Blankenbaker v. Great Central Ins. Co.

• Decision Date: 24 April 1972
• Docket Number: No. 671A116,671A116
• Citation: 281 N.E.2d 496,151 Ind.App. 693
• Parties: Richard I. BLANKENBAKER et al., Appellants (Defendants Below), v. GREAT CENTRAL INSURANCE COMPANY, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 496

281 N.E.2d 496

151 Ind.App. 693

Richard I. BLANKENBAKER et al., Appellants (Defendants Below), v. GREAT CENTRAL INSURANCE COMPANY, Appellee (Plaintiff Below).

No. 671A116.

Court of Appeals of Indiana, Second District.

April 24, 1972.

John F. Townsend, Jr., Indianapolis, for appellants; Townsend, Hovde & Townsend, Indianapolis, of counsel.

John N. Thompson, Howard J. DeTrude, Jr., Indianapolis, for appellee; Kightlinger, Young, Gray & Hudson, Indianapolis, of counsel.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal from a Summary Judgment entered against defendants-appellants, Richard Blankenbaker, Charles Murphy, Paul Ferneding, and John Kirkpatrick (Blankenbaker), in an action by plaintiff-appellee, Great Central Insurance Company (the Company), seeking a Declaratory Judgment denying the applicability of the uninsured motorist provision of an automobile insurance policy issued by the Company to Blankenbaker.

The record indicates these facts.

On December 1, 1966, the Company issued to Blankenbaker an automobile insurance policy (the policy). With respect to the uninsured motorist clause, the policy provided:

'I. Damages for Bodily Injury Caused by Uninsured Automobiles: The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

'II. Definitions:

'(c) 'uninsured automobile' means:

'(2) a hit-and-run automobile as defined:

'(d) 'hit-and-run automobile' means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such 'hit-and-run automobile'; (2) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or the Commissioner of Motor Vehicles, and shall have viled with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at the company's request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.' (Emphasis supplied.)

After dark on September 15, 1967, at approximately 8:30 P.M., Blankenbaker was driving along a highway in Wisconsin in his camper-bus with the other three appellants as passengers. The highway was a single-lane highway with a white line dividing the northwest-bound traffic from the southeast-bound traffic. While proceeding in a northwest direction, the camper-bus struck a large, immobile truck tire and rim with attached angle iron directly in its path as it proceeded in the northwest-bound lane. Blankenbaker thereby lost control of the steering, causing the camper-bus to roll over with resulting injuries to all of the passengers. No other vehicle was involved in the accident, and none was in the vicinity of the accident.

Blankenbaker was the only individual in the camper who saw the tire and rim assembly, seeing it momentarily before the accident occurred. It was not found after the accident and Blankenbaker was unable to explain how it happened to be there. He assumed it was dropped by a large vehicle. There is nothing in the record to establish the source of the tire and rim assembly except the following testimony of Blankenbaker:

'121 Q. Do you know, Mr. Blankenbaker, how that tire and wheel got there?

A. No.

122 Q. Do you know what it was off of?

A. (Shook head.)

123 Q. You are shaking your head meaning--?

A. No. It has to be off--

124 Q. (interposing) I'm asking you if you know. I'm not asking for an assumption of what it might have been off of. I'm asking you if you know where this tire came from?

A. No, I don't know where it came from, except it had to have come off a big vehicle.' (Tr. p. 69.)

Blankenbaker subsequently filed a claim with the Company alleging that the tire and rim assembly constituted a hit-and -run automobile within the meaning of the uninsured motorist provision of the policy.

The Company refused the claim and after other proceedings not pertinent here the Company brought an action for Declaratory Judgment in the Hancock Circuit Court which granted its Motion For Summary Judgment on January 15, 1971. The court found that the facts as alleged by Blankenbaker did not constitute an accident with a hit-and-run automobile within the terms of the policy; that no right of recovery existed under the uninsured motorist provision; that no issue for arbitration was created by Blankenbaker; and that he was not entitled to pursue his claim against the Company by arbitration.

