Cotton v. Auto-Owners Insurance Co.
937 N.E.2d 414
Ind. Ct. App.2010Background
- Cotton, a passenger in a car involved in a single-car accident, seeks coverage under the Dealer's Auto-Owners garage policy for injuries.
- Sneed, not an employee of the Dealer, drove a vehicle with a temporary license plate provided by Bailey, the Dealer's owner, who later died.
- The Dealer was insured by Auto-Owners under a garage policy covering operations in connection with the dealer’s business.
- Cotton filed suit in 2006; discovery showed Bailey died in 2008; Cotton moved for partial summary judgment Sept. 18, 2006; Auto-Owners cross-moved Jan. 19, 2010.
- The trial court granted partial summary judgment for Auto-Owners and denied Cotton’s motion to strike Bailey’s affidavit; Cotton appeals.
- Court affirms the grant of summary judgment and the denial of the motion to strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Garage policy coverage for an incidental act | Cotton: license-plate provision incidental to dealer business supports coverage | Auto-Owners: coverage requires direct nexus to garage operations | Policy does not cover |
| Admission of Bailey Affidavit at summary judgment | Bailey affidavit not admissible as hearsay without cross-exam | Affidavit admissible for summary judgment if content would be admissible at trial | Affirmed (no abuse of discretion) |
Key Cases Cited
- Hitch v. Automobile Underwriters, Inc., 349 N.E.2d 271 (Ind. Ct. App. 1976) (garage operations must be directly incidental to the garage business)
- McLeod v. Nationwide Mut. Ins. Co., 444 S.E.2d 487 (N.C. Ct. App. 1994) (permissive use of dealer license tags not necessary or incidental to garage business)
- Reeder v. Harper, 788 N.E.2d 1236 (Ind. 2003) (substance of affidavit admissible at summary judgment if admissible content at trial)