Indiana Ins. Co. v. Allis

• Citation: 628 N.E.2d 1251
• Decision Date: 16 February 1994
• Docket Number: No. 56A04-9210-CV-358,56A04-9210-CV-358
• Parties: INDIANA INSURANCE COMPANY, Appellant (Defendant Below), v. Clark K. ALLIS and Deborah Allis, Appellees (Plaintiffs Below).
• Court: Court of Appeals of Indiana

Page 1251

628 N.E.2d 1251

INDIANA INSURANCE COMPANY, Appellant (Defendant Below), v. Clark K. ALLIS and Deborah Allis, Appellees (Plaintiffs Below).

No. 56A04-9210-CV-358.

Court of Appeals of Indiana,

Fourth District.

Feb. 16, 1994.

Karl K. Vanzo, Timothy F. Kelly & Associates, Munster, for appellant.

Robert D. Hawk, Tammy S. Sestak, Spangler, Jennings & Dougherty, Merrillville, for appellees.

MILLER, Judge.

On December 29, 1989, Clark Allis was traveling eastbound on Indiana Route 10, when a red pick-up truck turned onto Route 10 heading west and crossed over the center line into Allis's eastbound lane. Allis swerved off the road to avoid a head-on collision with the pick-up. It is undisputed that, although the pick-up truck caused Allis to swerve, the two vehicles never "hit" or made any physical contact. Allis lost control of his vehicle, it overturned and, as a result, he sustained serious injuries. The pick-up failed to stop; therefore the owner or operator of the truck was never identified.

Allis filed a claim with Indiana Insurance Company under his uninsured motorist coverage which provided that the Company would pay damages for bodily injury Allis was legally entitled to recover from the owner or operator of an "uninsured motor vehicle." The policy definition of an "uninsured motor vehicle" included a "hit and run" vehicle--a vehicle whose owner or operator cannot be identified and which hits the insured or his vehicle. After the Company denied coverage, Allis filed suit and the Company moved for summary judgment on the grounds that Allis did not have coverage because it was undisputed that the pick-up did not hit Allis. Allis countered that the Company's physical impact requirement provided less coverage than is mandated by Indiana's Uninsured Motorist Act (Act), ¹ and thus was void for being contrary to public policy. The Company's motion was denied and the trial court certified the Company's petition for an interlocutory appeal and we accepted jurisdiction.

We find that the Act's purpose is to require insurers to offer basic coverage to its insureds, and that the Company's uninsured motor vehicle coverage provides greater coverage than is required by the Act. The Company's uninsured motor vehicle coverage does not contravene the Act, therefore, the Company was entitled to summary judgment as a matter of law.

Reversed.

DECISION

The Company contends the Act does not require coverage for damages caused by an unidentified driver who does not make physical contact with the insured. In other words, the Company claims the Act does not mandate that it provide "miss and run" coverage to its insureds. Since we are required to interpret the Act, the issue before us is a pure question of law. In reviewing a motion for summary judgment, we apply the same standard as the trial court. Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562; Jackson v. Blanchard (1992), Ind.App., 601 N.E.2d 411, 414. Thus, no deference is given by us to the trial court's judgment. Church Bros. Body Service, Inc. v. Merchants National Bank & Trust Co. of Indianapolis (1990), Ind.App., 559 N.E.2d 328, 330.

"Appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be questions of law. A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, nor the consideration of credibility questions." Kenneth M. Stroud 4A Indiana Practice Sec. 12.3 (1992 supp.)

In construing the Act, we must keep in mind that the purpose of the Act "is to afford the same protection to a person injured by the uninsured motorist as he would have enjoyed if the offending motorist had himself carried liability insurance." Scalf v. Globe American Casualty Co. (1982), Ind.App., 442 N.E.2d 8, 10. Thus, we are to construe the Act liberally to accomplish its remedial purpose. Id.

