EState Kinser v. Ind. Ins. Co.

• Decision Date: 25 May 2011
• Docket Number: No. 29A02–1009–PL–1093.,29A02–1009–PL–1093.
• Parties: ESTATE OF Bradley KINSER, et al., Natalie Rike, Ava Rike, Rachel Kinser, Don Page, Jayne Page, and Erie Insurance Company, Appellants–Defendants,v.INDIANA INSURANCE COMPANY, Appellee–Plaintiff.
• Court: Indiana Appellate Court

950 N.E.2d 23

ESTATE OF Bradley KINSER, et al., Natalie Rike, Ava Rike, Rachel Kinser, Don Page, Jayne Page, and Erie Insurance Company, Appellants–Defendants,

v.INDIANA INSURANCE COMPANY, Appellee–Plaintiff.

No. 29A02–1009–PL–1093.

Court of Appeals of Indiana.

May 25, 2011.

Matthew W. Lloyd, Lloyd Law Office, Bloomington, IN, Attorney for Appellant Natalie Rike and Ava Rike.Donald W. Francis, Jr., Bloomington, IN, Attorney for Appellant Estate of Bradley Kinser and Rachel Kinser.P. Michael Summers, Summers Law Office, New Albany, IN, Attorney for Appellant Don Page and Jayne Page.Joseph M. Dietz, Rick D. Meils, Andrew M. Sumerford, Meils Thompson Dietz & Berish, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

Following Bradley Kinser's car accident and death while driving his girlfriend's car, Kinser's auto insurance carrier, Indiana Insurance Company, filed for a declaratory judgment that it is not obligated to cover any losses because Kinser's policy excluded coverage for a vehicle furnished or available for his regular use. The Estate of Bradley Kinser, Natalie Rike, Ava Rike, Rachel Kinser, Don Page, Jayne Page, and Erie Insurance Company (collectively “Appellants”), appeal from the trial court's grant of summary judgment in favor of Indiana Insurance and denial of their own motion for summary judgment. On appeal, Appellants raise two issues, which we restate as whether the trial court erred in concluding that Indiana Insurance is entitled to judgment as a matter of law, and that Appellants are not entitled to judgment as a matter of law. Concluding that a genuine issue of fact remains and that neither Appellants nor Indiana Insurance is entitled to judgment as a matter of law, we reverse and remand.

Facts and Procedural History ¹

In December 2008, Bradley Kinser and Natalie Rike were in a long-term relationship and lived together and with their children from prior relationships in Spencer, Indiana. Kinser had a daughter, Rachel, and a son, Braden, and Rike had a daughter, Ava.

Kinser and Rike worked for the same company in Indianapolis and for several months had commuted together daily. Kinser owned a Chevy Trailblazer, insured by Indiana Insurance Company, and Rike owned a Ford Focus, insured by Erie Insurance Company and jointly titled with her father. Because the Focus was more fuel efficient, they usually used the Focus to drive to and from work—Kinser drove them to work in the mornings and Rike drove them home in the evenings.

For weekend trips the five-person family often used the Trailblazer. Rike testified in a deposition that Kinser drove the Trailblazer for most errands and only used the Focus to drive them to work or on other long drives. Rike further testified that although they each had keys for each other's cars “for lock-out purposes,” Appellants' Appendix at 113, Kinser would ask for permission to use the Focus, and “wouldn't just take it without asking.” Id. at 114. Rike recalled only one occasion on which Kinser sought such permission—to pick up his children because the Focus was blocking the Trailblazer in the driveway—and she granted him permission.

On December 14, 2008, neither Kinser nor Rike had work and they drove Rachel and Ava to the Children's Museum of Indianapolis in the Focus. On the way home, while Kinser was driving, they collided with a car occupied by Don Page and Jayne Page. As a result of the collision, Rike, Rachel, Ava, Don, and Jayne were injured, and Kinser was killed.

In June 2009, Indiana Insurance filed an action seeking declaratory judgment that damages from the accident were excluded from coverage by Kinser's insurance policy. Under the terms of his policy, Kinser was generally insured for his “use of any auto,” id. at 126, but excluded from coverage for his use of: “[a]ny vehicle, other than ‘your covered auto’, which is [ ] ... [o]wned by you[ ] or ... [f]urnished or available for your regular use.” Id. at 128.

