Indiana Ins. Co. v. Ivers

• Decision Date: 23 October 1979
• Docket Number: No. 1-1178A339,1-1178A339
• Citation: 395 N.E.2d 820,182 Ind.App. 482
• Parties: INDIANA INSURANCE COMPANY, Defendant-Appellant, v. Bobby W. IVERS, Administrator of the Estate of Ellen Fay Ivers and Kenneth R. Berkenmeyer, Administrator of the Estate of Linda L. Berkenmeyer, and Kenneth R. Berkenmeyer, Father of Sue Ann Berkenmeyer and Michael K. Berkenmeyer, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 820

395 N.E.2d 820

182 Ind.App. 482

INDIANA INSURANCE COMPANY, Defendant-Appellant, v. Bobby W. IVERS, Administrator of the Estate of Ellen Fay Ivers and Kenneth R. Berkenmeyer, Administrator of the Estate of Linda L. Berkenmeyer, and Kenneth R. Berkenmeyer Father of Sue Ann Berkenmeyer and Michael K. Berkenmeyer Plaintiffs-Appellees.

No. 1-1178A339.

Court of Appeals of Indiana, First District.

Oct. 23, 1979.

Evan E. Steger, Ice, Miller, Donadio & Ryan, Indianapolis, for defendant-appellant.

Donald R. Forrest, New Albany, for plaintiffs-appellees.

NEAL, Judge.

Defendant-appellant Indiana Insurance Company appeals from a judgment of the Harrison Circuit Court granting summary judgment for the plaintiffs-appellees, Bobby W. Ivers, as administrator of the Estate of Ellen Fay Ivers, and Kenneth R. Berkenmeyer, as administrator of the Estate of Linda L. Berkenmeyer and father of Sue Ann and Michael A. Berkenmeyer, both deceased, and awarding $90,000 with interest and costs.

This appeal raises one issue for our review: whether the trial court erred in holding that Indiana Insurance Company's maximum or limit of liability under its insurance contract for uninsured motorist coverage was $90,000.

We reverse and remand with instructions to reduce the amount of recovery to $30,000.

This is an action for wrongful death by the plaintiffs-appellees upon an insurance contract issued by defendant-appellant Indiana Insurance Company, containing uninsured motorist coverage.

The matters in controversy were submitted to the trial court by way of a Stipulation of Facts and Issues. Pursuant to the stipulations, it was shown that on August 20, 1974, one Ellen Fay Ivers was operating a 1967 Ford automobile in Harrison County, Indiana. Her sister, Linda L. Berkenmeyer, and her sister's two children, Sue Ann Berkenmeyer and Michael K. Berkenmeyer, were passengers. The Ivers' automobile collided with an automobile driven by one Kenneth Clark, an uninsured motorist, whose negligence was the proximate cause of the collision. Ellen Fay Ivers and her three passengers were killed.

There was in effect at the time of the collision a policy of insurance issued by Indiana Insurance Company to Bobby W. Ivers, husband of Ellen Fay Ivers, and the policy provided uninsured motorist coverage under Part IV, Family Protection Coverage, which the parties agree extended to the decedents. The policy was a single policy, but it covered three automobiles, the 1967 Ford, a 1965 Pontiac, and a 1965 Chevrolet, separately listed. Separate premiums were assigned to each automobile, including separate premiums for uninsured motorist coverage. The uninsured motorist limits of liability were stated in the policy as statutory limits which were $15,000 for each person and $30,000 for two or more persons, for injuries sustained arising out of one accident. ¹

The relevant excerpts from the insurance contract between Bobby W. Ivers and Indiana Insurance Company are as follows:

1. From Part IV, Family Protection Coverage, commonly referred to as uninsured motorist coverage:

"Limits of Liability

(a) The limit of liability for family protection coverage stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injuries sustained by one person as a result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to 'each accident' is the total limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injuries sustained by two or more persons as a result of any one accident."

(2) From the Conditions, this clause commonly referred to as a separability clause:

"4. Two or more automobiles Parts I, II and III. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Part I of this policy, and separate automobiles under Part III of this policy, including any deductible provisions applicable thereto."

