Auto-Owners Ins. Co. v. Powell

• Decision Date: 14 February 1991
• Docket Number: No. IP 89-1048-C.,IP 89-1048-C.
• Citation: Auto-Owners Ins. Co. v. Powell, 757 F.Supp. 965 (S.D. Ind. 1991)
• Parties: AUTO-OWNERS INSURANCE COMPANY, Plaintiff, v. Sean R. POWELL and Schaller Trucking Corporation, Defendants.
• Court: U.S. District Court — Southern District of Indiana

757 F. Supp. 965

AUTO-OWNERS INSURANCE COMPANY, Plaintiff, v. Sean R. POWELL and Schaller Trucking Corporation, Defendants.

No. IP 89-1048-C.

United States District Court, S.D. Indiana, Indianapolis Division.

February 14, 1991.

Michael K. Irwin, Stewart & Irwin, Indianapolis, Ind., for plaintiff.

Leonidas G. Condos, Condos & Cushing, Indianapolis, Ind., for defendant Powell.

Stephen M. Gentry, Indianapolis, Ind., for defendant Schaller.

ENTRY

BARKER, District Judge.

Plaintiff Auto-Owners Insurance Company filed this declaratory judgment action against defendants Sean R. Powell and Schaller Trucking Corporation, seeking a resolution of the issue of whether Powell was covered by the underinsured motorist provision of Schaller Trucking's auto insurance policy issued by Auto-Owners in connection with an accident which occurred on October 27, 1987. This action is currently before the court on the plaintiff's and Powell's cross motions for summary judgment. For the reasons stated below, the plaintiff's motion for summary judgment is granted, and Powell's motion for summary judgment is denied.

I. Background

The following facts are undisputed by the parties. The auto accident in which Powell was injured occurred on October 27, 1987. Powell was at the time employed by Schaller Trucking and was driving a van owned by Schaller Trucking southbound on I-465, approaching Indianapolis. At approximately 12:46 A.M., when Powell was near the Rockville Road exit, Powell lost control of the van. The van went into a spin, struck a concrete median wall at least once, and wound up coming to rest facing west, perpendicularly across the highway, with the rear of the van up against the median wall and the rest of the van extending across an emergency berm and into the left lane of I-465 South. Powell attempted to restart the van without success.

Another driver, a man named Kenneth Lee Tolen, witnessed this accident and stopped his vehicle, also a van, on the opposite side of I-465 South in order to offer help. He crossed the lanes of I-465, waving a flashlight he had with him to the north in an attempt to alert approaching cars. At this point, there is some disagreement as to the facts. Powell testified in his deposition that he was still in the van at the time when Tolen crossed the highway and reached Powell's van. Powell Deposition, p. 32. However, Tolen testified that Powell was already out of the van by the time he arrived. Tolen Deposition, p. 17. However, both agree that while Powell was apparently not injured physically after the first accident, he was shaken up and appeared a little dazed to Tolen.

After Tolen had asked Powell if he was all right and if the van would restart, he told Powell that he was going to go back to his van to radio for help. Powell testified that it was at this point that he got out of his van. Powell Deposition, p. 34.

After getting out of his van, Powell said he "tried to walk it off a little bit." Id., p. 34. When Auto-Owners' attorney Michael K. Irwin asked Powell what he meant by this, Powell answered:

I was shaken, I was nervous. I tried to get a little air and walk around a little bit to try and get myself back together. Then I turned around and looked back at the van. I saw the van was facing the way it was so I figured that the traffic couldn't see my van because of the way it was facing, due to the lights. It was facing east and west. So I looked over at his apparently Tolen's van, his lights was on so I crossed over to where he was. So I walked back down towards the van, and I looked around the van to see if it was clear for me to cross, and it wasn't. There was traffic coming so I turned again to walk away from the van, and that's when I felt a lot of pressure and myself flying through the air.

Id., p. 35.

The pressure to which Powell referred came from a second accident, the one in which Powell was injured. An automobile driven by Gregory Powers collided with Powell's disabled van. The force of this collision thrust Powell's van into him and apparently carried him some distance down the highway.

Irwin asked Powell how much time elapsed from when he had gotten out of the van until the second accident occurred when he was hit by his van. When Powell answered that he was not sure, Irwin asked if it was a matter of seconds or minutes, and Powell answered that it was minutes. Id. When Irwin asked if Powell knew approximately how many minutes it was, Powell answered, "Between two and five minutes, I guess, somewhere along in there." Id., p. 36.

