BROWN, Judge.
Central Mutual Insurance Company ("Central") appeals the trial court's order denying its motion for partial summary judgment and granting the motion for partial summary judgment filed by Motorists Mutual Insurance Company ("Motorists"). Central raises one issue which we revise and restate as whether the court erred in entering partial summary judgment in favor of Motorists. We affirm.
On July 5, 2011, Alvin Pilotte was injured in a motor vehicle collision allegedly caused by the negligence of Bobby Scotten. At the time of the collision, Pilotte was operating a truck owned by Kenworth of Indianapolis, Inc., ("Kenworth") with Kenworth's permission and in the course of his employment with Wampler's Services, Inc. ("Wampler"). Central insured Kenworth under "Commercial Garage Policy, Policy No. 8629727" (the "Central Policy").
On April 27, 2013, Pilotte filed an amended complaint for damages against Scotten, Motorists, and Central. On May 2, 2013, Motorists filed an Answer, Amended Complaint for Declaratory Judgment and Crossclaim against Scotten. Motorists requested that the court issue a declaration as to the priority between the Central Policy and the Motorists Policy.
On May 15, 2013, Central filed its answer and alleged as an affirmative defense that its policy issued to Kenworth was a "garage liability policy" as defined in Ind. Code § 27-8-9-6(b) and requested that the court issue a judgment declaring that the Motorists Policy issued to Wampler provides primary underinsured motorist coverage to Pilotte and that no recovery may be made under the Central Policy until the limits of all coverage available to Pilotte under the Motorists Policy had been exhausted.
On October 1, 2013, Central filed a motion for partial summary judgment and argued that the Central Policy was excess to the underinsured motorist coverage afforded to Pilotte under the Motorists Policy. On December 12, 2013, Motorists filed a response and cross-motion for partial summary judgment requesting that the court declare that the Motorists Policy "is in an excess position to the [Central] Policy with regard to" Pilotte's claims. Id. at 247.
On March 10, 2014, the court held a hearing on the motions for partial summary judgment.
On April 21, 2014, Central filed a motion to certify the court's March 21, 2014 order. On May 12, 2014, the court granted Central's motion. On May 15, 2014, Central filed a motion for an interlocutory appeal, and this court granted the motion to accept jurisdiction.
The issue is whether the trial court erred in entering partial summary judgment in favor of Motorists. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on
Central argues that Ind.Code § 27-8-9-10, the Garage Liability Statute, governs and provides that recovery under the Central Policy may not be made until the limits of all coverage available to Pilotte as a permittee have been exhausted. Central asserts that this conclusion is not changed by the fact that the Central Policy provides that its coverage is primary and the Motorists Policy provides that its coverage is excess because contractual provisions which are in contravention of statute are unenforceable. Central asserts that had the legislature intended that the terms of the statute could be contradicted by the terms of the applicable insurance policies, it could have provided as much. Central also asserts that the statute is mandatory and not discretionary.
Motorists asserts that the application of the Garage Liability Statute in the context of two non-conflicting policies that clearly establish the priority of those policies is a matter of first impression and that Indiana Courts have had the opportunity to construe other provisions of the Indiana Motor Vehicle Primary Insurance Coverage Act, including Indiana's Owner's Statute, Ind.Code § 27-8-9-7, and Indiana's Lease Statute, Ind.Code § 27-8-9-9. Motorists argues the Garage Liability Statute is discretionary and that "[t]he facts of this matter do not present circumstances necessitating application of the Indiana Garage Liability Statute, but rather, clear cut complementary policy provisions that render the Indiana Garage Liability inapplicable." Appellee's Brief at 15-16. Motorists asserts that a logical reading of the two policies together provides that Central will provide primary coverage, and only after the limits of the Central Policy have been exhausted will coverage under the Motorists Policy be available to claims against the Motorists Policy. In its reply brief, Central contends that Motorists asks this court to modify the Garage Liability Statute to limit its application.
This case requires that we interpret the insurance policies and the relevant statutes. A contract for insurance is subject to the same rules of interpretation as other contracts. USA Life One Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 537-538 (Ind.1997). Thus, if the language in the insurance policy is clear and unambiguous, it should be given its plain and ordinary meaning. Id. at 538. However, if the language of the policy is ambiguous, we may apply the rules of construction in interpreting the language. Id. When an insurance policy contains an ambiguity, it should be strictly construed against the insurance company. Id. A policy is ambiguous only if it is "susceptible to more than one interpretation and reasonably intelligent persons would differ as to its meaning." Id.
"Generally, an insurer has the right to limit its coverage of risks and its liability, and in so doing may impose exceptions, conditions, and exclusions upon its contractual obligations that are not inconsistent with public policy." Balagtas v.
