*1 аbove, above, of, statutory under that we are As noted the nor others aware herein, interpreted scheme as the trial court the that the trial proposition for court’s stand 35-3.1-l-10(c) authority protect a has the to defendant from authority under I.C. to dis- prosecutions the burden of additional which prosecutiоn which could have been miss finds, judgment, the trial in its applies only court should joined prosecution in an earlier disposed have or have been of in an prosecution could those circumstances where the to prosecution. authority earlier Such barred under I.C. 35-41-4-4.1 We would 35-34-l-10(c) justice trial court essential fоr and also super- that would be note I.C. judicial economy. serves the interest of interpreted provide authority if to fluous to prosecu- to those the trial court dismiss Judgment affirmed. already subject prin- to tions dismissal under ciples jeopardy of double or I.C. 35-41-4-4. JJ., RILEY, BAKER and concur. interpret statutory the scheme out-
We upon providing a check
lined above the power of the to
otherwise unlimited State
pursuе prosecutions. Seay See successive (State pyramid N.E.2d at cannot
successive habitual offender enhancements by manipulating timing filing of the of the CASUALTY INSUR- PROPERTY joined charges and which could have been COMPANY, Appellant ANCE Therefore, together). we hold tried (Defendant Below), case, present if the trial court thе even conspiracy required charge to the dismiss Lewis C. KALBERER J. Jeannette 35-41-441 it have under I.C. should Kalberer, of of the Estate Co-Guardians joined prosecution, in the earlier the been (Plaintiffs Kalberer, Appellees James A. discretionary trial court nevertheless had the Below). 35-34-l-10(c) authority under to I.C. dismiss conspiracy charge could have been the which No. 45A04-9503-CV-92. Therefore, joined prosecution. in the former Appeals of Court of Indiana. error. we find no 22, 1996. Feb. circumstances, present the the Under I.C. “upon requirement motion” 35-34-1- Transfer Denied June 10(b) immaterial to has been made to be due posture By case. procedural delay filing conspiracy State’s dealing charges
charge until had after the trial, the defendant nor the
gone to neither opportunity had
trial court move permitted be
joinder. The State should obligation/au- the trial court of its
to divest which, in
thority join charges judg- its
ment, joined for trial either should have been 35-34-l-10(b) merely could
under I.C. joined trial under I.C. 35-34-
have been
l-10(a) timing manipulating the
filing charges. Burke, jeopardy Although Ind.App., 443 ble I.C. 35-41-4-4. The Burke State v. question analyzed precise factually appear did determine would bar, 35-34-l-10(c) tоday: provides the pre- case in whether procedurally similar to the discretionary authority to dismiss holding trial court with was that the trial court cise Burke joined charges in an charges could have been dismissing because the sub- which erred prosecution. earlier sequent prosecution been barred dou- had not *2 Wilk, Highland, appellant. M.
Kenneth Buoseio, Pera, Buoscio, Angelo A. Kramer Nowak, Merrillville, appellees. & OPINION DARDEN, Judge. THE
STATEMENT OF CASE Property Casualty Compa- IDS Insurance ny appeals entered in favor of Lewis C. and Jeannette J. Kalberer. reverse. We ISSUE correctly Whether the trial court deter- mined that the Kalberers’ son was entitled expensе to uninsured motorist and medical under their IDS.
FACTS procured Prop- Lewis Kalberer erty Casualty Company poli- Insurance cy period from March 1991 to September April 1991. On James (“James”) by an Kalberer was struck auto- operated by Douglas. Paul mobile owned and operating moped, his father, Lewis Kalberer. nego- co-guardians, parents covered under the underinsured his James’ are both Douglas’ provisions. and the
tiated a settlement with motorist medical benefits limits, company in the amount of his following first un- $25,000. brought this then terms when derlined used text: IDS, claiming poli- against action on the IDS *3 A is a 4 wheel motor vehicle car licensed cy provi- motorists under the underinsured public any use on It includes for roads. expense provision. sion medical and the motor home isn’t used for business sought the sum- Both IDS and any utility purposes and trailer. mary judgment. agreed A facts statement of A vehicle a land motor motor is question was The for the trial filed. of law use It in- designed for on roads. рolicy court the was whether two insurance cludes cars and trailers. It also includes provisions re- co-guardians entitled James’ to used other land motor vehicle while on trial cover for him. The court denied IDS’s public roads. summary judgment granted motion and the in, in Occupying getting means or or on motion, finding “af- to be Kalbеrers’ out of. provisions. forded under ... both” (R. 335). You, your on means the named the page person’s and the hus-
declarations
or wife if
of the same
DECISION
band
a resident
household.
