FIREMAN‘S FUND INSURANCE COMPANY, Appellant-Third Party Defendant, v. Matthew W. ACKERMAN, Appellee-Third Party Plaintiff, and American Casualty Company, American Equity Risk Service, Appellee-Intervenor Defendant.
No. 82A01-1509-CT-1350.
Court of Appeals of Indiana.
July 14, 2016.
48 N.E.3d 1209
Jeffrey B. Fecht, Riley Bennett & Egloff, LLP, Indianapolis, IN, Attorney for Appellant.
Lane C. Siesky, Siesky & Viehe, PC, Evansville, IN, Attorney for Appellee.
Laurie Goetz Kemp, Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, IN, Attorneys of Appellee (Intervenor), American Casualty Company/American Equity Risk Service.
Case Summary
BARNES, Judge.
[1] Fireman‘s Fund Insurance Company (“Fireman‘s Fund“) appeals the trial court‘s denial of its motion for summary judgment regarding a claim by Matthew W. Ackerman. We reverse and remand.
Issue
[2] Fireman‘s Fund raises one issue, which we restate as whether the trial court properly denied its motion for summary judgment regarding underinsured motorist coverage.
Facts
[3] On January 8, 2009, Ackerman was injured in a motor vehicle accident allegedly caused by Janet Sipes. Ackerman sustained
[4] Ackerman received the $100,000 policy limits of Sipes‘s policy with State Farm Insurance, and the $1,000,000 policy limits (minus an offset of $100,000 for the amount paid by State Farm) of Evansville Marine‘s CNA Policy. Ackerman claims that his damages exceed the amount he has been paid, and this litigation concerns whether the Fireman‘s Fund policy provides additional UM/UIM coverage.
[5] In November 2009, Sipes filed a complaint against Ackerman, and Ackerman filed a counterclaim against Sipes. AER then filed a motion to intervene related to payments it made to Ackerman under the workers’ compensation policy, and the trial court granted the motion. In October 2011, Ackerman filed a motion for leave to file a third-party complaint against Fireman‘s Fund, which the trial court also granted. Ackerman claimed that he was entitled to UM/UIM coverage under the Fireman‘s Fund policy.
[6] Fireman‘s Fund filed a motion for summary judgment. Fireman‘s Fund argued that the policy did not provide UM/UIM coverage and that UM/UIM coverage could not be imputed to the policy. Ackerman and AER filed responses to Fireman‘s Fund‘s motion for summary judgment. The trial court denied Fireman‘s Fund‘s motion for summary judgment. However, pursuant to Fireman‘s Fund‘s request, the trial court certified the order for interlocutory appeal. We accepted Fireman‘s Fund‘s interlocutory appeal pursuant to Indiana Appellate Rule 14(B).
Analysis
[7] Fireman‘s Fund argues that the trial court erred by denying its motion for summary judgment. An appellate court reviewing summary judgment analyzes the issues in the same way as would a trial court. Pfenning v. Lineman, 947 N.E.2d 392, 396 (Ind. 2011). A party seeking summary judgment must establish that “the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
[8] Fireman‘s Fund argues that its policy issued to Evansville Marine did not contain UM/UIM coverage and that it is entitled to summary judgment. Ackerman and AER argue that UM/UIM coverage was imputed to the policy. “Insurance contracts ‘are governed by the same rules of construction as other contracts.‘” Justice v. Am. Family Mut. Ins. Co., 4 N.E.3d 1171, 1175 (Ind. 2014) (quoting Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997)). The interpretation of an
[9] The analysis of this issue requires a review of UM/UIM coverage in Indiana, see
[10] In 1995, the General Assembly enacted
[11] Then, in 1999, our supreme court decided DePrizio, which concerned whether a commercial umbrella or excess liability insurance policy, like the policy at issue here, was required to provide UM/UIM coverage. DePrizio, 705 N.E.2d at 457. The court noted that the UM/UIM coverage statute “is a mandatory coverage, full-recovery, remedial statute.” Id. at 460. Its provisions were to be “considered a part of every automobile liability policy the same as if written therein.” Id. Moreover, “[e]ven where a given policy fails to provide such uninsured motorist coverage, the insured is entitled to its benefits unless expressly waived in the manner provided by law.” Id. Our supreme court concluded that, “absent an explicit statutory exemption to the contrary[,] an umbrella liability policy that does not provide for uninsured/underinsured motorist coverage by its own terms, yet provides coverage for liability arising from the ownership maintenance or use of motor vehicles, is an ‘automobile liability policy or motor vehicle liability policy’ within the meaning of
