Progressive Ins. Co., Inc. v. Bullock
| Decision Date | 31 January 2006 |
| Docket Number | No. 16A01-0504-CV-142.,16A01-0504-CV-142. |
| Citation | 841 N.E.2d 238 |
| Parties | PROGRESSIVE INSURANCE COMPANY, INC. Appellant-Defendant, v. Misty Sweet BULLOCK and Luke Bullock, Individually and as Next Friend for C. A.D. B., S.E.B., and S.D.B., minor children, Appellees-Plaintiffs. |
| Court | Indiana Supreme Court |
Kirk A. Horn, Zachary J. Stock, Mandel Pollack & Horn, P.C., Indianapolis, for Appellant.
Kevin W. Ault, Rushville, for Appellees.
Progressive Insurance Company, Inc., ("Progressive") appeals the denial of its motion for summary judgment on a complaint filed by Misty Sweet Bullock and Luke Bullock, individually and on behalf of their three children. We affirm in part and reverse in part.
Progressive raises three issues, which we restate as:
I. whether an anti-stacking clause from another policy applies to the Progressive policy;
II. whether Progressive may set off various amounts paid to the Bullocks by other insurance companies; and
III. whether the Bullocks' youngest son, S.E.B., may recover for injuries sustained in utero as a result of the accident.
On June 1, 1999, Misty, who was thirty-eight weeks pregnant, and her two children1 were passengers in a car driven by Teresa Jones when they were struck by a car driven by Rosie Kemp. Misty and her two children suffered multiple injuries, and Jones died as a result of injuries sustained in the accident. Misty's son, S.E.B., was born on June 7, 1999, and also suffered from injuries caused by the accident. S.E.B. is now six and a half years old.
At the time of the accident, Luke Bullock maintained underinsured motorist ("UIM") coverage with Progressive in the amount of $50,000 per person and $50,000 per accident. Jones maintained UIM coverage with United Farm Bureau Insurance Company ("Farm Bureau") in the amount of $50,000 per person and $100,000 per accident. Kemp was insured by Indiana Insurance in the amount of $25,000 per person and $50,000 per accident.
On May 31, 2001, the Bullocks filed a complaint against several parties including Kemp and her husband, Jones's estate, and Progressive. On March 31, 2004, the Bullocks, on behalf of their children, entered into a settlement agreement with Kemp, Indiana Insurance, Jones's estate, and Farm Bureau. Pursuant to the agreement, the Bullocks released the children's claims against those parties in exchange for $24,500 from Indiana Insurance and $80,500 from Farm Bureau. Indiana Insurance also paid Jones's estate the remaining $25,500 of its $50,000 policy limit.
On September 7, 2004, Progressive filed an amended motion for summary judgment, which the Bullocks opposed. On February 10, 2005, the trial court denied Progressive's motion. Progressive then sought an interlocutory appeal.
Progressive argues that its motion should have been granted because it owes no obligation to the Bullocks under the UIM provisions of the policy with Luke. "Our standard of review for summary judgment is that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (citing Ind. Trial Rule 56(C)). All facts and reasonable inferences are construed in favor of the non-moving party, and our review is limited to those materials designated to the trial court. Id. Insurance contracts are governed by the same rules of construction as other contracts, and the proper interpretation of an insurance policy, even if it is ambiguous, is generally a question of law appropriate for summary judgment. Liberty Ins. Corp. v. Ferguson Steel Co., Inc., 812 N.E.2d 228, 230 (Ind.Ct.App. 2004).
Progressive first argues that it is not liable to the Bullocks because the insurance contract between Jones and Farm Bureau contained an anti-stacking clause. Generally, anti-stacking clauses "limit coverage when coverage under another policy is currently available so as to preclude stacking or double recovery of uninsured motorist coverages." Pafco General Ins. Co. v. Providence Washington Ins. Co., 587 N.E.2d 728, 729 n. 2 (Ind.Ct.App. 1992), trans. denied. Progressive contends that the anti-stacking clause in the Farm Bureau contract should be enforceable between Progressive and the Bullocks. Progressive relies on Pafco for the proposition that the Bullocks should be bound by the $100,000 per accident limit in the Farm Bureau policy and not stack the proceeds from the Progressive policy on top of that. Accordingly, Progressive contends it owes nothing to the Bullocks because they already recovered more than $100,000 from Farm Bureau and Indiana Insurance.
