Winkler v. Royal Ins. Co.
| Citation | 337 N.E.2d 499,167 Ind.App. 16 |
| Decision Date | 25 November 1975 |
| Docket Number | No. 1--575A88,1--575A88 |
| Parties | Edith WINKLER, Administratrix of the Estate of Fritz E. Winkler, Plaintiff-Appellant, v. ROYAL INSURANCE COMPANY et al., Defendants-Appellees. |
| Court | Court of Appeals of Indiana |
Archer & Gholston, Franklin, Steckbeck & Moore, William C. Moore, Alan H. Cohen, Indianapolis, for plaintiff-appellant.
Branigen & De Moss, Franklin Locke, Reynolds, Boyd & Weisell, Hugh Watson, Michael A. Bergin, Indianapolis, for defendants-appellees.
Plaintiff-appellant Edith Winkler, Administratrix of the estate of Fritz E. Winkler (Winkler) brought an action against Dennis Wolfe for the wrongful death of Mr. Winkler in an automobile collision. Dennis Wolfe suffered default and a judgment was entered against him for $125,000, which judgment remains due and unsatisfied.
Winkler then brought the action before us, seeking proceedings of an automobile insurance policy issued by defendants-appellees herein (Royal) to the Hertz Corporation which was applicable to a vehicle subsequently received from Hertz by Alice Wolfe and operated by Dennis Wolfe at the time of the fatal collision. Royal refused to concede any liability under its policy of insurance for the incident made the basis of Winkler's litigation. Thereafter Royal filed its motion for summary judgment together with a copy of the insurance policy issued by Royal to Hertz which policy afforded protection to the renter of the Hertz automobile, Alice Wolfe, and others, as provided by the omnibus coverage of the policy.
Winkler filed her meorandum in opposition to motion for summary judgment and attached thereto a copy of the insurance policy issued by Royal to Hertz.
The court in its special findings of fact, including pertinent parts of the insurance policy, held, inter alia:
1. The sole dispute is over the legal import of the terms of the insurance policy and rental agreement, neither of which is ambiguous or in need of construction.
2. The issue on summary judgment is whether Dennis Wolfe was an additional insured under the policy.
3. It is undisputed that Dennis Wolfe is no at 'named' insured under the policy and that he did not rent the automobile he was driving from Hertz (the named insured). Dennis Wolfe came into possession of the automobile from Alice Wolfe, who was the renter and signed the rental agreement with Hertz.
4. Alice Wolfe was the wife of William Wolfe and resided with her husband and children in Indianapolis, Indiana.
5. Dennis Wolfe was a half brother of William Wolfe, was 18 years of age, was in the United States Army, and made his permanent home with his mother, Mary Wolfe, at Indianapolis, Indiana. Dennis Wolfe had never resided in the household or home of William and Alice Wolfe at the time of the collision.
6. On the day of the collision Dennis visited at William's home and William asked Alice to rent a car for Dennis' use that night. She rented a car from Hertz in her name, drove it home, and Dennis then took possession and used the car solely for his own benefit and use.
7. The pertinent part of the insurance policy defining the insured reads as follows, to-wit:
The policy exclusions also provide in pertinent part:
The Rental Agreement between Alice Wolfe and the Hertz Corporation, which was Exhibit 'A' to Alice Wolfe's deposition taken November 30, 1970 provides in pertinent part:
'Under no circumstances shall vehicle be used, operated or driven: (A) . . . (B) . . . (C) . . . (D) . . . (E) By any person except (1) Customer; or (2) If a qualified licensed driver, and provided customer's permission be first obtained, (a) A member of customer's immediate family, (b) Customer's employer, or (c) An employee of customer in the course of such employee's regular and usual employment by customer. . . .'
8. The court further found Hertz did not rent the car to Dennis Wolfe; that Dennis Wolfe was not an employer or employee of the renter (Alice Wolfe) nor was he a person from whom an auto had been rented by Royal. That Dennis Wolfe was not a resident of the household of Alice Wolfe nor a partner of the renter nor a member of the immediate family of the renter nor was he an employee of Hertz.
The trial court duly entered its conclusions of law on the above findings which it concluded by decreeing that the plaintiff (Winkler) take nothing by her complaint and entered judgment on behalf of the defendants (Royal) and against Winkler.
Winkler timely filed her motion to correct errors which, after argument thereon, was by the court overruled. Said motion charges (1) the court's finding was erroreous and inadequate in that said finding did not show an absence of material fact (2) the motion is based on a sumptions regarding material issues of fact relating to the question of the interpretation and application of the language contained in Royal's insurance policy made the basis of the within litigation; (3) there is a material issue of fact which relates to the scope and application of the omnibus clause as it affects the rights and duties of the parties litigant; and (4) the court's judgment is contrary to law.
Said motion further charges...
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...to execution." (Emphasis added.) Errors raised for the first time on appeal are waived. Winkler, Admx. v. Royal Insurance Co. et al. (1975), 167 Ind.App. 16, 337 N.E.2d 499. Even if this claim had been properly preserved for review, it is apparent that the trial court committed no error. In......
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