*1 INSURANCE MUTUAL CENTRAL

COMPANY, Appellant,

v. INSURANCE MOTORISTS MUTUAL COMPANY, Appellee. No. 49A04-1405-CT-214. Appeals of Indiana. Court Dec.

Michael Michmerhuizen, H. Robert T. Keen, Jr., Fitzharris, Kevin K. Barrett & LLP, McNagny IN, Fort Wayne, Attor- neys for Appellant.

Richard A. Rocap, Kristen V. Moore- head, LLP, Roeap Musser Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Central Mutual Insurance Company (“Central”) appeals the trial court’s order denying its motion partial summary judgment granting par- motion for summary tial judgment by filed Motorists (“Motorists”). Mutual Insurance Company Central raises one issue which we revise and restate as whether the court erred in entering partial summary judgment in fa- vor of Motorists. affirm. We AND FACTS PROCEDURAL HISTORY 5, 2011, July On Alvin Pilotte in- jured in a motor allegedly vehicle collision negligence caused Bobby Scot- collision, ten. At the time of the Pilotte was operating a truck owned Kenworth Inc., (“Kenworth”) Indianapolis, with permission Kenworth’s and in the course employment of his Wampler’s with Ser- vices, Inc. (“Wampler”). Central insured Kenworth under “Commercial Pol- (the icy, Policy No. 8629727” Poli- “Central Id. at regard to” Pilotte’s claims. cy Ken- with Appendix at 213. cy”). Appellant’s or automobile garage worth had no on that date. Motorists in effect 10, 2014, the court held On March li- an “automobile Wampler under insured partial sum- hearing on the motions Policy No. 6035-33-276122- ability policy, 21, 2014, the On March mary judgment.1 *3 (the at 215. Policy”). Id. “Motorists 80E” partial for motion court denied Central’s Policy the Motorists and Both Central granted Motorists’ summary judgment and motorist cov- underinsured Policy provide summary judgment. partial for motion $1,000,000. The Cen- erage with designated Motorists The court stated that its that Policy provides tral the ab- demonstrating sufficient evidence Policy provides the Motorists and primary, material fact genuine issues of sence of coverage is excess. that its Policy provide shall “that the [Central] 2013, 27, an in mat- Pilotte filed this [Pilotte] April

On ter, damages against Policy pro- for shall complaint and [Motorists] amended Motorists, limits Scotten, May coverage, only On when the and Central. vide excess reached, Answer, 2013, Policy an Amend- have been 2, filed of the [Central] Motorists therefore, Declaratory Judgment is entitled Complaint [Motorists] ed at 10. against Scotten. Motor- a matter of law.” Id. judgment as and Crossclaim that the court issue a decla- requested ists 21, 2014, filed a motion April On Central between the Cen- ration as to 21, March 2014 order. certify the court’s Policy. the Motorists Policy tral 2014, May granted the court Cen- On 15, 2013, 15, 2014, filed its an- May May On On tral’s motion. an affirmative alleged as defense interlocutory appeal, swer and an filed a motion for issued to Kenworth was granted the motion to ac- and this court liability policy” as defined in Ind. “garage cept jurisdiction. S—9—6(b) requested § 27— declaring that judgment issue a

