American Family Mutual Insurance Co. v. Ginther

IN AMERICAN FAMILY MUTUAL COMPANY, Appel

SURANCE

lant-Garnishee-Defendant, Defendant, Beckner, B.

Robert Mary

Eugene H. Gin GINTHER Clay

ther, O. Imo James Clay,

gene Appellees-Plaintiffs.

No. 71A05-0305-CV-214. Appeals of Indiana.

Court 9, 2004.

Feb. April Denied

Rehearing Vetne, Obenchain,

J. Thomas Jones LLP, Bend, IN, Attorney Appel- South for lant. Haines, Rowe,

Gregory J. Rowe & South Bend, IN, Attorney Appellee. OPINION RILEY, Judge. THE

STATEMENT OF CASE Appellant-Garnishee-Defendant, Ameri- Company Mutual Insurance (American Family), appeals trial denying court's order its Motion to Dis- Summary miss and Motion for Judgment. affirm. We ISSUES raises three issues on appeal, which we restate as follows: (1) Whether the trial court abused its by failing discretion estop Eugene Ginther, Ginther, Mary H. James O. (collec- Clay, and Clay Emma Jean motorists") tively, "injured re-litigating an question that had litigated been dismissed with prejudice action; declaratory judgment (2) Whether the trial court erred (Beck- finding that Robert Beckner's ner) newly purchased vehicle was in- Am was listed on Pontiac Grand with sured page declarations Family; and not insured under the Sonoma was (8) by fail- trial court erred Whether on June estop ing enti- Beckner was claiming that accident, after the Beck- Several hours coverage under tled to home and discussed the ner arrived at his they earlier when Family's policy Mrs. Beckner spouse. collision with his © uninsured. Beckner was claimed that called the Beckner' she informed at some Agency Insurance

Glenn Shultz HISTORY AND PROCEDURAL FACTS acci- prior to the point during the week assured her husband dent. Mrs. Beckner 1997, 28, Beckner was involved On June Agency Insurance the Glenn Shultz injured accident with the in an automobile thirty day pro- binder informed her that a at happened The accident motorists. the newly to the ac- coverage insurance vided Road 28 and St. Jo- of State intersection truck. quired pickup 1963 Ford Bend, Parkway in Valley South seph investigating told the Indiana. Beckner 30, 1997, Mrs. Beckner submit- On June accident seene of the officer at the police report and the title of the ted the accident coverage not have insurance that he did Insur- truck to the Glenn Shultz pickup truck. pickup for the lia- requested The Beckners Ageney. ance Family. American bility coverage accident, Beckner-was At the time of Klima Beck- to Karen pickup truck. explained Mrs. Beckner a 1963Ford driving (Klima), at the Glenn Shultz agent truck earlier an pickup purchased ner had purchased had that her husband Agency, in New acquaintance day from an truck over the week- the 1963 way Buffalo, on his Michigan, and was Ford a going to be used as and it was énd the accident Bend when home to South However, in- bought commercial Beckner occurred. Klima vehicle. they did that since formed Mrs. Beckner it and intent to restore with the truck policy, auto there a commercial not have construction it his own ultimately use existing poli- coverage no eventually ap- business, he created which was a Beckners held cy. his purchase month after one proximately that did not policy family car truck. As a vehicles. cover commercial (Mrs. wife, Beck- his Lee Beckner coverage Family deniedlability American "Beckners"), ner) main (collectively, the Beckners. (the family car insurance tained a 1997, 20, Beckner filed On October by American Fami underwritten "policy") Joseph in the St. Cir Declaratory full force ly, and the Action Family on the American 28, against cuit policy was Court 1997. The effect on June 26, 1997, Agency.1 through the Glenn Shultz November issued On issue. to Com Family filed its Answer American vehicles, owned three motor The Beckners Judgment. Beck- Declaratory Am, for plaint a"1984 Pontiac Grand namely a 1986 eventually withdrew attorney truck, ner's and the recent S-15 Sonoma Beckners Declaratory Action and the truck that pickup, Ford ly purchased Family's signed counsel and American in the collision. was involved authority bind ly and has the Agency operates as an 1. The Glenn Shultz behalf of agent American Fami- for exclusive insurance 14, May Stipulation of Dismissal.2 On 31, 2000, January in policy. On 1999, an Order of Dis jured the court entered Judg motorists obtained a Default Prejudice. Neither Beckner missal with against ment Beckner the total amount Family joined nor American $100,000.00. Declaratory motorists as May On motorists Action. in Proceedings Sup filed Verified Motion Rather, motorists asserted plemental, naming an uninsured motorist claim Safe- September Garnishee-Defendant. On Company Insurance States co/American filed a Motion to (Safeco), Eugene the insurance carrier Dismiss the Proceedings Supplemental on Ginther, one of the motorists. The grounds that the coverage previ issue had ultimately settled their ously litigated declaratory been uninsured motorist claim with Safeco for judgment action.4 ar $68,017.19, paid the total sum of which was motorists, gued as subro- pursuant out to the uninsured motorist Safeco, gors princi were barred provisions of the Safeco ples judicata of res estoppel collateral 4, 1999, On June re-litigating issue be Beckner, filed the claim against instant as oppor cause the motorists had an Safeco, subrogors personal injuries for for tunity to intervene in Beckner's declarato sustained in the automobile accident.3 On action, ry judgment but failed to do so. 7, 1999, September or about 27, 2000, September On motor provided motorists a copy Complaint of the Response ists filed their to American Fam Family's to American counsel. On Decem ily's 28, Motion to September Dismiss. On 30, 1999, ber moved 2000, hearing on the motion was held and entry judgment against for the of default the trial court took the matter under ad grounds Beckner on that Beckner failed to 10, 2001, January visement. On trial plead against or otherwise defend court Family's denied American Motion to motion, In support claims. of their Dismiss.

