from the Henry Circuit Court Trial Court Cause No.
33C01-1407-CT-22 The Honorable Bob A. Witham, Judge
Attorney for Appellant Stephen C. Wheeler Smith Fisher Maas
Howard & Lloyd, P.C. Indianapolis, Indiana
Attorney for Appellee P. Gregory Cross The Cross Law Firm,
P.C. Muncie, Indiana
of the Case
Brena Berardicelli ("Berardicelli"), on behalf of
her three-year-old son ("J.B."), filed a complaint
for damages, alleging that Travis Shroyer
("Shroyer") caused injuries to J.B. by negligently
operating a skid loader on his premises. Shroyer's
homeowner's insurance company, Auto-Owners Insurance
Company ("Auto-Owners"), denied coverage for the
accident as well as any duty to indemnify or defend Shroyer.
Shroyer brought an insurance coverage declaratory judgment
action requesting Auto-Owners indemnify and defend him
pursuant to the Personal Liability Protection Coverage under
his homeowner's insurance policy (the
"Policy"). In response, Auto-Owners filed a motion
for summary judgment alleging that it had no duty to
indemnify or defend Shroyer's liability claims because
the undisputed evidence demonstrates that J.B. was an
"insured" under the Policy and that, as a matter of
law, the coverage for bodily injury to J.B. was excluded. The
trial court denied Auto-Owners' motion for summary
On appeal, Auto-Owners argues that the trial court erred in
denying the motion and that it was entitled to summary
judgment as a matter of law because J.B. qualifies as an
"insured" under the Policy. Concluding that J.B.
was an "insured" as defined in the Policy at the
time of the accident, we reverse the denial of summary
judgment and remand to the trial court to enter judgment in
favor of Auto-Owners.
We reverse and remand.
the trial court erred in denying summary judgment to
Beginning in the summer of 2013 until April 2014,
Berardicelli and her two sons resided with Shroyer at his
residence. Berardicelli and Shroyer were "together"
and shared a bedroom at the residence. (App. Vol. 2 at 194).
On April 26, 2014, Shroyer moved a Caterpillar skid loader
out of his barn. Shroyer planned to use the skid loader to
move stone, put in a garden, and do some other landscaping.
At some point, Shroyer "thought he had backed over the
pile of dirt he had just left behind him, but got off the
machine to check and noticed [J.B.'s] battery operated
four-wheeler under the machine and [J.B.] laying on the
ground injured." (App. Vol. 2 at 183). As a result, J.B.
suffered serious injuries.
Property-Owners Insurance Company, which is an affiliate of
Auto-Owners, insured Shroyer. The Policy identifies the
insured premises as Shroyer's residence, which was the
location of the accident. The Policy provides personal
liability coverage with limits of $500, ...