I-469 worker struck in traffic loses appeal against insurance company

A construction worker struck by a driver while placing barriers on Interstate 469 could not convince the Indiana Court of Appeals on Monday that his bad faith claim against his employer’s insurer was wrongly ruled upon.

While working in a construction zone on I-469, Christopher Brandell was hit by an oncoming vehicle and severely injured. Brandell, who was in charge of traffic maintenance and construction zone signage on a contract between the Indiana Department of Transportation and a contractor, Primco Inc., suffered extensive injuries that required emergency heart surgery and caused a tear in his kidney and spleen, three broken ribs and a concussion.

At the time of Brandell’s accident, Secura Insurance provided three insurance policies to his employer, Three Rivers Barricade & Equipment Company Inc. Those included a worker’s compensation policy, a commercial general liability policy and a commercial auto policy, which included underinsured motorist benefits. Additionally, Brandell had a personal auto policy through Progressive Southeastern Insurance Company under which he also could have been eligible for UIM benefits.

But after Secura opened a UIM claim for Brandell, it sent him a letter stating that Brandell did not fit its definition of an “insured” under the UIM endorsement because he was not using the vehicle at the time of the accident.

In response, Brandell stated he had an “active” relationship with his work truck at the time of the accident and therefore was “using” it. His job was “to drive a short distance, stop the vehicle in the shoulder with the two rotating flashing lights on the top of the vehicle and the four-way hazards on, get out of the vehicle on foot, move the barrels, get back into the driver’s seat and then drive forward a small distance and do the same thing.”

Brandell sued Secura before it could conduct an examination under oath, asserting claims for UIM benefits against Progressive and Secura. He also claimed tSecura acted in bad faith by making an unfounded refusal to pay UIM coverage proceeds.

The Allen Superior Court ultimately enteredpartial summary judgment for Secura, finding neither the police crash report nor the worker’s compensation report indicated that Brandell was operating, using, maintaining or even near a vehicle insured by Secura at the time of the accident.

In affirming the trial court, the Indiana Court of Appeals first found that like in Wedzeb Enters., Inc. v. Aetna Life & Cas. Co., 570 N.E.2d 60 (Ind. App. Ct. 1991), trans. denied, Brandell failed to present any facts upon which it could conclude Secura acted in bad faith by failing to disclose the UIM coverage under Three Rivers’ auto policy.

It also found Brandell failed to establish by clear and convincing evidence that Secura breached its duty to act in good faith when it initially denied Brandell’s UIM claim, noting that there was a rational basis for Secura’s initial denials of Brandell’s UIM claim and that Secura supported its position with good faith legal arguments.

Lastly, it concluded there was no question of material fact that Secura’s conduct did not amount to “an unfounded refusal to pay policy proceeds.”

“At no point prior to Brandell’s inquiry into UIM did Secura ‘essentially acknowledge’ that Brandell’s accident was covered by Three Rivers’ auto policy,” Judge Margret Robb wrote for the appellate panel. “And as we have stated above, the record shows that prior to its denials of Brandell’s UIM claim, Secura had no indication that Brandell was ‘occupying’ a Three Rivers’ vehicle at the time of the accident. Further, Secura’s actions after Brandell inquired about UIM do not constitute bad faith.”

The case is Christopher Brandell v. Secura Insurance, A Mutual Company, and Progressive Southeastern Insurance Company, 20A-CT-2322.