Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: AARON J. BUTLER Haller & Colvin, P.C. Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES: BRYAN H. BABB MARISOL SANCHEZ Bose McKinney & Evans LLP Indianapolis, Indiana

FILED
IN THE COURT OF APPEALS OF INDIANA
MIKEL A. SCHILLING, ) ) Appellant-Plaintiff, ) ) vs. ) ) HUNTINGTON COUNTY COMMUNITY SCHOOL ) CORPORATION; HUNTINGTON COUNTY ) COMMUNITY SCHOOL CORPORATION ) EMPLOYEE BENEFIT TRUST; and AMERICAN ) HEALTH CARE PARTNERSHIP, INC., ) ) Appellees-Defendants. )
Dec 18 2008, 9:04 am
of the supreme court, court of appeals and tax court

CLERK

No. 35A02-0803-CV-191

APPEAL FROM THE HUNTINGTON SUPERIOR COURT The Honorable James R. Heuer, Special Judge Cause No. 35D01-0612-CT-228

December 18, 2008

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Mikel A. Schilling appeals the trial courts grant of summary judgment to the Huntington County Community School Corporation ("Huntington"), the Huntington County Community School Corporation Employee Benefit Trust, and American Health Care Partnership, Inc. ("AHCP") (collectively, "the School"). Schilling raises two

issues for our review, which we restate as whether the trial court properly determined that the Schools Employee Health Plan ("the Health Plan") is unambiguous and operates to exclude Schilling from recovering for injuries sustained in a farm-related accident. We affirm. FACTS AND PROCEDURAL HISTORY On August 23, 2000, Schilling began working for Huntington as a bus driver. Schilling worked about 180 days per year, from mid-August through the end of May. As an employee of Huntington, Schilling was eligible for, and participated in, the Schools Health Plan. And for most of his adult life, Schilling also had worked as a selfemployed farmer. During the period of the year in which Schilling was not driving a bus for the School, Schilling devoted about two-thirds of his time to farming. On June 21, 2005, during his time off from bus driving, Schilling was involved in a vehicular accident while hauling grain to market. Schilling was selling the grain as part of his independent farm operation. As a result of the accident, Schilling suffered injuries requiring medical treatment, for which he incurred associated costs.

2

Schilling communicated with AHCP, the "Third party Administrator hired by [Huntington] to administer benefits on behalf of their [sic] employees," and WEB-TPA Employer Services ("WEB-TPA") about the June 21, 2005, accident. Appellants App. at 202. On August 31, 2005, Schilling filled out and signed a multiple-page form for WEB-TPA, which was submitted with a copy of the Indiana State Police Crash Report. The form and report confirmed that the accident resulted from a failure of the brakes on Schillings vehicle. And on October 28, 2005, Schilling mailed a letter to AHCP. In that letter, Schilling stated that he "was hauling my grain during my off time while I had time to do so." Id. at 172. In early November of 2005, Schilling completed another form for AHCP. In that form, Schilling stated that the June 2005 accident occurred while he was "hauling the grain as a commodity to market for profit" so that he could "make [his] [f]arm [p]ayment [and] [e]xpenses." Id. at 173. Later, Schilling clarified that he was hauling his "own grain," and that he "wasnt for hire." Id. at 99. On November 28, 2005, AHCP informed Schilling that it would not cover the medical costs associated with his June 2005 accident. Specifically, AHCP stated that, "[b]ased on the information we have received, the expenses incurred as the result of your 6/21/05 motor vehicle accident are not covered under the plan." Id. at 202. AHCP reached its decision based on the language of paragraph 33 of the Health Plans "General Plan Exclusions" ("Exclusion 33"). Id. Exclusion 33 states the following is not covered by the Health Plan: (33) Occupational. Injury or Sickness resulting from any occupational or employment cause whether or not Workers Compensation coverage has
3

been purchased to cover these expenses. The standard for this exclusion shall be: if workers compensation insurance would have covered these expenses, no coverage shall be provided under this plan. Id. Schilling did not purchase workers compensation coverage for his farming

operation in 2005. On December 7, 2005, Schilling appealed AHCPs decision, but his appeal was denied. Schilling again appealed, and again AHCP denied his claim. On December 21, 2006, Schilling filed a request for declaratory judgment against the School. On

September 28, 2007, the School filed its motion for summary judgment. On October 1, 2007, Schilling likewise moved for summary judgment. The court held a hearing on those motions on November 19, 2007, and on January 30, 2008, the court entered its order granting the Schools motion for summary judgment. This appeal ensued. DISCUSSION AND DECISION Our standard of review for summary judgment appeals is well established. Asbestos Corp. v. Akaiwa, 872 N.E.2d 1095, 1096 (Ind. Ct. App. 2007) (citing Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind. 2001)). An appellate court faces the same issues that were before the trial court and follows the same process. Id. The party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having its day in court. Id.

