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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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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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