Plumlee v. Monroe Guar. Ins. Co.

• Decision Date: 28 August 1995
• Docket Number: No. 29A05-9410-CV-00408,29A05-9410-CV-00408
• Citation: 655 N.E.2d 350
• Parties: April D. PLUMLEE, Travis Plumlee, Appellants-Plaintiffs, v. MONROE GUARANTY INSURANCE CO., Charles R. Finnigan d/b/a Hueseman Insurance Co. & Thomas E. Lewis, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 350

655 N.E.2d 350

April D. PLUMLEE, Travis Plumlee, Appellants-Plaintiffs, v. MONROE GUARANTY INSURANCE CO., Charles R. Finnigan d/b/a

Hueseman Insurance Co. & Thomas E. Lewis,

Appellees-Defendants.

No. 29A05-9410-CV-00408.

Court of Appeals of Indiana.

Aug. 28, 1995.

Rehearing Denied Jan. 10, 1996.

Mark J. Dove, Rogers & Dove, North Vernon, for appellant.

Michael E. Brown, Jeffrey A. Doty, Kightlinger & Gray, Indianapolis, for appellees Charles R. Finnigan d/b/a Hueseman Ins. Co., and Thomas E. Lewis.

Julie L. Michaelis, Wooden McLaughlin & Sterner, Indianapolis, for appellee Monroe Guar. Ins. Co.

RUCKER, Judge.

Plaintiffs-appellants April and Travis Plumlee (the Plumlees) sued appellants-defendants Monroe Guaranty Insurance Company, ("Monroe"), Charles R. Finnigan d/b/a Hueseman Insurance Company, and Thomas E. Lewis (collectively "Hueseman") for breach of contract and negligence arising out of a dispute over an insurance policy. Monroe cross-claimed against Hueseman and thereafter all parties filed motions for summary judgment. The trial court granted summary judgment in favor of Monroe and Hueseman on the Plumlees' complaint and granted summary judgment in favor of Monroe on its cross-claim against Hueseman. Both the Plumlees and Hueseman appeal contending the trial court erred in its orders of summary judgment. We affirm in part and reverse in part.

On August 9, 1990, a 1971 Ford flatbed truck owned by Lawn Cure of Southeast Indiana, Inc., and driven by one of its employees struck April Plumlee, a pedestrian. April filed suit against Lawn Cure for injuries sustained in the collision and her husband Travis Plumlee joined as a plaintiff on a loss of consortium claim. The matter was settled by entry of an agreed judgment in the amount of $700,000.00. The parties' settlement agreement provided in part that Lawn Cure, through its insurer Farm Bureau Mutual Insurance Company, would pay policy limits to the Plumlees in the amount of $500,000.00. Also included in the agreement was a clause releasing Lawn Cure and all entities identified in interest with it from any future claims arising out of the accident. Further, Lawn Cure assigned to the Plumlees any claims it might have against Monroe Guaranty Insurance Company, Hueseman Insurance Company, and Thomas Lewis.

The assignment was based on the following facts. During the summer of 1989 Daniel When the Plumlees attempted to recover from Monroe the $200,000.00 balance on the judgment it had received against Lawn Cure, Monroe advised them that the 1971 Ford flatbed truck involved in the collision was not covered under the policies of insurance. Armed with the assignment agreement, the Plumlees filed suit against Monroe and Hueseman alleging negligence and breach of contract. Monroe in turn, cross-claimed against Hueseman for indemnity. Thereafter all parties filed motions for summary judgment. After conducting a hearing the trial court granted summary judgment in favor of Monroe and Hueseman on the Plumlees' complaint and also granted summary judgment in favor of Monroe on its cross-claim against Hueseman. In so doing the trial court issued findings of fact and conclusions of law in support of its judgment. The Plumlees and Hueseman now appeal.

                McConnell, president of Lawn Cure, and Thomas Lewis of the Hueseman Insurance Company, began discussions concerning Lawn Cure's insurance needs.  At that time each of the vehicles owned by Lawn Cure was covered under an automobile liability policy and an umbrella policy with the Farm Bureau Insurance Company.  Lewis originally filled out an application for automobile liability and umbrella coverage dated July 28, 1989, and forwarded the application to Monroe for a quotation.  A second application was forwarded to Monroe on September 12, 1989.  Both applications listed a 1977 Ford F-600 and a 1971 Ford truck.  Monroe twice provided quotations to Hueseman, but because no action was taken within sixty days to procure policies of insurance, the quotations expired.  Hueseman forwarded a third application to Monroe dated January 1, 1990.  Although Lawn Cure apparently still owned both trucks at the time, 1 the only truck shown on the third application was identified as a "1977 Ford F-600 VIN/SERIAL NUMBER F35YLK47486."   Record at 178.  Lawn Cure's 1971 Ford bore that VIN/serial number, not the 1977 Ford listed on the policy.  On May 2, 1990, Monroe issued to Lawn Cure two policies of insurance:  a Business Auto Policy and a Commercial Umbrella Liability Policy.  The auto policy provided coverage for "[o]nly those 'autos' described in ITEM THREE of the Declarations."   Record at 127.  The only Ford truck so described in the declarations was a "77 Ford F-600 Serial # 7486."   Record at 125
                

