Erie Insurance Exchange v. Stephenson

punitive Accordingly, sanctions appeal. punish EXCHANGE, of merit imposed not be lack ERIE INSURANCE argu- Appellant-Plaintiff, appellant’s contentions and

unless the utterly plausibility. of all devoid ment say that Malone’s Because cannot utterly plausibili- arguments are devoid all M. STEPHENSON Dawn damages pursuant Appel- ty, an award of Huser, Appellees-Defendants. 15(G) inappropriate. Rule be late would No. 32A01-9606-CV-207. pre Under the circumstances Appeals Court of of Indiana. case, attorney fees in this an award sented § would also pursuant IC 34-1-32-1 Dec.

inappropriate. appeal present faith on

Procedural bad party flagrantly disregards requirements

form content Procedure, Appellate omits

Rules appearing in the

misstates relevant facts

record, appearing to have and flies briefs manner

been written in a calculated expenditure time

require the maximum party review- opposing and the However,

ing can consti- court. conduct procedural opposed substantive

tute objectionable though faith

bad even being

conduct falls short of “deliberate

by design.” depends upon circum- It given

stances of the case. Thibodeau, 1205, 1211

Watson We do in this procedural

not find such bad faith

case.

Judgment affirmed.

CHEZEM, J. concurs.

SULLIVAN, as to 1 and J. concurs Parts Part concurs as to result

Patricia Douglass, Carusillo, A. Thomas M. Wade, Indianapolis, Smith & Appellant- for Plaintiff. Conour, Baker,

W.F. Rex E. Conour Doehrman, Indianapolis, Appellee for Dawn M. Huser.

Gary Wood, Danville, L. Appellee for Da- ryl Stephenson.

OPINION NAJAM, Judge.

STATEMENT OF THE CASE (“Erie”) Exchange appeals Insurance from the trial court’s denial of its motion for summary judgment and from the court’s grant judgment in favor of Stephenson and Dawn Huser. This case arose when Huser was filed activity. eye struck in with a Huser was Stephenson who resided on lawsuit injured. and was accident occurred. bottle rocket where the insurer, Erie, to Ste- denied 17, 1994, years almost later On June declaratory brought judgment phenson age of and after Huser had reached the summary judg- Erie then moved action. Stephen- majority, against a lawsuit she filed no that it owed ment and asserted injury. Stephenson son to recover for her indemnify Stephenson because Ste- defend or papers This suit to Erie. was forwarded the by covered the was not an individual phenson first that Erie notice had received he policy insurance because homeowner’s accident. policy’s comply with the notice had failed Stephenson Both requirements. AND DISCUSSION DECISION summary judgment

filed cross-motions for Erie to defend and arguing was of Review Standard Stephenson. The court indemnify denied Stephenson’s granted motion summary judg reviewing a motion for motions. Huser’s ment, applies the same standard this court part, Walling Appel reverse court. applied by affirm the trial We (Ind.Ct. Co., 641 N.E.2d 648-49 remand. Serv. Summary App.1994). judgment shall be granted designated evidentiary matter if “the ISSUES genuine no issue as to shows that there is for our presents four issues review moving party material fact and restate as: which we consolidate and law.” judgment as a matter of is entitled to a an Stephenson was individual 1. Whether 56(C). trial Ind. Trial Rule Neither policy. under the covered court, reviewing be nor look complied specifically designated to yond the evidence 2. Whether Med. In provision policy require so as the trial RWB court. Seufert indemnify Partnership, him.1 to defend and I Ltd. Properties come 1070, 1072(Ind.Ct.App.1995).

