Rodney Wilkerson, Christine L. Wilkerson, and Chris's Towing Appellant-Plaintiffs v. Progressive Southeastern Insurance Company, Appellee-Defendant (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2024, Rodney Wilkerson, Christine Wilkerson, and Chris's Towing (collectively, “Appellants”) filed a complaint against Progressive Southeastern Insurance Company (“Progressive”) for underinsured motorist benefits, after Rodney had suffered injuries from a car accident in 2022. Progressive moved for summary judgment against Appellants, contending, in part, that Rodney was not entitled to underinsured-motorist coverage under the automobile policy it had with Chris's Towing (“the Policy”). After a hearing on the motion, the trial court granted summary judgment in favor of Progressive. We affirm.

Facts and Procedural History

[2] Rodney and Christine are married and reside in Grant County. Their son, David Wilkerson, lives with them. Christine owns Chris's Towing, in which Rodney has no ownership interest. On April 14, 2022, Rodney was operating a 2005 Dodge Dakota (the “Dakota”), when a vehicle operated by Tianna Chilcote crashed into his vehicle. The State of Indiana Certificate of Title for the Dakota listed David as the owner of the vehicle. At the time of the accident, Chris's Towing owned a 2006 Ford F650 (“the F650”), which was insured by Progressive, including underinsured motorist coverage.

[3] In March of 2023, Progressive sent an email to Appellants’ attorney, stating,

Coverage is still pending the ULV – unlisted vehicle for the 2005 dodge Dakota. I'll need the bill of sales or title showing when the vehicle was purchased to help determine if it was a[n] additional or replacement auto. Once coverage is clear I can start the review process to help pay med pay towards those bills.

Appellants’ App. Vol. II p. 187. On June 27, 2023, Progressive sent a letter of “formal notice” that Progressive had paid $5000.00 “on behalf of our insured for medical bills incurred as a result of” the accident. Appellants’ App. Vol. II p. 188.

[4] On April 3, 2024, Appellants filed a complaint against Progressive for underinsured-motorist benefits. On June 24, 2024, Progressive deposed Rodney. In the deposition, Rodney testified that the Dakota had been the property of Chris's Towing at the time of the accident, but also that it had been insured by State Farm Insurance. He testified that on the date of the accident, the F650 was operational, in proper working order, and it was being used “in the course of Chris's Towing's business operations at the time of the accident[.]” Appellants’ App. Vol. II p. 112. Rodney agreed that on April 15, 2022, the F650 had been used by Chris's Towing to pull a vehicle.

[5] On September 4, 2024, Progressive moved for summary judgment, arguing, inter alia, that Rodney was not entitled to underinsured motorist coverage under the Policy. Included in Progressive's designation of evidence was the policy of insurance issued by Progressive to Christine and Chris's Towing, under the Policy. The only vehicle on the Policy's Declarations Page was the F650.

[6] The Policy provided, in relevant part, as follows:

6. “Insured auto” or “your insured auto” means:

a. Any auto specifically described on the declarations page; or

b. An additional auto for Part I – Liability to Others and/or Part II – Damage To Your Auto on the date you become the owner if:

(i) you acquire the auto during the policy period shown on the declarations page;

(ii) we insure all autos owned by you that are used in your business;

(iii) no other insurance policy provides coverage for that auto; and

(iv) you tell us within 30 days after you acquire it that you want us to cover it for that coverage.

[․]

c. Any replacement auto on the date you become the owner if:

(i) you acquire the auto during the policy period shown on the declarations page;

(ii) the auto that you acquire replaces one specifically described on the declarations page due to termination of your ownership of the replaced auto or due to mechanical breakdown of, deterioration of, or loss to the replaced auto that renders it permanently inoperable; and

(iii) no other insurance policy provides coverage for that auto.

[․]

17. “Temporary substitute auto” means any auto you do not own while used with the permission of its owner as a temporary substitute for an insured auto that has been withdrawn from normal use due to breakdown, repair, servicing, loss or destruction. However, temporary substitute auto does not include any auto available for the regular or frequent use of you, a relative, or your employees unless that auto is insured under a separate policy of insurance that provides at least the minimum required limits of financial responsibility under the applicable state and federal laws.

