ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
THOMAS A. CLEMENTS GREGORY A. CRISMAN
DAVID M. HAMACHER Eichhorn & Eichhorn
Ruman, Clements, Tobin & Holub, P.C. Hammond, Indiana
SANDY THOMAS and JAMES LEE THOMAS ) b/n/f SANDY THOMAS, ) ) Appellants-Plaintiffs, ) ) vs. ) ) VICTORIA FIRE & CASUALTY INSURANCE ) No. 46A05-9704-CV-145 COMPANY, ) ) Appellee-Defendant, ) -------------------------------------------------------------- ) TRACY A. KOONTZ and SANDRA ) J. SIMMONS, ) ) Non-Appellees-Defendants. )
coverage. As a result of the collision James was born prematurely, and both Thomas and
James suffered severe injuries. Sometime thereafter the Thomases presented a claim for
damages to Victoria Insurance which the company denied. The Thomases then sued
Simmons and Koontz for damages claiming negligence in the operation of their respective
automobiles. The Thomases also sued Victoria Insurance alleging bad faith in the denial of
coverage and benefits. Victoria Insurance responded by, among other things, filing a
counterclaim seeking a declaratory judgment that the exclusions in its policy of insurance
with Simmons precluded recovery by the Thomases. The provision provided in relevant part:
Please read these exclusions carefully. If any exclusion applies, an INSURED will not have coverage for an ACCIDENT or LOSS.
Liability coverage and our duty to defend does not apply to:
1. BODILY INJURY to YOU, a RELATIVE, or any INSURED.
R. at 55. The term RELATIVE is defined to include:
a) any person living in YOUR household, or
b) any person related to you by blood, marriage or adoption . . . .
R. at 53 (emphasis added). Thereafter Victoria Insurance filed a motion for summary
judgment. After conducting a hearing and taking the matter under advisement the trial court
granted the motion. The Thomases now appeal.
When reviewing a grant or denial of summary judgment our well-settled standard of review is the same as it was for the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Landmark Health Care Assocs., L.P. v. Bradbury, 671 N.E.2d 113, 116 (Ind. 1996). Summary
judgment is appropriate only when no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. Blake v. Calumet Constr. Corp., 674 N.E.2d
167, 169 (Ind. 1996). Here the essential facts are not in dispute. Therefore, our task is to
determine the law applicable to the undisputed facts and whether the trial court correctly
applied the law. Deadwiler v. Chicago Motor Club Ins. Co., 603 N.E.2d 1365, 1366 (Ind.
Ct. App. 1992), trans. denied.
The Thomases first argue the relative exclusion clause contained in the Victoria Insurance contract violates public policy implicit in the Financial Responsibility Act, Ind. Code § 9-25-1-1 et seq., and the Uninsured Motorist Statute, Ind. Code § 27-7-5-2 et seq. Thus, according to the Thomases, the trial court erred in granting summary judgment to Victoria Insurance because the clause is void and unenforceable. A trial court's ruling on a motion for summary judgment reaches this court clothed with a presumption of correctness. Indiana Republican State Comm. v. Slaymaker, 614 N.E.2d 981, 983 (Ind. Ct. App. 1993), trans. denied. When reviewing the trial court's ruling we will affirm on any theory supported by the Ind. Tri Rule 56 material properly presented to the trial court. Crist v. K-Mart Corp., 653 N.E.2d 140, 142 (Ind. Ct. App. 1995). In the case before us Victoria Insurance sought summary judgment on its claim for declaratory judgment because, according to Victoria Insurance, (a) the Thomases had no standing with respect to their claim for bad faith, and (b) the insurance contract between Victoria Insurance and Simmons provided neither liability coverage nor uninsured motorist coverage for the Thomases. The trial court examined the insurance policy and determined there was no genuine issue as to any material fact and that
Victoria Insurance was entitled to judgment as a matter of law. Thus, without regard to
whether the relative exclusion violates public policy, we must affirm the judgment of the
trial court if it can be affirmed on any theory supported by the insurance policy and other
evidence properly presented to the court.See footnote
Simmons' automobile policy with Victoria Insurance includes uninsured motorist protection. That section of the policy provides in relevant part:
WE will pay for other than PUNITIVE or EXEMPLARY DAMAGES for BODILY INJURY, which an INSURED is legally entitled to recover from the owner or operator of an UNINSURED CAR. The BODILY INJURY must be caused by an ACCIDENT and arise out of the ownership, maintenance, or USE of the UNINSURED CAR.
