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ATTORNEYS FOR APPELLANT David W. Stone IV Anderson, Indiana Troy Rivera Bloomington, Indiana

ATTORNEYS FOR APPELLEE AFFIRMATIVE INSURANCE COMPANY Robert R. Foos, Jr. Indianapolis, Indiana

In the

FILED
Oct 30 2009, 12:22 pm
of the supreme court, court of appeals and tax court

Indiana Supreme Court
No. 49S05-0904-CV-00150 EZRA BRADSHAW,

CLERK

Appellant (Plaintiff below), v. GARY CHANDLER AND AFFIRMATIVE INSURANCE COMPANY, Appellees (Defendants below).

Appeal from the Marion Superior Court, No. 49D01-0402-CT-000219 The Honorable David A. Shaheed, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0806-CV-00363

October 30, 2009 Shepard, Chief Justice.

A provision of the automobile insurance policy at issue here precludes any recovery under its uninsured motorist provisions unless the proceeding commences within two years after the accident. Injured driver Bradshaw first sued driver Chandler and Bradshaw's insurance company mentioning only his policy's underinsured motorist provisions. More than two years after the accident, Bradshaw learned that Chandler was excluded from the insurance policy on

the vehicle he had been driving. Bradshaw amended his complaint to include his policy's uninsured motorist coverage provisions. The parties ask us to determine whether bringing suit against Chandler and Bradshaw's insurance company under the underinsured motorist section of the policy met the policy's requirements. We hold that it did.

Facts and Procedural History

In July 2003, Ezra Bradshaw was injured in an automobile accident with Gary Chandler. Bradshaw sued Chandler on February 4, 2004. He also named his own insurer, Affirmative Insurance Company, in case his injuries and damages exceeded Chandler's policy limits.1 Bradshaw alleged, "[t]hat at the time of the collision, plaintiff was insured by defendant, Affirmative Insurance Company, under an Underinsured Motorist Coverage Endorsement, Policy No. INB74061220, with policy limits of $50,000.00." (App. at 17.) The litigation proceeded to discovery. On March 22, 2004, Chandler's attorney sent a letter to Bradshaw's lawyer stating that the vehicle Chandler drove at the time of the accident was owned by Ali Ahmed and insured with a $100,000 policy, which he noted presumably made "the underinsured motorist claim against Affirmative Insurance Company moot." (App. at 133.) Seventeen months later, on August 31, 2005, Chandler's attorney wrote again, enclosing the declaration sheet for the vehicle Chandler drove and saying that Chandler was an "EXCLUDED" driver from Ahmed's policy. (App. at 134.)2

The named insured was Bradshaw's mother Clara Jones, but Bradshaw apparently was covered under the policy's provision that included any person using the covered vehicle with her permission. (App. at 27, 30.) 2 This letter and declaration sheet are not part of the record. In a letter responding to Chandler's attorney, Bradshaw's lawyer Betsy Greene lamented, understandably, "Are you now stating that after 18 months of defending this case there is no coverage under the American Service Insurance policy?" (App. at 134.) American Services Insurance Company, the insurer of the vehicle Chandler drove, filed for declaratory relief in another court. On August 8, 2007, Judge Robyn Moberly held that no coverage existed under American's policy for Bradshaw's claim and that American did not have a duty to defend the action brought against Chandler. (App. at 138.)
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On April 25, 2006, Bradshaw sought leave to amend his complaint to add the uninsured motorist coverage to a statement describing his policy with Affirmative, invoking Trial Rule 15(C). The court granted this motion. Affirmative filed for summary judgment, arguing that Bradshaw had first presented a potential claim for uninsured motorist coverage more than three years after the accident. It argued that this delay barred any coverage because Part II of the policy, which delineates coverage for uninsured motorist coverage, states: "This policy does not apply . . . to any suit action or arbitration proceedings recovery under this section unless commencing within two (2) years after the date of the accident." (App. at 33.) Resisting Affirmative's motion, Bradshaw argued that under Trial Rule 15(C) his amended complaint related back to the date of his initial claim so the suit was not excluded and that his initial complaint gave Affirmative sufficient notice to meet the policy's requirements. (App. at 116

Download Ezra Bradshaw v. Gary Chandler and Affirmative Insurance Company.pdf

Indiana Law