ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE
MICHAEL J. LORREN d/b/a
STEPHEN J. PETERS LORREN & COMPANY:
Stewart & Irwin, P.C.
Indianapolis, Indiana JAMES T. FERRINI
BARBARA I. MICHAELIDES
ATTORNEY FOR AMICUS CURIAE Clausen Miller P.C.
METROPOLITAN PROPERTY AND Chicago, Illinois
CASUALTY INSURANCE COMPANY:
RICHARD L. NORRIS
JAMES J. HUTTON Norris, Choplin & Schroeder, LLP
Hannon Centers Roop & Hutton, P.C. Indianapolis, Indiana
ATTORNEY FOR APPELLEES
PHILLIP HENDRICKS, BRENDA
HENDRICKS, and UNITED FARM FAMILY
MUTUAL INSURANCE COMPANY:
JOHN M. MEAD
Leeuw & Doyle, P.C.
IN THE COURT OF APPEALS OF INDIANA
MERIDIAN MUTUAL INSURANCE COMPANY, ) ) Appellant-Plaintiff, ) ) vs. ) No. 29A02-0106-CV-348 ) JON B. PURKEY d/b/a PURKEYS HEATING & ) COOLING, JOE COLLINS, DEBBIE COLLINS, ) MICHAEL J. LORREN d/b/a LORREN & ) COMPANY, PHILLIP HENDRICKS, BRENDA ) HENDRICKS, and UNITED FARM FAMILY ) MUTUAL INSURANCE COMPANY, ) ) Appellees-Defendants. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable William J. Hughes, Judge
Cause No. 29D03-9812-CP-675
OPINION FOR PUBLICATION
Id. at 451-52 (citations and internal quotation marks omitted).
In considering the pleadings and evidence sanctioned by Indiana Trial Rule 56(C), we may not decide their weight or credibility. See Shelter Mut. Ins. Co. v. Barron, 615 N.E.2d 503, 505 (Ind. Ct. App. 1993), trans. denied. All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party. Id. The fact that the parties make cross-motions for summary judgment does not alter our standard of review. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Indiana Farmers Mut. Ins. Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. Ct. App. 2000). The trial courts grant of summary judgment is clothed with a presumption of validity and the appellant bears the burden of proving that the trial court erred. Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 936 (Ind. Ct. App. 1996).
In Erie Insurance Co. v. Adams, 674 N.E.2d 1039 (Ind. Ct. App. 1997), trans. denied, we noted that
[t]he interpretation of an insurance contract is a question of law for the court. And, language in an insurance contract which is clear and unambiguous should be given its plain and ordinary meaning. Indiana courts have repeatedly noted that insurers are free to limit liability in any manner not inconsistent with public policy, and an unambiguous exclusionary clause is ordinarily entitled to construction and enforcement. However, exceptions, limitations and exclusions must be plainly expressed in the policy. The exclusionary clause must clearly and unmistakably bring within its scope the particular act or omission that will bring the exclusion into play, and any doubts as to the coverage shall be construed against the contract drafter.
Id. at 1041 (citations omitted); see also Cent. Indiana Carpenters Welfare Fund v.
Ellis, 412 N.E.2d 865, 870 (Ind. Ct. App. 1980) (stating that where an
insurer seeks to avoid liability under an exclusion, the insurer is generally said
to have the burden of proving facts establishing the applicability of the limiting
When construing an insurance policy, we may not extend insurance coverage beyond that provided in the contract, nor may we rewrite the clear and unambiguous language of the insurance contract. This court strives to ascertain and enforce the intent manifested in the policy. The fact that the parties disagree as to the interpretation of the contract does not establish an ambiguity; the contract is ambiguous only if it is susceptible to more than one interpretation and reasonable persons would honestly differ as to its meaning.
Sell v. United Farm Bureau Family Life Ins. Co., 647 N.E.2d 1129, 1131-32
(Ind. Ct. App. 1995) (citations omitted), trans. denied.
Id. at 492-93 (emphasis added) (citations omitted).
More specifically, to maintain has been defined as to preserve or keep in an existing state or condition and embraces acts of repair and other acts to prevent a decline, lapse, or cessation from that state or condition. 7 Am. Jur. 2d Automobile Insurance § 150 (1997); see also Krempl v. Unigard Sec. Ins. Co., 850 P.2d 533, 536 (Wash. Ct. App. 1993) (This court has defined maintenance as the labor of keeping something in a state of repair or efficiency.). By siphoning the gasoline from the tank of the still-functioning Bronco to facilitate the repair of the leak, Purkey was keeping the Bronco in a state of repair or efficiency and was therefore maintaining it for purposes of the Policys exclusion.
Appellees suggestion that the siphoning was merely preliminary or diagnostic ignores the fact that many acts of maintenance involve a series of steps, some of which may be categorized as preliminary and/or diagnostic. See footnote The first step in repairing the leak, and therefore the first step in maintaining the Bronco, was to siphon the gas out of the tank. We must now determine whether the property damage at issue arose out of the maintenance of the Bronco.
Id. at 34, 291 N.E.2d at 898-99.
