173 Ind. App. 649 | Ind. Ct. App. | 1977
Harlon Sims, sixteen, struck and killed Mattie L. Greene, a' pedestrian. Thomas E. Sims; Marlon’s father, carried an insurance policy with American Underwriters, Inc. A verdict and judgment in the amount of $12,500.00 was-entered against both Thomas Sims and.Marlon Sims. Joseph Greene, Administrator of the estate of Mattie L. Greene, filed a Motion to Enforce Judgment by Proceedings Supplemental to Execution, joining American as Garnishee-Defendant. Greene and American each filed motions for summary judgment in the trial court; Greene’s motion was denied, and American’s motion was granted. Greene brings this appeal. The trial court acted properly in overruling Greene’s motion for summary judgment and in .granting American’s motion for summary judgment. We affirm.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Indiana Trial Rule 56(C). The only issue in the controversy between Greene and American is not one of .fact, but is rather a matter of law: is an insurer liable to an insured for the acts of an' underage operator when thé policy' excludes coverage of such underage operator? Greene argues that even if the exclusion clause is valid, it is applicable only to Marlon Sims, the underage operator, and is not .available to Thomas Sims, the insured. Such reasoning would result in American •having to indirectly assume a liability which it had expressly contracted to avoid.
Thomas Sims’ policy provided: “CAUTION: If this policy is issued at Rate Class 1, no coverage is afforded to> any oper
Marlon Sims, who operated the insured vehicle at the time of the accident, was in a class specifically excluded from coverage by the policy. American should not be required to satisfy the claims against Thomas Sims as that would indirectly force it to also pay the liability owed by his son.
Hoffman, J. and Garrard, J., concur.
Note. — Reported at 364 N.E.2d 1194.
. The policy does not even list Marlon Sims as a driver.
. It is important to note that no contention was made that there was an independent basis upon which to predicate Thomas Sims’ liability. The nature of the father’s liability was only derivative.