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FOR PUBLICATION

ATTORNEY FOR APPELLANT:

ATTORNEY FOR APPELLEES JOHN BURNS, TIM and VICKIE BURNS: DAVID P. ALLEN Allen, Allen & Allen Salem, Indiana ATTORNEY FOR APPELLEE JOSH ROGERS: SHAWN M. NOLEN Collignon & Dietrick, P.C. Indianapolis, Indiana ATTORNEYS FOR APPELLEE AMERICAN FAMILY INSURANCE CO: ERIC D. JOHNSON J. TODD SPURGEON Kightlinger & Gray, LLP Indianapolis, Indiana

MARK R. SMITH Smith Fisher Maas & Howard Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ALLSTATE INSURANCE COMPANY, Appellant-Defendant, vs. JOHN BURNS, TIM and VICKIE BURNS, as Parents of JOHN BURNS, Appellees-Plaintiffs, and JOSH ROGERS and AMERICAN FAMILY INSURANCE COMPANY, ) ) ) ) ) ) ) ) ) ) ) ) )

No. 88A01-0502-CV-58

Appellees-Defendants.

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APPEAL FROM THE WASHINGTON CIRCUIT COURT The Honorable Robert L. Bennett, Judge Cause No. 88C01-0306-CT-166

November 29, 2005 OPINION- FOR PUBLICATION

BAKER, Judge

Appellant-defendant Allstate Insurance Company (Allstate) appeals the trial court's order denying its motion for summary judgment and in entering judgment in favor of appellee-defendant, Josh Rogers. Additional parties in this action include the appelleesplaintiffs John, Tim and Vickie Burns (collectively, the Burnses), and appellee-defendant, American Family Insurance Company (American Family), the company that had issued a motor vehicle policy to the Burnses that included an uninsured motorist provision. The trial court determined as a matter of law that Allstate was obligated to defend and indemnify Josh against a claim for damages that the Burnses lodged against him as a result of injuries that John sustained in an accident involving a carburetor that had ignited when he and Josh were attempting to "prime" Josh's parked vehicle. Allstate further contends that the trial court erroneously determined that it was obligated to pay damages to John under the Guest Medical Provision of the homeowner's insurance policy that had been issued to Josh's parents. 2

Concluding that the trial court properly determined that Allstate had a duty to defend and indemnify Josh, and further finding that it had a duty under the homeowner's policy to provide medical coverage in connection with the accident, we affirm the judgment of the trial court. FACTS Josh resided with his mother and stepfather, Betty and David Rogers (the Rogerses) at their home in Pekin. The Rogerses were the named insureds under Allstate's Deluxe Mobilehome Policy, with the effective dates of coverage beginning on July 6, 2001, and ending on July 6, 2002. In February 2002, Josh purchased a 1978 Chevy Sierra pickup truck from "Trade-In Charlie's" in Pekin. Appellant's App. p. 75-76. Josh was issued a temporary plate for the truck, and he subsequently purchased automobile insurance coverage on the vehicle. Shortly after Josh had purchased the truck, the electric choke stopped working. However, the truck was not inoperable, and Josh continued to drive it as his means of transportation. However, in early March 2002, the truck's transmission failed, and the vehicle would no longer run. A couple of days later, Josh cancelled his insurance coverage, and he declared the truck to be a "lemon." Appellant's App. p. 215. Instead of taking the vehicle to a garage, Josh decided that he would repair the vehicle himself with the assistance of John Burns, his friend. The vehicle was parked behind the Rogerses' residence and Josh subsequently purchased a new transmission and some other items for the truck at a salvage yard. Josh, along with John's assistance, intended to install a replacement acceleration pump and truck

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transmission. In order to make the repairs, Josh decided to move the truck from its current location to a barn that was also on the Rogerses' property. To maintain control of the truck while it traveled downhill to the barn, Josh had to start the truck so that he would have the use of the power steering and brakes. On April 5, 2002, Josh opened the hood of the truck and poured some gasoline into the carburetor in an effort to prime it. When the vehicle did not start, John poured more gasoline on the carburetor. When Josh attempted to start the engine, the gasoline fumes ignited, burning John. As a result of this accident, John suffered serious permanent physical injuries. At the time of the incident, an uninsured motorist policy issued by American Family to the Burnses was in effect. The Burnses filed a complaint against Josh, American Family and Allstate, seeking damages for John's injuries. The count against American Family alleged that the uninsured motorist provision of the policy permitted them to recover damages against Josh because his injuries arose "out of the use of an uninsured motor vehicle." Appellant's App. p. 7. The action against Allstate sought a declaratory judgment regarding the applicability of the Rogerses' homeowner's insurance policy. Allstate had initially denied coverage under the policy, claiming that the injuries were from a motor vehicle that excluded coverage. On the other hand, the Burnses alleged that Josh's truck fell within the exception to a motor vehicle exclusion set forth in the policy. Thus, the Burnses requested the trial court to determine the parties' rights and obligations under the policy upon the allegation that the vehicle had been placed in "dead storage."