When interpreting a statute, we independently review a statute's meaning and apply it to the facts of the case under review. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind.2002). If a statute is unambiguous, we must give the statute its clear and plain meaning. Id. A statute is unambiguous if it is not susceptible to more than one interpretation. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.2001). If a statute is susceptible to multiple interpretations, we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent. Bolin, 764 N.E.2d at 204. We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. Id. A statute should be examined as a whole, avoiding excessive reliance upon a strict literal meaning or the selective reading of individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776 (Ind.2008).
Indiana's Garage Liability Statute, Ind. Code § 27-8-9-10, is titled "Garage liability policy as owner's only coverage; permittee's coverage primary" and provides:
Ind.Code § 27-8-9-6(b) defines a "[g]arage liability policy" as:
"`Motor vehicle insurance coverage' means any type of insurance coverage described in IC 27-1-5-1, Class 2(f)." Ind.Code § 27-8-9-6(c). Ind.Code § 27-1-5-1(f), under "CLASS 2," describes insurance coverage "[t]o insure against any loss, expense and/or liability resulting from the ownership, maintenance, use and/or operation of any automobile or other motor vehicle, including complete line coverage on automobiles or other motor vehicles...." "`Permittee' means any person who is granted permission to operate a motor vehicle by the owner of the motor vehicle." Ind.Code § 27-8-9-6(d). Motorists does not contradict Central's assertion that the Central Policy constitutes a garage liability policy or that Pilotte was a permittee.
We observe that this court has previously commented on the purpose of the Garage Liability Statute. In Gen. Acc. Ins. Co. of Am. v. Hughes, we held:
706 N.E.2d 208, 212 n. 6 (Ind.Ct.App.1999), trans. denied.
The Central Policy is titled "COMMERCIAL GARAGE POLICY." Appellant's Appendix at 56. Under the "Direct Coverage Options," the option for "Primary Insurance" is marked with an "X" and states: "If this box is checked, Garagekeepers Coverage is changed to apply without regard to your or any other `insured's' legal liability for `loss' to a `customer's auto' and is primary insurance."
The Conditions are changed for Underinsured Motorists Coverage as follows:
Id. at 135-136.
Central also acknowledges that the Motorists Policy provides that its coverage is excess. The Motorists Policy provides:
Id. at 48-49.
We have previously interpreted Indiana's Owner's Statute and Lease Statute, which are also included in Ind.Code Chapter 27-8-9 which is titled "Primary Motor Vehicle Insurance Coverage." In Monroe Guaranty Ins. Co. v. Langreck, 816 N.E.2d 485, 496 (Ind.Ct.App.2004), the court examined the Owner's Statute, Ind. Code § 27-8-9-7, which at the time provided:
The court concluded that including umbrella insurance policies within the definition of "motor vehicle insurance coverage" for purposes of the Owner's Statute was not required by the evident legislative intent behind the statute, and indeed would lead to an absurd result contrary to the expectations of those issuing and purchasing umbrella insurance policies. 816 N.E.2d at 498. The court relied in part upon the differences between umbrella and primary policies and the expectations of insurers and insureds with respect to umbrella policies in particular. Id. The court stated:
Id. at 498. The court concluded that one insurer's "overall primary policy remains primary and [another insurer's] true excess or umbrella policy is secondary, in accordance with black-letter law adopted in numerous jurisdictions and notwithstanding the Indiana Owner's Statute." Id. at 499.
In Old Republic Ins. Co. v. RLI Ins. Co., 887 N.E.2d 1003, 1004 (Ind.Ct.App.2008), reh'g denied, trans. denied, the court addressed whether Ind.Code § 27-8-9-9, Indiana's Lease Statute, may be applied to determine the priority of insurance coverage between a primary insurance policy and true excess policies. Ind.Code § 27-8-9-9 provided:
The court observed that whether Indiana's Lease Statute applies only between insurance policies on the same level was a question of first impression, and observed that Indiana's Owner's Statute and Lease Statute are in pari materia and are both part of Indiana's Primary Motor Vehicle Insurance Coverage Act. Id. at 1008, 1010. The court held that "[t]hey each provide statutory tiebreakers for determining the priority of insurance coverage in circumstances where the priority of coverage might not otherwise be immediately clear." Id. The court noted that the only difference of note between the statutes is "the circumstances to which they apply: application of Ind. Code Section 27-8-9-7 requires a permittee's use of an automobile, and application of Section 27-8-9-9 requires the operation of a leased motor vehicle." Id. at 1010-1011.
