BROOKS v. THE PHOENIX INSURANCE COMPANY

Filing 45

ORDER denying Plaintiff's 21 Motion for Summary Judgment and granting Defendant Phoenix's 37 Cross-Motion for Summary Judgment. Phoenix has no obligation to provide uninsured motorist coverage to Plaintiff in connection with the injuries he sustained in the vehicular accident on October 28, 2016. Count III against Kevin Lovitt remains. Signed by Judge Richard L. Young on 10/4/2019. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
CARL W. BROOKS,
Plaintiff,
v.
THE PHOENIX INSURANCE COMPANY
and KEVIN CHARLES LOVITT,
Defendants.

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3:18-cv-00054-RLY-MPB

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
In this diversity action, Plaintiff, Carl W. Brooks, was driving a rental vehicle
during the course of his employment when another vehicle, driven by uninsured motorist
Kevin Lovitt, collided with his car. Plaintiff thereafter filed the present lawsuit 1 against
The Phoenix Insurance Company, his employer’s insurer, seeking uninsured motorist
coverage. The parties cross-move for summary judgment. The court, having read and
reviewed the parties’ submissions, the designated evidence, and the applicable law, now
GRANTS Phoenix’s cross-motion for summary judgment and DENIES Plaintiff’s
motion for summary judgment.
I.

Factual Background
A.

The Accident

Plaintiff was an employee of Black and Pendleton, Inc. (“B&P”) d/b/a Case
Engineering, Inc. In October 2016, he was directed by his supervisor to drive to Parma,

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Plaintiff also filed a claim for negligence against Lovitt.

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Michigan to service a customer. Plaintiff was told to rent a car from Enterprise Rental
Company and to waive additional automobile insurance because B&P’s insurance policy
covered rental cars.
On October 28, 2016, Plaintiff rented the car from Enterprise and began his
business trip. As he was driving through Jackson County, Michigan, a truck driven by
Lovitt hit Plaintiff’s rental car head on, causing Plaintiff serious medical injuries. Lovitt
was uninsured.
B.

The Phoenix Policy

At the time of the accident, Phoenix had issued B&P a commercial automobile
insurance policy. (See Filing Nos. 36-3 and 36-4, Policy). The Common Declarations
Page identifies the “Named Insured” as “Blake & Pendleton, Inc., And As Per IL T8 00,”
and the “Mailing Address” as 269 North Street, Macon, Georgia 31206. (Id. at 2). The
Policy contains the endorsement IL T8 00, which includes Case Engineering, Inc., as a
“Named Insured.” (Id. at 8). Case Engineering’s address in Indiana is 1401 West
Franklin Street, Evansville, Indiana, 47711. (Filing No. 36, Am. Compl. ¶ 3).
Pursuant to the Business Auto Coverage Part Declarations, the Policy provides
liability coverage for covered autos identified by “Covered Auto Symbol 1,” defined as
“Any ‘Auto.’” (Id. at 13, 20). Those Declarations also state that “Uninsured and
Underinsured Motorists Coverage” is provided for covered autos identified by “Covered
Auto Symbol 2,” defined as “Owned ‘Autos’ Only: Only those ‘autos’ you own.” (Id.).
The declarations also indicate that the Policy provides comprehensive and collision
coverage for covered autos identified by both “Covered Auto Symbol 2 and 8.” Symbol
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2, again, is only for “Owned Autos,” and Symbol 8 is defined in the Policy, in pertinent
part, as “Hired ‘Autos’ Only: Only those ‘autos’ you hire, rent or borrow.” (Id.).
The Policy includes Uninsured Motorists (“UM”) endorsements for North
Carolina, Mississippi, Florida, Alabama, and Georgia. (Id. at 14). Each UM
endorsement contains UM coverage “[f]or a covered ‘auto’ licensed or principally
garaged in” the state indicated by the endorsement—i.e., North Carolina, Mississippi,
Florida, Alabama, and Georgia—in the amount of $1,000,000. (See id. at 18). For
reasons unknown, the Policy does not contain a UM endorsement for Indiana or
Kentucky. The parties agree the rental car was licensed in Kentucky; Plaintiff asserts the
vehicle was principally garaged in Indiana.
II.

Discussion
As an employee of Case Engineering, Plaintiff argues he is an insured under the

Policy and is entitled to UM benefits pursuant to Indiana law. See Ind. Code § 27-7-5-2
(providing uninsured motorist coverage applies “to any motor vehicle registered or
principally garaged in this state” unless the insured specifically rejects uninsured motorist
coverage in writing). Phoenix disagrees and argues Georgia law applies.
A.

