*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, 584 N.E.2d at 568. By basing premi- the State of Indiana. however, Inman, factually are Lowe and charged for uninsured/underinsured um present case. distinguishable from the coverage Here, the issue is not whether an insured basis, pro- American States was effect required provide uninsured/underin- viding coverage for the vehi- coverage or the amount of American contention that cles. States's Rather, coverage required. the issue is coverage applied only when the dealer here, provides whether the affixed to a vehicle which Elk plates were owned, is untenable. equal in- bodily injury limits The trial court's decision that the insur- liability coverage bodily injury, sured's pro- ance issued persons who protection limits as to exclude underinsured motorist vided qualify as insureds for would otherwise proper. Braden when the van was Although American liability purposes. is affirmed. of the trial court to offer States was did, argue that the and it cannot now *7 Affirmed. Lowe, policy denied CJ. (although at 169 the 1982 ver- CONOVER, J., concurs. did not mention underin- sion of the statute also did sured GARRARD, J., concurs in result with parties free to contract prohibit it and were opinion. desired). they if Al coverage so for such required comply with the though not GARRARD, Judge, concurring. 27-7-5- amendments to IND.CODE 1987 § 2, policy issued intent of the insurance I concur in the result reached comply that it by American States was view, majority. my In stated in dissent of the statute as amended. provisions (1993) App., Ind. Millikan v. USF. & G. contracting par

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.