Robert Hamilton d/b/a Hamilton Logging and Hamilton Logging, Inc. v. Western World Insurance Company, LLC (mem. dec.)
60A01-1703-PL-625
Ind. Ct. App.Nov 30, 2017Background
- Robert Hamilton operated a logging business (referenced both as a d/b/a sole proprietorship and Hamilton Logging, Inc.); he purchased general liability coverage through agent Knapp Miller Brown (Knapp).
- Western World issued Policy NPP8144278 (Mar 2, 2013–Mar 2, 2014) and later Policy NPP8146173 (Mar 6, 2014–Mar 6, 2015); Hamilton admitted those policy dates in its answer.
- Knapp notified Hamilton that the Mar 2, 2014 policy would expire and requested renewal payment of $1,004.50; Tammy Hamilton mailed a check and communicated that she had mailed it on Mar 4, 2014.
- An automobile accident involving HLI’s agent allegedly occurred "on or about" Mar 4, 2014; the Pullens sued HLI and obtained a default judgment after HLI did not respond.
- Western World sued for declaratory judgment asserting no coverage for the Pullen claim (coverage gap Mar 3–5, 2014). Western World moved for summary judgment, Hamilton did not respond or designate contrary evidence; the trial court granted summary judgment for Western World and denied Hamilton’s motion to correct error.
Issues
| Issue | Western World (Plaintiff) Argument | Hamilton (Defendant) Argument | Held |
|---|---|---|---|
| Whether date of accident is a triable fact | Complaint alleges accident on or about Mar 4, 2014; that establishes prima facie the accident occurred Mar 4, 2014 | "On or about" leaves open possibility accident fell within a policy period (e.g., Mar 2 or Mar 6) | Held: "on or about" here establishes Mar 4, 2014; no material factual dispute on date |
| Whether mailed check reinstated or renewed coverage (coverage gap) | Policy dates admitted; designated evidence shows a 3‑day gap (Mar 3–5) and no evidence of reinstatement before Mar 6 | Mailing check could have renewed or reinstated coverage effective before Mar 6 | Held: No designated evidence created an issue; admissions of policy dates control; gap exists and summary judgment proper |
| Identity of insured (whether HLI was covered) | Named insured on policies is "Robert Hamilton d/b/a Hamilton Logging," not HLI; accident occurred in gap so identity irrelevant | HLI may have been an insured under policy—creates fact question | Held: Policies (as admitted) name insured; HLI not listed; and accident occurred outside policy periods, so identity immaterial |
| Waiver/estoppel affirmative defenses | No designated evidence supports elements of waiver or estoppel; defendant must prove each element | Agent’s email and renewal communications create questions about waiver/estoppel | Held: Hamilton failed to designate evidence on these defenses; defenses waived and no genuine issue of material fact |
Key Cases Cited
- Parker v. State, 113 N.E. 763 (Ind. App. 1916) ("on or about" means approximate time, not leaving time at large)
- Gittner-Louviere Eng'g v. Superior Ct. of Pinal Cty., 565 P.2d 915 (Ariz. Ct. App. 1977) ("on or about" date in pleading does not create material issue preventing summary judgment)
- Larson v. Karagan, 979 N.E.2d 655 (Ind. Ct. App. 2012) (failure to respond to summary judgment limits nonmovant to movant’s designated facts but does not automatically grant judgment)
- Paint Shuttle, Inc. v. Cont’l Cas. Co., 733 N.E.2d 513 (Ind. Ct. App. 2000) (defendant bears burden to designate evidence on affirmative defenses in summary judgment proceedings)
- Lee v. Hamilton, 841 N.E.2d 223 (Ind. Ct. App. 2006) (pleading admissions are judicial admissions and conclusive on the party making them)