MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            Jun 24 2015, 8:14 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Samuel L. Jacobs                                          Robert W. Hash
Adam S. Willfond                                          Duffin & Hash, LLP
Jacobs Law LLC                                            Indianapolis, Indiana
Indianapolis, Indiana

Robert W. Johnson
Johnson Jensen LLP
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Henry Swanigan,                                          June 24, 2015

Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A04-1408-CT-371
        v.                                               Appeal from the Marion Superior
                                                         Court
                                                         The Honorable Patrick L. McCarty,
Founders Insurance Company                               Judge
and Ronnie Watson,                                       Cause No. 49D03-1307-CT-28167
Appellees-Defendants




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015           Page 1 of 14
                                          Case Summary
[1]   Henry Swanigan (“Swanigan”) appeals a grant of summary judgment in favor

      of Founders Insurance Company (“Founders”) on Swanigan’s complaint for

      damages. Swanigan presents the sole issue of whether the trial court properly

      granted summary judgment to Founders, upon concluding that there was no

      use of an uninsured vehicle as contemplated by the uninsured motorists

      (“UIM”) endorsement of the automobile policy held by Swanigan (“the

      Policy”). We affirm.



                            Facts and Procedural History
[2]   On August 7, 2011, Swanigan exited an Indianapolis CITGO convenience store

      after making a purchase. Customer Ronnie Watson (“Watson”) remained

      inside the store. Watson’s vehicle, with the windows rolled down and

      Watson’s pit bull inside, was parked by a gas pump. As Swanigan crossed the

      parking lot, Watson’s pit bull leaped from Watson’s vehicle and attacked

      Swanigan, causing bodily injury. Watson’s vehicle was uninsured. Swanigan’s

      vehicle was insured by Founders.


[3]   On July 22, 2013, Swanigan filed a complaint for damages, naming Founders

      and Watson as defendants. Swanigan moved for partial summary judgment




      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 2 of 14
      and Founders filed a cross-motion for summary judgment. 1 On April 7, 2014,

      the trial court conducted a hearing on the pending motions, at which argument

      of counsel was heard on the issue of whether Swanigan’s damages arose from a

      “use” of Watson’s vehicle. On May 8, 2014, the trial court entered an order

      denying Swanigan’s motion for partial summary judgment and granting

      Founders’ motion for summary judgment. On July 24, 2014, the trial court

      certified its order for interlocutory appeal. On September 22, 2014, this Court

      accepted jurisdiction of the appeal.



                                  Discussion and Decision
                         Summary Judgment Standard of Review
[4]   Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary

      judgment is appropriate when there are no genuine issues of material fact and

      the moving party is entitled to judgment as a matter of law. When reviewing a

      grant of summary judgment, our standard of review is the same as that of the

      trial court. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind. 2002).

      We consider only those facts that the parties designated to the trial court. Id.

      The Court must accept as true those facts alleged by the nonmoving party,




      1
       Watson did not answer the complaint or participate in trial court proceedings. He is not an active party on
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015              Page 3 of 14
      construe the evidence in favor of the nonmovant, and resolve all doubts against

      the moving party. Id.


[5]   A trial court’s order on summary judgment is cloaked with a presumption of

      validity; the party appealing from a grant of summary judgment must bear the

      burden of persuading this Court that the decision was erroneous. Indianapolis

      Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied.

      Although the appellant bears the burden of persuasion, we will assess the trial

      court’s decision to ensure that the parties were not improperly denied their day

      in court. Ind. Health Ctrs., Inc. v. Cardinal Health Sys., Inc., 774 N.E.2d 992, 999

      (Ind. Ct. App. 2002). The fact that cross-motions are filed does not alter our

      standard of review. KPMG, Peak Marwick, LLP v. Carmel Fin. Corp., Inc., 784

      N.E.2d 1057, 1060 (Ind. Ct. App. 2003).


                          Insurance Contract Standard of Review
[6]   The interpretation of an insurance policy is primarily a question of law for the

      court, and it is therefore a question that is particularly well suited for summary

      judgment. Estate of Sullivan v. Allstate Ins. Co., 841 N.E.2d 1220, 1223 (Ind. Ct.