[12] In apparent response to DePrizio, effective July 1, 2005, the legislature enacted
(a) The insurer shall make available, in each automobile liability or motor vehicle liability policy of insurance which is delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property to others arising from the ownership, maintenance, or use of a motor vehicle, or in a supplement to such a policy, the following types of coverage:
- in limits for bodily injury or death and for injury to or destruction of property not less than those set forth in IC 9-25-4-5 under policy provisions approved by the commissioner of insurance, for the protection of persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, and for the protection of persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured motor vehicles for injury to or destruction of property resulting therefrom; or
- in limits for bodily injury or death not less than those set forth in IC 9-25-4-5 under policy provisions approved by the commissioner of insurance, for the protection of persons insured under the policy provisions who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom.
The uninsured and underinsured motorist coverages must be provided by insurers for either a single premium or for separate premiums, in limits at least equal to the limits of liability specified in the bodily injury liability provisions of an insured‘s policy, unless such coverages have been rejected in writing by the insured. However, underinsured motorist coverage must be made available in limits of not less than fifty thousand dollars ($50,000). At the insurer‘s option, the bodily injury liability provisions of the insured‘s policy may be required to be equal to the insured‘s underinsured motorist coverage. Insurers may not sell or provide underinsured motorist coverage in an amount less than fifty thousand dollars ($50,000). Insurers must make underinsured motorist coverage available to all existing policyholders on the date of the first renewal of existing policies that occurs on or after January 1, 1995, and on any policies newly issued or delivered on or after January 1, 1995. Uninsured motorist coverage or underinsured motorist coverage may be offered by an insurer in an amount exceeding the limits of liability specified in the bodily injury and property damage liability provisions of the insured‘s policy.
(b) Any named insured of an automobile or motor vehicle liability policy has the right, on behalf of all other named insureds and all other insureds, in writing, to:
reject both the uninsured motorist coverage and the underinsured motorist coverage provided for in this section; or - reject either the uninsured motorist coverage alone or the underinsured motorist coverage alone, if the insurer provides the coverage not rejected separately from the coverage rejected.
No insured may have uninsured motorist property damage liability insurance coverage under this section unless the insured also has uninsured motorist bodily injury liability insurance coverage under this section. Following rejection of either or both uninsured motorist coverage or underinsured motorist coverage, unless later requested in writing, the insurer need not offer uninsured motorist coverage or underinsured motorist coverage in or supplemental to a renewal or replacement policy issued to the same insured by the same insurer or a subsidiary or an affiliate of the originally issuing insurer. Renewals of policies issued or delivered in this state which have undergone interim policy endorsement or amendment do not constitute newly issued or delivered policies for which the insurer is required to provide the coverages described in this section.
[13] The parties do not dispute that, as a result of DePrizio, the Fireman‘s Fund policies provided UIM protection at least until the first renewal of the policy after
[14] Fireman‘s Fund argues that
[15] The federal district court addressed this same issue in Hall v. Travelers Prop. Cas. Co. of Am., No. 3:08-CV-0007RLYWGH, 2009 WL 1148231 (S.D.Ind. 2009). There, the district court held:
Plaintiffs argue that the amended statute applies only to the issuance of “new” policies and not, as in this case, to the issuance of “renewal” policies. The plain language of the statute does not limit its application to newly issued policies. Rather, it applies to the “issuance” of any policy, whether entirely new or a renewal following a previous policy.
