FILED
Sep 16 2020, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Neal F. Eggeson, Jr. Kimberly E. Howard
Eggeson Privacy Law Fisher Maas Howard Lloyd &
Fishers, Indiana Wheeler PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shannon M. North and Miles T. September 16, 2020
North, Court of Appeals Case No.
Appellants-Plaintiffs, 20A-PL-639
Appeal from the Allen County
v. Superior Court
The Honorable Jennifer L.
Selective Insurance Company of DeGroote, Judge
South Carolina, Trial Court Cause No.
Appellee-Defendant. 02D03-1811-PL-431
Sharpnack, Senior Judge.
Statement of the Case
[1] Appellants Shannon North and Miles North (the Norths) appeal the trial court’s
denial of their motion for partial summary judgment and its grant of Selective
Insurance Company’s motion for summary judgment. We affirm.
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Issue
[2] The Norths present two issues which we consolidate and restate as: whether
the trial court erred by denying the Norths’ motion for partial summary
judgment and by granting Selective’s motion for summary judgment,
concluding the umbrella policy of James North did not include underinsured
and uninsured motorist (UM/UIM) coverage.
Facts and Procedural History
[3] James North is the father of Miles North. In February 2018, James applied for
and received a personal umbrella policy issued by Selective. The umbrella
policy defined the term “insured” to include relatives of James that resided in
James’ household. Appellants’ App. Vol. II, p. 91. At the time the policy was
issued and at all relevant times in this case, Miles, his wife Shannon, and their
two children resided with James and his wife.
[4] In April 2018, Shannon and her two children were involved in a car accident
that caused Shannon serious and permanent injuries. The other driver’s
automobile liability insurance paid its full limits of $50,000 to Shannon and the
children, and Shannon and Miles’ automobile liability insurance paid its
UM/UIM coverage limits of $300,000.
[5] The following November the Norths filed a complaint for damages against
several defendants, all of whom have been dismissed except Selective. The
Norths seek to obtain UIM coverage from Selective under James’ umbrella
policy for Shannon’s accident. In August 2019, the Norths moved for partial
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summary judgment; Selective filed a response and a cross motion for summary
judgment. Following a hearing, the trial court denied the Norths’ motion and
entered summary judgment for Selective. This appeal ensued.
Discussion and Decision
[6] The trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. Auto-Owners
Ins. Co. v. Benko, 964 N.E.2d 886, 890 (Ind. Ct. App. 2012), trans. denied. This
Court applies the same standard of review as the trial court: summary
judgment is appropriate only where the designated evidentiary matter shows
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Young v. Hood’s Gardens, Inc., 24 N.E.3d
421, 423-24 (Ind. 2015); see also Ind. Trial Rule 56(C). Appellate review of a
summary judgment is limited to those materials specifically designated to the
trial court, and all facts and reasonable inferences drawn from those facts are
construed in favor of the nonmovant. Sheehan Const. Co., Inc. v. Cont’l Cas. Co.,
938 N.E.2d 685, 688 (Ind. 2010).
[7] Further, we review de novo a trial court’s ruling on summary judgment, Morris
v. Crain, 71 N.E.3d 871, 879 (Ind. Ct. App. 2017), and we may affirm the
summary judgment on any theory or basis supported by the designated
materials. Missler v. State Farm Ins. Co., 41 N.E.3d 297, 301 (Ind. Ct. App.
2015). The fact that the parties made cross motions for summary judgment
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does not alter our standard of review; rather, we consider each motion
separately to determine whether the moving party is entitled to judgment as a
matter of law. Pond v. McNellis, 845 N.E.2d 1043, 1053 (Ind. Ct. App. 2006),
trans. denied.
[8] The parties’ arguments concern Indiana Code section 27-7-5-2, which governs
the obligations of insurance carriers to provide UM/UIM coverage to Indiana
drivers. The version of this statute applicable to this case requires:
(a) Except as provided in subsections (d), (f), and (h), the insurer
shall make available, in each automobile liability or motor
vehicle liability policy of insurance which is delivered or issued
for delivery in this state with respect to any motor vehicle
registered or principally garaged in this state, insuring against
loss resulting from liability imposed by law for bodily injury or
death suffered by any person and for injury to or destruction of
property to others arising from the ownership, maintenance, or
use of a motor vehicle, or in a supplement to such a policy, the
following types of coverage:
(1) in limits for bodily injury or death and for injury to or
destruction of property not less than those set forth in IC 9-
25-4-5 under policy provisions approved by the
commissioner of insurance, for the protection of persons
insured under the policy who are legally entitled to recover
damages from owners or operators of uninsured or
underinsured motor vehicles because of bodily injury,
sickness or disease, including death, and for the protection
of persons insured under the policy who are legally entitled
to recover damages from owners or operators of uninsured
motor vehicles for injury to or destruction of property
resulting therefrom; or
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(2) in limits for bodily injury or death not less than those
set forth in IC 9-25-4-5 under policy provisions approved
by the commissioner of insurance, for the protection of
persons insured under the policy provisions who are
legally entitled to recover damages from owners or
operators of uninsured or underinsured motor vehicles
because of bodily injury, sickness or disease, including
death resulting therefrom.
