ATTORNEY FOR APPELLANT:
STANLEY F. COLLESANO
Tyra & Collesano
IN THE COURT OF APPEALS OF INDIANA
INTEGON, a GMAC Insurance Company, ) ) Appellant-Plaintiff, ) ) vs. ) No. 22A01-0301-CV-13 ) MIKE SINGLETON and ) SAMANTHA SINGLETON, ) ) Appellees-Defendants. )APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Richard G. Striegel, Judge
September 16, 2003
OPINION - FOR PUBLICATION
That as a direct result of the wanton and willful misconduct on the
part of [Mike], the motorcycle he was operating was caused to run off
the road and crash, thereby ejecting [Samantha] from the motorcycle and causing injury
to her person.
As a direct and proximate result of the misconduct on the part of
[Mike], [Samantha] was caused to suffer grievous, painful and permanent injuries to her
person, including a broken back and neck, was caused to incur substantial medical
expenses and was caused to suffer disability, both temporary and permanent to her
person; she was also caused to suffer a serious loss of wages as
a result of the misconduct of [Mike].
Appellants Appendix at 5-6.
In response to Samanthas complaint, Integon filed a complaint for declaratory judgment against Mike and Samantha. Integon requested that the trial court find, in part, that pursuant to the Policy Integon had no duty to defend or indemnify Mike.See footnote Integon filed a motion for summary judgment, alleging that the incident was not an accident as defined by the Policy and that the Policy excluded coverage for intentional acts. Samantha did not respond to the motion for summary judgment. After a hearing on the motion, the trial court ordered the parties to file briefs on whether willful and wanton misconduct constitutes an intentional act. Both parties submitted briefs on this issue. Integon argued that willful and wanton misconduct is equivalent to intentional (mis)conduct. Id. at 55. Samantha argued that wanton or willful misconduct is more than negligence and more than recklessness but . . . it falls short of intentional tort wherein the consequences of the tort must be intended by the doer. Id. at 63. The trial court denied Integons motion for summary judgment because it found that the willful and wanton misconduct issue was a question of fact for the jury.
Integon appeals the trial courts denial of its motion for summary judgment. Initially, we note that Samantha has failed to file an appellees brief. When an appellee does not submit a brief, an appellant may prevail by making a prima facie case of error. Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 995 (Ind. Ct. App. 1999), trans. denied. The prima facie error rule protects this court and relieves it from the burden of controverting arguments advanced for reversal, a duty which properly remains with counsel for the appellee. Id. at 995-996.
On appeal, the standard of review of a grant or denial of a motion for summary judgment is the same as that used in the trial court: summary judgment is appropriate only where the designated evidence shows that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Corr v. Am. Family Ins., 767 N.E.2d 535, 537-538 (Ind. 2002); see Ind. Trial Rule 56. The moving party must designate sufficient evidence to eliminate any genuine factual issues, and once the moving party has done so, the burden shifts to the nonmoving party to come forth with contrary evidence. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 460-461 (Ind. 2002). The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party. Id.
Integon argues that it has no duty to defend or indemnify Mike. With respect to whether an insurer has a duty to defend, our supreme court has held that:
[w]hen the nature of the claim is obviously not covered by the policy of insurance, there is no duty to defend. There is no question that if the policy is otherwise applicable, the insurance company is required to defend even though it may not be responsible for all of the damages assessed, so long as there is an element of negligence to be determined. The insurers duty to defend is broader than its duty to pay.
Transamerica Ins. Services v. Kopko, 570 N.E.2d 1283, 1285 (Ind. 1991). Further, [t]he duty to defend is determined solely by the nature of the complaint. Id.; cf. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 43 (Ind. 2002) (Where an insurers independent investigation of the facts underlying a complaint against its insured reveals a claim is patently outside of the risk covered by the policy, the insurer may properly refuse to defend.). Integon designated only Samanthas complaint and the Policy in support of its motion for summary judgment. Thus, we must determine whether Integon had a duty to defend Mike based upon the allegations of the complaint.
Integon argues that, because Samantha alleged that Mikes actions were so willful and wanton to amount to intentionally (sic) misconduct, Mikes actions were intentional and not covered by the Policy. Appellants Appendix at 5. Our supreme court addressed a similar argument in Transamerica, 570 N.E.2d at 1284-1285. There, homeowners filed a complaint against subdivision developers and others as a result of settling of the foundation of their house. Id. at 1284. The complaint alleged not only a deliberate tort and fraud but also that the defendants acted in concert to conceal said information from [the homeowners] by failing, refusing and neglecting to inform [the homeowners] of said defective and unsuitable soil conditions. Id. at 1285. The insurer denied coverage to the developer. Id. at 1284. The developer claimed that the insurer should defend him in the lawsuit because the complaint not only sound[ed] in deliberate tort and fraud but also sound[ed] in negligence. Id. at 1285.
Our supreme court held that the fact the homeowners complaint used the word neglecting does not necessarily make it an allegation of negligence. Id. Rather, the terminology used in the [homeowners] complaint was used in the same sentence with and referred to their allegation that notwithstanding having the knowledge that soil conditions were defective and unsuitable the defendants refused and neglected to inform them. Id. Consequently, our supreme court held that it was apparent that the use of the word neglecting was referring merely to their accusation of intentionally fraudulent conduct on the part of the defendants. Id. Thus, [u]nder the theory of the complaint, the occurrence of the subsidence of the house certainly was not an accident neither expected nor intended so far as [the developer] is concerned. Id.
