Preview:

FOR PUBLICATION
ATTORNEY FOR APPELLANT: MATTHEW W. CHAPEL Fort Wayne, Indiana ATTORNEYS FOR APPELLEE: BENJAMIN D. ICE WILLIAM A. RAMSEY Murphy Law Group Fort Wayne, Indiana

FILED
Aug 09 2011, 9:36 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
BETHANY QUIRING, LINDA ANN JOHNSTON f/k/a LINDA ANN LOUGHERY, and EARL ALFRED LOUGHERY, JR., Appellants-Defendants, vs. GEICO GENERAL INSURANCE COMPANY, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 52A02-1012-CT-1434

APPEAL FROM THE MIAMI CIRCUIT COURT The Honorable Robert A. Spahr, Judge Cause No. 52C01-1003-CT-152

August 9, 2011

OPINION - FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issues Bethany Quiring was injured in an automobile collision in Oklahoma. She filed suit in Oklahoma against the other driver for negligence and GEICO General Insurance Company ("GEICO"), seeking underinsured motorist benefits under a GEICO policy issued to Quirings mother, who lives in Indiana. GEICO then filed this declaratory judgment action in Indiana, seeking a declaration that Quiring was not a resident of her mothers Indiana household and as such was not covered by her mothers policy. The trial court granted GEICO summary judgment. Quiring appeals, raising the following restated issues for our review: 1) whether the trial court abused its discretion in denying Quirings motion to dismiss or stay the declaratory action in view of the pending, previously filed lawsuit in Oklahoma; 2) whether the trial court abused its discretion in denying Quirings motion for a continuance of the summary judgment hearing to conduct discovery; 3) whether the trial court properly granted summary judgment that Quiring was not a resident of her mothers Indiana household; and 4) whether the trial court properly granted summary judgment that Quirings mothers policy is an Indiana policy. We conclude the trial court did not abuse its discretion in denying Quirings motion to dismiss or stay, the designated evidence establishes as a matter of law that Quiring was not a resident of her mothers household at the time of the collision, and our resolution of these two issues renders the remaining issues immaterial. We therefore affirm the trial courts summary judgment.

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Facts and Procedural History Bethany Quiring was born in Tulsa, Oklahoma in 1987. Her parents, Linda Johnston and Jerry Quiring, divorced around two years later and were given joint legal custody with her father having primary physical custody. Both parents as well as Quiring lived in Oklahoma up through the time Quiring graduated from high school. In early 2006, Johnston moved to Macy, Miami County, Indiana to care for her mother. Around that time, Quiring began attending Tulsa Community College and, while a student there, lived at her fathers house. In January 2008, Quiring enrolled at Oklahoma State University in Stillwater, Oklahoma, and lived in student dormitories while class was in session. Quiring spent Christmases and some other holidays at Johnstons home in Indiana, also visiting her grandmother who resided on the same family farm. In March 2009, Quiring obtained her own GEICO insurance policy on her 1998 Toyota Camry, a vehicle gifted to her by her father and stepmother. Johnston provided money to pay most of the policy premiums, yet the policy was issued solely to Quiring at her address in Stillwater. During the summer of 2009, Quiring traveled to Germany with her expenses paid in part by Johnston. On October 10, 2009, Quiring was driving the Camry on a highway in Oklahoma when a vehicle driven by Bryan Capehart collided with her vehicle. On October 30, 2009, Quiring filed suit in Creek County, Oklahoma, suing Capehart for negligence and GEICO for breach of contract to recover underinsured motorist ("UIM") benefits.1 In her complaint,

The complaint did not make clear whether Capehart was an underinsured or an uninsured motorist, and accordingly claimed both types of coverage. For ease of reference, we refer to Quirings claim as one for underinsured motorist benefits.

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Quiring, still a student at Oklahoma State, alleged she was a resident of both her fathers Oklahoma household and Johnstons Indiana household. Quiring claimed coverage under both her own GEICO policy, with UIM policy limits of $25,000 per person and $50,000 per accident, and a policy issued to Johnston (the "Johnston policy"), which provided higher policy limits. Earl Loughery, Jr., Johnstons former husband after Jerry Quiring, is the other named insured on the Johnston policy; Quiring is not a named insured. In the Oklahoma lawsuit, GEICO resolved Quirings claim under her own policy by paying her UIM policy limits, so only her claim under the Johnston policy remained.2 The Johnston policy provided UIM coverage of $100,000 per person and $300,000 per accident to resident relatives of the Johnston household. Specifically, the amendment for UIM coverage provided the following definition: "Insured" means: (a) you; (b) your relatives; (c) any other person occupying an insured auto; or (d) any person who is entitled to recover damages because of bodily injury sustained by an insured under (a), (b) and (c) above. Appendix to Appellants Brief at 253 (emphasis omitted). This amendment incorporated the definitional section of the policy, which defined "relative" as "a person related to you who resides in your household." Id. at 233 (emphasis in original).