the court DISCUSSION Wampler Policy Motorists issued to The issue is whether the trial primary underinsured motorist entering partial summary court erred recovery to Pilotte and that no Summary in favor of Motorists. judgment Policy may made under the Central only where there appropriate judgment all available to until the limits of of material fact and the genuine is no issue Policy the Motorists had Pilotte under judgment entitled to as a moving party is exhausted. been 56(C); matter of law. Ind. Trial Rule 1, 2013, Mangold Dep’t rel. v. Ind. Mangold a mo- ex October Central filed On of (Ind. Res., 970, 973 Natural 756 N.E.2d summary judgment and partial tion for 2001). All and reasonable inferences Policy facts argued that the Central was excess from those facts are construed coverage af- drawn to the underinsured motorist Mangold, nonmovant. favor of the forded to Pilotte under the Motorists Poli- 12, 2013, summary of a N.E.2d at 973. Our review cy. On December Motorists-filed to those mate motion is limited response partial judgment and cross-motion for Id. In designated to the trial court. requesting that rials summary judgment ruling on a motion reviewing a trial court’s that the “is court declare affirm on summary judgment, to the Poli- position [Central] an excess hearing. transcript The record does not contain any grounds supported by the Indiana Tri- and Indiana’s Lease Statute, al Rule 56 materials. Catt v. Bd. 27-8-9-9. Motorists Cnty., argues Commr’s Knox 779 N.E.2d the Garage Liability Statute is dis- (Ind.2002). entry specific findings cretionary and that facts of “[t]he this and conclusions does not alter the nature matter do present circumstances ne- summary judgment of a which a judg- cessitating application of the Indiana Ga- ment genuine entered when there are no rage Liability rather, but clear cut issues of material fact to be resolved. complementary policy provisions that ren- Strunk, Rice v. 1283 der the Indiana Garage Liability inapplica- (Ind.1996). The fact parties that the make Appellee’s ble.” Brief at 15-16. Motorists summary judgment cross-motions for does asserts logical that a reading of the two not alter our standard of review. Hart- policies together provides that Central will Acc. & Indem. Co. v. Dana Corp., primary coverage, after ford *4 285, N.E.2d the (Ind.Ct.App.1997), 291 Policy trans. the Central have been Instead, denied. we must each exhausted will coverage consider under the Motor- motion ists separately Policy be available against determine whether to claims the the moving party Policy. brief, is Motorists judgment reply entitled to its as a matter of law. Central contends that Id. Motorists asks this court to modify Garage the Liability Stat- Central argues that ute to limit application. its Statute, the Garage Liability This case governs requires that we provides that inter recovery under pret the insurance the and the rele Policy may Central not be made until vant statutes. A contract for the limits of all insurance is coverage available Pi- subject to the same rules of interpretation permittee lotte as a have been exhausted. as other contracts. USA One Ins. Co. that asserts this conclusion is not Life Nuckolls, 534, Ind. v. 682 537- N.E.2d changed by the fact that the (Ind.1997). Thus, 538 if language the provides is the is clear and unambig the Policy provides that its cov uous, it given plain should be its and ordi erage is excess because provi contractual nary However, meaning. Id. at 538. if sions which are in contravention of statute language the ambiguous, the is are unenforceable. Central asserts that may apply we the rules of construction in legislature had the intended that the terms interpreting the language. Id. When an of the statute could be contradicted ambiguity, contains an it applicable terms of the insurance policies, strictly should be construed it provided could have as much. Central insurance company. Id. A ambig also asserts that the statute mandatory uous if “susceptible it is to more than discretionary. and not interpretation reasonably intelli Motorists asserts that the application of persons gent would differ as to its mean Liability Statute in the context ing.” Id. of two non-conflicting policies clearly that establish the of those is a “Generally, an insurer has the matter of first impression and that right to limit its of risks and its Courts have opportunity had the to con- liability, doing and in so may impose ex strue other provisions conditions, ceptions, Indiana Mo- upon exclusions tor Primary Vehicle Coverage Insurance obligations its contractual that are not in Act, including Indiana’s public Owner’s consistent with policy.” Balagtas v.

