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Progressive Southeastern Insurance Co. v. Smith

Court of Appeals of Indiana

January 2, 2020

Progressive Southeastern Insurance Co., Appellant-Plaintiff,
v.
Gregory Smith and Nolan Clayton, Appellees-Defendants and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company Defendants

          Appeal from the Marion Superior Court The Honorable Timothy W. Oakes, Judge Trial Court Cause No. 49D02-1701-PL-2865

          ATTORNEYS FOR APPELLANT Margaret M. Christensen Karl L. Mulvaney Bingham Greenebaum Doll LLP Indianapolis, Indiana

          Attorneys for Appellee Gregory Smith Ann Marie Waldron Waldron Law Indianapolis, Indiana Michael E. Simmons Hume Smith Geddes Green & Simmons, LLP Indianapolis, Indiana Robert P. Thomas Thomas Law Office Indianapolis, Indiana

          Attorney for Appellee Nolan Clayton William D. Beyers Buchanan & Bruggenschmidt, P.C. Zionsville, Indiana

          Baker, Judge.

         [¶1] This is the second appeal arising out of a declaratory judgment action that was filed by Progressive Southeastern Insurance Company (Progressive). The action was based on a car accident that seriously injured Gregory Smith, who was insured by Progressive. At the time of the accident, Nolan Clayton was driving Smith's vehicle with Smith's permission and Smith was a passenger. Progressive sought declarations that Smith was not entitled to coverage under the insurance policy's uninsured motorist or bodily injury liability provisions and that it had no duty to defend or indemnify Clayton. In the first appeal, this Court determined that Smith was not entitled to uninsured motorist coverage.

         [¶2] This appeal stems from litigation that occurred following the first appeal. The trial court granted Smith's motion to dismiss the complaint, finding that Progressive had waived its other claims by bringing the first appeal. Progressive now appeals, arguing that it waived no claims, that we should declare that Smith is not entitled to bodily injury liability coverage, that we should declare that Progressive has no duty to defend or indemnify Clayton, and that Clayton is not entitled, at this point in time, to dismissal of the complaint based on alleged failure to prosecute. Finding that Progressive is entitled to judgment as a matter of law, we reverse and remand with instructions.

         Facts[1]

         Underlying Litigation and First Appeal

         [¶3] The underlying facts, as described by this Court in the first appeal, are as follows:

On February 18, 2016, Smith and Clayton attended a company event in Marion County, Indiana. They left the event together and Smith gave Clayton permission to drive Smith's pick-up truck. Clayton lost control over the vehicle and ran into a tree, seriously injuring Smith. No other vehicles were involved in the accident.
At the time of the incident, Progressive insured Smith under a policy which provided coverage for liability, medical payments, [underinsured motorist ("UM")] coverage, coverage for damage to the insured's vehicle, and roadside-assistance coverage. Accordingly, Progressive paid Smith's vehicular damages in the amount of $10, 937.71 and the medical payments coverage limits of $5, 000. Smith also brought a negligence claim against Clayton, who was insured by Allstate. Allstate eventually settled out of court with Smith.

Progressive Se. Ins. Co. v. Smith, 113 N.E.3d 229, 232 (Ind.Ct.App. 2018) (the "First Appeal"), trans. denied.

         [¶4] On January 19, 2017, Progressive filed a complaint seeking two declaratory judgments. First, it sought a declaration that Smith was "not entitled to coverage under his policy's [UM] or bodily injury provisions" for the accident (the "Coverage Declaration"). Appellant's App. Vol. II p. 26. Second, it sought a declaration that Progressive was "not obligated to defend or indemnify [Clayton] as to any matter asserted in [Smith's] lawsuit[2] because [Smith] cannot recover under his own policy for the injuries he attributes to" Clayton's negligence (the "Duty to Defend Declaration"). Id.

         [¶5] On April 27, 2017, Smith filed a motion for summary judgment, seeking a declaration that he was entitled as a matter of law to UM coverage even though his truck was covered under the policy. Smith has never argued that he is entitled to coverage under the policy's bodily injury liability provision and has conceded that he could not pursue recovery under both that provision and the UM coverage provision. Id. at 87-105, 158; First Appeal Smith's Br. p. 20; First Appeal Oral Arg. at 31:45; First Appeal Pet. to Trans. p. 12. Progressive filed its own motion for summary judgment, arguing that it was entitled as a matter of law to a declaration that Smith was not entitled to UM coverage under the policy.

         [¶6] On December 14, 2017, without a hearing, the trial court signed Smith's proposed findings and summarily granted summary judgment to him and against Progressive on the UM portion of the Coverage Declaration. Neither party discussed, and the trial court's order did not cover, the Duty to Defend Declaration or the bodily injury liability portion of the Coverage Declaration.

         [¶7] Progressive appealed, arguing that the trial court erred by granting summary judgment in Smith's favor. It did not seek permission to bring an interlocutory appeal; instead, Progressive brought the appeal as one taken from a final judgment, and this Court treated it as such. This Court ultimately found that the trial court erred because the policy "unambiguously excluded Smith's truck from UM coverage and the policy reimbursed Smith for the damage to his vehicle and his medical payments pursuant to the policy's requirements . . . ." Progressive, 113 N.E.3d at 237. We reversed, holding that the trial court erred by concluding that Smith was entitled to receive payment under the policy's UM coverage. Id. We did not explicitly remand, direct that judgment be entered in favor of Progressive, or refer to the Duty to Defend Declaration or the bodily injury portion of the Coverage Declaration.

         Other Litigation ...


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