Founders Insurance Company v. Mark May, Pamela Coomer, and Roger W. Hoke as the Personal Representative of the Estate of Brian Hoke

Sep 18 2015, 9:26 am

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE ROGER
Ryan Duffin W. HOKE, PERSONAL
Lori A. Coates REPRESENTATIVE OF THE ESTATE
Duffin & Hash LLP OF BRIAN HOKE, DECEASED
Indianapolis, Indiana
R.T. Green
Blackburn & Green
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Founders Insurance Company, September 18, 2015

Appellant-Plaintiff, Court of Appeals Case No.
49A02-1501-PL-8
v.
Appeal from the Marion Superior
Mark May, Pamela Coomer, Court
The Honorable Thomas J. Carroll,
and Roger W. Hoke as the Judge
Personal Representative of the
Cause No. 49D06-1302-PL-7690
Estate of Brian Hoke, deceased,
Appellees-Defendants,

Robb, Judge.

Case Summary and Issue
[1] Pamela Coomer, driving a vehicle owned by Mark May and insured by

Founders Insurance Company (“Founders”), was involved in an accident that

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 ultimately resulted in the death of Brian Hoke. Coomer did not have a valid

driver’s license nor May’s permission to drive the vehicle. Founders filed a

complaint seeking a declaratory judgment that it had no duty to defend or

provide coverage for the accident pursuant to the terms of the insurance

contract and sought summary judgment. The trial court granted summary

judgment to Founders as to May and Coomer, but denied summary judgment

as to Roger Hoke as the Personal Representative of the Estate of Brian Hoke,

Deceased (“Hoke’s Estate”). Founders now appeals, raising the sole issue of

whether the trial court erred in denying summary judgment as to Hoke’s Estate.

We conclude the exclusions in the insurance contract relevant to this situation

are clear and unambiguous and do not violate public policy; therefore, the

exclusions are enforceable. Founders is entitled to summary judgment as to all

parties, and the trial court’s order denying summary judgment as to Hoke’s

Estate is reversed.

Facts and Procedural History
[2] In 2012, May and Coomer were involved in “a serious relationship.” Appendix

of Appellee at 1. May owned a pickup truck which Coomer would drive

“[m]aybe once a month[,]” id. at 5, although her driver’s license was suspended,

id. at 6-7. May knew that Coomer sometimes drove the truck because usually

when she did so, she was acting as a designated driver for him. In general,

however, May “doesn’t really like anybody to drive his truck.” Id. at 7.

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[3] On November 10, 2012, Coomer took May’s truck to visit her children. May

was not with her, and she did not have his permission to drive the truck that

day. When returning home, she struck Hoke, who was riding a bicycle. Hoke

did not have an automobile and did not have automobile insurance. He died

on November 27, 2012, from injuries he sustained in the collision. May’s truck

was insured on November 10, 2012, by Founders under a policy that provided,

in relevant part:

Part A – Liability Coverage
Insuring Agreement
A. We will pay damages for “bodily injury” or “property damage” for
which any “insured” becomes legally responsible because of an auto
accident. . . . We will settle or defend, as we consider appropriate, any
claim or suit asking for these damages. . . . We have no duty to defend
any suit or settle any claim for “bodily injury” or “property damage”
not covered under this policy.
B. “Insured” as used in this Part means:
...
2. Any person using “your covered auto”.
***
Exclusions
A. We do not provide Liability Coverage for any “insured”:
...
8. Using a vehicle without a reasonable belief that that “insured” is
entitled to do so.
Appellant’s Appendix at 12-13. In addition, an Amendatory Endorsement

modifying Part F – General Provisions of the policy provided:

No coverage is afforded under any Part of this policy if, at the time of
the accident, “your covered auto” . . . is being operated by a person
who is not a licensed driver, or is without a valid driver’s license,
whose driver’s license is revoked or suspended, or whose driver’s
license has been expired for more than 30 days, or is not legally
entitled to drive under Indiana law.

