FOR PUBLICATION                                           Sep 11 2013, 9:17 am




ATTORNEY FOR APPELLANT:                        ATTORNEY FOR APPELLEE:

JOHN P. NICHOLS                                MATTHEW J. JANKOWSKI
Anderson & Nichols                             Kopka Pinkus Dolin & Eads, PC
Terre Haute, Indiana                           Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

KARI EVERHART,                                 )
                                               )
      Appellant,                               )
                                               )
             vs.                               )    No. 84A01-1303-PL-128
                                               )
FOUNDERS INSURANCE COMPANY                     )
                                               )
      Appellee.                                )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable Phillip I. Adler, Judge
                             Cause No. 84D02-1109-PL-8980



                                   September 11, 2013


                            OPINION - FOR PUBLICATION


BROWN, Judge
        Kari Everhart appeals from the court’s grant of summary judgment in favor of

Founders Insurance Company (“Founders”) and from the denial of Everhart’s motion to

correct error. Everhart raises one issue which we revise and restate as whether the court

erred in granting summary judgment. We affirm.

                           FACTS AND PROCEDURAL HISTORY

        On March 14, 2009, an incident took place at Club Coyote in West Terre Haute,

Indiana, in which Everhart sustained injuries including a broken elbow. At the time,

specifically between January 10, 2009 and January 10, 2010, Club Coyote had insurance

coverage provided by Founders under Policy Number CPIN000061 (the “Policy”). 1 The

Policy, under Section I discussing classes of coverage, states:

        COVERAGE A BODILY INJURY AND PROPERTY DAMAGE
        LIABILITY

        1. Insuring Agreement

             a. We will pay those sums that the insured becomes legally obligated to
                pay as damages because of “bodily injury”[2] . . . to which this
                insurance applies. We will have the right and duty to defend the
                insured against any “suit” seeking those damages. However, we will
                have no duty to defend the insured against any “suit” seeking
                damages for “bodily injury” . . . to which this insurance does not
                apply. . . .

Appellant’s Appendix at 36. Paragraph 2 of Coverage A listed exclusions denoting

instances in which coverage under the Policy would not apply, specifically listing

exclusions as Paragraphs 2.(a) through 2.(o). The Policy also contained an attached



      We observe that the named insured on the Policy is listed as “TOP HAT INC DBA CLUB
        1

KOYOTE.” Appellant’s Appendix at 33. We refer to the insured in this matter as “Club Coyote.”
        2
         The Policy defines “bodily injury” as “bodily injury, sickness or disease sustained by a person,
including death resulting from any of these at any time.” Appellant’s Appendix at 48.
                                                   2
endorsement entitled “INDIANA CGL ENDORSEMENT – ASSAULT AND/OR

BATTERY EXCLUSION” (the “Endorsement”), which states the following:

       This endorsement modifies insurance provided under the following:

       COMMERCIAL GENERAL LIABILITY COVERAGE PART

       A. The following exclusions are added to paragraph 2. Exclusions of
       SECTION I -- COVERAGE A BODILY INJURY AND PROPERTY
       DAMAGE LIABILITY . . . :

       This insurance does not apply to:

       1. Assault and/or Battery/Negligent Hiring
       “Bodily injury”. . . arising from:
             (a) assault and/or battery committed by any insured, any “employee”
                 of an insured, or any other person;
             (b) The failure to suppress or prevent assault and/or battery by any
                 person in subparagraph 1.(a) above;
             (c) The selling, serving or furnishing of alcoholic beverages which
                 result in an assault and/or battery; or
             (d) The negligent:
                     (1) Employment;
                     (2) Investigation;
                     (3) Supervision;
                     (4) Reporting to the proper authorities, or failure to so report;
                         or
                     (5) Retention

                       of or by a person for whom any insured is or ever was legally
                       responsible and whose conduct would be excluded by
                       subparagraphs 1.(a) through 1.(c) above.

Id. at 84.