The plain meaning of the statute must be read in light of Indiana Code § 27-7-6-3 , which defines a renewal policy as the “issuance” of a replacement policy. See Little v. Progressive Ins., 783 N.E.2d 307, 314 (Ind.Ct.App. 2003) (citing Inman v. Farm Bureau Ins., 584 N.E.2d 567, 569 (Ind.Ct.App. 1992)). Further,Indiana Code § 27-7-5-1.5 must be read in light of the mandatory IUM statute,Indiana Code § 27-7-5-2 . That statutory section begins by defining its application to every auto liability policy delivered or issued for delivery in Indiana. Ind.Code § 27-7-5-2(a). The section goes on to make clear that this universe of policies that are “issued” in Indiana includes both “first renewal of existing policies” after the effective date, as well as “newly issued” policies. SeeInd.Code § 27-7-5-2(a)(2) (“Insurers must make underinsured motorist coverage available to all existing policyholders on the date of the first renewal of existing policies ... and on any policies newly issued....“).The legislative intent must be presumed to be the same with respect to
Indiana Code § 27-7-5-1.5 , Inman, supra, especially because the word “issuance” in the statute is just another form of the word “issued” inIndiana Code § 27-7-5-2 . “Webster‘s Third New International Dictionary defines ‘issuance’ as the noun form of ‘issue.‘” Mining Energy, Inc. v. Dir. OWCP, 391 F.3d 571, 575 (4th Cir. 2004); see also In re Auto. Profls, Inc., 370 B.R. 161, 171 (Bankr. N.D.Ill. 2007) (“‘Issued,’ as used in reference to the issuance of an insurance policy, means when the policy is made and delivered, and is in full effect and operation.“).Thus, the meaning of policies that are “issued” in
Indiana Code § 27-7-5-2 , i.e., both “first issued” policies and “renewals,” applies equally toIndiana Code § 27-7-5-1.5 , which refers to the “issuance” of policies. Accordingly, the court finds that Illinois National was not required to provide underinsured motorist coverage in its renewal policy issued to Gohmann after the amended statute took effect.
Hall, 2009 WL 1148231, at *8-9.
[16] Ackerman argues that Hall is not controlling because
[17] We agree with Fireman‘s Fund and find Hall to be persuasive. Although DePrizio had previously required commercial umbrella or excess liability policies to provide UM/UIM coverage, the 2005 enactment of
[18] Ackerman also argues that, even if
[19] Finally, Ackerman and AER argue that a change in UM/UIM coverage as a result of
Had Liberty Mutual desired to exclude any and all UM/UIM coverage based on the DePrizio decision, it should have either: 1) secured the written waiver of coverage required under the statute and included the waiver within the policy prior to the commencement of coverage; or 2) if Liberty Mutual wanted to remove UM/UIM coverage during the policy‘s term, it should have proposed a modification to such effect and offered to reduce the premium to reflect the removed coverage. In either case, it would be clear that the existence or nonexistence of UM/UIM coverage was a negotiated term of the policy.
[20] Ackerman relies on Beatty for the proposition that Fireman‘s Fund was required to give consideration for the change in UIM coverage after the 2005 statute was enacted. However, Beatty is distinguishable. Beatty dealt with a change in coverage during a policy‘s term. Also, Beatty concerned an ambiguous UM/UIM rejection form sent by the insurer, whereas here, the removal of UM/UIM coverage took place as the result of a clear statutory enactment. Ackerman cites no authority for the proposition that Fireman‘s Fund was required to offer consideration for the change in UIM coverage when the policy was renewed.
[21] We conclude that, given
Conclusion
[22] The trial court erred by denying Fireman‘s Fund‘s motion for summary judgment regarding the UM/UIM coverage issue. We reverse and remand.
[23] Reversed and remanded.
VAIDIK, C.J., and MATHIAS, J., concur.