*1 rightly argues, the contracts DNR As the faces, not, disclose a relation- on their do DNR. Keppel and the
ship Van between 15, 21, 27, Accordingly, the
Record support prima for a evidentiary
necessary ex- defense showing of a meritorious
facie ' isted.
CONCLUSION require- successfully met the
The DNR 60(B),demonstrating mistake
ments of T.R. to an- justification for the failure
as the showing complaint Keppel's
swer Van to the action. Given
a meritorious defense success, considering unique merits trial on the
posture of this case-a County Keppel and Lake Van
between question of the DNR's
pending, open large public
liability, and the amount judg- trial court's
resources involved-the clearly an abuse of discretion
ment was logic and effect of facts before it.
circumstances is re- judgment of the trial court
versed, for fur- and the cause is remanded opin- with this proceedings
ther consistent
ion. STATON, JJ., concur.
ROBERTSON MUTUAL
UNITED FARM BUREAU COMPANY,
INSURANCE
Appellant-Defendant, Lowe, K.
Don G. LOWE and Judith
Appellees-Plaintiffs.
No. 14A01-9107-CV-217. Indiana, Appeals
Court of
First District.
Dec. instrument, action.... evidence in the mitted into deemed to be established and admissible, shall be deemed ad- if otherwise *2 April
dent of claim the operated 1987amendmentto I.C. 27-7-5-2 renewals, law, on their 1988 as matter of coverage. to increase their legislature In repealed the then current uninsured motorist 27 I.C. -5-1, insurers to offer bodily for jury in an amount to the State's responsibility require minimum financial 166-1982, ments. P.L. Sec. 6. the same act, 27-7-5, legislature by amended I.C. adding a new section which reads: (a) liability Each automobile or motor ve- hicle insurance which of delivery or in this delivered issued for Jr., Riley, Haley Thomas R. James W. respect any state motor III, Egloff, Indianapolis, Riley Bennett & registered principally garaged in this Emison, Doolittle Kolb & Rabb Emison state, insuring against resulting loss Vincennes, Roeligen, appellant-defen- for liability imposed by from law the dant. person injury by any or death suffered Mahoney Mahoney, Russell E. Law Of- injury and for to or use of a motor ve- fice, Petersburg, appellees-plaintiffs. for hicle, either in policy supplement or in a to it: ROBERTSON, Judge. (1) or death Mutual Insurance United Farm Bureau injury to of and for or destruction (Farm Bureau) Company appeals from the property set forth in IC 9-2-1-15 un- grant summary judgment of favor of provisions approved by the der (the Lowes) in Don G. and Judith K. Lowe insurance, for the commissioner of declaratory judgment. The their suit for persons of insured thereunder tection sought that amended a declaration legally entitled to recover who applied to increase their Ind.Code operators of damages from owners or coverage. Farm Bureau raises insurance motor vehicles because of appeal: one issue on disease, bodily injury, sickness or in- the trial court erred as a mat- Whether injury to or de- cluding death and for concluding that the 1987 ter of law resulting there- struction 27-7-5-2, enacted amendments I.C. from; or 391-1987(ss) applicable "only (2) injury death in limits for policies first issued after December under forth in IC 9-2-1-15 set 1987," apply to the 1988 renewals of the approved by the commis- provisions issued Lowes' which were insurance, protection for the sioner of in 1975 and 1988? under the persons insured legally entitled provisions who We reverse. oper- damages from owners recover The Lowes owned two automobile insur- motor vehicles be- ators of uninsured Bureau. One ance sickness, or dis- bodily injury, cause of originally issued ease, resulting including death originally issued in 1988. Each other was from. since, policy has been renewed coverage may recently The uninsured
first one most renewed Febru- higher in limits than by insurers ary of 1988 and the second one most re- offered forth in IC of 1988. The those set cently renewed March liability greater than the in an automobile acci- not be Lowes were involved proper- state, loss result- insuring in the in this specified imposed by law the liability an in- provisions damage ty by any death suffered bodily injury or use of a to or person and for of an automobile (b) insured The named -coverage,-oi- *3 has the motor vehicle or vehicle, provide motor or both writing, in either reject, right to supplement in a to ther-in-the-poliey or coverages de- motorist the uninsured of following types of policy, such a the (a) of this section in subsection scribed coverage: uninsured also has insured unless (1) bodily injury or death in limits for liability insurance injury bodily motorist of destruction and for to or Following this section. coverage under forth property not less than those set mo- uninsured or both rejection of either provi 9-2-1-151 under in IC requested later coverages, unless torists of approved by the commissioner sions provide need not insurer writing, in supple- insurance, protection per in of or for uninsured policy in connection thereunder under sons insured to a renewal mental issued to the previously to re legally with a entitled who policies is- of Renewals opera or insured. damages from owners same cover have state which sued or delivered mo of uninsured or underinsured tors policy endorsements undergone interim bodily injury, of tor vehicles because constitute do not amendment or disease, including death or sickness for which the persons protection in of and for the to the cover- insurer is legal policy who are under sured ages in this section. damages ly to recover entitled 166-1982, (emphasis supplied). 