       On March 4, 2011, Everhart filed a complaint for damages against Club Coyote in

Cause No. 84D02-1103-CT-1708 (the “Underlying Action”).3 On September 27, 2011,

Founders filed its complaint for declaratory judgment in Cause No. 84D02-1109-PL-

       3
          Specifically, Everhart brought suit against Club Coyote and Paul and Nancy Allsup, the owners
of the premises of Club Coyote.

                                                  3
8980 (the “Declaratory Judgment Action”) against Everhart and Club Coyote seeking a

declaration that it had no duty to defend or indemnify either party in the Underlying

Action.4 On October 24, 2011, Club Coyote filed its answer to Founders’ complaint, and,

on November 16, 2011, Everhart timely filed her answer. On July 3, 2012, Founders

filed a motion for summary judgment, supporting memorandum, and designation of

evidence.     On October 5, 2012, Everhart filed her response to Founders’ summary

judgment motion along with a designation of evidence. Everhart designated, as Exhibit

B, her answers to interrogatories submitted in the Underlying Action. Interrogatory

Number 6 (“Interrogatory No. 6”) asked for Everhart to “[d]escribe in detail how the

incident described in [her] Complaint happened, including what [she was] doing

immediately before and leading up to the time the accident occurred,” and she responded

as follows:

       I was standing at the very left end of the long bar. I looked to the middle of
       the bar where patrons are served and saw the patron who was shoved into
       me & the bartender Mike Davis were sharing some words. The Mike [sic]
       grabbed the patron by the back of the head and bounced his head off of the
       bar approximately 3 to 4 times & then shoved him into a small crowd of
       people standing in front of the bar. The patron was then shoved a second
       time by Brice Elson, in my direction. The patron then stumbled & fell
       violently grabbing me by the left shoulder, bringing me to fall underneath
       of him,- throwing my right arm out to catch my fall, breaking my arm in
       several places.

Id. at 106.




       4
         Specifically, Founders names in its complaint for declaratory judgment Everhart, “Top Hat, Inc.
d/b/a Club Koyote,” and the Allsups. Appellant’s Appendix at 28. On February 8, 2012, the Allsups
were voluntarily dismissed by Founders pursuant to Ind. Trial Rule 41(A)(2) based upon a January 26,
2012 Fact Stipulation by All Parties stating that the Allsups were not entitled to defense or indemnity
from Founders in the Underlying Action.
                                                   4
       The court held a summary judgment hearing in the Declaratory Judgment Action

on November 20, 2012, and on November 26, 2012, the court granted summary judgment

in Founders’ favor, specifically finding that “[i]n viewing [Everhart’s] answer to

[Interrogatory No. 6] . . . it would appear that her description of what occurred on the

evening in question which resulted in her alleged injury and damages does fit within the

definition [of battery] as described by the Indiana Court of Appeals” in the case of Singh

v. Lyday, 889 N.E.2d 342 (Ind. Ct. App. 2008), reh’g denied, trans. denied.5 Id. at 7. On

December 17, 2012, Everhart filed her motion to correct error, Founders filed its response

to Everhart’s motion to correct error on January 4, 2013, and, following a hearing on the

motion on February 13, 2013, the court entered an order denying Everhart’s motion on

February 19, 2013.

                          ISSUE AND STANDARD OF REVIEW

       The issue is whether the court erred in granting Founders’ motion for summary

judgment.     When a trial court’s ruling granting or denying summary judgment is

challenged on appeal, the procedure and standard under Indiana law is clear.                 Our

standard of review is the same as it is for the trial court. Kroger Co. v. Plonski, 930

N.E.2d 1, 4 (Ind. 2010). 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.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d

633, 637 (Ind. 2012). Summary judgment is improper if the moving party fails to carry

its burden, but if it succeeds, then the non-moving party must come forward with


       5
         Although the court’s grant of summary judgment was also entered against Club Coyote, Club
Coyote has not sought review of the court’s order and is not a party to this appeal.
                                                5
evidence establishing the existence of a genuine issue of material fact. Id. We construe

all factual inferences in favor of the non-moving party and resolve all doubts as to the

existence of a material issue against the moving party. Plonski, 930 N.E.2d at 5. An

appellate court reviewing a challenged trial court summary judgment ruling is limited to

the designated evidence before the trial court, see Ind. Trial Rule 56(H), but is

constrained to neither the claims and arguments presented at trial nor the rationale of the

trial court ruling, see Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784,

790 (Ind. 2012) (“We will reverse if the law has been incorrectly applied to the facts.