4

Summary judgment is appropriate only if the pleadings and evidence sanctioned by the trial court show that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. (quoting Cobb, 754 N.E.2d at 909). On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against the moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Id. The proper interpretation of an insurance policy generally presents a question of law that is appropriate for summary judgment. Bosecker v. Westfield Ins. Co., 724 N.E.2d 241, 243-44 (Ind. 2000). Contracts of insurance are governed by the same rules of construction as other contracts. Id. The goal of contract interpretation is to ascertain and enforce the parties intent as manifested in the contract. See Gregg v. Cooper, 812 N.E.2d 20, 215 (Ind. Ct. App. 2004), trans. denied. To that end, "[w]e construe the insurance policy as a whole and consider all of the provisions of the contract[,] not just individual words, phrases, or paragraphs." Id. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Id. However, when an insurance contract is clear and unambiguous, the language must be given its plain meaning. See, e.g., Tippecanoe Valley Sch. Corp. v. Landis, 698 N.E.2d 1218, 1221 (Ind. Ct. App. 1998), trans. denied. As an initial matter, the parties dispute the application of Landis to Schillings appeal. In that case, the insured, Landis, worked as a full-time school teacher for the
5

Tippecanoe Valley School Corporation. Id. at 1219. During his summer breaks, Landis operated a two-man construction company. Id. In the summer of 1994, Landis fell off some scaffolding at one of his construction sites and was paralyzed. Id. Landis sought coverage for his medical expenses through his insurance policy with the Tippecanoe school corporation, but his insurer denied coverage. Id. at 1220. In relevant part, Landis insurance policy excluded the following from coverage: "C. Charges arising out of, or in the course of, any occupation for wage or profit, or for which the covered Person is entitled to benefits under any Workers Compensation or Occupational Disease Law, or any such similar law." Id. at 1221. On appeal, we stated: In construing this language, Tippecanoe and Employee Plans maintain that the trial court improperly narrowed the definition of the term "occupation" as used in the contract to mean only the "continued or regular activity for the purpose of earning a livelihood." In support of their argument, Employee Plans and Tippecanoe point to this courts decision in Alderfer v. State Farm Mut. Automobile Ins. Co., 670 N.E.2d 111 (Ind. Ct. App. 1996), trans. denied. In Alderfer, State Farms insured, Lybarger, was operating a truck in his part-time employment as a volunteer fireman when he struck Alderfer, who was also a volunteer firefighter. Id. at 112. At the time of the accident, Lybarger was insured under an insurance policy issued by State Farm to his parents. Id. State Farm declined liability coverage to Lybarger in light of an exclusion in the policy for a non-owned vehicle used in "any other business or occupation." Id. . . . *** On appeal, this court affirmed the grant of summary judgment in favor of State Farm and found the language of the insurance policy clear and unambiguous. Id. In rejecting Lybargers argument that the exclusion did not apply because his service as a volunteer firefighter was not his "principal" or "primary" occupation, this court observed that:
6

There is no coverage for non-owned cars . . . while . . . used in any other business or occupation. In particular, we note the use of the word ,,any in the policy. This language requires a more inclusive reading of the exclusion. Although Lybargers position as a volunteer firefighter was not his principal employment, it nevertheless constituted a substantial commitment. . . It is not uncommon to be involved in a business aside from ones primary occupation, and, certainly, being a volunteer firefighter is more than a hobby or a recreational activity. Being a volunteer firefighter clearly qualifies as ,,any other business or occupation. Id. Following the rationale of Alderfer, we find that Landis claim for coverage is encompassed within the Tippecanoe plans exclusion. Although Landis was principally employed as a school teacher, the uncontroverted evidence demonstrated that he was engaged in a second, summertime occupation for wage or profit as a roofing contractor. Id. at 1221-22 (citations to the record omitted). While there are factual similarities between Schillings case and Landis, the ultimate question on the scope of their respective coverage is distinguishable. In Landis, the question before this court was whether a second, nonprincipal employment qualified as an "occupation," as that word was used in Landis terms of exclusion. Here,

however, Schilling argues that Exclusion 33 applies to him only if workers compensation "would have covered" the medical expenses incurred as a result of the June 2005 accident. Appellants Brief at 11. Schilling then states that Indianas

Workers Compensation Act, Ind. Code

Download Mikel A. Schilling v. Huntington County Community School Corp., et al.pdf

Indiana Law