provisions
the
the in-
argues that
of
You, your
of
also means a member
the
apply
as to cover
surance contract do
so
family
is a
оf the
who
resident
household.
The Kal-
damages
sustained
James.
be-
berers contend
indeed exists
21).
(R.
exclude”
specifically
cause the
“did
Coverage
A.
Motorists
Underinsured
being
of James
“involved
circumstance
Moped,
...
a
a car accident
while
his
liability
begins
The
insurance section
bicycle under
law.” Kal-
motorized
Indiana
“promises”
IDS’s
holder:
berers’ Brief at 10.
bodily inju
pay damages
promise
“We
ry
property damage for which
law
or
of
purpose
you responsible
of a car acci
holds
litigation
there
is to terminate
about which
(Bold
involving a car we insure.
em
dent
may
dispute
be
can
no factual
and which
be
(R.
аdded).
22).
phasis
Liberty
matter of
Mu
determined as a
law.
(1992), Ind.App.,
N.E.2d
tual Metzler
v.
The uninsured
mo-
motorist/underinsured
897,
reviewing
(“UM”)
When
a trial
provision promises:
trans. denied.
torist
judg
summary
ruling
on a motion for
damages
legally
pay
you’re
ment,
applies
as
this court
the same standard
operator
of
receive from the owner
Casualty v.
Aetna
&
trial court.
Life
vehicle because
... an underinsured motor
(1995), Ind.App., 645
Industries
Patrick
injury
bodily
páy
...
these dam-
of
We’ll
Thus,
no
trans. denied.
N.E.2d
bodily injury
property damages
ages for
judg
given to the
court’s
deference is
trial
you suffer in a ear accident while
...
interpretation
of an insur
ment.
Id.
or,
pedestrian,
a car
a
a
law fоr
primarily
question
ance
of
having
by an ...
struck
result
been
(1992), Ind.,
the court. Tate
Secura Ins.
underinsured motor vehicle.
policy lan
668. Insurance
25).
(R.
unambiguous should
guage
is clear and
which
argument
court and
meaning.
Id.
In its
to the trial
its
given
ordinary
plain
its
brief,
insur
IDS insists that because James was
provisions
of the
turn to
we
occupant
pedestrian
nor a
in order to
whether
neither
ance contract
determine
accident,
law,
the underinsured
...
contract
the time
“as matter of
Aetna,
by the
provided
supra at
and motorist
unambiguous,”
damages
apply.
does
whether as a matter
law James’
public policy
At
accident in which James
so IDS has cоntravened the
the time of the
protection
persons
injured,
regarding UM cov- of UM—the
insured
our statute
27-7-5-2(a)(l)1
erage,
required
policy.
in-
Ind.Code
under the insurance
surers to:
eases,
de
IDS directs us to
series
available,
automobile
make
each
argu
scribed as “more recent”
their oral
liability policy of insur-
or motor vehicle
ment,
analysis
apply
which
of Peterson v.
resulting
insuring against
ance ...
loss
Casualty
Ind.
Universal Fire &
Co.
liability imposed by
bodily
law
App., 572 N.E.2d
to determine whether
injury
by any person
...