The plaintiffs-appellees contend essentially that, insomuch as the automobiles were listed separately in the policy, and separate uninsured motorist premiums were assigned to each, and the carrier collected three premiums, the policy in effect was three separate contracts of insurance, and they should be permitted to recover on each, or three times the stated maximum limits, up to the amount of actual damages, by virtue of the so-called doctrine of "stacking" of coverages. Defendant-appellant contends that the total limits of recovery are $30,000, and that "stacking" does not apply in this situation, because there was one policy for three automobiles which, as related to the uninsured motorist provision, did not have a separability clause. "Stacking" is the sole issue in this case.

Authority exists in Indiana which recognizes multiple recovery or " stacking" of coverages in uninsured motorist situations. Indiana Insurance Company v. Noble, (1970) 148 Ind.App. 297, 265 N.E.2d 419; Liddy v. Companion Ins. Co., (1979) Ind.App., 390 N.E.2d 1022; United Farm Bureau Insurance Company v. Wolfe, (1978) Ind.App., 382 N.E.2d 1018; United Farm Bureau Insurance Company v. Runnells, (1978) Ind.App., 382 N.E.2d 1015; Jeffries v. Stewart, (1974) 159 Ind.App. 701, 309 N.E.2d 448. These cases say, in effect, that where a person who is within the definition of an insured is injured through the negligence of an uninsured motorist, whether the person is a pedestrian, a passenger in another automobile, or a driver or a passenger in an insured automobile, and there is more than one policy available to him, such as separate policies on separate automobiles, he may be entitled to recover on all of the policies available to him up to the amount of his damages, but no more. There may be no double recovery.

The discussion in this case is limited to the situation where there is a single policy of insurance covering two or more motor vehicles.

The doctrine of "stacking" was extended by this court in the case of Jeffries, supra, to a situation somewhat similar to the case at bar. In that case Jeffries was injured by an uninsured motorist in an accident that was not related to the operation of the insured automobiles. Jeffries' father had a single policy of automobile insurance insuring three automobiles, which policy afforded uninsured motorist coverage. In the policy the automobiles were listed separately, and a separate premium was assigned to each, including an uninsured motorist premium. The policy had a separability clause, which read as follows:

"When there are two or more automobiles insured hereunder, the terms of the policy shall apply separately to each."

The policy contained a limits of liability clause similar to the one in this case. The issue was the ambiguity in the policy between the two clauses. This court held, in 309 N.E.2d at 452:

"Ambiguity arises because of a conflict between the 'two or more automobiles' clause and the 'limits of liability' clause. The 'two or more automobiles' clause, or separability clause, as it is also known, effectuates a contract of insurance separately for each car insured, and binds each policy with all of the provisions and conditions of the single policy. Each of the three policies then contains a promise to pay the insured damages . . . ."

The opinion, in construing the ambiguity against the carrier went ahead to permit the multiple recovery or "stacking" up to the limit of actual damages.

Plaintiffs-appellees contend that an ambiguity exists in the present cause because of a conflict among the separability clause, limits of liability clause, as well as the implication raised by the separate assignment of premium, and cite Jeffries, supra, in support of their position.

The Jeffries case was distinguished in Miller v. Hartford Accident and Indemnity Company, 506 F.2d 11 (7th Cir. 1974). There the situation was very similar to Jeffries and to the case at bar except that the policy did not contain a separability clause. The United States 7th Circuit Court of Appeals, in construing Indiana law, held that without a separability clause there was no ambiguity and "stacking" was denied. This ruling was followed by the 7th Circuit in Trinity Universal Insurance Company v. Capps, 506 F.2d 16 (7th Cir. 1974), which cited Jeffries and distinguished it on the basis that in the separability clause uninsured motorist coverage was deleted, and such had not been deleted in Jeffries.

This matter was resolved by this court, after the appeal was perfected in the case at bar, on June 12, 1979, in Liddy, supra, and that case, we think, is determinative of the issue raised here. There, Liddy had a policy of insurance with Companion covering two automobiles, providing uninsured motorist coverage with the usual statutory limits of insurance for injuries incurred due to the negligence of an uninsured motorist. The policy further contained a limits of liability clause substantially identical with the one under discussion, and further contained a separability clause that exempted uninsured motorist coverage, as does the policy of Bobby W. Ivers. Premiums, including uninsured motorist premiums, were assigned to each automobile separately. This court adopted the rationale in Miller, supra, and Trinity, supra, and held that since the separability clause was expressly inapplicable to uninsured motorist coverage, Liddy was distinguishable from Jeffries, and an ambiguity did not exist. "Stacking"...