*1 by allowing guarantor a to avail himself defenses, suretyship we reinforce the guarantor's position as a traditional favorite
in the law. Goekev. Merchants Nat'l Bank (1984),Ind.App., 467
and Trust Co. interpretation tr. denied. This does unreasonably infringe rights on the
creditors, may protect because a creditor guarantor's impairment
himself from a by adding im
collateral claim a consent
pairment provision guaranty similar to upheld Carney, supra.
the one Bank in- the instant did not impairment provision
clude consent guaranty personally executed the Let- result,
singers. Letsingers aAs could
properly claim that the Bank's failure to security
maintain interest T-C's collat- unjustifiably impaired
eral the collateral and Letsingers obligation
released the from their guaranty. Accordingly, we find no judgment.
error the trial court's
Affirmed. SULLIVAN,JJ.,
GARRARDand concur. Representa
Ronald L. JONES Personal McMaken,
tive for the Estate of Julie
Deceased, Appellant-Plaintiff Below,
STATE FARM MUTUAL AUTOMOBILE COMPANY, Appellee-
INSURANCE
Defendant Below.
No. 17A03-9306-CV-187. Indiana, Appeals
Court of
Third District.
June at all.
collateral defense codified in each U.C.C, state's counterpart and do not address its common law
201 $25,000.00, which of in the amount ance estate. McMaken's paid to amount was of the estate damages on behalf sought Jones $100,000.00limit of MeceMaken's up to the coverage. State provision on a coverage based refused Farm excluding MceMaken's policy in MceMaken's an underin- from the definition motor vehicle. sured undisputed, both are the facts Because summary judgment. motions parties filed motion, granted Farm's State The trial un- policy's definition reasoning that the excluded derinsured of law. as a matter McMaken's to reverse asking this court appeals, Jones enter sum- judgment and trial court's in favor. mary judgement Jones' summary entry of reviewing an trial in the shoes judgment, we stand but will weigh the evidence do not court. We light most favorable in the consider the facts v. Covenant nonmovingparty. Collins (1992), Ind.App., Mut. Ins. Co. summary may sustain We Auburn, Likes, appellant. L. Kevin by the theory supported any judgment upon MceNagny, Fort Lyons, Barrett & F. John 56(C). T.R. designated materials.
Wayne,
appellee.
in
policy
an insurance
Interpreting
STATON, Judge.
and
construction
rules of
the same
volves
Peterson
contracts.
as other
interpretation
Jones,
representative
personal
L.
Ronald
Casualty Insurance
and
Fire
v. Universal
("Estate"),
McMaken
of Julie
of the estate
1309, 1310.
(1991),Ind.App.,
Co.
summary
entry of
trial court's
appeals the
in
context
proper
this
Summary judgment
is
Farm Mutual
in
of State
judgment
favor
law,
apparent
if,
is
a matter
("State
Company
Insurance
Automobile
unnecessary to ascertain
is
evidence
extrinsic
Farm").
issues for our
presents three
Jones
If the terms
meaning of the
review,
into one
consolidate
which we
unam
policy are clear
of the insurance
correctly
trial court
whether
restate as
must be
policy
language
biguous, the
not entitled
that the Estate
determined
meaning.
Id. at
plain
given its
coverage under a
to underinsured
Farm.
policy with State
pro
motor vehicle
The underinsured
policy provid
affirm.
in McMaken's
vision
ed:
following
stipulated to the
parties
The
bodily injury
damages for
pay
We will
McMaken
May
Julie
facts. On
to collect
legally entitled
is
an insured
("McMaken")
injuries
sustained
died from
underin-
or driver
from the owner
negli
caused
automobile accident
injury
bodily
The
vehicle.
motor
vehicle,
David Clements
gent driver of her
arising out of
by accident
must be caused
lability insur
("Clements").1
had
Clements
car.
permission to drive her
Clements
passenger
own vehicle
in her
was a
1. McMaken
occurred,
given
and she had
when the accident
operation,
Estate,
maintenance or
diminishing
use of an
is
underinsured motor vehicle.
public policy
policy
and the
is therefore
unenforceable. We have addressed this is
Record, p.