Understandably, in view of the Lumbermens II holding, the parties have framed their arguments in terms of whether the fire (i.e., the accident) arose out of Purkeys maintenance of the Bronco. Given the language of the Policy exclusion in the instant case, however, the proper question before us is whether the property damage (i.e., the injury) arose out of Purkeys maintenance of the Bronco.
Several panels of this court have applied, at least to some extent, a similar interpretation of the Lumbermens II test. In Sharp v. Indiana Union Mutual Insurance Co., 526 N.E.2d 237 (Ind. Ct. App. 1988), trans. denied (1989), Leinenbach, the intoxicated insured, drove his vehicle across the center line and severely injured Sharp. The Sharp court relied on Lumbermens II in stating that Leinenbachs
policy exclusions unambiguously dictate that bodily injuries or property damage arising out of the use of a motor vehicle owned or operated by the insured, will not be covered under the homeowners insurance policy. Therefore, if the efficient and predominant cause of Sharps injuries arose from the use of Leinenbachs automobile, then Sharps injuries are not covered by Leinenbachs homeowners insurance.
Id. at 239 (emphases added). The Sharp court rejected appellants assertion that
Leinenbachs act of drinking alcohol to the point of intoxication was a separate
and independent cause of Virgil Sharps injuries. Id. at 240. Instead,
the Sharp court concluded that Leinenbachs consumption of alcohol prior to driving his
automobile did not cause any injury which was independent of the use of
his motor vehicle. It is only the act of driving an automobile
while intoxicated that causes injuries or gives rise to an accident. Id.
(emphases added). Cf. Moons v. Keith, 758 N.E.2d 960, 964 (Ind.
Ct. App. 2001) (addressing auto policy coverage provision and concluding that plaintiffs injuries
did not arise out of the use of insureds car, in which they
were shot by another motorist while stopped at an intersection; [I]n order to
find coverage, there must be a causal connection or relationship between the vehicle
and the injury.
Had a more specific tie between the vehicle and
the injuries been shown, then the vehicle might have been more than the
mere situs.) (emphases added), trans. denied (2002); Franz v. State Farm Fire &
Cas. Co., 754 N.E.2d 978, 981 (Ind. Ct. App. 2001) (addressing comprehensive liability
policy auto exclusion and concluding that coverage was excluded under the policy where
teenager was injured in recreational bus pull; But for the drivers failure to
steer the bus or apply the brakes in time to avoid the accident,
Taylor would not have suffered injury. In other words, the use of
the bus was the efficient and predominating cause of Taylors injuries.) (emphasis added),
trans. denied (2002); Shelter Mut. Ins. Co., 615 N.E.2d at 506 (addressing auto
liability policy exclusion where plaintiff was injured when she was pulled from the
hood of insureds truck by her ankles; Consistent with the foregoing authority [including,
inter alia, Lumbermens II] we must conclude that the efficient and predominating cause
of the accident in this case did not arise from the use of
At most, the truck was little more than a platform
that was only incidentally related to the accident. Because [plaintiffs] injuries did
not arise out of the use of Barrons truck, the trial court properly
denied Shelter Mutuals motion for summary judgment on this issue.) (citations omitted) (emphases
added), trans. denied; Barga v. Indiana Farmers Mut. Ins. Group, Inc., 687 N.E.2d
575, 579 (Ind. Ct. App. 1997) (reversing order of summary judgment where it
was unclear whether defendant was driving truck for personal use or in connection
with his auto business operation for purposes of auto liability policy exclusion; When
such a combined usage exists, a question of material fact is presented concerning
what was the predominant use of the vehicle at the time the accident
occurred and, thus, the efficient and predominating cause of the accident.) (emphasis added),
trans. denied (1998);
Westfield Ins. Co. v. Herbert, 110 F.3d 24, 26 (7th
Cir. 1997) (plaintiff injured when son of insured attempted to burn gasoline-soaked gasket
off valve cover he had removed from an auto and intended to sell;
applying Indiana law in holding that maintenance of the auto was not the
efficient and predominating cause of the accident and that homeowners policy auto exclusion
therefore did not apply) (emphasis added).
In the instant case, Lorren contends that [m]erely because the [Bronco] furnished a possible source of ignition is insufficient as a matter of law to exclude coverage under the Policy. Lorrens Br. at 21. In support of this contention, Lorren cites Almayor v. State Farm Fire & Casualty Co., 613 So. 2d 526 (Fla. Dist. Ct. App. 1993), and Nationwide Mutual Fire Insurance Co. v. Allen, 314 S.E.2d 552 (N.C. Ct. App. 1984), rev. denied.
While working on an acquaintances car, Almayor siphoned gas from the tank into a bucket, which he placed next to the steps of the house. Almayor, 613 So. 2d at 527. Ramirez, the insured, emerged from the house with a freshly-lit cigarette in his hand. The cigarette ignited the gasoline fumes and caused a fire and explosion which severely burned Almayor. Id. The Almayor court reversed the trial courts determination that Ramirezs homeowners
policy did not cover [his] potential liability because of the familiar automobile exclusion. on the ground that the accident arose out of Ramirezs allegedly negligent use of flammable material, not the ownership, maintenance or use of the motor vehicle under repair. Indeed, the car had little, if anything, to do with the fire at all. It was merely the coincidental and legally remote source of a component, the gasoline, which was itself harmless until acted upon by the insureds negligence.
