Erie Indemnity Company, as the Attorney-In-Fact for the Subscribers at Erie Insurance Exchange, Appellant-Defendant/Counterclaimant,
The Estate of Brian L. Harris, By Its Special Representative, Laura Harris, and Anna Marie Harris, Spouse of Brian L. Harris, Deceased, Appellees-Plaintiffs/Counterdefendants.
from the LaPorte Superior Court The Honorable Richard R.
Stalbrink, Jr., Judge Trial Court Cause No.
ATTORNEYS FOR APPELLANT Mark R. Smith Donna H. Fisher Smith
Fisher Maas Howard & Lloyd P.C. Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE INSURANCE INSTITUTE OF INDIANA,
INC. Bryan H. Babb Bose McKinney & Evans LLP
ATTORNEYS FOR APPELLEES Michael J. Anderson Scott M. Keller
Tracey S. Schafer Anderson, Agostino & Keller, P.C. South
Erie Indemnity Company, as the Attorney-In-Fact for the
Subscribers at Erie Insurance Exchange (together,
"Erie"),  appeals the trial court's summary
judgment decision in favor of the widow and estate of Brian
L. Harris. On appeal, Erie raises the following restated
issue: Whether the trial court erred as a matter of law by
finding that the uninsured motorist insurance issued to Brian
L. Harris's ("Brian") employer, as part of its
commercial auto fleet policy that covered Brian's
take-home car, provided coverage when Brian, while off duty
and cutting his own lawn on a riding mower, was struck and
killed by a car driven by an uninsured motorist.
and Procedural History
On August 6, 2010, Brian was on a riding lawnmower, cutting
grass at his Goshen, Indiana home, when, while close to the
road, he was struck and killed by Noel M. Sparks
("Sparks"), who was driving a 1974 Chevy truck
("Chevy"). Sparks had borrowed the Chevy with the
permission of its owners, Brent and Jamie Stouder (together,
"the Stouders"). At the time of the accident,
Sparks was driving on a suspended license and was under the
influence of illegal drugs. Because Sparks was operating the
vehicle as an unlicensed driver, the Stouders' insurance
on the Chevy did not apply to the accident; accordingly,
Sparks was deemed to be an uninsured motorist.
Brian, who was the husband of Anna Marie Harris ("Anna
Marie"),  had worked since January 1993 for Formco
Inc. ("Formco"), a plastic design and manufacturing
company in Elkhart County. During his employment, Brian drove
a company-owned vehicle as his primary transportation for
both business and personal uses. In August 2010, Brian's
vehicle was a 2004 Toyota pickup truck
In December 1993, Formco submitted an application to Erie
requesting Commercial Non-Fleet/Fleet Auto coverage. In
Section 10 of that application, Formco was required to list:
(1) the vehicles for which coverage was requested; and (2)
each driver's name and license number exactly "as it
appears on the driver's license."
Appellant's App. Vol. 2 at
139. Brian's name was submitted as one of only three
named drivers in a policy that covered eleven vehicles. The
other drivers listed were David Slagel, President of Formco,
and Jean Woodworth, whose position was not provided. On
December 11, 1993, Erie issued a Commercial Auto Policy to
Formco as the sole "Named Insured, " designating
the autos that were covered, but mentioning nothing about
individual drivers. That policy was renewed each year, and
vehicles were added and deleted as needed. The policy that
was in effect at the time of the accident was the sixteenth
renewal ("the Policy") and covered the term from
December 11, 2009 to December 11, 2010. The Policy included
an Uninsured/Underinsured Motorist Coverage Endorsement -
Indiana ("UM Endorsement"),  which supplied
coverage limits of $1, 000, 000 per accident, and listed the
Toyota as one of Formco's scheduled vehicles. Brian paid
no premiums and was not a named insured under the Policy.
Norman C. Flick, the Section Supervisor, Commercial Property
and Casualty Underwriting, for the Commercial Lines and
Reinsurance Division of Erie Insurance Exchange, submitted an
affidavit, as designated evidence, stating, "Brian was
not listed as a 'named insured' or an 'additional
insured' in any of the renewals' Declarations Pages;
nor was Brian's name listed anywhere in the renewals'
Declarations Pages. Rather, Brian was identified in
[Erie]'s underwriting records as a 'scheduled
driver' under the Policy." Appellant's
App. Vol. 3 at 80; Appellant's
App. Vol. 4. at 44.
Following Brian's death, his estate submitted a claim to
Erie seeking damages for bodily injury under the Policy's
UM coverage. Erie denied that claim by letter dated September
6, 2010. In that denial letter, Erie asserted that UM
coverage was unavailable because: (1) Brian did not meet the
definition of a named insured "you, " as defined in
the Policy; and (2) Brian was not using or occupying an auto
insured by the Policy at the time of the accident.
