Adkins v. Vigilant Ins. Co.

Decision Date17 May 2010
Docket NumberNo. 06A01-0911-CV-530.,06A01-0911-CV-530.
Citation927 N.E.2d 385
PartiesBruce ADKINS, Appellant/Plaintiff,v.VIGILANT INSURANCE COMPANY, Appellee/Defendant.
CourtIndiana Appellate Court

COPYRIGHT MATERIAL OMITTED

Thomas E. Hastings, Nicholas F. Baker, The Hastings Law Firm, Indianapolis, IN, Attorneys for Appellant Bruce Adkins.

Mark D. Gerth, Kightlinger & Gray, Indianapolis, IN, Attorney for Appellee Vigilant Insurance Company.

OPINION

BRADFORD, Judge.

Appellant/Plaintiff Bruce Adkins appeals the trial court's order granting summary judgment in favor of Appellee/Defendant Vigilant Insurance Company (Vigilant). On appeal, Adkins asserts that the trial court erred in granting summary judgment in favor of Vigilant. Concluding that the trial court did not err in granting summary judgment in favor of Vigilant, we affirm.

I. FACTS AND PROCEDURAL HISTORY1

On February 15, 2005, Bruce Adkins was operating a 1991 Kubota tractor along West 96th Street in Boone County as part of his employment as a groundskeeper for Lisa Sutphin. Adkins was injured when the tractor that he was driving was struck from behind by a 1997 Chevrolet van operated by Kenneth Neese. As a result of the incident, Adkins sustained permanent bodily injury and incurred medical expenses alleged to be in excess of $ 100,000.

At the time of the incident, Neese was insured by State Farm Mutual Automobile Insurance Company pursuant to a policy which provided liability coverage with bodily injury limits of $100,000. Also at the time of the incident, Sutphin was insured by three separate insurance policies. The first policy was an automobile insurance policy issued by State Farm which provided underinsured motorist coverage with limits of $500,000 per person for bodily injury. The second policy was a homeowner's policy issued by CHUBB National Insurance Company which provided liability coverage with limits of $1,000,000, but no underinsured motorist coverage. The third policy, the policy at issue in the instant appeal, was an excess liability umbrella policy (the “Excess Umbrella Policy”) issued by Vigilant which provided liability coverage with limits of $5,000,000 and underinsured motorist coverage with limits of $5,000,000. The Excess Umbrella Policy required the policyholder to maintain in full effect primary underlying liability insurance for the types of excess liability coverage it provided. Specifically, pursuant to the Excess Umbrella Policy, Sutphin was required to maintain [p]ersonal liability (homeowners) for bodily injury and property damage in the minimum amount of $50,000 each occurrence,” auto insurance “in the minimum amount of $250,000/$500,000 bodily injury and $25,000 property damage or $300,000 single limit each occurrence,” and [u]ninsured/underinsured motorist protection in the minimum amount of $250,000/$500,000 bodily injury and $25,000 property damage or $300,000 single limit each occurrence.” Appellant's App. p. 100.

Adkins filed suit against Neese on August 31, 2006, seeking to recover compensation for the injuries which he sustained as a result of the incident. Neese was later dismissed from the instant litigation after the parties entered into a settlement whereby Neese's auto insurance provider agreed to pay Adkins the $100,000 maximum policy limits. On September 21, 2006, Adkins filed an amended complaint alleging that Neese was an underinsured motorist. Adkins's amended complaint asserted claims for underinsured motorist coverage against the providers of Sutphin's automobile, homeowner's, and excess umbrella insurance policies.

On December 12, 2006, Vigilant denied that its policy provided coverage for Adkins's claim for underinsured motorist benefits. On January 30, 2007, Sutphin's automobile insurance provider was dismissed from the case by stipulation of the parties after the trial court determined that the automobile policy did not provide coverage because the tractor was not an insured vehicle under the policy. The trial court subsequently determined that Adkins's claim for underinsured motorist benefits was not covered by Sutphin's homeowner's insurance policy because the policy did not contain uninsured motorist coverage. Neither party disputed this determination.

