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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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