Armstrong v. Federated Mut. Ins. Co.

• Decision Date: 19 March 2003
• Docket Number: No. 03A05-0205-CV-222.,03A05-0205-CV-222.
• Citation: 785 N.E.2d 284
• Court: Indiana Appellate Court
• Parties: Robert & Lynnette ARMSTRONG, Appellants-Plaintiffs, v. FEDERATED MUTUAL INSURANCE COMPANY, Appellee-Defendant.

785 N.E.2d 284

Robert & Lynnette ARMSTRONG, Appellants-Plaintiffs, v. FEDERATED MUTUAL INSURANCE COMPANY, Appellee-Defendant.

No. 03A05-0205-CV-222.

Court of Appeals of Indiana.

March 19, 2003.

William G. Garber Columbus, IN, Attorney for Appellant.

Donald G. Orzeske, Jennifer L. Blackwell, Goodin Orzeske & Blackwell, P.C., Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Robert and Lynette Armstrong's (hereinafter referred to as the Armstrongs) nineteen-year-old daughter, Hillary, was killed in an automobile accident. After recovering the limit of available insurance coverage from the driver of the car in which Hillary was a passenger, the Armstrongs sought to collect from their own insurer, Federated Mutual Insurance Company, under its underinsured motorist (UIM) coverage. A dispute arose and the matter proceeded to trial, where the jury returned a verdict in favor of Federated. The Armstrongs appeal, presenting the following restated issues for review:

1. Did the trial court err in refusing Jury Instructions 1 and 2, tendered by the Armstrongs?

2. Did the trial court err in reading Jury Instructions 6 and 7 to the jury?

3. Did the trial court err in denying the Armstrongs' motion for judgment notwithstanding the verdict?

We affirm.

The facts favorable to the ruling are that on June 1, 2000, Hillary was a passenger in an automobile being driven by her boyfriend and roommate, David Redicker. Redicker lost control of the vehicle and it rolled over. Hillary was ejected from the vehicle and killed. On April 25, 2001, the Armstrongs filed a wrongful death action, naming as defendants Redicker, a highway construction company, the State of Indiana, and Federated. Their complaint was brought under the Indiana Child Wrongful Death Act, Ind.Code Ann. § 34-23-2-1, et seq. (West 1999). At some point prior to trial, the Armstrongs received a settlement from Redicker that represented the limits of his liability policy. Only one claim in the complaint is relevant to this appeal: the Armstrongs sought to recover, under the Federated policy's UIM provision, the portion of damages that exceeded the limits of Redicker's liability insurance policy. On June 15, 2001, Federated filed a motion to bifurcate the proceedings and the trial court granted the motion.

Trial was conducted on April 16-17, 2002. The primary issue at trial was the question of whether the Armstrongs' claim was covered by Federated's UIM provision. That question, in turn, was dependent upon two other questions, only one of which was addressed during trial. That question involved whether Hillary was an "insured person" under the contract. The second question arose by way of the motion for judgment notwithstanding the verdict, which was not filed until after trial concluded and the jury returned a verdict. The latter question was, did Robert and Lynette Armstrong suffer "bodily injury" within the meaning of the UIM policy?

The UIM portion of the policy provides: "We will pay compensatory damages which an `insured' is legally entitled to recover from the owner or operator of an `insured motor vehicle' because of `bodily injury'"[.] Appellants' Appendix at 140. The UIM provision defined "insured" as "You or any family member." Id. The "definitions" section of the Federated policy defined "family member" as follows: "`Family member' means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child." Id. at 136. The following excerpt from Robert Armstrong's testimony at trial best sums up the crux of matters tried before the jury.

[Plaintiffs' counsel]: Okay, so she's a family member to that extent. The issue is whether she's a resident of your household. You believed her to be a resident of your household. Is that right?

[Armstrong]: Yes.

Q That's what you made your claim for coverage based on. That she was a resident of your household.

A Yes.

Q That was the basis on which Federated Insurance Company denied coverage, was that she was not a resident of your household.

A Yes, that's how I understand it.

Id. at 93-94. Simply put, Federated denied coverage upon the basis that, at the time of her death, Hillary was not a "resident" of her parents' household.

At the conclusion of trial, the jury returned a verdict in favor of Federated. In response to that verdict, the Armstrongs filed a Motion for Judgment on Evidence Not Withstanding the Jury Verdict. The trial court denied that motion and entered judgment against the Armstrongs.