The uninsured and underinsured motorist coverages must
be provided by insurers for either a single premium or for
separate premiums, in limits at least equal to the limits of
liability specified in the bodily injury liability provisions of
an insured’s policy, unless such coverages have been
rejected in writing by the insured. However, underinsured
motorist coverage must be made available in limits of not
less than fifty thousand dollars ($50,000). At the insurer’s
option, the bodily injury liability provisions of the
insured’s policy may be required to be equal to the
insured’s underinsured motorist coverage. Insurers may
not sell or provide underinsured motorist coverage in an
amount less than fifty thousand dollars ($50,000). Insurers
must make underinsured motorist coverage available to all
existing policyholders on the date of the first renewal of
existing policies that occurs on or after January 1, 1995,
and on any policies newly issued or delivered on or after
January 1, 1995. Uninsured motorist coverage or
underinsured motorist coverage may be offered by an
insurer in an amount exceeding the limits of liability
specified in the bodily injury and property damage liability
provisions of the insured’s policy.
(b) A named insured of an automobile or motor vehicle liability
policy has the right, in writing, to:
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(1) reject both the uninsured motorist coverage and the
underinsured motorist coverage provided for in this
section; or
(2) reject either the uninsured motorist coverage alone or
the underinsured motorist coverage alone, if the insurer
provides the coverage not rejected separately from the
coverage rejected.
A rejection of coverage under this subsection by a named
insured is a rejection on behalf of all other named insureds,
all other insureds, and all other persons entitled to
coverage under the policy. No insured may have
uninsured motorist property damage liability insurance
coverage under this section unless the insured also has
uninsured motorist bodily injury liability insurance
coverage under this section. Following rejection of either
or both uninsured motorist coverage or underinsured
motorist coverage, unless later requested in writing, the
insurer need not offer uninsured motorist coverage or
underinsured motorist coverage in or supplemental to a
renewal or replacement policy issued to the same insured
by the same insurer or a subsidiary or an affiliate of the
originally issuing insurer. Renewals of policies issued or
delivered in this state which have undergone interim
policy endorsement or amendment do not constitute newly
issued or delivered policies for which the insurer is
required to provide the coverages described in this section.
(c) A rejection under subsection (b) must specify:
(1) that the named insured is rejecting:
(A) the uninsured motorist coverage;
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(B) the underinsured motorist coverage; or
(C) both the uninsured motorist coverage and the
underinsured motorist coverage;
that would otherwise be provided under the policy; and
(2) the date on which the rejection is effective.
********
(h) The following apply to the coverage described in subsection
(a) in relation to a personal umbrella or excess liability policy:
(1) An insurer is not required to make available the
coverage described in subsection (a) under a personal
umbrella or excess liability policy.
(2) An insurer that reduces or removes, through a rider or
an endorsement, coverage described in subsection (a)
under a personal umbrella or excess liability policy shall:
(A) through the United States mail; or
(B) by electronic means;
provide to the named insured written notice of the
reduction or removal.
(3) An insurer that makes available the coverage described
in subsection (a) under a personal umbrella or excess
liability policy:
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(A) may make available the coverage in limits
determined by the insurer; and
(B) is not required to make available the coverage in
limits equal to the limits specified in the personal
umbrella or excess liability policy.
Ind. Code § 27-7-5-2 (2013).
[9] To summarize, insurers issuing automobile liability policies must provide
UM/UIM coverage in specified amounts unless the insured affirmatively rejects
it in accordance with the statutory rejection requirements of Subsections 27-7-5-
2 (b) and (c). On the other hand, an insurer issuing a personal umbrella policy
is not required to include UM/UIM coverage. Although not required to, an
insurer may offer UM/UIM coverage as part of a personal umbrella policy, and,
if so offered, an insured may purchase it, if desired.
