Shannon Robinson and Bryan Robinson v. Erie Insurance Exchange ( 2013 )

FOR PUBLICATION Jun 28 2013, 7:01 am
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
GEORGE M. PLEWS FREEDOM D. VILLA
SEAN M. HIRSCHTEN Smith Fisher Maas & Howard, P.C.
Plews Shadley Racher & Braun, LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHANNON ROBINSON and )
BRYAN ROBINSON, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 49A02-1211-PL-908
)
ERIE INSURANCE EXCHANGE, )
)
Appellee-Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Thomas J. Carroll, Judge
Cause No. 49D06-1107-PL-26871
June 28, 2013
OPINION - FOR PUBLICATION
MAY, Judge
Shannon and Bryan Robinson (collectively, “Robinson”) appeal summary judgment
for Erie Insurance Exchange, which denied Robinson’s claim for uninsured motorist
coverage after a hit-and-run accident. As the car that hit Robinson was uninsured as a matter
of law, we reverse.
FACTS AND PROCEDURAL HISTORY
On March 11, 2011, Bryan Robinson was westbound when a southbound Jeep ran a
red light and hit his car. The Jeep hit a second car, then left the scene. Bryan was not injured
but the car was totaled. The car was insured under an Erie policy that was sold to Shannon,
Bryan’s mother, and that listed Bryan as a driver. The policy obliged Erie to “pay damages
for bodily injury and property damage that the law entitles ‘anyone we protect’ . . . to
recover from the owner or operator of an ‘uninsured motor vehicle[.]’” (App. at 21.) Erie
denied coverage on the sole ground the policy did not include collision coverage. Its denial
letter did not mention uninsured motorist coverage.
The Robinson policy had three definitions of “uninsured motor vehicle”:
“Uninsured motor vehicle” means:
1. A “motor vehicle” for which there is no liability bond or insurance at the time
of the accident in the amounts required by the financial responsibility law where
the “auto we insure” is principally garaged;
2. A “motor vehicle” for which the insuring company denies coverage or is or
becomes insolvent;
3. A hit-and-run “motor vehicle.” The vehicle must cause bodily injury to
“you” by hitting “you,” an “auto we insure” or a vehicle “you” are
“occupying.” The identity of the driver and owner of the hit-and-run vehicle
must be unknown. The accident must be reported to the police or other proper
governmental authority within 24 hours or as soon as possible. “You” must
notify “us” as soon as possible.
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(Id. at 20.) The policy excluded uninsured motorist coverage for “property damage, if the
owner or operator of the other “motor vehicle” cannot be identified.” (Id. at 21.)
Robinson and Erie both moved for summary judgment. Robinson argued there was
coverage under the first definition of “uninsured motor vehicle” because “no liability bond or
insurance at the time of the accident” was available, (id. at 20), and no exclusion applied
because Erie did not show the other driver could not be identified. Erie argued a hit-and-run
vehicle cannot be identified, and no coverage was available for this hit-and-run vehicle under
the third definition because Bryan was not injured. The trial court granted Erie’s motion.
DISCUSSION AND DECISION
When reviewing a summary judgment, we use the same standard as the trial court:
summary judgment is appropriate only where the evidence shows there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. State Auto.
Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845, 848 (Ind. 2012), reh’g denied. All facts and
reasonable inferences drawn from those facts are construed in favor of the non-moving party.
Id.Interpretation of an insurance policy presents a question of law that is particularly
suitable for summary judgment. Id. Where there is ambiguity, insurance policies are
construed strictly against the insurer and the policy language is viewed from the standpoint of
the insured. Id. This is especially true where the language in question purports to exclude
coverage. Id. Insurers are free to limit the coverage of their policies, but such limitations
must be clearly expressed to be enforceable. Id. Where provisions limiting coverage are not
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clearly and plainly expressed, the policy will be construed most favorably to the insured, to
further the policy’s basic purpose of indemnity. Id. Where ambiguity exists not because of
extrinsic facts but by reason of the language used, the ambiguous terms will be construed in
favor of the insured for purposes of summary judgment. Id. More specifically, uninsured
motorist provisions should be liberally construed in favor of the insured. Indiana Farmers
Mut. Ins. Co. v. Speer, 407 N.E.2d 255, 259 (Ind. Ct. App. 1980).
Robinson argues the Jeep that hit Bryan’s car was an uninsured vehicle pursuant to the
first definition in the policy – that there was “no liability bond or insurance at the time of the
accident[,]”1 (App. at 20), and the policy exclusion concerning “property damage, if the
owner or operator of the other “motor vehicle” cannot be identified,” (id. at 21), does not
apply.2
In Gillespie v. GEICO Gen. Ins. Co., 850 N.E.2d 913, 915 (Ind. Ct. App. 2006), the
policy defined “uninsured auto” in language similar to that used in Robinson’s policy, as:
a motor vehicle which has no bodily injury liability bond or insurance policy
applicable with liability limits complying with the financial responsibility law
of the state in which the insured auto is principally garaged at the time of the
accident. This term also includes an auto whose insurer is or becomes
insolvent or denies coverage.