R. at 48. Among other things insured is defined as any person OCCUPYING YOUR
INSURED CAR. R. at 47. The Thomases argue that because they were occupying
Simmons' car they are insureds as the term is used in the uninsured motorist provision of the
policy. As a result, the Thomases contend, they are entitled to benefits thereunder.
The facts before us are similar to those in Indiana Farmers Mut. Ins. Co. v. Speer, 407 N.E.2d 255 (Ind. Ct. App. 1980).See footnote 3 In that case a mother was driving a car and her daughter
was a passenger. The car was involved in a collision with an uninsured motorist. Mother
was killed and daughter was severely injured. The liability section of the insurance policy
at issue listed only the husband/father as the name insured. Persons insured under that
section included the named insured and others that did not include the mother or daughter.
However, the uninsured motorist section of the policy contained a definition of persons
insured that included not only the husband/father as the named insured, but also the spouse
and relatives of the named insured. Evaluating the differences in coverage under the two
provisions this court stated:
Under the Indiana Farmers policy, persons insured for liability coverage and those insured for uninsured motorist coverage are dissimilar. . . . As we read the provisions, the class of persons covered under the uninsured motorist provision is somewhat larger than those covered under the liability section. The question of which definition should prevail is a close one. We believe the most reasonable interpretation of our uninsured motorist statute is one which results in coverage when the person is listed as a person insured under the liability portion of the policy.
Id. at 258-59. Because neither mother nor daughter were listed as persons insured under the
liability section of the policy we concluded they were not entitled to uninsured motorist
In the case before us the policy declaration page lists Sandra J. Simmons as the named insured and herself and David Thomas as drivers of the car. Insured under the liability section is defined as follows:
b) YOUR spouse if living in YOUR household,
c) a driver listed on the DECLARATION PAGE,
d) anyone driving the INSURED CAR with permission from an INSURED.
Rather the Thomases advance various grounds supporting their view that they do indeed have
standing to pursue the claim. Regardless of whether the Thomases have standing, they still
cannot prevail. At the heart of the Thomases' claim of bad faith in the denial of coverage
and benefits is the proposition that they are insureds under the uninsured motorist provision
of the policy. Thus, the argument continues, Victoria Insurance owes them a duty of good
faith and fair dealing. As we have already held, the Thomases are not entitled to uninsured
motorist coverage. Accordingly Victoria Insurance was under no obligation to offer the
Thomases coverage or benefits under the uninsured motorist section of Simmons' insurance
DARDEN, J., concurs.
GARRARD, J., concurs in part and dissents in part with opinion.
SANDY THOMAS and JAMES LEE THOMAS )
b/n/f SANDY THOMAS, )
vs. ) No. 46A05-9704-CV-145
VICTORIA FIRE & CASUALTY )
INSURANCE COMPANY, )
TRACY A. KOONTZ and SANDRA J. SIMMONS,)
As set forth by the majority, the suit before us was initiated by a passenger (Thomas)
against the driver of the car in which she was riding (Simmons), the driver of the other car
involved in the collision (Koontz), and the insurance company insuring the driver of the car
in which she was riding.
Under the policy provisions as outlined by the majority I quite agree that the passenger (Thomas) has no claim for uninsured motorist coverage against the driver of her car. That
is because as a relative she is excluded under the liability coverage provisions of the policy,
just as her driver was. Moreover, while the exclusion for relatives may be unusual, it was
what the parties contracted for. I see no public policy reason to set aside the contract.
On the other hand, if the driver of the other car (Koontz) was negligently responsible for the collision and the passengers' injuries, then Thomas would be entitled to recover under the uninsured motorist protection afforded by Simmons' policy because that policy afforded uninsured motorist protection to the insured which included any person occupying your insured car.
I do not believe that Indiana Farmers Mut. Ins. Co. v. Speer, 407 N.E.2d 255 (Ind. Ct. App. 1980) alters that result. The facts before the court in Speer were critically different because in that case the decedent wife's estate and injured daughter were attempting to recover under the uninsured motorist provisions of an insurance policy issued to the husband on another vehicle, a vehicle that was not insured by Indiana Farmers either principally or as an additional covered vehicle. In other words, had the policy in Speer covered the vehicle operated by the wife that was involved in the collision, I believe the result would have been different.
Finally, I would determine that any resolution of the good faith claim would have been prematurely determined by the materials before the court on summary judgment, although the facts ultimately developed may well establish non-liability on that theory. That is because, in my view, any liability of Victoria depends upon resolution of the comparative fault issue that as between Simmons and Koontz, Koontz is liable for the injuries resulting
from the collision. In other words, Victoria is liable, but only liable to the Thomases if and
to the extent that Koontz may be found liable under comparative fault.
I concur in part and dissent in part.
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