Following cross-motions for summary judgment and a hearing, the trial court granted summary judgment in favor of Indiana Insurance and denied the Appellants' motion for the same. In pertinent part, the trial court stated: “the undisputed facts show that Mr. Kinser regularly used the vehicle and that it was, if not furnished, always available for his use.” Id. at 7. Appellants now appeal. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

On appeal of a summary judgment order we are bound by the same standard as the trial court, and we consider only those materials which the parties designated at the summary judgment stage. Estate of Pflanz v. Davis, 678 N.E.2d 1148, 1151 (Ind.Ct.App.1997). Summary judgment is appropriate if the “designated evidentiary matter shows 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.” Ind. Trial Rule 56(C). The moving party bears the burden of showing no genuine issue of material fact in reliance upon specifically designated evidence. Pflanz, 678 N.E.2d at 1150. If the moving party satisfies its burden, the burden shifts to the non-movant to set forth specifically designated evidence showing there is a genuine issue for trial. Id. A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute, or where undisputed facts are capable of supporting conflicting inferences on such an issue. Briggs v. Finley, 631 N.E.2d 959, 963 (Ind.Ct.App.1994), trans. denied. Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts. Gen. Accident Ins. Co. of Am. v. Hughes, 706 N.E.2d 208, 210 (Ind.Ct.App.1999), trans. denied.

We liberally construe all designated evidentiary material in the light most favorable to the non-moving party to determine whether there is a genuine issue of material fact for trial. Dunifon v. Iovino, 665 N.E.2d 51, 55 (Ind.Ct.App.1996), trans. denied. We may affirm a trial court's grant of summary judgment upon any theory supported by the designated materials. Sims v. Barnes, 689 N.E.2d 734, 735 (Ind.Ct.App.1997), trans. denied. Additionally, we “may determine in the context of summary judgment a mixed question of law and fact.” Ebbinghouse v. FirstFleet, Inc., 693 N.E.2d 644, 647 n. 2 (Ind.Ct.App.1998), trans. denied.

The fact that the parties filed cross-motions for summary judgment does not alter our standard of review. Pond v. McNellis, 845 N.E.2d 1043, 1053 (Ind.Ct.App.2006), trans. denied. We consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

II. Insurance Policy Exclusions

A. Judicial Construction of Insurance Policy Exclusions

The following general principles guide our construction of insurance policies:

Insurance policies are governed by the same rules of construction as other contracts. As with other contracts, the interpretation of an insurance policy is a question of law. When interpreting an insurance policy, our goal is to ascertain and enforce the parties' intent as manifested in the insurance contract. We construe the insurance policy as a whole and consider all of the provisions of the contract and not just the individual words, phrases or paragraphs.² If the language is clear and unambiguous, we give the language its plain and ordinary meaning. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. However, an ambiguity does not exist merely because the parties proffer differing interpretations of the policy language.

Buckeye State Mut. Ins. Co. v. Carfield, 914 N.E.2d 315, 318 (Ind.Ct.App.2009) (citations omitted), trans. denied.

Further, “[a]n exclusionary clause must clearly and unmistakably express the particular act or omission that will bring the exclusion into play.” Jackson v. Jones, 804 N.E.2d 155, 158 (Ind.Ct.App.2004). Similarly, “[i]t is well settled law that a condition or exclusion in an insurance policy must clearly and unmistakably bring within its scope the particular act or omission that will bring the condition or exclusion into play in order to be effective, and coverage will not be excluded or destroyed by an exclusion or condition unless such clarity exists.” Asbury v. Indiana Union Mut. Ins. Co., 441 N.E.2d 232, 242 (Ind.Ct.App.1982).

B. Exclusion from Coverage

At issue on appeal is whether the relevant exclusion in Kinser's policy allows for judgment as a matter of law in favor of Indiana Insurance, if the exclusion and designated evidence allow for summary judgment in favor of Appellants, or if a genuine issue of material fact remains. The relevant exclusion reads:

We do not provide Liability Coverage for the ownership, maintenance, or use of:

* * *

2. Any vehicle, other than “your covered auto”, which is:

a. Owned by you; or

b. Furnished or available for your regular use.

Appellants' App. at 128. Indiana Insurance argues and the trial court ruled that Rike's Focus was furnished or available for Kinser's regular use, and therefore the exclusion applies.

In a prior case we have acknowledged the following rationale for this exclusion: to “prevent the insured from purchasing an insurance contract to cover the risk of operating one vehicle, and obtaining coverage on another vehicle that is regularly used in the household.” Earl v. Am. States Preferred Ins. Co., 744 N.E.2d 1025, 1029 (Ind.Ct.App.2001) (quoting Farber v. Great Am. Ins. Co., 406 F.2d 1228, 1232 (7th Cir.1969)) (emphasis omitted), trans. denied. In Earl, we deemed the exclusion “valid and understandable,” and not ambiguous.³ Id.

We have also considered this exclusion in several other cases, which provide helpful guidance as detailed below. However, we ultimately conclude that a genuine issue of material fact remains as to the scope and...