Henry Swanigan v. Founders Insurance Company and Ronnie Watson (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Jun 24 2015, 8:14 am

Memorandum Decision shall not be regarded as

precedent or cited before any court except for the

purpose of establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Samuel L. Jacobs Robert W. Hash

Adam S. Willfond Duffin & Hash, LLP

Jacobs Law LLC Indianapolis, Indiana

Indianapolis, Indiana

Robert W. Johnson

Johnson Jensen LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Henry Swanigan, June 24, 2015

Appellant-Plaintiff, Court of Appeals Case No.

49A04-1408-CT-371

v. Appeal from the Marion Superior

Court

The Honorable Patrick L. McCarty,

Founders Insurance Company Judge

and Ronnie Watson, Cause No. 49D03-1307-CT-28167

Appellees-Defendants

Bailey, Judge.

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Case Summary

[1] Henry Swanigan (“Swanigan”) appeals a grant of summary judgment in favor

of Founders Insurance Company (“Founders”) on Swanigan’s complaint for

damages. Swanigan presents the sole issue of whether the trial court properly

granted summary judgment to Founders, upon concluding that there was no

use of an uninsured vehicle as contemplated by the uninsured motorists

(“UIM”) endorsement of the automobile policy held by Swanigan (“the

Policy”). We affirm.

Facts and Procedural History

[2] On August 7, 2011, Swanigan exited an Indianapolis CITGO convenience store

after making a purchase. Customer Ronnie Watson (“Watson”) remained

inside the store. Watson’s vehicle, with the windows rolled down and

Watson’s pit bull inside, was parked by a gas pump. As Swanigan crossed the

parking lot, Watson’s pit bull leaped from Watson’s vehicle and attacked

Swanigan, causing bodily injury. Watson’s vehicle was uninsured. Swanigan’s

vehicle was insured by Founders.

[3] On July 22, 2013, Swanigan filed a complaint for damages, naming Founders

and Watson as defendants. Swanigan moved for partial summary judgment

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and Founders filed a cross-motion for summary judgment. 1 On April 7, 2014,

the trial court conducted a hearing on the pending motions, at which argument

of counsel was heard on the issue of whether Swanigan’s damages arose from a

“use” of Watson’s vehicle. On May 8, 2014, the trial court entered an order

denying Swanigan’s motion for partial summary judgment and granting

Founders’ motion for summary judgment. On July 24, 2014, the trial court

certified its order for interlocutory appeal. On September 22, 2014, this Court

accepted jurisdiction of the appeal.

Discussion and Decision

Summary Judgment Standard of Review

[4] Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary

judgment is appropriate when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. When reviewing a

grant of summary judgment, our standard of review is the same as that of the

trial court. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind. 2002).

We consider only those facts that the parties designated to the trial court. Id.

The Court must accept as true those facts alleged by the nonmoving party,

1

Watson did not answer the complaint or participate in trial court proceedings. He is not an active party on

appeal.

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construe the evidence in favor of the nonmovant, and resolve all doubts against

the moving party. Id.

[5] A trial court’s order on summary judgment is cloaked with a presumption of

validity; the party appealing from a grant of summary judgment must bear the

burden of persuading this Court that the decision was erroneous. Indianapolis

Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied.

Although the appellant bears the burden of persuasion, we will assess the trial

court’s decision to ensure that the parties were not improperly denied their day

in court. Ind. Health Ctrs., Inc. v. Cardinal Health Sys., Inc., 774 N.E.2d 992, 999

(Ind. Ct. App. 2002). The fact that cross-motions are filed does not alter our

standard of review. KPMG, Peak Marwick, LLP v. Carmel Fin. Corp., Inc., 784

N.E.2d 1057, 1060 (Ind. Ct. App. 2003).

Insurance Contract Standard of Review

[6] The interpretation of an insurance policy is primarily a question of law for the

court, and it is therefore a question that is particularly well suited for summary

judgment. Estate of Sullivan v. Allstate Ins. Co., 841 N.E.2d 1220, 1223 (Ind. Ct.

App. 2006). Generally, where the terms of a policy are ambiguous, we will

construe the ambiguity in favor of the insured. Beam v. Wausau Ins. Co., 765

N.E.2d 524, 528 (Ind. 2002). Where, as here, the claimant is not a stranger to

the policyholder, this construction favoring the policyholder will apply as

opposed to neutral construction principles. Argonaut Ins. Co. v. Jones, 953

N.E.2d 608, 616 (Ind. Ct. App. 2011), trans. denied.

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[7] Nonetheless, although ambiguities are construed in favor of the insured, clear

and unambiguous policy language will be given its ordinary meaning. Trisler v.

