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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. 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?

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