N.E.2d FACTS insurance The construction of written 1987, Stephenson into moved the home which sum contract is a law for (“Grandmoth- grandmother his maternal mary particularly appropriate. judgment is er”), moved about one- and Grandmother Group Pennington Family American Ins. parents’ away Stephenson’s mile into fourth (Ind.Ct.App.1993). If made so that Ste- home. The switch was unambigu pokey’s language is clear and (Grandmother’s daughter) mother phenson’s ous, ordinary given plain its it should who take better care of Grandmother could N.E.2d meaning. Ins. 587 Tate v. Secura paid poor health. (Ind.1992). However, there where pay rent. utility but did not Grand- bills policies are to be ambiguity, insurance is insurance maintained homeowner’s mother strictly insurer. construed paid estate taxes on the Erie and real Kiger, Ins. Co. v. American States property. (Ind.1996). rule is This cov excludes particularly true where 4,1990, aged then July Stephenson, On by fact that erage driven and is entertaining friends the resi- some its terms and foists insurer drafts laid rockets on the street He bottle dence. com upon the consumer. “The them and launched in front of house buy their forms policies; we panies write the horizontally attempt to shoot them an (quoting buy insurance.” legs who was do a friend stand- between Liggett, 426 Huser, Economy Ins. v.Co. away. American another ing some distance 136, 142 (Ind.Ct.App.1981)). 16, joined in the aged friend who then We fees in action. deny requests. this Both Huser request attorney's Coverage Issue One: Insurance Household is not word of art. Its mean- ing is not confined within certain common- Erie first contends that ly universally accepted known and limits. was not home covered under Grandmother’s True, frequently designate is used to pro owner’s insurance The relevant blood, persons marriage related provided vision states together family single dwell under a certain of the homeowner’s “house residents roof. But it has been said also that mem- 2 Specifically, hold.” Erie claims that cover family of a need bers all cases reside age should be denied because under a common roof in order to be longer part was no house Grandmother’s deemed a household. hold from as she moved the residence. Id. 170 A.2d at 804 As in Initially, we note that “household” is not Mazzilli, we conclude that is no there re- Citing defined in insurance contract. quirement that members of a household live Neumann, Allstate Insurance Co. 435 Thus, under same roof. See id. at 807. argues (Ind.Ct.App.1982), 591 possible it is to maintain two households or Stephenson that of Grandmoth- to live as a of one member household and still er’s the two household because did live be the head” of separate “domestic a house- Neumann, under the same roof. In stat- we If hold. Erie had wanted to invoke the ed: espouses, definition which it now it could word have defined the “household” consisting A household be defined as definition, policy. strictly Without a we con- of those who dwell roof under the same strue term Erie. compose family; and a a estab- domestic lishment. New Here, Websters International Stephenson was a lineal descendant Dictionary, Unabridged, 2nd Ed. The purchased of Grandmother insur- synonymous term been has said to Stephenson on her ance house. lived in the “family” broader, but in that it includes at all house relevant times. Grandmother attendants; or servants all who under Stephenson, functioning as members of one domestic head. family, places: the same traded Grandmoth- er moved out of house her for health reasons added). There, (emphasis Id. at 593-94 we moved in. Under these cir- trial affirmed the court’s conclusion that a cumstances, we conclude that houseguest/friend not a of member awas member of Grandmother’s household. purposes insured’s household for of We hold that was an individual liability policy. under an automobile Id. at policy covered under that Erie issued to 594. turn Our decision in Neumann did not Grandmother. meaning on the “under the roof’ of same Timely Issue Two: Notice Claim of “household,” interpret that we decline single, case to a have established exclusive duty Erie also asserts it had no Kradjian definition of the word. See indemnify Stephenson defend or because he Co., American Mut. Ins. 206 A.D.2d failed comply require- Mfrs. notice (N.Y.App.Div. 615 N.Y.S.2d ments The insurance contract 1994) (courts traditionally have characterized provisions. at issue In contains two notice a ambiguous term of “household” “devoid paragraph entitled ‘Tour Duties After A meaning”) fixed Loss,” provides: requirement first notice there is an accident or occurrence When Instead, agree we with the decision anyone protect we will: Jersey Supreme New Court in Mazzil (a) notify Agent, writing, our us or Casualty li v. Accident & Insurance Co. of possible, stating: soon as Winterthur, Switzerland, 35 N.J. 170 A.2d (1961) number; your which that: 1. stated name wards; (1) provision 2. The relevant states: relatives and (2) persons anyone "anyone protect” you other in the care we fol- means lowing your protect.... residents of household: time, parked car a place, and circumstances of crashed his father’s into truck occurrence; nearby person standing and struck did not the accident company until notice the insurance per- and addresses 3. names months later. at over seven sons and witnesses. instances, held, effect, court added). (emphasis The second Record at 167 notice was unreasonable as a matter of law. “any papers that provision relate directs (vacating appeals See id. at court of or occurrence” be forwarded to the accident decisions). disputes party Neither “promptly.” to Erie fulfilled interpreted our However, requirement. second policy provision homeowner’s which notify argues that did not to provide the insured notice “as soon as possible company the accident as soon as bodily injury possible” the event provision. pursuant to the first notice Shelter, damage. 506. The insured informed the Shelter requirement The notice of an insur company accident months ance is a material essential surveyed later. Our court cases in which the contract. Miller v. delays shorter duration were found unrea (Ind.1984). notify sonable concluded that the 22-month compa the insurance precedent condition also unreasonable as matter ny’s liability to its insured. Id. at 260-61. 