Appellants’ App. Vol. II pp. 123–25 (bold in original, italics added).

[7] The “Medical Payments Coverage Endorsement” section of the Policy further provided that

[s]ubject to the Limits of Liability, if you pay the premium for Medical Payments Coverage, we will pay the usual and customary charge for reasonable and necessary expenses, incurred within three years from the date of an accident, for medical and funeral services because of bodily injury:

1. sustained by an insured;

2. caused by an accident; and

3. arising out of the ownership, maintenance or use of a motor vehicle or trailer.

Appellants’ App. Vol. II p. 151 (emphases in original).

[8] The “Uninsured and Underinsured Motorist Coverage Endorsement” of the Policy provided the following:

If you pay the premium for this coverage, we will pay for damages that an insured is legally entitled to recover from the owner or operator of an underinsured auto because of bodily injury:

1. sustained by an insured;

2. caused by an accident; and

3. arising out of the ownership, maintenance, or use of the underinsured auto.

Appellants’ App. Vol. II p. 154 (emphases in original).

[9] Under the “Exclusions” section of the Uninsured and Underinsured Motorist Coverage Endorsement, the Policy provided:

1. Coverage under this endorsement is not provided for bodily injury sustained by any person while using or occupying:

a. an insured auto without the express or implied permission of you or, if the named insured is a natural person, a relative;

b. a non-owned auto without the express or implied permission of the owner; or

c. an auto or device of any type designed to be operated on the public roads that is owned by, furnished to, or available for the regular use of you or, if the named insured is a natural person, a relative. However, this exclusion does not apply to an insured auto or temporary substitute auto.

Appellants’ App. Vol. II p. 157 (emphases in original).

[10] On December 3, 2024, Appellants filed a response to Progressive's motion for summary judgment and a designation of evidence which included Christine's and David's affidavits. Christine's affidavit provided, in relevant part, that “[w]e called Progressive to add the vehicle to the policy prior to the accident” and that “[d]ue to [Rodney's] very poor health, he answered incorrectly that the date of purchase of the vehicle was 03/08/2022, and it should have been 03/22/2022. He also made many other inaccurate statements.” Appellants’ App. Vol. II pp. 182–83.

[11] On February 28, 2025, a hearing was held on Progressive's summary-judgment motion. On May 2, 2025, the trial court entered an order granting Progressive's motion for summary judgment.

Discussion and Decision

[12] Appellants contend that the trial court erred in entering summary judgment in favor of Progressive.

In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. “Any doubt as to any facts or inferences to be drawn therefrom must be resolved in favor of the non-moving party.” Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). The party that lost in the trial court bears the burden of persuading us that the trial court erred. Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018), trans. denied.

In Indiana, the interpretation of an insurance policy is a matter of law. Westfield Cos. v. Knapp, 804 N.E.2d 1270, 1273-74 (Ind. Ct. App. 2004). Insurance contract provisions are subject to the same rules of construction as other contracts. Id. Thus, courts must construe insurance policies as a whole, rather than considering individual words, phrases, or paragraphs. Id. If the contract language is clear and unambiguous, it should be given its plain and ordinary meaning. Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d 396, 401 (Ind. Ct. App. 2007). Additionally, “[i]nsurance companies are free to limit their liability, so long as they do so in a manner consistent with public policy as reflected by case or statutory law.” Gheae v. Founders Ins. Co., 854 N.E.2d 419, 423 (Ind. Ct. App. 2006). Thus, “[a]n insurance policy that is unambiguous must be enforced according to its terms, even those terms that limit an insurer's liability.” Klepper v. ACE Am. Ins. Co., 999 N.E.2d 86, 90 (Ind. Ct. App. 2013). “Where an ambiguity exists, that is, where reasonably intelligent people may interpret the policy's language differently, Indiana courts construe the insurance policies strictly against the insurer.” Auto-Owners Inc. Co. v. Benko, 964 N.E.2d 886, 890 (Ind. Ct. App. 2012). However, “an ambiguity is not affirmatively established simply because controversy exists, and one party asserts an interpretation contrary to that asserted by the opposing party.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002) (citations omitted).

