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FOR PUBLICATION

FILED
Sep 30 2010, 7:17 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: DAVID S. WIRTH Cincinnati, Ohio DOUGLAS H. FISHER Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: DAVID W. STEWART MICHAEL J. SOBIERAY Stewart & Stewart Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA
CINCINNATI INSURANCE COMPANY, Appellant-Plaintiff, vs. ANITA G. ADKINS and WAYNE ADKINS, Appellees-Defendants. ) ) ) ) ) ) ) ) )

No. 29A02-0912-CV-1270

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Steven R. Nation, Judge Cause No. 29D01-0712-PL-1393

September 30, 2010 OPINION - FOR PUBLICATION

MAY, Judge

Cincinnati Insurance appeals summary judgment for Anita and Wayne Adkins (collectively, "Adkins"). Cincinnati argues the trial court erred in determining Adkins did not breach the terms of her insurance policy when she settled with a tortfeasor without notice to or consent of Cincinnati. We reverse. FACTS AND PROCEDURAL HISTORY Anita Adkins was involved in an automobile accident with Emily Strack on November 21, 2006. Adkins had her "primary insurance," (App. at 48), with Safeco and an "umbrella" policy, (id.), with Cincinnati Insurance. The Cincinnati policy provided excess1 underinsured motorist protection and had a coverage limit of one million dollars per occurrence. It provides that if an insured has rights to recover a payment Cincinnati makes under the policy, those rights are transferred to Cincinnati: "The ,,insured must do nothing after loss to impair them. At [Cincinnatis] request, the ,,insured will bring ,,suit or transfer those rights to [Cincinnati] and help [Cincinnati] enforce them." (Id. at 30.) Adkins reported the accident within a week to Consolidated Union, Cincinnatis agent. In April 2007, Stracks liability carrier offered Adkins $100,000, the policy limit, and Adkins accepted on May 22. Adkins did not report the settlement to Cincinnati,2 which learned of it June 6, after Adkins had released Strack.

1

The policy did not insure Atkins for the required underlying primary coverage.

Adkins testified she was aware she had "business policies" with Cincinnati, but she did not know whether she had a Cincinnati policy that might cover her injuries from an auto accident. (App. at 63.)
2

2

In November, Adkins accepted the policy limit of $150,000 from Safeco and then sought underinsured motorist coverage from Cincinnati. Cincinnati asked for a declaratory judgment whether Adkins breached the policy by settling with Strack without informing Cincinnati or seeking its consent. The parties made cross-motions for summary judgment and the trial court found for Adkins. DISCUSSION AND DECISION Our standard of review3 of a summary judgment ruling is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Dept. of Natural Res. v. Lake George Cottagers Ass'n, 889 N.E.2d 361, 363 (Ind. Ct. App. 2008), trans. denied. That the parties made cross-motions for summary judgment does not alter our standard of review. Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id. The provisions of an insurance contract are subject to the same rules of construction as are other contracts, Mikel v. Am. Ambassador Cas. Co., 644 N.E.2d 168, 170 (Ind. Ct. App. 1994), trans. denied, so the construction of Cincinnatis policy presents a pure question of law that we review de novo. Ind. Code

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Indiana Law