Smith v. Auto-Owners Insurance Co.

BARNES, Judge,

dissenting with separate opinion.

I respectfully dissent. I believe the plain language of Indiana Code Section 27-7 — 5—4 bars the plaintiffs’ suit, and I do not believe that the plaintiffs present a question of fact regarding the potential date of Highlands’s insolvency.

No one disputes that Indiana law affords uninsured protection for insolvency that occurs within two years of an accident. Ind.Code § 27-7-5^. The plaintiffs did not submit any evidence to the trial court that Highlands’s insolvency occurred within this timeframe. The Indiana Code defines insolvency of an insurer as when an insurer “is unable to pay its obligations when they are due” or when an “insurer’s admitted assets do not exceed its liabilities.” I.C. § 27 — 9—1—2(k)(2). The Smiths presented no evidence that Highlands was unable to pay its obligations by February 10, 2001, or that Highlands’s liabilities exceeded its assets at that time. Rather, the Smiths contend that “the possibility remained of Highlands Insurance being declared ‘insolvent’ within the receivership action as of a date within the two year period after the Smiths’ accident.” Appellant’s Br. p. 27. The Smiths do not point to any specific evidence to support such a possibility. Instead, they rely generally on the receivership documents, totaling forty pages, to support this contention. A review of these documents, all filed in November of 2003, reveals that Highlands was not even placed into supervision by *1225the Texas Commissioner of Insurance until February 22, 2002. This date is over a year after the deadline for insolvency as required by the statute. The Texas Commissioner of Insurance declared that Highlands was in “hazardous financial condition” on August 20, 2002. Appellant’s App. p. 180. These documents do not reveal that Highlands was insolvent on or before February 10, 2001, as required by the statute; rather, the documents show that the company experienced financial difficulties and entered receivership over a year later. Although we scrutinize summary judgment rulings carefully to assure that a party was not improperly denied his or her day in court, an appellant bears the burden of demonstrating it was error to grant summary judgment. Bolin v. Wingert, 764 N.E.2d 201, 203 (Ind.2002). The Smiths did not present any evidence to create an issue of fact regarding the insolvency date to overcome summary judgment.

The plain language of Indiana Code Section 27-7-5-4 requires a tortfeasor’s insurer to be insolvent within two years of the accident. Unless and until our legislature extends this two-year window, I cannot conclude that the trial court improperly granted summary judgment. In my view, the trial court faced a question of law regarding the application of this statute and its limit. The plaintiffs needed to show that Highlands could not pay their claim by February 10, 2001, and no designated facts demonstrate that. The burden of proof with respect to non-insurance of a tortfeasor falls upon the insured plaintiff and plaintiffs here have not met this burden. Michael v. Wolfe, 737 N.E.2d 820, 822 (Ind.Ct.App.2000). I would vote to affirm the trial court’s granting of Auto Owner’s summary judgment motion.