The Estate of Robert Curtis, Sr., by its Personal Representative, Theresa Brade, Appellants-Defendants,
GEICO General Insurance Company, Appellee-Plaintiff
from the St. Joseph Circuit Court The Honorable David T.
Ready, Judge The Honorable Larry L. Ambler, Magistrate Trial
Court Cause No. 71C01-1501-PL-16
Attorneys for Appellant Daniel H. Pfeifer Jerome W. McKeever
James P. Barth Pfeifer, Morgan & Stesiak South Bend,
Attorneys for Appellee Benjamin D. Ice William A. Ramsey
Barrett McNagny, LLP Fort Wayne, Indiana.
Drake Matovich and Robert Curtis engaged in a physical
altercation in a grocery store parking lot. Curtis was
severely injured and eventually died, allegedly as a result
of the altercation. Matovich and Curtis's estate entered
into an agreed judgment, pursuant to which Matovich admitted
liability and assigned his claims against his automobile
insurer, GEICO General Insurance Company (GEICO), to Curtis.
GEICO filed a declaratory judgment action against Curtis,
seeking a declaration that the altercation was not covered
under GEICO's insurance policy with Matovich because
Matovich was not "using" the covered vehicle at the
time of the incident. The trial court granted GEICO's
summary judgment motion. On appeal, both parties make
multiple arguments, but we find one dispositive-whether this
altercation was covered by the policy as a matter of law.
Finding that it was not, we affirm.
During the relevant period of time, Matovich was insured by
GEICO under an automobile liability policy (the Policy)
covering a 2004 Chevrolet truck. On September 17, 2009,
Matovich was sitting in his parked truck in the parking lot
of a Meijer in Mishawaka. Another vehicle, being driven by
Curtis, bumped into Matovich's parked vehicle but did not
Matovich pursued Curtis's vehicle, pulling his truck
alongside Curtis and asking him to roll down his window.
Curtis stopped his vehicle and Matovich stopped his truck
next to it. Curtis rolled down his window and Matovich said,
"You just hit my truck. I need you to stop."
Appellant's App. Vol. II p. 110. Matovich then exited his
truck and walked over to Curtis's window, saying,
"You hit my truck. You can't just drive away.
I'm going to need your information." Id. at
Curtis exited his vehicle and approached Matovich
aggressively, saying, "f*ck you" repeatedly.
Id. at 112. Curtis then chest bumped Matovich, who
retreated to the rear of his truck, with Curtis following.
Curtis made contact with Matovich again, and Matovich told
Curtis to take it easy, stay back, and calm down. Curtis made
contact with Matovich again. Matovich then put his hand out
and said, "You need to stop and stay back."
Id. at 115. Curtis made contact with Matovich,
walking into his outstretched hand; Curtis's eyes rolled
up, his arms went limp, and he collapsed. Curtis eventually
died on June 21, 2010, and his Estate contends that his death
stemmed from the altercation with Matovich.
On May 20, 2011, Curtis's Estate filed a wrongful death
suit against Matovich, alleging that Matovich's
recklessness and negligence had resulted in Curtis's
death. GEICO paid for Matovich's defense but reserved its
rights to later deny coverage. Following mediation, the
parties entered into an agreement. The Agreed Judgment, which
was entered as an order by the trial court on July 31, 2014,
provided, in pertinent part, as follows:
2. After the minor bump of the two vehicles, Mr. Matovich in
connection with the use of his vehicle, exited his vehicle.
In the process of exiting his vehicle, Mr. Matovich
negligently came into contact with [Curtis] causing [Curtis]
to fall on the parking lot at the Meijer store.
4. As a direct and proximate result of the negligence of
[Matovich], [Curtis's Estate] has sustained medical
expenses in the amount of $357, 868.45 and [Curtis] incurred
extensive pain and suffering until his ultimate death on June
5. The parties agree and stipulate that the negligence of
[Matovich] caused [Curtis's] injury.
8. The parties agree and request the Court enter an Order for
judgment against [Matovich] in the ...