Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: JOHN F. TOWNSEND, III Townsend & Townsend Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: DANFORD R. DUE SCOTT E. ANDRES Due Doyle Fanning, LLP Indianapolis, Indiana

Nov 18 2010, 10:00 am

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
PATRICE COTTON, Appellant-Plaintiff, vs. AUTO-OWNERS INSURANCE COMPANY, Appellee-Defendant. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-1005-CT-575

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Thomas J. Carroll, Judge Cause No. 49D06-0609-CT-39506

November 18, 2010

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Patrice Cotton appeals the trial courts order granting partial summary judgment in favor of Auto-Owners Insurance Company ("Auto-Owners") on Cottons complaint seeking coverage under a garage policy issued by Auto-Owners to Jim Bailey Auto Sales ("Dealer") for injuries sustained in an automobile accident. following issues: 1. Whether the trial court erred when it determined that the Dealers garage policy provides no coverage for Cottons injuries. Whether the trial court abused its discretion when it denied Cottons motion to strike an affidavit in support of Auto-Owners motion for partial summary judgment. Cotton presents the

2.

We affirm. FACTS AND PROCEDURAL HISTORY On October 7, 2004, Cotton was a passenger in a 1991 Oldsmobile driven by James Sneed. In a single car accident, Sneed veered off Madison Avenue in Indianapolis and hit a bridge embankment. Cotton sustained injuries in the accident. Sneed had recently purchased the vehicle from Ricky Ray Bowling, and the vehicle was not yet registered in Sneeds name. At the time of the accident, the vehicle had a temporary license plate that Sneeds grandfather, James D. Bailey, had given him on October 6, the day before the accident. Sneed was not an employee or otherwise affiliated with the Dealer. The Dealer was covered by a garage policy issued by Auto-Owners. On September 5, 2006, Cotton filed a complaint against Sneed, Auto-Owners, the Dealer, and Bailey. In the complaint Cotton alleged in part that the Dealers garage
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policy provides coverage for her injuries because the Dealer had supplied the temporary license plate that was on the car at the time of the accident. In the course of discovery, Cotton sought in October 2007 to take Baileys deposition but was informed in April 2008 that Bailey was in "failing health[.]" Appellants Ap. at 219. On May 1, 2008, Cotton was informed that Bailey had died. On September 18, Cotton filed a motion for partial summary judgment against Auto-Owners. On January 19, 2010, Auto-Owners filed its opposition to Cottons

motion, cross-motion for partial summary judgment, brief in support of the cross-motion, and designation of evidence. On March 23, Cotton filed her brief in response to AutoOwners cross-motion and motion to strike the affidavit of James D. Bailey. AutoOwners subsequently filed its response to the motion to strike. On April 19, the court held a hearing on the cross-motions for partial summary judgment and the motion to strike.1 On April 29, the court denied Cottons motion to strike, denied her motion for partial summary judgment, and granted Auto-Owners motion for partial summary judgment. The order was entered as a final judgment. Cotton now appeals. DISCUSSION AND DECISION Standard of Review When reviewing a trial courts ruling on a motion for summary judgment, we apply the same standard as the trial court. No deference is given to the trial courts judgment. Hutchens v. MP Realty Group-Sheffield Square Apartments, 654 N.E.2d 35,

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The court did not make a record of the summary judgment proceedings.

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37 (Ind. Ct. App.1995), trans. denied. Summary judgment is appropriate only if the designated evidence shows that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Indiana Trial Rule 56(C). Though summary judgment is clothed with a presumption of validity, "[t]he trial courts determination will be ,,carefully scrutinized on appeal to assure that the non-prevailing party is not improperly prevented from having his day in court." Ind. Dept of State Revenue v. Caylor-Nickel Clinic, P.C., 587 N.E.2d 1311, 1313 (Ind. 1992). If the trial courts grant of summary judgment can be sustained on any theory or basis in the record, we will affirm. Lewis-Levett v. Day, 875 N.E.2d 293, 295 (Ind. Ct. App. 2007), trans. denied. Issue One: Garage Policy Coverage Cotton contends that the trial court erred when it determined that the Dealers garage policy did not provide coverage for the injuries she sustained in the accident. Contracts of insurance are governed by the same rules of construction as other contracts. Schilling v. Huntington County Cmty. Sch. Corp., 898 N.E.2d 385, 388 (Ind. Ct. App. 2008), trans. denied. The goal of contract interpretation is to ascertain and enforce the parties intent as manifested in the contract. Id. 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." Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct. App. 2004), trans. denied. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Schilling, 898 N.E.2d at 388. However, when an insurance contract is clear and

unambiguous, the language must be given its plain meaning. Id.
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At the time of the accident, the Dealer was covered by a garage policy issued by Auto-Owners. The garage policy provides, in relevant part: The insurance under this division covers the ownership, maintenance, occupation or use of the premises for the purposes of an automobile dealer, repair shop, service station, storage garage, or public parking place, and all operations which are necessary or incidental thereto, including (1) the ownership, maintenance or use of any automobile in connection with the foregoing[.] *** The insurance under this division covers the ownership, maintenance, occupation or use of the premises for the purposes of an automobile repair shop, service station, storage garage or public parking place and all operations which are necessary for incidental thereto, including the use for any propose in connection with the foregoing of any automobile not hired, registered or owned in whole or in part by the named insured, any partner or officer thereof. Appellants App. at 186 (emphases added). As Cotton notes, only once have we considered similar language in a garage policy. In Automobile Underwriters, Inc. v. Hitch, 169 Ind. App. 453, 349 N.E.2d 271 (1976), Hitch, a service station owner and operator, purchased a garage policy to cover his business. The policy covered injury or property damage "caused by an occurrence and arising out of garage operations . . . ." Id. at 274. The policy defined "garage operations" to mean "the ownership, maintenance or use of the premises for the purpose of a garage and all operations necessary or incidental thereto." Id. Hitch also sold reloaded shotgun shells out of the garage storefront. When

someone using Hitchs reloaded shells was allegedly injured by them, Hitch filed a claim with his garage policy. This court held that the "sale of reloaded shotgun shells was not necessary or incidental to the maintenance or use of the premises for the purpose of a
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garage." Id. at 275. In support, we cited 8 Blashfield, Automobile Law and Practice,

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