ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LYNNE D. LIDKE DARLENE R. SEYMOUR
MICHAEL B. LANGFORD Kiefer & McGoff
Scopelitis, Garvin, Light & Hanson Indianapolis, Indiana
KIMBERLY E. WILLIAMS
Whiteman Burdette, PLLC
COURT OF APPEALS OF INDIANA
KLLM, INC. and KEITH JAMES PIERCE, )
vs. ) No. 32A01-0409-CV-392
LaCRECIA E. LEGG, as Personal Representative )
of the Estate of Mark S. Hanna, and )
LAURA BRWER, )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Robert W. Freese, Judge
Cause No. 32D01-0308-PL-64
April 27, 2005
OPINION - FOR PUBLICATION
Mark Hanna died as a result of injuries he sustained when Keith Pierce
struck Hanna while Hanna was assisting Pierce in backing up a semi tractor-trailer
combination that Pierce was driving on behalf of KLLM, Inc. Pierce and
KLLM, Inc. (collectively, KLLM) filed a declaratory judgment action to determine whether Indianas
Guest Statute, Indiana Code section 34-30-11-1, barred any claim that Hannas estate, by
LaCrecia Legg as the estates personal representative, and Laura Brewer, Hannas mother, might
have against KLLM. The parties filed cross motions for summary judgment, and
Legg and Brewer (collectively, Legg) filed a Trial Rule 12(B)(6) motion to dismiss.
The trial court denied all motions and subsequently entered final judgment in
favor of Legg, finding that Indianas Guest Statute did not apply to the
case at hand. KLLM now appeals. We affirm in part and
reverse and remand in part.
KLLM raises one issue for our review, which we restate as whether the
trial court properly denied KLLMs motion for summary judgment. Additionally, Legg raises
the following restated issue on cross-appeal: whether the trial court properly denied
Leggs motion to dismiss.
Facts and Procedural History
On May 18, 2003, Pierce was driving a semi tractor-trailer combination for KLLM,
Inc. from Paris, Texas to Hebron, Kentucky. Near Nashville, Tennessee, Pierce observed
a man, later identified as Hanna, carrying a suitcase and a sleeping bag
and walking along Interstate 40 with his thumb pointed out towards traffic.
Pierce stopped the tractor-trailer and offered Hanna a ride. Hanna accepted and
informed Pierce that he was trying to get to his girlfriends house in
Upon arrival in Louisville, Hanna attempted to contact his girlfriend by telephone, but
he was unable to reach her. Pierce suggested that Hanna continue riding
with him to Hebron. After unloading his cargo in Hebron, Pierce began
traveling to pick up a load in Indianapolis, Indiana. Hanna continued riding
along with Pierce. After arriving in Indianapolis and picking up a trailer
full of cargo headed to Arlington, Texas, Pierce and Hanna began heading back
to Louisville, Kentucky, so that Hanna could again attempt to contact his girlfriend.
While en route in the early morning hours of May 20, 2003, Pierce
and Hanna pulled into a rest area along Interstate 70 in Hendricks County.
Pierce attempted to park the tractor-trailer in a parking spot at the
rest area, but he was unable to do so. He asked Hanna
to exit the vehicle and assist him in backing the tractor-trailer out of
the parking space. Hanna agreed and got out of the tractor-trailer.
While Hanna was standing behind the tractor-trailer, Pierce began backing up. As
Pierce reversed the tractor-trailer, Hanna became pinched between the tractor-trailer that Pierce was
driving and another parked tractor-trailer. Hanna died as a result of his
On June 2, 2003, KLLM filed a complaint for declaratory judgment to determine
whether Indianas Guest Statute applied to the facts at hand. Both parties
subsequently filed cross motions for summary judgment, and Legg filed a Trial Rule
12(B)(6) motion to dismiss. After a hearing, the trial court denied all
motions. Thereafter, the trial court entered final judgment in favor of Legg,
and both parties now appeal.See footnote Additional facts will be provided as necessary.
Discussion and Decision
KLLM contends that the trial court erred in denying its motion for summary
judgment because Indianas Guest Statute bars any claims against KLLM arising out of
Hannas death. Legg contends that the trial court erred in denying her
motion to dismiss. We will address each contention in turn.
