ILNews

Court reverses insurer's summary judgment

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals today reversed a summary judgment award in favor of an auto insurance company, holding that an uninsured-motorist claim was not barred by state statute and language of the insurance policy.

In Mary Lou Smith, et al. v. Auto-Owners Insurance Co., No. 84A01-0611-CV-516, the appellate court had to decide whether Smith's claim for uninsured motorist coverage against her policyholder, Auto-Owners, was allowed based on her policy and Indiana Code 27-7-5-4.

Smith and several family members were involved in a car accident caused by Nellie Rogers in February 1999. The Smiths filed a personal injury action against Rogers in February 2001. Just a few days before the trial was set to start in 2004, Rogers' attorney told the Smiths' attorney that Rogers' insurance company, Highlands Insurance Co., had filed for receivership in Texas. That same day, the Smiths' attorney sent a letter to Auto-Owners to inform the company the Smiths would be making an uninsured-motorist claim. Later, the Smiths added Auto-Owners as a defendant in their personal-injury action.

Auto-Owners filed a complaint for declaratory judgment, arguing Indiana statutes and the terms of the Smiths insurance policy prevented them from making an uninsured motorist claim more than two years after an accident. The trial court granted summary judgment in favor of Auto-Owners.

At issue in this case is the interpretation and application of the insurance policy and definition of insolvency regarding uninsured-motorist claims as defined by Indiana Code, wrote Judge James Kirsch. He and Judge Margret Robb overturned the trial court grant of summary judgment.

Indiana Code 27-7-5-4 says uninsured motorist coverage under an insurer's insolvency protection applies only when the tortfeasor's insurer becomes insolvent within two years after the accident. The Smiths' insurance policy with Auto-Owners also says they must file an uninsured-motorist claim within two years from the date that the cause of action accrued. However, in the Smith's case, the cause of action for the claim is the insolvency of Rogers' insurer.

Before discovering Highland had become insolvent, the Smiths would not have been able to bring a claim for uninsured motorist with Auto-Owners, wrote Judge Kirsch. The statute of limitations for IC 27-7-5-4 runs from the date of the accident or the date of the insurer's insolvency, whichever is later. For someone to claim uninsured-motorist coverage due to insolvency of the tortfeasor's insurer, the cause of action is not complete until there is an accident, the tortfeasor's insurer becomes insolvent, and the injured party learns of the insolvency. Judge Kirsch wrote the claim does not need to be filed within two years of the accident but within two years after learning the tortfeasor's insurer became insolvent. Even though Highland was placed in receivership in November 2003, the Smiths didn't learn about until just before their trial in March 2004.

Because questions of fact exist as to when the insolvency of Highland occurred and if the Smiths then filed their claim in a timely manner, summary judgment in favor of Auto-Owners is reversed.

Judge Michael Barnes dissented from the majority because he believed the plaintiffs do not present a question of fact regarding the potential date of Highland's insolvency and the plain language of IC 27-7-5-4 bars the plaintiffs' suit. Indiana Code would require the Smiths to present evidence that as of February 2001, Highland was unable to pay its obligations or its liabilities exceeded its assets at the time. The Smiths rely on receivership documents, which did not come out until four years after the date of the accident and those documents show Highland was not experiencing financial difficulties until after the two years as is required by Indiana Statute and Auto-Owner's policy.
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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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