1.

The Armstrongs contend that the trial court erred in rejecting two jury instructions they tendered.

The manner of instructing the jury is committed to the sound discretion of the trial court. Centennial Mortgage, Inc. v. Blumenfeld, 745 N.E.2d 268 (Ind. Ct.App.2001). We will reverse such rulings only upon a showing of abuse of that discretion. Id. "The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." Id. at 278. Even if we conclude that a trial court erred in instructing the jury, reversal is not always warranted. If we determine that the verdict would not have differed had the jury been properly instructed, such error is deemed harmless. Id.

Proposed Jury Instruction No. 1 was the first instruction that the Armstrongs contend should have been read to the jury. It stated as follows:

Residence means the place where a person has her true, fixed, permanent home and principal establishment, and to which place she has, whenever she is absent, the intention of returning.

Once acquired, residence is presumed to continue because "every man has a residence somewhere, and ... he does not lose the one until he has gained one in another place."

Establishing a new residence terminates the former residence. A change of residence requires an actual moving with an intent to go to a given place and remain there. It must be an intention coupled with acts evidencing that intention to make the new residence a home in fact. There must be the intention to abandon the old residence; the intention to acquire a new one; and residence in the new place in order to accomplish a change of residence.

Brief of Appellants at 14. This instruction supplied a definition of the term "resident," as used in the Armstrongs' insurance policy. Federated contends that Proposed Instruction No. 1 was properly refused because the term "resident" is neither technical in nature nor a legal term of art, and therefore does not require a definition. We agree.

The appellant in Hoosier Ins. Co. v. North South Trucking Supplies, Inc., 684 N.E.2d 1164 (Ind.Ct.App.1997) appealed the refusal of a proposed instruction defining the terms "concealment," "misrepresentation," and "fraud." Those terms were used in a contract provision that excluded payment of claims based upon those theories. We stated the applicable rule as follows: "It is generally error for a trial court to refuse to define in its instructions technical and legal phrases relevant to material issues of a lawsuit if it is properly requested to do so." Id. at 1174. We rejected the appellant's claim upon the following basis: "The terms are clearly understandable to any ordinary person. Furthermore, it does not appear that the jury was, in any way, confused by the terms which Hoosier claims needed definition." Id. at 1174.

Similarly, "resident" does not strike us as a term so technical in nature that a jury would require instruction to understand it. It is a term of common usage and its common meaning, i.e., "one who resides" would be known to the average juror. The same can be said of the verb "reside" from which it derives. In this context, the latter term is perhaps more significant in applying the contractual provision in question. Again, the average juror would understand that term to mean, "to dwell permanently or continuously: occupy a place as one's legal domicile." Merriam-Webster Dictionary, at http://www.m-w.com/cgi-bin/dictionary (February 12, 2003). Because the term "resident" is neither legal nor technical in nature, and is widely used and understood by the average juror, the trial court did not err in refusing to instruct the jury on its meaning. Hoosier Ins. Co. v. North South Trucking Supplies, Inc., 684 N.E.2d 1164.

Proposed Jury Instruction No. 2 was the second proposed instruction whose rejection the Armstrongs challenge. It stated as follows:

In construing the term "resident" in insurance policies, it is given its broad meaning in "extension" cases. The case before us is an extension case because it involves the question of whether coverage should be extended beyond the named insured, Robert Armstrong, to his daughter, Hillary. Therefore the term "resident" will be given its broad meaning.

Indiana Law construing the term "resident" in insurance policies have [sic] applied to it the rule of interpretation which favors coverage of the insured.

Brief of Appellants at 16.

The stated purpose of the foregoing instruction was to aid the jury in construing the meaning of the contract provision in question. It is well established that construing the meaning of a contract provision is appropriate only when an ambiguity exists. See Travelers Indem. Co. v. Summit Corp. of America, 715 N.E.2d 926 (Ind.Ct.App.1999). Yet, the Amstrongs' counsel acknowledged that the contract language that they sought to aid the jury in construing was "clear and unambiguous." Transcript at 75. That concession notwithstanding, the Armstrongs cite Allstate v. Neumann, 435 N.E.2d 591 (Ind.Ct. App.1982) in support of their contention that the jury should have been instructed on the meaning of "resident" in this context.

We observe that the legal principle espoused in the instruction is by no means firmly established under Indiana law. In essence, the Armstrongs sought to...