FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRUCE A. MacTAVISH DONALD L. MILLER, II
Markel Markel Lambring & MacTavish KEITH R. CONRAD
Brownstown, Indiana Frost Brown Todd LLC
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID PURYEAR, )
)
Appellant-plaintiff, )
)
vs. ) No. 22A01-0211-CV-450
)
PROGRESSIVE NORTHERN )
INSURANCE COMPANY, )
)
Appellee-respondent. )
APPEAL FROM THE FLOYD CIRCUIT COURT
The Honorable J. Terrence Cody, Judge
Cause No. 22C01-0101-CP-17
June 17, 2003
OPINION—FOR PUBLICATION
BAKER, Judge
Appellant-plaintiff David Puryear appeals the trial court’s grant of
summary judgment in favor of appellee-defendant Progressive Northern
Insurance Company (Progressive). He argues that the policy is ambiguous
because his status as a “listed driver” could reasonably be construed to
grant him benefits as a “named insured” under the policy’s uninsured-
motorist provision. We conclude that the policy does not include a “listed
driver” as a beneficiary of the uninsured motorist provision and that the
policy otherwise specified the uninsured motorist beneficiaries.
Therefore, Puryear may not invoke the ambiguity rule of insurance contract
interpretation. Moreover, the contract is clear and unambiguous. The
trial court’s grant of summary judgment is affirmed.
FACTS
On October 13, 1999, Puryear’s “roommate,” Leslie Duncan, purchased
an automobile liability policy from Progressive. Appellant’s Br. p. 6.
The policy provided insurance for damages caused by uninsured owners or
operators of vehicles and injuries resulting from a hit-and-run. Duncan
was the policy’s only named insured. Both Duncan and Puryear were “listed
drivers” on the policy. Appellant’s App. Exh. P, at 1.[1]
A hit-and-run driver later struck Puryear while he was on a sidewalk.
As a result, Puryear suffered multiple bodily injuries and required
extensive hospitalization ending in substantial costs. Puryear later
recovered uninsured motorist benefits from an automobile insurance policy
issued to him, as a named insured, by Nationwide Insurance on his vehicle.
He then sought uninsured motorist benefits from the policy issued to
Duncan by Progressive on her vehicle.
Progressive denied the claim, prompting Puryear to seek a declaratory
judgment that he was entitled to benefits on the policy Progressive issued
to Duncan. Progressive filed its motion for summary judgment contending
that Puryear was seeking coverage from an insurance policy issued to
another person for a loss that was unrelated to either the vehicle or
person covered by the policy. The trial court granted Progressive’s motion
for summary judgment and Puryear now appeals.
DISCUSSION AND DECISION
I. Standard of Review
The party appealing from a summary judgment decision has the burden of
persuading the court that the grant or denial of summary judgment was
erroneous. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908
(Ind. 2001). Summary judgment is appropriate only if the pleadings and
evidence sanctioned by the trial court show that “there is no genuine issue
as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Ind. Trial Rule 56(C). The review of a summary
judgment motion is limited to those materials designated to the trial
court. Ind. Trial Rule 56(H); Rosi v. Bus. Furniture Corp., 615 N.E.2d
431, 434 (Ind. 1993). On a motion for summary judgment, all doubts as to
the existence of material issues of fact must be resolved against the
moving party. Owens Corning, 754 N.E.2d at 909.
Construction of the terms of a written contract is a pure question of
law for the court, reviewed de novo. Harrison v. Thomas, 761 N.E.2d 816,
818 (Ind. 2002). “Although some ‘special rules of construction of
insurance contracts have been developed due to the disparity in bargaining
power between insurers and insureds, if a contract is clear and
unambiguous, the language therein must be given its plain meaning.’” Beam
v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002) (quoting Allstate Ins.
Co. v. Boles, 481 N.E.2d 1096, 1101 (Ind. 1985)). However, “‘[w]here there
is ambiguity, insurance policies are to be construed strictly against the
insurer’ and the policy language is viewed from the standpoint of the
insured.” Bosecker v. Westfield Ins. Co., 724 N.E.2d 241, 244 (Ind. 2000)
(alteration in original) (quoting Am. States Ins. Co. v. Kiger, 662 N.E.2d
945, 947 (Ind. 1996)). A contract is ambiguous only if reasonable persons
would differ as to the meaning of its terms. Beam, 765 N.E.2d at 528
When construing the meaning of an insurance policy, “‘an ambiguity is not
affirmatively established simply because controversy exists and one party
asserts an interpretation contrary to that asserted by the opposing
party.’” Id. (quoting Auto. Underwriters, Inc. v. Hitch, 169 Ind. App.
453, 457, 349 N.E.2d 271, 275 (1976)). Because the interpretation of a
contract is a matter of law, cases involving the interpretation of
insurance contracts are particularly appropriate for summary judgment.
Wright v. Am. States Ins. Co., 765 N.E.2d 690, 692 (Ind. Ct. App. 2002).