[emphasis
original].
sue
the context of uninsured motorist cov
explain
went
part:
on to
in relevant
*3
erage, concluding
language
that
in an insur
An underinsured motor vehicle does not
policy diluting
ance
diminishing
pro
or
the
include a land motor vehicle:
required by
tection
the uninsured motorist
1.
Hability coverage
insured under the
statute is
unenforceable as
public
policy;
of this
Peterson,
policy.
supra at 1312. While we
you,
regular
2. furnished for the
use of
agree with Jones
principle applies
that
your spouse
any
or
relative....
equally to the statute's underinsured motor
Record, p.
[emphasis
original].
78
in
provision,
ist
we do not
appli
believe that its
policy
believe the
terms set forth above are
change
cation would
the trial court's result in
unambiguous.
clear and
McMaken's vehicle
this case.
is excluded from the definition of underin-
Peterson,
sured motor
for purposes
poli
of
In
rejected
the
this court
plain-
the
cy's coverage.
argues
The Estate
that re
tiff's claim that his uninsured motorist cover-
gardless
unambiguous
of the
language in
age
public
policy;
violated
this court stated:
limitation,
above
it is unenforceable because
[L.C. 27-7-5-2]
is not violated unless an
provides illusory
it
coverage.
supreme
Our
policy specifically
insurance
limits unin-
fllusory
court has
coverage
defined
as that
sured
protection
persons
motorist
as to
paid
which the insured
premium
but
who would
qualify
otherwise
as insureds
from which he would
paid
not be
benefits
Hability
purposes.
any reasonably
expected
under
cireum
stances. Meridian Mutual Insurance Co. v.
plaintiff
Peterson,
Similar
to the
in
(1989), Ind.,
27,
Richie
540 N.E.2d
McMaken did
qualify
as an insured for
liability purposes
policy.
under her
She was
language
The clear
in
McMaken's
lability
excluded
coverage
from
because her
demonstrates that the insured would recover
policy contained a
provi
household exelusion
underinsured
damages
party
motorist
if a
sion, providing
coverage
bodily
no
injury
insured,
other thon the
who was liable for
"any
'to
any
insured or
member of the in-
injuries,
the insured's
was
in
insured
family residing
swred's
in the insured's
amount
less than the limits of McMaken's
Record, p.
household."2
[emphasis
74
in
underinsured
coverage.
provi-
This
original]. The Estate
attempt
cannot now
sion
spectrum
covers a
reasonably
wide
cireumvent
this lawful
by
exelusion
expected
fact,
means of
In
protects
cireumstances.
McMaken's underinsured
coverage.
McMaken
from all underinsured motorists
except
may
those that
also be considered
As
support
argument,
additional
for its
insured
policy.
under her
Applying the
Estate invites this
adopt
court to
the ratio
definition,
above
we
express
believe that one
nale of
Supreme
the Ohio
Court
in State
coverage
limitation in
does not render her Farm Automobile Insurance
v.Co. Alexan
policy illusory
aas matter of law.
