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Clevenger v. Progressive Northwestern Insurance Co.12/13/2005
gainst the insurer for UIM benefits." Id. at 783. Noting that the policy should be construed against the insurer, as the drafter, the court reasoned:
We therefore conclude that the purpose of the policy language which states, " e may not be sued under the Underinsured Motorist coverage on any claim that is barred by the tort statute of limitations," is to disallow a UIM claim if the insured has allowed the underlying tort claim to become barred by not settling or bringing suit within the period of limitations.
Id. at 784. The court noted that the policy did not establish either the time for bringing a UIM claim or the point in time when the limitations period would commence. Accordingly, the court determined that the policy was ambiguous. We agree with that reasoning.
Here, the Clevengers filed suit against the tortfeasor, Brandenburg, within the applicable statute of limitations period. The Clevengers exhausted the coverage maintained by Brandenburg prior to making their claim for UIM coverage from Progressive, as required by the policy. The policy provision requiring suit within the statute of limitations period for bodily injury did not specify the time from which the limitations period would be measured, unlike the policy provisions in Meridian Mut. Ins. Co. v. Caveletto, 553 N.E.2d 1269, and Union Automobile Indem. Ass'n v. Shields, 79 F.3d 39. Further, the policy provision aimed at contractually limiting the insured's ability to bring a contract claim against Progressive-a ten-year statute of limitations period-also specified that Progressive could not be sued by its insured prior to compliance with all policy provisions. Taken together, these factors require a conclusion that the UIM "exhaustion" provision conflicts with the provision contractually shortening the limitations period within which an insured could bring an action against Progressive for failing to pay UIM coverage. Thus, the Progressive policy is ambiguous.
Because the policy provisions at issue are ambiguous, the trial court erred by construing the policy in favor of Progressive. See HemoCleanse, Inc. v. Philadelphia Indem. Ins. Co., 831 N.E.2d 259 (ambiguous insurance contracts must be strictly construed against the insurer).
Accordingly, the trial court's entry of summary judgment for Progressive is reversed, and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
VAIDIK, J., and SULLIVAN, J., concur.
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