Irwin questioned Powell further as to where he had walked after he got out of his van. The court quotes this examination in detail as it explores the key issue raised by the pending motions.

Q. Now, when you say you walked it off, where had you walked?

A. I walked to the left of the van. From where the van was facing, I walked to the left of the driver's side of the van.

Q. Did you get out of the driver's side?

A. Yes.

. . . . .

Q. After you got out, where did you walk to?

A. I walked to the left of the van.

Q. I guess I don't understand what you mean then, because you were on the left side of the van.

A. Yes. I was in the emergency area.

Q. Okay.

A. And I am not sure how far I walked, but I walked away from it.

Q. In what direction did you walk away from it?

A. South.

. . . . .

Q. How long did it take you to walk wherever you walked to and come back would you say?

A. About a half a minute or so.

Q. You don't know how far away from the van you got?

A. No.

Q. Were you in the emergency berm when you walked to the south?

A. Yes.

. . . . .

Q. When you walked back to the van after you had walked it off and you walked back to the van, where did you go?

A. I walked to the front of the van to look around to see if the traffic was clear.

Q. What was your intention at that time of doing?

A. To cross over to where his Tolen's van was.

Q. Why was that?

A. Because his van was sitting with the lights on, and I felt the traffic could see his lights and his van, whereas they couldn't see mine because of the direction it was facing.

. . . . .

Q. Now, where exactly were you standing in relation to the van when the second impact occurred, the one that hit you?

A. I was walking away from the van south.

Q. Were you standing to the front, to the side, whereabouts?

A. I was walking back towards the back of the van away like, I guess, you could say at an angle towards the median.

. . . . .

Q. — it's my understanding that when the second accident occurred, you were on your way around the front of the van.

A. No. I was on my way southbound away from the van, because there was oncoming traffic.

Q. I see. What part of the van was pushed into you?

A. I don't know. My back was to the van.

Q. So you were facing south when all this happened?

A. Yes.

Q. All you know is you were hit by the left side of your van, but you don't know what part of the left side, is that what you are saying?

A. Yes.

Q. Do you know how far the van had to be pushed to the south from its resting point to the point that it struck you?

A. No, I don't know.

. . . . .

Q. Were you aware at any time that there was going to be a collision with your van before it happened?

A. No.

Powell Deposition, pp. 36-40.

In the meantime, Tolen had crossed back to his van on the other side of I-465 South. Tolen was not watching Powell at this time. Tolen Deposition, p. 21. He used his CB to call React, which apparently is a service which calls and directs rescue personnel to accident sites as needed upon receiving notice on the CB. Id., p. 21. Tolen was unaware of what Powell was doing during this period of time. Id. Tolen apparently had no trouble reaching React on the CB. Id. After he had talked with a React representative, he put down his mike and started to get out of his van, at which point in time the second accident involving Powell occurred. Id. Specifically, Tolen said he "hadn't even gotten out of the van. He had just opened the door and started to step out when that happened." Id., p. 22. Although Tolen heard the crash of this second accident, he did not actually see it at first, as a semi in the middle lane of I-465 South blocked his view. Id. However, he did see Powers' and Powell's vehicles skid across the highway and in front of the semi after the initial impact. Id. Tolen later crossed back to the east side of I-465 South with another individual, and they found Powell lying against the concrete median wall. Tolen testified, "To the best of my knowledge, Powell wasn't 10 or 15 feet from where his van originally was." Id., p. 26.

When Tolen was questioned as to the length of time which passed from when Powell's van initially went into a spin and then came to a rest until the second collision occurred, he estimated that five to ten minutes might have passed, but that he was really unsure of the length of time. Id., p. 31. As for the amount of time which passed from when Tolen left Powell to radio for help until the second collision occurred, Tolen testified "that was just a matter of only 2 or 3 minutes for that. By the time it took me to get across the interstate and to explain to React what had happened then — you know, they were right on the radio, so it wasn't any wait there or anything." Id., pp. 41-42.

II. Discussion

Both Auto-Owners and Powell have moved for summary judgment on the issue of whether Powell was an insured as this term is defined for purposes of the underinsured motorist coverage provided by Schaller Trucking's policy with Auto-Owners. The term "insured," as it is relevant here, is defined in Section IIIA(2)(b) of this policy as "Any person while in, upon, entering or alighting from an automobile to which coverage A bodily injury liability of this policy applies...." It is the application of this definition which is at issue.

Powell, however, offers an argument which would obviate the necessity of applying this definition. Auto-Owners, in response to a Request for...