Here, Samanthas complaint alleged that while a passenger on the motorcycle, [Mike], despite entreaties from [Samantha], operated the motorcycle in a manner that was so willful and wanton in its disregard for the safety of [Samantha] to amount to intentionally (sic) misconduct on the part of [Mike]. Appellants Appendix at 5. Samantha alleged willful and wanton conduct to avoid application of Indianas Guest Statute, Ind. Code § 34-30-11-1, which provides that:
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 death of:
Thus, under the Guest Statute, because Mike and Samantha were married at the
time of the accident, Mike would not be liable for Samanthas injuries unless
her injuries were caused by Mikes wanton or willful misconduct.
See footnote Upon a
review of the Samanthas complaint, it is apparent that Samantha was attempting to
allege wanton or willful misconduct in the complaint to avoid application of Indianas
Guest Statute. As in
Transamerica, the use of the additional phrase to
amount to intentionally (sic) misconduct was merely extraneous language used to emphasize the
alleged wanton or willful misconduct. We cannot say based upon the face
of the complaint that Samantha was alleging that Mike actually intended that her
injuries occur. See, e.g., Transamerica, 570 N.E.2d at 1285. Consequently, we
must determine whether Integon has a duty to defend Mike based upon the
allegation of the complaint that Mike engaged in wanton and willful misconduct.
The Policy provided the following liability coverage: We will pay damages, except punitive or exemplary damages, for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident. Appellants Appendix at 19 (emphasis in original). The Policy defined accident as a sudden, unexpected, and unintended occurrence. Id. at 18. The Policy also excluded coverage for [b]odily injury or property damage caused intentionally by or at the direction of an insured. Id. at 19 (emphasis in original). Integon argues that Mikes actions were intentional and, thus, do not meet the definition of an accident and are also excluded under the intentional acts exclusion.
This court has held that willful or wanton actions are not equivalent to intentional actions. In National Mutual Ins. Co. v. Eward, 517 N.E.2d 95 (Ind. Ct. App. 1987), the driver of a vehicle was intoxicated and struck a friend who was attempting to get into the vehicle. Id. at 97-98. The insurer filed a declaratory judgment complaint, requesting that the trial court determine whether it was obligated to defend and indemnify the insured. Id. at 97. The trial court found for the insured, and the insurer appealed. Id.
On appeal, the insurer argued, in part, that the victims injuries were not caused by an accident as defined by the policy. Id. at 99-100. The policy defined an accident, in part, as neither expected nor intended. Id. at 100. The insurer argued that because the driver was intoxicated, his actions were willful and wanton as a matter of law. See Williams v. Crist, 484 N.E.2d 576 (Ind. 1985) (holding that evidence that the driver was intoxicated is sufficient to show willful or wanton misconduct within the meaning of the Indiana Guest Statute). Further, the insurer argued that the definition of willful was the same as intended or expected and, thus, the injuries were not an accident under the policy. Eward, 517 N.E.2d at 100. As a result, the insurer urge[d] us to find that the liability standard for the purposes of the Guest Statute [was] the same as the contractual standard under which it [could] enforce an exclusion. Id. We disagreed with the insurers analysis and held that:
The facts of this case reveal that [the driver] . . . was intoxicated. But, there was absolutely no evidence from which the trial court could conclude he intentionally and maliciously used the van to strike [the victim] or to cause him any injury. While a party may be presumed to be acting willfully and wantonly for the purpose of establishing liability under the Guest Statute, intent should be specifically established by the evidence for a partys conduct to fall within the exclusionary clause of this policy.
Id. at 101. Consequently, willful and wanton misconduct is not necessarily the same as intentional conduct. While there may be some instances where willful and wanton misconduct is intentional conduct, we must determine whether Integon designated evidence specifically establishing Mikes intent.
Although Samantha alleged that Mikes actions were willful or wanton, Integon did not designate any specific evidence from which the trial court could have concluded that Mikes actions were intentional. As the party moving for summary judgment, Integon had the burden of demonstrating that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Integon failed to meet its burden. Under the evidence before us, we cannot say that the incident was not a sudden, unexpected, and unintended occurrence or that Samanthas injuries were caused intentionally by or at the direction of Mike. Appellants Appendix at 18-19. As a result, we cannot say that the nature of Samanthas claim is obviously not covered by the Policy. Consequently, the trial court did not err by denying Integons motion for summary judgment.
For the foregoing reasons, we affirm the trial courts denial of Integons motion for summary judgment.
BARNES, J., and RILEY, J. concur
Wanton or willful misconduct requires that the host-driver be: 1) conscious of her
misconduct; 2) motivated by reckless indifference for the safety of her guest; and
3) know that her conduct subjects her guest to a probability of injury.
The question of whether the defendant acted willfully or wantonly should be
determined by a consideration of [the defendants] whole course of conduct leading up
to the accident and the inquiry will not be confined to occurrences at
the immediate time and place thereof. A drivers mistake or error in
judgment alone is insufficient to establish wanton or willful misconduct. Rather, the
plaintiff must show that the driver had an adverse or perverse attitude towards
her guest such that she was indifferent to the consequences of her conduct.
764 N.E.2d 763, 767 (Ind. Ct. App. 2002) (internal citations omitted),