[the
suffered
restriction is forbidden
the Indiana
coverage prescribed
minimum amounts of
policy specifical
statute: when “an insurancе
responsibility
in the financial
standards in
ly
protection
persons
as to
[UM]
limits its
protection
per-
9-25-4-5]
*4
qualify
otherwise
as insureds for
who would
policy
sons insured under the
who are
liability
In
purposes.” Id. at 1312.
accor
damages
legally entitled to recover
notes,
analysis,
with
IDS
exclu
dance
this
operators of
un-
owners оr
uninsured or
upheld
coverage
permitted and
sions of
were
motor vehicles because of bodi-
derinsured
Millspaugh
in
as
v. Ross
other cases such
ly injury. ...
(adult
(1994),
son,
Ind.App.,
14
645 N.E.2d
The
direct us to the
statute
UM
mother,
injured
living
who was
policy
that
restriction vio
and contend
IDS’s
passenger in
car
when a
rental
was not with
“provide
requirеment
lates its
that insurers
insurance).
coverage
in
of mother’s UM
(R. 254).
personal
coverage.”
To
insurance
apparently gone
by
unnoticed
What has
court,
the trial
Kalberers cited State Farm
parties
legislature
both
is the action
(1973),
Mut. Auto Insurance v. Robertson
between the time of Cannon
Robertson
626,
Ind.App.
295 N.E.2d
156
whеre
allowing
and the later eases
certain exclu-
coverage
policy
denying
exclusion
for son’s
statutory language directly
sions. New
af-
injuries
motorcy
sustained while on father’s
vitality
current
fects the
Robertson and
cle,
by
which was not insured
father’s auto
application
language
affects
of some of the
mobile
under that
September
Cannon. Effective
when
policy’s
coverage was held
UM
“invalid”
coverage:
UM
than”
“in conflict with and more restrictive
(1)
apply to one
or more
is written to
(R. 255).
Indiana’s UM statute.
Robert
single
motor
under a
automobile
vehicles
policy
coverage
apply
did not
son’s
said UM
liаbility policy,
coverage applies only
such
bodily injury
occupy
“to
to an insured while
operation
of those motor vehicles for
by
ing ... a land motor vehicle owned
specific
premium charge
which a
has
[UM]
named insured or resident of the same
apply
oper-
been made and does not
to the
if
an
household
such vehicle
‘insured
any
by
...
ation of
motor vehicles
owned
” Robertson,
all other vehicles— collision, liability, comprehensive write promises pay The “to medical ex- upon and in- coverages one such vehicle bodily injury ... penses your suffered any demnify for such losses as to other a car or from accident while involved. Nor would reason- having been struck a motor vehicle.” Be- It expect. able so would be actuar- print, not protеcted” low in “Those enu- bold ially unsound. exclusions, states, one of which merates Appleman Appleman, Alan & Jean 8C John “Anyone occupying ... a motor vehicle § Practice 5078.15 at Insurance Law and by you owned ... and insured under this (1981). protected by insurance isn’t this insurance.” legislature intended that complaint states thаt The Kalberers limit companies their be allowed ... “at the time of the ... accident coverage to vehicles insured under the ... defined I.C. 9-13- the vehicle is an one. See when 13). (R. bicycle.” 2-109 as a motorized Fidelity & Guar. v. DeFluiter U.S. statutory provides that: cited definition Ind.App., legislature 456 N.E.2d through enactment bicycle” “Motorizеd means a two (citing Carpet statutes. Id. Bissell *5 (3) propelled three wheeled vehicle that is Co., (1957), Sweeper v. Inc. Co. Shane by engine an internal or a combustion bat- 415). Further, Ind. 143 N.E.2d motor, tery powered powered by and if consideration, parallel Indiana courts have engine, internal combustion has follow- only long legislature that the intended held ing: liability por persons under those insured (1) engine rating An of not more than two to cover tion should (2) horsepower cylinder capacity and a age provision. the uninsured motorist under (50) exceeding fifty cubic centimeters. Casualty Ins. Fire & Co. v. Ameri Vernon Underwriters, (1976), Ind.App. Inc. can (2) An automatiс transmission. 