During the course of litigation, the parties filed multiple motions for summary judgment and motions to reconsider the trial court's previous rulings. 2 On September 28, 2008, the trial court held a hearing on the parties' motions to reconsider. On October 27, 2009, the trial court determined that the term “Required Primary Underlying Insurance” found in the Excess Umbrella Policy refers to the various types of primary insurance coverages which the named insured was required to keep in force pursuant to the Excess Umbrella Policy and that “the type and amount of the coverage depends upon the type of insurance coverage under which the plaintiff seeks to recover.” Appellant's App. p. 321. The trial court noted that Adkins sought to recover under the uninsured/underinsured motorist provision of the Excess Umbrella Policy and determined that as a result, the uninsured/underinsured motorist coverage under Sutphin's automobile insurance policy was the Required Primary Insurance referred to in the Excess Umbrella Policy. The trial court entered judgment in favor of Vigilant, concluding that the Excess Umbrella Policy did not provide underinsured motorist coverage because the tractor was not a covered vehicle under the applicable Required Primary Insurance policy. Adkins now appeals.

II. DISCUSSION AND DECISION
A. Standard of Review

The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151, 1153 (Ind.Ct.App.2001) trans. denied. Summary judgment is appropriate where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997). All designated evidence must be construed liberally and any doubt resolved in favor of the non-moving party. Woolems, 759 N.E.2d at 1153. Summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting material inferences. Guzorek, 690 N.E.2d at 667. Summary judgment may not be used as a procedural device to avoid a trial on claims that are perceived to be weak. Id.

On appeal, we review a summary judgment order de novo and must determine whether the designated evidence before the trial court presents a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Bules v. Marshall County, 920 N.E.2d 247, 250 (Ind.2010). Although the nonmoving party has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that the nonmovant was not improperly denied its day in court. McSwane v. Bloomington Hosp. and Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind.2009) (quotation omitted); Guzorek, 690 N.E.2d at 667. We may not reverse the entry of summary judgment on the ground that a genuine issue of material fact exists unless the material fact and the evidence relevant thereto were designated specifically to the trial court. Woolems, 759 N.E.2d at 1154. Furthermore, we will sustain the trial court's decision to grant a motion for summary judgment if it is sustainable by any theory or basis found in the record. Id.

B. Applicable Law
1. Interpretation of Insurance Policies

It is well-established that the interpretation of an insurance policy is primarily a question of law for the court. Liberty Mut. Ins. Co. v. Michigan Mut. Ins. Co., 891 N.E.2d 99, 101 (Ind.Ct.App.2008); Woolems, 759 N.E.2d at 1155; Am. States Ins. Co. v. Adair Indus. Inc., 576 N.E.2d 1272, 1273 (Ind.Ct.App.1991). Therefore, the interpretation of an insurance contract is a question of law which is particularly well-suited for disposition by summary judgment. Am. Family Life Assur. Co. v. Russell, 700 N.E.2d 1174, 1177 (Ind.Ct.App.1998) trans. denied.

We review an insurance policy using the same rules of interpretation applied to other contracts, namely if the language is clear and unambiguous we will apply the plain and ordinary meaning. Liberty Mut. Ins., 891 N.E.2d at 101. An insurance policy is ambiguous where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Id. An ambiguity, however, does not exist merely because the parties favor different interpretations. Id., see also Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind.2002); Woolems, 759 N.E.2d at 1155; Adair Indus., 576 N.E.2d at 1274; Auto. Underwriters, Inc. v. Hitch, 169 Ind.App. 453, 457, 349 N.E.2d 271, 275 (1976).

The meaning of an insurance contract can only be gleaned from a consideration of all its provisions, not from an analysis of individual words or phrases. Farmers Ins. Exchange v. Smith, 757 N.E.2d 145, 149 (Ind.Ct.App.2001) trans. denied. We must accept an interpretation of the contract language that harmonizes the provisions rather than the one which supports a conflicting version of the provisions. Woolems, 759 N.E.2d at 1155 see also Tr. of Ind. Univ. v. Cohen, 910 N.E.2d 251, 257 (Ind.Ct.App.2009); Whitaker v. Brunner, 814 N.E.2d 288, 294 (Ind.Ct.App.2004) trans. denied. However, the power to interpret insurance contracts does not extend to changing their terms, and we will not give insurance policies an unreasonable construction to provide added coverage. Liberty Mut. Ins., 891 N.E.2d at 101 (quotation omitted).

2. Difference Between Excess Umbrella and Primary Insurance Policies

“A number of courts and commentators have described the differences between primary policies and umbrella policies.” Monroe Guaranty Ins. Co. v. Langreck, 816 N.E.2d 485, 494 (Ind.Ct.App.2004).

First, an umbrella policy, in contrast to a primary policy that
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