1 See. operators of uninsured owners insur- required that Essentially, the statute injury to or de for motor vehicles inju- provide uninsured ers resulting there property struction of equal to coverage in an amount ry from; or responsibility re- financial minimum state's bodily injury or death (2) in limits for These re- 9-2-1-15. quirements under I.C. set forth IC 9- than those not less $25,000 per eventually reached quirements occurrence, $50,000 ap where per policy provisions person and 2-1-152 under According to the they now stand. of insur by the commissioner proved coverage up to such could offer the insurer in ance, persons of protection for the bodily injury and liability for limits of who policy provisions sured under the provisions of the damage in the property damages legally entitled to recover the insurer was policy, but insured's own operators of uninsured from owners or could do so. The insured required to be motor vehicles or underinsured coverage in reject such sickness, dis injury, cause writing. ease, resulting there including death 27- legislature amended I.C. from. 7-5-2, as follows: motor The uninsured and underinsured (a) shall make Each The insurer coverages of may must be ist liability or automobile each high available provided by insurers fered limits liability policy of insurance motor vehicle 3 sepa single for er-than for either delivery is delivered or issued equal premiums, any motor rate respect [those in this state with principally garaged IC-9-2-1-15,-but-may-not registered or the word subsequent inserts amendment cite and 3. A subsequent strikes this A amendment 1. 5-1988, change reflect the IC point inserts in the text. P.L. premium at this 2-1991, PL. statute. Sec. 88. coverage, in addition spec vide underinsured greater-than] coverage, in amounts and-property ified in the bodily injury limits in the insured's own of an liability provisions damage such policy, unless has policy, unless the insured the insured's writing by the coverages writing. rejected in rejected have been insured. Uninsured policies included The Lowes' or underinsured given at at the amount in an amount an insurer be offered responsibility stat- time in the financial liability speci exceeding the limits of $50,000 $25,000 per ute, per person and fied in the had, however, bod- occurrence. liability provisions the in damage $50,000 injury limits in their ily *4 $100,000 per occurrence. per person and (b) an automo- insured of The named January Farm Bureau Effective has or motor bile policyholders with uninsured provided all writing, in either-or right to-reject, Lowes, coverage, including the both to coverage equal underinsured motorist (1) reject motor- the uninsured both uninsured motorist cover- the insured's to coverage mo- and the ist Then, February charge. age at no extra coverage provided in this sec- torist 1988, policies the Lowes' March of tion; or The Lowes claim renewed. were (2) reject motor- either the uninsured operated to increase amendment coverage alone or the ist greater coverage to the bodi- alone, coverage if the insurer policies were when their ly injury amounts sepa- rejected provides not acci- their automobile just renewed before rejected. rately from dent. the-uninsured-motorist-coverages-de- Indiana Code Section As 391-1987(ss). by P.L. Sec- amended may have uninsured No insured but-ne the Act takes the Act states that tion 5 of damage liability insur- 1, 4 of the January 1988. Section effect this section unless coverage under ance 27-7-5-2, as amended has uninsured motorist insured also Act states that I.C. act, only policies applies to by the insurance first (our 31, 1987 em- December Following rejection after issued under this section. the amend- motorists Bureau claims phasis). Farm of either or both originally policies only applies ment under- coverages, 1987, 31, issued after unless later insured motorist need writing, the insurer requested policies existence. renewal of not to the provide offer the 1988 re- Thus, not contends Bureau Farm cov- or underinsured remain at policies of the Lowes' newals supplemental to renewal erage in or policy previ- awith policy in connection is clear question Re- insured. The statute ously to the same issued not therefore unambiguous. issued or delivered We need policies newals it, merely apply it to this case. undergone construe but interim have this state which do or amendment I.C. only endorsements not amended The 1987amendment newly issued 27-t-5-2, not constitute and I.C. also 1.0. 27-7-5-4 but is the insurer policies for which Act stated the The amendment coverages in this section. provide the 891- 1988. P.L. takes effect However, respect 1987(ss), See. 5. 891-1987(ss), Essentially, here, 27-7-5-2, that insurers requires statute I.C. amended governor signed by general assembly in IC phrase, "those set forth although version of the it is included in the 1982 appear than" does be by enacted amendment. in the form not struck amendment statute and was special Fortmeyer so legislature included a section Summit Bank Ind. applies only App., the amended statute 1120. This rule summary judgment proceed after December also policies first issued 891-1987(ss), ings. Sec. 4. We do not 1987. P.L. contradictory. sections