injured motorists filed the Affidavit of 25, 2001, January On American (Beilach), Greg Beilach an sub- rogation adjuster filed Certify Interlocutory with Safeco. The Bei- its Motion to lach Affidavit sets forth the amount 8, 2001, Order. March hearing On payments 12, 2001, made this motion was held. On March under the portion uninsured motorists the trial court certified its Order of Janu- joined 2. party thereby Mrs. Beckner was aas to Beck- is damages avoided because the dismissal, Declaratory ner's Action to its Clays by awarded to the Ginthers and the per Family's request. American trial court are paid held in trust and will be carrier, the uninsured motorists Safeco. 3. Clays and the are Plaintiffs in Ginthers against the action Beckner under their Re- It is conceded that this Motion to Dismiss ceipt Agreement and Trust with the Ginthers' Summary should be treated as a Motion for carrier, uninsured motorist Safeco. The Re- Judgment because the motion refers to mat- ceipt Agreement requires and Trust pleadings. ters outside of the we Clays any Ginthers and the hold in trust will continue to refer to the motion as a they may against claims have Beckner and Motion to Dismiss to avoid confusion with the Clays agree that the Ginthers and the to take subsequently Summary Judg- filed Motion for may necessary such action as be to recover damages ment American prospect Beckner. The recovery Clays double to the Ginthers and the injured motorists. in favor of the interlocutory judgment 2001, 10, purposes for ary provided as neces- 6, 2001, de- facts will be this court Additional April On appeal. interlocutory review sary. an to undertake clined Ameri- denying court's Order trial