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 Id. at 27.

[4] Hoke’s Estate filed a wrongful death suit against May and Coomer in July

2013. Founders filed a complaint for declaratory judgment against May,

Coomer, and Hoke’s Estate, seeking a declaration that it had no obligation to

provide coverage benefits under the policy because Coomer did not have a valid

driver’s license at the time of the accident nor did she have a reasonable belief

that she was entitled to use the truck on that date. In May 2014, Founders filed

a motion for summary judgment “as the evidence in this matter establishes that

Founders owes no duty to provide a defense or indemnification” to May or

Coomer. Id. at 32. It does not appear that May or Coomer answered the

complaint or filed a response to the motion for summary judgment. Hoke’s

Estate, however, filed a response in opposition to summary judgment, asserting

that Founders should not be permitted to deny insurance coverage as to Hoke’s

Estate, “an innocent, injured party” who “will be without any source of

compensation for losses suffered in the November 10, 2012 incident . . . .” Id.

at 104.

[5] On November 3, 2014, the trial court entered a summary ruling on Founders’

motion for summary judgment as to May and Coomer, finding that there is no

genuine issue of fact and Founders is entitled to summary judgment against

May and Coomer. However, the trial court’s order also stated that “all issues

remain or survive as to the remaining Defendant, [Hoke’s Estate].” Id. at 107.

Founders then sought and was granted permission to pursue this interlocutory

appeal of the trial court’s order with regard to the ruling as to Hoke’s Estate.

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 Discussion and Decision
I. Standard of Review
[6] When we review a trial court’s ruling on summary judgment, we apply the

same standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.

2013). Summary judgment is appropriate where there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.

Ind. Trial Rule 56(C). The appellant has the burden of persuading us that the

summary judgment ruling was erroneous. Amaya v. Brater, 981 N.E.2d 1235,

1239 (Ind. Ct. App. 2013), trans. denied. Where the facts material to the

proceedings are not in dispute, this court determines whether the trial court

correctly applied the law to the facts. Johnson v. Hoosier Enters. III, Inc., 815

N.E.2d 542, 548 (Ind. Ct. App. 2004), trans. denied. A case such as this one,

involving the interpretation of an insurance contract, is particularly appropriate

for summary judgment because the interpretation of a contract is a question of

law. Burkett v. Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind. Ct. App. 2000).

II. Denial of Summary Judgment as to Hoke’s Estate
[7] The particular facts of this case present an issue of first impression in Indiana:

Does an insurer which has no duty to provide coverage benefits to its insured

pursuant to the plain terms of the insurance contract nonetheless have to pay

damages to an injured third party who has no independent source of insurance?

Founders contends that it does not have to pay those damages because it

reasonably limited its liability by the terms of its insurance contract to exclude

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 coverage in these circumstances. Hoke’s Estate argues that permitting

Founders to deny coverage in this instance would contravene the public policy

underlying Indiana’s Financial Responsibility Act to provide “persons who

suffer loss due to the tragedy of automobile accidents . . . a source and means of

recovery.” Brief of Appellee at 3. Hoke’s Estate contends that the result it

seeks is “consistent with the result reached by appellate courts in other

compulsory insurance law jurisdictions,” id. at 6, and is supported by the

reasoning of Indiana decisions on similar issues.

A. Overview of Statutes and Caselaw
[8] Historically, Indiana required proof of financial responsibility for automobile

owners only after the occurrence of an accident. Although the primary purpose

of the then-Safety-Responsibility and Driver Improvement Act was “to facilitate

loss recovery by auto accident victims,” the statute was not a compulsory

insurance statute because means of proving financial responsibility other than

insurance were allowed. See Allstate Ins. Co. v. Boles, 481 N.E.2d 1096, 1101

(Ind. 1985). When the statute was amended in 1983 to require proof of

financial responsibility when registering a car, Ind. Code § 9-18-2-11, the law

still permitted proof of responsibility through bond, deposit of funds or

securities, and self-insurance in addition to traditional insurance, Ind. Code ch.

