relative, or a rated resident or furnished
               or available for the regular use of you, a relative, or a rated
               resident;
                                               *****
        EXCLUSIONS – READ THE FOLLOWING EXCLUSIONS
        CAREFULLY. IF AN EXCLUSION APPLIES,
        COVERAGE WILL NOT BE AFFORDED UNDER THIS
        PART III.
        Coverage under this Part III will not apply:
Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020           Page 6 of 19
              1. to bodily injury sustained by any person while using or
              occupying:
                                                     *****
              b. a motor vehicle that is owned by or available for the regular
              use of you, a relative, or a rated resident. This exclusion does
              not apply to a covered auto that is insured under this Part III;


      Id. at 117-119.


[5]   On January 31, 2019, Chastain filed a complaint for damages and declaratory

      relief against Progressive and Zuniga. He requested the court to enter a

      declaratory judgment regarding the benefits of the Policy’s underinsured

      motorist coverage. On February 26, 2019, Progressive filed a counterclaim for

      declaratory judgment.


[6]   On August 16, 2019, Progressive filed a motion for summary judgment and

      asserted that it was entitled to summary judgment because there was no genuine

      issue of material fact that the Policy excluded underinsured motorist coverage

      for bodily injury where Chastain was using a motor vehicle he owned but which

      was not insured under the Policy. On December 10, 2019, Chastain filed a

      motion for summary judgment and asserted his use of the scooter “did not

      constitute the use of a motor vehicle under the terms” of the Policy and that

      Progressive must provide him with “the underinsured motorist liability

      benefits.” Id. at 154. In his brief in support of his motion, Chastain asserted he

      suffered severe bodily injuries as a result of the accident and Progressive was

      obligated to compensate damages above Zuniga’s liability insurance limits.


      Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020         Page 7 of 19
[7]   On March 27, 2020, the court denied Progressive’s motion for summary

      judgment and granted Chastain’s motion for summary judgment. Specifically,

      the court’s order found:


                                             I. FINDINGS OF FACT

                 1. Robert Chastain (“Chastain”) is the named insured in a
                 personal automobile insurance policy (“policy”) issued by
                 Progressive Southeastern Insurance Company (“Progressive”).

                 2. The policy lists a 2002 Jeep Liberty and a 1999 Dodge Ram as
                 covered autos.

                 3. Part III of the policy provides Chastain
                 Uninsured/Underinsured Motorist (“UIM”) Coverage for bodily
                 injury arising out of an accident with an underinsured motor
                 vehicle.

                 4. The UIM portion of the policy contains the following
                 exclusion:

                           Coverage under this Part III will not apply:

                       1. to bodily injury sustained by any person while using or
                 occupying:

                                                               ....

                        b. a motor vehicle that is owned by or available for the
                 regular use of you, a relative, or a rated resident. This exclusion
                 does not apply to a covered auto that is insured under this Part
                 III [emphasis added];[ 2]




      2
          Bracketed text appears in the trial court’s order.


      Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020               Page 8 of 19
           5. In addition, the policy also contains the following exclusion
           under the UIM coverage:

                 2. to bodily injury sustained by you, a relative, or a rated
           person while using any vehicle, other than a covered auto,
           without the permission of the owner of the vehicle or in lawful
           possession of the vehicle [emphasis added];

           6. The policy contains the following exclusion under Part I,
           Liability coverage:

                    Coverage under this Part I, including our duty to defend,
                    will not apply to any insured person for:

                                                      ....

                    12. bodily injury or property damage arising out of the
                    ownership, maintenance or use of any vehicle owned by
                    you or furnished or available for your regular use, other
                    than a covered auto for which this coverage has been
                    purchased [emphasis added].

           7. The policy also contains the following exclusion under the
           Liability exclusion:

                    14. bodily injury or property damage arising out of your, a
                    relative’s, or a rated person’s use of a vehicle, other than a
                    covered auto, without the permission of the owner of the
                    vehicle or the person in lawful possession of the vehicle
                    [emphasis added];

           5.[ 3] On November 9, 2018, Plaintiff sustained bodily injuries in
           an accident with an underinsured motorist while driving on
           Washington Street, in Indianapolis, Indiana.




