United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the: (1) Motion for Partial Summary Judgment Against Defendants, filed by Plaintiffs Dee Frye and Lanhui Frye, on October 11, 2013 (DE# 48); (2) Plaintiffs' Alternative Motion for Partial Summary Judgment, filed by Plaintiffs Dee Frye and Lanhui Frye on October 11, 2013 (DE# 50); (3) Supplemental Motion for Summary Judgment filed by Defendant Nationwide Mutual Insurance Company on May 29, 2014 (DE# 72); (4) Partial Stipulation of Dismissal, filed jointly by Plaintiffs Dee Frye and Lanhui Frye and Defendant Nationwide Mutual Insurance Company on June 2, 2014 (DE# 74); and (5) Partial Stipulation of Dismissal, filed jointly by Plaintiffs Dee Frye and Lanhui Frye and Defendant Auto-Owners Insurance Company on October 30, 2014 (DE# 86). For the reasons set forth below, the Motion for Partial Summary Judgment (DE# 48) and the Alternative Motion for Partial Summary Judgment (DE# 50) are DENIED. The Supplemental Motion for Summary Judgment (DE# 72) and the Partial Stipulation of Dismissals (DE## 74 & 86) are GRANTED. Defendant Nationwide Mutual Insurance Company is hereby DISMISSED from this case.
For the purposes of these motions for summary judgment, the facts below are undisputed:
Plaintiff Dee Frye ("Frye") was involved in a car accident in LaPorte County, Indiana, on January 27, 2011, in which he was seriously injured. (Comp., DE# 80-1, ¶¶ 6-9; Aff. of Dee Frye ("Frye Aff."), DE# 80-19, ¶¶ 5-7.) The accident was caused by the negligence of Myron Dampier ("Dampier"), the driver of the other vehicle. (Frye Aff. ¶ 6.) As a result of the accident, Frye sustained serious permanent injuries and damages. ( Id. ¶¶ 8, 10.)
At the time of the accident, Dampier was insured by Farmers Insurance ("Farmers"). ( See Comp. ¶ 10; DE## XX-X-XX-XX.) Frye was driving a vehicle owned by Arthur and Mary Webber ("the Webbers"). ( See Comp. ¶ 5; Frye Aff. ¶ 10; DE# 80-2.) The Webbers' vehicle was insured by an insurance policy ("Nationwide Policy") issued by Nationwide Mutual Insurance Company ("Nationwide"). (Comp. ¶ 5; Frye Aff. ¶ 10; Nationwide Policy, DE# 80-2.) The accident occurred while Frye was driving that vehicle in the scope of his employment with Tri City Data & Electronic, Inc. ("Tri City"). (Comp. ¶ 6; Frye Aff. ¶ 10.) Through Tri City, Frye was covered by a commercial automobile insurance policy ("Auto-Owners Policy") issued by an affiliate of Auto-Owners Insurance Company ("Auto-Owners"). (Comp. ¶ 4; Auto-Owners Policy, DE# 80-3.) Tri City also provided a commercial umbrella policy issued by Auto-Owners that extended coverage to Frye ("Auto-Owners Umbrella Policy"). (Comp. ¶ 4; Auto-Owners Umbrella Policy, DE# 80-4.)
At issue here are the terms of the Nationwide Policy and the Auto-Owners Policy.
The Nationwide Policy includes an endorsement for underinsured motorist ("UIM") coverage. (DE# 80-2 at 2-6.) It defines an underinsured motor vehicle as "one for which there is bodily injury liability bonds or insurance at the time of the accident in at least the amounts required by the financial responsibility laws where your auto is principally garaged. Their total amount, however, is less than the limits of this coverage." ( Id. at 3 (emphasis omitted).) The Nationwide Policy's Declarations provides UIM coverage of $100, 000 per person. ( Id. at 14.)
Under the UIM endorsement, Nationwide agrees to pay compensatory damages for an insured's bodily injury caused by the driver or owner of an underinsured motor vehicle and compensatory damages due by law to other persons who suffer bodily injury while occupying "your auto." ( Id. at 3.) The provision entitled, "LIMITS AND CONDITIONS OF PAYMENT, AMOUNTS PAYABLE FOR UNDERINSURED MOTORISTS LOSSES, " states in part:
We agree to pay losses up to the limits stated in the policy Declarations. The following applies to these limits:
6. The maximum amount payable for bodily injury is the lesser of:
a) the difference between:
(1) the amount paid in damages to the insured by or for any person or organization who may be liable for the insured's bodily injury; and
(2) the per-person limit of underinsured motorists coverage; or
b) the difference between:
(1) the total amount of damages incurred by the insured; and
(2) the amount paid by or for any person or organization liable for the insured's bodily injury.
( Id. at 5-6 (emphasis omitted).)
The Nationwide Policy's UIM endorsement also addresses "Other Insurance":
1. If there is other insurance for bodily injury suffered by an insured while occupying a motor vehicle other than your auto, our coverage is excess over any other collectible:
b) self insurance;
c) proceeds for a governmental entity; or
d) sources of recovery.
However, this insurance will apply only in the amount by which the limit of coverage under this policy exceeds the total amount collectible from all of the above noted recovery sources.
2. Except as stated above, if there is other insurance similar to this coverage under any other policy, we will be liable for only our share of the loss. Our share is our ...