American Family Mut. Ins. Co. v. Hall, 49A02-0108-CV-565.

• Docket Nº: No. 49A02-0108-CV-565.
• Citation: 764 N.E.2d 780
• Case Date: March 18, 2002
• Court: Court of Appeals of Indiana

764 N.E.2d 780

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant-Garnishee-Defendant,
v.
Ollie HALL and Thompson Motor Coach, Appellees-Plaintiffs,
Mauri Kuhn, Defendant and Judgment Debtor

No. 49A02-0108-CV-565.

Court of Appeals of Indiana.

March 18, 2002.

764 N.E.2d 782

Robert S. O'Dell, Osborn, Hiner & Lisher, Indianapolis, Indiana, Attorney for Appellant

Michael E. Simmons, Mitchell M. Pote, Hume, Smith, Geddes, Green & Simmons, Indianapolis, Indiana, Attorneys for Appellees.

764 N.E.2d 781

OPINION

BAKER, Judge.

Today we construe the provisions of an omnibus clause contained in an automobile insurance policy. Appellant-defendant garnishee American Family Mutual Insurance Company (American Family) appeals the trial court's grant of summary judgment along with the entry of final judgment in favor of appellees-plaintiffs Ollie Hall and Thompson Motor Coach (Thompson). Specifically, American Family argues that the designated evidence failed to show that the judgment debtor-defendant, Mauri Kuhn, had permission to drive the vehicle that was involved in an accident and insured by American Family. Thus, American Family argues that the language set forth in the insurance policy that had been issued to the owner of the vehicle, along with the designated evidence presented to the trial court, precluded it from any liability as a matter of law.

FACTS

On February 7, 1999, Kuhn was driving a 1994 Dodge automobile that was owned by Melissa Jones and her mother, Brenda Smith. Kuhn and Jones were living together, and the Dodge was their sole automobile. On that day, Kuhn collided with a 1990 MCI bus that was operated by Ollie Hall and owned by Thompson Motor Coach at an intersection in Indianapolis. American Family had issued an insurance policy to Smith and her husband that included coverage for bodily injury and property damage liability.

Smith had purchased the vehicle approximately three years prior to the collision. At the time of the purchase, Jones was living with her and was listed as a driver on the American Family policy. Smith eventually sold the vehicle to Jones, yet remained as a co-owner because the bank would not issue a loan to Jones without a cosigner. Jones made the monthly vehicle payments.

Thereafter, Jones moved in with Kuhn. They lived together until several weeks after the collision had occurred. The designated evidence demonstrated that Kuhn drove the vehicle on a frequent basis. Although Smith apparently told Jones that no one was to drive the vehicle other than her, the evidence showed that Jones typically permitted Kuhn to use the automobile. Jones had several sets of keys to the vehicle and made them accessible to Kuhn. Jones only refused Kuhn access to the vehicle when she needed to drive it. Appellant's App. at 45.

On April 8, 1999, Hall and Thompson filed a cause of action against Kuhn, Smith and Jones for damages sustained as a result of the collision. Smith and Jones were later dismissed from the action. Following a trial by court, Kuhn was found to be 100% at fault. Thus, judgment was entered against Kuhn in the amount of $9885.50 for personal injuries and medical expenses suffered by Hall, and for $21,696.07 for property damage and loss of use incurred by Thompson.

On April 20, 2000, Hall and Thompson filed complaints for proceedings supplemental

764 N.E.2d 783

against American Family, wherein they sought a declaratory judgment regarding Kuhn's insurance coverage. Specifically, they contended that the insurance policy issued by American Family applied to Kuhn's liability because he used the vehicle with permission. Appellant's App. at 38. Thus, Hall and Thompson sought judgment from American Family in an amount sufficient to satisfy the judgments that had been entered against Kuhn in their favor. Hall and Thompson then filed a motion for summary judgment against American Family, claiming that "there exist[ed] no genuine issue as to any material fact upon which American Family may prevail." Appellant's App. at 43. Specifically, Hall maintained that because the language in the policy did not require "express" permission for a person to be a permitted user of the vehicle, American Family should be liable on the judgment as a matter of law. In response, American Family filed a cross-motion for summary judgment, asserting that Kuhn did not have permission to use the vehicle. Alternatively, American Family argued that even if Kuhn may have had "implied permission" to drive the automobile, he was exceeding the scope of permission when the accident occurred. Thus, American Family argued that it was not obligated to provide coverage in this instance and further claimed entitlement to judgment as a matter of law. Appellant's App. at 233

Following a hearing on the motions for summary judgment, the trial court ultimately granted Hall and Thompson's motion. The trial court also entered final judgment in their behalf on July 24, 2001. American Family now appeals.

DISCUSSION AND DECISION

I. Standard of Review

In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Smith v. Allstate Ins. Co., 681 N.E.2d 220, 223 (Ind.Ct.App.1997). We do not weigh evidence, but will liberally construe the facts in the light most favorable to the nonmoving party. General Motors Corp. v. Northrop Corp., 685 N.E.2d 127, 132 (Ind.Ct.App.1997), trans. denied. Summary judgment should be granted only when the designated evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). On appeal, we must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. City of Elkhart v. Agenda: Open Gov't, Inc., 683 N.E.2d 622, 625 (Ind.Ct.App. 1997), trans. denied. The party appealing the grant of summary judgment has the burden of persuading this court on appeal that the trial court's ruling was improper. Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind.1993).

II. American Family's Claim

The essence of American Family's claim is that Kuhn lacked "permission" to use the vehicle. Appellant's brief at 14. Thus, American Family asserts that such lack of permission dictates no liability under the insurance policy for Kuhn's negligence in this instance.

In addressing American Family's contention regarding coverage, we first note some of the relevant provisions set forth in the contract. Under the policy, American Family states that:

We will pay compensatory damages an insured person is legally liable for because of bodily injury and property damage

764 N.E.2d 784

through the use of a car or utility trailer

Appellant's App. at 275. With regard to the definition of "insured" under American Family's liability provision, the language provides that:

Insured person or insured persons means:

1.

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