9-25-4. Thus, Indiana remains a “compulsory financial responsibility state.”

Transamerica Ins. Co. v. Henry, 563 N.E.2d 1265, 1267-68 (Ind. 1990).

“Indiana’s current financial responsibility scheme, like the prior one,

demonstrates a policy to protect automobile owners . . . from damages which

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 might be inflicted on them by other cars out on the road.” Id. at 1268. To this

end, insurers must offer uninsured and underinsured motorist coverage in every

insurance contract. See Ind. Code § 27-7-5-2. “The purpose of uninsured

motorists insurance is to place the insured in substantially the same position as if

the other party had complied with the minimum requirements of the insurance

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

(emphasis added). “The purpose of our financial responsibility statute is to

compel . . . other motorists to make provisions for our protection.”

Transamerica Ins. Co., 563 N.E.2d at 1268. But the statutes do not “constitute a

social policy to guarantee compensation to all victims of motor vehicle

accidents.” Id.

[9] The out-of-jurisdiction cases cited by Hoke’s Estate are not particularly

instructive to this case. Hoke’s Estate cites Woody v. Georgia Farm Bureau Mut.

Ins. Co., 551 S.E.2d 836 (Ga. Ct. App. 2001), and Adams v. Thomas, 729 So.2d

1041 (La. 1999), both of which addressed policy provisions excluding

unlicensed drivers from coverage. In Woody, a split Georgia Court of Appeals

held that the unlicensed driver exclusion, although unambiguous and generally

enforceable, was unenforceable in that particular case because the injured third

party did not have uninsured motorist protection of his own. If the exclusion

were enforced, the injured party would not have access to insurance funds.

Relying on Georgia Supreme Court precedent in Cotton States Mut. Ins. Co. v.

Neese, 329 S.E.2d 136 (Ga. 1985), the Woody court held such a result would be

in contravention of the public policy served by Georgia’s compulsory insurance

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 law. 551 S.E.2d at 837. In Neese, the Georgia Supreme Court noted that the

state’s Motor Vehicle Accident Reparations Act (or “no fault act”)—which

provided insurance coverage in virtually all circumstances to an injured

victim—was enacted simultaneously with the law making motor vehicle

liability insurance compulsory. 329 S.E.2d at 138-39. The Neese court held

these laws “established the public policy that innocent persons who are injured

should have an adequate resource for the recovery of their damages[,]” and

required viewing the effect of an exclusion from the viewpoint of the victim. Id.

at 141 (quotation omitted). Because our supreme court has expressly stated our

financial responsibility statute is not a compulsory insurance statute and does

not represent a policy of providing compensation to all victims of motor vehicle

accidents, Woody and Neese are inapposite.

[10] In Adams, the Louisiana Supreme Court noted that the state legislature had

specifically stated the public policy behind its compulsory insurance law: “all

liability policies . . . are executed for the benefit of all injured persons and their

survivors or heirs to whom the insured is liable . . . .” 729 So.2d at 1043. The

court further noted that the determination of “what is an acceptable exclusion

in an insurance policy is up to the legislature . . . .” Id. at 1044. Therefore, the

court held that a policy that excludes an unlicensed driver from coverage

without an express legislative directive is “an impermissible restriction on the

intent and purpose of the legislature’s statutory scheme enacted to ensure that

all Louisiana motorists have available to them automobile liability insurance

coverage.” Id. at 1044-45. Thus, Adams is distinguishable in several respects:

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 in Indiana, enforceable exclusions do not have to be legislated; we have no

specific statement of legislative intent as to the policy behind our statutes; and

as with Woody, we do not have a compulsory insurance statute but a

compulsory financial responsibility law which our courts have stated does not

represent a policy of compensating all accident victims.

[11] Likewise, the Indiana cases cited by Hoke’s Estate are not directly applicable.