I. Denial of KLLMs Summary Judgment Motion
A. Standard of Review
When reviewing a denial of summary judgment, we apply the same standard as
the trial court. C.M.L. ex rel. Brabant v. Republic Servs., Inc., 800
N.E.2d 200, 202 (Ind. Ct. App. 2003), trans. denied. Summary judgment is
appropriate only where no genuine issues of material fact exist and the movant
is entitled to judgment as a matter of law. Id. Our
standard of review is not altered by cross motions for summary judgment on
the same issues. Id. A party appealing the denial of summary
judgment carries the burden of persuading us that the trial courts decision was
erroneous. Id. When the material facts are not in dispute, our
review is limited to determining whether the trial court correctly applied the law
to the facts. Id. If the issue presented is purely a
question of law, our review is de novo. Id. We are
not bound by the trial courts findings and conclusions of law. Id.
Because Indianas Guest Statute is in derogation of the common law, it must
be strictly construed against limiting a claimants right to bring suit. Id.
at 208-09. Strict construction involves a close, conservative adherence to the literal
or textual interpretation. Id. (quoting Akers v. Sebren, 639 N.E.2d 370, 371
(Ind. Ct. App. 1994), trans. denied). If the legislature adopts a statute
in derogation of the common law, we will presume that the legislature is
aware of the common law and does not intend to make any change
beyond that which is declared in the statute. Republic Servs., Inc., 800
N.E.2d at 208-09. The cardinal rule of statutory construction is that a
statute clear and unambiguous on its face cannot be interpreted by us; instead,
we must hold to its plain meaning. Id. Therefore, the words
of Indianas Guest Statute must be accorded their common meaning unless a different
purpose is clearly manifested by the statute itself. Id. See also
Akers, 639 N.E.2d at 371; Davidson ex rel. Floyd v. Davidson, 558 N.E.2d
849, 852 (Ind. Ct. App. 1990), trans. denied.
B. Indianas Guest Statute
In 1929, the Indiana General Assembly enacted a guest statute that barred motor
vehicle guests from recovering damages caused by a drivers negligence. Stephenson v.
Ledbetter, 596 N.E.2d 1369, 1372 (Ind. 1992). In 1984, the General Assembly
amended Indianas Guest Statute by reducing its scope to bar only immediate family
members and hitchhikers from recovering damages caused by a drivers negligence. Davidson,
558 N.E.2d at 850. Indianas Guest Statute, in its current form, codified
at Indiana Code section 34-30-11-1, provides,
The owner, operator, or person responsible for the operation of a motor vehicle
is not liable for loss or damage arising from injuries to or the
(1) the persons parent;
(2) the persons spouse;
(3) the persons child or stepchild;
(4) the persons brother;
(5) the persons sister; or
(6) a hitchhiker;
resulting from the operation of the motor vehicle while the parent, spouse, child
or stepchild, brother, sister, or hitchhiker was being transported without payment in or
upon the motor vehicle unless the injuries or death are caused by the
wanton or willful misconduct of the operator, owner, or person responsible for the
operation of the motor vehicle.
In Davidson, we recognized that the purposes of Indianas Guest Statute are threefold:
first, it reduces the threat of collusive lawsuits, whose likelihood would be
greater between family members than mere acquaintances; second, it reduces the threat of
Robin Hood proclivities of juries where juries would be more eager to take
from the rich liability insurance companies and give to the poor victims, especially
where the victims were members of the same family; and three, it fosters
family harmony by not allowing family members to sue and recover for injuries
caused by another family members negligence. Davidson, 558 N.E.2d at 851.
With respect to hitchhikers, we recognized a fourth purpose for Indianas Guest Statute:
it deters the illegal act of hitchhiking by not allowing hitchhikers to
recover for their injuries caused by a drivers negligence. Id.C. Hanna was a Hitchhiker
Thus, under the Guest Statute, KLLM would not be liable for any loss
or damage arising from the death of Hanna if Hanna was a hitchhiker
who was being transported without payment in or upon the motor vehicle at
the time of his death.
In its order denying KLLMs motion for summary judgment, the trial court found
that Hanna was a hitchhiker for purposes of Indianas Guest Statute. Legg
contends that the trial court erred because Hanna was not a hitchhiker at
the time of his death. We disagree.
Indiana Code section 34-6-2-57 provides, Hitchhiker, for purposes of [Indianas Guest Statute], means
a passenger who has solicited a ride in violation of [Indiana Code -section
9-21-17-16]. Indiana Code section 9-21-17-16 states,
A person may not stand in a roadway for the purpose of soliciting
a ride from a person who drives a vehicle unless the person soliciting
a ride is faced with an emergency on the roadway, in which case
the person may secure a ride to obtain assistance.