(1992),
397,
der
62 OhioSt.3d
The Estate argues Alexander, next that the limi In Ohio court invalidated an policy's tation on McMaken's underinsured motorist household exclusion clause coverage protection provided diminishes the which provided that the insured's own vehicle (1993), IND.CODE 27-7-5-2 which re qualify could never as an uninsured or under- quires insurers to make available uninsured insured motor a one-car accident. 399, poli- Id. at N.E.2d at doing, In so cles which insure registered motor vehicles the court concluded that legislature the Ohio garaged or According Indiana. premised to the motor- uninsured/underinsured 2. Household exclusion clauses in automobile in- (1990), Insurance Co. v. Transamerica Ind., Henry policies surance consistently upheld have been 1265, 563 N.E.2d 1268-1269. enforceable, public do not violate dissenting. lability RILEY, Judge, legal ist statute3 tortfeasor's the vehi insured, whether and not on to the dissent. respectfully I 400, 583 Id. at insured. was at fault cle at 312. v. Alex Insurance Co. Farm Auto In State (1992), Ohio St.3d ander the intent interpreting law case Indiana ren- drafting 27-7-5-2 held, 1.C. facts legislature on supreme court Ohio in- rationale Supreme Court's Ohio of unin ders the restriction to this similar Whitledge case at bar. applicable con was and underinsured (1992),Ind.App., 586 N.E.2d mandating v. Jordan cover such trary to the statute denied, the issue addressed purpose this court noted that age. tr. protection requires 27-7-5-2 LC. that a victim whether to ensure statute *4 uninsured, or whether or underin- uninsured involving is accident the vehicle when is the tort-feasor required when. compensation is un protection receive would sured driver status. uninsured, the vehicle's regardless of at 312. policy. own der her is the vehicle concluding that the status In majority attempts the present In the IND.CODE that controlling, concluded we characterizing by Alexander distinguish to 27-7-5-4(a) motor vehicle uninsured defined than fundamentally different as our statute liability insurance. without a vehicle majority doing, the In so statute. the Ohio 886. at legislature premised "the Ohio states that applies rationale believe on statute uninsured/underinsured 27-7-5-4(b)'s of un- definition to 1.C. equally insured, liability to the legal the tort-feasor's is This conclusion vehicle. motor derinsured fault was vehicle at not on whether principles by general supported well (emphasis 202-208. Opinion at insured." established It is well law. insurance Indiana original). liability in a limit its to insurer is free that an are IND. statutes Indiana public applicable with The not inconsistent manner 27-7-5-4(b). 27-7-5-2(a)(1) I.C. Ind., (1985), CODE v. Boles Co. Insurance Allstate may 27-7-5-2(2)(1) that victims provides exclusion Household T.C. 1098. operators of or limita owners proper from either upheld as recover been have clauses 27-7-5-4(b) de I.C. liability with vehicles. consistent underinsured insurer's tions as an insured Transamerica, vehicle supra; United an underinsured fines public policy. coverage avail Hanley limits of v. "where Insurance Co. Bureau Farm 247. ... (1977), 360 N.E.2d Ind.App. [victim] to the insured payment able the insured's limits for responsibility than the less Moreover, financial are the Indiana lability coverage at purchase owners to requires car underinsured law [victim's] others, plain by injuries sustained accident...." of the insurance the time sections, to when read per wording of the two insurance require such does but has un who a victim himself. that by gether, establish the owner injury sustained sonal pursu may recover der-insurance Boles, supra at injured is coverage when she to that ant on underinsured limitation Because underin- of an an owner negligence of is in McMaken's vehicle. policy, public to illusory nor neither correctly the trial we conclude that Clements true is While summary judgment Farm's granted State at the time of Julie's operator motion. own of his the owner accident, also he was statutes, Affirmed. our vehicle. Under underinsured recovery under is entitled estate Julie's GARRARD, J., concurs. her coverage because underinsured own her negligence of from the separate RILEY, J., and files death resulted dissents vehicle. owner opinion. 3937.18. OHIO REV.CODE my opinion, the intent of our statute and the Ohio statute is require the same-to companies provide coverage for injured by
those underinsured drivers. Ac-
cordingly, adopt I would the Ohio court's
reasoning and would find that Julie's estate
is entitled to receive the benefit of her under- coverage.
insured CRIDER, Appellant-
Donald E.
Defendant, *5 CRIDER,
Elsie Appellee-Plaintiff,
Perry CRIDER, Oliver Crider, Elsie E. Crider,
William O. Vica Elizabeth Smith Carolyn Norfleet, Appellees L. Party
-Third Defendants.
No. 79A02-9209-CV-459. Appeals Indiana,
Court of
Second District.
June
Rehearing July Denied