It went on to provide “The term ‘uninsured auto’ does not include: . . . a vehicle whose
owner or operator cannot be identified.” Id.1
Erie argues at length in its brief that the vehicle was not uninsured under the third definition because Bryan
was not injured. But it also concedes “a vehicle can be considered an uninsured vehicle under Erie’s policy if
it is a vehicle without liability insurance OR if it is a hit-and-run vehicle which [sic] causes bodily injury.”
(Appellee’s Br. at 8.) We agree, and we will therefore address only the first definition.
2
Erie “concedes that none of the exclusions apply,” (Appellee’s Br. at 19), and argues only “there is no grant
of coverage in the first place.” (Id.) We accordingly will not address the effect of that exclusion.
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Our focus in Gillespie was whether the vehicle that caused an accident and then left
the scene was “identified” when it was described as a “white Honda driven by a Caucasian
female.” Id. at 916. We determined it was, and then said “[b]ecause the Caucasian female
driver of the white Honda left the scene of the accident that she caused, there was ‘no bodily
injury liability bond or insurance policy applicable with liability limits complying with
[Indiana’s] financial responsibility law’ available.” Id. at 918 (quoting the policy definition
of “uninsured auto”). Thus, the white Honda was “uninsured” under the policy, and there
should have been coverage. Id.Gillespie controls. As the driver who hit Bryan fled the scene, there was ‘no bodily
injury liability bond or insurance policy applicable with liability limits complying with
[Indiana’s] financial responsibility law’ available.” Id. That brings Robinson within the first
of the three “uninsured motor vehicle” definitions in the Erie policy,3
In Dowell v. Safe Auto Ins. Co., 208 S.W.3d 872, 876 (Ky. 2006), Dowell’s policy
defined an uninsured vehicle as one “to which no bodily injury liability bond or policy
applies at the time of the accident.” Safe Auto argued it was unknowable whether the
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Erie asserts Robinson is not covered pursuant to “the decision in Allis wherein the Court held that a miss-
and-run vehicle that left the scene of the accident could not be described as a vehicle without liability
insurance.” (Appellee’s Br. at 8.) That statement is presumably a reference to Indiana Ins. Co. v. Allis, 628
N.E.2d 1251 (Ind. Ct. App. 1994), trans. denied, which is cited elsewhere in Erie’s brief. Erie does not offer a
citation to the page in Allis where such a broad holding might be found, and we will not, on appeal, search the
authorities cited by a party in order to find legal support for its position. Young v. Butts, 685 N.E.2d 147, 151
(Ind. Ct. App. 1997).
Regardless, Allis is not helpful to the resolution of the case before us. The Allis panel addressed only the
definition of “uninsured motor vehicle” in the Uninsured Motorist Act, Ind. Code § 27-7-5-2, and it explicitly
noted the Act did not require an insurer to provide hit and run coverage. 628 N.E.2d at 1255. “[A]dditional or
greater coverage is a matter of contract-which contemplates coverage in exchange for a premium.” Id. at 1253.
In the case before us the policy language, and not the statute, governs. Finally, the Allis panel addressed the
physical impact requirement in the policy language. Nothing in Allis precludes coverage for Robinson.
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tortfeasor had liability insurance because he absconded; therefore Dowell could not show the
tortfeasor was an uninsured motorist. The Court said:
the use of the word “applies” in the policy makes it clear that since the
tortfeasor cannot be located, his actual insurance status is not controlling. In
any event “applies” should be given the meaning that most favors “[Dowell].
As a matter of law, since the hit and run driver cannot be located, no insurance
policy “applied” at the time of this accident.
Id. at 878 (footnote omitted).
Similarly, as the driver who hit Bryan could not be located, “his actual insurance
status is not controlling.” Id. He or she is to be considered uninsured. And see 7A Am. Jur.
2d Automobile Insurance § 342 (noting authority that when “uninsured vehicle” is defined to
include a motor vehicle “to which no bodily injury liability bond or policy applies” at the
time of the accident, no insurance policy “applies”4 to a hit-and-run vehicle at the time of an
accident).
As the car that hit Bryan must be considered an uninsured motor vehicle, Erie’s
summary judgment motion should have been denied and Robinson’s should have been
granted. We accordingly reverse.
4
Erie asserts there is a “crucial distinction,” (Appellee’s Br. at 14), between the language in the Robinson
policy and that in the Gillespie policy: “the Erie policy does not require that there be no insurance applicable,
but that there be NO insurance, period.” (Id.) Erie offers no legal authority to support its contention that
distinction is “crucial,” or even meaningful, and that argument is therefore waived on appeal. See, e.g.,
Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444, 452 (Ind. Ct. App. 2007) (argument waived
when litigant cited no authority in support of her contention), reh’g denied. Notwithstanding the waiver, we
agree with the Dowell Court that when the driver who hits an insured cannot be located, his actual insurance
status is not controlling.
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Reversed.
BAKER, J., and MATHIAS, J, concur.
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