The Act's general provision governing insurers, Ind.Code 27-7-5-2, provides in pertinent part:

(a) The insurer shall make available, in each automobile liability or motor vehicle liability policy of insurance which is delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property to others arising from the ownership, maintenance, or use of a motor vehicle, or in a supplement to such policy, the following types of coverage:

(1) In limits for bodily injury or death and for injury to or destruction of property not less than those set forth in IC 9-2-1-15 under policy provisions approved by the commissioner of insurance, for the protection of persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, and for the protection of persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured motor vehicles for injury to or destruction of property resulting therefrom; or

(2) In limits for bodily injury or death not less than those set forth in IC 9-2-1-15 under policy provisions approved by the commissioner of insurance, for the protection of persons insured under the policy provisions who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom.

I.C. 27-7-5-2 (Burns Code Ed., Supp.1990).

In sum, the Act requires an insurer to offer coverage for bodily injury, death, or property damage an insured is legally entitled to recover from an uninsured or underinsured motorist. The Act defines an uninsured motorist as follows:

For the purposes of this chapter, the term "uninsured motor vehicle," subject to the terms and conditions of such coverage, means a motor vehicle without liability insurance or a motor vehicle not otherwise in compliance with the financial responsibility requirements of IC 9-1-4-3.5(b), IC 9-2-1, or any similar requirements applicable under the laws of another state, and includes an insured motor vehicle where the liability insurer of the vehicle is unable to make payment with respect to the legal liability of its insured within the limits specified in IC 9-2-1-15 because of insolvency.

I.C. 27-7-5-4(a) (Burns Code Ed., Supp.1990) (emphasis added).

The statutory definition of an uninsured motor vehicle is quite literal--it means a motor vehicle without liability insurance or an insured vehicle whose insurer is insolvent. Therefore, in order to comply with the Act, an insurer must provide coverage when an insured is legally entitled to recover from an individual who can be identified as being either: 1) without liability insurance; or 2) having insurance with an insolvent insurer. The red pick-up cannot be identified as either.

The legislature's clear and unambiguous definition of "uninsured motorist" demonstrates that the Act's purpose is to mandate basic coverage for vehicles registered or garaged in Indiana. Consequently, the Act is not concerned with mandating or regulating greater coverage. Any additional or greater coverage is a matter of contract--which contemplates coverage in exchange for a premium. As a result, the legislature's use of the phrase "subject to the terms and conditions of such coverage" within the uninsured motorist definition, leads us to the following conclusion: As long as an insurer provides statutory coverage for damages caused by an uninsured or underinsured motorist--an insurer is free, but not required, to offer greater, albeit very specific coverage. In the present case, the Company provided broader coverage than is required by the Act. A driver of an unidentified vehicle may or may not have liability insurance, however the company will provide coverage if the unidentified vehicle hits the insured.

Allis argues that, "the legislature clearly and unequivocally intended to allow recovery for unidentified drivers, i.e. hit and run drivers, who cause personal injury." Appellee's brief at 21 (emphasis added). He points to Ind.Code 27-7-5-3(c), which provides:

Any claim for property damage submitted under an uninsured motorist coverage must include the name and address of the at-fault operator and any other information to establish the at-fault operator is without motor vehicle liability insurance. There shall be no liability imposed upon an insurer where the owner or operator of the other vehicle cannot be identified.

I.C. 27-7-5-3 (Burns Code Ed., Repl.1986). Since the legislature protected an insurer from liability for property damage if the at-fault driver could not be identified, but did not make this same restriction under the bodily injury section, I.C. 27-7-5-2, Allis contends that we must presume that the legislature intended an insurer to provide bodily injury coverage regardless of whether the at-fault driver could be identified. We disagree. The definition of an uninsured motor vehicle clearly defines an uninsured motor vehicle. We are prevented from making an expansive interpretation of this term because our legislature has defined an "uninsured motor vehicle." Whitledge v. Jordan (1992), Ind.App., 586 N.E.2d 884, 885 trans. denied. We cannot interpret an uninsured motor vehicle to include an unidentified vehicle. On this point we find Hammon v. Farmer's Insurance Co. (1985), 109 Idaho 286, 707 P.2d 397, to be instructive. Under facts nearly identical to the present case, the Hammons attempted to recover uninsured motorist benefits from Farmer's which offered hit and run coverage--requiring physical impact between the vehicles--as part of its uninsured motorist coverage. Idaho's...