Indiana Ins. Co. v. Noble, 569A84

• Decision Date: 30 December 1970
• Docket Number: No. 569A84,No. 2,569A84,2
• Court: Indiana Appellate Court
• Parties: INDIANA INSURANCE COMPANY, Appellant, v. Shirley Jordan NOBLE, by her next friend, Earl Jordan, Appellee. . Division

Page 419

265 N.E.2d 419

148 Ind.App. 297

INDIANA INSURANCE COMPANY, Appellant, v. Shirley Jordan NOBLE, by her next friend, Earl Jordan, Appellee.

No. 569A84.

Appellate Court of Indiana. Division No. 2.

Dec. 30, 1970.

Hunt, Suedhoff & Wilks, Ft. Wayne, for appellant

Kenneth A. King, Kendallville, Arch N. Bobbitt, Indianapolis, for appellee.

SHARP, Judge.

This action was commenced by the filing of a complaint in the Noble Circuit Court on September 25, 1968, by the Appellee, Shirley Jordan Noble, by her next friend, Earl Jordan. Said complaint alleges that on the 16th of April, 1966, Appellant, Indiana Insurance Company, issued a certain automobile liability insurance policy to the Appellee, Shirley Jordan Noble. Said complaint further alleges that on October 14, 1967, Appellant, Indiana Insurance Company, was notified by certified mail that a suit for damages had been filed by said Appellee against one Eugene Donat for injuries sustained in an accident between the Appellee and said Donat on April 20, 1966. The Appellant Company was asked to join in said suit because of the uninsured motorist clause in said insurance policy but denied any claim on said policy by the Appellee on October 25, 1967. On June 22, 1968, judgment was entered for the Appellee against Donat for the sum of $20,000.00.

On the 6th day of December, 1968, the Appellee filed its unverified motion for summary judgment supported by the affidavit of Attorney Kenneth A. King. The essential allegations of said motion for summary judgment are as follows:

'1. That it enter, pursuant to Sec. 2--2524 Burns' Indiana Statutes Annotated, 1965 Replacement, a summary judgment in plaintiff's favor on the ground that there is no genuine issue as to any material facts and that the plaintiff is entitled to judgment as a matter of law;

'2. That, in the alternative, if summary judgment is not rendered in plaintiff's favor upon the whole case or upon the relief asked, and trial is necessary, the Court, at the hearing on the motion, by examining the pleadings and evidence before it, and by interrogating counsel ascertain what material facts are actually in good faith controverted, and, thereupon, make an Order specifying the facts that appear without substantial controversy and directing such further proceedings in the action as are just;

'3. That this motion is based on the undisputed following facts and admitted by the defendant;

a. That there was in effect at the time of the accident a policy of insurance carrying an uninsured motorists clause in the amount of Ten Thousand Dollars ($10,000) and on which a premium of Three Dollars ($3.00) was paid for said insurance;

b. That there was also in effect at said time a medical payment clause in said insurance policy in the amount of One Thousand Dollars ($1000) for which the premium was paid in the amount of Fifteen Dollars ($15.00) by the defendant;

c. That the plaintiff recovered judgment against Eugene Donat and that said Eugene Donat did not have any insurance;'

The essential allegations of the affidavit of Kenneth A. King are as follows:

'1. That the defendant, through his agent, K. L. Zimpleman, Claims Supervisor '2. That said defendant did admit, through his agent, K. L. Zimpleman, Claims Supervisor and Lyle D. Brucker, Vice President of said defendant company that there was an 'uninsured motorists clause' in effect at the time of the accident in which a judgment was rendered against the defendant Eugene Donat for personal injury in the amount of Twenty Thousand Dollars ($20,000);

by oral conversation and by writing was notified at the time the suit of Shirley Jordan by her next friend, Earl Jordan against Eugene Donat was filed and that said defendant refused to enter into said law suit;

'3. That said defendant, through his agent Lyle D. Brucker, Vice President admits that there was a medical expense provision in said policy and that they did pay out the sum of Four Hundred Forty Seven Dollars and Eighty Three Cents ($447.83) for medical expense;

'4. That there is no genuine issue as to any material facts and that plaintiff is entitled judgment as a matter of law.'

On the 12th day of December 1968 the Appellant Insurance Company filed an unverified 'Showing in Opposition to Motion for Summary Judgment', the essential allegations of which are:

'1. A motion for summary judgment lies only at the appropriate time when it appears there is no material issue of fact before the court.

'2. Defendant at this time has not filed answer to plaintiff's complaint, at which time the defendant will deny that the contract referred to in plaintiff's complaint, which is not attached to plaintiff's complaint, is not applicable to the present suit of plaintiff.

'3. Defendant asserts that said contract upon which plaintiff relies affirmatively prohibits such an action as is brought by plaintiff to recover on a judgment secured without the written consent of this defendant.

'4. Said contract provides for conditions precedent to any action or recovery from this defendant by plaintiff, which conditions precedent have not been met by plaintiff.

'5. In no event can defendant be liable to plaintiff if in fact there is no negligence on the part of the so-called uninsured motorist, and when there is contributory negligence on the part of the plaintiff. It is respectfully submitted that the evidence will demonstrate that there was no negligence on the part of the uninsured motorist, and that there was negligence on the part of plaintiff in stopping her vehicle in a blinding rain storm in a travelled lane of the highway directly in front of the uninsured motorist's vehicle.

'6. While defendant has not been furnished by plaintiff an exact copy of the contract of insurance upon which she relies, the defendant attaches hereto and makes a part hereof a document marked Exhibit A which purports to be a certified copy of a specimen policy believed to be the policy issued to plaintiff.

'7. Attached hereto, made a part hereof and marked Exhibit B is the affidavit of William L. Wilks based upon his personal knowledge.

'8. Attached to the affidavit of Mr. Wilks are portions of his file including the police report of the investigating police officers, a statement of Eugene Donat, the alleged uninsured motorist, the statement of Shirley Jordan, plaintiff herein, and a letter of November 5, 1968, of explanation of the Indiana Insurance Company by Lyle D. Brucker, Vice President, to the Insurance Commissioner of Indiana.'

Said unverified showing was also supported by the affidavit of William L. Wilkes, which stated:

'1. Deponent believes that a policy of insurance was issued to plaintiff containing '2. Said policy of insurance, and particularly in Part IV thereof contains the following provision:

the terms and provisions of the family automobile policy which is a part of this showing and marked Exhibit A.

'Coverage U--Family Protection (Damages for Bodily Injury) To 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 insured 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 coverage, 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.

'No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, if the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.'

'3. No agreement as provided by said policy provision was entered into between plaintiff and defendant, and no determination made as to whether the insured was legally entitled to recover such damages, nor was any arbitration proceeding instituted or finalized.

'4. The action prosecuted by plaintiff against the alleged uninsured motorist was not prosecuted with the written consent of the Indiana Insurance Company, and in fact, plaintiff's attorney was at all times advised that the Indiana Insurance Company would not consent to said suit nor participate therein nor be bound by any judgment obtained therein.

'5. Said policy of insurance also contained the following provision:

'Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Part.'

'6. No submission to the American Arbitration Association was ever made by anyone as required by the terms of the contract voluntarily entered into between plaintiff and defendant.

'7. In any event, even were the conditions precedent met by plaintiff, which they were not, prior to the institution of the present action, said policy of insurance limits the liability of Indiana Insurance Company to Ten Thousand Dollars ($10,000.00.)...