However, both insurance contracts at issue in Pafco contained anti-stacking clauses. Id. at 729, 732. The question in Pafco was whether there was other insurance available to be stacked. Id. at 732. After determining that there was, we concluded that, based on the anti-stacking clauses, recovery was restricted to the highest limit under any one policy. Id. Contrary to Progressive's characterization, we did not conclude that an anti-stacking clause in another policy limited the insured's recovery from his or her own UIM provider.
Nothing in Pafco supports Progressive's contention that it may enforce the anti-stacking clause in the contract between Farm Bureau and Jones when its contract with Luke did not contain an anti-stacking clause, and Progressive provides us with no other rationale for the propriety of such an extended application of Farm Bureau's anti-stacking clause. Progressive could have included an anti-stacking clause in its contract, but it did not. Further, Luke never agreed to the inclusion of such a clause. "When the court finds a contract to be clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made." McLinden v. Coco, 765 N.E.2d 606, 612 (Ind.Ct.App. 2002). In absence of an anti-stacking clause in its contract with Luke, Progressive's claim against stacking the Bullocks' recovery fails. Accordingly, Progressive has not established that it is entitled to judgment as a matter of law on this basis.
Progressive also argues that if the Farm Bureau anti-stacking clause is not applicable, it is not liable to the Bullocks because of various set offs. The Progressive policy provides in part, "The Limits of Liability under [the UIM provision] shall be reduced by all sums ... paid because of bodily injury or property damage by or on behalf of any persons or organizations who may be legally responsible, including but not limited to, all sums paid under Part I; ...." App. p. 302 (emphasis omitted) (emphasis added).
Progressive contends that pursuant to this language it is entitled to a set off for the $24,500 paid to the Bullocks by Indiana Insurance on behalf of Kemp. The Bullocks respond that pursuant to the settlement agreement with Kemp, they executed a release, and Kemp is "not answerable in negligence as a result of the release." Appellees' Br. p. 9. Assuming this claim is properly before us,2 the Bullocks' claim fails. Even if the Bullocks have released all of their claims against Kemp and she is no longer answerable in negligence, it is largely undisputed that she was "legally responsible" for the accident. For example, the crash report prepared by the Indiana State Police concluded that Kemp's vehicle was "at fault for going left of center, and speed [sic] too fast for road conditions due to the weather." App. p. 166. Although the Bullocks have released their negligence claims against Kemp pursuant to a settlement agreement, they have not established that she was not "legally responsible" for the accident. Pursuant to the terms of the policy, Progressive is entitled to a set off for the $24,500 paid by Indiana Insurance.
Progressive goes on to argue that the remaining $25,500 of the Progressive policy limits should be set off by the $80,500 paid by Farm Bureau on behalf of Jones's UIM coverage. Progressive claims that it is entitled to set off Farm Bureau's payment because Farm Bureau "is an organization, which, by virtue of its contract to provide UM/UIM coverage to the vehicle in which the Bullocks were riding, became `legally responsible' for payment of any and all claims caused by the negligent tortfeasor." Appellant's Reply Br. p. 4. Progressive explains that "Farm Bureau effectively stands in the shoes of the tortfeasor." Appellant's Br. p. 7. However, it is unclear whether Progressive is arguing that Jones is the tortfeasor or that Kemp is the tortfeasor.
If Progressive is asserting that Jones is the tortfeasor and Farm Bureau stands in her shoes, this assertion fails. In an earlier order granting summary judgment for Jones's estate on the Bullocks' complaint, the trial court found, "the actions of Teresa Jones while operating her automobile, were not the proximate cause of the accident involving the parties." March 14, 2003 Summary Judgment Order.3 Progressive does not address this order and, without more, Progressive has not shown that Jones was a tortfeasor. Because the trial court has concluded that Jones was not negligent, Progressive has failed to establish that Farm Bureau is legally responsible for her actions.
To the extent, if any, Progressive is arguing that Farm Bureau is legally responsible for Kemp's negligence simply because Farm Bureau provided UIM coverage to Jones, this argument also fails. The underlying purpose of UIM coverage "is to give the insured the recovery he or she would have received if the underinsured motorist had maintained an adequate policy." Corr v. American Family Ins., 767 N.E.2d 535, 540 (Ind. 2002). Progressive provides us with no authority that UIM coverage is intended to make a UIM insurance provider directly liable for the negligent acts of the tortfeasor.
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