*1 or reimburse- subrogation claims insurer 34-4-41-8, to the rights under IC STATES INSURANCE AMERICAN Defendant, judgment re- of a settlement proceeds COMPANY, Appellant- commenced legal proceeding sulting from a Below, Counterclaimant legally party against a third by an insured injury for personal for the responsible v. insurer, as by the is made payment Eugene T. BRADEN & L. Janice action, then under IC 34- case in this is the Braden, al., Appellees et pay, out that insurer shall 4-41-4 of Plaintiffs. insured, here received amount from Farm, $25,000.00 from State received 25A03-9303-CV-80. No. the rea- rata share pro the insurer's of expenses, necessary costs and sonable Appeals of Court asserting attorney's fees, including Third District. in es- provision claim. This party third Dec. of our application a narrow codifies sence concerning attor- recognized rule generally therefore, statute, is not ney's fees.2 This Rather, 27-7-5-5. with IC
in conflict by directing that 27-7-5-5 supplements IC attorney's fees subtracted
applicable in from the received from the amount
sured. dispute do not parties in this case
The fee of attorney Pfeifer is owed a
$8,333.33 negotiating his work Farm. agreement with State settlement ought to around who dispute revolves re- fee. 84-4-41-4 for this IC
be liable doing does not issue and so
solves this Economy its maximum
force above Economy merely owes 27-7-5-5.
under IC expense to
attorney's as a collateral fees subrogation or
claiming its reimbursement 84-4-41- 34-4-41-8 and IC
rights IC
CONCLUSION: reasons, foregoing
For the affirmed. the trial court is JJ., SHARPNACK,
HOFFMAN
concur. fees, concerning attorney's of the American general ture has codified a variation rule 2. The Rule, subrogation IC requires in the insurance context. each Rule known as the American insurer, attorney's requires pay that an who claims party their own 34-4-41-4 to a lawsuit rights pro- subrogation in the Rappaport or reimbursement 216 Ind. fees. Garvin insured, 249, 251; prosecuted of an action Wernke v. Halas ceeds 25 N.E.2d pay pro legislature rata share of the reasonable Ind.App., fees, attorney's expenses, including change may statute or rule. costs and of course this case, Wernke, asserting legisla- action. supra at 123. In this *3 Rowe, Rowe, Foley,
R. Kent Edmond W. Associates, Bend, Foley appel- & South lant. Stutsman, T.
David Stutsman & Mulva- Elkhart, Peterson, ney, Robert E. Roch- ester, appellees Eugene T. Braden and L. Braden. Janice HOFFMAN, Judge. Appellant-defendant American In- (American States) Company ap- surance peals entry summary the trial court's of judgment appellees-plaintiffs in favor of Eugene T. Braden and Janice L. Braden in complaint asking the court to declare responsible American States for underin- for losses sus- tained in an automobile accident. pertinent appeal facts to this disclose 4, 1990, May Eugene that on injured in an automobile accident when the van was struck from behind a car driven Jason McGuire. The van had by Chrysler been manufactured Corporation pursuant consign- which to a agreement sent the vehicle to Elk Enterprises, ("Elk"), Inc. located in Elk- hart, Indiana, so that a package conversion could be added to the van. At the time of being the the van was delivered to Anderson-Dodge, Rockford, Inc. of Illinois. began driving April for Elk in of employee 1988. Braden was not an of per job but was hired on a specifically purpose for the delivering vans. When deliver, a driver given van the driver was with a dealer license plate. Drivers who delivered vans for Elk basis, regular Braden, on a per- like had a plate assigned manent dealer to them they they used on vehicle were assigned registration to deliver. The presented sole issue for re taped to back plate was the trial court erred view is whether and showed judgment granting summary favor of Elk. Braden company for Bradens, holding mo that underinsured him a carry with also coverage was available to the Bra- torist an inde- stating he was form signed of insurance issued dens under van delivery of Elk driver pendent purpose to Elk. The by American States - that the vehicle products, conversion litiga is to terminate summary only for used plate were to be license there can be no factual dis tion for which to Elk's delivering vehicles purpose can determined as a pute and which dealers, during the course v. American matter of law. Chambers by Elk's insurance covered delivery he was *4 Air, Ind.App., 577 Inc. Trans 612, 614, Summary N.E.2d trams. denied. designated if the judgment appropriate accident, the date of On the that there is no evidentiary matter shows under a States through insured American any material fact and genuine issue as policy providing insurance commercial moving party judg is entitled to that the an liability coverage and automobile of law. This Court's ment as a matter endorse- is the same as that used standard of review (1,000,000)dol- million providing one genu there is a by the trial court: whether part, premium In in lars moving whether ine issue of fact and mo- charged for as a matter of is entitled to party rated on a coverage was torist New Tax Com'rs v. law. Bd. State plate basis. (1992), Ind.App., N.E.2d 585 Energy Co. 12, 1991, brought the Bradens On June 38, 39, Summary judgment trams. denied. for to recover against action McGuire appeal this if it is sustaina affirmed on will be as a result injuries theory suffered found in the personal any ble subsequently designated Bradens to the trial evidentiary matter accident. Ameri- complaint to include 56(C). their amended Trial Rule court. Ind. insurer, Acci- States, Elk's and General can provisions of an insurance Company, which dent Insurance rules of subject to same policy are vehicle, contending personal
the Bradens'
as are other
interpretation and construction
American
underinsured.