22 (a) if the only motor 789, applies section (Ind.Ct.App. 795 This 910 N.E.2d Bishop, 2009) provided Family vehicle insurance Am. Mut. Ins. Co. (quoting Co., the motor vehicle is owner of 775 N.E.2d v. Mut. Ins. Federated liability policy. garage (Ind.Ct.App.2002)), trans. de under void “A contract will declared nied. (b) Notwithstanding section 7 of this actually contravenes a statute.” when it any coverage available chapter, Co., Family Id. Am. Mut. (quoting primary. permittee 1206). Unless the contract (c) may not be Recovery made otherwise, applicable all law liability policy until garage agreement is made force at the time coverage available to the limits of all agreement impliedly part forms a permittee have been exhausted. effect. any statement without 27-8-9-6(b) “[g]a- defines a v. Companies Knapp, Westfield rage liability policy” as: (cit (Ind.Ct.App.2004) pol- motor vehicle Geels, 643 N.E.2d ing Miller v. affords, coverage to named icy that denied), reh’g trans. (Ind.Ct.App.1994), in the of sell- engaged business insured denied, denied. trans. servicing, deliver- ing, leasing, repairing, statute, ing, testing, parking, road testing, interpreting When vehicles, but does not re- storing motor review a statute’s mean independently *5 to fer a motor vehicle ing it to the of the case apply and facts policy that affords to a Wingert, under Bolin v. 764 review. (Ind.2002). transporting used of 201, in the business If a statute is N.E.2d 204 hire. property for give we must the statute its unambiguous, “ meaning. plain clear and Id. A statute means coverage’ ‘Motor vehicle insurance susceptible if it is not to unambiguous any type described interpretation. more Elmer than 2(f).” 27-1-5-1, in IC Class Ind.Code Stanley, Inc. v. 744 Trucking, Buchta 27-8-9-6(c). 27-l-5-l(f), § § (Ind.2001). 939, If a statute 2,” describes insurance “CLASS multiple interpretations, we susceptible to loss, insure ex- “[t]o in must ascertain the try legislature’s liability resulting pense from and/or tent so as to interpret statute maintenance, use ownership, opera- and/or Bolin, that intent. 764 N.E.2d effectuate tion of automobile or other motor vehi- in presume legislature 204. We cle, line including complete coverage on application language logical tended motor ....” automobiles or other vehicles statute, unjust used in the so as avoid or any person means who is “‘Permittee’ Id. A should be absurd results. statute granted operate motor ve- permission whole, excessive avoiding examined as hicle of the motor vehicle.” the owner or upon meaning reliance a strict literal 27-8-9-6(d). does reading words. selective individual not contradict assertion that the Central’s Fund, Mayes Injury v. Second 888 N.E.2d garage constitutes liabili- 773, (Ind.2008). ty Pilotte was a permittee. or that Liability previous- Ind. that this court has Garage Indiana’s We observe 27-8-9-10, purpose “Garage ly is titled liabili- commented on of the Ga- In ty rage Liability Statute. Gen. Acc. Ins. coverage; per- as owner’s held: primary” Hughes, Am. v. provides: mittee’s Co. 1993, ... ... acknowledges I.C. enacted that the Policy pro- seeks to resolve the dilemma of the “cir- vides that its coverage is primary and cular riddle” as discussed in Indiana points to an endorsement titled “Indiana Underwriters, Ins. Co. v. American Inc. Underinsured Motorists Coverage,” which (1973) 261 Ind. 304 N.E.2d 787 states: and Indiana Ins. Co. v. Federated Mut. The Conditions changed are for Under- Ind.App., 83- insured Motorists Coverage as follows: 86, reh’g denied. The “circular riddle” 1. Other Insurance