In the instant case, Hanna was walking along Interstate 40 with his thumb
pointed out towards traffic, carrying a suitcase and a sleeping bag. The
undisputed evidence shows that Hanna was a hitchhiker when he first entered Pierces
tractor-trailer near Nashville, Tennessee. Legg contends, however, that even if Hanna was
traveling with Pierce as a hitchhiker in Tennessee, Hannas status as a hitchhiker
terminated in Louisville, Kentucky. When Hanna accepted a ride from Pierce, he
told Pierce that he was attempting to get to Louisville, where his girlfriend
lived. However, once they arrived in Louisville, and Hanna was unable to
contact his girlfriend, Pierce suggested that Hanna continue traveling with him. Thus,
Legg argues that during the trip from Louisville to Indiana, where Hanna ultimately
died, Hannas status changed from a hitchhiker to Pierces invited guest.
KLLM counters that Hannas ultimate intention when he accepted a ride from Pierce
was to contact his girlfriend in Louisville. When Hanna was unable to
do so, he continued his journey with Pierce; therefore, no interruption occurred during
the journey that transformed Hanna from the status of a hitchhiker to an
Case law on this issue does not exist in Indiana. However, in
Lines v. Teachenor, 273 S.W.2d 300 (Mo. 1954), the Missouri Supreme Court stated,
The general rule is that the status of a rider is determined at
the outset of the trip. Id. at 303. Moreover, in Bateman
v. Ursich, 220 P.2d 314 (Wash. 1950), the Washington Supreme Court held that
under Washingtons guest statute,
the nature of the relationship between the operator of a motor vehicle and
a rider therein is to be determined as of the time of the
beginning of the transportation. If the rider is a guest within the
meaning of this statute, his status remains unchanged throughout the journey.
Id. at 315.D. Hanna was in or upon the Motor Vehicle
Hannas status when he first entered Pierces tractor-trailer was that of a hitchhiker.
Leggs contention that Hannas status changed in Louisville when Hanna was unable
to contact his girlfriend is unpersuasive; Hanna agreed to continue on with Pierce
on his journey. Because there was no interruption in their journey, Hannas
status as a hitchhiker remained unchanged, and he was a hitchhiker, for purposes
of Indianas Guest Statute, at the time of his death.
In denying KLLMs motion for summary judgment, the trial court found that Hanna
was not in or upon the motor vehicle at the time of his
death. KLLM argues that the trial court erred because Hanna was in
or upon the motor vehicle, for purposes of the Guest Statute, even though
he was temporarily outside the vehicle when he was injured. We agree
Every case decided by Indianas appellate courts concerning the applicability of the Guest
Statute since the statutes inception in 1929 has involved the operation of a
motor vehicle while the passenger was either inside or physically on the vehicle,
with the exception of Republic Services. In Republic Services, a nine-year-old child
accompanied his stepfather on his garbage collection route. The child slept under
a blanket in the passenger seat while his stepfather drove his collection route.
On one particular stop, while his stepfather was collecting garbage, the child
exited the vehicle without his stepfathers knowledge and urinated between the hydraulic tank
and the cab of the truck. The childs stepfather reentered the vehicle
and, assuming that the child was still asleep under the blanket in the
passenger seat, began pulling the truck forward. The child was subsequently injured
when the truck pulled forward. Republic Servs., Inc., 800 N.E.2d at 201-02.
The child, by his mother, ultimately sued his stepfather and Republic Services, his
stepfathers employer. Republic Services and the childs stepfather filed for summary judgment,
arguing, inter alia, that the Indiana Guest Statute barred the childs claim.
The trial court ruled in their favor, finding that Indianas Guest Statute barred
the childs claim. Id.
On appeal, the child argued that the Guest Statute did not apply because
he was not in or upon the garbage truck at the time when
he was injured. Republic Services and the childs stepfather countered that the
phrase in or upon in the Guest Statute was ambiguous and, thus, the
court should interpret its meaning. A panel of this court agreed with
the child and held the following:
We find that the terms in or upon are not ambiguous and refuse
to interpret their meanings. Instead, we apply their plain meanings and determine
that under these facts [the child] was not in or upon the garbage
truck when he was struck. We find that the Guest Statute does
not bar his claim.
Id. at 209.E. Summary
The panel in Republic Services did not explicitly define the phrase in or
upon. However, in Michigan Mut. Ins. Co. v. Combs, 446 N.E.2d 1001,
1007 (Ind. Ct. App. 1983), we held that the term upon was ambiguous,
and we interpreted its meaning in the context of an insurance policy.
