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COA: Government vehicle exclusion is void

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The Indiana Court of Appeals concluded today in a matter of first impression that the government vehicle exclusion in underinsured motorist policies is void as against public policy.

The issue arose in Cincinnati Insurance Co. v. James and Jan Trosky, et al., No. 29A02-0902-CV-148, in which Cincinnati argued Indiana substantive law should apply in determining whether government vehicles could be excluded from the definition of underinsured motor vehicle in the policies of the parties involved in the litigation. Courtland Brown, Kyle Trosky, and Kaitlin Culpepper were driving home from Florida in a car owned by Brown's parents. Culpepper was a permissive driver at the time of the accident, in which their car collided with one owned by the Florida Highway Patrol. Trosky was killed and Culpepper was injured.

The families sought excess underinsured motorist coverage from Cincinnati, which provided excess UIM coverage to the Browns; and from State Farm Fire, which provided excess UIM coverage to the Troskys. The trial court applied Florida substantive law to determine the exclusion of government vehicles was void as against public policy. The court granted summary judgment for the Troskys in their motion for summary judgment against Cincinnati and State Farm Fire, and granted Culpepper's motion for partial-summary judgment against Cincinnati.

The appellate court agreed with Cincinnati that Indiana substantive law should have been applied, which hasn't addressed this question. The Court of Appeals ultimately agreed with cases from other jurisdictions that held government vehicle exclusions from the definition of underinsured motorist in insurance polices are void because they are against public policy.

"Our UM/UIM statutes mandate minimum coverage, and the insurance policy exclusions for government-owned vehicles deny coverage, where it is required by statute," wrote Judge Ezra Friedlander. "These exclusions conflict with the express language of the statute by narrowing the definition of underinsured motor vehicles, and are void as against public policy."

The appellate court also agreed with cases from other jurisdictions that held the sovereign immunity defense isn't available to UIM carriers who argue that once the statutory cap has been paid by the governmental unit, the insured is no longer "legally entitled to recover."

The FHP vehicle was underinsured, and the trial court correctly determined Culpepper was entitled to recover from the Cincinnati personal liability umbrella policy, wrote the judge. The appellate court also affirmed the decision that the Troskys could recover under the Cincinnati, State Farm Fire, and their State Farm Auto policy's UIM provisions for Kyle's wrongful death; and that the Troskys should first recover under Kyle's auto policy, and then receive pro rata coverage from Cincinnati and State Farm Fire, wrote Judge Friedlander.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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