consider these two factor, however, The crucial in determin- may inject legislature obviously did not intend whether what policies appears appeal issued to be a new issue into the the statute to to all unequivocal 1987 but to those whether Bureau had no- after December first, originally, issued after that date. and, tice existence of the issue fore, opportunity had an not first issued to defend were it. See id. 1121. The record reveals the 31, 1987; after December position then Lowes' before the trial court 1975 and 1983 and were at the summary judgment hearing included a after December 1987. The renewed policyhold interpretation to its claim that Farm Bureau's notice Farm Bureau clearly current the statute would establish unfair ers stated that classifi- policyhold- uninsured motorist cover cations of and that which included regardless age, would revised and effec ers should be treated alike *5 January provide policy originally both unin whether the tive 1, merely renewed after coverage. and underinsured motorist sured an amendment or revision of the cur Such Farm Bureau is correct that the original rent does not constitute an Equal Lowes did not raise the Protection meaning or new within the of I.C. Equal Privileges and claims before the trial as does 27-T-5-2. court and therefore not raise them on apply policies; not to the Lowes' the stat However, appeal. the Lowes fact sub appear ute before the amendment would to stantially arbitrary raised the and unrea Therefore, apply. Farm Bureau was not sonable classification issue the before trial required to offer the Lowes uninsured or court; and, change as the issue does not coverage underinsured motorist at the case, alternatively result we will bodily injury Lowes' Equal Protection/Equal address it as an challenge appeal, Privileges On the Lowes this in- claim. We also note our su terpretation preme rights of 1.0. a claim court with has established that the application that such an of the statute vio- 28, protected 1, intended to be Art. Equal Equal lates the Protection Clause of the of the Indiana Constitution and the Fourteenth Amendment of the Protection Constitution clause of the Fourteenth Equal of the United States and the Privi- Amendment of the Constitution of the Unit Reilly ed states are identical. v. Robert 1, 28, leges Clause of Article Section of the 29, 171, Specifically, Indiana Constitution. 266 Ind. son - denied, 73, apply contend that Lowes cert. 434 U.S. 54 S.Ct. arbitrary this manner would establish and L.Ed.2d 83. policyhold- unreasonable classifications The Lowes claim the statute divides ers: those who held before Janu- policyholders groups: into two in ex those ary They did 1988 and those who not. 31, 1987, who, istence on December when also contend that such classifications do they purchase policy, a renewal will not
not a or rational bear substantial relation "get protections and benefits afforded object legislation. to the of the by the 1987 amendment" and those who purchase a after December maintains, however, Bureau Equal "get protections that the Lowes have waived the Pro who will benefits of the 1987 amendment." The Equal Privileges tection and claims because that, those issues were not addressed to the trial if Lowes claim even the 1982 version Generally, court. Farm Bureau is correct. of the statute to their following unreasonable results obtain: party may appeal a not raise issue on any not raised in the trial court. that was surers would not have to offer them coverage, insurers underinsured motorist for such to contract desired, Farm Bu- so any unin offer them have to not would any not reau was sured limits, so, however, effective Jan- did their own amount. It to the have to inform financial uary not even at the would insurers level. such cover purchase "right to them liability limits." own equal to their age unreason- claim that another similarly policyholders is true of
The same by such classifications produced result able Therefore, the the Lowes. situated on Decem- policyholders existence is that 1987 amendment that reason absolutely forbidden ber situation, as it would in this should purchase uninsured results. these unreasonable produce not bodily injury liabili- than their own did not As the Lowes ty limits. however, policyholders note, that We payment under their a demand 31, make insured before who were coverage provision. thereafter, not renew and who claim, not consider this therefore need to have We opportunity deprived of appeal. impact upon this coverage at as it does and underinsured They must injury limits. their own applica- claim that this Lowes also insurer request to their merely submit will version of the statute tion of the 1982 The effect of raised. that position in their not allow must offer insurer statute is obtain injury limits to new coverage at liability speci- than the "greater insureds, that, renewal insureds property dam- fied in the respon- coverage continues As of their liability provisions" age *6 limits, past, with the it had in the sibility as however, does not 1982 version to increase the insured opportunity for motorist cov- to underinsured address itself injury limits desired. applies to quoted provision erage. The does not of the statute 1982 version The does not and motorist coverage or motorist underinsured prohibit prevent underinsured motorist cover- underinsured than an insured's amount an bodily inju- insured's own age equal liability to the
ry limits.
