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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEYS FOR APPELLANT: DAVID W. STONE IV Stone Law Office and Legal Research Anderson, Indiana TROY RIVERA Nunn Law Office Bloomington, Indiana ATTORNEY FOR APPELLEES: ROBERT R. FOOS, JR. Lewis Wagner, LLP Indianapolis, Indiana

FILED
Dec 31 2008, 9:03 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
EZRA BRADSHAW, Appellant-Plaintiff, vs. GARY CHANDLER and AFFIRMATIVE INSURANCE COMPANY, Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 49A05-0806-CV-363

APPEAL FROM THE MARION SUPERIOR COURT The Honorable David A. Shaheed, Judge Cause No. 49D01-0402-CT-219

December 31, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Ezra Bradshaw appeals the trial courts grant of summary judgment in favor of Affirmative Insurance Company, Bradshaws insurer, disposing of Bradshaws claim for uninsured motorist benefits. On appeal, Bradshaw raises one issue, which we restate as whether the trial court properly concluded Bradshaws claim was time-barred pursuant to the two-year limitation period of the parties auto insurance policy. We affirm, concluding that the trial court properly found Bradshaws claim was time-barred because it was filed more than two years after the date of the accident, and neither the discovery rule nor Indiana Trial Rule 15(C) control the policys limitation period. Facts and Procedural History On July 19, 2003, Gary Chandler was driving a vehicle and struck another vehicle in which Bradshaw was a passenger. On February 2, 2004, Bradshaw filed a complaint against Chandler for damages and against Affirmative for underinsured motorist benefits. In August 2005, Bradshaws counsel received notice from Chandlers counsel that Chandler was listed as an excluded driver on the vehicle he was driving.1 That vehicle was owned by Ali Ahmed and insured by American Service Insurance Company. Concerned this development might foreclose recovering damages from Chandler,2 on May 10, 2006, Bradshaw amended his complaint to add a claim for uninsured motorist

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We discuss Bradshaws counsels receipt of this notice in further detail in Part II.A. below.

American eventually moved for, and was granted, a declaratory judgment stating that "[n]o coverage exists under [Americans] policy for the claim brought by [] Bradshaw as a result of the vehicular accident of July [1]9, 2003 and [American] has no duty to defend the action brought by [] Bradshaw against [] Chandler." Appellants Appendix at 138.
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benefits against Affirmative. On August 14, 2007, however, Affirmative filed a motion for summary judgment, arguing that Bradshaws uninsured motorist claim was time-barred by the policys two-year limitation period. On January 14, 2008, the trial court granted Affirmatives motion. Bradshaw now appeals. Discussion and Decision I. Standard of Review Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing the propriety of the trial courts grant of summary judgment, we construe the designated evidence in favor of the non-moving party and resolve all doubts in favor of that party. Citizens Ins. Co. v. Ganschow, 859 N.E.2d 786, 789 (Ind. Ct. App. 2007), trans. denied. Generally, whether a claim is time-barred by an insurance policys limitation period is an issue that is appropriate for disposal at the summary judgment stage. See United Techs. Auto. Sys., Inc. v. Affiliated FM Ins. Co., 725 N.E.2d 871, 874-75 (Ind. Ct. App. 2000), trans. denied; Lumpkins v. Grange Mut. Companies, 553 N.E.2d 871, 873-74 (Ind. Ct. App. 1990); but see Clevenger v. Progressive Northwestern Ins. Co., 838 N.E.2d 1111, 1118 (Ind. Ct. App. 2005) (reversing trial courts grant of summary judgment in favor of insurer where policy was ambiguous regarding when limitation period began to run). II. Propriety of Summary Judgment We start our analysis by noting the designated evidence establishes that the accident occurred on July 19, 2003, and that Bradshaw filed his claim for uninsured motorist benefits