507; Littlepage, law. see Sutton v. 669 prejudice is created the insured’s Where (two- 1019, N.E.2d 1023 noneompliance policy’s provisions, year delay presumption in notification raised company is of its lia the insurance relieved Likewise, prejudice). that we conclude bility policy. Id. at the 261. under satisfy did not under the asked to determine first We possible” as notice “as soon pro Stephenson fulfilled his whether four-year delay the and that the between possible vide notice as soon as after the Stephenson’s the accident notification of accident occurrence. The term “as soon or accident unreasonable as matter possible” as has been defined as “notice with law. after accident in a reasonable time” the Still, that Stephenson argues his no Barron, Ins. occurrence. Shelter Mut. Co. v. timely he not tice to Erie was in that did 503, (Ind.Ct.App.1993), trans. expect legally responsible Huser him to hold dispute, the facts are not in denied. When injuries. However, question the is for her ques what reasonable notice is constitutes in that not whether believed to decide. tion law the against suit him or whether Huser would file In Huser was when bottle surprised he he when was served with by Stephenson struck her the rocket fired company The insurance complaint 1994. Nevertheless, Stephenson not eye. did noti- possible as was entitled to notice soon fy company the until almost insurance regardless of Ste after the accident whether Miller, years after the accident. phenson anticipated that a claim would supreme our court considered (cit Miller, 463 N.E.2d at 262-63 filed. See question of an acci- the of reasonable notice ing Rynearson, 507 Cas. Ins. Co. v. Ohio cases, three two of dent when it reviewed (insurer (7th Cir.1974)) enti F.2d 578-79 initial notification to the which dealt with judg prompt tled notice whether first, an accident. insurer after claim of dam ment defendant believed that Williams, the in- Indiana Insurance Co. arise). ages would driving an whole sured caused accident here. inquiry Our does not end give but the influence of alcohol did Even if did not reasonable compa- to his notice of the accident notice, recovery un will not bar later that failure ny approximately until six months prejudice suffers Id. at der the unless Erie against was filed him. 259. a lawsuit Miller, delay. second, insured as a result See In the Miller v. an Shelter, 265-66; physical N.E.2d at see also 615 would have affected the features Further, N.E.2d at Erie must actual basic While show accident scene. fact prejudice Stephenson’s from that fired a unreasonable bottle rocket accident, delay providing eye dispute. about Huser in struck is not prejudice ability prepare ade- an pro While have not where, quate presumed defense can be pre sufficient vided evidence to rebut here, delay is an in notifi- there unreasonable law, sumption prejudice as a matter of Miller, cation. See at 265. The they have set some forth evidence rebut simply presumption that if means presumption prejudiced by that Erie was unreasonable, giving notice is delay, namely, the unreasonable that all wit injured party the burden falls on or the have nesses been located. See id. at 265. It produce prejudice insured to evidence considering is that in well-established a mo actually particular did not occur in the situa- summary judgment, tion for we must liberal Thus, judg- tion. See id. in this ly designated evidentiary construe all materi action, Stephen- upon ment was incumbent non-moving party al in favor of the and we son and Huser to set forth “some evidence” moving party. resolve doubt presumption to rebut the suf- Erie had Koenig Bedell, 454-55 prejudice right fered of its to conduct a (Ind.Ct.App.1992). appears Even if it timely adequate investigation. See id. non-moving party will not succeed at As Miller: stated trial, summary judgment inappropriate is introduced, Once such evidence material undisputed where facts conflict or question becomes one for the of fact trier conflicting lead to facts inferences. Id. at any prejudice to determine whether actual- Thus, becomes one for the ly existed. insurance carrier in turn of fact trier to determine whether Erie has present support can evidence in claim its actually any prejudice. suffered Id. at 265- Thus, prejudice. parties are able see, 66; e.g., Colonial Penn Ins. Co. Guzo put respective to forth positions their in rek, legal arena. (evidence that accident had scene not accident, Id. at 265-66. changed since that witnesses were testify, alive and able to parties and that two Here, Stephenson offered three “af in given depositions involved had accident fidavits” to show that acci witnesses to the raised for trier of fact to determine available, dent were but none of docu these existed). prejudice actually whether That requirements ments meets the of Indiana includes, for example, determining whether 56(E), they Trial Rule cannot be consid are, fact, testify the witnesses in available to purpose summary ered for judgment.3 they and whether have sufficient recollection Nonetheless, Stephenson himself was a wit permit per the accident so as to to accident, ness to the and he recalled the meaningful investigation form a of Huser’s incident in deposition testimony. his Ste Miller, 265-66; claim. See phenson also stated that he had located Koenig, 601 N.E.2d at 456. non-party three to the witnesses accident and sum, spoken to each testifying satisfy about on his failed to Huser, behalf. plaintiff, only other the insurer notice as soon as possible, four-year witness. continues to on live and the between the occurred, where the which accident accident and notification of the accident was inspection area, enables Prejudice and there is unreasonable as a matter of law. nothing suggest passage presumed. However, of time to Erie is Supporting opposing affidavits must "set second document fails likewise to indicate oath, forth such facts legible evi made would admissible in it contains no 56(E); by signature. dence.” Ind. Trial Rule Tannehill The third submission sworn to (Ind.Ct. Podgorski Reddy, Notary upon before hearsay, but relies inadmissible App.1994), Spier trans. denied. first document is which we not See consider. Spier City Plymouth, by inadmissible because it does indicate that 1992), (Ind.Ct.App. written statement was made under oath. The trans. denied. ally prejudiced should also be submitted designated undis- specifically have and Huser finder fact. conflicting inferences that lead puted facts and indemni- to defend regarding Erie’s actually prejudiced