Catanzarite v. Safeco Ins. Co. of Indiana, 144 N.E.3d 778, 782–83 (Ind. Ct. App. 2020), trans. denied. “We may affirm a trial court's grant of summary judgment based on any theory supported by the designated materials.” Minix v. Canarecci, 956 N.E.2d 62, 67 (Ind. Ct. App. 2011), trans. denied.

[13] Appellants contend that (1) Rodney was an insured at the time of the accident, (2) the title to the Dakota was in Chris's Towing, (3) “[t]here is a fact issue whether the Dakota was furnished or available for regular use of Rodney[,]” and (4) the trial court “improperly found” that Appellants did not establish that Progressive had determined the Dakota was covered by the Policy. Appellants’ Br. p. 9. For its part, Progressive contends that under the terms of the Policy, Rodney's claim for underinsured motorist benefits was excluded under subsection (c) of the “Exclusions” to the Uninsured and Underinsured Motorist Coverage Endorsement (“the Exclusion”). We find this exclusion dispositive.

[14] Coverage under the Endorsement is excluded for bodily injury sustained by any person while using or occupying “an auto [․] owned by [․] you or, if the named insured is a natural person, a relative.” Appellants’ App. Vol. II p. 157 (emphases in original). The designated evidence establishes that the Dakota was either owned by Chris's Towing or David, a relative within the meaning of the Policy.¹ At this point, the Exclusion to the Underinsured Motorist Coverage Endorsement applies. The Exclusion further provides, however, that “this exclusion does not apply to an insured auto or temporary substitute auto.” Appellants’ App. Vol. II p. 157 (bold in original, italics added). Because the designated evidence establishes that the Dakota was neither an insured auto nor a temporary substitute auto, Rodney's claim for underinsured motorist benefits was excluded from coverage.

I. The Dakota was not an insured auto.

[15] An “insured auto,” is defined in the Policy as:

a. Any auto specifically described on the declarations page; or

b. An additional auto for Part I – Liability to Others and/or Part II – Damage To Your Auto on the date you become the owner if:

(i) you acquire the auto during the policy period shown on the declarations page;

(ii) we insure all autos owned by you that are used in your business;

(iii) no other insurance policy provides coverage for that auto; and

(iv) you tell us within 30 days after you acquire it that you want us to cover it for that coverage.

[․]

c. Any replacement auto on the date you become the owner if:

(i) you acquire the auto during the policy period shown on the declarations page;

(ii) the auto that you acquire replaces one specifically described on the declarations page due to termination of your ownership of the replaced auto or due to mechanical breakdown of, deterioration of, or loss to the replaced auto that renders it permanently inoperable; and

(iii) no other insurance policy provides coverage for that auto.

Appellants’ App. Vol. II p. 123 (bold in original, italics added).

[16] There is no dispute that the Dakota was not listed on the declarations page of the Policy. Furthermore, Rodney testified in his deposition that the Dakota had been insured by State Farm Insurance at the time of the accident, and Appellants have put forth no evidence disputing this fact.² This fact alone prevents the Dakota from qualifying as an “additional auto” under subsection (b)(iii) or a “replacement auto” under subsection (c)(iii) of the definition of an “insured auto.” Appellants’ App. Vol. II p. 123.

II. The Dakota was not a temporary substitute auto.

[17] The Exclusion to the Uninsured and Underinsured Motorist Coverage Endorsement would not apply if the Dakota were a temporary substitute auto, which is defined in the Policy as “any auto you do not own while used with the permission of its owner as a temporary substitute for an insured auto that has been withdrawn from normal use due to breakdown, repair, servicing, loss or destruction.” Appellants’ App. Vol. II p. 125 (emphases in original).

[18] The designated evidence on this point indicates that the F650, i.e., the only vehicle listed on the declarations page of the Policy, had not been withdrawn from normal use due to any breakdown, repair, servicing, loss, or destruction. Rodney testified in his deposition that the F650 was operational, in proper working order, and it was being used “in the course of Chris's Towing's business operations at the time of the accident[.]” Appellants’ App. Vol. II p. 112. Rodney agreed that on April 15, 2022, the day after the accident, the Ford F650 had been used by Chris's Towing to pull a vehicle. Therefore, the Dakota did not qualify as a “temporary substitute auto” under the terms of the Policy.

