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Clevenger v. Progressive Northwestern Insurance Co.12/13/2005
FOR PUBLICATION
Sherry Clevenger and James Clevenger appeal from the trial court's order granting summary judgment to Progressive Northwestern Insurance Company (Progressive) in Progressive's action for declaratory judgment. As restated, the dispositive issue on appeal is: Did the trial court err by granting summary judgment where the insurance policy provisions at issue are ambiguous as to the event that would trigger commencement of the limitation period for the Clevengers to bring their underinsured motorist (UIM) claim?
We reverse and remand for further proceedings.
The facts relevant to the appeal are not in dispute and disclose that on December 19, 1999, a car owned by the Clevengers, and insured by Progressive, was struck from behind by a truck driven by Paul Brandenburg. The collision caused injuries to Sherry and Ashley Clevenger.
The Clevengers retained counsel. Counsel notified the Clevengers' insurer, Progressive, of their representation by telephonic communication. In August 2000, counsel for the Clevengers understood that Sherry and Ashley had completed medical treatment for their injuries attributable to the collision. Counsel for the Clevengers notified Brandenburg's insurer that the treatment had been completed. Also, counsel requested information as to the limits of Brandenburg's policy. Brandenburg's insurer's reply did not disclose the limits of the policy and noted in a postscript that the "information that we have to date does not indicate that this would be a limits case." Appendix at 58.
On September 25, 2000, counsel for the Clevengers sent a settlement proposal to Brandenburg's insurer. At that time, Sherry Clevenger's documented medical expenses and lost wages claim was $5,511.39.
On January 15, 2001, Progressive formally acknowledged counsel's representation of the Clevengers and gave notice of Progressive's subrogation rights. Further, the letter from Progressive to the Clevengers's counsel stated: "Please forward the Medical Authorization and provider list for your clients. Be advised, our Medical Payments Coverage is reimbursable upon settlement with the wron doer's insurance carrier." Appendix at 67.
On February 2, 2001, the Clevengers filed their complaint against Brandenburg. Counsel for the Clevengers maintained contact with Progressive. On July 17, 2001, Progressive sent a letter to the Clevengers's counsel and to Brandenburg's insurer as formal notice of its subrogation rights, requesting that any settlement draft include Progressive as a payee, and requesting that counsel and a representative of Brandenburg's insurer sign an acknowledgement of Progressive's lien.
According, to the Clevengers's brief on appeal, and not disputed by Progressive, in January 2002, approximately one month after the two-year statute of limitations period would have expired had the Clevengers not instituted a lawsuit against Brandenburg, Sherry resumed treatment for her injuries stemming from the collision. Her physician recommended surgery that was performed on February 22, 2002. Sherry's medical expenses increased to $30,021.65.
On August 15, 2003, counsel for the Clevengers sent a letter to counsel for Brandenburg noting that "it is my understanding that your client has insurance coverage policy limits in the amount of $50,000 per person . . . ." Appendix at 69. On September 23, 2003, Brandenburg's counsel offered to settle Sherry's claim for the $50,000 policy limits. Counsel for the Clevengers notified Progressive of the settlement offer by letter dated September 25, 2003. Counsel requested authority to accept the $50,000 policy limits and stated: "This will further advise tha
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