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State Farm Mutual Automobile Insurance Co. v. Leybman11/1/2002
FOR PUBLICATION
OPINION-FOR PUBLICATION
Appellant-defendant State Farm Mutual Automobile Insurance Co. (State Farm) appeals the declaratory judgment entered in favor of its policyholders appellees-plaintiffs Yevgeniy and Mikhlina Leybman. The dispositive issue is whether another insurance company's offer of its policy limits precludes the Leybmans from seeking uninsured motorist coverage under their policy from State Farm. Concluding that the offer of policy limits constitutes insured motorist coverage, we hold that the Leybmans were not entitled to the uninsured motorist coverage under their own policy and reverse the trial court's judgment.
FACTS
The material facts are undisputed. On December 10, 1998, thirty-six-year-old James Gaddy was driving a pick-up truck owned by his father, John Gaddy. John had not given James permission to drive the truck on that day. He struck and killed the Leybmans' fifteen-year-old son, Vitaliy, as the young man crossed an intersection on foot. Although James did not have an insurance policy, John maintained insurance on the pick-up truck through GRE Insurance Company (GRE). The policy listed John and his wife as insured drivers, but not James. In addition, the GRE policy provided coverage for the permissive use of the pick-up but not for any nonpermissive use of the vehicle.
John informed GRE of the accident the next day. GRE, accordingly, sent an adjuster to determine whether an insured driver was operating the pick-up at the time of the accident or whether an uninsured driver had permission to use the pick-up at the time of the accident. The Leybmans filed suit against both John and James on February 1, 1999, for Vitaliy's wrongful death. When GRE received notice of the suit, it retained a law firm to represent both John and James. Within nine days after the suit was filed, GRE offered the policy limits of $25,000 to the Leybmans to settle the case. The settlement was contingent on the Leybmans executing a release of liability of both John and James. As of the date of the trial court's amended order of judgment, GRE's offer had not been withdrawn or accepted. Appellant's App. p. 14.
The Leybmans subsequently filed a declaratory judgment action against their insurer State Farm, requesting the $50,000 limits of their policy's uninsured motorist provision. That policy provided:
We will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured. The bodily injury or property damage must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle. Appellant's App. p. 64 (some emphases omitted).
In turn, an uninsured motor vehicle is defined as:
1. a land motor vehicle, the ownership, maintenance or use of which is:
a. not insured or bonded for bodily injury liability and property damage liability at the time of the accident . . . . Appellant's App. p. 64.
The trial court concluded that GRE's settlement offer to pay John's policy limits of $25,000 did not constitute insurance coverage for the "ownership, maintenance or use" of the pick-up at the time of the accident. Appellant's App. p. 18. State Farm now appeals and the Leybmans cross-appeal.
DISCUSSION AND DECISION
I. Standard of Review
When, as here, the trial court finds the facts specially and states its conclusions thereon pursuant to Ind. Trial Rule 52, the court on appeal shall not set aside the findings or judgment unless clearly erroneous. McGinley-Ellis
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