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on May 10, 2006, more than two years after the date of the accident. With this undisputed fact in mind, the propriety of the trial courts grant of summary judgment turns on whether the following policy provision applies: This policy does not apply under Part II:[3] ... 6. to any suit action or arbitration proceedings recovery under this section unless commencing within two (2) years after the date of the accident; Appellants App. at 33. In its summary judgment motion, Affirmative argued this provision unambiguously states that a claim for uninsured motorist benefits must be filed within two years of the date of the accident to trigger Affirmatives obligation to provide such benefits.4 Bradshaw did not challenge this interpretation at the trial level, see id. at 121 (Bradshaws motion in opposition to summary judgment stating that "[a] plain reading of Affirmatives insurance policy would seem to exclude the . . . claim [for uninsured motorist benefits] because [it] was not commenced within two years of the accident"), nor does he do so on appeal. Instead, Bradshaw argues the two-year limitation period is "invalid as applied to this case" because either the discovery rule or Indiana Trial Rule 15(C) apply to render his claim for uninsured motorist benefits timely. Appellants Brief at 4. We will analyze the applicability of these rules in turn, but note initially that two principles guide our analysis. First, if an insurance policy provision is clear and unambiguous, it should be given its plain
"Part II" pertains to uninsured motorist coverage.

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Affirmative also argues on appeal that it is entitled to summary judgment because Chandlers vehicle was not an "uninsured automobile" as defined by the policy, which, if true, also would relieve Affirmative of its obligation to provide uninsured motorist benefits. Affirmative did not, however, make this argument to the trial court, and therefore we decline to address it. Cf. Patrick v. Miresso, 848 N.E.2d 1083, 1085 n.4 (Ind. 2006) (declining to address appellants argument "because it was not asserted in the trial court nor was it a
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and ordinary meaning, see Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind. 1992), and second, if an insurance policy provision limits the time in which a suit may be commenced, the provision is valid unless it contravenes a statute or public policy, Buress v. Ind. Farmers Mut. Ins. Group, 626 N.E.2d 501, 503 (Ind. Ct. App. 1993), trans. denied. To state these principles more generally, "we must leave to the individual parties the right to make the terms of their agreements as they deem fit and proper, and, as long as those terms are clear and unambiguous and are not unlawful, we can only enforce them as agreed upon." C.A. Enters., Inc. v. Employers Commercial Union Ins. Co. of Am., 176 Ind. App. 551, 554, 376 N.E.2d 534, 536 (1978). A. Discovery Rule The discovery rule provides that a limitation period begins to run from the earlier of when a claimant knows of the existence of a claim or in the reasonable exercise of ordinary diligence would have discovered it. See Pflanz v. Foster, 888 N.E.2d 756, 759 (Ind. 2008). Consistent with the two principles expressed above, however, that rule must yield to the policys two-year limitation period. In New Welton Homes v. Eckman, 830 N.E.2d 32, 35 (Ind. 2005), our supreme court rejected applying the discovery rule to a breach of contract claim where the contract contained a provision requiring the non-breaching party to commence such a claim within one year of the date of the breach. In rejecting application of the discovery rule, the court reasoned the discovery rule is generally considered a creature of tort law, not contract law. See Eckman, 830 N.E.2d at 35 ("The basic theory underlying the distinction between contract and tort is that tort liability is imposed by law and that contract
basis for the denial of summary judgment").

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liability is the product of an agreement of the parties." (quoting Greg Allen Constr. Co. v. Estelle, 798 N.E.2d 171, 173 (Ind. 2003)). The court also reasoned that "allowing the discovery rule to super[s]ede the contractual limitations in insurance cases would ,,burden [parties] with obligations they did not anticipate or undertake . . . .," id. (quoting Burress, 626 N.E.2d at 504-05), and undermine the well-established preference of enforcing the plain language of unambiguous contractual provisions, id. Although our supreme court in Eckman rejected application of the discovery rule in favor of the plain language of the contractual limitation period, it reiterated the exception that a contractual limitation period may be unenforceable if it contravenes a statute or public policy. Id. More specifically, the court stated that "contractual provisions may sometimes be avoided if the claimant can prove fraud, duress, misrepresentation, adhesion, or illusory contract . . . ." Id. Seizing on this language, Bradshaw advances four reasons to recognize an exception to the policys two-year limitation period. First, Bradshaw makes passing mention to the policy as an "adhesion" contract. Appellants Br. at 9. Although the policy is arguably consistent with one definition of an adhesion contract, see Pigman v. Ameritech Pub., Inc., 641 N.E.2d 1026, 1035 (Ind. Ct. App. 1994) (defining an adhesion contract as "a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it") (quoting 17 C.J.S. Contracts

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