Shelter Ins. Co. v. Woolems

• Decision Date: 26 December 2001
• Docket Number: No. 53A01-0101-CV-28.,53A01-0101-CV-28.
• Citation: 759 N.E.2d 1151
• Parties: SHELTER INSURANCE COMPANY, Appellant-Defendant, v. Angela WOOLEMS, Appellee-Plaintiff.
• Court: Indiana Appellate Court

759 N.E.2d 1151

SHELTER INSURANCE COMPANY, Appellant-Defendant, v. Angela WOOLEMS, Appellee-Plaintiff.

No. 53A01-0101-CV-28.

Court of Appeals of Indiana.

December 26, 2001.

Don M. Robertson, Holly M. Harvey, Bloomington, IN, Attorneys for Appellant.

William C. Lloyd, Matthew C. Boulton, Bloomington, IN, Attorneys for Appellee.

OPINION

HOFFMAN, Senior Judge.

Appellant-Defendant Shelter Insurance Company ("Shelter") appeals from the trial court's order granting Appellee-Plaintiff Angela Woolems' ("Woolems") motion for partial summary judgment.

Woolems was a passenger in a vehicle that was involved in a collision on January 10, 1997. The driver of the vehicle, Kelli Laymon ("Laymon") was insured by Shelter. Woolems suffered injuries as a result of that accident. Woolems filed a complaint against the driver of the other vehicle, Timothy Johnson ("Johnson"), alleging negligence. Johnson was insured by Atlanta Casualty. On July 22, 1999, Woolems filed a declaratory judgment action against Shelter and Bloomington Hospital. Neither Bloomington Hospital nor Johnson is a party to this appeal.

On February 25, 2000, Woolems filed a motion for partial summary judgment. In that motion, Woolems requested that the trial court determine the following facts and issues:

(a) [t]hat the Plaintiff Angela Woolems is qualified as an insured and therefore a third party beneficiary of the subject Shelter Insurance Company policy in this cause;

(b) [t]hat Angela Woolems as an insured has rights and interests under the policy which include net under-insured motorist coverage of up to $25,000.00 for her compensatory damages that are separate and apart from her damages for that portion of her reasonable and necessary medical expenses incurred and paid over a period of time by Shelter Insurance Company[; and]

(c) [t]hat the court construe said applicable policy language and define as a matter of law the coverage, and potential dollar limit of such coverage, available to your Affiant.

(Appellant's App. 36).

The trial court held a hearing on Woolems' motion on April 17, 2000, and entered judgment on June 15, 2000, granting Woolems' motion for partial summary judgment. The trial court concluded that the underinsured motorist coverage provision was ambiguous; therefore, the trial court resolved the issue in favor of the insured, or third-party beneficiary, Woolems. Woolems and Shelter agreed that the entry of partial summary judgment should be treated as an entry of final judgment, and such was entered on December 14, 2000. Shelter appeals from this entry of final judgment.

The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. LeBrun v. Conner, 702 N.E.2d 754, 756 (Ind.Ct.App. 1998). The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact. Ind.Trial Rule 56(C); Campbell v. Criterion Group, 613 N.E.2d 423, 428 (Ind. Ct.App.1993), on reh'g 621 N.E.2d 342. Once the moving party makes a prima facie showing of the non-existence of a genuine issue of material fact, the burden shifts to the non-moving party to set forth specific facts showing the existence of a genuine issue for trial. T.R. 56(E); Campbell, 613 N.E.2d at 428. We must construe all designated evidence liberally in favor of the non-moving party and resolve any doubt against the moving party. Porter v. Irvin's Interstate Brick & Block Co., Inc., 691 N.E.2d 1363, 1364 (Ind.Ct. App.1998).

Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Aide v. Chrysler Financial Corp., 699 N.E.2d 1177, 1180 (Ind.Ct.App. 1998), trans. denied. Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996). Summary judgment may not be used as a procedural device to avoid a trial on claims that are perceived to be weak. Yin v. Society National Bank Indiana, 665 N.E.2d 58, 65 (Ind.Ct.App.1996), trans. denied; Campbell v. Railroadmen's Federal Savings and Loan Association of Indianapolis, 443 N.E.2d 81, 84 (Ind.Ct.App. 1982).