In Michigan Mutual, a drivers vehicle became disabled while stopped in a lane
of traffic, so the driver walked to his brothers place of employment to
obtain his brothers assistance in fixing the vehicle. The driver and his
brother subsequently returned to the vehicle to fix it. While the drivers
brother was working on the engine at the rear of the vehicle, he
was struck by another vehicle and injured. Id. at 1002.
The driver of the other vehicle was uninsured, so the drivers brother attempted
to file a claim under the uninsured motorist clause of the drivers insurance
policy. The clause protected the insured against damages caused by an uninsured
motorist. An insured was defined by the policy as any person while
occupying an insured automobile. The policy defined occupying as in or upon
or entering into or alighting from. Id. (emphasis added).
The insurance company filed an action for declaratory judgment to determine if the
drivers brother was covered by the uninsured motorist clause. The trial court
found that the drivers brother was occupying the vehicle according to the policy
and, thus, was covered by the clause. We agreed. We held
that the term upon was ambiguous in its meaning. Id. at 1007.
We stated that it was a claimants relationship with the vehicle that
determined whether he was occupying it, and because the drivers brother was working
on the vehicles engine when he was injured, a sufficient relationship existed between
the drivers brother and the vehicle so as to establish that the drivers
brother was upon the vehicle. Id. at 1006-07. See also United
Farm Bureau Mut. Ins. Co. v. Pierce, 152 Ind. App. 387, 283 N.E.2d
788, 790-91 (1972) (holding that where a vehicle was stuck in the snow
and the owner alighted from the vehicle to push it out and was
thereafter injured, vehicle owner was in or upon the vehicle for insurance policy
purposes because evidence of physical contact with the vehicle prior to the injury
was sufficient to establish that the owner was upon the vehicle).
Legg contends that Michigan Mutual is inapposite because, in that case, we were
interpreting the language within an insurance policy and not the language within a
statute, as we are required to do here. Instead, Legg contends that
because Hanna was not inside or physically on the vehicle at the time
of his death, Indianas Guest Statute was inapplicable. We disagree.
The phrase in or upon contained in the Guest Statute is written in
the disjunctive; therefore, the General Assembly intended that the term in and the
term upon be given different meanings. Under Michigan Mutual, the drivers brother
was upon the motor vehicle, even though he was not inside or physically
on the vehicle, because a sufficient relationship existed between him and the vehicle.
446 N.E.2d at 1006-07. We agree with Michigan Mutuals interpretation of
the term upon. Under the Guest Statute, then, in order for a
person to be upon a motor vehicle, the person is not required to
be physically inside the vehicle at the time; instead, a person may be
upon a motor vehicle if a sufficient relationship exists between that person and
Here, Hanna had only temporarily left the vehicle in order to assist Pierce
in backing up the tractor-trailer. The undisputed evidence shows that Hanna had
intended to re-enter the vehicle and continue his journey with Pierce after he
finished assisting Pierce in backing up the tractor-trailer. Hannas actions in temporarily
exiting the vehicle and assisting Pierce were in direct furtherance of their
journey back to Louisville; thus, a sufficient relationship existed between Hanna and the
tractor-trailer to establish that Hanna was upon the tractor-trailer at the time of
Moreover, we agree with KLLM that Republic Services is distinguishable. In Republic
Services, when the child exited the garbage truck to urinate, his actions were
not in direct furtherance of his and his stepfathers journey. Therefore, a
sufficient relationship failed to exist between the child and the garbage truck so
as to establish that the child was upon the garbage truck at the
time of his injuries. For these reasons, we hold that Hanna was
in or upon the motor vehicle at the time of his death for
purposes of Indianas Guest Statute.
The trial court correctly found that Hanna was a hitchhiker for purposes of
Indianas Guest Statute. However, the trial court incorrectly found that Hanna was
not in or upon the motor vehicle at the time of his death.
Therefore, the trial courts denial of KLLMs motion for summary judgment is
II. Denial of Leggs Motion to Dismiss
Legg contends on cross-appeal that the trial court erred in denying Leggs Trial
Rule 12(B)(6) motion to dismiss the complaint for declaratory judgment. More specifically,
Legg contends that the trial court erred in allowing KLLMs action to proceed
because a declaratory judgment action in the case at hand is not appropriate.
A. Standard of Review
The use of a declaratory judgment is discretionary with the court; therefore, a
trial courts decision to allow a declaratory judgment to proceed is reviewed for
an abuse of discretion. See Community Hosps. of Indiana, Inc. v. Estate
of North, 661 N.E.2d 1235, 1241 (Ind. Ct. App. 1996), trans. denied.