      App. 2006). Generally, where the terms of a policy are ambiguous, we will

      construe the ambiguity in favor of the insured. Beam v. Wausau Ins. Co., 765

      N.E.2d 524, 528 (Ind. 2002). Where, as here, the claimant is not a stranger to

      the policyholder, this construction favoring the policyholder will apply as

      opposed to neutral construction principles. Argonaut Ins. Co. v. Jones, 953

      N.E.2d 608, 616 (Ind. Ct. App. 2011), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 4 of 14
[7]   Nonetheless, although ambiguities are construed in favor of the insured, clear

      and unambiguous policy language will be given its ordinary meaning. Trisler v.

      Ind. Ins. Co., 575 N.E.2d 1021, 1023 (Ind. Ct. App. 1991). Moreover, the power

      to interpret contracts does not extend to changing their terms, and insurance

      policies in this state will not be given an unreasonable construction to provide

      added coverage. Id. An insurer is bound by the plain, ordinary meaning of the

      words as viewed from the perspective of the insured. Cincinnati Ins. Co. v. BACT

      Holdings, Inc., 723 N.E.2d 436, 440 (Ind. Ct. App. 2000), trans. denied.


[8]   Although an insurer has the right to limit their coverage of risks, the limitation

      is enforceable only if clearly expressed and consistent with public policy.

      Stonington Ins. Co. v. Williams, 922 N.E.2d 660, 669 (Ind. Ct. App. 2010). The

      purpose of uninsured motorist insurance is to place the insured in substantially

      the same position he would have been in had the other party complied with the

      minimum requirements of the insurance statutes. Argonaut, 953 N.E.2d at 616.

      Attempts to limit or diminish uninsured motorist protection required by statute

      are against public policy. Id. However, public policy is not violated unless the

      policy specifically limits uninsured motorist coverage as to persons who would

      otherwise qualify as insureds for liability purposes. Id. “[I]f a person qualifies

      as an insured under the liability section of the policy, he must also qualify under

      the uninsured motorist section or the insurance contract violates public policy.”

      Smith v. Allstate Ins. Co., 681 N.E.2d 220, 222 (Ind. Ct. App. 1997).




      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 5 of 14
                           Coverage under the UIM Endorsement
[9]    The Policy provides that Founders must pay compensatory damages an insured

       is legally entitled to recover from the owner or operator of an uninsured motor

       vehicle because of bodily injury or property damage caused by an accident.

       The policy further provides in relevant part: “The owner’s or operator’s liability

       for these damages must arise out of the ownership, maintenance or use of the

       ‘uninsured motor vehicle.’” (App. 19.)


[10]   Swanigan argues that he is entitled to compensation under the UIM

       endorsement because his injuries arose from Watson’s “use” of his uninsured

       vehicle. According to Swanigan, ambiguity must be interpreted against the

       insurer, an insured would anticipate coverage for animal-related injuries

       because motorists routinely transport their pets in vehicles, and his injury arose

       from Watson’s negligent use of a vehicle – leaving the windows sufficiently

       open to allow the dog’s escape. Founders argues that Swanigan’s damages

       arose because of Watson’s failure to properly restrain his dog, as opposed to a

       vehicular accident. Directing our attention to Lumbermens Mut. Ins. Co. v.

       Statesman Ins. Co., 260 Ind. 32, 291 N.E.2d 897, 899 (1973), Founders asserts

       that damages arise out of the “ownership, maintenance, or use” of a vehicle

       only when the “efficient and predominating cause of the accident” arises out of

       the use of the vehicle.


