FOR PUBLICATION

ATTORNEYS FOR APPELLANT:            ATTORNEYS FOR APPELLEES:

MICHAEL D. SEARS                GENE M. JONES
JASON M. MASSARO                 MARK A. LIENHOOP
Singleton, Crist, Austgen & Sears            Newby, Lewis, Kaminski & Jones
Munster, Indiana                    LaPorte, Indiana

                             JOHN H. LOVELL
                            Lovell, Lovell & Newsom, L.L.P.
                            Amarillo, Texas

INDIANA INSURANCE COMPANY,            )
                                           )
    Appellant-Plaintiff,                   )
                                           )
        vs.                                )    No. 46A05-9809-CV-481
                                           )
AMERICAN COMMUNITY SERVICES,               )
INC., and DONALD SCOTT,                    )
                                           )
    Appellees-Defendants,                  )
                                           )
        and                                )
                                           )
ASHLEY SMITH, JANET SMITH,                 )
individually and as next friend of         )
SHANELLE TINKA WARREN-SMITH                )
and CANDICE SYMONE WARREN-                 )
SMITH, minors, and CRYSTAL                 )
WARREN-SMITH,                              )
                                           )
    Appellees-Intervenors.                 )
                                           )

BROOK, Judge

    Appellant-plaintiff/cross-appellee Indiana Insurance Company (“Indiana Insurance”) appeals the trial court's order denying its motion for summary judgment on its declaratory judgment claim. Appellees-defendants/cross-appellants American Community Services (“ACS”) and Donald Scott (“Scott”) and appellees-intervenors Ashley Smith, Janet Smith, Shanelle Tinka Warren Smith, Candice Symone Warren Smith, and Crystal Warren Smith (“the Smiths”)See footnote 1 appeal the trial court's order denying their motion for summary judgment. We affirm the judgment of the trial court.

material fact such that summary judgment must be awarded to either party as a matter of law; and

    (2)    whether the parties are collaterally estopped by the findings and conclusions of two Texas courts from litigating the issue of insurance coverage in Indiana state court.

was acting within the course and scope of his employment at the time of the accident; that an employer-employee relationship existed between Isaac and the Walkers; and that Isaac and the Walkers were jointly and severally liable for the damages and injuries to Smith. On October 27, 1995, the Texas court entered a second summary judgment order, reiterating its previous conclusions and entering the following new conclusions: that an employer- employee relationship existed between Isaac and ACS at the time of the accident, and that ACS was liable jointly and severally with the Walkers for the damages and injuries to Smith.
    As it had in the Harrington suit, on October 20, 1995, Indiana Insurance filed a complaint for declaratory relief against ACS in the Smith matter (“Smith declaratory action”). In response, the Smiths filed an original complaint in intervention on February 5, 1996.See footnote 11
    When Indiana Insurance filed its summary judgment motion in the Harrington declaratory action, on April 30, 1998, it also filed a summary judgment motion in the Smith declaratory action. Interestingly, Indiana Insurance argued that because ACS had admitted “that the van driven by Isaac was not owned by ACS but, instead, was owned by the Walkers,” and had “admitted that Smith was not acting within the scope of his employment at the time of the [a]ccident,” there was no genuine issue that there was no coverage under the hired auto endorsement. Similarly, Indiana Insurance also argued,

Trial Rule 56(C). “Cross motions for summary judgment on the same issues do not alter the standard for granting summary judgment.” Fifth Third Bank v. Bentonville Farm Supply, 629 N.E.2d 1246, 1248 (Ind. Ct. App. 1994).
    We note also that our supreme court has held that “the interpretation of an insurance policy, as with other contracts, is primarily a question of law for the court, even if the policy contains an ambiguity needing resolution.” Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind. 1992). If insurance policy language is clear and unambiguous, it should be given its plain and ordinary meaning. Id. If there is an ambiguity, the policy should be interpreted most favorably to the insured, and construed to further the policy's basic purpose of indemnity. Id.

further toward resolving the controversy as a matter of law.See footnote 12 Rather, ACS admitted only (1) that the van involved in the accident was owned by the Walkers; and (2) that on the date of the accident Isaac was an employee of ACS and of the Walkers. ACS specifically denied (1) that the van was owned by ACS; (2) that Smith was an employee of ACS or of the Walkers; (3) that Smith was acting within the scope of his employment as an employee or agent of the Walkers; and (4) that Smith was acting within the scope of his employment as an employee or agent of ACS.
    In response to requests to “admit or deny the vehicle in which Basil Smith was a passenger was, at the time of his accident, being used for the business purposes [of Paragon, Inc., the Walkers, and ACS],” ACS responded in each instance by objecting to the requests as vague and ambiguous and as seeking the admission of a legal conclusion. When asked to admit or deny that the van was leased by ACS, ACS's response was to deny; when asked to admit or deny that the vehicle was “not owned, leased or borrowed by [ACS],” ACS admitted that it was not owned or leased by ACS, but objected to the term “borrowed,” as being vague and ambiguous and seeking the admission of a conclusion.
    “The term 'employee' . . . is a term of art with a distinct meaning at common law.” Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 493, 495 (Ind. 1995). Generally, whether one acts as an employee or as an independent contractor is a question of fact. Id. at

