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Asklar v. Gilb

Supreme Court of Indiana

May 29, 2014

DEREK ASKLAR AND PAULINE ASKLAR, Appellants (Plaintiffs below),
v.
DAVID GILB, PAUL GARRETT SMITH D/B/A P.H. ONE TRUCKING, EMPIRE FIRE & MARINE INSURANCE CO. D/B/A ZURICH AND NORTHLAND INSURANCE CO., Appellee (Defendant below), TRAVELERS INDEMNITY CO. OF AMERICA, Intervenor

Appeal from the Allen Superior Court, No. 02D01-1003-CT-130. The Honorable Stanley Levine, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1204-CT-170.

ATTORNEY FOR APPELLANT: Thomas A. Manges, Fort Wayne, Indiana.

ATTORNEY FOR APPELLEE: Diana C. Bauer, Fort Wayne, Indiana.

Massa, Justice. Dickson, C.J., and Rucker, David, and Rush, JJ., concur.

OPINION

Page 166

Massa, Justice.

Derek Asklar appeals the trial court's order of summary judgment capping Empire Fire and Marine Insurance Co.'s liability for underinsured motorist coverage at $75,000. Because the truck at issue was registered and garaged in Indiana, we agree with our Court of Appeals that Indiana law applies. But as issues of material fact remain regarding the applicable level of coverage, we reverse the trial court and remand for further proceedings.

Facts and Procedural History

In 2008, Derek Asklar, an Allen County resident, was driving a semi-tractor trailer on behalf of Werner Transportation Services, Inc., a Georgia company. Werner Transportation leased Asklar's truck from Schilli Leasing, a South Bend, Indiana company and insured it under a policy from Empire Fire and Marine Insurance Co. Asklar was injured when a second semi-tractor trailer, driven by David Gilb, hit his rig on a road in West Virginia. Asklar sued Gilb, Gilb's employer, and Gilb's insurer in the Allen Superior Court. Believing his damages would exceed the liability limits of Gilb's employer's insurance policy, Asklar joined Empire to determine the extent of any underinsured motorist coverage available under the policy.

Empire acknowledged it provided $5 million in liability coverage for Asklar's truck, but claimed the policy only included $75,000 in underinsured motorist coverage. Both Asklar and Empire moved for summary judgment on the underinsured motorist coverage issue. The trial court applied Georgia law, which permits an insured to choose to purchase underinsured motorist coverage in a lower amount than the liability policy limit. The trial court found the procurement and endorsement of the policy itself was sufficient evidence that Werner Transportation, through its President, John Werner, made that affirmative choice and granted summary judgment in favor of Empire.

Asklar appealed the trial court's decision, arguing Indiana law, and not Georgia law, applied, and therefore Werner would have had to execute an explicit written rejection of underinsured motorist coverage in order to purchase coverage below the policy's liability limit. The Court of

Page 167

Appeals found that Indiana law did indeed apply because any vehicle registered and principally garaged in Indiana, as Asklar's rig was, must comply with the requirements set forth in Ind. Code § 27-7-5-2 (2012 & Supp. 2013). Asklar v. Gilb, 979 N.E.2d 664, 667 (Ind.Ct.App. 2012). Nevertheless, it affirmed the trial court, concluding the evidence presented was sufficient under Indiana law to establish the lower coverage limits for underinsured motorist coverage under the policy. Id. at 668.

Asklar sought transfer to this Court, arguing the Court of Appeals and trial court were incorrect in finding Werner had explicitly rejected equal Uninsured/Underinsured Motorist Coverage under its Empire policy. We granted Asklar's petition. Asklar v. ...


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