of the Family's Motion ANDDECISION DISCUSSION Dismiss. 27, 2001, filed July On I. Review Standard of in the Summary Judgment for its Motion Supplemental. Proceeding summary a motion for reviewing 1963 Ford Family argued as standard apply the same judgment, we vehicle not an insured truck was court, any ques- resolve and we the trial Addi- and conditions terms to be drawn or an inference tion of fact Family argued tionally, non-moving par- in favor of the therefrom judicially es- motorists should be VII, Quest Realty ty. Bartle v. Health they. coverage when asserting topped 912, (Ind.Ct.App.2002). Sum- position taken the previously had mary judgment appropriate is motorist. an uninsured Beckner evidentiary matter shows designated motor- -the On October materi- issue as to genuine is no there with a Cross- Response filed their ists enti- moving party al fact and that Octo- Judgment. On Summary for Motion a matter of judgment tled to law. ~ Family filed its ber 56(C). Rule Ind. Trial for Sum- of its Motion Support Reply moving party has met Once the in- Response mary Judgment showing, facie prima with a burden Sum- Cross-Motion jured motorists' to non-moving party shifts to the burden 7, 2001, a mary Judgment. On November genuine issue that there is demonstrate for held on the hearing was Cross-Motions Any Id. doubt fact for trial. of material that same Summary On Judgment. date, a factual issue existence of about the under ad- matter trial court took the the movant, the resolved should be visement. and rea- asserted facts properly all with 3, 2003, the trial court entered April On in favor of inferences construed sonable Fami- denying American Order written appealing party Id. The the nonmovant. Judgment and Summary for Motion ly's judg- summary for a motion grant the of for Motion the motorists' granting persuading the burden ment bears spe- court The trial Summary Judgment. erred. Id. the trial court court 1963 Ford cifically held that Family by American truck was is to summary judgment purpose The insured 14(c) 14(b) paragraphs to pursuant is no fac where there litigation terminate sought that Mrs. Beckner as a determined which can be dispute tual (80) thirty within for the vehicle coverage United Piers v. American of law. matter also The trial court acquisition. days of its (Ind. Co., 1290 714 N.E.2d Ins. Life claim was injured motorists' that the held parties The fact Ct.App.1999). by the doctrine collateral not barred summary judg for make cross-motions estoppel. of re alter our standard ment does Ins. Co. v. Bureau view. Farm the trial Family appeals now Allstate (Ind.Ct.App. Co., 655 765 N.E.2d Ins. 10, 2001, denying January Order court's 2002). Instead, motion each and the trial court's we consider to Dismiss its Motion mov whether to determine 3, 2008, summary separately granting April Order of judgment as a ing party (Ind.Ct.App.1997), is entitled trans. de nied. matter of law. Id. Estoppel

II. Collateral estoppel Collateral does not ex tend to matters which expressly were not First, Family argues adjudicated only by and can be inferred by failing trial court abused its discretion argument. Peterson Culver Education estop motorists from assert- (Ind. Foundation, al a claim ing coverage Ct.App.1980). primary consideration policy. Specifically, American con- use of estoppel collateral is whether Hability tends that the issue of Beckner's party against adjudi whom the former coverage adjudicated prior in the de- cation is asserted had "a full and fair claratory judgment action between Ameri- opportunity litigate the issue and wheth Fami- and Beckner. American er it would be otherwise unfair under the ly maintains that permit circumstances" to the use of issue prior should have intervened action preclusion in subsequent action. Sulli re-litigate rather than issue van, 605 N.E.2d at 138. Review of a trial in the instant lawsuit. court's regarding decision the use of issue Conversely, motorists assert preclusion subject is to an abuse of discre estoppel the doctrine of collateral Oil, tion standard. Shell 705 N.E.2d at par- unavailable to American ticular, motorists contend that case, In the present since were not Family maintains that the two elements of litigation dispute have not previously satisfied, the Sullivan test are and there litigated liability the issue of Beckner's fore the doctrine of estoppel ap collateral coverage, they estopped are not from liti- plies. Specifically, ar gating this issue the instant action. gues motorists and their preclusion, Issue often referred to Safeco, subrogee, had a full op and fair estoppel, as collateral subsequent bars liti portunity litigate issue in gation of a fact or issue which was neces Beckner's declaratory judgment action. sarily adjudicated in However, a former lawsuit if disagree we with American the presented same fact or issue is the Our review of the record shows subsequent lawsuit. Bartle v. Health motorists were not parties declaratory Quest VII, 917; action and there Realty at 768 N.E.2d City Indianapolis, Mendenhall v. 717 fore did not a full have and fair opportuni ty litigate N.E.2d (Ind.Ct.App.1999); 1225 the issue. See Sull ivan, 605 N.E.2d at Although Meyer, Shell Oil Co. v. 705 N.E.2d 968 (Ind.1998). contends that the in situation, In the former jured adjudication motorists should will be conclusive in have intervened in the sub action, declaratory the sequent judgment Indiana action even the two actions are 34-14-1-11, Code section provides on different other claims. Sullivan v. American In particular, wise. Pa., Indiana Code section Casualty Reading, Co. 34-14-1-11, states, (Ind.1992). pertinent part: 137 the former adjudication will be conclusive as to When declaratory relief sought, is all those actually issues which litigated persons were parties shall be made who have and determined therein. Wedel v. Ameri or claim interest that would af- be can Elec. Corp., Power Serv. declaration, fected the and no decla- The trial per- as it relates to tortfeasor. rights prejudice

ration shall court did not determine the accident vice- proceedings. to the parties not sons rights tim's or tortfeasor's insurer's obli Thus, seeking declarato- person it was injured party. it to the gation as relates joined the in- that should have ry relief so, court doing stated motorists, namely Beckner. Never- jured accident victim "had an interest in the theless, clearly provides that the statute at policy proceeds which vested the time preju- injured motorists shall not be Araiza, the accident." 699 N.E.2d at 1163. not diced because were Furthermore, we held that the tortfeasor's § 34- declaratory judgment. See Ind.Code disregard inattention to or of tortfeasor's 14-1-11. declaratory pre insurer's action did not Furthermore, we find establishing the accident victim from vent Chrysler reliance on Araiza motorists' availability liability coverage to sat (Ind.Ct. Co., 699 N.E.2d 1162 Insurance isfy judgment against the tortfeasor. (Ind.Ct.App.1998), clarified, 703 N.E.2d 661 App.1998), denied, proper. s. tran Araizo, upon Based we likewise Araiza, pro insurer was the tortfeasor's find that motorists have an negligence a pending with notice of vided Family policy interest in the American tortfeasor, and the in against action not issue aris litigated have vic respond. The accident surer did ing from the accident. The motor judgment against a default tim obtained policy proceeds, ists an interest have The accident victim then the tortfeasor. at which vested the time of accident. against proceeding supplemental filed Araiza, N.E.2d at 1163. The na See insurer the tortfeasor's insurer and the whether it ture of that interest and entitles answered, raising policy defenses. The payment in satis subsequently insurer filed tortfeasor's judgment against Beckner faction of their declaratory against its own separate action remains be determined. insured, victim, the accident and the acci Therefore, we conclude motorist carrier. dent victim's uninsured fair op- motorists did not have full and and the de proceeding supplemental of American portunity litigate the issue and a claratory action were consolidated policy of Family's obligation under their against the judgment default was entered Sullivan, 605 to Beckner. See tortfeasor. find that Consequently, N.E.2d at 138. we insurer then moved to The tortfeasor's summary properly granted trial court proceeding accident victim's dismiss the on this judgment to the judg upon based the default supplemental Moreover, having determined that issue. victim in the ment the accident litigated the injured motorists had not Araiza, court declaratory action. Family's liability of cover- issue American Motion to denied the tortfeasor's insurer's it we, need not address "whether age, proceeding Dismiss the accident victim's unfair under the cir- would be otherwise found that the tortfea- supplemental and of collateral permit cumstances to the use the default rely sor's insurer could not id. See estoppel." of its insured as a conclusive determination Family Policy Coverage IIL American obligations. coverage of its Next, Family alleges American rights the trial court determined tortfeasor, that the Ford by finding court erred only and the trial party, one under Beckner's only truck was covered pickup tortfeasor's insurer obligation of the 232 © Family policy, Family policy. Specifically, The American

American 14(a) contends, 14(c), state, perti Family paragraphs based American part: nent policy, newly of the upon language 14. Your insured car means: pickup Ford truck was not an

acquired Any a. car purposes. As described the declara- insured vehicle for any private passenger tions and car result, Family claims in- American utility you replace or it with. ear jured motorists should not be allowed © days You must tell us within 80 policy. under this recover acquisition. its hand, the other On Any private passenger c. additional assert that Beckner had utility you car or car of which ac- Family policy American the Ford his ownership during policy quire Consequently, truck. period, provided: maintain that the trial court did (1) car, If private passenger it is a finding not err in that Beckner's Ford your pri- we insure all of other pickup truck was covered under his Ameri- cars; passenger vate policy. (2) car, If it a utility is we insure all your private passenger other interpretation of an insur ' utility cars and cars. contracts, policy, ance as with other is days You must tell us within 80 of its primarily question of law for the court, acquisition you want us to insure policy ambiguity even if the an contains the additional car. needing Estate v. resolution. of Eberhard 106). First, (Appellant's App. p. Co., 1, 2 Illinois Founders Ins. 742 N.E.2d Family claims that trial court erred (Ind.Ct.App.2000); Indiana Ins. Co. finding that the Ford truck was Servs., Inc., Community 14(b) Paragraph poli- covered under (Ind.Ct.App.1999). A cy. In particular, American ar- may not court rewrite an insurance con gues one of the three vehicles Eberhard, tract. Estate 742 N.E.2d at 28, 1997, owned the Beckners on June 2. If an insurance contract is clear and qualified an insured vehicle on the dec- unambiguous, language given must be page larations the insurance As 'plain meaning. its Allstate Ins. Co. v. maintains that Boles, (Ind.1985). newly there can be no coverage for the However, there an ambiguity, is aequired para- Ford truck under policy interpreted should be most favor 14(b) of graph because American insured, fur construed to ably Family did not insure all of the Beckner's policy's ther the basic purpose of indemni private passenger utility cars and cars on ty. Co., Ins. 718N.E.2dat 1153. Indiana June we find that Ambiguity an insurance exists Family's argument misleading is language susceptible when the to more merit. and without interpretation reasonably than one in Our review of the record indicates that telligent persons honestly could differ as to the Beckners owned two other vehicles meaning policy language. Cin pickup purchased truck Inc., mentioned, cinnati Ins. Co. v. Holdings, 1997. BACT previously June As (Ind.Ct.App.2000), 439-40 the Beckners owned a Pontiac Grand Am, trans. denied. which is listed on the declarations 106). Thus, (Appellant's App. p. since policy; and a 1984 of the insurance page truck, admittedly purchased Beckner the Ford not in- which was pickup Sonoma However, pickup truck with the intent to it in his use with American sured business, Family argues that of the record reveals further review pickup poli- truck is not covered under the pickup truck was not the 1984 Sonoma cy. Family because it insured with American fact, months. In

had been unused for six that argue The testified that the 1984 Sonoma Beckner proper regarding focus the determina "just yard truck sat" in the and no pickup pickup tion of whether Beckner used the (Appellant's App. p. truck. one drove the any truck in occupation business or is the 66). use of truck at pickup the time of the agree accident. We with the mo Additionally, record reflects that Eberhard, 742 torists. See Estate of Family's Mrs. Beckner informed (where N.E.2d at 1 the insurer succeessful within thir agent, Agency, the Cien Shultz ly argued coverage that no was afforded ty days acquisi- of the Ford truck's personal policy its insured under a auto to insure this addi- tion that wanted escorting pay, when the insured was above, mentioned tional car. As truck with an oversized load at the time "your Family policy definition in a the insured was involved motor vehicle 14(c), Paragraph car" also includes insured accident); see also v. State Farm Alderfer states, ... "any utility car which additional (Ind.Ct. Co., Mutual Ins. 670 N.E.2d 111 ownership during the you acquire of which (wherein App.1996) this court held that a tell us within 80 policyperiod. You must precluded business use exclusion you us to days acquisition of its want coverage firefighter for a volunteer who (Appellant's car." insure additional in a motor vehicle accident 106). Thus, paragraph App. p. pursuant conducting firefighting his volunteer while 14(c) policy, of the the Beckner's followed duties). procedure to secure proper Here, the record reveals that at pickup truck. newly acquired Ford was involved in the acci the time Beckner Nevertheless, con- motorists, he had dent with the not tends that the Beckners are covered pickup truck. As just purchased the Ford policy's paragraph provisions under the mentioned, Beckner testified previously 14(c) truck is not because the Ford truck purchased that he had car" under "private passenger defined as eventually to restore it and with the intent American Fami- own construction business. use it his ly for this vehicle asserts pick Particularly, purchased Beckner of util- depends upon policy's definition a home- up carry truck to material for ity "utility car. defines car" siding business he was roofing based states, in pertinent which paragraph However, the process starting. in the part: the time of clearly record shows at Utility car means: accident, not in exis the business was fact, unincorporated tence. capacity of a. "a car with a rated load formally op construction business was less, 2,000 pounds pickup, or July approximately until erational van, delivery panel or truck sedan type not used business Thus, of Beckner's accident at the time using injured motorists he was with the occupation." 294 personal transporta liability coverage. nied As a pickup truck as Buffalo, Michigan to injured to motorists contend that American get