McGuire was
that
Summary judgment based
terms.
contract
that
it was liable
denied
States
of a contract is
deter
upon construction
Bra-
to the
motorist benefits
underinsured
law,
con
mination,
that
as a matter
cross-
and a
filed a counterclaim
dens and
ambiguous that resort must
tract
is not so
Elk.
Accident and
against General
claim
conflicting
evidence
extrinsic
made to
be
mo-
Thereafter,
filed its
American States
meaning. Peter
the contract's
ascertain
de-
seeking a
summary judgment
tion for
and Cas. Ins.
Fire
son v. Universal
policy of insur-
that the
claratory judgment
An
1311.
ambi
Ind.App., 572 N.E.2d
no underinsured
ance
per
only if reasonable
found
guity will be
Bradens
Bradens. The
coverage for the
would dif
reading the contract
upon
sons
motion
response and a cross
filed a
terms;
then
an
meaning of the
fer as
simply be
declaring American
summary judgment
not established
ambiguity is
cov-
underinsured
provide
interpretation
States
an
party asserts
one
cause
opposing
denied
contrary to that asserted
The trial court
erage
to them.
granted the
motion and
v. Cox
States'
Mut. Ins. Co.
American
Meridian
party.
959, 961,
de-
summary judgment
(1989), Ind.App.,
motion for
Bradens'
ambiguity,
re-
is an
If there
that American States
termining
trans. denied.
most favor
interpreted
cover-
be
policy
should
for underinsured
sponsible
whereas,
insured;
losses
clear and
holder Elk for
through
policy
age
ably
policy
in a
should
language
unambiguous
American
by the Bradens.
sustained
meaning.
ordinary
plain
given appeals.
now
"A. COVERAGE
(1992), Ind., 587 N.E.2d
Ins.
Tate v. Secura
pay all
the 'insured' is
668.
1. We will
sums
legally
compen-
to recover as
entitled
argues
the trial
American States
satory damages
from the owner or
Bradens' mo-
granting
court erred
an 'uninsured motor vehicle'
driver of
specifi-
summary judgment. More
tion
motor
...
or an 'underinsured
vehicle'.
the Bradens are
cally, it contends
B.
AN INSURED
WHO IS
motorist benefits
to underinsured
entitled
1. You.
policy of insurance issued
under the
individual,
you
any 'family
an
2.
If
are
as an inde-
States to
because
member.!
Eugene
driver
pendent contract
'occupying' a covered
Anyone
else
defined
neither an "insured" as
temporary
substitute for a
'auto' or
a "covered" vehi-
policy nor was
The covered 'auto'
covered 'auto'
cle.
because of its
must be out of service
4, 1990, the
May
date
On
breakdown,
repair,
servicing,
loss or
Elk a com-
had issued to
destruction.
mercial automobile
Anyone
damages
he or she is
garage liability
providing
form
included a
'bodily
recover
entitled to
because
*5
liability
(1,000,000)
million
dollars
one
by another
'in-
injury'
sustained
providing
an endorsement
coverage and
"
sured."