496.     Our review of the record establishes that ACS has explicitly and consistently denied both that Smith and Harrington were employees of ACS and that they were acting in the course and scope of their employment. Yet on appeal, Indiana Insurance has focused much of its effort toward advancing the argument that even though Harrington and Smith were asleep in the van when the accident occurred, they were traveling employees acting within the course and scope of their employment. Thus, they argue, whether coverage exists under the IndiPack policy should be determined under the rubric of worker's compensation law. Indiana Insurance even conceded in its initial summary judgment motion that ACS admitted Smith was not acting in connection with ACS's business.
    In response, ACS and the Smiths urge that “master-servant” law should be applied, as it was in the Texas court. However, for this Court to make a determination at this stage as to which body of law should be applied would be to put the procedural cart before the factual horse, because Indiana Insurance has failed to meet its burden under Jarboe to demonstrate the absence of any genuine issue of fact as to a determinative issue. Because of this failure, we find no error in the trial court's denial of summary judgment in favor of Indiana Insurance and decline to predict how the factual determination of whether Harrington and Smith were ACS's employees will affect the trial court's analysis as to whether ACS should receive coverage under the IndiPack policy.
    We are troubled that Indiana Insurance argues both sides of the employer-employee issue. Arguing both sides, however, may be indicative of the conclusion that Smith's and

Harrington's employment status is a question of fact yet to be determined by the trial court and precluding summary judgment.

found to be employees of ACS. If, for example, the finder of fact determines that Smith and Harrington were employees of the Walkers but not of ACS, the question may remain as to whether they -- along with the Walkers and/or with Isaac -- were acting in the course and scope of ACS's business, in light of the insurance contract's provisions and the interpretation given to those provisions by the trial court. Given the material designated to this Court at this time, however, we cannot determine the course and scope of employment issue as a matter of law.

its initial reservation of rights letter. However, the designated material does not establish as a matter of law that such an event occurred. It will be for the finder of fact to determine whether the IndiPack policy and its endorsements are ambiguous in light of the situation presented by the arrangement between ACS and the Walkers, and in light of the employment status of Smith and Harrington as determined by the finder of fact.

will provide coverage to ACS as an insured to satisfy the judgments against it rendered in the Texas court.
    Indiana Insurance undertook a defense of ACS in the Harrington action, but at the eleventh hour changed its course and advised ACS of a reservation of rights. In the Smith action, Indiana Insurance did not undertake a defense of ACS at all. Whether this conduct of Indiana Insurance in the two actions amounts to bad faith on its part is, as we have noted, an issue that has been bifurcated from the issues before us in this interlocutory appeal. That determination notwithstanding, we fail to see how the issue of whether Indiana Insurance will provide coverage for the two Texas court judgments “could have been determined” in either action. This is so because although the Harrington and the Smith judgments both contained findings that Isaac was an employee of ACS at the time of the accident, it does not necessarily follow as a matter of law that Smith and Harrington were also ACS employees. It is their status, not only Isaac's, that determines whether coverage exists under the Indiana Insurance policy at issue here. That Isaac was found to be an ACS employee in the Texas court is not dispositive of the coverage issue in this appeal.
    We are thus brought to the third former judgment we must consider, which is the judgment rendered upon an original petition filed by ACS in the 181st District Court in and for Potter County, Texas on October 24, 1995 (“cause number 81666-B”). The 181st District Court dismissed cause number 81666-B on September 2, 1997, concluding that that “the exercise of personal jurisdiction over Indiana Insurance Company does not comport with

traditional notions of fair play and substantial justice”; that “litigation in Texas would be an undue burden for Indiana Insurance Company”; that “Texas does not have an interest in adjudicating this dispute because there is no Texas insurance policy in dispute”; that “Texas does not have an interest in adjudicating this dispute because neither the insurer, the insureds nor the beneficiaries are Texas residents”; “the Plaintiff and Intervenors are able to obtain effective and convenient relief without this Court's exercise of jurisdiction over Indiana Insurance Company”; and “[t]he interstate judicial system's interest in obtaining the most efficient resolution of controversies and the shared interest of the several states in furthering fundamental substantive social policies both indicate that this Court should not exercise jurisdiction over Indiana Insurance Company.” ACS appealed this dismissal to the 7th Court of Appeals in Texas, which heard arguments on the appeal in June 1998, but which had not ruled on that appeal as of the time the parties filed their briefs in the instant appeal.
    By its very conclusions, the Potter County court's decision was not one on the merits, but rather a declination of the matter on jurisdictional grounds. Thus, it fails to satisfy the second of the four requirements for the doctrine of res judicata as set forth above. Should the 7th Court of Appeals in Texas reverse the Potter County court, at that time issues of comity and dominant jurisdiction may arise; currently, however, the subject matter of that dispute (including, for example, ACS's claims that Indiana Insurance acted in bad faith) has been bifurcated from the subject matter of the instant dispute.

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