West v. Indiana Ins. Co., 20785

• Decision Date: 09 December 1970
• Docket Number: No. 20785,20785
• Citation: 148 Ind.App. 176,264 N.E.2d 335
• Parties: Jack WEST and Margaret West, Appellants, v. INDIANA INSURANCE COMPANY, An Indiana Insurance Corporation, Appellee.
• Court: Indiana Appellate Court

Page 335

264 N.E.2d 335

148 Ind.App. 176

Jack WEST and Margaret West, Appellants, v. INDIANA INSURANCE COMPANY, An Indiana Insurance Corporation, Appellee.

No. 20785.

Appellate Court of Indiana.

Dec. 9, 1970.

Walter Nowicki, Edward J. Raskosky, George Kohl, Paul K. Gaines, Hammond, for appellants.

Dale E. Custer, Stults, Custer & Kusman, Gary, for appellee.

CARSON, Judge.

This appeal comes to us from the Newton Circuit Court to which the cause was venued from the Lake Superior Court. Appellants-assureds appeal from the entry of summary judgment for defendant-appellee in a suit by appellants-assureds, to recover the costs of defending a tort action which appellants claim appellee-insurer should bear. On September 19, 1968, this court dismissed the appeal for what we considered a failure on the part of appellants to comply with the provisions of prior Rule 2--17, Rules of the Supreme Court of Indiana. West v. Indiana Insurance Co. (1968), 240 N.E.2d 86. Upon petition to transfer from said dismissal, the Supreme Court, in a three to two decision, held that appellants had substantially complied with Rule 2--17, supra; reinstated the appeal and remanded the cause to this court for a decision on the merits. West v. Indiana Insurance Company (1969), Ind., 247 N.E.2d 90. Pursuant to said order of remand, we write the following decision on the merits of this cause.

A brief summary of the facts preceding the commencement of this action will lend clarity to a discussion of the legal principles involved.

On July 22, 1963, appellants Jack and Margaret West owned a tavern in Hammond, Indiana. On said date, Jack West was tending bar and entered into a scuffle with one of the tavern's customers, Milton R. Cummings. As a result of said scuffle, Cummings received bodily injury. At the time of this incident, appellants were under the coverage of an 'owners', Landlords' and Tenants' Liability Policy' issued by appellee-Indiana Insurance Company. Thereafter, on or about September 11, 1963, Cummings instituted a suit in the Lake Superior Court against Jack West alleging assault and battery. Appellants alleged in their complaint that immediately upon receiving service of summons in the Cummings' suit, Jack West transmitted a copy of the summons and the Cummings' complaint to appellee's agent and sought the assistance of appellee in defending the suit. After approximately nine months, during which appellee neither requested nor received a reservation of rights, West was formally notified by appellee, on June 19, 1964, that it had no obligation under the terms of the policy to defend the suit instituted by Cummings. Thereupon, appellant, Jack West, by independent counsel successfully defended the Cummings suit. By means of the action at bar, appellants seek remuneration from appellee for costs incurred in defending the Cummings' suit. Appellants' complaint alleged that Indiana Insurance Company breached the insurance contract, that it was guilty of negligence and bad faith, and that the actions of appellee, through its agents, served to estop appellee from denying the duty to defend.

To appellants' complaint, appellee filed an answer in two paragraphs, the first being an admission and denial under prior Rule 1--3, Rules of the Supreme Court of Indiana, and the second alleging that under the terms of the policy, appellee had no obligation to defend.

Subsequent to the filing of its answer, appellee moved for summary judgment upon the entire cause. Thereafter, the court sustained appellee's motion for summary judgment and entered judgment accordingly. Although appellants timely filed a motion for a new trial, it is surplusage in this instance and every alleged error specified therein is stated in appellants' assignment of errors, which reads as follows:

'1. The court erred in overruling the Appellants' Motion for a New Trial.

'2. The court erred in overruling the Demurrer of the Appellants, Jack West and Margaret West, to the Appellee's, Indiana Insurance Company, an Indiana Corporation, verified Motion to Set Aside Default Judgment.

'3. The court erred in sustaining the Motion for Summary Judgment of the Appellee, Indiana Insurance Company, an Indiana Corporation.

'4. The court erred in sustaining the Motion for Summary Judgment of the Appellee, Indiana Insurance Company, an Indiana Corporation, and in entering judgment in favor of the Appellee.

'5. The decision of the court is contrary to law.

'6. The decision of the court is not sustained by sufficient evidence.'

As the motion for a new trial is surplusage, assigned error numbered '1' presents nothing for our consideration. Likewise, assigned error numbered '2' is not briefed or argued by appellants and is, therefore, waived. Rule 2--17(h), Rules of the Supreme Court of Indiana. The remaining assignments of error adequately serve to present the questions argued and briefed by appellants.

Appellants' key contention is that if there is a genuine issue as to any material fact, the court below improvidently granted appellee's motion for summary judgment upon the entire case. We agree with this contention of appellants. The prior summary judgment statute, Acts 1965, ch. 90, § 1, p. 127, Ind.Stat.Anno. § 2--2524(c), Burns' 1968 Repl., under which the judgment below was entered, provides, in pertinent part, as follows:

'The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Emphasis supplied.)

Likewise, where the case cannot be completely adjudicated upon a motion for summary judgment, the trial court should enter an order specifying those material facts which it deems uncontroverted and directing further proceedings as to the facts which invoke a genuine issue. ¹

Acts 1965, ch. 90, § 1, p. 127, Ind.Stat.Anno. § 2--2524(d), Burns' 1968 Repl., provides as follows:

'Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall...