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Friday, September 18, 2015

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (1):

In Founders Insurance Company v. Mark May, Pamela Coomer, and Roger W. Hoke as the Personal Representative of the Estate of Brian Hoke, deceased, a 21-page, 2-1 opinion, Judge Robb writes:

Pamela Coomer, driving a vehicle owned by Mark May and insured by Founders Insurance Company (“Founders”), was involved in an accident that ultimately resulted in the death of Brian Hoke. Coomer did not have a valid driver’s license nor May’s permission to drive the vehicle. Founders filed a complaint seeking a declaratory judgment that it had no duty to defend or provide coverage for the accident pursuant to the terms of the insurance contract and sought summary judgment. The trial court granted summary judgment to Founders as to May and Coomer, but denied summary judgment as to Roger Hoke as the Personal Representative of the Estate of Brian Hoke, Deceased (“Hoke’s Estate”). Founders now appeals, raising the sole issue of whether the trial court erred in denying summary judgment as to Hoke’s Estate. We conclude the exclusions in the insurance contract relevant to this situation are clear and unambiguous and do not violate public policy; therefore, the exclusions are enforceable. Founders is entitled to summary judgment as to all parties, and the trial court’s order denying summary judgment as to Hoke’s Estate is reversed. * * *

The particular facts of this case present an issue of first impression in Indiana: Does an insurer which has no duty to provide coverage benefits to its insured pursuant to the plain terms of the insurance contract nonetheless have to pay damages to an injured third party who has no independent source of insurance? Founders contends that it does not have to pay those damages because it reasonably limited its liability by the terms of its insurance contract to exclude coverage in these circumstances. Hoke’s Estate argues that permitting Founders to deny coverage in this instance would contravene the public policy underlying Indiana’s Financial Responsibility Act to provide “persons who suffer loss due to the tragedy of automobile accidents . . . a source and means of recovery.” Brief of Appellee at 3. Hoke’s Estate contends that the result it seeks is “consistent with the result reached by appellate courts in other compulsory insurance law jurisdictions,” id. at 6, and is supported by the reasoning of Indiana decisions on similar issues. * * *

We have great sympathy for the Hokes and their loss. However, “a third party’s right to recover through liability insurance is not absolute.” Guzorek, 690 N.E.2d at 672. The dissent would base its decision on the public policy “that persons who suffer loss due to the tragedy of automobile accidents shall have a source and means of recovery,” see slip op. at 19-20 (quoting Williamson, 496 N.E.2d at 810), and require Founders to be that source for Hoke’s Estate. However, the source and means of recovery is grounded in the insurance contract itself. The general policy of making insurance available to compensate for losses arising from motor vehicle collisions does not trump the long-standing precedent allowing an insurer to reasonably limit its liability, nor should the recompense of one victim take precedence over the importance of providing affordable insurance to all motorists. Founders limited its risk to permissive, licensed drivers of this vehicle and fixed its premiums on that basis. There is no public policy against such limitations, there is simply the unfortunate reality that this injured party has no access to insurance proceeds under these circumstances. * * * We cannot say this is a case in which we should refuse to enforce the insurance contract on public policy grounds. Though recovery may be more difficult, Hoke is not without a remedy as he may still seek damages from May and Coomer. * * * Reversed.

Mathias, J., concurs.
May, J., dissents with opinion. [that begins, at p. 18] Summary judgment as to Hoke was properly denied. I acknowledge the majority’s concern that “[d]etermining an insurer’s liability only after an accident occurs and the status of the victim is ascertained creates the possibility of disparate treatment of similarly situated insurers.” (Slip op. at 14.) But the result the majority reaches in its effort to avoid “disparate treatment of similarly situated insurers” gives rise to a far greater concern – disparate treatment of innocent persons who are accident victims. As the majority result has the effect of depriving pedestrians, bicyclists, and other non-drivers of recovery that would remain available to motorists involved in traffic accidents, I must respectfully dissent.

I agree with the majority that the particular facts of this case present an issue of first impression in Indiana. But the majority’s narrow characterization of Indiana’s public policy is not required by our Indiana Supreme Court’s precedent and would lead to harsh and unfair outcomes, because it would result in protection for drivers injured in motor vehicle accidents but would leave no remedy for pedestrians, bicyclists, or other persons who need not or cannot prove financial responsibility.

NFP civil decisions today (4):

U.S. Bank Trust National Association, as Trustee of American Homeowener Preservation Trust Series 2014A, Rex A. Wells v. Tera Klutz and Susan Orth (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: Br. H. & Be.H. and C.H. v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of M.C. and K.P. and C.C. v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Term. of the Parent-child Relationship of: M.R.H. and M.M.E. and V.L.E. v. The Ind Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

CaNon Harper v. State of Indiana (mem. dec.)

Robert Horner v. State of Indiana (mem. dec.)

Jonathan Finley v. State of Indiana (mem. dec.)

Jevon Deandre Ollins v. State of Indiana (mem. dec.)

Marcus Hamilton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 18, 2015 12:09 PM
Posted to Ind. App.Ct. Decisions