concurring.
I fully concur as to Parts I and IL.
With regard to Part III, I agree that, as stated on p. 234, the trial court did not err in finding that the Ford pickup was an insured vehicle. I do not do so, however, only for the reason that Beckner was not using it for a business or occupation at the time of the accident. Rather I do so because the truck was a "car ... of the pickup ... type" and was "not used in any business or occupation.5 Appellant's App. at 106. Here, as noted by the majority, the projected business use had not yet been possible because the business did not yet exist. My reading of the insurance provision therefore makes the truck a "utility car." I then conclude that because the Sonoma pickup was inoperable and not subject to coverage and because the only other vehicle, ie. the 1986 Grand Am, a passenger vehicle, was covered by American Family, it is an "additional ... utility car" covered by paragraph 14. b(2) of the insurance policy.
With respect to Part IV, I agree that the doctrine of judicial estoppel is not applicable to the facts before us. However, I do so becalise the assertion by the injured motorists that Beckner was uninsured in their claim upon the policy with Safeco was not made pursuant to a lawsuit. The recovery from Safeco was obtained without judicial action. There was no complaint filed in a judicial forum giving rise to judicial estoppel. See Brightman v. State, 758 N.E.2d 41 (Ind.2001) (citing Shewmaker v. Etter, 644 N.E.2d 922 (Ind.Ct.App.1994), opinion adopted by Hammes v. Brumley, 659 N.E.2d 1021 (Ind.1995)).
. In this respect I believe the particular use at the time of the accident is not determinative. A vehicle could very well be used generally in the business or occupation of the owner but at the precise time in issue being used for a personal purpose. |