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An employee involved in a crash while driving his own vehicle to work was not covered by his employer’s insurance policy, the Court of Appeals of Indiana has affirmed.
According to court records, Dowell Masonry employed David Gonzalez in September 2018 for work on a job site in Ladoga. One day while driving to the job site, he was involved in a motor vehicle collision with John Abney, an uninsured driver.
Gonzalez was insured by an automobile policy issued by Geico Casualty Company, which included uninsured motorist benefits.
As of the date of the accident, Mike Dowell had an insurance policy with Pekin Insurance Company, which included a declarations page identifying the insured as “Dowell Masonry Mike Dowell DBA.”
The Pekin policy identified two units, both of which were Fords. But Gonzalez had been driving a Mazda.
In December 2019, Michael Hesser, Gonzalez’s guardian, filed a complaint on behalf of Gonzalez against Abney, Geico Casualty Company and Pekin.
Pekin moved for summary judgment, arguing its policy did not provide uninsured motorist coverage for Gonzalez. But Hesser and Gonzalez filed a motion for summary judgment arguing the opposite.
The Marion Superior Court granted Pekin’s motion for summary judgment but denied Hesser and Gonzalez’s motion.
Hesser and Gonzalez appealed, arguing the Pekin policy provided uninsured motorist coverage for Gonzalez because, “[b]ased on the plain language of the Pekin Policy, Gonzalez qualifies as an insured — at the time of the collision, he was ‘anyone’ occupying ‘any auto.’” Specifically at issue was a portion of the policy providing that insureds can include “(a)nyone else occupying a covered auto or a temporary substitute for a covered auto.”
They also argued that finding Gonzalez was not covered is contrary to Indiana law and public policy.
The Court of Appeals affirmed the trial court’s ruling.
Judge Elaine Brown wrote the opinion for the appellate court.
According to Brown, finding that “any auto” refers to any vehicle, even if the vehicle was not listed on the declarations page, owned or acquired by the named insured, or a temporary substitute for such a vehicle, would result in an absurd outcome and render other portions of the Pekin policy meaningless.
“In particular, it would render superfluous Section B of the Comprehensive Auto Coverage Endorsement, which states that ‘[y]ou have coverage for autos that you acquire for the remainder of the policy period’ and ‘[a]utos acquired during a policy period will be covered autos only if the auto is specifically described in the Declarations,’ as well as the language of the Indiana Uninsured Motorists Coverage Endorsement providing that an insured includes ‘[a]nyone else occupying a covered auto or a temporary substitute for a covered auto’ and ‘[t]he covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction,’” Brown wrote.
The appellate court concluded Gonzales was not operating a covered auto at the time of the accident and affirmed the entry of summary judgment in favor of Pekin.
As to Hesser and Gonzalez’s assertion that public policy and Indiana Code § 27-7-5-2 require that Gonzalez be covered by uninsured motorists’ insurance in the Pekin policy, Brown cited Progressive Paloverde Ins. v. Arnold, 16 N.E.3d 993 (Ind. Ct. App. 2014), which holds that “language in an insurance policy which limits or diminishes the protection required by the uninsured motorist statute is contrary to public policy only if it specifically limits uninsured motorist protection as to [a] person who would otherwise qualify as insured for liability purposes.”
“Gonzalez did not qualify as an insured because he was not operating a covered auto and therefore was not entitled to uninsured motorist protection according to the Pekin Policy,” Brown concluded. “We cannot say that the Pekin Policy limits the protection required by Ind. Code § 27-7-5-2 or that it violates public policy.”
Judges Terry Crone and Paul Felix concurred.
The case is Michael Hesser, as the guardian of David Gonzalez, and David Gonzalez v. John Abney and Pekin Insurance Company, 23A-CT-773.
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