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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. ATTORNEY FOR APPELLANT: GINNY L. PETERSON Kightlinger & Gray, LLP Indianapolis, Indiana

FILED
Apr 14 2008, 10:04 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: STEPHEN A. OLIVER Boren, Oliver & Coffee Martinsville, Indiana

IN THE COURT OF APPEALS OF INDIANA
INDIANA INSURANCE COMPANY, ) ) Appellant/Cross-Claim Plaintiff, ) ) vs. ) ) TODD AND SUSAN E. HALL, BRIAN D. ) BURNELL, CINCINNATI INSURANCE ) COMPANY, JOSEPH R. COLEMAN, ) DEOBOLIQUE L. MAVITY, and JOSE GARCIA, ) ) Appellees/Cross-Claim Defendants. )

No. 49A02-0710-CV-899

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Gerald S. Zore, Judge Cause No. 49D07-0312-CT-2222

April 14, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

Appellant/Cross-Claim Plaintiff Indiana Insurance Company ("Indiana") appeals from the trial court's grant of summary judgment in favor of Appellee/Cross-Claim Defendant Joseph R. Coleman, who was injured in a 2003 automobile accident. Indiana contends that the trial court erroneously concluded that it has a duty to defend and indemnify Brian Burnell, the driver of one of the vehicles involved in the accident and against whom Coleman has filed a negligence suit. Concluding that two genuine issues of material fact remain, we reverse and remand with instructions. FACTS On July 30, 2003, Burnell was driving a red Chevrolet Suburban owned by Todd and Susan Hall. Todd, who was the sole proprietor of "Neighbor's Envy," a lawn mowing business, had telephoned Burnell the night before to see if he could help him with his Neighbor's Envy obligations, because Todd and Susan had been on vacation, and he had fallen behind. At approximately 8:00 a.m. on the 30th, Susan and Burnell, who was driving the Suburban with her permission, left the Halls' home. Burnell and Susan stopped to mow one lawn and then set off to meet Todd at a location on the southeast side of Indianapolis. On the way, the Suburban struck a vehicle at the intersection of Emerson Avenue and Washington Street in Indianapolis, which vehicle then struck other vehicles, including one driven by Coleman, who was injured. Indiana had provided insurance to Neighbor's Envy since February of 1999, including a policy covering the company's vehicles ("the policy"). During the year from February

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2000 to February 2001, Neighbor's Envy made two late premium payments, which may have been made and accepted after the date specified for cancellation. In the third year of the policy, one late payment may have been made and accepted after a specified cancellation date. On February 7, 2003, Indiana issued a notice of intent to cancel the policy for nonpayment, effective February 21, 2003. On March 3, 2003, Indiana processed a final cancellation of the policy effective February 21, 2003. On March 26, 2003, Susan called Rick Sharp, the insurance agent who had arranged for Neighbor's Envy's coverage with Indiana, and asked him what amount of money would be sufficient to reinstate the policy. On April 8, 2003, an Indiana diary of policy activity indicated that "INS[ure]D CALLED TO PROVIDE[] NO LOSS[,]" i.e., a statement that Neighbor's Envy had suffered no losses that would be covered under the policy since the cancellation date of February 21, 2003, and that the Halls would be shipping a payment overnight to Indiana. Appellant's App. p. 881. On April 9, 2003, Indiana received payment from Susan of $1518.81, but not a written no-loss letter, and reinstated the policy the next day, retroactive to February 21, 2003. On June 11, 2003, Indiana issued a notice of intent to cancel the policy due to nonpayment, effective June 25, 2003. On or before July 15, 2003, Susan spoke with Sharp regarding reinstating the policy. Susan claimed in a deposition that Sharp "gave [her] an amount to send and told [her] if [she] sent it in it would be fine." Appellant's App. p. 803. Both parties agree that, other than the alleged statements from Sharp, Indiana never gave Susan any assurances that the policy would be reinstated or that Indiana communicated

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directly with her or Todd in any way. Shortly thereafter, and prior to July 30, 2003, Susan sent Indiana a check for $1529.20. Indiana's records reflect that on July 22, 2003, Indiana sent Todd a "non-rescind" notice that read: Payment in the amount of $1,049.20 has been applied to earned premium on the above numbered account. This payment was received too late to reinstate the policy on the account. Cancellation remains effective on the date as set forth in the Notice of Cancellation. As soon as practicable after the cancellation is processed, either the balance of the earned premium will be billed or any overpayment of the policy balance will be applied to the account or refunded as applicable. Please contact your agent for replacement of coverage. Appellant's App. p. 894-95. On July 30, 2003, the accident involving the Suburban occurred. On August 11, 2003, twelve days after the accident, Indiana refunded to Neighbor's Envy the difference between its $1549.20 payment and an amount applied to earned premiums, and the policy was never reinstated. As it happened, Susan did not apply for new coverage before the accident and testified in a deposition that she would have done so through Sharp had she known that the Indiana policy would not be revived. At the time of the accident on July 30, 2003, the "Named Insured" in the policy was "TODD HALL DBA NEIGHBOR'S ENVY[.]" Appellant's App. p. 608. Regarding which vehicles would be covered by the policy, it provided, in relevant part, as follows: SECTION I

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