The court was not persuaded that that difference was significant or sufficient to "ignore our holding in Monroe Guaranty that, `in coverage priority disputes between a primary insurer that purports to be excess in limited circumstances and an insurer who issues a true excess or umbrella liability policy, the umbrella policy is always excess to the essentially primary policy.'" Id. at 1011 (quoting Monroe Guaranty, 816 N.E.2d at 498). The court concluded that "because we endeavor to read different provisions of the Indiana Code harmoniously, we hold that Indiana's Lease Statute, like Indiana's Owner's Statute, applies only to determine priority between insurance policies providing the same level of coverage." Id. The court held that the Old Republic Policy provided primary coverage, while the RLI Excess Policy, the ISOP Umbrella Policy, and the First Specialty Excess Policy each offered true excess coverage, and, thus, the Lease Statute could not be applied to prioritize the Excess Insurers' policies ahead of the Old Republic Policy. Id. at 1012.
We agree with the analysis in Old Republic Ins. Co. and Langreck, and hold that Indiana's Garage Liability Statute, like Indiana's Lease Statute and Owner's Statute, applies only to determine priority of coverages between insurance policies providing the same level of coverage. The Motorists Policy clearly states, and Central concedes, that its coverage is excess. Central also concedes that the Central Policy provides that its coverage is primary. Thus, we cannot say that both policies provided the same level of coverage or that a riddle has been presented which Ind. Code § 27-8-9-10 was intended to solve. Accordingly, we cannot say that the trial court erred in entering summary judgment in favor of Motorists.
For the foregoing reasons, we affirm the trial court's grant of Motorists' motion for summary judgment.
Affirmed.
BRADFORD, J., concurs.
BARNES, J., concurs in result with separate opinion.
BARNES, Judge, concurring in result.
I fully concur in the result reached by my colleagues. However, I reach that result differently.
Primarily, unlike my colleagues, I do not place much reliance upon our decisions in Langreck and Old Republic. Those cases dealt specifically with the fundamental difference between true excess or umbrella insurance policies versus primary insurance policies that purport to be excess in limited situations. In Langreck, we discussed at length the particular hallmarks of umbrella insurance policies and how they differ from primary liability policies. See Langreck, 816 N.E.2d at 494-96. Ultimately, we held that, "in coverage priority disputes between a primary insurer that purports to be excess in limited circumstances and an insurer who issues a true excess or umbrella liability policy, the umbrella policy is always excess to the essentially primary policy," regardless of statutory priority provisions for automobile liability policies. Id. at 498. Here, neither policy at issue is an umbrella policy. Both policies are essentially primary policies with limited "other insurance" or excess coverage clauses.
Central does not deny that, by virtue of the plain and unambiguous language in both its policy and Motorists' policy, Central's policy provides primary underinsured motorists coverage to Pilotte while Motorists' policy only provides excess underinsured motorists coverage. There is no conflict between the terms of the policies. Central wants to be saved from the result of its own policy drafting by the Garage Liability Statute, claiming that the statute requires its coverage to be excess only. It cites cases for the proposition that insurance policies cannot violate statute. I note that in Westfield Companies v. Knapp, 804 N.E.2d 1270, 1274 (Ind.Ct. App.2004), trans. denied, we said, "Unless the contract provides otherwise, all applicable law in force at the time the agreement is made impliedly forms a part of the agreement without any statement to that effect." Also, it is clear to me that the primary purpose of our insurance laws is to protect the public, given "the frequently unequal bargaining power between insurance companies and insureds." Justice v. Am. Family Mut. Ins. Co., 4 N.E.3d 1171, 1176 (Ind.2014). Insurers are permitted to limit their liability in any manner consistent with public objectives expressed in state statutes. Id. I do not believe such statutes can be used to correct an insurance company's drafting that possibly expanded their liability beyond the minimum required by statute. To the contrary, the general rule appears to be, "Insurance companies and insureds may contract for coverage in excess of the coverage required by particular statutes, particularly when the statutory provision is for the benefit of the insured, and by providing such broader coverage the policy does not violate public policy." 44 C.J.S. Insurance § 474, p. 585 (2007) (citing Standard Mut. Ins. Co. v. Pavelka, 580 F.Supp. 224 (S.D.Ind.1983) (applying Indiana law)).
Although Central's policy is labeled a "garage" policy, it is unambiguously written in such a way to provide primary underinsured motorist coverage to Pilotte under the facts here. Presumably, Central knew what it was doing when it wrote its policy in that way and charged Kenworth premiums accordingly. Conversely, Motorists' policy unambiguously provides only excess coverage to Pilotte, and so that coverage is not "available" to him under the language of the Garage Liability Statute until Central's policy is exhausted. As such, I join the majority in voting to affirm the trial court's granting of Motorists' partial summary judgment motion.