We first recount the familiar rule. When reviewing the propriety of a ruling on a motion for summary judgment, this court applies the same standard applicable to the trial court. Montgomery County Farm Bureau Coop. Assoc., Inc. v. Deseret Title Holding Corp. (1987), Ind.App., 513 N.E.2d 193, reh'g denied. We must consider the pleadings and evidence sanctioned by Ind.Trial Rule 56(C) without deciding their weight or credibility. Summary judgment should be granted only if such evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. The movant bears the burden of proving the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed favorably to the non-movant. Hawn v. Padgett (1992), Ind.App., 598 N.E.2d 630. Also, specific findings entered by the trial court when ruling on motions for summary judgment afford the appellant an opportunity to address the merits of the trial court's rationale. Fort Wayne Patrolman's Benevolent Ass'n, Inc. v. City of Fort Wayne (1980), Ind.App., 408 N.E.2d 1295, reh'g denied, 411 N.E.2d 630. The specific findings and conclusions also aid our review by providing us with a statement of reasons for the trial court's actions. However, they have no other effect. P.M.S., Inc. v. Jakubowski (1992), Ind.App., 585 N.E.2d 1380, 1381 n. 1. Thus we note the Plumlees' concern over the trial court's alleged inconsistent findings and conclusions. We base our decision however on the Rule 56 materials before us.

THE PLUMLEES' COMPLAINT AGAINST MONROE

I.

The Plumlees first contend the trial court erred in entering summary judgment in favor Contracts for insurance are subject to the same rules of interpretation and construction as are other contracts. Eli Lilly and Co. v. Home Ins. Co. (1985), Ind., 482 N.E.2d 467; Sharp v. Indiana Union Mut. Ins. Co. (1988), Ind.App., 526 N.E.2d 237, trans. denied. Whenever summary judgment is granted based upon the construction of a written contract, the trial court has either determined as a matter of law that the contract is not ambiguous or uncertain, or the contract ambiguity, if one exists, can be resolved without the aid of a factual determination. Kutche Chevrolet, Inc. v. Anderson Banking Co. (1992), Ind.App., 597 N.E.2d 1307. Generally, construction of a written contract is a question of law for the trial court and therefore summary judgment is particularly appropriate. Id. However, if reasonable minds differ as to the meaning of the contract's terms, then an ambiguity exists rendering summary judgment inappropriate. Id. This is so because a fact finder would have to weigh the evidence to ascertain facts necessary to construe the contract. Such an exercise is contrary to summary disposition where the material facts generally are not in dispute and the movant is entitled to judgment as a matter of law. In the case before us the description of the vehicle as a "77 Ford F-600 Serial # 7486" is susceptible to more than one meaning and is therefore ambiguous. On the one hand the policy of insurance could be interpreted as covering a truck with serial number F35YLK47486. In this case the truck is a 1971 Ford. On the other hand the policy could be interpreted as covering only a 1977 Ford regardless of the serial number. There is no dispute that Lawn Cure never owned a 1977 Ford truck bearing that particular serial number. Indeed it is unlikely that any Ford truck manufactured in 1977 bore the number F35YLK47486. Obviously the description represents an error combining the unique serial number of one truck with the model year of another. While we reject the Plumlees' position that as a matter of law the serial number should control the determination of what vehicle is actually covered under the Business Auto policy, we do conclude there is an ambiguity here which can only be resolved by making a factual determination concerning whether the parties to the contract intended to insure a 1977 Ford F-600 or a 1971 Ford truck bearing serial number 7486. That factual determination can only be made by weighing and examining evidence extrinsic to the four corners of the policy itself. Where ambiguity in a written contract can only be determined by extrinsic evidence, summary judgment is inappropriate. Kutche, 597 N.E.2d at 1309.

of Monroe on their breach of contract claim. According to the Plumlees the Vehicle Identification Number shown on the schedule should control the determination of what vehicle is actually covered under the Business Auto policy. Continuing their argument the Plumlees maintain that the policy should therefore be read as insuring a "1971" Ford truck rather than a "1977" Ford truck.

In its Brief of Appellee, Monroe does not directly address the question of ambiguity. Rather, it contends the trial court's grant of summary judgment can be sustained on alternative theories. See Houin v. Burger by Burger (1992), Ind.App., 590 N.E.2d 593, trans. denied. (The trial court's ruling on a motion for summary judgment may be affirmed on any theory supported by the evidence of record.) In particular, Monroe asserts summary judgment can be affirmed on the grounds...