tion New Consequently, we family Family's argument his residence. is without merit. We using was not conclude that Beckner agree. occupation a business or pickup truck for that, outset, At the we note the accident with purpose at the time of specify does not which . Eber motorists See of Estate theory they rely estoppel upon, of but hard, 1; Alderfer, 742 N.E.2d at see 670 principles estoppel instead refers to of N.E.2d at 111. we find that Accordingly, generally. Particularly, of the substance by finding trial court did not err of argument principles focuses on the Ford truck was an insured ve judicial equitable estoppel estop- both and policy. hicle under the pel. Equitable estoppel is available one above, pursuant all upon Based party, through representations its plain unambiguous terms of the conduct, knowingly course of misleads or trial court policy, properly we find party induces another to believe and act determined that the Ford truck in upon good their conduct faith and with liability a car qualifies as cover knowledge out of the facts. Wabash age Family's policy, pursuant of American (Ind.Ct. Grain,Inc., 234, 700N.E.2d 237 14(c). 14(b) and All paragraphs See Roe, App.1998); Brokaw 669 N.E.2d Co., at 1101. state Ins. 481 N.E.2d There (Ind.Ct.App.1996), 1041 trans. de fore, genuine that no we conclude issue estoppel nied. The elements equitable regarding fact material exists whether the (1) representation are: a or concealment of of insurance covered the (2) fact, a by person material made a with 56(C). truck. T.R. Ford See As a knowledge of the fact and with the inten result, we conclude that the trial court did (8) it, party tion that the 'other act upon in granting summary judgment err (4) fact, party ignorant which favor of the motorists. party rely upon induces the other or act Estoppel IV. Judicial it to his detriment: Id. The reliance ele Lastly, contends that (1) fact, ment prongs: has two reliance the trial court not applying erred (2) Id., right In re Mar reliance. judicial estoppel preclude doctrine of to. riage Murray, 460 N.E.2d 1026 motorists' claim for addition, (Ind.Ct.App.1984). estoppel In

under Beckner's "only exists between the same asserts that the motorists assumed legal privity or those in with them." Id. contrary positions at stages different contrast, judicial litigation estoppel order to maximize their recovery. prevents financial party asserting position Ameri- Family argues legal in a proceeding motor- inconsistent with one Id.; previously previously ists claimed that Beckner was asserted. Shewmaker v. Etter, uninsured in a claim with Safeco. Howev- (Ind.Ct.App. er, motorists now claim that 1994), trans., adopted on 659 N.E.2d 1021 (Ind.1995). Beckner was insured with American Fami- Specifically, in Tobin v. McClel ly. lan, 335, 346-47, 225 Ind. (1947), supreme our court stated:

Conversely, allege judicial in any general did not assert It is rule that allegations or proceeding that rightfully pleadings Beckner was de- admissions in in a former insurer, liability Family. ner's ordinarily will es- proceeding or action deny- our review of the record indi- making them party the top from injured action or at all subsequent truth in a cates that the motorists ing their party to the in in which he is times claimed that Beckner had force proceeding where the usu- opponent policy of his and effect a of insurance with Amer- prejudice are estoppel by conduct Family Family 'al elements and that American has ican Also, have been a there must present. may owing have an to the obligation or action, or, at injured motorists. determination least, allegations or admission must the under the terms of the in which by acted on the court have been Beckner, original Complaint against the by par- or pleadings were filed motorists asserted Beckner estoppel. claiming ties "had force and effect a of insur- in. omitted) (citations (empha quotations ance with American Insurance added). equitable estoppel, Unlike sis Company provided Hability coverage which relationship between focuses which arising him out of motor vehicle acci- judicial estoppel focuses on the parties, on or dent which occurred about June ju relationship litigant between a injured mo- Additionally, 1997 ...". Grain, Inc., 700 system. Wabash dicial Proceeding torists' Verified Motion for judicial The purpose N.E.2d at 237-38. contained a statement that Supplementary alleg protect litigants estoppel is Family Mutual Insurance Com- "American edly improper by conduct their adversar herein, has pany, the Garnishee-Defendant ies. Id. may obligation owing an to the have case, at this subject Plaintiff Defendants and/or tempts preclude motorists Proceeding Supplemental, namely, Plain- covered asserting that Beckner is legally protectable interest tiffs have the issued liability policy." motor vehicle Defendant's Family, previous to their due Further, the Ginther's uninsured motorists uninsured. position that Beckner was carrier, Safeco, an submitted affidavit that, First, injured motorists we judgment against of the default support note judicial party proceeding were not a to any explained affidavit Beckner. This Beckner and American As with were made to the motor- payments above, equitable estoppel re discussed brought of their claims ists satisfaction identity applica for its quires provisions uninsured motorist under the Inc., Grain, Wabash clearly tion. See policy. The record the Ginther's find that at 238. As a we supported shows that the affidavit equitable estoppel ap does not doctrine of against Beckner but did not damage award in the instant case. ply Fami- contain an assertion that American ly's position was correct.