[10] The Norths contend that the right of an insured to reject UM/UIM coverage
and the requirements of that rejection as set forth in Subsections 27-7-5-2 (b)
and (c) apply not only to automobile liability policies but also to personal
umbrella policies. Based on that contention, they assert that the statutory
requirements for rejection were not met in this case, and thus James should be
afforded UM/UIM coverage under his personal umbrella policy in effect at the
time of Shannon’s accident.
[11] The Norths’ argument ignores Subsection (h) of the statute concerning personal
umbrella policies. Subsection (h) states that, under a personal umbrella policy,
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insurers may, but are not required to, make available UM/UIM coverage.
Thus, with regard to a personal umbrella policy, inclusion of UM/UIM
coverage is dependent upon (1) whether UM/UIM coverage was available from
the insurer and (2) whether the insured requested, and perhaps more
importantly purchased, the coverage as part of the policy.
[12] The parties agree that UM/UIM coverage was available from Selective in its
personal umbrella policies. The issue lies with whether James requested and
purchased it.
[13] Selective issued a personal umbrella policy quote to James, which lists “Base
Premium,” “Additional Motorcycles/Mopeds,” and “Swimming Pool” with
corresponding premium amounts. There is a total annual policy premium of
$238.00 which equals the total of the above-mentioned premium amounts less a
credit for having Selective home and auto policies. Appellants’ App. Vol. II, p.
79 (Plaintiffs’ Desig. Ex. D-1).
[14] James then submitted a personal umbrella application, the first page of which
contained this section:
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Id. at 117 (Plaintiffs’ Desig. Ex. E-1). As shown in the above, under the
“OPTIONAL COVERAGES TO APPLY” heading, UM and UIM coverage are
listed with the dollar amount left blank. In addition, under the “ PREMIUMS”
heading, the UM and UIM contain the typewritten word “Rejected” in the
blanks for the dollar amount. In addition, the “ESTIMATED TOTAL
PREMIUM” of $238.00 matches the total annual policy premium amount in the
quote Selective provided to James. At the end of the application, James signed
in the box labeled “APPLICANT’S SIGNATURE.” Id. at 122. Right above
James’ signature is this statement: “APPLICANT’S STATEMENT: I HAVE
READ THE ABOVE APPLICATION AND ANY ATTACHMENTS. I DECLARE
THAT THE INFORMATION PROVIDED IN THEM IS TRUE, COMPLETE
AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. THIS
INFORMATION IS BEING OFFERED TO THE COMPANY AS AN
INDUCEMENT TO ISSUE THE POLICY FOR WHICH I AM APPLYING.” Id.
[15] Finally, the declarations page of the personal umbrella policy that Selective
issued to James lists the same base premium, additional autos, and swimming
pool with corresponding premium amounts and total annual policy premium as
the quote. Additionally, the policy includes:
III. Exclusions
*****
C. We do not provide:
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*****
2. Uninsured Motorists Coverage, Underinsured
Motorists Coverage, or any similar coverage unless
this policy is endorsed to provide such coverage.
[16] The evidence shows that the quote provided to James does not include a
premium for UM/UIM coverage. In addition, nowhere in the application does
it indicate that James requested UM/UIM coverage as part of the personal
umbrella policy. In fact, the notation in James’ application states that
UM/UIM coverage was “rejected.” This notation was an additional signal to
James that he was not applying for UM/UIM coverage. Contrary to the
Norths’ arguments, the mere use of that term does not, as a matter of course,
trigger or relate to the statutory rejection requirements applicable to automobile
liability policies. Perhaps a better term would have been “not requested” or
“not included.” Nevertheless, because an insurer is not required to make
available UM/UIM coverage in personal umbrella policies, it would be
inconsistent to require an insurer to obtain a written rejection of coverage that it
was not required to make available in the first place. Stated another way, one
need not reject something that is not included to begin with. While UM/UIM
coverage was available from Selective with an endorsement, there is no
evidence James applied for or purchased it, and there is no endorsement for
UM/UIM coverage in James’ policy. Accordingly, James did not have
UM/UIM coverage under the personal umbrella policy issued to him by
Selective and in effect at the time of Shannon’s accident.
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Conclusion
[17] Based on the foregoing, we conclude the trial court did not err when it denied
the Norths’ motion for partial summary judgment and granted Selective’s
motion for summary judgment.
[18] Affirmed.
Bailey, J., and Robb, J., concur.
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