MAY, Judge.
Shannon and Bryan Robinson (collectively, "Robinson") appeal summary judgment for Erie Insurance Exchange, which denied Robinson's claim for uninsured motorist coverage after a hit-and-run accident. As the car that hit Robinson was uninsured as a matter of law, we reverse.
On March 11, 2011, Bryan Robinson was westbound when a southbound Jeep ran a red light and hit his car. The Jeep hit a second car, then left the scene. Bryan was not injured but the car was totaled. The car was insured under an Erie policy that was sold to Shannon, Bryan's mother, and that listed Bryan as a driver. The policy obliged Erie to "pay damages for bodily injury and property damage that the law entitles
The Robinson policy had three definitions of "uninsured motor vehicle":
(Id. at 20.) The policy excluded uninsured motorist coverage for "property damage, if the owner or operator of the other
Robinson and Erie both moved for summary judgment. Robinson argued there was coverage under the first definition of "uninsured motor vehicle" because "no liability bond or insurance at the time of the accident" was available, (id. at 20), and no exclusion applied because Erie did not show the other driver could not be identified. Erie argued a hit-and-run vehicle cannot be identified, and no coverage was available for this hit-and-run vehicle under the third definition because Bryan was not injured. The trial court granted Erie's motion.
When reviewing a summary judgment, we use the same standard as the trial court: summary judgment is appropriate
Interpretation of an insurance policy presents a question of law that is particularly suitable for summary judgment. Id. Where there is ambiguity, insurance policies are construed strictly against the insurer and the policy language is viewed from the standpoint of the insured. Id. This is especially true where the language in question purports to exclude coverage. Id. Insurers are free to limit the coverage of their policies, but such limitations must be clearly expressed to be enforceable. Id. Where provisions limiting coverage are not clearly and plainly expressed, the policy will be construed most favorably to the insured, to further the policy's basic purpose of indemnity. Id. Where ambiguity exists not because of extrinsic facts but by reason of the language used, the ambiguous terms will be construed in favor of the insured for purposes of summary judgment. Id. More specifically, uninsured motorist provisions should be liberally construed in favor of the insured. Indiana Farmers Mut. Ins. Co. v. Speer, 407 N.E.2d 255, 259 (Ind.Ct. App.1980).
Robinson argues the Jeep that hit Bryan's car was an uninsured vehicle pursuant to the first definition in the policy — that there was "no liability bond or insurance at the time of the accident[,]"
In Gillespie v. GEICO Gen. Ins. Co., 850 N.E.2d 913, 915 (Ind.Ct.App.2006), the policy defined "uninsured auto" in language similar to that used in Robinson's policy, as:
It went on to provide "The term
Our focus in Gillespie was whether the vehicle that caused an accident and then left the scene was "identified" when it was described as a "white Honda driven by a Caucasian female." Id. at 916. We determined it was, and then said "[b]ecause the Caucasian female driver of the white Honda left the scene of the accident that she caused, there was `no bodily injury liability bond or insurance policy applicable with liability limits complying with [Indiana's]
Gillespie controls. As the driver who hit Bryan fled the scene, there was `no bodily injury liability bond or insurance policy applicable with liability limits complying with [Indiana's] financial responsibility law' available." Id. That brings Robinson within the first of the three "uninsured motor vehicle" definitions in the Erie policy,
In Dowell v. Safe Auto Ins. Co., 208 S.W.3d 872, 876 (Ky.2006), Dowell's policy defined an uninsured vehicle as one "to which no bodily injury liability bond or policy applies at the time of the accident." Safe Auto argued it was unknowable whether the tortfeasor had liability insurance because he absconded; therefore Dowell could not show the tortfeasor was an uninsured motorist. The Court said:
Id. at 878 (footnote omitted).
Similarly, as the driver who hit Bryan could not be located, "his actual insurance status is not controlling." Id. He or she is to be considered uninsured. And see 7A Am.Jur.2d Automobile Insurance § 342 (noting authority that when "uninsured vehicle" is defined to include a motor vehicle "to which no bodily injury liability bond or policy applies" at the time of the accident, no insurance policy "applies"
As the car that hit Bryan must be considered an uninsured motor vehicle, Erie's summary judgment motion should have
Reversed.
BAKER, J., and MATHIAS, J, concur.
Regardless, Allis is not helpful to the resolution of the case before us. The Allis panel addressed only the definition of "uninsured motor vehicle" in the Uninsured Motorist Act, Ind.Code § 27-7-5-2, and it explicitly noted the Act did not require an insurer to provide hit and run coverage. 628 N.E.2d at 1255. "[A]dditional or greater coverage is a matter of contract-which contemplates coverage in exchange for a premium." Id. at 1253. In the case before us the policy language, and not the statute, governs. Finally, the Allis panel addressed the physical impact requirement in the policy language. Nothing in Allis precludes coverage for Robinson.