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The Family Liability Protection (FLP) portion of the policy that Allstate issued to the Rogerses included the following provisions: Losses We Cover We will pay all sums arising from the same loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage covered by this part of the policy. We may investigate or settle any claim or suit for covered damages against an insured person. If an insured person is sued for these damages, we will provide a defense with counsel of our choice, even if the allegations are not true. We are not obligated to pay any claim or judgment or defend any suit after we have exhausted the limit of our liability. Appellant's App. p. 50. The policy defines the term "insured person" to include Josh--a resident relative under the care of the Rogerses. The FLP portion of the policy also contains a motor vehicle exclusion that reads: Exclusions--Losses We Do Not Cover ... 5) We do not cover bodily injury or property damage arising out of the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motorized land vehicle or trailer. This exclusion does not apply to: a) a motorized land vehicle in dead storage or used exclusively on the residence premises. Appellant's App. p. 50 (emphasis added). The policy defines "residence premises" as the "mobile home, separate structures, and owned or rented grounds, where you reside as shown on the declarations page." Id. at 36. The policy does not specifically define "dead storage" or "maintenance" of a vehicle.

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There is also a section entitled "Guest Medical Protection Coverage" in the policy with stated limits of liability of $1,000 per person. This portion of the agreement reads as follows: We will pay the reasonable expenses incurred for necessary medical, surgical, x-ray and dental services, prosthetic devices, eyeglasses, hearing aids and pharmaceuticals, and ambulance, hospital, licensed nursing, and funeral services. These expenses must be incurred and services rendered within three years from the date of an accident causing bodily injury covered by this part of the policy. Each person who sustains bodily injury is entitled to this protection when that person is: 1. On the insured premises with the permission of an insured person. Id. at 52. This coverage includes a motor vehicle exclusion and exception to that exclusion identical to the FLP portion of the policy quoted above. In light of these provisions, Allstate filed a motion for summary judgment on May 17, 2004, alleging that the complaint against Josh was subject to the motor vehicle exclusion portions of the policy set forth above. Therefore, Allstate contended that it was entitled to summary judgment as a matter of law because it was not liable under the policy in light of these exclusions. In response, American Family asserted that summary judgment is inappropriate for Allstate because the language used in the policy "is ambiguous and subject to different interpretations by different people." Appellant's App. p. 143. American Family also claimed that Allstate had a duty to defend and indemnify Josh against the complaint because the truck was in "dead storage" when the accident occurred and, therefore, the motor vehicle exclusion

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did not apply. Id. at 143. The Burnses responded that Allstate should be required to indemnify Josh for the injuries that John suffered if it can be proved by a preponderance of the evidence that Josh was responsible for those injuries. Additionally, the Burnses alleged that if John could prove that the truck was in "dead storage" within the meaning of the policy terms, or if he could show that the vehicle was used exclusively on the premises of the residence, then the Guest Medical Protection Coverage provision of the policy would impose a duty on Allstate to pay that part of the claim. Similarly, Josh responds that the exclusions under the Allstate policy do not apply in these circumstances because the truck was in "dead storage" or was "used exclusively on the residential premises." Appellee's Br. of Josh Rogers, p. 6. Hence, he claimed that Allstate was liable under the policy. Following a hearing on the motion for summary judgment, the trial court denied Allstate's motion and ultimately entered judgment in Josh's favor on January 12, 2005. In arriving at this result, the trial court made specific findings of fact and conclusions of law in its "Order Denying Allstate's Motion for Summary Judgment and Granting Summary Judgment on Interpretation of Policy," reasoning that: 19. The court finds that there are no disputed material issues of fact. 20. The facts are not subject to more than one interpretation and support a finding that the subject truck was in "dead storage" as defined by the Allstate policy. 21. These facts also support a conclusion that the subject truck was exclusively used on the premises as defined by the Allstate policy. 22. The Court further finds that the Allstate policy language which is the subject of the Motion for Summary Judgment i[s] not ambiguous.

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23. The interpretation of the Allstate policy is a matter of law and it is appropriate for the court to interpret the policy. 24. The cases cited by Allstate . . . reached decisions on policy language most of which is dissimilar to the policy language in the Allstate policy which is the subject of this matter herein. ... IT IS THEREFORE ORDERED AS FOLLOWS: 1. Allstate's Motion for Summary Judgment is hereby denied. 2. Under the undisputed facts of this case, Section II Family Liability

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