Appeal from the St. Joseph Superior Court The Honorable Jenny
Pitts Manier, Judge, Trial Court Cause No. 71D05-1603-CT-170
ATTORNEYS FOR APPELLANT John H. Halstead Ryan D. O'Day
Kightlinger & Gray, LLP Merrillville, Indiana.
ATTORNEYS FOR APPELLEE Douglas E. Sakaguchi James P. Barth
Pfeifer, Morgan & Stesiak South Bend, Indiana.
ATTORNEYS FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION
William E. Winingham Jonathon B. Noyes Wilson Kehoe Winingham
LLC Indianapolis, Indiana.
Two motorists were involved in a car accident. During the
subsequent legal proceedings, the Indiana Insurance Guaranty
Association (IIGA) intervened as the real party in interest,
and the trial court substituted the IIGA for the original
insurance company defendant. The IIGA filed a motion to
dismiss, arguing that the tortfeasor's insurance
company's denial of coverage did not render him uninsured
such that the other motorist seeking damages could not
recover under his own insurance policy's provision on
uninsured automobiles. The IIGA brings this interlocutory
appeal following the trial court's denial of its motion.
Finding no error with the trial court's denial of the
motion to dismiss, we affirm.
On August 18, 2015, Carlos Smith and Martin Torres were
involved in a car accident in South Bend. At the time of the
accident, Smith was insured by Affirmative Casualty Insurance
Company (Affirmative) and Torres was insured by ACCC
Insurance Company (ACCC). On November 10, 2015, ACCC denied
coverage to Torres based on his lack of cooperation with the
On March 29, 2016, Smith filed a complaint against Torres and
Affirmative, alleging that Torres negligently caused
Smith's injuries and that Torres was uninsured at the
time of the accident based on ACCC's denial of coverage.
He also alleged that, under the uninsured motorist provision
of his own insurance policy, Affirmative was liable for the
damages he suffered as a result of an accident with an
uninsured driver. The Affirmative policy defines an
"uninsured automobile" as:
1. an automobile or trailer with respect to the ownership,
maintenance or use of which there is, in at least the amount
specified by the financial responsibility law of the state in
which the insured automobile is principally garaged, no
bodily injury liability bond or insurance policy applicable
at the time of the accident with respect to any person or
organization legally responsible for the use of such
automobile . . . .
3. an automobile with respect to which there is a bodily
injury liability insurance policy applicable at the time of
the accident but the Company writing the same is or becomes
insolvent subsequent to the date of an accident.
Appellant's App. Vol. II p. 44.
Five days before Smith filed his complaint, an order of
liquidation was entered against Affirmative. The IIGA was
subsequently deemed the insolvent insurer under Indiana Code
section 27-6-8-7(a)(2). The IIGA intervened in the case as the
real party in interest, and the trial court substituted the
IIGA for Affirmative as the defendant.
On December 7, 2016, the IIGA filed a motion to dismiss,
arguing that ACCC's denial of coverage did not render
Torres uninsured under Indiana law or the Affirmative policy.
A hearing took place on January 11, 2017, and that same day,