III. The Medical Payments Coverage Payment

[19] Appellants contend that the trial court improperly found that they had not established that Progressive “had determined [the] Dakota was an insured vehicle[,]” arguing, essentially, that because Progressive had paid $5000.00 toward Rodney's medical bills, it must have determined that the Dakota was covered by the Policy's underinsured motorist provisions. In making this argument, Appellants appear to conflate the argument that Progressive is estopped from denying coverage because of its payment under the medical payments coverage provision with the argument that Progressive “should have informed [Christine] of any additional steps necessary” to cover the Dakota. Appellants’ Br. p. 16.

[20] For support, Appellants rely on Prudential Insurance Company of America v. Winans, 263 Ind. 111, 325 N.E.2d 204, (1975). Winans is readily distinguishable from this case.³ In Winans, the Indiana Supreme Court determined that the jury could have reasonably concluded that Winans had been honest and forthright with Prudential's agent, who had completed Winans's application for life insurance, and that any omission on Winans's application for life insurance had been omissions of Prudential's agent, not Winans. 263 Ind. at 116, 325 N.E.2d at 206. The question in Winans, however, involved omissions on Winans's life insurance application form, and nothing in that case addressed whether Prudential was estopped from denying coverage because it had made some payments to Winans. Id.

[21] Here, neither Christine's statement that “[w]e called Progressive to add the vehicle to the policy prior to the accident[,]” Appellants’ App. Vol. II p. 182, nor Progressive's email and the $5000.00 payment under the medical payments coverage provision of the Policy, creates any genuine issue of material fact that Progressive had determined that the Dakota was an insured vehicle under the underinsured motorist provisions. See Barnhill v. Liberty Mut. Fire Ins. Co., 129 F. Supp. 2d 1192, 1201 (N.D. Ind. 2001) (“[T]he fact that an insurer may have made a payment under another provision of the policy does not estop the insurer from denying coverage.”) Therefore, we conclude that the trial court's ruling on the matter was proper.⁴

[22] We affirm the judgment of the trial court.

FOOTNOTES

1.   “Relative” under the Policy “means any person residing in the household in which the named insured resides who is related to the named insured by blood, marriage, or adoption[.]” Appellants’ App. Vol. II p. 125.

2.   We note that Appellants contend that Progressive “relied heavily on the statements made by Rodney Wilkerson in his examination” and that Christine's “statements on her husband's health issues affecting the accuracy of his statements in his examination [․] must be accepted as true.” Appellants’ Br. p. 9. Christine's affidavit provided that “[d]ue to [Rodney's] very poor health, he answered incorrectly that the date of purchase of the vehicle was 03/08/2022, and it should have been 03/22/2022. He also made many other inaccurate statements.” Appellants’ App. Vol. II p. 183. Christine's affidavit makes no indication as to which of Rodney's statements were inaccurate, other than the statements about the date of the purchase. The affidavit makes no mention of whether the “many other inaccurate statements” related to any material facts at all. Trial Rule 56(E) provides, “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” (Emphasis added). We cannot conclude that Christine's statement was sufficient to show a genuine issue for trial on each material fact.

3.   Myers v. Yoder, 921 N.E.2d 880 (Ind. Ct. App. 2010), a case in which the insureds alleged that insurers were negligent in failing to advise them about their homeowner's insurance policy, is also distinguishable. There, we concluded that, “there was no long-standing, intimate relationship” between the parties which would justify imposing a duty on the appellees to advise the Myerses about the amount of homeowner's insurance that they needed for their residence, and, in affirming summary judgment for the appellees, that the Myerses had “failed to identify any special circumstances that might justify the imposition of such a duty.” Myers, 921 N.E.2d at 890.

4.   Even assuming, arguendo, that Progressive's medical bill payment could have estopped Progressive from denying coverage under another provision, Appellants have wholly failed to show that they acted in detrimental reliance pursuant to the medical bill payment. See Johnson v. Payne, 549 N.E.2d 48, 53 (Ind. Ct. App. 1990) (“There simply is no evidence in the record demonstrating that Johnson acted in detrimental reliance upon either National's failure to deny coverage or its payment pursuant to the medical provisions of the policy.”), trans. denied.

Bradford, Judge.

Weissmann, J., and DeBoer, J., concur.