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Clevenger v. Progressive Northwestern Insurance Co.12/13/2005
t we intend to make a claim on the underinsurance portion of the Clevenger[s's] policy." Id. at 70.
On August 13, 2004, Progressive filed its complaint for a declaratory judgment wherein it requested a determination that the Clevengers's "claims for underinsurance benefits are untimely and prohibited by the express language of the Defendants' Progressive policy." Appendix at 8. On October 5, 2004, Progressive filed its motion for summary judgment.
On January 28, 2005, a hearing was held on summary judgment. Counsel for Progressive acknowledged that Progressive had notice of both the collision and the Clevengers's "med-pay" claims, but claimed that knowledge would not constitute knowledge of a potential UIM claim by the Clevengers because, inter alia, UIM claims are managed by a different adjuster than "med-pay" claims. On February 22, 2005, the trial court entered summary judgment for Progressive. This appeal ensued.
We review a ruling on a motion for summary judgment using the same standard employed by the trial court. Summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In re Nobbe, 831 N.E.2d 835 (Ind. Ct. App. 2005).
If the moving party successfully demonstrates the absence of any dispute regarding the material facts and their inferences, then our review is limited to determining whether the trial court correctly applied the law to the undisputed facts. Burkett v. American Family Insurance Group, 737 N.E.2d 447 (Ind. Ct. App. 2000). We review de novo such pure questions of law. Id. Reversal of summary judgment may be warranted if our review discloses an incorrect application of the law to the undisputed facts. Here, the relevant facts are undisputed.
The dispositive contention by the Clevengers is that the Progressive policy provisions are ambiguous. We start with our standard for reviewing the construction of contracts:
Insurance contracts are subject to the same rules of construction as other contracts: we interpret an insurance policy with the goal of ascertaining and enforcing the parties' intent as revealed by the insurance contract. In accomplishing that goal, we must construe the insurance policy as a whole. If the contract language is clear and unambiguous, it should be given its plain and ordinary meaning. Where a policy's language is ambiguous, we must strictly construe it against the insurer.
We must accept an interpretation of the contract language that harmonizes the provisions rather than one that supports a conflicting version of the provisions. Policy terms are interpreted from the perspective of an ordinary policyholder of average intelligence. If reasonably intelligent persons may honestly differ as to the meaning of the policy language, the policy is ambiguous. Terms in a contract are given their usual and common meaning unless, from the contract, it can be determined that some other meaning was intended.
HemoCleanse, Inc. v. Philadelphia Indem. Ins. Co., 831 N.E.2d 259, 262 (Ind. Ct. App. 2005) (citations omitted).
The Clevengers urge, inter alia, that the contract terms of the Progressive policy are ambiguous as to at least two matters important to the inquiry at issue: 1) the contract expressly prohibits an action for UIM coverage against Progressive by its insured until such time as coverage by a party at fault is exhausted and paid-a precondition that did not occur here until after the two-year period from the collision date had expired, and 2) the contract provision limiting the time within which to bring an action against Progressive does not
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