Ind. Ins. Co., 575 N.E.2d 1021, 1023 (Ind. Ct. App. 1991). Moreover, the power

to interpret contracts does not extend to changing their terms, and insurance

policies in this state will not be given an unreasonable construction to provide

added coverage. Id. An insurer is bound by the plain, ordinary meaning of the

words as viewed from the perspective of the insured. Cincinnati Ins. Co. v. BACT

Holdings, Inc., 723 N.E.2d 436, 440 (Ind. Ct. App. 2000), trans. denied.

[8] Although an insurer has the right to limit their coverage of risks, the limitation

is enforceable only if clearly expressed and consistent with public policy.

Stonington Ins. Co. v. Williams, 922 N.E.2d 660, 669 (Ind. Ct. App. 2010). The

purpose of uninsured motorist insurance is to place the insured in substantially

the same position he would have been in had the other party complied with the

minimum requirements of the insurance statutes. Argonaut, 953 N.E.2d at 616.

Attempts to limit or diminish uninsured motorist protection required by statute

are against public policy. Id. However, public policy is not violated unless the

policy specifically limits uninsured motorist coverage as to persons who would

otherwise qualify as insureds for liability purposes. Id. “[I]f a person qualifies

as an insured under the liability section of the policy, he must also qualify under

the uninsured motorist section or the insurance contract violates public policy.”

Smith v. Allstate Ins. Co., 681 N.E.2d 220, 222 (Ind. Ct. App. 1997).

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Coverage under the UIM Endorsement

[9] The Policy provides that Founders must pay compensatory damages an insured

is legally entitled to recover from the owner or operator of an uninsured motor

vehicle because of bodily injury or property damage caused by an accident.

The policy further provides in relevant part: “The owner’s or operator’s liability

for these damages must arise out of the ownership, maintenance or use of the

‘uninsured motor vehicle.’” (App. 19.)

[10] Swanigan argues that he is entitled to compensation under the UIM

endorsement because his injuries arose from Watson’s “use” of his uninsured

vehicle. According to Swanigan, ambiguity must be interpreted against the

insurer, an insured would anticipate coverage for animal-related injuries

because motorists routinely transport their pets in vehicles, and his injury arose

from Watson’s negligent use of a vehicle – leaving the windows sufficiently

open to allow the dog’s escape. Founders argues that Swanigan’s damages

arose because of Watson’s failure to properly restrain his dog, as opposed to a

vehicular accident. Directing our attention to Lumbermens Mut. Ins. Co. v.

Statesman Ins. Co., 260 Ind. 32, 291 N.E.2d 897, 899 (1973), Founders asserts

that damages arise out of the “ownership, maintenance, or use” of a vehicle

only when the “efficient and predominating cause of the accident” arises out of

the use of the vehicle.

[11] In Lumbermens, an insurance policy issued for a delivery truck covered injuries

“arising out of the ownership, maintenance or use” of the truck for delivery

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purposes. Id. Employee Jack Walker drove the truck to a residence to deliver a

water softener. When Walker was ascending the homeowner’s stairs with the

water softener, the stairs collapsed and Walker was injured. Lumbermens, the

homeowners’ insurer, settled with Walker and sought subrogation from

Statesman, which provided insurance on the delivery truck. Lumbermens

claimed that Walker was “using” the vehicle when he was injured because

loading and unloading was a covered activity under the policy and further

claimed that the homeowners were “using” the truck by virtue of their

cooperation in the unloading process. Our Indiana Supreme Court disagreed,

holding that the trial court had properly granted summary judgment to

Statesman:

The accident did not arise out of the use of the truck. As the trial court

pointed out, the proximate cause of the accident was the negligent

maintenance of the staircase. The Appellate Court case notes in

quoting another case that we are not here dealing with proximate

cause but with contract language. However, we are in fact in this

instance not dealing with the two parties to the contract. The party

claiming to be an insured in this case never paid a penny’s premium to

the insurer. We are therefore not in a situation where we must

construe the contract language any certain way and can seek out the

general intent of the contract from a neutral stance.

We are of the opinion that what was intended by the words in the

contract, “arising out of the ownership, maintenance or use” of the

truck as applied to unnamed insureds is synonymous to being caused by

use of the truck (including the loading and unloading). Otherwise the

insurance company becomes the insurer for every sort of accident by

anyone to whom a delivery is made. We are in agreement with the

trial court that the “efficient and predominating cause” of the accident

must arise out of the use of the vehicle in order for an un-named

insured to be covered.

291 N.E.2d at 898-99.

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[12] Swanigan acknowledges that Lumbermens set forth a narrow construction of the

phrase “arising out of the ownership, maintenance, or use,” but observes that

he is not “an un-named insured” as was the claimant in Lumbermens. See id.

Additionally, Swanigan observes that, even by resort to a narrow application of

the term “use,” it is not limited to “active driving, operation or direction of a

vehicle.” (Appellant’s Br. at 17.) He directs our attention to a trilogy of cases

in which an individual was found to be “using” a vehicle although he or she

was physically outside the vehicle: Argonaut Ins. Co., supra, Monroe Guar. Ins.