II. Puryear’s Claim
Puryear contends that although he was not the policy’s “named
insured,” his status as a “listed driver” entitled him to the uninsured
motorist coverage. He argues that the policy fails to define the term
“listed driver” and fails to specify that the rights of a named insured
differ from those of a “listed driver.” According to Puryear, reasonable
minds could disagree on whether the uninsured motorist coverage applied to
a listed driver. As a result, he concludes that the policy should be
construed in his favor.
An examination of Progressive’ policy and applicable contract law
establish the contrary. In the portion of the policy providing uninsured
motorist coverage, Progressive agreed to pay for certain damages “which an
insured person is legally entitled to recover from the owner or operator of
an uninsured motor vehicle . . . because of bodily injury.” Appellant’s
App. Exh. P, at 12 (emphases in original). One of the policy’s definitions
of an uninsured motor vehicle is a “hit-and-run vehicle whose owner or
operator cannot be identified.” Appellant’s App. Exh. P, at 13. According
to the policy, an “insured person” means in pertinent part:
a. you or a relative;
b. any person occupying a covered vehicle; and. [sic]
Appellant’s App. Exh. P, at 12-13 (emphases in original). When used in the
policy, the words “You” and “Your” refer specifically to “a person shown as
the named insured on the Declarations Page.” Appellant’s App. Exh. P, at 5
(emphasis in original). The only “named insured” appearing on the policy’s
Declarations Page is Duncan. It is undisputed that Puryear is not Duncan’s
relative. Nor was he occupying the covered vehicle at the time of the hit-
and-run. We conclude, therefore, that the insurance policy specifically
limited the uninsured motorist coverage to specific categories—the named
insured, an insured’s relative, and any person occupying a covered
vehicle—and that Puryear does not fall into any of the specific categories.
We note that the reason for the ambiguity rule is the disparity in
bargaining power between an insured and an insurer. See Beam, 765 N.E.2d
at 528. “When the reason for a rule ceases to exist in its specific
application, the rule should no longer be applicable or it should be made
subject to proper exceptions.” Shriner v. Union Fed. Sav. & Loan Ass’n,
235 Ind. 380, 385, 133 N.E.2d 861, 863 (1956). Here, the policy does not
specifically list Puryear as a named insured and he does not fall into any
of the categories covered by the uninsured-motorist provision. Because
Puryear is not an insured, he may not invoke the ambiguity rule used in
insurance-contract interpretation.
We further note that insurance-contract law establishes that
Progressive’s policy clearly and unambiguously limited its coverage. This
court interpreted an identical policy in Millspaugh v. Ross, 645 N.E.2d 14
(Ind. Ct. App. 1994), an opinion that Puryear unconvincingly argues we
should abandon. David Millspaugh was listed as the principal driver on an
insurance policy where his mother was listed as the named insured.
Millspaugh, 645 N.E.2d at 16. While a passenger in another vehicle, he was
injured in a collision with an uninsured motor vehicle. In an action
seeking the uninsured motorist benefits of his mother’s policy, he claimed
that he was entitled to the benefits by virtue of his status as the
policy’s “principal driver.” Id. Because “principal driver was not
defined in his mother’s policy, Millspaugh claimed that the policy was
ambiguous and should be construed to grant him benefits. Id. Given that
Millspaugh was over twenty-five years of age, he did not qualify under the
policy’s definition of relative.
In response to Millspaugh’s argument, this court concluded:
We do not agree that the contract here is ambiguous. The terms
in the policy concerning entitlement to uninsured motorist coverage
are clear and unambiguous. The person so entitled must appear as the
named insured on the declaration page. That Millspaugh is listed as
the principal driver, while relevant for other purposes, including the
amount of premiums to be paid, does not transform him into a person
qualified for compensation under the uninsured motorist provision of
the policy. An insurance company has the right to limit the coverage
of a policy issued by it and when it has done so, the plain language
of the limitation must be respected. A court cannot and should not do
violence to the plain terms of an insurance contract by artificially
creating ambiguity where none exists.
Id. at 17 (citation omitted). In other words, Millspaugh could not create
an ambiguity, requiring interpretation of the contract in his favor, by
arguing that the term “principal driver” was undefined and thus ambiguous.
Millspaugh sets forth sound principles of law and we see no reason to
abandon it. In order to rule in Puryear’s favor, we would necessarily be
engaged in “artificially creating ambiguity where none exists.” See id.
Progressive’s policy clearly and specifically limits its coverage of
injuries caused by an uninsured motor vehicle. We may not expand the
coverage of the policy merely because it does not define a term wholly
unrelated to uninsured motorist benefits.
We conclude that there is no genuine issue of material fact and that
Progressive was entitled to summary judgment as a matter of law. Thus, the
trial court did not err in granting Progressive’s motion for summary
judgment.
Judgment affirmed.
SULLIVAN, J., and DARDEN, J., concur.
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[1] We direct Appellant’s counsel to Indiana Appellate Rule 51(C), which
requires all pages of the Appendix to be numbered consecutively at the
bottom.
