Ohio Casualty Insurance v. Herring-Jenkins
830 F. Supp. 2d 566
N.D. Ind.2011Background
- Jenkins was killed March 16, 2010 by an uninsured motorist while repairing potholes in a construction lane on Interstate 80 in Indiana.
- Ohio Casualty insured the C. Lee Construction dump truck involved; Jenkins's estate seeks uninsured motorist benefits under Ohio Casualty policies.
- C. Lee supplied Teslow to drive Jenkins to the work site; a Crash Attenuator Truck provided rear protection as the crew worked.
- Jenkins was walking behind the C. Lee dump truck repairing potholes when Shannon, uninsured, struck and killed him.
- The Policy provides UM coverage with a defined insured as someone occupying a covered auto; the umbrella policy excludes UM coverage; dispute centers on whether Jenkins qualified as an insured.
- The Court applies Indiana contract interpretation and analyzes whether Jenkins was occupying or using the truck, and whether statute requires UM coverage under the umbrella.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jenkins was an 'insured' under the UIM Endorsement by occupying | Jenkins occupied the auto under the Endorsement's terms. | Jenkins was not occupying the vehicle at the time of the accident. | Jenkins not occupying; no UIM coverage under Endorsement. |
| Whether Jenkins was an 'insured' under the liability portion by using the auto with permission | Jenkins used the truck per policy language and public policy supports coverage. | Jenkins was not using the truck in a way that makes him an insured under the liability provision. | Not using under the liability provision; no coverage. |
| Whether Indiana Code requires UM/UIM coverage under the umbrella policy | Umbrella should provide UM coverage consistent with minimum liability requirements. | Code provides an explicit exception for umbrella policies; no requirement here. | No UM coverage under the umbrella policy under Indiana law. |
Key Cases Cited
- Miller v. Loman, 518 N.E.2d 486 (Ind. Ct. App. 1987) (occupying requires more than proximity; four-factor test for alighting/getting out)
- Combs, 446 N.E.2d 1001 (Ind. Ct. App. 1983) (physical contact and claimant-vehicle relation matter for occupying)
- Lake States Ins. Co. v. Tech Tools, Inc., 743 N.E.2d 314 (Ind. Ct. App. 2001) (extending occupancy to a zone around vehicle defeats clear ‘occupying’ language)
- KLLM, Inc. v. Legg, 826 N.E.2d 136 (Ind. Ct. App. 2005) (occupying may be based on relationship to vehicle; not every proximity suffices)
- Argonaut Ins. Co. v. Jones, 953 N.E.2d 608 (Ind. Ct. App. 2011) (active relationship and reasonable expectations govern coverage analysis)
- Estate of Sullivan v. Allstate Ins. Co., 841 N.E.2d 1220 (Ind. Ct. App. 2006) (use means drive/operate/direct the vehicle; mere passenger not use)
- Monroe Guaranty Ins. Co. v. Campos, 582 N.E.2d 865 (Ind. Ct. App. 1991) (active control in garage operations can render use; distinguishes from passive cases)
- Barnhill v. Liberty Mut. Fire Ins. Co., 129 F. Supp. 2d 1192 (N.D. Ind. 2001) (zone-of-safety concept cautions against over-breadth of occupancy)