(1,000,000) uninsured/underin-
million
one
to the named
The term "You" refers
II of the
coverage. Section
Enterprises
policy,
under the
"Elk
insured
Form,
provides
which
for
Garage Coverage
liability
Inc." Both under
part:
liability coverage, states
endorsement
and
"A. COVERAGE
is further
ex-
definition of "insured"
legal-
'insured'
pay all sums an
We will
partners, employees,
include
di-
panded to
-
damages because of
ly
pay
as
rectors,
act
and stockholders of
while
damage'
injury'
'property
to
'bodily
or
duties. Bra-
ing
scope
of their
within
applies caused
which this insurance
independent
an
concedes that
den
resulting
'ga-
from
'accident' and
an
at the
and not a named insured
contractor
rage operations....'
undisputed
it is
time of the accident.
an "insured"
that Braden was not
AN
1. WHO IS
INSURED
portion of the
paragraph one of either the
following are 'insureds' for
a. The
Form,
for lia-
Coverage
providing
Garage
'autos:'
covered
thereto
bility coverage or the endorsement
(1)
covered 'auto.'
You
motorist
uninsured /underinsured
providing
Anyone
using
(2)
else while
Y
to be a
does Braden claim
nor
you
permission a covered 'auto'
your
insured, Elk.
of the named
family member
own, hire or borrow...."
Paragraph three of the uninsured /under-
Garage Coverage Form
VI of the
Section
defines an
motorist endorsement
-"garage operations" to include "...
defines
"cov-
occupying a
anyone
as
else
"insured"
ownership, maintenance or use of
argues that a
ered auto." American States
I of this Cov-
indicated in SECTION
'autos'
purposes
auto" for
"covered
unin-
'Garage
'autos'
erage Form as covered
coverage is
motorist
sured/underinsured
operations nee-
operations' also include all
policy to include
by the insurance
defined
garage
to a
business."
essary or incidental
As
owns.
only those autos
out,
item two of
points
Garage
under the
insurance
of the insurance
by an
declaration section
Coverage
is modified
endorse-
Form
coverages and cov-
ment,
is a schedule
February
entitled which
effective
AND UNDER-
auto" for
autos,
"INDIANA UNINSURED
a "covered
identifies
ered
COVERAGE."
MOTORIST
uninsured motorist
purposes of
INSURED
cov-
presumably underinsured
and
provides:
The endorsement
covering
during
of vehicle
22 is de-
borrower
Symbol
symbol
erage, by a
loading
unloading).
and
you
"only those 'autos'
as
[Elk]
scribed
argues that
Thus, American States
own."
Here,
Braden was driv
the van
a con-
by Braden was
van driven
since
ing
the time of the accident was a con
at
and not owned
pool vehicle
signment
signment pool vehicle. Pursuant
pur-
Elk,
not an "insured"
Elk entered into
consignment agreement
of uninsured/underinsured
poses
Chrysler Corporation, upon receipt
with the
that the trial
Braden counters
coverage.
consignment
accepted
vehicle Elk
cus
of a
oc-
that he was
correctly determined
court
tody
responsi
Elk was to assume
thereof.
auto,"
defined in
as
cupying a "covered
bility
maintaining appropriate
liability section of the
paragraph two
damage
physical
and
vehicles
Form, hence, making him
Garage Coverage
agreement
Elk. The
further
delivered to
entitling him to underin-
an "insured"
indemnify Chrys
provided was to
sured
Corporation
provide liability insur
ler
injuries
persons
to
or loss or dam
ance for
language which
Any insurance
use,
age
property in connection with the
to
contrary
is
statutory protections
dilutes
consignment
storage
operation
Peterson,
at
public
See
relinquish
right
Elk did not
vehicles.
motorist statute
The uninsured
dominion and control over a con
exercise
unin
policy limits
if an insurance
violated
point in
signment vehicle until that
time
sured(/underinsured)
protection
speci
vehicle was delivered to a
when the
qualify
otherwise
persons who would
as to
(dealer).
purpose in
purchaser
Elk's
fied
liability purposes.
insureds for
obtaining
vehicles was
Id.;
compensation
equipping
receive
(1992), Ind.App.,
*6
Whitledge v. Jordan
Elk
units.
can be
vans with conversion
887,
884,
trams. denied.
