AMERICAN FAMILY MUT. v. FEDERATED MUT.

• Decision Date: 06 January 2004
• Docket Number: No. 49A02-0306-CV-489.,49A02-0306-CV-489.
• Citation: 800 N.E.2d 1015
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant-Defendant, v. FEDERATED MUTUAL INSURANCE COMPANY, Appellee-Co-defendant, and Mark Bloom, Co-defendant, and Patricia A. Brown and Daniel v. Brown, Plaintiffs.
• Court: Indiana Appellate Court

800 N.E.2d 1015

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant-Defendant, v. FEDERATED MUTUAL INSURANCE COMPANY, Appellee-Co-defendant, and Mark Bloom, Co-defendant, and Patricia A. Brown and Daniel v. Brown, Plaintiffs.

No. 49A02-0306-CV-489.

Court of Appeals of Indiana.

January 6, 2004.

W. Brent Threlkeld, Threlkeld & Reynolds, LLP, Indianapolis, IN, Attorney for Appellant. Donald G. Orzeske, Jennifer L. Blackwell, Goodin, Orzeske & Blackwell, P.C., Indianapolis, IN, Attorney for Appellee.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

American Family Mutual Insurance Company ("American Family") brings this interlocutory appeal from the trial court's entry of summary judgment in favor of Federated Mutual Insurance Company ("Federated") in a dispute as to which insurer is obligated to provide uninsured motorist coverage for plaintiffs, Daniel V. Brown and Patricia A. Brown.

We reverse and remand with instructions.

ISSUE

Whether this court's previous decision in this matter requiring Federated to "provide uninsured motorist coverage to the Browns" foreclosed Federated's subsequent request for summary judgment based upon additional evidence.

FACTS

The underlying facts and procedural history were set out in our previous decision in American Family Mut. v. Federated Mut. Ins., 775 N.E.2d 1198, 1200 (Ind.Ct. App.2002) (referred to herein as American Family I):

On January 2, 1999, at approximately 1:07 p.m., Daniel was operating a 1998 Ford van southbound on Shelby Street in Indianapolis, Indiana. Patricia was a passenger in the van. At that time, a 1982 Ford F150 truck registered to Mark Bloom ("Bloom"), was parked unattended while idling in a gas station parking lot near 1600 Shelby Street. As the Browns proceeded southbound on Shelby Street, the unattended Ford F150 slipped into gear, rolled out of the gas station parking lot into traffic and collided with the van driven by the Browns. Bloom was uninsured at the time of this collision.

The van occupied by the Browns belonged to Daniel's employer, Allied Equipment Service Corporation ("Allied"), and was insured under a commercial insurance policy issued by Federated. After learning about the status of Bloom's insurance coverage, the Browns filed a claim with Federated in order to recover for injuries sustained in the collision. Federated is an insurance company authorized to write policies in Indiana. On the day of the accident, Federated covered Allied with a policy of insurance. At the same time, American Family provided uninsured motorist coverage to the Browns under their personal automobile insurance policy.

On January 5, 2001, Chuck Standiford (Standiford), a Federated claims supervisor, sent a letter to the Browns' counsel denying their claim based on the policy language that limited uninsured and underinsured motorist coverage to "directors, officers, partners, and owners of the named insured" and "his or her family members." (Appellant App. pp. 39, 84).

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Consequently, on December 27, 2000, the Browns filed a Complaint for Damages with Jury Demand alleging tortious conduct by Bloom. The Complaint also brought claims for uninsured motorist benefits against Federated and American Family. On February 8, 2001, Bloom filed his Answer. American Family filed its Answer to the Browns' Complaint for Damages, Affirmative Defenses and Request for Jury Trial on February 23, 2001. On April 9, 2001, Federated filed its Answer to the Browns' Complaint for Damages with Jury Demand.

On May 14, 2001, Federated filed its Verified Brief in Support of Motion for Summary Judgment and for Costs, Including Attorney's Fees. Federated argued that the Browns' claim should be dismissed because Federated's uninsured motorist coverage was limited to "directors, officers, partners, and owners of the named insured" and "his or her family members." (Appellant's App. pp. 12-13).

On June 8, 2001, American Family filed its Cross Motion for Summary Judgment and Brief Opposing Federated Mutual Insurance Company's Motion for Summary Judgment. In this motion, American Family argued that the Browns were primarily covered under the Federated insurance policy, rendering American Family's uninsured motorist coverage secondary to Federated's uninsured motorist coverage. American Family also claimed that Federated's position that uninsured motorist coverage applied only to directors, officers, partners, and owners of the named insured and his or her family members violated Ind.Code § 27-7-5-2.

