Aetna Ins. Co. of Midwest v. Rodriguez

• Decision Date: 28 August 1986
• Docket Number: No. 3-1085A277,3-1085A277
• Citation: 496 N.E.2d 1321
• Parties: AETNA INSURANCE COMPANY OF the MIDWEST, Appellant (Plaintiff and Third-Party Defendant below), v. John RODRIGUEZ; John Rodriguez, d/b/a Atlas Transmission; John Rodriguez, d/b/a Custom Automotive; Shaver Motors, Inc., and Associated Adjusters, Appellees (Defendants below). Appeal of SHAVER MOTORS, INC., Appellee (Third-Party Plaintiff below).
• Court: Indiana Appellate Court

Page 1321

496 N.E.2d 1321

AETNA INSURANCE COMPANY OF the MIDWEST, Appellant (Plaintiff and Third-Party Defendant below), v. John RODRIGUEZ; John Rodriguez, d/b/a Atlas Transmission;

John Rodriguez, d/b/a Custom Automotive; Shaver

Motors, Inc., and Associated Adjusters,

Appellees (Defendants below).

Appeal of SHAVER MOTORS, INC., Appellee (Third-Party Plaintiff below).

No. 3-1085A277.

Court of Appeals of Indiana,

Third District.

Aug. 28, 1986.

Charles T. Jennings, Donna H. Fisher, Jennings, Maas & Stickney, Indianapolis, for appellant.

Clyde D. Comptom, Bonnie C. Coleman, Hodges, Davis, Gruenberg, Compton & Sayers, P.C., Merrillville, for appellee Shaver Motors, Inc.

Edward A. Chapleau, South Bend, for appellee Associated Adjusters, Inc.

Nicholas J. Anast, Tokarski & Anast, Schererville, John Kappos, Merrillville, for appellee John Rodriguez.

GARRARD, Judge.

In 1979, John Rodriguez (Rodriguez) bought a building from Shaver Motors, Inc. (Shaver). Shaver took a mortgage on the property. Rodriguez was required to keep the premises insured for Shaver's benefit. Rodriguez contacted Nick George (George) to procure insurance. In the due course of time, Aetna Insurance Company of the Midwest (Aetna), issued a policy to Rodriguez. The policy contained a standard mortgage clause which, by its terms, would protect any mortgagee named in the declarations. Shaver was not named in the declarations, but was listed on the endorsements page as a contract seller rather than a mortgagee. After the building burned, Shaver attempted to collect under the standard mortgage clause. Aetna did not cooperate, and litigation followed. Both sides moved for summary judgment. The trial court granted Shaver's motion, stating:

"We have a prospective insured, Rodriguez, without a high school education (although he has made more money than most Judges will ever see) buying a product in a highly technical field. He knows he wants fire insurance to protect his property and knows that he must have insurance to protect the former owner of the property to whom he still owes money. He contacts an insurance broker-agent who under the specific facts of this case, is the agent of the company and not that of the prospective insured.

The only facts in the record show that the prospective insured, Rodriguez, tells the broker-agent that he is buying this property from Shaver Chevy and making payments; that he wants insurance and wants Shaver Chevy protected on it.

The prospective insured does not know the difference between contracts and mortgages, much less the legal differences between the defenses of an insurance company as to contract sellers, loss payees, and mortgagees. I proffer the thought that, although others may know the distinction between the actual terms, only insurance attorneys and underwriters know the distinction as to company defenses which may be invoked against each of the above three classes of insureds, and I further suggest that many agents do not understand same or know there is a difference between the defenses.

No one asked the proposed insured: 'Are you buying this real estate on a long term conditional sale contract or did you get a deed then in return sign a promissory note and a real estate mortgage?' Neither did anyone check the Recorder's Office to determine any correct facts. No one even checked the correct names of the parties, but simply used the street vernacular.

The broker-agent and company were faced with a situation in which the words used by the prospective insured, Rodriguez, were susceptible to two or more meanings or interpretations. They did nothing to determine the correct interpretation or facts, but simply adopted the interpretation and wrote the insurance policy in the manner most legally advantageous to the company. When a company is faced with facts susceptible of many interpretations, said company is then under a duty to determine the correct interpretations and not simply adopt the one most advantageous to themselve[s] to the detriment of all others.

This is not a situation in which the proposed insured committed an intentional fraud by withholding information. He specifically made it known that someone else had an interest in this property and that he wanted them protected. He did not withhold any requested information, nor deliberately mislead the company. Neither is this a situation where the company is entitled to rely upon the application for insurance. There is no evidence there was ever any appli[c]ation.

Neither is this a case where Shaver was not a mortgagee, but was listed as one and after a loss, it tried to claim the proceeds as a mortgagee. Shaver was an actual mortgagee and had recorded their mortgage which is notice to any dealing with this property.

Under the particular facts of this case, Aetna is estopped to deny coverage to Shaver as a mortgagee.

Shaver should collect the amount of the principal secured by their mortgage together with pre-judgment interest at the same rate as the promissory note of Rodriguez to Shaver.

Shaver has asked for punitive damages. Shaver, prior to the loss, had a receipt showing that Rodriguez had purchased insurance. Shaver did not contact Aetna and object to their listing as a 'contract seller.' Thus, there is a legitimate controversy for trial and in as much as Shaver could also have prevented the conflict, it is now estopped to claim punitive damages.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Shaver Motors, Inc., should recover of and from Aetna Insurance Company of the Midwest the total sum of One Hundred One Thousand, Eight Hundred Sixty-five Dollars and Thirty-five Cents ($101,865.35), being $92,765.98 principal, $4,185.07 as interest from 11/18/84 to 4/1/85, and $4,4914.30 (sic) as Interest from 4/1/85 to 10/1/85."

Transcript at 644.

Aetna appeals. We note that this case presents a certain procedural novelty in that while the trial court stated that Aetna was estopped to deny coverage, the parties, especially Shaver, spend much of their briefs discussing coverage on the contract. Since the issue was fully briefed, we shall determine both law questions of whether the insurance contract covered Shaver and whether Aetna was estopped from denying Shaver coverage on the contract. We reverse.

As should be obvious, since this case comes to us from the granting of a motion for summary judgment, we must determine whether the pleadings and affidavits, taken in the light most favorable to the non-moving party, show that there is no genuine issue of material fact. The mere fact that both parties requested summary judgment does not alter this standard. Instead, each motion must be considered separately. Ebert v. Grain Dealers Mut. Ins. Co. (1973), 158 Ind.App. 379, 303 N.E.2d 693.

A written contract of insurance is governed by the normal rules of contract law. It is the court's duty to enforce the intentions of the parties, as they have manifested them in the writing. Evans v. National Life Accident Insurance Co. (1984), Ind.App., 467 N.E.2d 1216.

Here, the contract plainly stated:

"MORTGAGEE AND TRUSTEE INTEREST

If there is loss to any real property covered under YOUR PROPERTY COVERAGE, we will pay any mortgagee or trustee named in the Declarations up to his, her or its interest in that property. This provision will apply to all present or future mortgages in the order of precedence of these mortgages.

Regarding the interest of any mortgagee or trustee designated in the Declarations, this insurance will not be invalidated by any of the following:

* any act or neglect by any mortgagor or owner of the property;

* foreclosure or other proceedings, or notice of sale relating to the property;

* change in the title or ownership of the property; or

* occupation of the premises for purposes more hazardous than existed when this insurance took effect."

Record at 50.

Shaver claims that it was listed,...