Sullivan v. American Cas. Co. of Reading, Pennsylvania

Decision Date17 December 1991
Docket NumberNo. 30A04-9012-CV-592,30A04-9012-CV-592
PartiesThomas J. SULLIVAN, Appellant-Plaintiff, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Appellee-Defendant.
CourtIndiana Appellate Court

Charles T. Jennings, Mark R. Smith, Jennings & Maas, Carmel, for Thomas J. Sullivan.

Richard S. Ewing, William N. Ivers, Stewart & Irwin, Indianapolis, for American Cas. Ins. Co. of Reading, Pa.

John D. Cochran, Jr., Young, Cochran & Reese, Indianapolis, for State Farm Mut. Ins. Co.

BAKER, Judge.

Plaintiff-appellant Thomas Sullivan appeals the trial court's grant of summary judgment in favor of defendant-appellees American Casualty Company of Reading, Pennsylvania (CNA) and State Farm Mutual Insurance Company (State Farm).

The issues we review are:

I. Whether this court has jurisdiction to decide this appeal.

II. Whether the trial court erred in granting summary judgment to CNA.

III. Whether the trial court erred in granting summary judgment to State Farm.

We hold we have jurisdiction to hear and decide the appeal. We find material facts to be in dispute between Sullivan and CNA and therefore reverse the summary judgment in favor of CNA and remand for further proceedings. We affirm the summary judgment in favor of State Farm.

FACTS

This appeal stems from an automobile accident in Kokomo, Indiana. On January 12, 1984, a truck owned by Fairmont Homes, Inc. and driven by Lynn Walker struck the rear end of Jon Edwards's car, which at the time of the collision was stopped for a red light. The force of the collision caused Edwards's car to lurch forward and strike the rear end of the car in front of his, which was also stopped for the red light. Thomas Sullivan, a passenger in the car struck by Edwards's and an employee of Shepard & Poorman, was injured in the accident. Sullivan was working for Shepard & Poorman at the moment of the accident. For a complete description of the facts surrounding this accident, see Sullivan v. Fairmont Homes, Inc. (1989), Ind.App., 543 N.E.2d 1130, trans. denied.

Walker and Fairmont Homes, Inc. had liability insurance issued by Ideal Mutual Insurance Company with a policy limit of $500,000 per occurrence. Ideal Mutual Insurance Company became insolvent, however, in 1985. Edwards possessed liability insurance through his insurer, United Farm Bureau Mutual Insurance Company. His limit was $25,000 per person and $50,000 per occurrence. Sullivan himself had uninsured motorist insurance through State Farm Mutual Insurance Company in the amount of $15,000 per person and $30,000 per occurrence. His employer, Shepard & Poorman, had uninsured motorist insurance issued by CNA. Its limit was $500,000 per occurrence.

Sullivan chose to sue Walker, Fairmont Homes, and Edwards in one suit and CNA in another. During the pendency of the trial against Walker, Fairmont Homes, and Edwards, Sullivan settled with Edwards and Edwards's insurer by means of an agreed judgment and loan receipt agreement. This agreement provided for a $1.6 million agreed judgment in favor of Sullivan and included a covenant not to execute in consideration of Farm Bureau's payment of $12,500. The agreement provided that in the event Sullivan recovered more than a certain sum, Edwards and Farm Bureau would receive their "loan" of $12,500 back dollar-for-dollar. The agreed judgment was entered on the judgment docket as satisfied on May 18, 1989.

Meanwhile, Sullivan, dissatisfied with the attention CNA afforded him since June 23, 1987, the day he submitted his uninsured motorist claim to CNA, had filed suit against CNA on June 14, 1988. State Farm was permitted to intervene in this suit.

On August 20, 1988, a jury returned a verdict in favor of Walker and Fairmont Homes. Sullivan's negative judgment was affirmed by this court in Sullivan v. Fairmont Homes, Inc., supra. On August 19, 1990, the trial court certified as final its grant of summary judgment in favor of American Casualty. Five days later, the trial court granted summary judgment in State Farm's favor. Sullivan appeals.

DISCUSSION AND DECISION 1
I

At the outset, we note CNA has asked us to dismiss the appeal for Sullivan's alleged failure to comply with the requirement of Ind.Appellate Rule 2(A) that a party file a praecipe within 30 days of the entry of final judgment to pursue an appeal. Failure to file in a timely manner is a jurisdictional failure requiring dismissal of the appeal. Bailey v. Sullivan (1982), Ind.App., 432 N.E.2d 75, 77. Sullivan's filing was timely, and we therefore decline the request. 2

As mentioned above, while Sullivan's case against the other parties to the accident was pending trial, Sullivan and his wife instituted this action against CNA, his employer's auto insurance carrier, on June 14, 1988. 3 State Farm Mutual Insurance Company, Sullivan's individual auto insurance carrier, moved to intervene as a party defendant on August 10, 1988. 4 The trial court granted the motion two days later, on August 12, 1988.