Otherwise, we will affirm a grant of summary judgment upon any theory supported by

evidence in the record.”), cert. denied, 133 S. Ct. 233 (2012); Wagner v. Yates, 912

N.E.2d 805, 811 (Ind. 2009) (“[W]e are not limited to reviewing the trial court’s reasons

for granting or denying summary judgment but rather we may affirm a grant of summary

judgment upon any theory supported by the evidence.”).

       The entry of specific findings and conclusions does not alter the nature of a

summary judgment which is a judgment entered when there are no genuine issues of

material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the

summary judgment context, we are not bound by the trial court’s specific findings of fact

and conclusions of law. Id. They merely aid our review by providing us with a statement

of reasons for the trial court’s actions. Id.

       Also, we generally review rulings on motions to correct error for an abuse of

discretion. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App.

2009); Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008),


                                                6
reh’g denied. An abuse of discretion occurs if the trial court’s decision is against the

logic and effect of the facts and circumstances before it, or the reasonable inferences

drawn therefrom. Lighty v. Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g

denied.

       The provisions of an insurance contract are subject to the same rules of

construction as are other contracts. Cincinnati Ins. Co. v. Adkins, 935 N.E.2d 190, 192

(Ind. Ct. App. 2010). Thus, the construction of Founders’ Policy presents a pure question

of law that we review de novo. Id. “If its terms are clear and unambiguous, courts must

give those terms their clear and ordinary meaning.” Dunn v. Meridian Mut. Ins. Co., 836

N.E.2d 249, 252 (Ind. 2005). Courts should interpret a contract so as to harmonize its

provisions, rather than place them in conflict. Id. “We will make all attempts to construe

the language of a contract so as not to render any words, phrases, or terms ineffective or

meaningless.” Rogers v. Lockard, 767 N.E.2d 982, 992 (Ind. Ct. App. 2002). “A

contract will be found to be ambiguous only if reasonable persons would differ as to the

meaning of its terms.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002), reh’g

denied. “When a contract’s terms are ambiguous or uncertain and its interpretation

requires extrinsic evidence, its construction is a matter for the fact-finder.” Johnson v.

Johnson, 920 N.E.2d 253, 256 (Ind. 2010).

       Also, in the context of an insurance policy, “[w]here there is ambiguity, insurance

policies are to be construed strictly against the insurer” and “[t]his is particularly true

where a policy excludes coverage.” Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947

(Ind. 1996), reh’g denied. “This strict construal against the insurer is driven by the fact


                                            7
that the insurer drafts the policy and foists its terms upon the customer. ‘The insurance

companies write the policies; we buy their forms or we do not buy insurance.’” Id.

                                        DISCUSSION

       Everhart argues that “[t]he exclusion cited by Founders is not applicable in the

instant case” because “the proximate cause of her injuries and damages was negligence

on the part of . . . Club Coyote” and “the exclusion relied upon . . . is for intentional acts.”

Appellant’s Brief at 6. Everhart argues that “[c]learly, [she] has never contended that any

employee or patron of . . . Club Coyote did anything intentionally,” and she points

specifically to Interrogatory No. 6 for this proposition. Id.

       Founders argues that “[t]he admissions contained in the parties’ pleadings

demonstrate that there is no dispute that Everhart sustained the alleged injuries . . . as a

result of a battery” and it is “axiomatic that an allegation in a pleading which is left

uncontested is deemed admitted under the rule governing the effect of failure to deny.”

Appellee’s Brief at 8-9. Founders underscores that Everhart admitted in her answer the

allegations contained in Paragraphs 7 and 8 of the Founders’ complaint for declaratory

judgment which stated that Everhart was assaulted and/or battered while working at Club

Coyote which resulted in the damages in the underlying case, and Founders argues that

the Endorsement “is directly applicable to such claims . . . .” Id. at 9. Founders argues

that the conduct described by Everhart in her answer to Interrogatory No. 6 is within the

scope of the definition of battery under Indiana law, that coverage for her injuries is

excluded by the plain language of the Endorsement to the policy issued by Founders to




                                               8
Club Coyote, and that accordingly summary judgment in Founders’ favor was

appropriate.

       As noted by Founders in its arguments and by the trial court in its order, this court

has previously recognized that Indiana follows the definition of battery provided by the

Restatement (Second) of Torts as follows:

              One is liable for the tort of battery if “(a) he acts intending to cause a
       harmful or offensive contact with the person of the other or third person, or
       an imminent apprehension of such contact, and (b) a harmful contact with
       the person of the other directly or indirectly results.” Mullins v. Parkview
       Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007) (quoting Restatement
       (Second) of Torts § 13 (1965)). “A touching, however slight, may
       constitute an assault and battery.” Knight v. Ind. Ins. Co., 871 N.E.2d 357,
       362 (Ind. Ct. App. 2007).

Singh, 889 N.E.2d at 360. Also, Subsection (a) of the Endorsement excludes coverage

for batteries “committed by any insured, any ‘employee’ of an insured, or any other

person.” Appellant’s Appendix at 84.

       This case turns on whether Everhart’s version of the events of what transpired and

caused her injuries, as stated in Interrogatory No. 6, was a battery, because, if so,

coverage under the Policy would be excluded pursuant to the Endorsement. Again,

Interrogatory No. 6 states:

       I was standing at the very left end of the long bar. I looked to the middle of
       the bar where patrons are served and saw the patron who was shoved into
       me & the bartender Mike Davis were sharing some words. The Mike [sic]
       grabbed the patron by the back of the head and bounced his head off of the
       bar approximately 3 to 4 times & then shoved him into a small crowd of
       people standing in front of the bar. The patron was then shoved a second
       time by Brice Elson, in my direction. The patron then stumbled & fell
       violently grabbing me by the left shoulder, bringing me to fall underneath
       of him,- throwing my right arm out to catch my fall, breaking my arm in
       several places.


                                              9
Id. at 106.

       Thus, according to Everhart, the bartender grabbed a patron by the head, bounced

his head about three or four times against the bar, and shoved the patron into a crowd of

people. Then, a second person, Brice Elson, shoved the patron in her direction, and the

patron grabbed her as he fell and brought Everhart to the ground, resulting in her

breaking her arm. The record is not clear whether or not Elson was an employee of the

insured, Club Coyote, but as noted above such a distinction is immaterial in deciding this

case. The Endorsement excludes coverage for batteries committed by both employees of

the insured and any other persons, and, as noted by Indiana’s definition of battery, a

battery results if an individual acts intending to cause harmful contact with not only the

person contacted, but also a third person, and harmful contact directly or indirectly

results. There is no dispute that Elson intentionally pushed the patron, a third person, that

the patron came into contact with Everhart, and that Everhart was harmed as a result by

breaking her arm, and accordingly, Everhart was the victim of a battery on the premises

of Club Coyote. We therefore conclude that the court did not err when it granted

summary judgment in favor of Founders. See Fordyce v. Montgomery, 424 S.W.2d 746,

751 (Mo. Ct. App. 1968) (noting that if the defendants had intended to cause a battery on

another but “succeeded by mistake in injuring the plaintiff, then they were liable to the

plaintiff to the same extent as if he had been their intended victim . . .”).

                                       CONCLUSION

       For the foregoing reasons, we affirm the trial court’s grant of summary judgment

in favor of Founders and its denial of Everhart’s motion to correct error.


                                              10
      Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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