Although Quiring asserts that among her claims against GEICO was a bad-faith claim, Quiring does not support this assertion with any citation to the pleadings other than a broadly-worded request for damages. The Oklahoma complaint includes only a claim for breach of contract, and there is no indication an amended complaint was filed. Quirings lawsuit also asserted a claim against Oklahoma Farm Bureau Mutual Insurance Company, seeking UIM benefits under a policy issued to her father. That claim, too, has been resolved.
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On March 23, 2010, GEICO filed, in Miami Circuit Court, the present declaratory judgment action naming Quiring, Johnston, and Earl Loughery, Jr., as defendants.3 GEICO sought a declaration that 1) the Johnston policy and any claims arising under it are governed by Indiana law; and 2) Quiring is not entitled to any coverage under the Johnston policy because Quiring is not (and was not at the time of the collision) a resident relative as defined in the policy and was not driving an insured automobile. GEICO also moved to stay the Oklahoma lawsuit, informing the Oklahoma court that "GEICO filed its Complaint for Declaratory Judgment in Indiana based on the [Indiana] Choice of Law provision in [t]he [Johnston] GEICO policy, and the fact that . . . the named insureds, live in Indiana." Id. at 96. Quiring filed a motion to dismiss or, in the alterative, stay the Indiana declaratory action "pending the outcome of the prior suit involving the very same issues and parties, pending in Creek County, Oklahoma." Id. at 68. In support of her motion to dismiss or stay, Quiring submitted the Oklahoma docket report and an order showing the Oklahoma court had denied GEICOs motion for a stay. Quiring argued the Indiana declaratory action should be dismissed or stayed because: 1) only the previously-filed Oklahoma lawsuit could resolve all of the issues raised by each party; 2) the declaratory action was thus unnecessary; 3) GEICO was attempting to shop for a favorable tribunal; and 4) principles of comity and judicial economy counseled deferring to the pending Oklahoma suit. The trial court denied Quirings motion.

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Johnstons last name was formerly Loughery, and she is identified as such in the trial court

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GEICO moved for summary judgment. The designated evidence showed that Johnston originally purchased her GEICO policy while living in Oklahoma. At least as early as 2008, after moving to Indiana, Johnston renewed her policy and was mailed policy identification cards at her Indiana address that were titled "INDIANA Policy Identification Card[s]." Id. at 262, 265, 268. Yet, continuing through the policy period covering the October 2009 collision, GEICO also mailed Johnston "Oklahoma Security Verification Form[s]" purportedly issued by "[a]n authorized Oklahoma insurer." Id. at 309, 311 (some capitalization omitted). Johnstons vehicles continued to be tagged and registered in Oklahoma even though documentation from GEICO listed them as garaged in Indiana. In her deposition, Johnston testified regarding telephone conversations where GEICO representatives told her she needed to speak to an Oklahoma agent regarding her policy and gave her conflicting statements to the effect that her policy was an Indiana policy but if the vehicles were tagged in Oklahoma, an Oklahoma policy would need to be issued. GEICO designated the affidavit of Vickie Mercer, its underwriting employee, who stated her personal knowledge that as of October 10, 2009, Johnstons policy was an Indiana policy and Johnstons Indiana policy contract had been mailed to her on or about July 30, 2008. Quirings response in opposition to summary judgment requested that the trial courts ruling be stayed for additional discovery to be had on the issue of whether Johnstons policy, as of the October 2009 collision, was an Indiana or an Oklahoma policy. By affidavit, Quirings counsel averred that due to a lack of discovery and refusal by GEICO to cooperate

documents. For ease of reference, we will refer to the defendants collectively as "Quiring" where appropriate.

