Will v. Meridian Ins. Group, Inc.

• Decision Date: 28 October 2002
• Docket Number: No. 45A05-0203-CV-127.,45A05-0203-CV-127.
• Citation: 776 N.E.2d 1233
• Parties: Melissa WILL, Appellant-Plaintiff, v. MERIDIAN INSURANCE GROUP, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

776 N.E.2d 1233

Melissa WILL, Appellant-Plaintiff, v. MERIDIAN INSURANCE GROUP, INC., Appellee-Defendant.

No. 45A05-0203-CV-127.

Court of Appeals of Indiana.

October 28, 2002.

Benjamin W. Murphy, Walter J. Alvarez, Andrew M. Yoder, Crown Point, for Appellant.

Nick Katich, Merrillville, for Appellee.

OPINION

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Plaintiff-Appellant Melissa Will ("Will") appeals the trial court's grant of summary judgment in favor of Appellee-Defendant Meridian Insurance Group, Inc. ("Meridian").

We reverse and remand.

ISSUE

Will raises one issue for our review, which we restate as: Whether the trial court erred in determining that Meridian designated sufficient evidence to establish that there were no genuine issues of material fact.

FACTS

On May 14, 1999, Will was driving her father's automobile northbound on U.S. 41 in Lake County, Indiana. Traveling at about fifty-five miles per hour, Will came upon a four to five foot pile of wood, shingles, roofing material, and nails spread over both lanes of the highway. Will attempted to avoid the pile of debris; however, the automobile collided with the pile, went airborne, and rolled over four or five times. Will and a passenger were injured in the collision.

Will attempted to receive payment from Meridian for bills arising from treatment of her injuries. Meridian, who was the insurer of the automobile Will was driving, denied coverage. Will filed a complaint against Meridian in which she alleged that the pile of debris had been left on the roadway by an unidentified motorist, that the unidentified motorist was an uninsured motorist under the terms of the Meridian insurance policy, and that Meridian refused to pay for the injuries caused by the actions of the uninsured motorist. The uninsured motorist provision of the Meridian policy at issue provides for coverage when an insured is injured by an "uninsured motor vehicle," which is defined, in part, as "a hit-and-run vehicle whose owner or operator cannot be identified" and which "hits" (1) the insured or a family member; (2) an automobile which the insured or a family member is occupying; or (3) the insured's covered automobile. (Appellee's Supp.App. at 10).

Meridian filed a motion for summary judgment alleging that it was not required to pay the bills for Will's injuries because her father's automobile was not "hit" by an uninsured motor vehicle. After a hearing on Meridian's motion, the trial court granted summary judgment in Meridian's favor. Will now appeals.

DISCUSSION AND DECISION

Will contends that the trial court erred in determining there was no disputed issue of material fact on the question of whether her injuries occurred when her father's automobile was "hit" by a hit-and-run vehicle. Specifically, she claims that there was a question of fact as to whether there was "indirect" physical contact between her father's automobile and the unidentified vehicle.

Meridian counters that summary judgment was appropriate as a matter of law. It observes that this appeal turns on an interpretation of the term "hits" as it is used in Meridian's insurance policy with Will's father. It further observes that as a general rule interpretation of a written contract is a question of law for which summary judgment is particularly appropriate. See Art Country Squire, LLC v. Inland Mortgage Corp., 745 N.E.2d 885, 889 (Ind.Ct.App.2001).

While we agree with the general rule stated by Meridian, we note that the rule applies only when the contract is unambiguous and/or when the contract's meaning can be ascertained without reference to extrinsic evidence. See Clyde E. Williams & Associates, Inc. v. Boatman, 176 Ind. App. 430, 375 N.E.2d 1138, 1141 (1978). This court previously has determined that the language at issue here is ambiguous and that it should be interpreted by reference to extrinsic facts to ascertain whether either direct or indirect physical contact has occurred. See Rice v. Meridian Insurance Co., 751 N.E.2d 685, 688 (Ind.Ct. App.2001), trans. denied. The court has also determined that provisions with similar language are ambiguous and require reference to extrinsic facts. See Ackles v. Hartford Underwriters Insurance Corp., 699 N.E.2d 740 (Ind.Ct.App.1998), trans. denied (interpreting a provision which defined a "hit-and-run vehicle" as one that causes bodily injury by "hitting" the insured, a covered automobile, or a vehicle the insured is occupying); Allied Fidelity Insurance Co. v. Lamb, 361 N.E.2d 174 (Ind.Ct.App.1977) (interpreting a provision which provided coverage when a hit-and-run vehicle came into "physical contact" with the insured's automobile).