Second, we find that mentioned, Furthermore, judicial previously es- Family's argument relying on pursuing motorists are also fail. The record reflects toppel must Beckner under liability plaintiffs against claim as that after American denied Beckner, Agreement and Trust with Receipt coverage carrier, uninsured motorist coverage. qualified for uninsured motorists Ginther's Agree- Receipt and Trust then filed a suit Safeco. The injured motorists requires a ment eventually Beckner and filed may have claims against Beck- hold trust Proceeding Supplemental only for the reason that Beckner was mo- against Beckner occupation a or at the may using be it for business take such action as agree torists to Rather I do so be damages against time of the accident. necessary to recover ... of the Therefore, cause the truck was a "car prospect of dou- Beckner. ... was "not used in type" recovery ble to occupation.5 Appellant's damages business thereby because avoided Here, major by as noted App. court are at 106. the trial awarded to them by yet not ity, projected unin- business use had paid in trust and will be held did not carrier, possible been because the business Safeco. sured motorist yet My reading of the insurance exist. we find that upon foregoing, Based makes the truck a provision therefore that the in- Family's argument "utility car." I then conclude that because contrary posi- jured motorists assumed was and not inoperable Sonoma litigation in this stages tions at different subject and because the recovery is with- financial maximize Am, vehicle, other ie. 1986 Grand out merit. We further conclude vehicle, by Ameri passenger covered judicial estoppel apply does not doctrine of Family, utility it is an ... can "additional injured motorists' claim for preclude b(2) by car" 14. paragraph covered policy. As a coverage under Beckner's trial court did not we find that summary judgment to the by granting err IV, Part I respect agree With denying judicial estoppel applica is not doctrine Family's Motion to Dismiss. I ble to the facts before us. do so the assertion becalise CONCLUSION in motorists that Beckner was uninsured foregoing, on the we conclude Based upon their claim with Safeco was Ameri- properly that the trial court denied pursuant not made to a lawsuit. The re Family's to Dismiss and Mo- Motion covery from Safeco was obtained without Therefore, Summary Judgment. tion for judicial complaint action. There was no grant the trial court's of sum- we affirm judicial giving filed forum rise to mary in favor of the judgment State, judicial estoppel. Brightman v. See motorists. (Ind.2001) (citing 758 N.E.2d 41 Shewmak Etter, (Ind.Ct.App. er v. 644 N.E.2d 922

Affirmed. 1994), opinion adopted by Hammes (Ind.1995)). Brumley, 659 N.E.2d 1021 FRIEDLANDER, J., concurs. SULLIVAN, J., opinion. concurs with

SULLIVAN, concurring. Judge, fully

I concur as to Parts I and IL. that, III, regard agree I

With to Part p.

stated on the trial court did err was an finding the Ford however, vehicle. I do not do so,

insured respect particular occupation In this I believe the use at the business or of the owner but precise being at the the time of the accident is not determinative. time issue used for | generally personal purpose. very A well be used vehicle could

Case Details

Case Name: American Family Mutual Insurance Co. v. Ginther

Court Name: Indiana Court of Appeals

Date Published: Feb 9, 2004

Citation: 803 N.E.2d 224

Docket Number: 71A05-0305-CV-214

Court Abbreviation: Ind. Ct. App.