develops when two or more Business Auto Coverage each contain an “other insur- Forms Primary ance” clause which and Other forces examination or And Insurance — application of the opposing policy’s pro- Excess Insurance Provisions in the prior visions to affording coverage under Truckers and Motor Carrier Coverage its own terms. Our supreme replaced court in Forms is by the following: American Underwriters solved the If there is other applicable insurance problem by holding that conflicting “oth- available under one or more policies er insurance” ignored clauses “are to be or provisions of coverage, the follow- and each prorated insurer is liable for a ing priorities of coverage apply. damage amount of the resultant not to Priority First case, exceed his In limits. such a there exists Uninsured primary liability.” dual Motorists Coverage Underwriters, Applicable American supra at the vehicle the “insured” short, (emphasis original). “occupying” at the time of the previously courts resolved the “circular “accident.” by finding riddle” conflicting clauses Priority Second mutually repugnant, disregarding them Any Coverage Form prorating insurance coverage affording Uninsured Motorists Cover- *6 policies. between the . age to the “insured.” 212 n. 6 (Ind.Ct.App.1999), a. Where there is no in- applicable trans. denied. surance available under the First The Policy Central is titled “COMMER- Priority, recovery maximum un- CIAL GARAGE Appellant’s POLICY.” der all coverage forms or Appendix 56. Under the “Direct Cover- Priority Second shall exceed age Options,” the option “Primary for In- highest applicable any limit of surance” is marked with an “X” and states: any one vehicle under coverage one checked, “If this box is Garagekeepers form or policy. Coverage is changed apply without re- gard your any or legal other ‘insured’s’ b. Where applicable there is liability for ‘loss’to a ‘customer’s auto’ and ance available under the First Pri- primary insurance.”2 Id. at 97. ority: option, 2. The box for the other "Excess Insur- tomer's auto’ an any on excess basis over ance,” checked, was not and the Central Poli- regardless other collectible insurance checked, cy Garagek- stated: “If this box is your whether the other insurance covers or eeprs Coverage applicable [sic] remains on a any other ‘insured’s’ or interest the interest of However, legal liability coverage basis. also Appellant's the ‘customer’s auto's’ owner.” applies regard your any without or Appendix at 97. legal liability ‘insured’s’ for 'loss’ to ‘cus- 1) coverage pri- on a providing under the limit of insurance mary basis. “occupy- the “insured” form or ing” under coverage under this cover- c.If this Priority shall in the First provided: form is age exhausted; and first be (1) basis, pay will On 2) recovery under all The maximum that must only our share of loss in the or coverage forms providing paid be under insurance Priority shall not exceed Second basis. Our on any limit for one highest applicable lim- proportion that our share is vehicle under of all liability bears to the total it of policy. form or liability for cov- applicable limits of only our share of the pay c. willWe on a basis. erage proportion is the “loss.” Our share basis, pay we will On an excess liability bears to that our limit that must only our share of the loss applicable all limits the total of paid under insurance priority. the same level of Our coverage on an excess basis. Id. at 135-136. lim- proportion is the that our share acknowledges that the Mo- also the total of all liability it of bears to torists cov- applicable Policy provides: excess. The Motorists erage on an excess basis. under this 2. The Limit of Insurance Id. at 48-49. by all sums coverage shall be reduced previously interpreted have We anyone who paid payable or or and Lease Stat- Indiana’s Owner’s Statute including all legally responsible, ute, are also included which Coverage this paid sums “Primary which is titled Chapter 27-8-9 LIABILITY Form’s COVERAGE. Coverage.” In Motor Insurance Vehicle Guaranty Langreck, v. Monroe Co. in the Busi- 1. OTHER INSURANCE (Ind.Ct.App.2004), the Garage Coverage ness Auto and the Owner’s Ind. court examined replaced by following: Forms is pro- which at the time applicable If there is other vided: or more available under one (b) permit- arising case from a coverage: provisions *7 a motor vehicle for which tee’s use of recovery maximum under all a. The motor owner of the vehicle has the coverage forms or combined the own- coverage, vehicle insurance high- not exceed the may equal but coverage er’s motor vehicle insurance any limit for one vehi- applicable est if both of the primary is considered any coverage poli- cle form or apply: following a cy coverage on either (1) vehicle, damage the time The at primary or excess basis. occurred, the operated was with with re- Any b. insurance the of the'mo- permission of owner a vehicle the Named In- spect to tor vehicle. not own shall be excess sured does (2) scope the The use was within collectible uninsured any over permission granted. the or underinsured motorists (c) here, may primary not un as the permittee expressly The recover insurer is any underlying other motor vehicle insurance listed as insurance in um-

der the coverage permittee policy. available to the brella insurer’s provided until limit of all coverage the Id. at 498. The court concluded that by the owner’s exhauste first primary policy insurer’s “overall remains d.[3] primary [another ex- insurer’s] true cess or umbrella in secondary, The court umbrel- including concluded adopted accordance with black-letter law la within insurance the definition jurisdictions in numerous and notwith- coverage” vehicle of “motor standing the Owner’s Statute.” the not purposes of Owner’s Statute was Id. at 499. the evident intent required by legislative statute,

