ILNews

Issue of fact precludes summary judgment in insurance case

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

ADVERTISEMENT