Whitledge v. Jordan

• Decision Date: 11 February 1992
• Docket Number: No. 82A01-9107-CV-196,82A01-9107-CV-196
• Parties: Kevin WHITLEDGE, Appellant-Plaintiff, v. James JORDAN and West American Insurance Co., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 884

586 N.E.2d 884

Kevin WHITLEDGE, Appellant-Plaintiff, v. James JORDAN and West American Insurance Co., Appellees-Defendants.

No. 82A01-9107-CV-196.

Court of Appeals of Indiana First District.

Feb. 11, 1992.

Matt Parmenter, Gerling Law Offices, P.C., Evansville, for appellant-plaintiff.

Stephen Hensleigh Thomas, Brent A. Raibley, Statham, Johnson & McCray, Evansville, for appellees-defendants.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Kevin Whitledge appeals summary judgment for West American Insurance Co. in Whitledge's action for uninsured motorists benefits. We affirm.

ISSUE

Did the trial court err in entering summary judgment finding that Whitledge was not entitled to uninsured motorists benefits?

FACTS

On January 31, 1989, Whitledge was using an automobile owned by his mother, Charlene Whitledge. West American Insurance Co. ("West American") had issued a liability insurance policy on the car. While the car was parked at Whitledge's

                place of employment, he observed two people attempting to steal it.  As he tried to stop Jordan from stealing the car, Whitledge became entangled in the driver's shoulder harness.  Jordan drove the vehicle forward for some distance and Whitledge was thereby injured.  Whitledge sought uninsured motorist benefits from West American.  The uninsured motorists provision excluded coverage for any vehicle "owned by or furnished or available for the regular use of you or any family member."   Record at 42.  The trial court granted summary judgment in favor of West American, denying Whitledge such benefits.  He appeals
                

DISCUSSION AND DECISION

Whitledge appeals summary judgment contending that he is entitled to uninsured motorist benefits. We review summary judgment to determine whether a genuine issue of material fact exists and whether the trial court correctly applied the law. Peterson v. Universal Fire and Casualty Insurance Co. (1991), Ind.App., 572 N.E.2d 1309, 1310. We will affirm summary judgment if it is sustainable upon any theory supported by the record. Id.

Specifically, Whitledge argues that Jordan was an uninsured motorist driving an uninsured vehicle when he injured Whitledge. Undisputably, Jordan was an uninsured motorist here. The parties disagree on whether the vehicle was insured. West American contends that the car was insured because it had issued a policy on it to Charlene. Whitledge, on the other hand, argues that the car was uninsured as to Jordan who did not have permission to drive the car.

The turnkey is whether the uninsured motorist statute, IND. CODE Sec. 27-7-5-2, requires protection when the vehicle is uninsured or when the motorist is uninsured. No Indiana cases have addressed which viewpoint espoused by the parties is the correct one. Whitledge relies upon an Illinois case to support his argument. In Comet Casualty Co. v. Jackson (1984), 125 Ill.App.3d 921, 81 Ill.Dec. 569, 467 N.E.2d 269, Jackson was insured by Comet for automobile liability. Jackson was injured when attempting to stop a thief from stealing his car. He sought uninsured motorist benefits from Comet under his policy. Comet denied liability claiming that the car was insured since a policy had been issued to cover it. The Illinois court held that the thief was not an insured under the policy and therefore, the vehicle was uninsured as to him for purposes of uninsured motorist coverage. Id. at 923-24, 81 Ill.Dec. at 571, 467 N.E.2d at 271.

Although the facts are similar and support Whitledge's argument, we may not rely on Comet Casualty because the Illinois court was free to interpret "uninsured vehicle" under its statute which did not define the term. ¹ We are prevented from making such an expansive interpretation because our legislature has defined "uninsured vehicle" in IND.CODE Sec. 27-7-5-4 as:

"... the term 'uninsured motor vehicle', subject to the terms and conditions of such coverage, means a motor vehicle without liability insurance or a motor vehicle not otherwise in compliance with the financial responsibility requirements ..., and includes an insured motor vehicle where the liability insurer of the vehicle is unable to make payment with respect to the legal liability of its insured ... because of insolvency."

The statute is clear and we may not read the term expansively and extend the meaning of uninsured vehicle as the Illinois court did in Comet Casualty.

Our research has uncovered only two other states which have dealt with the issue on appeal with similar factual situations. In New York, the Court of Appeals considered a case where the insured loaned her car to her brother, Rowell. Rowell v. Utica Mutual Insurance Co. (1991), 77 N.Y.2d 636, 569 N.Y.S.2d 399, 400, 571 N.E.2d 707, 708. Rowell sought uninsured motorist benefits under his sister's policy after he was injured while trying to prevent the car from being stolen. After finding that Rowell was an insured under the policy, the court reviewed whether the vehicle was an uninsured automobile to qualify for uninsured motorist coverage. The policy excluded vehicles owned by the insured as uninsured vehicles. The New York court declared the exclusion to be invalid because it conflicted with New York's uninsured motorist statute. Id. at 638-39, 569 N.Y.S.2d at 401, 571 N.E.2d at 709. New York's statute provides that insurance policies must contain an uninsured motorist provision which covers damages caused by an uninsured vehicle, a stolen vehicle, and a vehicle operated without permission of the owner. Id. (citing Insurance Law Sec. 3420(f)(1)). Therefore, the court held that Rowell had a valid claim to uninsured motorist coverage. Id. at 640, 569 N.Y.S.2d at 402, 571 N.E.2d at 710. Unlike New York, Indiana's legislature has not required a similar insurance provision regarding stolen vehicles. Therefore, we do not rely upon this New York case to make our decision.

The other similar case occurred in Oregon. In Cole v. Farmers Insurance Co. (1991), 108 Or.App. 277, 814 P.2d 188, Cole was injured while attempting to stop a thief from stealing his car. Cole sought uninsured motorist benefits under his insurance policy with Farmers. Farmers denied coverage asserting that the car was not uninsured so uninsured motorist coverage was unavailable. The court reviewed the Oregon uninsured motorist statute and Cole's insurance policy. The statute explicitly allowed an insurance company to exclude from the definition of uninsured vehicle, for the purpose of uninsured motorist coverage, any vehicle owned by the insured. See OR.REV.STAT. Sec. 743.792(2)(e)(F). ² The policy issued by Farmers contained a clause excluding from uninsured motorist coverage any vehicle owned by the insured. Cole, at 279, 814 P.2d at 189. The court...