behind the and indeed would lead Co., In Republic Old Co. v. RLI Ins. contrary expec- to an result absurd the 1004 (Ind.Ct.App.2008), brans, issuing purchasing tations of those denied, denied, reh’g the court ad- policies. umbrella insurance § dressed whether Ind.Code court in part upon at 498. The relied may Indiana’s Lease applied be between umbrella and primary differences determine insurance cover- expectations and the of insurers age primary between poli- with respect policies. and insureds to umbrella true excess 27-8- particular. cies in Id. The court stated: 9-9 provided: (a) legislature enacting

It is clear the claim When a arises from the opera- Statute wished to cov- simplify Owner’s tion of a motor vehicle leased under disputes erage competing pri- agreement, where written lease if under the mary insurers have “other conflicting agreement agrees pro- lessee coverage insurance” clauses that threaten to leave vide for damage resulting party operation vehicle, an injured without access to insur- from then his for an We do accident. the motor vehicle insurance not the statute primary. think was intended of the lessee is No claim force an umbrella insurer to ahead made pay any insurer, where, of a for the especially by available vehicle the lessor subsequently age permittee 27-8-9-7 to the available until currently amended 2010 and coverage provided by limit of all the own- provides: policy is first er’s exhausted. (a) (d) apply section arising This does to cases In a case from an owner’s use chap- section covered 10 or 11 of this a motor vehicle for which the owner of ter. has vehicle motor vehicle insurance (b) arising permittee's case from a coverage, the in- owner’s motor vehicle use a motor vehicle for which surance is considered of the vehicle vehicle owner has motor passenger claim made .coverage, motor the owner's vehicle. motor vehicle insurance is considered (e) passenger A in a motor apply: following if both of the (b) described in time a case subsection vehicle, damage at the time oc- *8 (d) any oth- not recover under arises curred, operated permission was with the er motor vehicle insurance of the owner of the motor vehicle. passenger to the limit available until the use of the scope The was within the passenger of all available to the granted. permission owner’s motor vehicle insur- under the (c) permittee may under The not recover ance is first exhausted. motor cover- other vehicle insurance ” Monroe (quoting at 1011 Id. policy.’ vehicle the motor until the 498). court The N.E.2d at Guaranty, 816 by the coverage provided exhausted, endeavor that “because concluded are for the vehicle lessee provisions different read opera- the (b) from a claim arises When hold that Indiana’s harmoniously, we Code that is used motor vehicle of a tion Stat- Statute, Owner’s like Indiana’s Lease transporting property of the business priority be- ute, determine only to applies a written and leased for hire the providing policies tween insurance agree- if under agreement, lease The court coverage.” Id. level of same agree as to lessee lessor and ment the Policy provided Republic Old held that the motor parties’ coverage of which Excess the RLI while coverage, primary coverage, insurance is Policy, and ISOP Umbrella Policy, the providing of then the Policy each offered Excess Specialty First and no claim coverage is that thus, and, the Lease coverage, excess true cover- may be made prioritize applied not be could Statute of the limits vehicle until for the age ahead of the policies the Excess Insurers’ exhausted. policy are that Policy. Id. at 1012. Republic Old Indiana’s that whether observed The court only between applies Lease Statute analysis in with the Old agree We ques- was a the same level ance on hold Langreck, and Republic Ins. Co. that and observed impression, tion of first Statute, Liability Indiana’s that Stat- and Lease Statute Indiana’s Owner’s and Owner’s Lease Statute like Indiana’s part are both materia and pari are in ute priority only to determine applies Insur- Primary Motor Vehicle of Indiana’s between coverages Id. at 1010. Coverage Act. coverage. The level of the same statu- “[t]hey each held that court states, and Policy clearly Cen determining prior- tory tiebreakers concedes, coverage is excess. that its tral coverage in circumstances ity of insurance Pol that the Central concedes also not coverage might where primary. icy provides Id. The immediately clear.” otherwise be Thus, say that both we cannot of note only difference that the court noted that the same level provided “the circumstances between statutes which Ind. presented a riddle has been of Ind. application they apply: which intended to solve. 27-8-9-10 requires permit- 27-8-9-7 Code Section the trial say that Accordingly, we cannot automobile, application tee’s use of an summary judgment entering erred in court operation requires 27-8-9-9 of Section in favor of Motorists. at 1010- vehicle.” Id. a leased motor

