High v. United Farm Bureau Mut. Ins. Co.

• Decision Date: 15 February 1989
• Docket Number: No. 49A02-8806-CV-00244,49A02-8806-CV-00244
• Citation: 533 N.E.2d 1275
• Parties: Kenneth HIGH, Plaintiff-Appellant, v. UNITED FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1275

533 N.E.2d 1275

Kenneth HIGH, Plaintiff-Appellant, v. UNITED FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 49A02-8806-CV-00244.

Court of Appeals of Indiana First District.

Feb. 15, 1989.

Robert O. Williams, Covington, William V. Barteau, Speedway, for plaintiff-appellant.

Audrey K. Grossman, Treacy Grossman Sullivan & Jones, Indianapolis, for defendant-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Kenneth High appeals from the Marion Superior Court's grant of summary judgment in favor of United Farm Bureau Mutual Insurance Company. We affirm.

FACTS

United Farm Bureau Mutual Insurance Company (hereinafter Farm Bureau) issued four (4) automobile insurance policies to Kenneth High, each covering a separate automobile. Each of these policies provided for uninsured motorist coverage in the amount of Twenty-five Thousand Dollars ($25,000), and all were in full force and effect when High was involved in an automobile accident with an automobile owned and driven by an uninsured motorist. High filed a claim under each of his four (4) automobile insurance policies for damages in excess of the total stacked coverage. Farm Bureau paid the highest amount under one (1) of the policies, but refused to pay under the other three (3) policies.

On August 6, 1986, High filed a complaint seeking payment under the other three (3) policies. On September 26, 1986, Farm Bureau filed a motion to dismiss which was denied on March 25, 1987. On June 26, 1987, High filed a motion for summary judgment. Farm Bureau filed a brief in opposition to High's motion for summary judgment on September 28, 1987. In addition Farm Bureau requested that summary judgment be granted in favor of Farm Bureau. On December 18, 1987, the trial court held a hearing on the motions for summary judgment. Farm Bureau filed its answer on January 13, 1988. On March 21, 1988, the trial court granted Farm Bureau's motion for summary judgment and entered judgment against High. High appeals this judgment.

ISSUE

Whether the trial court properly granted Farm Bureau's motion for summary judgment?

DISCUSSION AND DECISION

High argues the trial court improperly granted summary judgment in favor of Farm Bureau. On appeal, we use the same standard as the trial court in determining the propriety of the grant or denial of summary judgment. Jones v. Marengo State Bank (1988), Ind.App., 526 N.E.2d 709, 714. Accordingly, in assessing the propriety of summary judgment we must determine whether the record establishes that no material issue of fact exists and that the proponent is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C). The burden of establishing the propriety of summary judgment rests with the movant and all facts and reasonable inferences to be drawn therefrom are viewed in a light most favorable to the non-movant. Id.

In the present case, no material issue of fact exists. Rather, this case involves the issue of whether Farm Bureau is entitled to summary judgment based upon a clause in the insurance policies which precluded the stacking of uninsured motorist coverages. The clause in question provides as follows:

"OTHER INSURANCE--Under Part IV

....

"Except as provided in the foregoing paragraphs, if the Insured has other uninsured motorists insurance available to him and applicable to the occurrence, the damages shall be deemed not to exceed the highest limits under any one policy of insurance available to the Insured. The Company shall not be liable for a greater proportion of any such loss to which the coverage applies than the limit of liability hereunder bears to highest limits available to the Insured under one such policy."

Reply brief at 8. High argues that Indiana law provides for the stacking of uninsured motorist coverages, and relies on the law as reviewed in Indiana Ins. Co. v. Ivers (1979), 182 Ind.App. 482, 395 N.E.2d 820, trans. denied. High argues also that to the extent this law has been modified by statute, the language in the insurance policies did not unambiguously preclude the stacking of coverages. Farm Bureau argues, however, that the insurance policies clearly and unambiguously precluded the stacking of uninsured motorist coverages. Farm Bureau argues further that this clause is valid and enforceable under Indiana's Uninsured Motorists Statute, Indiana Code section 27-7-5 et seq. We agree with Farm Bureau.