When reviewing a Trial Rule 12(B)(6) motion to dismiss in a declaratory judgment
action, the facts as alleged in the complaint must be taken as true.
Volkswagenwerk, A.G. v. Watson, 181 Ind. App. 155, 390 N.E.2d 1082, 1084
B. Uniform Declaratory Judgment Act
Indiana Code section 34-14-1-2 provides, in pertinent part,
Any person . . . whose rights, status, or other legal relations are
affected by a statute . . . may have determined any question of
construction or validity arising under the . . . statute . . .
and obtain a declaration of rights, status, or other legal relations thereunder.
Nonetheless, [t]he court may refuse to render or enter a declaratory judgment or
decree where the judgment or decree, if rendered or entered, would not terminate
the uncertainty or controversy giving rise to the proceeding. Ind. Code §
34-14-1-6. The purpose of [a declaratory judgment action] is to settle and
to afford relief from uncertainty and insecurity with respect to rights, status and
other legal relations; and is to be liberally construed and administered. Ind.
Code § 34-14-1-12.C. Motion to Dismiss
The Uniform Declaratory Judgment Act was not intended to eliminate well-known causes of
action or to substitute an appellate court for a court of original jurisdiction,
particularly where the issues are ripe for litigation through the normal processes.
Volkswagenwerk, A.G., 390 N.E.2d at 1085. Instead, the Act was intended to
furnish a full and adequate remedy where none existed before, and a declaratory
judgment action should not be resorted to where such a judgment is unnecessary.
Id. Such a judgment is unnecessary where a full and adequate
remedy is already provided by another cause of action. Id. However,
[t]he existence of another adequate remedy does not preclude a judgment for declaratory
relief in cases where it is appropriate. Ind. Trial Rule 57.
The test to determine the propriety of declaratory relief is whether the issuance
of a declaratory judgment will effectively solve the problem involved, whether it will
serve a useful purpose, and whether or not another remedy is more effective
or efficient. Boone County Area Plan Commn v. Kennedy, 560 N.E.2d 692,
696 (Ind. Ct. App. 1990), trans. denied.
The trial court did not abuse its discretion in allowing the declaratory judgment
action to proceed because the action was appropriate. The issuance of a
declaratory judgment in this case would have effectively solved the problem involved because
such a judgment would serve to significantly narrow or completely terminate any controversy
over whether Indianas Guest Statute applied to the circumstances surrounding Hannas death.
Moreover, the declaratory judgment action served a useful purpose in defining the parties
legal relations arising from the circumstances surrounding Hannas death. Finally, Legg has
not shown that another remedy was more effective or efficient than a declaratory
judgment action filed in the state where the accident occurred and only a
few weeks after the accident occurred. In fact, Legg has not yet
filed a lawsuit, and no suit is otherwise pending in this case.
For these reasons, the trial court did not abuse its discretion in denying
Leggs motion to dismiss and allowing the declaratory judgment action to proceed.
The trial court correctly concluded that Hanna was a hitchhiker under Indianas Guest
Statute at the time of his death but erred in finding that Hanna
was not in or upon the vehicle. Therefore, we reverse the trial
courts denial of KLLMs motion for summary judgment and remand this cause to
the trial court for further proceedings consistent with this opinion. Also, because
we hold that the declaratory judgment action was appropriate, the trial court did
not abuse its discretion in allowing the declaratory action to proceed. Thus,
we affirm the trial courts denial of Leggs motion to dismiss.
Affirmed in part and reversed and remanded in part.
RILEY, J., and CRONE, J., concur.
We heard oral argument on this case on April 7, 2005, at
DePauw University in Greencastle. We thank the attorneys for their capable advocacy
and DePauw University for their gracious reception.
Legg does not appeal the trial courts denial of her motion for
Footnote: Even if Hanna, at the time of his death, was a hitchhiker
being transported by Pierce without payment in or upon the motor vehicle, KLLM
may nevertheless be liable under Indianas Guest Statute for any loss or damage
arising from Hannas death if Hannas death was caused by Pierces wanton and
willful misconduct. Legg filed a cross motion for summary judgment, contending that
Hannas death was caused by Pierces wanton and willful misconduct. The trial
court denied Leggs cross motion for summary judgment, finding that whether an accident
was caused by wanton or willful misconduct is a question of fact and
is best left for the factfinder. Neither party appeals the trial courts
decision on this issue. Therefore, we need not address it.