Empire Fire and Marine Insurance Company v. Charlene Frierson and Roderick Frierson
2016 Ind. App. LEXIS 12
| Ind. Ct. App. | 2016Background
- On April 25, 2011 Charlene Frierson was involved in an automobile collision with Ashley Talsma. Talsma’s liability carrier paid $25,000; Allstate paid $25,000 in UIM to Charlene after setoff.
- Charlene rented the vehicle from Enterprise and purchased Enterprise’s optional Supplemental Liability Protection (SLP). SLP was provided through an Empire Fire & Marine excess liability policy (the Empire Policy).
- The Enterprise rental agreement disclosed that Enterprise did not provide UM/UIM through the agreement and that the SLP was ‘‘subject to all provisions, limitations, exceptions and exclusions of the SLP policy,’’ and listed UM/UIM as an SLP exclusion. Charlene did not receive a copy of the Empire Policy.
- The Empire Policy explicitly described itself as ‘‘excess auto liability insurance’’ and contained an exclusion for liability arising from uninsured or underinsured motorist laws; Indiana was not among the states for which UM/UIM was added by endorsement.
- Empire moved for summary judgment, arguing the policy was a commercial umbrella/excess policy exempt from mandatory UM/UIM under Ind. Code § 27-7-5-2(d). The trial court denied summary judgment; after trial a jury returned verdict for the Friersons. The Court of Appeals reversed, granting summary judgment for Empire.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Empire Policy provided UM/UIM coverage | Friersons: rental paperwork and small print did not clearly and conspicuously exclude UM/UIM; Charlene asked for "full coverage;" ambiguity should be construed for insured | Empire: policy is a commercial umbrella/excess liability policy that expressly excludes UM/UIM and is not required to offer UM/UIM under Ind. Code § 27-7-5-2(d) | Court held policy is an excess liability policy and § 27-7-5-2(d) exempts such policies from mandatory UM/UIM; summary judgment for Empire granted |
Key Cases Cited
- United Nat’l Ins. Co. v. DePrizio, 705 N.E.2d 455 (Ind. 1999) (held that umbrella policies providing third-party auto liability had been treated as automobile liability policies for UM/UIM requirements prior to legislative amendment)
- Nat’l Mut. Ins. Co. v. Curtis, 867 N.E.2d 631 (Ind. Ct. App. 2007) (policy structure and inconspicuous placement of exclusions can create ambiguity to be construed for the insured)
- Beam v. Wausau Ins. Co., 765 N.E.2d 524 (Ind. 2002) (ambiguity exists only where provision is reasonably susceptible to more than one interpretation)