Corr v. Schultz

• Decision Date: 28 February 2001
• Docket Number: No. 71A03-0006-CV-217.,71A03-0006-CV-217.
• Citation: 743 N.E.2d 1194
• Parties: James T. CORR, Appellant-Plaintiff, v. Glenn SCHULTZ and Glenn Schultz Agency, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

743 N.E.2d 1194

James T. CORR, Appellant-Plaintiff, v. Glenn SCHULTZ and Glenn Schultz Agency, Inc., Appellees-Defendants.

No. 71A03-0006-CV-217.

Court of Appeals of Indiana.

February 28, 2001.

Michael J. Anderson, Anderson, Agostino & Keller, P.C., South Bend, IN, Attorney for Appellant.

Sean E. Kenyon, Robert J. Konopa, Konopa & Murphy P.C., South Bend, IN, Attorneys for Appellees.

OPINION

KIRSCH, Judge.

James T. Corr appeals from the trial court's grant of summary judgment in favor of Glenn Schultz and Glenn Schultz Agency, Inc. (collectively "Schultz") on his claim for negligence based on Schultz's change of Corr's underinsured motorist coverage on his automobile insurance policy.

We reverse.

FACTS AND PROCEDURAL HISTORY

On June 8, 1997, Janel Lacee Corr was a passenger in a 1995 Dodge Caravan driven by Andres Balderas. The vehicle was involved in a one-car accident; five of the occupants of the vehicle were seriously injured, including Janel Corr, who died as a result of her injuries. At the time of the accident, the owner of the vehicle, Balderas's father, had an automobile liability policy in effect for the vehicle with State Farm Mutual Auto Insurance Company. The bodily injury liability policy limits were $100,000 per person and $300,000 per accident. In addition, Balderas's mother had an insurance policy from Automobile Club of Michigan Insurance Group that included the same $100,000 per person and $300,000 per accident limits.

The two insurance companies tendered the amount of their policy limits to the trial court and filed an action to determine the proper apportionment of the proceeds among the many injured parties. Following mediation, the parties agreed on a scheme under which the Corrs would receive $115,000 for the loss of Janel.¹

In November 1996, James Corr had an insurance policy in effect on his car through American Family Insurance which provided underinsured motor vehicle coverage of $250,000 per person and $500,000 per accident. At some time prior to the accident, Corr noted that the premiums for the policy were excessive. He talked with his insurance agent, Schultz, about how to lower the premiums. In response, Schultz lowered the underinsured motor vehicle policy limits to $100,000 per person and $300,000 per accident. These limits were in effect at the time of the accident. Also at the time of the accident, Pamela Corr, Janel's mother, had underinsured motor vehicle coverage on her vehicle with policy limits of $100,000 per person and $300,000 per accident. When Corr claimed against his policy for the loss of Janel, American Family denied the claim, believing that Corr's underinsured motor vehicle coverage did not apply because Balderas's car was not underinsured.

Corr filed separate complaints against Schultz for negligence and against American Family seeking a declaratory judgment on the policy limits. Both courts granted summary judgment for the defendants.² In this appeal, Corr attacks the summary judgment in favor of Schultz.

DISCUSSION AND DECISION

Corr contends that the trial court erred in granting Schultz's motion for summary judgment because the minivan in which Janel was riding was an underinsured motor vehicle pursuant to Indiana law and his insurance policy. We note that Corr's theory of liability against Schultz was negligence based on Schultz's allegedly unilateral action in lowering the policy limits on the underinsured motorist coverage. However, for purposes of the summary judgment motion, the trial court treated Corr's allegation as true. That is, even assuming that Schultz acted unilaterally and without authorization in lowering the policy limits, the trial court determined that Schultz was entitled to summary judgment on Corr's claim.

"The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law." Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 936 (Ind.Ct.App.1996); see Ind. Trial Rule 56(C). In reviewing a motion for summary judgment, we apply the same standard as the trial court, and we resolve any question of fact or an inference to be drawn therefrom in favor of the non-moving party. Bamberger, 665 N.E.2d at 936. We will affirm a trial court's grant of summary judgment if it is sustainable on any theory supported by the designated evidence. Id. Finally, the party appealing the trial court's denial or grant of summary judgment bears the burden of persuading us that the trial court erred. Irvine v. Rare Feline Breeding Center, Inc., 685 N.E.2d 120, 123 (Ind.Ct.App.1997),trans. denied.

