West American Ins. Co. v. Cates

Decision Date28 February 2007
Docket NumberNo. 42A01-0601-CV-26.,42A01-0601-CV-26.
PartiesWEST AMERICAN INSURANCE COMPANY, Appellant-Defendant, v. Brenda CATES, Individually and as Personal Representative of the Estate of Bernard Cates, Jr., and Dylan Cates, By His Next Friend, Brenda Cates, Appellees-Plaintiffs.
CourtIndiana Appellate Court

John E. Birk, Birk & Birk, Jasper, IN, Attorney for Appellant.

David V. Scott, New Albany, IN, James O. McDonald, Everett, Everett & McDonald, Terre Haute, IN, Attorneys for Appellees.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant West American Insurance Company ("West Am") appeals the denial of its motion for summary judgment on a complaint filed by Brenda Cates, individually and as Personal Representative of the Estate of Bernard Cates, Jr., and as next best friend of Dylan Cates regarding a claim for uninsured motorist coverage under an automobile insurance policy issued to the Cates family by West Am. We affirm.

Issue

The parties raise several issues, which we consolidate and restate as whether the trial court properly denied West Am's motion for summary judgment.

Facts and Procedural History

On June 9, 2002, Bernard Cates ("Bernard"), along with his wife, Brenda, and their son, Dylan, were riding in their 2001 Chevrolet Blazer 4×4 proceeding southbound on State Road 61 towards the Ninth Street intersection. Bernard was driving. When they approached the intersection, Jesse Montgomery ("Montgomery") entered the intersection, striking the Blazer in its left passenger door. The impact of the cars made the Blazer yaw to its left and eventually roll over, one full revolution. Even though he was secured by his seat belt, Bernard was partially ejected from the Blazer and sustained fatal head injuries.

At the time of the collision, Montgomery was operating a 1992 Oldsmobile Cutlass Supreme, owned by his mother, Teresa Merydith, and that vehicle was insured by a policy of liability insurance issued by Globe American Auto Insurance d/b/a Go America Insurance Company ("Go America"). Montgomery was also a named insured for a different vehicle in a policy of insurance issued to his father's business, Mack Montgomery & Sons, Inc., by Grinnell Mutual Reinsurance Company ("Grinnell"). The Cates family vehicle was insured by a policy of liability insurance issued by West Am that included uninsured/underinsured motorist coverage.

On August 22, 2002, Brenda Cates ("Cates") filed this suit ("Cates Lawsuit"), originally against General Motors Corporation ("GM"), Montgomery, and West Am.1

In November of 2002 and March of 2003, respectively, Go America and Grinnell filed separate complaints for declaratory judgment as to whether they owed insurance coverage to Montgomery. In their complaints, both insurance companies denied owing coverage. These two declaratory judgment actions were later consolidated. For discovery purposes only, the trial judge also consolidated these cases with the Cates Lawsuit.

On October 21, 2003, due to a settlement with Cates for an undisclosed amount, the trial court dismissed GM from the Cates Lawsuit. In the settlement agreement between Cates and GM ("GM Settlement"), GM denied liability.

Then on August 24, 2004, West Am filed a motion for summary judgment. Days later on August 27, 2004, Cates and Grinnell executed a settlement agreement for $250,000 ("Grinnell Settlement"). In the settlement agreement, Grinnell again denied that it owed coverage to Montgomery.

After a jury trial ending on September 9, 2004, on the consolidated complaints for declaratory judgment, Go America and Grinnell were found not to owe insurance coverage to Montgomery. On September 29, 2004, Cates and Go America executed a Covenant Not to Levy, Execute or Attempt to Attach Personal Assets for $20,000 ("Go America Settlement").

Subsequently on October 14, 2004, West Am filed a Motion to Supplement its Motion for Summary Judgment to designate the agreements between Cates, Go America, and Grinnell. Cates filed her response to West Am's supplemental materials on December 20, 2004. Later that day, the trial court denied West Am's motion for summary judgment, finding that there were genuine issues of material fact in dispute, without further explanation. West Am attempted to appeal the decision, however the trial court did not certify the interlocutory appeal. The Indiana Court of Appeals dismissed the appeal due to lack of jurisdiction. West Am. Ins. Co. v. Cates, No. 42A01-0501-CV-22, 834 N.E.2d 745 (Ind.Ct.App. Sept. 8, 2005).