Co. v. Campos, 582 N.E.2d 865, 870 (Ind. Ct. App. 1991), and Spencer v. Liberty

Mut. Ins. Corp., 381 F.Supp.2d 811 (S.D. Ind. 2005).

[13] In Argonaut, Deputy Sheriff Sarah Jones had been dispatched to the scene of an

automobile accident. 953 N.E.2d at 611. She had positioned her police cruiser

to control the flow of vehicles and was directing traffic when she was struck by

an oncoming vehicle. On appeal of a summary judgment entered against it,

Argonaut contended that Deputy Jones was not entitled to underinsurance

coverage because she had not been occupying or using her vehicle at the time

her fatal injuries were inflicted. Id. at 614.

[14] The Argonaut Court discussed Lumbermens and its progeny, observing that “the

crucial questions to answer in determining coverage issues” were “whether

there is an ‘active’ relationship between the claimant and the vehicle” and “the

reasonable expectations of the parties upon entering into the insurance

agreement.” Id. at 619. The Court concluded that Deputy Jones had been

“using” her police vehicle:

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[T]he reasonable scope of covered uses of Deputy Jones’s patrol car

necessarily includes its deployment and use in traffic control situations

like the one at issue. Given the nature of the use the parties to the

agreement should reasonably have expected, Deputy Jones’s activities

directing traffic while her patrol car was blocking one of two lanes with

its lights activated constituted use of her patrol car within the terms of

Argonaut’s policy. The trial court therefore properly granted summary

judgment to Jones on the issue of use under Argonaut’s policy and

properly denied summary judgment to Argonaut on this same issue.

Id. at 620.

[15] In Campos, a panel of this Court rejected an insurer’s contention that “use” was

synonymous with “drive” or “operate” and held that an insured was “using” a

tow truck although he was not, at the time of injury, occupying it or

maintaining physical contact with it. 582 N.E.2d at 870-71. Campos had been

dispatched to an intersection where a police officer had detained a driver of a

tractor-trailer. Campos entered the police vehicle, consulted with the officer

and expressed his intention to return to the tow truck and began the evaluation

and removal process. As Campos was exiting the police vehicle, he was struck

and severely injured by a vehicle driven by an uninsured motorist. See id. at

866. The Court was persuaded that “use” may include that which is related to

a primary use:

The contract between Monroe and Allen Towing provides insurance

coverage to Allen Towing and its employees who are engaged in the

business of towing disabled vehicles. The parties certainly would have

contemplated the nature of this business activity. Removal of disabled

vehicles from roadways cannot be accomplished solely by the activity

of ‘propelling or directing’ the towing vehicle. Reasonable persons

would expect that a tow truck operator must engage in other activities

during the towing process, some of which will require that he exit the

vehicle (e.g. evaluation of the towing scene, securing the vehicle to be

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towed, attachment of towing equipment to the disabled vehicle,

conferring with appropriate officials concerning safety procedures).”

Id. at 870.

[16] In Spencer, the final case of the trilogy discussed by Swanigan, the undisputed

facts led the Court to conclude that Spencer, a truck driver who exited his

vehicle to render assistance to an injured motorist, “was acting in a manner

intended or reasonably within the contemplation of Liberty Mutual and

[employer] Starcraft when they contracted for the insurance coverage.” 381

F.Supp2d at 817. The Court concluded that Spencer was “using” his vehicle

when he assisted at an accident scene and specifically observed that he was

“using” the truck “in a more direct sense” by activating his emergency flashers

to alert other traffic. Id. at 820. See also Stonington, supra (a truck driver who

had completed his connection and inspection procedure and had touched the

door handle in preparation of entering the truck when he was struck by an out-

of-control vehicle was, at that time, “using” the truck trailer, 2 in that the “act of

getting into the cab of the tractor in order to pull the trailer is incidental to the

actual operation of the trailer.”)

[17] Conversely, Founders directs our attention to cases in which the injuries did not

arise from a “use” of a vehicle: Moons v. Keith, 758 N.E.2d 960 (Ind. 2001) and

Sizemore v. Erie Ins. Exchange, 789 N.E.2d 1037 (Ind. Ct. App. 2003). The facts

underlying the Moons decision may be summarized as follows. Randy

2

The trailer was owned by EC Moving, a Wisconsin corporation which was not the driver’s employer.

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Williams, whose vehicle was insured by State Farm, was driving with several

passengers when he stopped at an intersection in Gary. A passenger in another

vehicle fired seventeen shots into Williams’s vehicle, injuring the occupants.

Williams and one passenger sought coverage for their injuries under a UIM

provision of Williams’s policy; coverage was denied. During the ensuing

litigation, State Farm was granted summary judgment. See Moons, 758 N.E.2d

at 961.

