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Issue of fact precludes summary judgment in insurance case

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Neither side in a dispute over whether a deceased man’s auto insurer should provide coverage for losses from an accident that occurred while he was driving his girlfriend’s car is entitled to summary judgment, the Indiana Court of Appeals ruled Wednesday. A genuine issue of material fact remains as to whether the girlfriend’s car was furnished or available for the man’s regular use.

Bradley Kinser was driving his girlfriend’s Ford Focus home after a trip to the Children’s Museum in Indianapolis. Kinser, his girlfriend Natalie Rike, and two of their children were involved in an accident with Don and Jayne Page. Everyone involved was injured and Kinser was killed.

Kinser’s insurer, Indiana Insurance Company, filed for a declaratory judgment stating that it is not required to cover any losses because Kinser’s policy excluded coverage for a vehicle furnished or available for his regular use. Kinser’s car, an SUV, was covered by his policy, but the Focus wasn’t added. Kinser and his girlfriend lived together and commuted to work together in her Focus. He would drive to work and she would drive home. Each had keys to the other’s car, but Rike said that was in case the other got locked out of his or her car. Rike said Kinser would ask for permission to use the car, wouldn’t take it without asking, and generally drove his SUV unless they were going to work.

The trial court granted summary judgment in favor of Indiana Insurance and denied Rike and other appellants’ motion for summary judgment. The trial court said the facts showed Kinser regularly used the car and it was always available for his use.

In Estate of Bradley Kinser, et al. v. Indiana Insurance Company, No. 29A02-1009-PL-1093, the appellate judges examined the exclusion in Kinser’s policy, which said it would not provide liability coverage for any vehicle, other than the coverage car, that is “furnished or available for your regular use.” The policy doesn’t define “furnished” or “available,” but the judges cited caselaw in which the court has held that “furnish” means one is given keys to access and permission to use a given vehicle for a purpose as both the furnisher and recipient mutually understand.

The COA judges used a dictionary definition of “available” and found that although Kinser had a key and used that key to drive the car, the main reason for that key was in case of a lock out. Chief Judge Margret Robb noted that this and other nuances may affect whether the Focus was “available” for Kinser’s use.

There are genuine issues of material fact as to whether the car was furnished to or made available to Kinser, and as to whether he regularly used the Focus. The judges reversed summary judgment and remanded for further proceedings.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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