not divide
does
as
The
position into
that
the statute
in the Lowes'
policyholders
The Lowes claim
apart from
unreasonable, arbitrary
results
class
arbitrary and unreasonable
duces
De-
They
policies after
reason
first issued
applied
in this manner.
when
does not
1987 amendment
that if the
All Indiana citizens
1987.
cember
coverage at
obtain
renewals,
no uninsured
then either
poli-
For
liability limits.
bodily injury
apply to them or
their
statutes
first
issued before
governed by the 1982 cies
they continue
be
request
that
however,
the insured
appeal does
This
of I.C. 27-7-5-2.
version
facts,
do not
we
these
coverage. Under
decide this issue.
require that we
Equal Pro-
that it
Farm Bureau
violates
demanded from
conclude the statute
Lowes
Privileges Clauses.
Equal
tection or
losses,
which exceeded
pay for
party to the automobile
of another
interpreta
finally claim
accident,
under the underinsured
poli
public
contravenes
tion of
therefore
policy. We will
provision of their
that
presumption
favors
cy, which
ap-
as it
to the statute
our decision
limit
mo
and underinsured
insured's uninsured
uninsured,
underinsured, not
cover-
plies to
magnitude
same
of the
torist
age.
insured's own
as the
Ins. Co. v.
did not
Mutual
coverage. Meridian
of the statute
The 1982 version
Ind.,
vacated
(1989),
also
540 N.E.2d
Richie
mention
In
Ri
544 N.E.2d
grounds,
on other
free
parties were
prohibit it. The
did not
the rest of the stat
can be reconciled with
however,
chie,
the court did not address
had,
statute as a
391-1987(ss).
ute.
Id.
"We examine
If it
4 of P.L.
section
whole,
ordinary
giving words common and
limited the
the court would have
we believe
meaning
overemphasizing
'and not
a strict
presumption to those
application of that
reading of individual
literal or selective
issued after December
policies originally
language
plain
words.'"
have done here.
just as we
meaning.
is the best evidence of its
statute
as a matter of law
The trial court erred
Holding
v. Metro
Avco Financial Services
partial
sum-
granted
when
Ind.App.,
Co.
5
thereby declared
mary judgment and
reh. denied.
and underinsured
had uninsured
Here,
plain language
that
indicates
bodily injury amounts due
at
legislative
only
intent was to exclude
cer
application
amended I.C.
to the
policies.
tain renewed
While the statute
Judgment is
renewals.
to their 1988
provides
applies only
policies
also
to enter
"[it]
fore
with instructions
reversed
31, 1987,"
first issued after
we
in favor
partial summary judgment
not overemphasize
should
a strict
literal
unin-
thereby declare the
Farm Bureau and
reading
Spaulding,
of the word "first."
coverages
sured and underinsured
N.E.2d
309. We must harmonize
amend-
they did before the 1987
remain as
phrase containing the
word "first" with
$25,000
person
per
ment in the amounts of
phrase stating
the other
certain
$50,000 per occurrence.
"newly issued
renewals do not constitute
Judgment
with instructions.
reversed
policies for which the insurer
de
RATLIFF, C.J., concurs.
scribed in this section."
CHEZEM, J.,
separate
dissents with
Second,
poli
the record indicates that the
opinion.
the statute was
cles were
issued after
CHEZEM, Judge, dissenting.
Indeed,
at
amended
First, assuming
respectfully
Complaint
I
dissent.
tached to the
has a declarations
"renewed,"
page,
the stat-
states: "Issue Date 08-24-88.
that the
addition,
replaces
it states that "it
language
contains
indicat-
ute
policy. There is
*7
poli-
supersedes" any preceding
that it
to these "renewed"
Indeed,
types of renewed
cies.
certain
a distinction between a
which has
renewed,
excluded from
as fol-
policies are
and one which
been extended
replaced
superseded.
The lat
has been
lows:
entirely
ter
new
has been
means
issued or delivered
Renewals
time;
it
issued to the insured for the first
undergone in-
in this state which have
case,
is "first issued." In this
policy endorsement or amend-
terim
renewed; it
not continued or
do not constitute
issued or
ment
policy "first
issued" in 1988.
was a new
policies for which the insurer is
delivered
de-
affirmed. We should
This case should be
scribed in this section.
in-
legislature's intent "that an
uphold the
coverage protecting him from other
27-7-5-2(b).
Certainly,
if the
Ind.Code §
magnitude as his
drivers be of the same
re-
legislative intent was to exclude all
injury liability coverage." Me-
own
no need for
newed
there would be
Richie
Mutual
Insurance Co. v.
ridian
qualifying language in the statute.
such
(1989), Ind., 540 N.E.2d
vacated on
course,
objective
our foremost
re
Of
phrase should be meaningless held part
and no should be