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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. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  2. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  3. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

  4. Well, I agree with you that the people need to wake up and see what our judges and politicians have done to our rights and freedoms. This DNA loophole in the statute of limitations is clearly unconstitutional. Why should dna evidence be treated different than video tape evidence for example. So if you commit a crime and they catch you on tape or if you confess or leave prints behind: they only have five years to bring their case. However, if dna identifies someone they can still bring a case even fifty-years later. where is the common sense and reason. Members of congress are corrupt fools. They should all be kicked out of office and replaced by people who respect the constitution.

  5. If the AG could pick and choose which state statutes he defended from Constitutional challenge, wouldn't that make him more powerful than the Guv and General Assembly? In other words, the AG should have no choice in defending laws. He should defend all of them. If its a bad law, blame the General Assembly who presumably passed it with a majority (not the government lawyer). Also, why has there been no write up on the actual legislators who passed the law defining marriage? For all the fuss Democrats have made, it would be interesting to know if some Democrats voted in favor of it (or if some Republican's voted against it). Have a nice day.

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