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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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