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in discovery in the Oklahoma lawsuit, Quiring was unable to present facts needed to justify her opposition to summary judgment on that issue. Quiring also argued it was a genuine issue of fact for trial whether she was a resident of the Johnston household. On August 26, 2010, Quiring filed a formal motion for continuance of the summary judgment hearing, again arguing more time was needed to complete discovery on whether and when Johnstons original Oklahoma policy was converted to an Indiana policy. The trial court denied Quirings motion for continuance and held the hearing on GEICOs summary judgment motion on September 13, 2010. After taking the matter under advisement, the trial court issued its order granting summary judgment to GEICO. The trial courts summary judgment order contained the following findings and conclusions, in pertinent part: FINDINGS OF FACT 2. Quiring resides in Oklahoma and has lived in Oklahoma her entire life. *** 5. When [Johnston] moved to Indiana, Quiring did not move with her. In fact, it is undisputed that Quiring has never lived in Indiana. 6. From April 2006 through October 2009, Quiring would rarely visit [Johnston]s Indiana residence, described as one or two occasions during the year, and those occasions were on holidays, as Quiring even attended summer school in Oklahoma. 7. The last occasion Quiring visited [Johnston]s residence in Indiana prior to her October 1, 2009 accident was during Christmas in 2008. During that visit, Quiring slept at her grandmothers home because her grandmother had several guest bedrooms and Quiring had no bedroom in [Johnston]s Indiana home. [Johnston] had one bedroom in her Indiana residence, along with a furnished basement where guests would stay if they visited her residence. [Johnston]/Quiring claimed to store/keep some of Quirings personal property, including a dog, some clothes, personal memorabilia, furniture, books, electric organ, homemade clothing, records, sewing and knitting equipment, crocheting equipment, pictures, personal effects and linens/sheets/housekeeping items at [Johnston]s home at Macy, Miami County, Indiana. 7

8. Quiring did not possess a key to [Johnston]s Indiana residence or a garage door opener. Miscellaneous mail intended for Quiring was sent to [Johnston]s address and forwarded to Quiring by [Johnston]. *** 18. The 1998 Toyota Camry operated by Quiring was not included on the declarations page of [Johnston]s GEICO policy. The only vehicles included on the [Johnston] policy were a 2000 Chevrolet automobile and a 1999 Chrysler automobile. Furthermore, Bethany Quiring was not a named insured on [Johnston]s GEICO policy. *** CONCLUSIONS OF LAW *** 43. . . . [T]his Court finds the following facts to be determinative:  Quiring attended high school in Oklahoma and continues to attend Oklahoma State University . . .;  Quiring has resided in dorms at Oklahoma State University since she has been enrolled there;  [Johnston] resides in Macy, Indiana, and has lived at that address since April 1, 2006;  Since the date of the motor vehicle accident involving Quiring in Oklahoma on October 1, 2009, Quiring has returned to Indiana only once and that was when Earl Alford Loughery drove her to Indiana for Christmas;  During the Christmas 2009 visit and during any prior visits to Indiana from 2006 to 2009, Quiring would sleep at her grandmothers home where there was an extra bedroom . . .;  The only mail that Quiring would ever receive at the [Johnston] residence would be birthday cards from relatives;  Quiring would not visit the [Johnston] residence more than perhaps twice per year during holidays since 2006, and she was even enrolled in school during the summer months;  Quiring maintains an Oklahoma drivers license and has never possessed an Indiana drivers license; and  Quiring does not possess a key to the [Johnston] residence. 44. Utilizing these undisputed material facts in light of the three-part test outlined by the prior Indiana courts, it is clear that Quiring was not a resident of her mothers household as of the date of the motor vehicle accident, and

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therefore coverage under the underinsured motorist provisions of the GEICO policy possessed by [Johnston] should be precluded. *** 48. . . . It is clear that Quiring was not operating an "insured auto" as that term is defined in the [Johnston] policy, and GEICO is entitled to summary judgment on that issue. *** 49. The . . . policy of insurance for [Johnston] as of the date of the accident involving Quiring contained an Indiana choice of law provision. . . . 50. Thus, any issues or conflicts with regard to interpretation of the policy and all of its amendments, definitions, and terms must be interpreted pursuant to the laws of the state of Indiana. App. at 14-28. Quiring now appeals. Additional facts will be supplied as appropriate. Discussion and Decision I. Denial of Motion to Dismiss or Stay A. Standard of Review A trial courts decision to deny a defendants motion to dismiss a declaratory judgment action, to the extent the defendant challenges the appropriateness of declaratory relief, is reviewed for an abuse of discretion. See KLLM, Inc. v. Legg, 826 N.E.2d 136, 14445 (Ind. Ct. App. 2005), trans. denied. Likewise, an abuse of discretion standard applies to our review of a trial courts decision not to dismiss or stay an action in view of proceedings pending in another state. See Drexel Burnham Lambert, Inc. v. Merchants Inv. Counseling, Inc., 451 N.E.2d 346, 348-49 (Ind. Ct. App. 1983). B. Appropriateness of Declaratory Relief Quiring argues the trial court abused its discretion in denying her motion to dismiss or stay, contending GEICOs action for declaratory relief is not appropriate in view of the 9

previously filed lawsuit involving the same parties in Oklahoma. We disagree, concluding the facts and applicable law permit the trial courts exercise of its discretion to decide the declaratory action in Indiana. Indianas declaratory judgment statute provides that trial courts, within their respective jurisdictions, "have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." Ind. Code

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