[18] On appeal from the grant of summary judgment, a panel of this Court reviewed

the Lumbermens decision and observed: “in order to find coverage, there must

be a causal connection or relationship between the vehicle and the injury.” Id.

at 964. The Court determined that the designated facts did not show a requisite

causal relationship:

The only evidence from the designated affidavits indicated the vehicle

was merely used to transport Keith to the scene. Keith did not chase

Moons and Williams in his car. The shooting was not the result of

road rage. The cars did not touch. The facts of this case, as presented

to us, do not establish a causal relationship between the vehicle and

the injuries sufficient to invoke coverage under the uninsured motorist

provision.

[19] Id. The Court then clarified that, even where a causal connection exists, “the

relationship between the two must not be too remote[.]” Id.

[20] Likewise, in Sizemore, a panel of this Court affirmed the grant of summary

judgment to an insurer who had denied UIM coverage under a policy held by

an injured child’s mother. In that case, a driver of an uninsured vehicle had

transported several boys to play paintball. The boys saw James Sizemore

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walking and the driver pulled the vehicle over. Sizemore stuck his head inside

the vehicle to talk, one of the paintball guns discharged, and Sizemore was

struck in the eye. The trial court found that there was no causal connection

between the accident and the use or operation of the uninsured motorist’s

vehicle. This Court agreed with that conclusion:

The undisputed facts established that the only connection between the

vehicle and the injury was that the vehicle happened to be the physical

object against which the safety of the paintball gun may have come in

contact. The trial court correctly determined that the efficient and

predominating cause of Sizemore’s injury did not arise out of the use

of the vehicle. The vehicle only remotely contributed to Sizemore’s

injury by transporting the boys and the paintball equipment to the

scene of the incident and by possibly coming into physical contact with

the safety of the paintball gun prior to the gun discharging.

Id. at 1040. Moreover, the Court agreed with the trial court that the incident

leading up to Sizemore’s injury was not a “motor vehicle accident” as required

by the policy language. Id.

[21] According to the designated materials in this case, Swanigan was injured by a

pit bull that escaped out the window of a parked car. Watson, the driver of the

uninsured vehicle, was at that time inside the convenience store. He returned

to his vehicle after Swanigan had been bitten and knocked down. Thus, neither

of the drivers nor the dog was inside or in physical contact with a vehicle at the

time of attack. According to Campos, use is not limited to physical occupancy

of a vehicle. 582 N.E.2d at 870. However, consistent with Lumbermens and its

progeny, there must be a causal connection or relationship between the vehicle

and the injury. See Moons, 758 N.E.2d at 964.

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[22] We, like the panels of this Court in Moons and Sizemore, do not find the mere

vehicular transport of the injurious entity to be a sufficient causal connection.

Beyond Watson’s transport of his pit bull, it may well be that he rolled down

the window of his vehicle before exiting at the convenience store, in order to

make the dog more comfortable. 3 Even so, accommodating an animal left

alone and unrestrained is not an integral use of the vehicle as would be within

“the reasonable expectation of the parties upon entering into the insurance

contract.” Argonaut, 582 N.E.2d at 619. Watson was not “using” his uninsured

vehicle at the time his unrestrained dog traversed the CITGO parking lot and

injured a customer. 4

Conclusion

[23] Watson was not “using” his uninsured vehicle when Swanigan was injured.

Accordingly, the trial court properly granted summary judgment to Founders

upon Swanigan’s complaint for uninsured motorist coverage.

3

We have no affidavit from Watson to this effect. Compare: Hughley v. State, 15 N.E.3d 1000, 1004-5 (Ind.

2014) (when a party has by designated evidence – although it be minimal – raised a genuine factual issue to

be resolved at trial, the trial court will not weigh the evidence and a summary judgment motion will be

defeated).

4

Swanigan has cited to cases from other jurisdictions in which coverage was found to exist for injuries

caused by an animal. The Court in Trampf v. Prudential Prop. & Cas. Co., 199 Wis.2d 380, 389, 544 N.W.2d

596, 600 (Wisc. Ct. App. 1996) applied a standard of “whether a particular incident falls within an expected

use of a vehicle” and found that transporting dogs in the bed of a vehicle is such a use. In Farmer’s Ins. Co. of

Ariz. v. Till, 170 Ariz. 429, 432, 825 P.2d 954, 957 (Ariz. Ct. App. 1991), the Court found a dog owner had

used the “inherent design of the pickup/camper to separate her passenger from her potentially dangerous

cargo.” We observe that the courts were not constrained to follow the narrow definition of “use” adopted in

Indiana and, moreover, the animals were inside or tethered to the vehicles.

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[24] Affirmed.

Riley, J., and Barnes, J., concur.

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