Ansert By and Through Ansert v. Indiana Farmers Mut. Ins. Co.
| Decision Date | 19 December 1995 |
| Docket Number | No. 10A05-9502-CV-33,10A05-9502-CV-33 |
| Citation | 659 N.E.2d 614 |
| Parties | Donald ANSERT, By and Through Joan ANSERT, His Legal Guardian, Appellant, v. INDIANA FARMERS MUTUAL INSURANCE COMPANY, Appellee. |
| Court | Indiana Appellate Court |
Donald Ansert, by and through his legal guardian Joan Ansert, appeals the trial court's granting of summary judgment in favor of Indiana Farmers Mutual Insurance Company ("Farmers"). Farmers is seeking a declaratory judgment to determine its obligations under an insurance policy. We consolidate and restate the issues raised on appeal as:
(1) whether the insurance policy's underinsured motorist coverage should be reduced by other sources of compensation.
(2) whether the insurance policy's anti-stacking provision violates public policy; and
(3) whether Ansert is entitled to punitive damages.
We reverse in part and affirm in part.
The facts most favorable to Ansert, the nonmoving party, follow. On the morning of April 11, 1992, Donald Ansert was seriously injured when his car collided with another car driven by William Adams. Prior to the accident, Ansert executed an insurance policy with Farmers which provided coverage for Ansert's personal automobiles. This insurance policy was in effect at the time of Ansert's accident. The insurance policy covered three vehicles, one of which was involved in the accident. The policy provided a $500,000 limit for underinsured motorist coverage on each vehicle.
The contact provided in part:
"COVERAGE C- UNINSURED MOTORIST COVERAGE
We shall pay damages for bodily injury and property damage which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury or property damage must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.
* * * * * *
Underinsured Motorists Coverage shall not apply to the benefit of any insurer or self insurer under any workers' compensation or disability benefits law or any similar law.
If the limit of liability in the Declaration is shown separately for 'each person' and 'each accident':
(1) The limit for 'each person' is the maximum for bodily injury sustained by any person in any one accident.
(2) Subject to the limit for 'each person', the limit for 'each accident' is the maximum for bodily injury sustained by two or more persons in any one accident.
* * * * * *
We will pay no more than these maximums regardless of the number of vehicles described in the Declarations, insured persons, claims, claimants, policies, or vehicles involved in the accident.
If the limit of liability in the Declaration is not shown separately for 'each person' and 'each accident':
(1) The limit of liability for this coverage is our maximum limit of liability for all damages resulting from any one accident.
We will pay no more than these maximums regardless of the number of vehicles described in the Declarations, insured persons, claims, claimants, policies, or vehicles involved in the accident.
* * * * * *
Under either section above, the following provisions also apply:
Any amounts payable will be reduced by:
(1) a payment made by the owner or operator of the uninsured motor vehicle or organization which may be legally liable.
(2) all sums paid because of bodily injury or property damage by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part I-Liability Coverage or Part IV-Car Damage.
(3) a payment made or amount payable because of the bodily injury under any workers' compensation law or disability benefits law or similar law.
Record, pp. 16-17 (emphasis added).
Prior to the present case, Ansert has filed other actions to recover for his bodily injuries resulting from this accident. First, Ansert has filed a worker's compensation claim. At the time of the accident, Ansert was driving a car which was owned and registered by his corporation, Ansert Mechanical Contractors ("AMC"). Ansert contends that on the day of the accident, he was acting within the scope of his employment. Ansert's worker's compensation claim indicates that he requested reimbursement for medical expenses of $436,999.59 incurred through April 30, 1994.
Second, Ansert has filed an action against Federal Insurance Company ("Federal Insurance") which provided underinsured motorists coverage of one million dollars for AMC.
Third, Ansert has filed an action against Adams, the tortfeasor. Adams was insured by State Farm Mutual Insurance Company for $100,000 in liability coverage.
