MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Nov 20 2018, 8:21 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
DIANE PROCTER-FLEECE                                    SENTRY INSURANCE
John P. Young                                           A MUTUAL COMPANY
Young & Young                                           Dennis F. Cantrell
Indianapolis, Indiana                                   Cantrell, Strenski &
Edward R. Hannon                                        Mehringer, LLP
Graham T. Youngs                                        Indianapolis, Indiana
Steuerwald, Hannon & Witham, LLP                        Jason R. Fathallah
Danville, Indiana                                       Von Briesen & Roper, S.C.
                                                        Milwaukee, Wisconsin



                                          IN THE
    COURT OF APPEALS OF INDIANA

Diane Procter-Fleece,                                   November 20, 2018
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        18A-PL-1000
and                                                     Appeal from the Montgomery
Sentry Insurance,                                       Superior Court
                                                        The Honorable Peggy Q. Lohorn,
Intervenor Plaintiff,
                                                        Judge
        v.                                              Trial Court Cause No.
                                                        54D02-1505-PL-383
Zachary Personett, West Central
Indiana Plumbing d/b/a Justin
Dorsey Plumbing,


Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018                   Page 1 of 10
      Defendants,
      and
      Sentry Insurance A Mutual
      Company,
      Appellee-Defendant




      Baker, Judge.


[1]   Diane Procter-Fleece was driving her own vehicle in the course of her

      employment when another vehicle collided with hers. Procter-Fleece

      eventually filed a lawsuit against Sentry Insurance (Sentry), which was her

      employer’s insurer, seeking underinsured motorist (UIM) coverage. The trial

      court granted summary judgment in favor of Sentry, finding as a matter of law

      that UIM coverage did not attach to Procter-Fleece’s vehicle. Finding no error,

      we affirm.


                                                    Facts
[2]   This case stems from an automobile accident that occurred on December 17,

      2013, in Hendricks County. Procter-Fleece was driving her personal vehicle, a

      2010 Ford Expedition, within the scope of her employment with TEQ

      Solutions, Inc. (TEQ), when Zachary Personett drove through a stop sign and

      collided with Procter-Fleece.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018   Page 2 of 10
[3]   On May 14, 2015, Procter-Fleece filed a lawsuit against Personett. She later

      amended her complaint to add Personett’s employer and Sentry, which was

      TEQ’s insurer.1 Her claim against Sentry sought UIM coverage. Eventually,

      Procter-Fleece settled with Personett for his policy limits and dismissed all

      defendants aside from Sentry.


[4]   The relevant insurance policy (the Policy) covered November 1, 2013, through

      November 1, 2014. The Policy provides UIM coverage only for specifically

      described autos, which is defined as “[o]nly those ‘autos’ described in Item

      Three of the Declarations for which a premium charge is shown[.]” Appellant’s

      App. Vol. II p. 208. Item Three initially described one vehicle, a 2008

      Chevrolet Suburban, and was later changed to describe a different vehicle, a

      2014 Chevrolet Camaro SS. The 2010 Ford Expedition being driven by

      Procter-Fleece at the time of the accident is not identified in Item Three of the

      Declarations or anywhere else in the Policy.


[5]   Instead, the 2010 Ford Expedition falls into the Policy’s “Non-owned ‘Autos’

      Only” category, which is defined as “[o]nly those ‘autos’ [TEQ does] not own,

      lease, hire, rent or borrow that are used in connections with your business. This

      includes ‘autos’ owned by your ‘employees’ . . . but only while used in your

      business or personal affairs.” Id. There is no UIM coverage for non-owned

      autos.




      1
          Sentry also intervened as a plaintiff to protect a worker’s compensation subrogation claim.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018                 Page 3 of 10
[6]   On August 15, 2017, Sentry filed a motion for summary judgment, arguing that

      as a matter of law, Procter-Fleece is not entitled to UIM coverage. Procter-

      Fleece filed a motion for partial summary judgment. Following briefing and a

      hearing, on April 24, 2018, the trial court entered summary judgment in favor

      of Sentry. Procter-Fleece now appeals.


