ILNews

Justices order further proceedings in underinsured motorist coverage case

Back to TopCommentsE-mailPrintBookmark and Share

Because issues of material fact remain regarding the applicable level of underinsured motorist coverage provided by a policy on a semi-tractor trailer, the Indiana Supreme Court reversed summary judgment for the insurance company.

Allen County resident Derek Asklar was driving a semi on behalf of Werner Transportation Services Inc., a Georgia company, when he was injured in West Virginia when his truck was hit by another semi-truck. Werner leased Asklar’s truck from a South Bend company and insured it under a policy from Empire Fire and Marine Insurance Co.  The insurer provided $5 million liability coverage for his truck, but claimed the policy only included $75,000 in underinsured motorist coverage.

The trial court applied Georgia law, which allows an insured to choose to purchase this type of coverage in a lower amount than the liability policy limit. The trial court found the procurement and endorsement of the policy itself was sufficient evidence that Werner Transportation, through its president, John Werner, made that affirmative choice. The court granted summary judgment in favor of Empire.

The justices agreed with the Indiana Court of Appeals that Indiana law does apply because any vehicle registered and principally garaged in Indiana, as was Asklar’s rig, must comply with requirements under I.C. 27-7-5-2. But the justices disagreed with the lower appeals court’s decision to affirm the trial court.

Empire designated four documents that purportedly show Werner’s intent, as to both uninsured and underinsured motorist coverage, to reject the default $5 million coverage limit and instead purchase coverage only in the amount of $75,000.  

“Although both the trial court and our Court of Appeals found these rejections were sufficient as a matter of law to demonstrate Werner waived the higher liability limit for both uninsured and underinsured motorist insurance, we cannot agree,” Justice Mark Massa wrote. “None of the forms identify the policy by number, and none mention ‘underinsured’ coverage, instead referring only to the liability limit of the ‘uninsured’ coverage. On the other hand, there is policy language that could be read to indicate the waivers use the term ‘uninsured’ to include both types of coverage. … In light of these conflicting facts, we conclude the issue of the waivers’ validity is unsuitable for summary judgment and best left to the fact-finder.”

The case is Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire & Marine Insurance Co. d/b/a Zurich Northland Insurance Co., Travelers Indemnity Co. of America, 02S03-1305-CT-332.
 

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. Oh my lordy Therapist Oniha of the winexbackspell@gmail.com I GOT Briggs BACK. Im so excited, It only took 2days for him to come home. bless divinity and bless god. i must be dreaming as i never thoughts he would be back to me after all this time. I am so much shock and just cant believe my eyes. thank you thank you thank you from the bottom of my heart,he always kiss and hug me now at all times,am so happy my heart is back to me with your help Therapist Oniha.

  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

ADVERTISEMENT