Choice-of-Law

The parties disagree on whether Georgia or Indiana law applies to this coverage
dispute. As the factual background indicates, the insurance policy was issued to B&P in
Georgia; Plaintiff is an Indiana resident employed by Case Engineering, a named insured;
the rental vehicle at issue was registered in Kentucky; and the accident took place in
Michigan. The court’s choice-of-law analysis is governed by the laws of the forum state;
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here, Indiana. State Farm Mut. Auto. Ins. Co. v. McNeal, 491 F.Supp.2d 814, 819 (S.D.
Ind. 2007) (quoting Jean v. Dugan, 20 F.3d 255, 260-61 (7th Cir. 1994)).
Indiana follows the Restatement (Second) of Conflict of Laws (1971), § 193 when
confronted with a choice of law issue with respect to insurance contracts. Stonington Ins.
Co. v. Williams, 922 N.E.2d 660, 665 (Ind. Ct. App. 1990). Under this analysis, the court
looks to the principal location of the insured risk. Id. The principal location of the
insured risk is where the subject matter of the insurance will be located during the term of
the policy. Id. Here, the principal location of the insured risk is Indiana, where Case
Engineering is located. Accordingly, Indiana law applies.
B.

The Coverage Issue

Under Indiana law, “[t]he construction of an insurance policy is a matter of law for
which summary judgment is particularly appropriate.” Stonington, 922 N.E.2d at 668
(internal quotation marks and citation omitted). An insurance policy is a contract and is
subject to the ordinary rules of contract construction. Id. Thus, if the language of the
policy is clear and unambiguous, the court assigns those terms their plain and ordinary
meaning. Id. An unambiguous policy must be enforced according to its terms, even if
those terms limit an insurer’s liability. Id.
Phoenix argues there is no UM coverage for the rental vehicle involved in the
accident for two reasons: (1) the Policy contains UM endorsements for North Carolina,
Mississippi, Florida, Alabama, and Georgia—not Kentucky or Indiana; and (2) UM
coverage exists only for “owned autos,” not rentals.

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The Policy contains UM endorsements for North Carolina, Mississippi, Florida,
Alabama, and Georgia. (Id. at 43-69). Coverage under each endorsement applies to
‘autos’ principally garaged in North Carolina, Mississippi, Florida, Alabama, or Georgia.
(Id. at 18). There is no evidence the subject vehicle was principally garaged in any of
those states. In the absence of such evidence, the court must find there is no UM
coverage under any of the endorsements set forth in the Policy for this accident.
But that is not the end of the inquiry. As Plaintiff correctly observes, Indiana’s
UM provisions are mandatory and are considered a part of every automobile liability
policy. United Nat’l Ins. Co. v. DePrizio, 705 N.E.2d 455, 460 (Ind. 1999) (“Indiana
Code § 27-7-5-2 is a mandatory coverage, full-recovery, remedial statute. It is directed at
insurers operating within Indiana and its provisions are to be ‘considered a part of every
automobile liability policy the same as if written therein.’” (quoting Indiana Ins. Co. v.
Noble, 265 N.E.2d 419, 425 (1970)). Even where the policy fails to provide uninsured
motorist coverage, an insurer must provide UM coverage to an insured unless specifically
rejected in writing. Id. Here, there is no written rejection of UM coverage for either
Indiana or Kentucky.
Because there is no specific UM endorsement for Indiana (or Kentucky), the only
portion of the Policy where Plaintiff could possibly be covered is found on page 18 of the
Policy:

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The Policy provides coverage for the “State where a covered ‘auto’ is principally
garaged.’” (Id. at 18). A covered ‘auto’ is an “owned auto,” defined as “[o]nly those
‘autos’ you own.” (Policy at 13, 20). Plaintiff’s rental vehicle is not an “owned auto” as
defined by the Policy. Moreover, contrary to Plaintiff’s assertion, the fact that the vehicle
was rented in Evansville does not establish that it was principally garaged in Indiana.
Accordingly, Plaintiff is not entitled to UM coverage under the Phoenix Policy.

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III.

Conclusion
For the foregoing reasons, the court DENIES Plaintiff’s Motion for Summary

Judgment (Filing No. 21), GRANTS Phoenix’s Cross-Motion for Summary Judgment
(Filing No. 37), and DECLARES that Phoenix has no obligation to provide uninsured
motorist coverage to Plaintiff in connection with the injuries he sustained in the vehicular
accident on October 28, 2016. Count III against Kevin Lovitt remains.

SO ORDERED this 4th day of October 2019.

Distributed Electronically to Registered Counsel of Record.

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