Brian's estate and Anna Marie (together "the
Estate") filed a Complaint for Damages and Declaratory
Judgment in Elkhart Superior Court (Case No.
20D03-1107-CT-11) ("Complaint") on July 8,
2011. The Complaint set forth the following
counts: Count I alleged negligent operation of a motor
vehicle by Sparks; Count II alleged negligent entrustment by
the Stouders of their Chevy to Sparks; and Count III sought
declaratory judgment to determine whether the Policy's UM
insurance covered the damages that the Estate had suffered
from the August 6, 2010 motor vehicle accident. In addition
to its answer, Erie filed a counterclaim against the
Erie also filed a motion for summary judgment as to Count
III, seeking declaratory judgment that the Policy did not
provide UM coverage and its designation of evidence. Following
full briefing, the trial court held a hearing on the
parties' cross-motions for summary judgment and, on April
11, 2016, issued its interlocutory order denying Erie's
motion for summary judgment and granting the Estate's
cross-motion for summary judgment ("SJ Order"). In
the SJ Order, the trial court addressed the liability issues
and determined that the Estate was entitled to recover for
Brian's accident under the Policy's UM Endorsement;
however, the trial court did not address the damages issue.
In an Agreed Entry, dated May 12, 2016, the parties
stipulated "as to the damage issues,
" but only "pursuant to a full and
complete reservation of their respective appellate rights in
connection with the appeal of the liability issues determined
by the Court's [SJ Order.]" Appellant's
App. Vol. 4 at 184. Erie now
On appeal from a grant of summary judgment, our standard of
review is the same as that of the trial court. FLM, LLC
v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173
(Ind.Ct.App. 2012), trans. denied. We stand in the
shoes of the trial court and apply a de novo standard of
review. Id. Our review of a summary judgment motion
is limited to those materials designated to the trial court,
and summary judgment is appropriate only where the designated
evidence shows there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C), (H); FLM, 973 N.E.2d at
1173. We view the pleadings and designated materials in the
light most favorable to the non-moving party. FLM,
973 N.E.2d at 1173. Additionally, all facts and reasonable
inferences from those facts are construed in favor of the
nonmoving party. Id.
A trial court's grant of summary judgment is clothed with
a presumption of validity, and the party who lost in the
trial court has the burden of demonstrating that the grant of
summary judgment was erroneous. Id. Where a trial
court enters specific findings and conclusions, they offer
insight into the rationale for the trial court's judgment
and facilitate appellate review, but are not binding upon
this court. Id. We will affirm upon any theory or
basis supported by the designated materials. Id.
Here, the parties filed cross-motions for summary judgment,
however, that does not alter our standard of review.
Id. at 1173-74. "Instead, we must consider each
motion separately to determine whether the moving party is
entitled to judgment as a matter of law." Id.
At issue in this case is whether a term of the Policy,
regarding whether Brian is protected by the Policy's UM
coverage, is ambiguous. Insurance policies are governed by
the same rules of construction as other contracts, and their
interpretation is a question of law. Bradshaw v.
Chandler, 916 N.E.2d 163, 166 (Ind. 2009). "When
interpreting an insurance policy, our goal is to ascertain
and enforce the parties' intent as manifested in the
insurance contract. We construe the insurance policy as a
whole and consider all of the provisions of the contract and
not just the individual words, phrases or paragraphs."
Buckeye State Mut. Ins. Co. v. Carfield, 914 N.E.2d
315, 318 (Ind.Ct.App. 2009), trans. denied. Further,
we "seek to harmonize the provisions, rather than leave
them in conflict." Erie Ins. Exch. v. Sams, 20
N.E.3d 182, 188 (Ind.Ct.App. 2014), trans. denied.
"[W]here, as here, we interpret an endorsement to an
insurance policy, the endorsement 'must be read together,
construed, and reconciled with the policy to give effect to
the whole.'" Masten v. AMCO Ins. Co., 953
N.E.2d 566, 569 (Ind.Ct.App. 2011) (quoting Stevenson v.
Hamilton Mut. Ins. Co., 672 N.E.2d 467, 473 (Ind.Ct.App.
1996), trans. denied), trans. denied.
"We construe the policy and relevant endorsements from
the perspective of 'an ordinary policyholder of average
intelligence, ' and if 'reasonably intelligent people
may interpret the policy's language differently, '
the policy is ambiguous." Id. (quoting
Bradshaw, 916 N.E.2d at 166). "If there is an
ambiguity, we construe the policy strictly against the
insurer." Milbank Ins. Co. v. Indiana Ins. Co.,
56 N.E.3d 1222, 1229 (Ind.Ct.App. 2016).
Pursuant to Indiana Code section 27-7-5-2, insurance
companies must provide UM coverage in all existing or newly
issued automobile policies up to the policy limits, unless
such coverage is rejected in writing. Liberty Mut. Fire
Ins. Co. v. Beatty, 870 N.E.2d 546, 549 ...