3
    It appears that the trial court misnumbered the findings.


Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020              Page 9 of 19
        6. Plaintiff was not using a covered auto at the time of the
        accident. He was using a 2017 Bashan Scooter (“the scooter”)
        which he owned, but, was not listed as covered auto in the
        policy.

        7. The scooter was motorized and should have been registered
        with the Indiana Bureau of Motor Vehicles as a Class B Motor
        Driven Cycle. Instead, Plaintiff had switched a license plate
        from a “Kymco Scooter” he owned, to the scooter, but had not
        officially registered the scooter with the Bureau of Motor
        Vehicles.

        8. Plaintiff had a valid Indiana State Identification Card that was
        endorsed with a Motor Driven Cycle – Class B Endorsement at
        the time of accident.

        9. For purposes of Part II, Medical Payments Coverage, only,
        “motor vehicle” is defined as “a land motor vehicle designed for
        use principally on public roads.” (Exh. C, numbered p. 7.) Part
        III of the policy, the UIM coverage does not define either “motor
        vehicle” or “vehicle”.

                                       II. DISCUSSION

                                               *****

        The Indiana Legislature defines a motor vehicle (see I.C. § 9-13-
        2-105(a)) which it distinguishes from a Class B Motor Driven
        Cycle (see I.C. § 9-13-2-26.5). The Plaintiff’s scooter is likely
        classified as a Class B Motor Driven Cycle as his Kymco Scooter
        was. Reasonable people may agree that a scooter is a motor
        vehicle. However, reasonable people would also agree that the
        Progressive policy in this instance is ambiguous as to what is
        excluded within the UIM section of the policy.

        As mentioned, “vehicle” is not defined in the policy. “Motor
        vehicle” is defined only in Part II, the Medical Payments
        Coverage portion of the policy as a “land motor vehicle designed
        for use principally on public roads.” Even if the definition were

Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020       Page 10 of 19
        applicable, it is not helpful. According to the definition, a
        “motor vehicle” is a “land motor vehicle” which does not clarify
        the ambiguity.

        Both the Liability exclusions (paragraphs 12 and 14) and UIM
        exclusions (paragraphs 1 and 2) mention “vehicle” and “motor
        vehicle” in similarly worded paragraphs. However, the Liability
        exclusion paragraph 12 and 14 exclude the use of “any vehicle”
        other than a covered auto. UIM exclusion paragraph 2 excludes
        use of “any vehicle” but paragraph 1 excludes the use of any
        “motor vehicle.” The wording of the policy suggests different
        meanings. A “vehicle” may be more broadly defined than a
        “motor vehicle,” or not. Regardless, it begs the question. Is a
        scooter a “vehicle” for purposes of the policy? Or is a scooter
        more narrowly defined as a “motor vehicle?” Reasonable people
        may disagree. Ambiguous terms in an insurance policy are to be
        construed against the insurer. American States Ins. Co. v. Kiger,
        662 N.E.2d 945, 947 (Ind. 1996)[, reh’g denied]. “This is
        particularly true where a policy excludes coverage.” Id.

                                     III. CONCLUSIONS

        1. An insurer has the right to limit its coverage of risks and its
        liability, and in so doing may impose exceptions, conditions, and
        exclusions upon its contractual obligations.

        2. As the drafter of their policies, any ambiguity in the contract
        will be construed against the insurance company.

        3. The undefined terms “vehicle” and “motor vehicle” contained
        in the Plaintiff’s UIM portion of his Progressive policy in effect
        on the date of any injuries he sustained on November 9, 2018,
        are ambiguous.

        4. Plaintiff’s claim for underinsured motorist liability benefits
        relating to the November 9, 2018 incident is not excluded under
        the UIM part of his Progressive policy.



Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020           Page 11 of 19
              5. Progressive is obligated to consider compensating Plaintiff’s
              injuries under the UIM coverage of his policy.


      Id. at 6-9.


                                                    Discussion

[8]   The issue is whether the trial court erred in denying Progressive’s motion for

      summary judgment and granting Chastain’s motion for summary judgment.