                                   Discussion and Decision
[7]   Procter-Fleece argues that the trial court erred by entering summary judgment

      in Sentry’s favor and by denying her partial summary judgment motion. Our

      standard of review on summary judgment is well settled:


              The party moving for summary judgment has the burden of
              making a prima facie showing that there is no genuine issue of
              material fact and that the moving party is entitled to judgment as
              a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
              Once these two requirements are met by the moving party, the
              burden then shifts to the non-moving party to show the existence
              of a genuine issue by setting forth specifically designated
              facts. Id. Any doubt as to any facts or inferences to be drawn
              therefrom must be resolved in favor of the non-moving
              party. Id. Summary judgment should be granted only if the
              evidence sanctioned by Indiana Trial Rule 56(C) shows there is
              no genuine issue of material fact and that the moving party
              deserves judgment as a matter of law. Freidline v. Shelby Ins.
              Co., 774 N.E.2d 37, 39 (Ind. 2002).


      Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

      This case does not turn on any disputed facts; therefore, it is particularly well

      suited for disposal by summary judgment.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018   Page 4 of 10
[8]   Initially, we note that it is undisputed that the Policy itself does not provide

      UIM coverage for Procter-Fleece’s vehicle. As noted above, the Policy states

      that UIM coverage is provided only for specifically described autos, which

      included two specific vehicles, neither of which is the vehicle being driven by

      Procter-Fleece at the time of the accident. Procter-Fleece argues that,

      notwithstanding the lack of specific UIM coverage, she is entitled to such

      coverage because Sentry never obtained a written rejection of such coverage

      from TEQ.


[9]   Our analysis must begin with and turn on the language of Indiana Code section

      27-7-5-2. In relevant part, that statute provides as follows:


              (a)     Except as provided in subsections (d), (f), and (h), the insurer
                      shall make available, in each automobile liability or motor
                      vehicle liability policy of insurance which is delivered or
                      issued for delivery in this state with respect to any motor
                      vehicle registered or principally garaged in this state,
                      insuring against loss resulting from liability imposed by
                      law for bodily injury or death suffered by any person and
                      for injury to or destruction of property to others arising
                      from the ownership, maintenance, or use of a motor
                      vehicle, or in a supplement to such a policy, the following
                      types of coverage:


                                                      ***


                      (2)      in limits for bodily injury or death not less than
                               those set forth in IC 9-25-4-5 under policy
                               provisions approved by the commissioner of
                               insurance, for the protection of persons insured
                               under the policy provisions who are legally entitled

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018   Page 5 of 10
                         to recover damages from owners or operators of
                         uninsured or underinsured motor vehicles because
                         of bodily injury, sickness or disease, including death
                         resulting therefrom.


                                                ***


        (b)     A named insured of an automobile or motor vehicle
                liability policy has the right, in writing, to:


                (1)      reject both the uninsured motorist coverage and the
                         underinsured motorist coverage provided for in this
                         section; or


                (2)      reject either the uninsured motorist coverage alone
                         or the underinsured motorist coverage alone, if the
                         insurer provides the coverage not rejected separately
                         from the coverage rejected.


                . . . Following rejection of either or both uninsured
                motorist coverage or underinsured motorist coverage,
                unless later requested in writing, the insurer need not offer
                uninsured motorist coverage or underinsured motorist
                coverage in or supplemental to a renewal or replacement
                policy issued to the same insured by the same insurer or a
                subsidiary or an affiliate of the originally issuing
                insurer. . . .


                                                ***


        (d)     The following apply to the coverage described in
                subsection (a) in connection with a commercial umbrella
                or excess liability policy, including a commercial umbrella
                or excess liability policy that is issued or delivered to a

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018   Page 6 of 10
                motor carrier (as defined in IC 8-2.1-17-10) that is in
                compliance with the minimum levels of financial
                responsibility set forth in 49 CFR Part 387:


                (1)      An insurer is not required to make available in a
                         commercial umbrella or excess liability policy the
                         coverage described in subsection (a).


                                                ***


        (e)     A rejection under subsection (b) of uninsured motorist
                coverage or underinsured motorist coverage in an
                underlying commercial policy of insurance is also a
                rejection of uninsured motorist coverage or underinsured
                motorist coverage in a commercial umbrella or excess
                liability policy.


        (f)     An insurer is not required to make available the coverage
                described in subsection (a) in connection with coverage
                that:


                (1)      is related to or included in a commercial policy of
                         property and casualty insurance described in Class 2
                         or Class 3 of IC 27-1-5-1; and


                (2)      covers a loss related to a motor vehicle:


                         (A)     of which the insured is not the owner; and

                         (B)     that is used:

                                 (i)      by the insured or an agent of the
                                          insured; and

                                 (ii)     for purposes authorized by the insured.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018   Page 7 of 10
       (Emphasis added).