1011. CONCLUSION that that persuaded The court was reasons, we affirm foregoing For the sufficient to significant or difference was motion for of Motorists’ grant court’s trial Guaranty holding in Monroe “ignore our summary judgment. that, disputes be- coverage priority ‘in Affirmed. purports insurer tween a and an circumstances in limited excess J., BRADFORD, concurs. or um- a true excess insurer who issues BARNES, J., with in result concurs umbrella liability policy, the brella separate opinion. essentially primary always excess to

27 BARNES, Judge, concurring result. cable law in force at the agree- time the ment is impliedly made part forms a fully by I concur the result reached agreement without statement to that However, my colleagues. I reach that re- Also, effect.” it is clear to me that the differently. sult primary purpose of our insurance laws is Primarily, my colleagues, unlike I do not protect public, given “the frequently place much reliance upon our decisions in unequal bargaining power between insur- Langreck Republic. and Old Those cases companies ance and insureds.” Justice v. specifically dealt with the fundamental dif- Co., Am. Family Mut. Ins. ference between true excess or umbrella (Ind.2014). 1176 permitted Insurers are policies versus to limit liability their in any manner con- that purport to be excess in sistent with public objectives expressed in Langreck, limited situations. we dis- state statutes. Id. I do not believe such length particular cussed at hallmarks statutes can be used to correct an insur- of umbrella insurance and how ance company’s drafting that possibly ex- they primary liability policies. differ from panded liability beyond their the minimum Langreck, See 816 N.E.2d at 494-96. Ul- required by statute. To contrary, that, timately, we held “in coverage priori- general appears be, rule “Insurance ty disputes between a insurer companies and insureds contract for purports to be excess in limited cir- coverage in excess of the coverage re- cumstances and an insurer who issues a quired statutes, by particular particularly true liability policy, excess umbrella the when the statutory provision is for the policy always umbrella excess to the es- insured, benefit of the sentially primary policy,” regardless of such broader policy does not statutory priority provisions for automo- violate public policy.” 44 C.J.S. Insurance Here, bile policies. Id. at 498. p. (citing Standard Mut. neither policy at issue is an poli- umbrella Pavelka, Ins. Co. v. F.Supp. cy. Both policies are essentially primary (S.D.Ind.1983) law)). (applying Indiana policies with limited “other insurance” or Although policy Central’s is labeled a excess clauses. “garage” policy, it is unambiguously writ- that, Central does deny virtue of ten in such way the plain and unambiguous language in underinsured motorist coverage to Pilotte both policy its and Motorists’ policy, Cen under the facts here. Presumably, Cen- policy tral’s provides primary underin- tral knew what it was doing when it wrote sured motorists to Pilotte while way its in that charged Ken- policy only provides Motorists’ premiums excess un- worth accordingly. Conversely, derinsured motorists coverage. There is Motorists’ unambiguously provides Pilotte, no conflict excess coverage between the terms of the poli so that coverage is not cies. Central wants to be “available” to him under saved from the language of the Garage Liability result of its Stat- own drafting by the ute until Central’s is exhausted. As Liability claiming that the such, join I majority voting to affirm statute requires its to be excess the trial granting court’s par- Motorists’ only. It cites proposition cases for the summary tial judgment motion. that insurance cannot violate stat ute. I note that in Companies v. Westfield (Ind.Ct. Knapp, 804 N.E.2d denied,

App.2004), said, trans. “Unless otherwise, contract appli- all