      Progressive argues the court erroneously determined that the exclusion

      contained in the Policy’s uninsured/underinsured motorist coverage (“UIM”)

      provision was ambiguous with regard to whether the Bashan Scooter operated

      by Chastain constituted a motor vehicle within the meaning of the UIM

      provision. It asserts that the Bashan Scooter was a “motor vehicle” within the

      meaning of the UIM exclusion and there is no coverage for any claim by

      Chastain arising out of the motor vehicle accident. Appellant’s Brief at 15. It

      asserts that the Bashan Scooter falls under the definition of motor vehicle under

      Indiana statute, the dictionary definition, and Indiana case law.


[9]   Chastain points to the Policy’s definition of “Auto” and asserts that, “[a]s [his]

      scooter was not four wheels, [he] was reasonable in believing that the scooter

      did not meet the Policy’s definition of an ‘Auto,’” and that “based upon the

      Policy’s definition of ‘Auto,’ which requires it to have 4 wheels, it was

      reasonable for [him] to believe that he couldn’t even insure his Scooter under

      the Policy even if he wanted to.” Appellee’s Brief at 15. He also argues that the




      Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020          Page 12 of 19
       term “motor vehicle” used in Part III is ambiguous and must be construed

       against Progressive.


[10]   In reply, Progressive argues that whether the scooter was an “auto” within the

       meaning of the Policy is entirely irrelevant to the determination of whether the

       phrase “motor vehicle” in the UIM exclusion is ambiguous. Appellant’s Reply

       Brief at 7. It also asserts that it is disingenuous for Chastain to assert that he

       would have no reason to believe the Bashan Scooter was a motor vehicle

       where, “[n]ot only was he required to register the Bashan Scooter (something

       his actions indicate he knew), but he was required to register the Bashan

       Scooter, a class B motor driven cycle, with the Indiana Bureau of Motor

       Vehicles.” Id. at 9.


[11]   We review an order for summary judgment de novo, applying the same standard

       as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The

       moving party bears the initial burden of making a prima facie showing that there

       are no genuine issues of material fact and that it is entitled to judgment as a

       matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

       judgment is improper if the moving party fails to carry its burden, but if it

       succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact. Id. We construe

       all factual inferences in favor of the nonmoving party and resolve all doubts as

       to the existence of a material issue against the moving party. Id. Our review of

       a summary judgment motion is limited to those materials designated to the trial

       court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973

       Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020         Page 13 of 19
       (Ind. 2001). In reviewing a trial court’s ruling on a motion for summary

       judgment, we may affirm on any grounds supported by the Indiana Trial Rule

       56 materials. Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E.2d 1, 3 (Ind. 2002).

       Matters involving disputed insurance policy terms present legal questions and

       are particularly apt for summary judgment. Erie Indem. Co. for Subscribers at Erie

       Ins. Exch. v. Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g

       denied.


[12]   “Insurance policies are contracts ‘subject to the same rules of judicial

       construction as other contracts.’” Id. at 630 (quoting State Farm Mut. Auto. Ins.

       Co. v. Jakubowicz, 56 N.E.3d 617, 619 (Ind. 2016)). When confronted with a

       dispute over the meaning of insurance policy terms, Indiana courts afford clear

       and unambiguous policy language its plain, ordinary meaning. Id. By contrast,

       courts may construe – or ascribe meaning to – ambiguous policy terms only. Id.


[13]   “‘[F]ailure to define a term in an insurance policy does not necessarily make it

       ambiguous’ and thus subject to judicial construction.” Id. (quoting Wagner v.

       Yates, 912 N.E.2d 805, 810 (Ind. 2009)). Further, “failing to define a policy

       term merely means it has no exclusive special meaning, and the courts can

       interpret it.” Id. “[P]arties to an insurance contract may not invite judicial

       construction by creating ambiguity.” Id. They may not make a term

       ambiguous by simply offering different policy interpretations. Id. “In other

       words, ambiguity does not arise from mere disagreement over a policy term’s

       meaning – that is, where ‘one party asserts an interpretation contrary to that

       asserted by the opposing party.’” Id. (quoting Wagner, 912 N.E.2d at 810).
       Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020         Page 14 of 19
       “Rather, insurance policy provisions are ambiguous only if they are ‘susceptible

       to more than one reasonable interpretation.’” Id. (quoting Holiday Hosp.

       Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 578 (Ind. 2013)) (emphasis

       added in Erie).


[14]   “When evaluating alleged ambiguities – whether there exist two reasonable

       interpretations for one policy term – courts read insurance policies ‘from the

       perspective of . . . ordinary policyholder[s] of average intelligence.’” Id.

       (quoting Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 246-247 (Ind. 2005)).

       “If reasonably intelligent policyholders would honestly disagree on the policy

       language’s meaning, then we will find the term ambiguous and subject to

       judicial construction.” Id. “Conversely, if reasonably intelligent policyholders

       could not legitimately disagree as to what the policy language means, we deem

       the term unambiguous and apply its plain ordinary meaning.” Id.


[15]   We note that Ind. Code § 27-7-5-5(b), which governs limitations on

       underinsured motorist coverage provides:


               When the coverage specified in this chapter is written to apply to
               one (1) or more motor vehicles under a single automobile liability
               policy, such coverage applies only to the operation of those
               motor vehicles for which a specific uninsured or underinsured
               motorist premium charge has been made and does not apply to
               the operation of any motor vehicles insured under the policy or
               owned by the named insured for which a premium charge has
               not been made.




       Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020        Page 15 of 19
       Thus, the exclusion in the Policy was allowed under Indiana law. See

       Progressive Paloverde Ins. v. Arnold, 16 N.E.3d 993, 997 (Ind. Ct. App. 2014)

       (holding the insured “did not qualify as insured under this policy for liability

       purposes while operating a motorcycle he owned but did not insure through

       [insurer],” and “[t]herefore, his policy’s uninsured motorist coverage exclusion

       regarding use of an owned, uninsured auto is not contrary to public policy”),

       trans. denied; 4 Veness v. Midland Risk Ins. Co., 732 N.E.2d 209, 213 (Ind. Ct. App.

       2000) (holding that Ind. Code § 27-7-5-5(b) “expressly permits an exclusion

       from UIM coverage for the operation of a motor vehicle insured under the

       policy or owned by the named insured for which a premium charge has not

       been made”).


[16]   Part II of the Policy defines “[m]otor vehicle” as a “land motor vehicle designed

       for use principally on public roads,” but this definition is preceded by the phrase

       “[w]hen used in this Part II.” Appellant’s Appendix Volume II at 114. Even

       assuming the definition of “motor vehicle” in Part II does not apply to Part III,

       we conclude that reversal is warranted.




       4
         In Arnold, the court held: “[L]anguage in an insurance policy which limits or diminishes the protection
       required by the uninsured motorist statute is contrary to public policy only if it specifically limits uninsured
       motorist protection as to [a] person who would otherwise qualify as insured for liability purposes.” Arnold,
       16 N.E.3d at 997 (quoting Jackson v. Jones, 804 N.E.2d 155, 161 (Ind. Ct. App. 2004)). The court observed
       that the insured’s policy contained similar exclusions in both the liability and uninsured motorist sections for
       an owned, uninsured vehicle. Id. As noted above, the Policy here also contained exclusions in Parts I and II
       that were similar to the exclusion in Part III, which governs underinsured motorist coverage.

       Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020                                Page 16 of 19
[17]   While the general definitions section and Part III of the Policy do not define

       “motor vehicle,” a motor vehicle is generally defined as “[a] self-propelled

       wheeled conveyance, such as a car or truck, that does not run on rails.”

       AMERICAN HERITAGE DICTIONARY 1148 (4th ed. 2006). It is also defined as

       “[a] wheeled conveyance that does not run on rails and is self-propelled, esp.

       one powered by an internal-combustion engine, a battery or fuel-cell, or a

       combination of these.” BLACK’S LAW DICTIONARY 1788 (10th ed. 2014). We

       find that the Bashan Scooter, which had a vehicle identification number and to

       which Chastain had attached a license plate without registering it with the

       Bureau of Motor Vehicles, falls under the plain and ordinary meaning of a

       motor vehicle.