CNA moved for summary judgment on September 9, 1989, and the trial court granted the motion on August 1, 1990. On August 9, 1990, Sullivan moved for entry of final judgment under Ind.Trial Rule 54(B) and Ind.Trial Rule 56(C). On August 19, 1990, without objection or comment by CNA, the trial court, finding no just reason for delay, granted Sullivan's motion and certified the entry of final judgment for CNA. Sullivan filed his praecipe on September 17, 1990, 29 days after the trial court's August 19 entry of final judgment and 47 days after the grant of summary judgment to American Casualty.

When the trial court granted State Farm's motion to intervene, State Farm became a party, Panos v. Perchez (1989), Ind.App., 546 N.E.2d 1253, and the suit thereby became a multi-party action. Huckeby v. Frozen Food Express (5th Cir.1977), 555 F.2d 542, 545. 5 In a multi-party action, a judgment, including a summary judgment, adjudicating "fewer than all the claims or the rights and liabilities of fewer than all the parties" is a final judgment "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." T.R. 54(B), 56(C).

Here, the August 1 summary judgment, which did not address any of the issues between Sullivan and State Farm, contained no determination that there was no just reason for delay in entry of final judgment in favor of CNA. It was not until August 19 that the trial court, upon Sullivan's motion and without objection from CNA, entered final judgment in favor of CNA. Therefore, under App.R. 2(A), Sullivan had 30 days from August 19 to file his praecipe, and his September 17 filing was timely. 6

We are not persuaded by CNA's argument that the August 1 summary judgment was final merely because Sullivan did not amend his complaint to include allegations against State Farm until August 24. A proper motion to intervene is effective upon the trial court's grant of the motion, see Ind.Trial Rule 24, and no further action is necessary to make the intervenor a party for purposes of T.R. 54(B). See Abdallah v. Hartford Fire Ins. Co. (3rd Cir.1976), 536 F.2d 20 (trial court recognized party status of intervenor as of date intervention was granted and granted 30 days for filings of pleadings between plaintiff and intervenor). Having determined that Sullivan met the time limitations and that we have jurisdiction to hear and decide the appeal, we turn now to the merits of the appeal.

II

When reviewing a grant of summary judgment, we apply the same standards as the trial court, and examine all pleadings, admissions, answers to interrogatories, depositions, and affidavits filed with the court in the light most favorable to the party opposing the summary judgment motion. Moore v. Sitzmark Corp. (1990), Ind.App., 555 N.E.2d 1305, 1306-07. Summary judgment is appropriate only when no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law. Id at 1307. When a defendant is the moving party, it is entitled to summary judgment as a matter of law if it can demonstrate that either the undisputed material facts negate at least one element of the plaintiff's claim, or if it raises a valid affirmative defense which bars the plaintiff's claim. If a defendant cannot make one of these showings, summary judgment is inappropriate. Id.

A

Although Sullivan's original action against Walker and Fairmont Homes sounded in negligence, his uninsured motorist claim against CNA and State Farm is grounded in contract.

Sullivan's employer's uninsured motorist insurance policy with CNA reads as follows:

B. WE WILL PAY

1. We will pay all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle.

* * * * * *

2. If this insurance provides a limit in excess of the amounts required by the financial responsibility law of Indiana, we will pay only after all liability bonds or policies have been exhausted by judgments or payments.

Record at 32-33. Sullivan's policy with State Farm employs the same "legally entitled to recover" language. It is not disputed that Sullivan is an "insured" for purposes of the uninsured motorist coverage, that Fairmont and Walker, by virtue of the insolvency of Ideal Mutual Insurance Company, are uninsured motorists, and that Edwards is an underinsured motorist. 7 Thus, under Sullivan's and his employer's uninsured motorist policies, Sullivan may collect only upon showing he is "legally entitled to recover." Neither insurance policy, however, defines the phrase. Sullivan, CNA, and State Farm all agree the term "legally entitled to recover" requires, at a minimum, a showing of fault on the part of the uninsured motorist. See Town & Country Mutual Insurance Co. v. Hunter (1985), Ind.App., 472 N.E.2d 1265, trans. denied; Allied Fidelity Ins. Co. v. Lamb (1977), Ind.App., 361 N.E.2d 174.

CNA and State Farm argue the agreed judgment and loan...

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