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Justices order further proceedings in underinsured motorist coverage case

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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.
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. 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)

  4. 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)

  5. 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.

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