The Indiana case law interpreting uninsured motorist provisions as they pertain to hit-and-run drivers has evolved from the rejection of the "indirect physical contact" concept in Blankenbaker v. Great Central Insurance Co., 151 Ind.App. 693, 281 N.E.2d 496 (1972) to the acceptance of indirect contact in Lamb and Ackles when a "continued transmission of force indirectly and contemporaneously [causes contact] through an intermediate object." Thus, in Lamb we held that an injured party was covered under the uninsured motorist provision of her insurance contract when a hit-and-run vehicle caused a rock to crash through the window of the insured's automobile. We noted that coverage may also exist where an unidentified vehicle strikes another vehicle propelling it into the insured's automobile and where the unidentified automobile strikes a telephone pole causing it to strike the insured's automobile. Lamb, 361 N.E.2d at 179. Also, we held in Ackles that summary judgment for the insurer was inappropriate when there was designated evidence that "based upon the movement of [a sheet of] fiberglass" a witness believed that the fiberglass had "come off" the flatbed trailer the witness observed proceeding past the insured's vehicle. 699 N.E.2d at 742.

In Rice, however, we affirmed the grant of summary judgment for the insurer when the designated evidence indicated that the insured driver was injured when her automobile struck a culvert after she swerved the automobile to avoid a head-on collision with an unidentified vehicle. In doing so, we noted that the unidentified vehicle had not struck either the insured's automobile or the culvert. 751 N.E.2d at 688. We reiterated our definition of "indirect physical contact" as occurring "when an unidentified vehicle strikes an object impelling it to strike the insured automobile and a substantial nexus between the unidentified vehicle and the intermediate object is established." Id. at 689 (quoting Lamb, 361 N.E.2d at 179).

In considering the facts before us, we note that it has been our concern that an insured whose injuries were caused by his own negligence not be allowed to recover under the uninsured motorist provision by fraudulently claiming that the injuries were caused by a hit-and-run driver. See e.g. Lamb, 361 N.E.2d at 178. This concern has been expressed in other states on the basis that "the purpose of interpreting a `hit-and-run accident' as requiring physical contact between the insured and the unidentified motor vehicle is to prevent a fraudulent claim about a phantom motor vehicle when the insured's loss of control causes the accident." Theis v. Midwest Security Insurance Co., 232 Wis.2d 749, 606 N.W.2d 162 (2000).

Our review of cases from other states discloses that the states are in agreement that no coverage is provided in "miss-and-run" situations. We joined these states in refusing to find coverage under the facts set forth in Rice. The states differ significantly, however, in their application of uninsured motorist coverage to fact situations in which the insured is injured by impelled objects, by still-moving vehicle parts or loads, or by collision with stationary parts or loads that are left upon the road. The resolutions by the various states turn upon the application of the state's statutes or the insurance policy's language to the particular facts under consideration.

In determining whether Meridian has succeeded in designating sufficient evidence to indicate that there is no genuine issue of material fact in this case, we find two cases from other states to be helpful in our consideration of this case. The cases serve as an aid to us because they explore the issue of coverage under factual situations that have not been presented to the appellate courts of this state.

First, in Atwood v. State Farm Mutual Insurance Co., 68 Ohio App.3d 179, 587 N.E.2d 936 (1990), the court was asked to determine whether an insured was entitled to recover under the uninsured motorist provisions of an insurance contract when a portion of a load of limestone fell from a passing truck and struck the insured's vehicle. The court held that a hit-and-run vehicle's "load" was a part of the vehicle and that the vehicle "struck" the insured's automobile when the limestone flew off the vehicle and made contact with the insured's automobile. Id. at 938. The court further held that the limestone would have ceased being part of the vehicle if it had "lost the momentum caused by the speed of the vehicle." Id. The trial court's grant of summary judgment for the insurer was reversed because there was "a genuine issue of fact as to whether the limestone from the passing truck striking [the insured's] windshield and injuring him was a sufficient striking or `actual physical contact'... to require coverage under the uninsured motorist clause of [the insured's] policy." Id.

Second, in Berry v. State Farm Mutual Automobile Insurance Co., 219 Mich.App. 340, 556 N.W.2d 207 (1996), the court was asked to determine whether an insured was "struck" by an uninsured motor vehicle when the insured's automobile ran over a piece of metal that had come to rest in the...