[10]   The plain language of subsection -2(f) expressly exempts insurers from a

       requirement to provide UIM coverage for automobiles that are not owned by

       the insured but are used for purposes authorized by the insured—for example,

       Procter-Fleece’s vehicle. See also Gheae v. Founders Ins. Co., 854 N.E.2d 419, 423

       (Ind. Ct. App. 2006) (observing that “[i]nsurance companies are free to limit

       their liability, so long as they do so in a manner consistent with public policy as

       reflected by case or statutory law”). Because this unambiguous statutory

       language states that Sentry is not required to provide UIM coverage under these

       circumstances, and because the Policy did not, in fact, provide such coverage, it

       would be illogical to require Sentry to obtain a written rejection of such

       coverage. It is apparent that subsection -2(b), which sets forth the requirements

       for rejections of coverage, applies to coverage described in subsection -2(a) that

       insurers are required to provide absent such rejection.


[11]   Procter-Fleece argues that subsection -2(f) must be interpreted in conjunction

       with subsections -2(e) and -2(d). She maintains that (1) “an insurer must still

       obtain a written rejection from an insurer that does in fact offer commercial

       excess coverage—even though not required to do so—unless the consumer

       rejects the uninsured motorist or underinsured motorist coverage in the

       underlying commercial policy”; and (2) “subsection (e) modifies subsection (d),




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018   Page 8 of 10
       and subsection (d) contains the same language as subsection (f).” Appellant’s Br.

       p. 19-20 (emphases original).2


[12]   We do not find this argument to be compelling. Accepting Procter-Fleece’s

       interpretation of subsection -2(e) solely for argument’s sake, we note that if the

       General Assembly desired for subsection -2(f) to be drafted in such a fashion, it

       would have done so. There is simply no indication in the plain statutory

       language that subsection -2(f) is modified or affected by the language of

       subsections -2(d) and -2(e). Indeed, whereas subsections -2(d) and -2(e) are

       related to one another because they both address commercial umbrella or

       excess liability policies, subsection -2(f) addresses something else altogether—

       non-owned automobiles. Therefore, we decline Procter-Fleece’s invitation to

       read language into the statute that is not there.3


[13]   Procter-Fleece also argues that even if Sentry was not required to “make

       available” UIM coverage under these circumstances, it did, in fact, make such

       coverage available. Therefore, a written rejection of such coverage was

       required. In support of her contention that Sentry made UIM coverage

       available, Procter-Fleece directs our attention to the Policy’s schedule of

       coverages and covered autos. That schedule lists various types of coverages and




       2
        Procter-Fleece directs our attention to Frye v. Auto-Owners Ins. Co., 845 F.3d 782 (7th Cir. 2017), in support
       of her argument. As Frye did not relate to subsection -2(f) or the relationship between -2(e) and -2(f),
       however, we find it inapposite to Procter-Fleece’s argument.
       3
        Both parties spend time on the history of statutes governing UIM coverage in Indiana. Because we find the
       plain language of the relevant statute to be clear and unambiguous, we need not consider its history.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018                   Page 9 of 10
       to what automobiles they apply. For example, liability coverage attaches both

       to the specifically described autos and to non-owned autos. Appellant’s App.

       Vol. III p. 234. UIM coverage, on the other hand, was provided only to the

       specifically described autos. Id. Procter-Fleece insists that because UIM

       coverage was provided at all, it was “made available” to TEQ for non-owned

       autos, requiring a written rejection.


[14]   We disagree. “Available” means “present or ready for immediate use.”

       Merriam-Webster, at https://www.merriam-webster.com/dictionary/available.

       The plain and unambiguous language of the Policy clearly states the opposite—

       UIM coverage was not “present or ready for immediate use” for non-owned

       autos. That it was “made available” for certain types of vehicles does not mean

       that it was “made available” for all.


[15]   In sum, Indiana Code section 27-7-5-2(f) clearly states that Sentry was not

       required to offer UIM coverage for vehicles not owned by its insured.

       Moreover, Sentry did not, in fact, make available such coverage. Under these

       circumstances, no written rejection of UIM coverage for non-owned vehicles

       was required. As Procter-Fleece’s vehicle is a non-owned vehicle, no UIM

       coverage attached to that vehicle. Therefore, the trial court did not err by

       granting summary judgment in Sentry’s favor.


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


       May, J., and Robb, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1000 | November 20, 2018   Page 10 of 10