[11]   In Lumbermens, an insurance policy issued for a delivery truck covered injuries

       “arising out of the ownership, maintenance or use” of the truck for delivery


       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 6 of 14
purposes. Id. Employee Jack Walker drove the truck to a residence to deliver a

water softener. When Walker was ascending the homeowner’s stairs with the

water softener, the stairs collapsed and Walker was injured. Lumbermens, the

homeowners’ insurer, settled with Walker and sought subrogation from

Statesman, which provided insurance on the delivery truck. Lumbermens

claimed that Walker was “using” the vehicle when he was injured because

loading and unloading was a covered activity under the policy and further

claimed that the homeowners were “using” the truck by virtue of their

cooperation in the unloading process. Our Indiana Supreme Court disagreed,

holding that the trial court had properly granted summary judgment to

Statesman:

        The accident did not arise out of the use of the truck. As the trial court
        pointed out, the proximate cause of the accident was the negligent
        maintenance of the staircase. The Appellate Court case notes in
        quoting another case that we are not here dealing with proximate
        cause but with contract language. However, we are in fact in this
        instance not dealing with the two parties to the contract. The party
        claiming to be an insured in this case never paid a penny’s premium to
        the insurer. We are therefore not in a situation where we must
        construe the contract language any certain way and can seek out the
        general intent of the contract from a neutral stance.
        We are of the opinion that what was intended by the words in the
        contract, “arising out of the ownership, maintenance or use” of the
        truck as applied to unnamed insureds is synonymous to being caused by
        use of the truck (including the loading and unloading). Otherwise the
        insurance company becomes the insurer for every sort of accident by
        anyone to whom a delivery is made. We are in agreement with the
        trial court that the “efficient and predominating cause” of the accident
        must arise out of the use of the vehicle in order for an un-named
        insured to be covered.
291 N.E.2d at 898-99.
Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 7 of 14
[12]   Swanigan acknowledges that Lumbermens set forth a narrow construction of the

       phrase “arising out of the ownership, maintenance, or use,” but observes that

       he is not “an un-named insured” as was the claimant in Lumbermens. See id.

       Additionally, Swanigan observes that, even by resort to a narrow application of

       the term “use,” it is not limited to “active driving, operation or direction of a

       vehicle.” (Appellant’s Br. at 17.) He directs our attention to a trilogy of cases

       in which an individual was found to be “using” a vehicle although he or she

       was physically outside the vehicle: Argonaut Ins. Co., supra, Monroe Guar. Ins.

       Co. v. Campos, 582 N.E.2d 865, 870 (Ind. Ct. App. 1991), and Spencer v. Liberty

       Mut. Ins. Corp., 381 F.Supp.2d 811 (S.D. Ind. 2005).


[13]   In Argonaut, Deputy Sheriff Sarah Jones had been dispatched to the scene of an

       automobile accident. 953 N.E.2d at 611. She had positioned her police cruiser

       to control the flow of vehicles and was directing traffic when she was struck by

       an oncoming vehicle. On appeal of a summary judgment entered against it,

       Argonaut contended that Deputy Jones was not entitled to underinsurance

       coverage because she had not been occupying or using her vehicle at the time

       her fatal injuries were inflicted. Id. at 614.


[14]   The Argonaut Court discussed Lumbermens and its progeny, observing that “the

       crucial questions to answer in determining coverage issues” were “whether

       there is an ‘active’ relationship between the claimant and the vehicle” and “the

       reasonable expectations of the parties upon entering into the insurance

       agreement.” Id. at 619. The Court concluded that Deputy Jones had been

       “using” her police vehicle:

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 8 of 14
               [T]he reasonable scope of covered uses of Deputy Jones’s patrol car
               necessarily includes its deployment and use in traffic control situations
               like the one at issue. Given the nature of the use the parties to the
               agreement should reasonably have expected, Deputy Jones’s activities
               directing traffic while her patrol car was blocking one of two lanes with
               its lights activated constituted use of her patrol car within the terms of
               Argonaut’s policy. The trial court therefore properly granted summary
               judgment to Jones on the issue of use under Argonaut’s policy and
               properly denied summary judgment to Argonaut on this same issue.
       Id. at 620.


