Dave Staffortd for www.theindianalawyer.com

A bicyclist killed by an unlicensed motorist who took her boyfriend’s truck without his permission may not seek damages against the company that insured the truck’s owner, the Indiana Court of Appeals ruled Friday. The panel’s divided opinion in a matter of first impression reversed the judgment of a trial court.

Dissenting Judge Melissa May wrote that the majority’s opinion “would lead to harsh and unfair outcomes, because it would result in protection for drivers injured in motor vehicle accidents but would leave no remedy for pedestrians, bicyclists, or other persons who need not or cannot prove financial responsibility.”

Bike rider Brian Hoke died after he was struck by a truck driven by Pamela Coomer, and his estate sued her, Founders Insurance Co., and policyholder Mark May, with whom Coomer was in a relationship.

Marion Superior Judge Thomas J. Carroll granted Founders’ motions for summary judgment as it related to May and Coomer, but Carroll denied Founders’ summary judgment motion as it related to Hoke’s estate of Brian Hoke.

Writing for the majority, Judge Margret Robb reversed denial of summary judgment as it related to the estate, noting the exclusions in the insurance contract were clear, unambiguous and didn’t violate public policy.

“Here, the insurance contract excluded liability coverage for someone using the vehicle without a reasonable belief that he or she is entitled to do so,” Robb wrote in the majority opinion joined by Judge Paul Mathias. “The insurance contract further included the condition that no coverage would be afforded under the contract if the vehicle is being operated by a person who is an unlicensed driver for any reason. … These are clear and unambiguous provisions of the insurance contract reasonably limiting Founders’ risk to liability for the conduct of an insured who should and legally could be driving the vehicle.

“There is nothing inherent in the exclusions in the Founders insurance contract that make them against public policy, it is only the particular circumstances of this case that make enforcing them seem unjust,” Robb wrote. “However, it is neither logical nor consistent with the law of contracts that the enforceability of a contract of insurance depends upon the status of the person with whom the insured is involved in a collision.

“We have great sympathy for the Hokes and their loss.  However, ‘a third party’s right to recover through liability insurance is not absolute,’” Robb wrote, citing Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664 (Ind. 1997). “The dissent would base its decision on the public policy ‘that persons who suffer loss due to the tragedy of automobile accidents shall have a source and means of recovery,’ … and require Founders to be that source for Hoke’s Estate. However, the source and means of recovery is grounded in the insurance contract itself. The general policy of making insurance available to compensate for losses arising from motor vehicle collisions does not trump the long-standing precedent allowing an insurer to reasonably limit its liability, nor should the recompense of one victim take precedence over the importance of providing affordable insurance to all motorists.”

In her dissent, May noted Guzorek left unsettled the question of whether a liability insurer can deny coverage when the third party does not have protection against uninsured motorists.

“I believe a more useful statement of our public policy in this case is that ‘it is the policy of this state that persons who suffer loss due to the tragedy of automobile accidents shall have a source and means of recovery,’” May wrote, citing the language of Am. Underwriters Grp., Inc. v. Williamson, 496 N.E.2d 807, 810 (Ind. Ct. App. 1986), which was disapproved on other grounds in Guzorek.

“This policy typically guides courts in other jurisdictions who face fact situations like ours, and I believe that analysis strikes a better balance between protection of insured motorists and that of accident victims who are not motorists.

“I cannot join the majority opinion to the extent it would, in order to protect insurance companies from perceived ‘disparate treatment,’ deprive non-motorist accident victims of recovery that is available to accident victims who are motorists,” May wrote.

The case is Founders Insurance Company v. Mark May, Pamela Coomer, and Roger W. Hoke as the Personal Representative of the Estate of Brian Hoke, deceased,49A02-1501-PL-8.