Taylor v. American Underwriters, Inc.

• Decision Date: 28 July 1976
• Docket Number: No. 3--974A152,3--974A152
• Citation: 170 Ind.App. 148,352 N.E.2d 86
• Parties: Alice Mae TAYLOR and Alice Mae Taylor, Administratrix of the Estate of Andy Lee Taylor, Sr., Deceased, Plaintiffs-Appellants, v. AMERICAN UNDERWRITERS, INC., Attorney-in-fact for American Interinsurance Exchange, an Indiana Insurance Corporation, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 86

352 N.E.2d 86

170 Ind.App. 148

Alice Mae TAYLOR and Alice Mae Taylor, Administratrix of the

Estate of Andy Lee Taylor, Sr., Deceased,

Plaintiffs-Appellants, v. AMERICAN UNDERWRITERS, INC., Attorney-in-fact for American

Interinsurance Exchange, an Indiana Insurance

Corporation, Defendant-Appellee.

No. 3--974A152.

Court of Appeals of Indiana, Third District.

July 28, 1976.

Clarence Borns, Lambert C. Genetos, Borns, Quinn, Kopko & Lindquist, Merrillville, for plaintiffs-appellants.

James K. Whitaker, Hammond, for defendant-appellee.

HOFFMAN, Judge.

Plaintiff-appellant Alice Mae Taylor, in her individual capacity and as Administratrix of the Estate of Andy Lee Taylor, Sr., deceased, appeals from the order of the trial court granting the motion of defendant-appellee American Underwriters, Inc. Attorney-in-fact for American Interinsurance Exchange (American) for summary judgment.

The facts most favorable to appellee reveal that on May 4, 1971, an automobile struck and killed Andy Lee Taylor, Sr., while he was a pedestrian. The identities of both the owner and the operator of the vehicle involved are unknown to the parties.

Appellant Alice Mae Taylor, the wife of decedent, owned an automobile insurance policy issued by American, which policy was in full force and effect at the time of the accident.

The policy contained an 'Uninsured Motorists Protection Coverage Endorsement' which covered decedent as a 'Persons Insured' and which provided, inter alia:

'IN CONSIDERATION OF the additional premium at which this policy is written, American Underwriters, Inc., Attorney-in-Fact for the subscribers at American Interinsurance Exchange, hereafter called the Exchange, hereby agrees:

'To pay all sums which the insured or his legal representative shall be legally entitled to receive as damages from the owner or operator of an uninsured automobile because of bodily injury, including death resulting therefrom sustained by the insured, caused by accident and arising out of the use of such uninsured automobile; * * *.

'Additional Definitions. As used with respect to Uninsured Motorists Coverage.

'uninsured automobile' includes:

b. A hit-and-run automobile;

'hit and-run automobile' means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such automobile; (b) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof, and (c) at the company's request the insured or his legal representative makes available for inspection the automobile which the insured was occupyng at the time of the accident. These provisions are mandatory and not merely directory.' (Emphasis as appears in original.)

Appellants filed with American a claim for benefits under the endorsement, contending that it covered the accident which caused the decedent's death. American denied the claim on the ground that the decedent was not occupying an automobile which was struck by the hit-and-run vehicle. Appellants then initiated the instant action seeking recovery for the decedent's death on the basis of the foregoing endorsement.

Appellants first challenge the order of the trial court in that it was based on a finding that the endorsement was not ambiguous. Appellants contend that there is a conflict in the insurance policy between the insuring clause in which American promised to provide protection to the insured and the limitation of coverage contained in the definition of 'hit-and-run automobile.' Appellants also assert that American's drafting of the endorsement exacerbated the ambiguity in that the insurer neither included the words 'as defined' immediately following the initial reference to a 'hit-and-run automobile' nor defined that term immediately following the first use of such term. Appellants point out that there were 18 lines between the first use of such term and its definition.

It is well-settled that this court will construe an ambiguous insurance contract in favor of the insured. See, United Farm Bureau Ins. Co. v. Pierce (1972), 152 Ind.App. 387, 283 N.E.2d 788 (transfer denied), and cases cited therein. However, for us to so construe the endorsement, it must be susceptible of more than one interpretation, so that reasonably intelligent men, upon reading it, would honestly differ as to its meaning. Further, the mere existence of a controversy as to the meaning of an insurance policy does not establish that such an ambiguity exists. O'Meara v. American States Ins. Co. (1971), 148 Ind.App. 563, 268 N.E.2d 109 (transfer denied). Rather, this court must consider all the provisions of a policy in determining its meaning. American Mutual Liability Ins. Co. v. Duesenberg (1938), 214 Ind. 488, 14 N.E.2d 919, 117 A.L.R. 1293.

Upon examination of the entire endorsement at issue in this case, there emerges but one reasonable interpretation of the term 'hit-and-run automobile' and of the coverage provided for accidents involving such a vehicle. A 'hit-and-run automobile' is defined, in part, as an automobile (1) in which the identity of the owner and operator cannot be ascertained, and (2) which makes physical contact with an automobile occupied by the insured. Any other construction of the endorsement would amount to writing a new and different contract for the parties which this court may not do. Bell et al. v. New York Life Ins. Co. (1963), 134 Ind.App. 614, 190 N.E.2d 432. The trial court did not err in holding that the endorsement here at issue was not ambiguous.

Appellants also take exception to the order of the trial court insofar as it was based on a finding that the foregoing endorsement did not contravene IC 1971, 27--7--5--1 (Burns Code Ed.), our uninsured motorists statute. Appellants correctly assert that where provisions of an uninsured motorist endorsement are more restrictive than IC 1971, 27--7--5--1, supra, the requirements of the statute prevail, and, further notes that the statute and endorsement are to be construed in favor of the insured. Ind. Ins. Co. v. Noble (1970), 148 Ind.App. 297, 265 N.E.2d 419 (transfer denied); Patton v. Safeco Ins. Co. (1971), 148 Ind.App. 548, 267 N.E.2d 859.

Appellants contend that the statute requires coverage of an insured who, while a pedestrian, is injured by a hit-and-run vehicle. IC 1971, 27--7--5--1, supra, provides in pertinent part:

'No automobile liability or...