Federated filed its Response to American Family's Cross Motion for Summary Judgment on August 21, 2001. Federated claimed that Patricia failed to qualify as an insured for liability purposes and, therefore, she was not entitled to uninsured motorist coverage under the insurance policy issued by Federated to Allied. On September 17, 2001, American Family filed its reply brief. On December 17, 2001, a hearing was held on all of the motions for summary judgment. On February 6, 2002, the trial court issued its Order on Federated Mutual Insurance Company's Motion for Summary Judgment and for Costs, Including Attorney Fees. The Order stated, in pertinent part, as follows:

This cause comes before the Court on the Verified Motion of [Federated] for Summary Judgment and for Cost, Including Attorney's Fees, pursuant to Indiana Rules of Procedure, Trial Rule 56. The Court having found that there is no genuine issue of fact to be submitted to a jury, now concludes that Defendant Federated is entitled to judgment as a matter of law.

IT IS HEREBY ORDERED that the Motion of Defendant Federated for Summary Judgment is granted. There being no just reason for delay, final judgment shall be, and is hereby entered in favor of the Defendant Federated, dismissing this action with prejudice as against this Defendant only.

Id.

American Family appealed that order which resulted in the above-cited decision. In American Family I, we discussed, inter alia, the statutory scheme with regard to uninsured motorist coverage and public policy concerns implicated in such provisions that attempt to treat classes of insureds differently. Id. at 1204-07. As to the statute requiring uninsured motorist coverage unless rejected in writing, we stated:

I.C. § 27-7-5-2 is a mandatory coverage, full-recovery, remedial statute. It requires insurers operating within Indiana to set minimum standards that the legislature deemed acceptable. This court will not approve any clause, exception or exclusion that attempts to subvert or narrow the intent of the legislature. Any language in an insurance policy that dilutes statutory protections is contrary to public policy.

* * * * *

Where a contract actually contravenes a statute, the court's responsibility is to declare the contract void.

* * * * *

[W]e find that Federated cannot rewrite its policy to exclude uninsured motorist coverage and subvert the protections of I.C. § 27-7-5-2. Thus, Federated's attempt to exclude the Browns from uninsured motorist coverage because they are not directors, officers, partners, and owners of the named insured is void under Indiana law and cannot be condoned by this court.

* * * * *

Moreover, we hold that Patricia must be provided uninsured motorist coverage in an amount that meets or exceeds the limits of liability specified in the bodily injury liability provision of Federated's policy because Federated failed to produce evidence that Allied expressly waived this statutory requirement in writing. Failure to obtain written rejection of uninsured motorist coverage will require an insurer to provide uninsured motorist coverage equal to bodily injury liability limits. Here, there is no written rejection of full-liability limits of uninsured motorist coverage by Allied.

Id. at 1206-07 (citations omitted) (emphasis added).

We concluded:

[W]e reverse the trial court's grant of summary judgment in favor of Federated. As an "insured" under Allied's policy, Patricia is entitled to coverage under the uninsured motorist coverage endorsement. Therefore, we hold that Federated must honor its policy of insurance and provide uninsured motorist coverage to the Browns.

Reversed and remanded for proceedings not inconsistent with this opinion.

Id. at 1207. Federated did not file for rehearing or petition for transfer, and the opinion was certified on November 14, 2002.

When the matter resumed in the trial court, Federated filed an amended exhibit list that contained only a document entitled "Indiana Commercial Auto Coverage Option Form—Executed Waiver of Coverage," (hereinafter "1997 Waiver"). (Appellants' App. 151). A checked box on the document indicated that Allied had rejected uninsured and underinsured motorist coverage for the "group of persons" defined as "any other person who qualifies as an insured." (Appellant's App. 151). The document was signed and dated February 20, 1997. The document had not been included in the list of designated evidentiary material upon which Federated relied for summary judgment in the first appeal. However, American Family had raised the lack of a written waiver as an issue in its cross-motion for summary judgment before the first appeal. (Appellant's App. 105-07).

American Family moved to strike Federated's amended exhibit list wherein, inter alia, it urged that the decision in the previous appeal constituted the law of case, and as such, Federated was foreclosed from attempting to relitigate its responsibility for uninsured motorist coverage to the Browns.

On October 31, 2002, relying upon the designated material from the first appeal and the document dated February 20, 1997 that reflected the rejected uninsured motorist coverage, Federated filed its "Second Motion for Summary Judgment." (Appellant's App. 171). On November 27, 2002, American Family filed its "Motion for Entry of Judgment," requesting that the trial court enter judgment in its favor with regard to the uninsured motorist coverage in accordance with our ...