fy. Erie was Whether genuine of materi- delay presents a issue in summary judgment Accordingly,

al fact. improp- Stephenson and Huser

favor of trial court’s

erly affirm the granted. We judg- summary motion for denial of Erie’s Anthony FIELDS, Appellant-Defendant, ment, entry of the court’s reverse Huser, judgment in favor of proceedings inconsistent and remand Indiana, Appellee. STATE opinion. with this 49A02-9503-CR-151. No. part in part, Affirmed reversed remanded. Appeals of Court of Indiana. Dec.

SULLIVAN, J., concurs. May 12, 1997. Transfer Granted ROBERTSON, J., part concurs part separate opinion.

dissents in with

ROBERTSON, concurring Judge, dissenting part. I part.

I and dissent concur grand

agree is a member of his covered household and is therefore

mother’s respect With

under her homeowner’s II, majority I agree Issue actually preju Erie was issue whether delay represents genuine issue by the

diced fact which must be submitted material however, disagree, I

the finder of fact. delay year

the determination matter law.

was unreasonable as a given delay de a is unreasonable

Whether notice is

pends upon purpose for which case.

given and circumstances (Ind.

Miller

1984). require purpose of the notice timely opportunity a

ment was investigate prepare the accident simply defense —not obligations under Erie to avoid its

basis for contributing to circumstance One delay in fact that this case therefore had minor

was a law initiate her longer period in which to beyond Stephenson’s or

suit —a matter Therefore, for trial is as remand

control.

required anyway, I the issue of believe component

reasonableness actu- larger of whether issue

Case Details

Case Name: Erie Insurance Exchange v. Stephenson

Court Name: Indiana Court of Appeals

Date Published: Dec 30, 1996

Citation: 674 N.E.2d 607

Docket Number: 32A01-9606-CV-207

Court Abbreviation: Ind. Ct. App.