Hoke’s Estate asserts that in Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664

(Ind. 1997), Federal Kemper Ins. Co. v. Brown, 674 N.E.2d 1030 (Ind. Ct. App.

1997), Motorists Mut. Ins. Co. v. Morris, 654 N.E.2d 861 (Ind. Ct. App. 1995), and

Am. Underwriters Grp. v. Williamson, 496 N.E.2d 807 (Ind. Ct. App. 1986), our

courts “have engaged in an analysis similar to that utilized in Woody and Adams

and reached similar results.” Br. of Appellee at 8. With respect to Williamson,

Morris, and Brown, we note that the insurance company at issue was attempting

to rescind its insurance contract altogether due to misrepresentations made by

the insured when applying for the insurance. See, e.g., Williamson, 496 N.E.2d

at 810-11 (stating, based on a survey of cases from New York, Michigan, and

Georgia, that “it appears to have been universally held that an insurer cannot

on the ground of fraud or misrepresentation retrospectively avoid coverage

under a compulsory or financial responsibility law so as to escape liability to a

third party[,]” and overruling Automobile Underwriters, Inc. v. Stover, 148 Ind.

App. 555, 268 N.E.2d 114 (1971), which had established the right to rescind in

Indiana prior to the Financial Responsibility Act), disapproved by Guzorek, 690

N.E.2d at 672 (“Williamson is disapproved to the extent it holds that the liability

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 insurer can never rescind due to material misrepresentations.”). That is not the

situation we have here, where Founders seeks to enforce its insurance contract.

[12] As for our supreme court’s decision in Guzorek, we note that it, too, was decided

in the context of whether a contract for insurance could be rescinded due to a

misrepresentation. We also note that it cast doubt upon the continued viability

of Williamson, Morris, and Brown. 690 N.E.2d at 672. It further declined to pass

on the question presented here as one not presented by the facts of that case:

“We leave for another day whether a liability insurer can deny coverage when

the third party does not have protection against uninsured motorists. This issue

is not settled under current precedent but is neither presented under these facts

nor argued by the parties.” Id.

B. Insurance Law in Indiana
[13] Without any case law directly on point, we turn to the basic principles of

contract law. An insurance policy is a contract, and in reviewing the policy, we

construe it as we would any other contract—to give effect to the parties’

intentions at the time the contract was made. Puente v. Beneficial Mortg. Co. of

Indiana, 9 N.E.3d 208, 217 (Ind. Ct. App. 2014). The freedom to contract is “a

bedrock principle of Indiana law,” id. at 218, and “the freedom of the parties to

exclude risks from an insurance contract is well established,” United Farm

Bureau Mut. Ins. Co. v. Hanley, 172 Ind. App. 329, 338, 360 N.E.2d 247, 252

(1977). “Generally, insurers are free to limit liability in any manner not

inconsistent with public policy, and an unambiguous exclusionary clause is

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 ordinarily entitled to enforcement.” Williams v. Safe Auto Ins. Co., 980 N.E.2d

326, 330 (Ind. Ct. App. 2012) (quoting Am. Family Life Assurance Co. v. Russell,

700 N.E.2d 1174, 1177 (Ind. Ct. App. 1998), trans. denied). “Whenever a court

considers invalidating a contract on public policy grounds, it must always

weigh in the balance the parties’ freedom to contract.” Boles, 481 N.E.2d at

1101. “Only in cases which are substantially free from doubt will we exercise

our power to declare a contract void as contravening public policy.” Lexington

Ins. Co. v. Am. Healthcare Providers, 621 N.E.2d 332, 338 (Ind. Ct. App. 1993),

trans. denied.

[14] In general, an attempt to dilute or diminish uninsured or underinsured motorist

protection is contrary to public policy. See Am. Family Mut. Ins. Co. v. Federated

Mut. Ins. Co., 775 N.E.2d 1198, 1207 (Ind. Ct. App. 2002) (“Any insurance

language that dilutes statutory protection is contrary to public policy.”).

