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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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