[15]   In Campos, a panel of this Court rejected an insurer’s contention that “use” was

       synonymous with “drive” or “operate” and held that an insured was “using” a

       tow truck although he was not, at the time of injury, occupying it or

       maintaining physical contact with it. 582 N.E.2d at 870-71. Campos had been

       dispatched to an intersection where a police officer had detained a driver of a

       tractor-trailer. Campos entered the police vehicle, consulted with the officer

       and expressed his intention to return to the tow truck and began the evaluation

       and removal process. As Campos was exiting the police vehicle, he was struck

       and severely injured by a vehicle driven by an uninsured motorist. See id. at

       866. The Court was persuaded that “use” may include that which is related to

       a primary use:

               The contract between Monroe and Allen Towing provides insurance
               coverage to Allen Towing and its employees who are engaged in the
               business of towing disabled vehicles. The parties certainly would have
               contemplated the nature of this business activity. Removal of disabled
               vehicles from roadways cannot be accomplished solely by the activity
               of ‘propelling or directing’ the towing vehicle. Reasonable persons
               would expect that a tow truck operator must engage in other activities
               during the towing process, some of which will require that he exit the
               vehicle (e.g. evaluation of the towing scene, securing the vehicle to be
       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 9 of 14
                  towed, attachment of towing equipment to the disabled vehicle,
                  conferring with appropriate officials concerning safety procedures).”
       Id. at 870.


[16]   In Spencer, the final case of the trilogy discussed by Swanigan, the undisputed

       facts led the Court to conclude that Spencer, a truck driver who exited his

       vehicle to render assistance to an injured motorist, “was acting in a manner

       intended or reasonably within the contemplation of Liberty Mutual and

       [employer] Starcraft when they contracted for the insurance coverage.” 381

       F.Supp2d at 817. The Court concluded that Spencer was “using” his vehicle

       when he assisted at an accident scene and specifically observed that he was

       “using” the truck “in a more direct sense” by activating his emergency flashers

       to alert other traffic. Id. at 820. See also Stonington, supra (a truck driver who

       had completed his connection and inspection procedure and had touched the

       door handle in preparation of entering the truck when he was struck by an out-

       of-control vehicle was, at that time, “using” the truck trailer, 2 in that the “act of

       getting into the cab of the tractor in order to pull the trailer is incidental to the

       actual operation of the trailer.”)


[17]   Conversely, Founders directs our attention to cases in which the injuries did not

       arise from a “use” of a vehicle: Moons v. Keith, 758 N.E.2d 960 (Ind. 2001) and

       Sizemore v. Erie Ins. Exchange, 789 N.E.2d 1037 (Ind. Ct. App. 2003). The facts

       underlying the Moons decision may be summarized as follows. Randy



       2
           The trailer was owned by EC Moving, a Wisconsin corporation which was not the driver’s employer.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015          Page 10 of 14
       Williams, whose vehicle was insured by State Farm, was driving with several

       passengers when he stopped at an intersection in Gary. A passenger in another

       vehicle fired seventeen shots into Williams’s vehicle, injuring the occupants.

       Williams and one passenger sought coverage for their injuries under a UIM

       provision of Williams’s policy; coverage was denied. During the ensuing

       litigation, State Farm was granted summary judgment. See Moons, 758 N.E.2d

       at 961.


[18]   On appeal from the grant of summary judgment, a panel of this Court reviewed

       the Lumbermens decision and observed: “in order to find coverage, there must

       be a causal connection or relationship between the vehicle and the injury.” Id.

       at 964. The Court determined that the designated facts did not show a requisite

       causal relationship:

               The only evidence from the designated affidavits indicated the vehicle
               was merely used to transport Keith to the scene. Keith did not chase
               Moons and Williams in his car. The shooting was not the result of
               road rage. The cars did not touch. The facts of this case, as presented
               to us, do not establish a causal relationship between the vehicle and
               the injuries sufficient to invoke coverage under the uninsured motorist
               provision.
[19]   Id. The Court then clarified that, even where a causal connection exists, “the

       relationship between the two must not be too remote[.]” Id.