However, the exclusions upon which Founders would deny coverage in this

case do not dilute or diminish the uninsured or underinsured coverage

contained therein. Indiana Code section 27-7-5-2(a) mandates that insurance

companies offer uninsured and underinsured motorist protection “for the

protection of persons insured under the policy . . . .” 1 The uninsured and

underinsured provisions in May’s policy were for his own protection if an insured

1
The statute requires an insurance company to offer uninsured and underinsured coverage, Ind. Code § 27-7-
5-2(a), but the named insured may reject in writing both or either uninsured and underinsured coverage, Ind.
Code § 27-7-5-2(b).

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 under his policy were to be in an accident with an uninsured or underinsured

motorist. Hoke was not uninsured or underinsured in the sense used by

Indiana Code section 27-7-5-2 mandating such coverage in insurance contracts

because as a non-motorist, he was not subject to financial responsibility

requirements at all. The exclusions at issue do not dilute or diminish May’s

uninsured or underinsured motorist protection because May was not entitled to

recover under those provisions. Likewise, Hoke’s Estate is not entitled to

recover under those provisions because Hoke was not an insured under May’s

policy.

[15] Here, the insurance contract excluded liability coverage for someone using the

vehicle without a reasonable belief that he or she is entitled to do so.

Appellant’s App. at 13. The insurance contract further included the condition

that no coverage would be afforded under the contract if the vehicle is being

operated by a person who is an unlicensed driver for any reason. Id. at 30.

These are clear and unambiguous provisions of the insurance contract

reasonably limiting Founders’ risk to liability for the conduct of an insured who

should and legally could be driving the vehicle. Because of the difference

between a compulsory insurance statute and our compulsory financial

responsibility statute, if May did not want to be subject to the exclusions at issue, 2

2
These exclusions were plainly stated in the policy of insurance and were not buried in fine print or
otherwise hidden. May knew that Coomer occasionally drove his vehicle; he presumably knew she did not
have a valid license; and he had also expressed to her he did not want her to drive his vehicle when he was
not present. See App. of Appellee at 44-46.

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 he did not have to purchase a policy of insurance. Instead, he could have

posted a bond in the same minimum coverage amount he had insured himself

for through Founders and he would have been subject to no such restrictions.

The dissent does not believe the distinction between compulsory insurance and

compulsory financial responsibility statutes is significant. Not only has our

supreme court clearly stated that there is a legal distinction, see Transamerica Ins.

Co., 563 N.E.2d at 1267-68, but in this case there is also a factual distinction. In

a compulsory insurance state, it would be theoretically possible for an insured

to comparison shop for a policy of insurance without some or all of these

exclusions, but it is more of an improbable possibility than a likelihood that the

insured could find one. In a financial responsibility state such as Indiana, it is a

very real possibility to demonstrate financial responsibility under one’s own

terms rather than under the terms imposed by an insurance company.

[16] There is nothing inherent in the exclusions in the Founders insurance contract

that make them against public policy, it is only the particular circumstances of

this case that make enforcing them seem unjust. However, it is neither logical

nor consistent with the law of contracts that the enforceability of a contract of

insurance depends upon the status of the person with whom the insured is

involved in a collision. To hold otherwise would mean the same conduct under

the same contract of insurance could have drastically different results. If

Coomer had hit a motorist with uninsured/underinsured motorist protection

and the injured party’s insurer would have covered the damages per its own

contract of insurance, Founders would have been able to rely upon the

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 exclusions in its contract. See Guzorek, 690 N.E.2d at 672 (“There is no injustice

in placing the loss with the third party’s insurer . . ., who has presumably been

compensated through its premiums for accepting the risk of an uninsured

tortfeasor.”). If Coomer had hit a motorist without insurance or one who had

rejected uninsured and/or underinsured motorist protection, see Ind. Code § 27-

7-5-2(b), then the injured party had accepted the risk of not having that

coverage, and Founders should have been able to rely upon the exclusions of its

contract. However, because Coomer was involved in a collision with a non-

motorist who was not subject to financial responsibility requirements at all, the

