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Indiana Insurance Co. v. Barnes12/6/2005
{ } Appellant, Roland K. Barnes, appeals the March 17, 2005 judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of appellee, Indiana Insurance Company.
{ } The following factual and procedural background is gleaned from a joint stipulation filed by the parties for consideration on summary judgment. On September 10, 1999, an automobile accident occurred when Barnes negligently struck a vehicle driven by Robert Zarlino. Barnes admitted responsibility for the accident.
Following the accident, Mr. Zarlino filed an action against Barnes in the Franklin County Court of Common Pleas to recover damages for personal injury . The lawsuit was designated case No. 01CVC01-223.
{ } During litigation, Barnes's employer, Gauer Contractors, Inc., was named as a party defendant on the basis that Barnes was working within the course and scope of his employment at the time of the accident. The case proceeded to a jury trial against Barnes and Gauer under theories of negligence and respondeat superior. During the trial, Mr. Zarlino dismissed Barnes as a defendant, and the case continued against Gauer. The jury returned a verdict in favor of Mr. Zarlino in the amount of $30,425. Indiana Insurance Company, as Gauer's insurer, paid $33,425.01 in satisfaction of that judgment.
{ } On November 14, 2003, Indiana commenced the present case by filing a complaint against Barnes in the common pleas court. Indiana brought the suit as the "insurer, assignee and subrogee" of Gauer seeking to recover the amount paid to Mr. Zarlino pursuant to the above judgment. Indiana's complaint premised recovery on contribution or indemnification. Barnes filed an answer and counterclaim, which sought a declaratory judgment declaring that he was an insured under Indiana's policy and that Indiana was not entitled to subrogate against him as an insured.
{ } On October 15, 2004, Indiana filed a motion for summary judgment. The motion asserted that Barnes was actively negligent in causing Mr. Zarlino's injuries, while Gauer was liable solely under the doctrine of respondeat superior. Therefore, Indiana reasoned that, as Gauer's subrogee, it was entitled to indemnification from Barnes.
{ } Barnes responded that, because he was within the course and scope of his employment at the time of the accident, he was an insured under the Indiana policy. As an insured, Indiana has no right of subrogation against him. Further, there is no language within the Indiana policy that would permit Indiana to collect an amount paid on behalf of an insured from an insured.
{ } In its motion for summary judgment, Indiana presented the issue of primary versus secondary insurance policies as an additional theory of recovery against Barnes. Comparing the language of the Indiana policy with that of Barnes's personal policy with Allstate, Indiana argued that its coverage was in excess of the coverage provided by Allstate. Thus, Indiana contended that it was not required to pay Mr. Zarlino's judgment because that judgment did not exceed the applicable limits of Barnes's Allstate policy.
{ } Countering, Barnes submitted that Indiana's attempt to distinguish between primary and secondary coverage was misplaced. Instead, Barnes argued that Indiana was required to defend both of its insureds, Gauer and Barnes, for the negligent acts insured against in its policy. When Mr. Zarlino dismissed Barnes as a defendant, the jury returned a verdict against Gauer only. Accordingly, Barnes reasoned that Indiana, as Gauer's insurer, was the only insurance provider bound by that judgment. Because the Indiana policy contained no language that would permit it to se
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