Schultz maintains that Balderas's vehicle was not underinsured and therefore Corr's underinsured motorist coverage does not apply to this accident. IC 27-7-5-4 defines the term "underinsured motor vehicle" as follows:

"For the purpose of this chapter, the term underinsured motor vehicle, subject to the terms and conditions of such coverage, includes an insured motor vehicle where the limits of coverage available for payment to the insured under all bodily injury liability policies covering persons liable to the insured are less than the limits for the insured's underinsured motorist coverage at the time of the accident, but does not include an uninsured motor vehicle as defined in subsection (a)."

Schultz asserts that this statute dictates that the proper analysis is to compare the total limits of bodily injury coverage available under the policies covering Balderas with the underinsured motorist policy limits on Corr's policy. Indeed, this is the approach recently taken in a memorandum decision by another panel of this court in Corr v. American Family Ins., 71A03-0003-CV-85, slip op. at 7-8, 742 N.E.2d 43 (Ind.Ct.App. Dec. 28, 2000), which held that the correct analysis was to compare the $600,000 per accident bodily injury liability limit under the two policies covering Balderas to the $600,000 per accident underinsured motor vehicle limit of the policies under which Janel was an insured.

This approach, however, leads to the anomalous result that when multiple people are injured in an accident, an injured party is in a better position if the driver responsible for the accident is not insured at all than if he or she has insurance. For instance, here, if Balderas had had no insurance, Corr's uninsured motorist coverage would clearly have applied and he would have been entitled to claim up to $250,000.³ Because Balderas did have coverage, Schultz now argues that the correct result is for Corr to recover only $57,500, in spite of the fact that the coverage he purchased and bargained for in both situations is the same. We do not believe the legislature could have intended such a result.

Schultz relies on Allstate Ins. Co. v. Sanders, 644 N.E.2d 884, 885-86 (Ind.Ct. App.1994) to support his argument that a policy limits-to-policy limits comparison is mandated. In Sanders, two brothers riding in a vehicle were seriously injured by the negligence of a driver, Hartgraves. Hartgraves's insurer paid the $100,000 policy limits, $50,000 to each of the men. Both men then claimed against their policy, which had underinsured motorist coverage of $100,000. Their insurer denied their claims. After they filed suit, the insurer moved for judgment on the pleadings, which the trial court denied.

On appeal, the Sanders court determined that the insurer was entitled to judgment on the pleadings because Hartgraves was not an underinsured motorist according to the terms of the statute. In doing so, the Sanders court determined that the proper analysis is to compare "the tortfeasor's per accident liability coverage with the insured's underinsured motor vehicle coverage." Id. at 886. The court rejected the plaintiffs' argument that the reference to "the insured" in the statute means each individual insured, stating that accepting such argument "would create for an insurer potential unlimited underinsurance liability based on the number of injured persons who qualify as insured under a policy." Id. at 887. In reaching its decision, the Sanders court relied on the Colorado case of Leetz v. Amica Mut. Ins. Co., 839 P.2d 511 (Colo.Ct.App.1992). In that case, Leetz was killed and three other people riding in the same car were injured when a negligent driver struck them. The liable driver had liability coverage of $25,000 per person and $50,000 per accident. Accordingly, the insurer paid $50,000 to the injured parties; Leetz's heirs received $16,000 of that amount. Leetz's heirs then made a claim against the underinsured motorist provision of the policy of the driver of the car in which Leetz was riding, which had a single underinsured motor vehicle limit of $50,000. The court determined that Leetz's heirs could not make a claim because the coverage did not apply. In doing so, the court compared the limit of coverage of the liable driver applicable to the accident in question, here $50,000, to the underinsured motor vehicle coverage policy limit, also $50,000. Because these amounts were the same, the court held that the liable driver was not underinsured. Id. at 513.

The statute which the Colorado court interpreted in Leetz was different from the Indiana statute at issue here. This difference is critical. The provision of the Colorado statute which the court determined dictated this result read as follows: "An underinsured motor vehicle is a land motor vehicle [which] is insured ... but the limits of liability for bodily injury or death ... are: (a) Less than the limits for uninsured motorist coverage under the insured's policy[.]" Id. at 512 (quoting § 10-4-609(4), C.R.S. (1987 Repl.Vol. 4A)). Thus, the statute expressly dictated a limits-to-limits comparison. Such is not the case in Indiana, where the statute turns on the coverage available for payment to the insured—not the coverage available under the policy. Had the legislature intended a strictly...