trial court determined that Founders was not able to enforce the clear and

unambiguous exclusions in its contract.3

[17] As between an insurer who contracted to provide coverage only under certain

circumstances and an insured who has an alternative if he wishes coverage in

all circumstances, why should the insurer be liable in contravention of the

express terms of the insurance contract? May knew he did not have insurance

coverage if the driver of his truck was unlicensed or was operating it without a

3
The trial court’s determination raises several practical questions, such as, if Founders has no duty to defend
or indemnify May or Coomer, from where does a duty to Hoke’s Estate arise? How exactly would the action
proceed if Founders has no duty to defend May or Coomer? Does Founders appear in Hoke’s Estate’s
lawsuit against May and Coomer and defend itself? Does Hoke’s Estate institute a direct action against
Founders if it should succeed in its lawsuit against May and Coomer? Could Founders assert the terms of the
contract of insurance as a defense in any such action? What would be the limits of Founders’ liability to
Hoke’s Estate if the contract is unenforceable as to May or Coomer? If the exclusionary provisions of the
contract are unenforceable, are the limits provisions nonetheless enforceable, and would that be a matter of
judicially picking and choosing which provisions of the contract may be enforced and which may not?
Because of our resolution of this case, however, we need not answer these questions.

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 reasonable belief in the right to do so. If Founders cannot rely on the clear and

unambiguous terms of its contract for insurance here, could it ever rely on any

provision of its contract? Determining an insurer’s liability only after an

accident occurs and the status of the victim is ascertained creates the possibility

of disparate treatment of similarly situated insurers. The uncertainty

occasioned by the inability of an insurer to rely on reasonable limits to its

liability would most likely be passed along to the insured in the form of higher

premiums to cover the unknown risk or the constriction of insurance coverage

in general.

[18] We have great sympathy for the Hokes and their loss. However, “a third

party’s right to recover through liability insurance is not absolute.” Guzorek,

690 N.E.2d at 672. The dissent would base its decision on the public policy

“that persons who suffer loss due to the tragedy of automobile accidents shall

have a source and means of recovery,” see slip op. at 19-20 (quoting Williamson,

496 N.E.2d at 810), and require Founders to be that source for Hoke’s Estate.

However, the source and means of recovery is grounded in the insurance

contract itself. The general policy of making insurance available to compensate

for losses arising from motor vehicle collisions does not trump the long-standing

precedent allowing an insurer to reasonably limit its liability, nor should the

recompense of one victim take precedence over the importance of providing

affordable insurance to all motorists. Founders limited its risk to permissive,

licensed drivers of this vehicle and fixed its premiums on that basis. There is no

public policy against such limitations, there is simply the unfortunate reality

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 that this injured party has no access to insurance proceeds under these

circumstances.

Without minimizing the importance of the doctrine that contracts
should not be enforced if they contravene public policy, many courts
have cautioned against recklessness in condemning contracts as being
in violation of public policy. Public policy, some courts have said, is a
term of vague and uncertain meaning, which it pertains to the
lawmaking power to define, and courts are apt to encroach upon the
domain of that branch of the government if they characterize a
transaction as invalid because it is contrary to public policy, unless the
transaction contravenes some positive statute or some well-established
rule of law.
Schornick v. Butler, 205 Ind. 304, 185 N.E. 111, 113 (1933) (quoting Hogston v.

Bell, 185 Ind. 536, 544, 112 N.E. 883, 885 (1916)). We cannot say this is a case

in which we should refuse to enforce the insurance contract on public policy

grounds. Though recovery may be more difficult, Hoke is not without a

remedy as he may still seek damages from May and Coomer.

Conclusion
[19] Founders is entitled to judgment as a matter of law on its complaint for

declaratory judgment in all respects. The trial court’s summary judgment order

denying summary judgment as to Hoke’s Estate is therefore reversed.