On August 21, 1993, Farmers filed a declaratory judgment complaint to determine whether it was obligated to pay anything to Ansert under his policy. On July 25, 1994, Farmers filed a motion for summary judgment. The dispute eventually focused on whether Ansert could recover on his underinsured motorist coverage. Farmers contended that Ansert had already recovered from other sources. Farmers argued that although Ansert did have underinsured motorist coverage, Farmers' limit of liability was reduced by all payments by those legally responsible to Ansert. Ansert responded that the underinsured motorist coverage provided excess coverage and could not be set off by prior recoveries. Because Ansert's damages exceeded his prior recoveries, he argued that Farmers is obligated to cover the rest of his damages. In addition, Ansert filed a counterclaim against Farmers seeking punitive damages.
On October 18, 1994, the trial court granted Farmers' motion for summary judgment, and Ansert appeals this decision.
When we review a trial court's entry of summary judgment, we are bound by the same standard as the trial court. Ayres v. Indian Heights Volunteer Fire Department, Inc. (1986), Ind., 493 N.E.2d 1229, 1234. "The appellant bears the burden of proving that the trial court erred in determining that there are no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law." Id. Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum Group, Inc. (1991), Ind., 575 N.E.2d 630, 633. "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue." Scott v. Bodor, Inc. (1991), Ind.App., 571 N.E.2d 313, 318.
Ansert contends that the trial court erred in granting summary judgment based on its interpretation of the "amount payable" provision of the underinsured motorist coverage. He contends that Farmers' insurance policy is ambiguous and cannot be interpreted to allow a reduction in the amount recovered from other sources of compensation. Ansert points to Part III of the policy which states:
"Under either section above, the following provisions also apply:
Any amount payable will be reduced by:
(1) a payment made by the owner or operator of the uninsured motor vehicle or organization which may be legally liable.
(2) all sums paid because of bodily injury or property damage by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part I-Liability Coverage or Part IV-Car Damage.
(3) a payment made or amount payable because of the bodily injury under any workers' compensation law or disability benefits law or similar law."
Ansert contends the "amount payable" provision can be construed to be a reduction of the total damages that Ansert received as a result of the accident. Because Ansert was seriously injured in the accident, his damages could exceed $3,000,000. Ansert contends that the trial court construed the "amounts payable" provision to be a limit on Ansert's recovery against Farmers. Essentially, the court determined that the reduction provision of the insurance policy precluded payment because the setoffs from Ansert's prior recoveries were greater than Ansert's underinsured motorist coverage.
Farmers argues that Ansert failed to raise this argument before the trial court and now, raises it for the first time on appeal. Therefore, Farmers contends that the Ansert has waived this argument. Generally, a party may not raise an issue on appeal which was not raised in the trial court. Hardiman v. Governmental Interinsurance Exchange (1992), Ind.App., 588 N.E.2d 1331, 1333, trans. denied. This rule also applies to summary judgment proceedings. Id. However, where an opposing party has unequivocal notice of an issue, that issue may be considered on appeal. Id.; see also Transcontinental Technical Services, Inc. v. Allen (1994), Ind.App., 642 N.E.2d 981, 983 n. 1, trans. denied.
In the present case, Farmers raised the ambiguity issue in its motion for summary judgment. In its motion, Farmers argues that this dispute is "simply a matter of contract interpretation." Record, p. 115. It then quotes the "amount payable" provision and concludes that this provision is unambiguous. Specifically, Farmers states, "[t]hese unambiguous set-off provisions are valid and enforceable in Indiana." Record, p. 118.
When a party raises an issue of ambiguity in its own motion for summary judgment, that party had notice of the issue and cannot argue on appeal that the issue has been waived. Allen, 642 N.E.2d at 983 n. 1. Therefore, we will consider Ansert's argument that the "amounts payable" provision of the insurance policy was ambiguous.
The interpretation of an insurance policy, as with other contracts, is primarily a question of law for the courts to decide, even when the policy contains...
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