In Ivers, Judge Neal opined as follows:

"Authority exists in Indiana which recognizes multiple recovery or 'stacking' of coverages in uninsured motorist situations. Indiana Insurance Company v. Noble, (1970) 148 Ind.App. 297, 265 N.E.2d 419; Liddy v. Companion Ins. Co., (1979) Ind.App. , 390 N.E.2d 1022; United Farm Bureau Insurance Company v. Wolfe, (1978) Ind.App. , 382 N.E.2d 1018; United Farm Bureau Insurance Company v. Runnells [Runnels ], (1978) Ind.App. , 382 N.E.2d 1015; Jeffries v. Stewart, (1974) 159 Ind.App. 701, 309 N.E.2d 448, trans. denied. These cases say, in effect, that where a person who is within the definition of an insured is injured through the negligence of an uninsured motorist, whether the person is a pedestrian, a passenger in another automobile, or a driver or a passenger in an insured automobile, and there is more than one policy available to him, such as separate policies on separate automobiles, he may be entitled to recover on all of the policies available to him up to the amount of his damages, but no more. There may be no double recovery."

Id. 182 Ind.App. at 485, 395 N.E.2d at 822-23. The cases referred to in Ivers, examined "excess-escape" or "anti-stacking" clauses as applied to uninsured motorist coverage to determine if they were in derrogation of public policy as embodied in the Uninsured Motorists Statute, I.C. Sec. 27-7-5 et seq. See e.g., Liddy v. Companion, Ins. Co. (1979), 181 Ind.App. 16, 390 N.E.2d 1022; United Farm Bureau Mut. Ins. v. Runnels (1978), 178 Ind.App. 441, 382 N.E.2d 1015; Jeffries v. Stewart (1974), 159 Ind.App. 701, 309 N.E.2d 448, trans. denied. These cases determined that the legislative intent and public policy of the Uninsured Motorists Statute was directed at the minimum allowable policy coverage and not at limiting the injured party's allowable recovery. Thus, insurance companies were prohibited from limiting the uninsured motorists coverage under each separate policy to an amount less than the statutory minimum. Runnels, 178 Ind.App. at 439, 382 N.E.2d at 1017. However, the validity of the reasoning of these cases is questionable based upon the 1982 addition to the Uninsured Motorists Statute of Indiana, Indiana Code section 27-7-5-5, which provides in part as follows:

"(a) The policy or endorsement affording coverage specified in this chapter may provide that the total limit of all insurers' liability arising out of any one (1) accident shall not exceed the highest limits under any one (1) policy applicable to the loss, but in no event may coverage be less than the minimum set forth in IC 9-2-1-15."

The addition of this section to the statute is evidence of the legislature's intent at the initial enactment of the statute. Seymour Nat'l Bank v. State (1981), Ind., 422 N.E.2d 1223, 1226; United States Fidelity and Guaranty Co. v. DeFluiter (1983), Ind.App., 456 N.E.2d 429, 432, trans. denied. This section indicates that the legislature intended that this statute would ensure an insured would be provided with uninsured motorist coverage of at least the minimum amounts found in Indiana Code section 9-2-1-15, but would not ensure the right to stack uninsured motorist coverages. Thus, the legislature did not intend to preclude the use of anti-stacking clauses. In fact, the 1982 amendment specifically authorizes anti-stacking provisions. By this amendment, the legislature changed the public policy of this state concerning anti-stacking clauses and such clauses no longer offend public policy. Therefore, regardless of whether an insured may seek to stack uninsured motorist insurance coverages as provided for in Ivers, we hold that under Indiana law an insurance company may limit uninsured motorist coverage with an anti-stacking clause.

High argues that even if Farm Bureau could have precluded stacking in accordance with I.C. Sec. 27-7-5-5, the anti-stacking clause in the present policies did not effectuate such a limitation because it does not mirror the language of the statute, and is...