[20] Reversed.

Mathias, J., concurs.

May, J., dissents with opinion.

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 IN THE
COURT OF APPEALS OF INDIANA

Founders Insurance Company, Court of Appeals Case No.
49A02-1501-PL-8
Appellant-Plaintiff,

v.

Mark May, Pamela Coomer, and
Roger W. Hoke as the Personal
Representative of the Estate of
Brian Hoke, deceased,
Appellees-Defendants,

May, Judge, dissenting.

[21] Summary judgment as to Hoke was properly denied. I acknowledge the

majority’s concern that “[d]etermining an insurer’s liability only after an

accident occurs and the status of the victim is ascertained creates the possibility

of disparate treatment of similarly situated insurers.” (Slip op. at 14.) But the

result the majority reaches in its effort to avoid “disparate treatment of similarly

situated insurers” gives rise to a far greater concern – disparate treatment of

innocent persons who are accident victims. As the majority result has the effect

of depriving pedestrians, bicyclists, and other non-drivers of recovery that

would remain available to motorists involved in traffic accidents, I must

respectfully dissent.

Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 17 of 21
[22] I agree with the majority that the particular facts of this case present an issue of

first impression in Indiana. But the majority’s narrow characterization of

Indiana’s public policy is not required by our Indiana Supreme Court’s

precedent and would lead to harsh and unfair outcomes, because it would result

in protection for drivers injured in motor vehicle accidents but would leave no

remedy for pedestrians, bicyclists, or other persons who need not or cannot

prove financial responsibility.

[23] Specifically, I would decline to hold, as the majority appears to, that the well-

established and almost universally-recognized public policy to protect innocent

victims from financial loss by reason of the acts of irresponsible operators of

motor vehicles applies only in “compulsory insurance” states but not in

“compulsory financial responsibility” states like Indiana. 4 That surely is not a

4
I do not find the distinction between “compulsory financial responsibility” and “compulsory insurance” so
significant that it should serve to deprive innocent non-driver victims of motor vehicle accidents of a
mechanism for recovery that is available to drivers. Courts have often used the terms interchangeably, e.g.,
Dunn v. Safeco Ins. Co. of Am., 798 P.2d 955, 958 (Kan. Ct. App. 1990): “[r]egardless of the reasoning used, all
courts that have considered the question as it pertains to an innocent third party have held that an insurer
cannot, on the ground of fraud or misrepresentation, retrospectively avoid coverage under a compulsory
insurance or financial responsibility law so as to escape liability to an innocent third party.” (Emphasis added.)

The majority suggests “if May did not want to be subject to the exclusions at issue, he did not have to
purchase a policy of insurance. Instead, he could have posted a bond in the same minimum coverage
amount he had insured himself for through Founders and he would have been subject to no such
restrictions.” (Slip op. at 13) (footnote omitted). It is a long-standing public policy that persons who suffer
loss from automobile accidents should have a source and means of recovery. I would not place outside the
scope of that policy those Hoosiers affluent enough to satisfy financial responsibility requirements without
buying insurance. An innocent victim’s ability to recover should not depend on an automobile owner’s
income level.

Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 18 of 21
 result our legislature intended would flow from the compulsory financial

responsibility statutes.

[24] I am fully cognizant of the importance of public policy generally favoring the

enforcement of contracts, and I acknowledge our Supreme Court’s statement on

which the majority relies as its articulation of our public policy that “Indiana’s

current financial responsibility scheme, like the prior one, demonstrates a policy

to protect automobile owners . . . from damages which [sic] might be inflicted on

them by other cars out on the road.” Transamerica Ins. Co. v. Henry, 563 N.E.2d

1265, 1268 (Ind. 1990) (emphasis added). That was an appropriate statement of

policy in Henry, where tortfeasor and victim were both drivers, and I do not

suggest automobile owners are undeserving of protection.