693; Harden v. Monroe (3) design speed of not more A maximum (1993), Ind.App., 626 N.E.2d Guar. Ins. Co. twenty-five per hour than miles on linkage denied. This between trans. flat surface. liability coverage “is to coverage UM reward those who obtain insurance Accordingly, we conclude I.C. 9-13-2-109. they injure.” might those benefit vehicle. that James rode а motor Mut. Auto. Ins. Anderson v. State Farm Co. quoted Applying policy definitions 1170, 1175. Ind.App., 471 N.E.2d outset, inescapable it that as a we find moped not a on the was covered under matter of law James was not premium insurance for which UM expense provision insurance inas the medical made, according charge tо the had been much he a motor vehicle facts, moped agreed by statement and not insured under Kalberer by Lewis Kalberer. policy. rode was owned statute, coverage would not according to UM summary judgment re- The order Further, provid the Kalberer apply. versed, and this cause remanded damage “for ed proceedings trial for further consistent you responsible because law holds which the opinion. with this involving a ear we insure.” a car accident by policy was car insured the Kalberer No James, being unin in the accident. CHEZEM, J.,
involved concurs result liability coverage under purposes of sured for separate opinion. policy, may be ex the Kalberer SULLIVAN, J., separate concurs with policy’s under cluded from Anderson, opinion. supra at 1175. provision.
CHEZEM, Judge, concurring provision “Anyone in result clear which excludes oc- opinion. cupying by you ... a motor vehicle owned ... and not insured under this insurance.” I concur in the result reached the ma- undisputed moped It is that the is a motor Code, jority. Pursuant to the Indiana vehicle,2 was owned Lewis Kalberer and moped is not a motor vehicle. IC 9-13-2- policy. was not insured under the For the However, the contract of stated, I reasons concur in the decision this case defines motor vehicle as a “land which reverses the en- designed public motor vehicle for use on tered in the trial court. roads,” powered by Because a can be pedals, either its motor or its and it is de- roads,
signed for use on the it is a pursuant
motor vehicle to the contract defi- such, only.
nition. As I coneur in the result
SULLIVAN, Judge, concurring.
I concur in Judge the conclusion of Dar- opinion
den’s lead which states that Kalber- ers’ son is not entitled to recover under the ENRIGHT, Paikos, Kevin Nick Christie provision. underinsurеd motorist I reach Spear-Paikos, Hanes, Joy P. E. Steven moped upon that conclusion not because the Shaw, Schwomeyer, Ronald Marilla which James was was not an insured Schwomeyer, Woods, and Protect Our vehicle under the but rather because Appellants-Petitioners, language policy provisiоn the clear coverage. excludes such correctly Judge opin noted Darden’s BOARD OF ZONING APPEALS OF *6 ion, recently and as stated in Ramirez v. COUNTY, Appellee- MONROE Family American Mutual Insurance Co. Respondent. “ Ind.App., 652 N.E.2d 515: ‘An No. 53A04-9503-CV-114. company is free to limit its manner not inconsistent with Appeals Court of of Indiana. unambiguous exclusionary and аn ordinarily clause construction Feb. 1996. ” and enforcement.’ Rehearing April Denied The basic uninsured-underinsured motorist before us covers a or, person occupying pedes- “while a car moped occupied by
trian”. The James was
clearly as defined within the
itself. It is also clear that he was not a
pedestrian. respect
With to the medical benefits cov-
erage, covers a “in a car
accident while a car or from hav- been struck a motor vehicle.” Al- noted,
though, as earlier James was not oc- car,
cupying a he was involved in a “ear
accident” and was “struck a motor vehi- Nevertheless,
cle”. сontains a 9-13-2-105, Judge sepa- cited in Chezem’s definition of "motor vehicles” all contexts and notes, opinion, purposes. Judge rate "motor vehicle” for all Chezem purposes dealing regula- pursuant of I.C. 9-21 with traffic "is a motor vehicle to the con- mopeds tions. It does not exclude from the tract definition.”