Id. (footnote omitted) (emphasis added).
In Nationwide, the insured decided to move his wifes
Honda motorcycle into the living room of the apartment, intending to charge the battery, to check the timing, and to inspect the motorcycle to determine what repairs might be needed. Those repairs would be performed at a later date either by him, if possible, or by a repair shop, so that the Honda could be sold and used. He had no repair parts available and did not intend to repair it that day.
In preparation for a work place, Mr. Allen placed a plastic cover over the carpet in the living room and newspapers over the plastic. Then he brought in the motorcycle, placing it over the newspaper and plastic. Prior to taking the Honda into the apartment Mr. Allen had drained 1½ gallons of gas, but was unable to remove all of it from the main tank and was unable to remove any gas from the reserve tank. While inside the room he drained the oil from the motorcycle, placing it in a plastic milk carton upon the newspaper-covered plastic.
The battery was removed and activated to a trickle charger which was situated upon the newspaper-covered plastic. A portion of the gas tank was removed in order to examine the magneto. The motorcycle was supported by a kickstand, which was wet from exposure to the rain.
Mr. Allen placed a timing light, a bare light bulb in a socket, upon the fork of the front wheel and plugged the light into an outlet. He was not intending to fix or set the timing, but did intend to check to see by visual inspection if the timing was off.
Nationwide Mut. Fire Ins. Co., 314 S.E.2d at 554. When Allen went
to turn off the television, the motorcycle fell onto the coffee table and
caught fire. In determining that the auto exclusion to Allens homeowners liability
policy did not apply, the Nationwide court stated,
It was Mr. Allens handling of combustible materials (newspapers, plastic floor covering, gasoline, oil) in the immediate vicinity of ignition sources (an operating electrical battery trickle charger and an open light bulb as a timing light left upon a metal frame of the motorcycle) which created a risk covered by Nationwide-Fires policy against personal liability and caused the fire. Mr. Allen obtained coverage to protect himself against this type of accident and to pay for property damage to others for which he might be liable.
We hold that the property damage which occurred did not arise out of either the ownership or the maintenance of the Honda motorcycle.
Id. at 555.
We do not find either Almayor or Nationwide to be persuasive here. In Almayor, as Meridian correctly observes, Ramirez was not involved in siphoning the vehicles gasoline and indeed was not even the owner or operator of the car. Appellants Br. at 14. Unlike Ramirez, Purkey owned the vehicle at issue and was siphoning gasoline from the Broncos tank when the fire started. Appellees note that Purkey stored flammable Freon and coil cleaner in the garage and that the ignition source might have been electrical panels, a furnace pilot light, or perhaps even a cigarette lit by Purkey, who had supposedly quit smoking one week before the fire. See footnote They further observe that Purkey was simply gazing outside at the beautiful day and that the siphoning process might have been complete when the fire started. The only reasonable inferences that can be drawn from the designated evidence, however, are that the fire originated at the rear of the Bronco, nowhere near the electrical panels or the furnace; that the fuel source was the gasoline vapors released during Purkeys maintenance of the Bronco, not the Freon or the coil cleaner; and that the maintenance, not Purkeys handling of [an ignition source] in the immediate vicinity of [combustible materials,] See footnote was the efficient and predominating cause of the property damage. See footnote Had Purkey not siphoned the Broncos tank and thereby released the gasoline vapors, he could have admired the beautiful weather and struck dozens of matches without catastrophic result. The fact that Purkey was simply gazing outside and that the siphoning might have been complete when the fire started is of no consequence, given that the gasoline vapors were released during his maintenance of the Bronco. Cf. Miller, 518 N.E.2d at 492-93 (Any connection between Millers injuries and eventual maintenance of the truck is simply too farfetched to bring him within the policy.) (emphasis added).
We recognize that we must construe any doubts as to coverage against Meridian as the drafter of the Policy, but there is no doubt that the property damage arose out of Purkeys maintenance of the Bronco. We agree with Meridian that court[s] must recognize the fact that there are different insurance policies on the market for different purposes. Erie Ins. Group v. Alliance Envtl., Inc., 921 F.Supp. 537, 542 (S.D. Ind. 1996) (discussing scope of professional services exclusion in general business liability policy), affd, 102 F.3d 889 (7th Cir. 1996). Purkeys commercial liability policy with Meridian excludes coverage for risks, such as the ownership, maintenance, or use of a vehicle, that are covered by other policies, such as those for auto liability. Even Purkey himself acknowledged the special risks inherent in vehicle maintenance:
Q. Would it be correct to say it wasnt particularly safe for you to be siphoning gas inside this garage?
A. That could be a correct statement.
Appellants App. at 165. The Policy specifically excludes coverage for property damage
arising from vehicle maintenance; therefore, Meridian is entitled to summary judgment against Appellees.
We reverse the trial courts grant of summary judgment in favor of
RILEY, J., and MATHIAS, J., concur.