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. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

ADVERTISEMENT