On appeal, the trial court's order granting or denying a motion for summary judgment is cloaked with the presumption of validity. See Indiana Bd. Of Public Welfare v. Tioga Pines, 622 N.E.2d 935, 939-940 (Ind.1993),cert. denied, 510 U.S. 1195, 114 S.Ct. 1302, 127 L.Ed.2d 654 (1994). The party appealing from an order granting a motion for summary judgment has the burden of persuading the appellate tribunal that the decision to issue the order granting summary judgment was erroneous. See Department of Revenue v. Caylor-Nickel Clinic, 587 N.E.2d 1311, 1313 (Ind.1992). On review, we face the same issues that were before the trial court and follow the same process. Id. All properly asserted facts and reasonable inferences should be resolved against the movant. Belford v. McHale, Cook & Welch, 648 N.E.2d 1241, 1244 (Ind.Ct.App. 1995),trans. denied. The appellate court may not reverse the entry of summary judgment on the ground that a genuine issue of material fact exists unless the material fact and the evidence relevant thereto were designated specifically to the trial court. Ind. Trial Rule 56(H). Furthermore, we will sustain the trial court's decision to grant a motion for summary judgment if it is sustainable by any theory or basis found in the record. See Ward v. First Indiana Plaza Joint Venture, 725 N.E.2d 134, 136 (Ind.Ct.App.2000).

Woolems incurred $35,424.66 in medical expenses relating to the medical care and services rendered as a result of the injuries she sustained in the collision. Both parties agree that Woolems received $25,000.00, which represented the policy liability limits, from Johnson's insurance carrier Atlanta Casualty. After Woolems received that amount, Johnson was dismissed from the negligence action and released from further liability. Shelter has paid to Woolems $25,000.00, the medical payment coverage limit, pursuant to the terms of its policy with Laymon. The underinsured motorist coverage limit in Shelter's policy with Laymon was $50,000.00. Shelter contends that it is no longer liable to Woolems under the terms of the contract because she has received $50,000.00 for her damages. Woolems contends that Shelter is liable to her in the amount of $25,000.00 for her other damages, e.g., pain and suffering, and lost income, among other things.

Shelter's automobile insurance policy with Laymon contained the following provisions relating to underinsured motorist coverage:

COVERAGE E—UNINSURED MOTORISTS (INCLUDING UNDERINSURED MOTORISTS PROTECTION)

We will pay damages for bodily injury which an insured or the insured's legal representative is legally entitled to recover from the owner or operator of an uninsured motor vehicle or an underinsured motor vehicle. The bodily injury must be caused by accident and rise out of the ownership, maintenance or use of the uninsured motor vehicle or underinsured motor vehicle....

* * *

LIMITS OF LIABILITY

(1) The limit of liability stated in the Declarations for "each person" is the limit of our liability for all damages, including damages for care or loss of services or consortium, because of bodily injury sustained by one person as the result of any one accident....

* * *

(3) Any amount payable under the terms of this Coverage will be reduced by any amount paid or payable for the same damages to or for the insured,

(a) by or for any person or organization who is or may be held legally liable for the bodily injury to the insured (b) for bodily injury under the Bodily Injury Liability coverage of this policy;

(c) under any disability benefits law or similar law, except any workers' compensation law.

(d) under Medical Payments Coverage.

(Appellant's App. 57-58). (Emphasis in original).

The interpretation of an insurance policy is primarily a question of law for the court. American States Ins. Co. v. Adair Industries, Inc., 576 N.E.2d 1272, 1273 (Ind.Ct.App.1991). The provisions of an insurance contract are subject to the same rules of interpretation and construction as are other contract terms. Id. In construing a written insurance contract, we may not extend insurance coverage beyond that provided in the contract, nor may we rewrite the clear and unambiguous language of an insurance contract. Id. A contract will be found to be ambiguous only when it is susceptible to more than one interpretation and reasonable persons would honestly differ as to its meaning. Id. at 1274. An ambiguity is not established simply because a controversy exists, and one party asserts an interpretation contrary to that asserted by the opposing party. Id. We must accept an interpretation of the contract language that harmonizes the provisions rather than one which supports a conflicting version of the provisions. Burkett v. American Family Ins. Group, 737 N.E.2d 447, 452 (Ind.Ct.App. 2000). Policy terms are interpreted from the perspective of an ordinary policyholder of average intelligence. Id. If an ambiguity exists and a dispute involves an insurer and its insured, then we must construe the language strictly against the insurer. Id. However, when a case involves a dispute between a third party and an insurer, we determine the general intent of the contract from a neutral stance. Id.

The set-off provision contained in the underinsured motorist coverage of the insurance...