[18]   We also note that, at the time of the accident, Ind. Code § 9-13-2-105(a)

       provided that a “[m]otor vehicle” means “a vehicle that is self-propelled. The

       term does not include a farm tractor, an implement of agriculture designed to be

       operated primarily in a farm field or on farm premises, or an electric personal

       assistive mobility device.” 5 (Subsequently amended by Pub. L. No. 142-2019, §

       2 (eff. July 1, 2019); Pub. L. No. 206-2019, § 8 (eff. July 1, 2019); Pub. L. No.

       211-2019, § 7 (eff. July 1, 2019); Pub. L. No. 120-2020, § 11 (eff. July 1, 2020)).

       To the extent the trial court stated that the “[t]he Indiana Legislature defines a




       5
         Subsection (b) of Ind. Code § 9-13-2-105 provided that “‘[m]otor vehicle,’ for purposes of IC 9-21[, which
       governs traffic regulation], means: (1) a vehicle that is self-propelled; or (2) a vehicle that is propelled by
       electric power obtained from overhead trolley wires, but not operated upon rails.” Subsection (c) provided
       that “‘[m]otor vehicle’, for purposes of IC 9-32, [which governs dealer services,] includes a semitrailer, trailer,
       or recreational vehicle.”

       Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020                                   Page 17 of 19
       motor vehicle (see I.C. § 9-13-2-105(a)) which it distinguishes from a Class B

       Motor Driven Cycle (see I.C. § 9-13-2-26.5),” Appellant’s Appendix Volume II

       at 8, we disagree. At the time of the accident, Ind. Code § 9-13-2-26.5 provided

       in part that a “‘[c]lass B motor driven cycle’ means a motor vehicle . . . .”

       (Emphasis added). 6 Ind. Code §§ 9-13-2-105 and 9-13-2-26.5 support the

       conclusion that Chastain’s scooter was a motor vehicle. 7


[19]   We conclude that the term “motor vehicle” under the Policy is unambiguous.

       The designated evidence reveals that the 2017 Bashan Scooter was a motor

       vehicle owned by or available for Chastain’s regular use. Accordingly,

       underinsured motorist coverage was excluded under Part III of the Policy

       which states that “[c]overage under this Part III will not apply: 1. to bodily




       6
           In its entirety, Ind. Code § 9-13-2-26.5 provided:

                  “Class B motor driven cycle” means a motor vehicle that:
                          (1) has a seat or saddle for the use of the rider;
                          (2) is designed to travel on not more than three (3) wheels in contact with the
                          ground;
                          (3) complies with applicable motor vehicle equipment requirements under IC 9-19
                          and 49 CFR 571;
                          (4) has a cylinder capacity not exceeding fifty (50) cubic centimeters; and
                          (5) is registered as a Class B motor driven cycle under IC 9-18 (before its
                          expiration) or IC 9-18.1.
                  The term does not include an electric personal assistive mobility device.

       The statute was subsequently amended to provide in part that “[t]he term does not include an electric
       personal assistive mobility device or an electric bicycle.” See Pub. L. No. P.L.206-2019, § 2 (eff. July 1,
       2019).

       7
        To the extent Chastain asserts that Indiana law allows him to operate a scooter under different conditions
       than a traditional car, truck, or motorcycle, and asserts that “for purposes of IC 9-5 [Financial
       Responsibility], the term ‘motor vehicle’ does not include a Class B motor driven cycle (i.e. Chastain’s
       scooter),’” Appellee’s Brief at 16 (quoting Ind. Code § 9-13-2-105 (2015)), we note that he cites a version of
       Ind. Code § 9-13-2-105, which was not in effect at the time of the Policy.


       Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020                                 Page 18 of 19
       injury sustained by any person while using or occupying . . . a motor vehicle

       that is owned by or available for the regular use of you, a relative or a rated

       resident.” Appellant’s Appendix Volume II at 119.


[20]   For the foregoing reasons, we reverse the trial court’s denial of Progressive’s

       motion for summary judgment and grant of Chastain’s motion for summary

       judgment.


[21]   Reversed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CT-876 | August 17, 2020       Page 19 of 19