[25] But I would not attribute to our legislature a public policy that protects only

accident victims who happen to be automobile owners or drivers, and leaves to

fend for themselves pedestrians, bicyclists, and other non-drivers who need not

or cannot prove financial responsibility or who are otherwise not subject to the

financial responsibility laws. As the majority correctly notes, our Indiana

Supreme Court has not foreclosed a policy that would place non-drivers on an

equal footing: “[w]e leave for another day whether a liability insurer can deny

coverage when the third party does not have protection against uninsured

motorists.” Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 672 (Ind. 1997).

[26] I believe a more useful statement of our public policy in this case is that “it is

the policy of this state that persons who suffer loss due to the tragedy of

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 automobile accidents shall have a source and means of recovery.” Am.

Underwriters Grp., Inc. v. Williamson, 496 N.E.2d 807, 810 (Ind. Ct. App. 1986),

(disapproved on other grounds by Guzorek). This policy typically guides courts in

other jurisdictions who face fact situations like ours, and I believe that analysis

strikes a better balance between protection of insured motorists and that of

accident victims who are not motorists.

[27] In McCarthy v. Motor Vehicle Acc. Indemnification Corp., 224 N.Y.S.2d 909, 921

(App. Div. 1962), aff'd, 188 N.E.2d 405 (N.Y. 1963), the Appellate Division

surveyed the law in this area:

Many states have recognized the need to protect innocent victims from
financial loss by reason of the acts of irresponsible operators of motor
vehicles. Recent legislation has been enacted in several jurisdictions to
remedy such situations and to fill the gaps which have existed.
Despite differences in the various statutes a common thread runs
through all of them -- that the perspective from which the problem
must be considered is the interests of the victim and not the actor.
Thus in Hartford Acc. & Indem. Co. v. Wolbarst, 95 N.H. 40, 43, 57 A.2d
151, 153, where the collision was deliberately or intentionally caused,
the court stated as follows: “The purpose of the New Hampshire
Financial Responsibility Act was fundamentally to provide
compensation for innocent persons who might be injured through
faulty operation of motor vehicles.” In re Opinion of the Justices, 81
N.H. 566, 129 A. 117, 39 A.L.R. 1023. “Financial responsibility
statutes have been passed in many states, and are in the process of
preparation in still others, to secure the solvency of operators upon the
highways of those states, and to guarantee their ability to discharge
judgments arising out of accidents in which they might be involved * *
*. The beneficiaries of such an act and of such a policy, when issued,
are the members of the general public who may be injured in
automobile accidents by such person; and the policies are generally
construed with great liberality to accomplish their purpose.” 7
Appleman, Insurance Law and Practice, § 4295 [62, 63].

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[28] It further noted liability insurance is coming to be regarded more as a device for

providing funds to meet the needs of injured persons and less as a device for the

protection of the insured. Id. at 922. Statutory recognition of this trend is

manifested in financial responsibility laws, the purpose of which is to indemnify

innocent third persons and to protect the general public from financially

irresponsible motorists. Id. Since the basic purpose of the financial

responsibility laws is not to afford financial protection to the insured, but rather

to compensate his innocent victim, there is no reason why the victim’s rights

should depend upon the motivation of the insured’s conduct. Id. Nor are the

victim’s rights against the insurer derived through the insured. Id.

[29] Today we address the question our Supreme Court explicitly left unresolved in

Guzorek: whether a liability insurer can deny coverage when the third party

does not have protection against uninsured motorists. I agree with the courts of

other states that the perspective from which the financial responsibility question

must be considered is the interest of the victim and not the actor, and that the

purpose of the financial responsibility laws is to indemnify innocent third

persons and to protect the general public from financially irresponsible motorists.

[30] I cannot join the majority opinion to the extent it would, in order to protect

insurance companies from perceived “disparate treatment,” deprive non-

motorist accident victims of recovery that is available to accident victims who

are motorists, and I must therefore respectfully dissent.

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