of the vehicles in
considered a "borrower"
Therefore,
determine
this Court
and,
therefore,
consignment pool,
its
qualified for benefits
Braden is
whether
driving
the time of the
at
van
of the insurance
liability
section
within the definition of a "cov
accident fits
liability
Paragraph
see-
policy.
two
liability
auto" under the
section
ered
anyone using
an "insured" as
tion defines
Braden meets the
an "auto" which is
permission
Elk's
with
"insured,"
he is enti
of an
definition
Elk.
owned,
by
or
hired
borrowed
motorist
tled to uninsured
policy issued
coverage under the insurance
International
Third New
Webster's
Elk.
American
to
by
States
as:
Dictionary defines "borrow"
another,
im-
temporarily from
"to receive
that
American
contends
States
expressing the intention either
plying or
Ed.)
(1988
does not
27-7-5-2
IND.CODE §
or of
returning
thing
received
provided un-
Bradens be
require that the
the lender."
equivalent
to
giving
American
motorist benefits.
derinsured
International Dictio States
Third New
the van was not
argues
Webster's
that since
garaged
in
principally
registered
Likewise,
1976).
(G
nary
& C Merriam Co.
defined the term "borrower"
does not
this Court has
27-7-5-2
IND.CODE
§
uninsured/un-
has,
require it to make available
permission of the
"who
with
as one
the date
coverage. On
proper
motorist
owner,
possession of the
derinsured
temporary
accident, however,
registered deal
Ins.
purposes."
own
Protective
a
ty for his
to
by
of Indiana
(1981),
plate issued
the State
Ind.
er
Bottling Co.
Co.
Coca-Cola
660,
656,
Also, American States
trams. denied.
App., 423 N.E.2d
the van.
Elk was on
27-
that IND.CODE
correctly points out
"borrower,"
must have
person
§
a
To
abe
only to
applies
in 1987
vehicle;
as amended
con 7-5-2
possession
possession of
after De
first issued
policies of insurance
right to exercise dominion
noting the
(definition
(ss).
81,
391-1987
the vehicle.
id.
P.L.
control over
cember
1987. See
CJ.
was
policy of insurance
State's
liability American
automobile
within
"borrower"
American based
April
Elk on
part
issued to
in
on the
of dealer
number
plates
to Elk. The dealer
license
issued
on
Farm Bureau
relies
United
States
Ind.App.,
plates could
used on either conversion
v. Lowe
Mut. Ins. Co.
5
consignment
a
vans Elk had received on
denied,
and Inman v.
N.E.2d
trans.
or on vehicles
owned.
Ind.App., 584
Ins.
Farm Bureau
denied,
support
to
trans.
date
a dealer
On the
required to make
that it was not
contention
by the
of Indiana to Elk
plate issued
State
available uninsured/underinsured
consignment
affixed to the
vehicle
equal
limits
to
bodily injury
coverage with
assigned
driving.
had
coverage
bodily
the insured's
plate to Braden which
permanent dealer
injury.
for Elk.
on
vehicle he delivered
used
(insurer
Lowe,
167-168
583 N.E.2d at
See
plate
taped
registration
uninsured or under-
required
not
to offer
indicating
plate
the back of
coverage
at
the in
coverage
issued
Ameri-
had insurance
limits);
bodily injury
sured's
compliance
with the laws of
can States
Inman,
The intent of the the 1987 amendments to IC 619 Elk, 27-t-5-2, ties, provide required pro 4 & insurers to coverage coverage vide underinsured motorist as re is drivers of Elk's vehicles quired policies therein and when came policy from the also evident up January renewal after declarations. Thus, whether the us was item nine of the before Under ambiguous point. At the time coverage is beside the injury in dealer license basis. of Braden's is rated on provide unin him with underin- premium charged for motorist's since he was sured sured/underinsured purposes of deliver- clearly an insured ‘ ing the van. BERADI, Sr., Buchanan J. Cecil
Michael Buchanan, Appellants- Lela N.
Defendants, WHOLESALERS,
HARDWARE
INC., Appellee-Plaintiff.
No. 02A03-9805-CV-154. Appeals of
Court of
Third District. 16, 1993.
Dec. 16, 1994.
Rehearing Denied Feb.