ISSUE--Did a material issue of fact exist as to whether contact by Blankenbaker's camper-bus with the truck tire and rim assembly constituted 'physical contact' with an uninsured 'hit-and-run automobile' within the meaning of the policy?

Blankenbaker contends that the trial court erred in granting summary judgment because a material issue of fact was raised as to whether the accident with the tire and wheel assembly constituted 'physical contact' with a hit-run automobile within the terms of the policy.

The Company contends that a tire and rim is not an automobile or a motor vehicle. Also, there was no indirect contact with another vehicle as none was shown to even be in the vicinity, so the uninsured motorist clause of the policy is inapplicable to this particular accident.

No issue is raised as to whether the American Arbitration Association had exclusive jurisdiction to arbitrate the issues raised under the terms of the policy because it was not part of the errors claimed in the Motion To Correct Errors. TR 59(G), IC 1971, 34--5--1--1 and AP. 8.3(A)(7). In Re Annexation of Territory to City of Muncie, (Ind.App.1971), 276 N.E.2d 198.

DECISION--It is our opinion that no genuine issue of material fact existed as to whether an accident occurred between Blankenbaker's camper-bus and the tire and rim assembly so as to constitute 'physical contact' between an uninsured 'hit-and-run automobile' within the meaning of the policy. Only an issue of law was presented.

Rule TR. 56(C) of the Indiana Rules of Civil Procedure, IC 1971, 34--5--1--1, provides, in part, that summary judgment '* * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' In ruling on Motions For Summary Judgment, the trial court may not try issues of fact or determine the preponderance of the evidence. Rather, the court is limited to the sole determination of whether there are any issues of material fact which should be tried. Central Realty, Inc. v. Hillman's Equipment, Inc., (1969) 253 Ind. 48, 246 N.E.2d 383; Verplank v. Commercial Bank of Crown Point, (Ind.App.1969) 251 N.E.2d 52; Walsh v. Fulton County Farm Bureau Coop. Ass'n., (Ind.App.1969) 252 N.E.2d 609. Summary Judgment, therefore, 'is a procedure for applying the law to the facts when no factual controversy exists.' Central Realty, Inc. v. Hillman's Equipment, Inc., supra.

The guiding rules and principles for determining whether a factual controversy exists have frequently been stated by this and the Supreme Court in recent years. We know that:

The burden is on the proponent of a Motion For Summary Judgment to conclusively demonstrate the absence of any genuine issue as to a material fact and that such proponent is entitled to a judgment as a matter of law.

Any doubt as to the existence of a genuine issue as to a material fact must be resolved against the proponent of a Motion For Summary Judgment.

The contents of pleadings, depositions, answers to interrogatories, admissions and affidavits must be liberally construed in favor of the respondent to a Motion For Summary Judgment, and the facts asserted by such respondent supported by affidavit must be taken as true.

These and other governing principles have been summarized in such recent decisions of this court as: Wozniczka v. McKean, (Ind.App.1969) 247 N.E.2d 215; Doe v. Barnett, (1969) 19 Ind.Dec. 88, 251 N.E.2d 688; Mayhew v. Deister, (Ind.App.1969) 244 N.E.2d 448; Houston v. First Federal Savings & Loan Assoc., (Ind.App.1969) 246 N.E.2d 199; and Verplank v. Commercial Bank, supra.

Our search for a genuine issue as to a material fact in this controversy has been futile. The Company expressly or impliedly concedes that there was a tire and rim assembly at rest in the highway which was struck by Blankenbaker's camper-bus and that it came into contact with the tire and rim assembly thereby causing the camper-bus to overturn with resulting injuries to the passengers. Another established crucial fact is Blankenbaker's own statement that he did not know where the tire and rim assembly came from but that it had to come off of a big vehicle, all of which the Company also concedes to be true.

Blankenbaker's argument that a material issue of fact...