After a bench trial, the trial court found in part that:

7. Jesse's [Montgomery] negligence was a proximate cause of the collision.

8. Further as a result of Jesse's negligence, Brenda was deprived of the love, affection and companionship of her husband, Bernard, and Dylan was deprived of the love, affection, companionship, parental guidance and support of his father, Bernard.

9. Further as a result of Jesse's negligence, Brenda and Dylan each sustained a direct impact in the collision and each observed the fatal injury of their husband/father, Bernard, and accordingly suffered emotional trauma.

10. At the time of the collision, there was in force and effect an insurance policy issued by West American to the Cates, policy number FPW25316210, which policy provided the Cates uninsured/underinsured (UM/UIM) coverage with limits of $100,000.00 per person, and $300,000.00 per occurrence. The policy also provided medical/funeral payments coverage with limits of $20,000.00.

11. At the time of the collision, Jesse was an uninsured motorist.

12. As a result of Jesse's negligence, the Estate of Bernard Cates, Jr., incurred damages in the amount of $1,000,000.00, Brenda Cates incurred damages in the amount of $1,000,000.00, and Dylan Cates incurred damages in the amount of $1,000,000.00.

The court now orders and adjudges as follows:

1. The Estate of Bernard Cates, Jr., shall have judgment against Jesse Vaughn Montgomery in the amount of $1,000,000.00.

2. Brenda Cares shall have judgment against Jesse Vaughn Montgomery in the amount of $1,000,000.00.

3. Dylan Cates shall have judgment against Jesse Vaughn Montgomery in the amount of $1,000,000.00.

4. Due to the limits of coverage on West American Insurance Company's UM/UIM policy issued to the plaintiffs, the Estate of Bernard Cates, Jr. shall have judgment against West American Insurance Company in the amount of $100,000.00, Brenda Cates shall have judgment against West American Insurance Company in the amount of $100,000.00, and Dylan Cates shall have judgment against West American Insurance Company in the amount of $100,000.00.

Appellant's Supplemental Appendix at 268-69.

West Am now appeals the trial court's denial of its motion for summary judgment.

Discussion

I. Denial of Summary Judgment

A. Standard of Review

A party who fails to bring an interlocutory appeal from the denial of a motion for summary judgment may nevertheless pursue appellate review after the entry of final judgment. Villas West II of Willowridge v. McGlothin, 841 N.E.2d 584, 595 (Ind.Ct.App.2006). West Am's attempted interlocutory appeal was ineffective due to lack of jurisdiction. Because the dismissed interlocutory appeal did not address the merits, West Am may still pursue this appeal of the denial of its motion for summary judgment even though the case proceeded to trial resulting in a final judgment.

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Bilimoria Computer Systems, LLC v. America Online, Inc., 829 N.E.2d 150, 155 (Ind.Ct. App.2005). Our standard of review for summary judgment is the same as that used in the trial court. Harco, Inc. v. Plainfield Interstate Family Dining Assoc., 758 N.E.2d 931, 937 (Ind.Ct.App. 2001). Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Id. We do not reweigh the evidence. Allen v. First Nat. Bank of Monterey, 845 N.E.2d 1082, 1084 (Ind.Ct.App. 2006). Instead, we consider the facts in the light most favorable to the nonmovant. Id. We will affirm the denial of summary judgment if it is sustainable on any legal theory or basis found in the evidentiary matter designated to the trial court. Ford v. Culp Custom Homes, Inc., 731 N.E.2d 468, 472 (Ind.Ct.App.2000), trans. denied.

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). Although ambiguities in insurance policies are construed in favor of the insured, clear and unambiguous policy language must be given its ordinary meaning. Id.

B. Analysis

The documents designated to the trial court for its ruling on the summary judgment motion included the pleadings, the West Am insurance policy issued to Cates, the GM Settlement, GM's responses to West Am's Interrogatories and Request for Production of Documents, the Affidavit of Timothy A. Coulman (a West Am litigation specialist), the Grinnell Settlement, and the Go America Settlement. We limit our review to this designated evidence.

West Am contends the trial court improperly denied its motion for summary judgment because it is entitled to setoffs for the monies received by Cates from the GM, Grinnell, and Go America settlements. The crux of this case is not a question of double recovery,2 because no one disputes that the damages incurred exceed the total...

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