[20]   Likewise, in Sizemore, a panel of this Court affirmed the grant of summary

       judgment to an insurer who had denied UIM coverage under a policy held by

       an injured child’s mother. In that case, a driver of an uninsured vehicle had

       transported several boys to play paintball. The boys saw James Sizemore

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 11 of 14
       walking and the driver pulled the vehicle over. Sizemore stuck his head inside

       the vehicle to talk, one of the paintball guns discharged, and Sizemore was

       struck in the eye. The trial court found that there was no causal connection

       between the accident and the use or operation of the uninsured motorist’s

       vehicle. This Court agreed with that conclusion:

               The undisputed facts established that the only connection between the
               vehicle and the injury was that the vehicle happened to be the physical
               object against which the safety of the paintball gun may have come in
               contact. The trial court correctly determined that the efficient and
               predominating cause of Sizemore’s injury did not arise out of the use
               of the vehicle. The vehicle only remotely contributed to Sizemore’s
               injury by transporting the boys and the paintball equipment to the
               scene of the incident and by possibly coming into physical contact with
               the safety of the paintball gun prior to the gun discharging.
       Id. at 1040. Moreover, the Court agreed with the trial court that the incident

       leading up to Sizemore’s injury was not a “motor vehicle accident” as required

       by the policy language. Id.


[21]   According to the designated materials in this case, Swanigan was injured by a

       pit bull that escaped out the window of a parked car. Watson, the driver of the

       uninsured vehicle, was at that time inside the convenience store. He returned

       to his vehicle after Swanigan had been bitten and knocked down. Thus, neither

       of the drivers nor the dog was inside or in physical contact with a vehicle at the

       time of attack. According to Campos, use is not limited to physical occupancy

       of a vehicle. 582 N.E.2d at 870. However, consistent with Lumbermens and its

       progeny, there must be a causal connection or relationship between the vehicle

       and the injury. See Moons, 758 N.E.2d at 964.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 12 of 14
[22]   We, like the panels of this Court in Moons and Sizemore, do not find the mere

       vehicular transport of the injurious entity to be a sufficient causal connection.

       Beyond Watson’s transport of his pit bull, it may well be that he rolled down

       the window of his vehicle before exiting at the convenience store, in order to

       make the dog more comfortable. 3 Even so, accommodating an animal left

       alone and unrestrained is not an integral use of the vehicle as would be within

       “the reasonable expectation of the parties upon entering into the insurance

       contract.” Argonaut, 582 N.E.2d at 619. Watson was not “using” his uninsured

       vehicle at the time his unrestrained dog traversed the CITGO parking lot and

       injured a customer. 4



                                                   Conclusion
[23]   Watson was not “using” his uninsured vehicle when Swanigan was injured.

       Accordingly, the trial court properly granted summary judgment to Founders

       upon Swanigan’s complaint for uninsured motorist coverage.




       3
        We have no affidavit from Watson to this effect. Compare: Hughley v. State, 15 N.E.3d 1000, 1004-5 (Ind.
       2014) (when a party has by designated evidence – although it be minimal – raised a genuine factual issue to
       be resolved at trial, the trial court will not weigh the evidence and a summary judgment motion will be
       defeated).
       4
        Swanigan has cited to cases from other jurisdictions in which coverage was found to exist for injuries
       caused by an animal. The Court in Trampf v. Prudential Prop. & Cas. Co., 199 Wis.2d 380, 389, 544 N.W.2d
       596, 600 (Wisc. Ct. App. 1996) applied a standard of “whether a particular incident falls within an expected
       use of a vehicle” and found that transporting dogs in the bed of a vehicle is such a use. In Farmer’s Ins. Co. of
       Ariz. v. Till, 170 Ariz. 429, 432, 825 P.2d 954, 957 (Ariz. Ct. App. 1991), the Court found a dog owner had
       used the “inherent design of the pickup/camper to separate her passenger from her potentially dangerous
       cargo.” We observe that the courts were not constrained to follow the narrow definition of “use” adopted in
       Indiana and, moreover, the animals were inside or tethered to the vehicles.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015                 Page 13 of 14
[24]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CT-371 | June 24, 2015   Page 14 of 14
