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Shepherd v. Fregozo6/13/2005
icer in a fact situation that very closely parallels the case at bar. The Indianapolis Police Department provided a motorcycle for Jackson's regular use. The City of Indianapolis is self-insured and is not required to carry uninsured and underinsured motorist coverage. Jones collided with Jackson causing personal injury to Jackson. After determining that Jones was uninsured, Jackson filed a claim against Illinois Farmers Insurance Company under his personal automobile policy. The trial court granted summary judgment to the insurer under the "regular use" exclusion in its policy. It is well to note the striking similarity of the dilemma faced by Jackson to that faced by Shepherd. Metropolitan Government of Nashville is self-insured and is not required to carry uninsured-underinsured motorist coverage. The proof shows that Shepherd cannot prevail upon his own private insurance carrier to provide uninsured motorist coverage for him in the use of police vehicles. The court in Jackson acknowledged the patrolman's dilemma but determined that the solution is legislative, not judicial:
Jackson does not contend that his Farmers' policy is ambiguous or that it does not explicitly exclude uninsured or underinsured coverage under the facts here. Rather he contends that the exclusion in the uninsured and underinsured section, even though it is comparable to that found in the liability section, is void because it is against public policy to exclude public safety officers from coverage under their personal insurance policies, even while on duty, because the government entity who owns and thus insures the vehicle is not required to provide uninsured or underinsured motorist coverage. Jackson contends that because the statute, IC 27-7-5-2, does not provide for exceptions, government vehicles cannot be excluded from coverage by personal insurance policies. Because government entities are self-insured and therefore exempted by the Tort Claims Act from being required to carry uninsured motorist coverage, such exclusion would leave him and other government employees without the uninsured motorist coverage provided for by law. He argues that because the legislature did not specifically provide for the exception, such exception should not be allowed.
Jackson notes that the purpose of uninsured motorist coverage is to place the insured in substantially the same position as if the other party had complied with the minimum financial responsibility requirements of the insurance statutes. See Am. States Ins. Co. v. Braden, 625 N.E.2d 1252, 1257 (Ind.Ct.App.1993). Jackson concedes that his "policy specifically limits uninsured motorist coverage as to persons who would otherwise qualify as insured for liability purposes." See Whitledge, 586 N.E.2d at 887.
Jackson argues that Smith v. Allstate Ins. Co. does not control because the vehicle there was owned by a private business which could purchase uninsured and underinsured motorist coverage. However, language in an insurance policy which limits or diminishes the protection required by the uninsured motorist statute is contrary to public policy only if it specifically limits uninsured motorist protection as to person who would otherwise qualify as insured for liability purposes. Harden v. Monroe Guar. Inc. Co., 626 N.E.2d 814, 819 (Ind.Ct.App.1993), trans. denied.
Our supreme court has stated that "we may even agree that public policy favors a requirement that self-insurers under the financial responsibility law should be required to provide some sort of uninsured motorist protection for those who drive their [vehicles], it is not our role to sit as a judicial legislator and write such a requirement into the act." City of Gary, 612 N.E.2d at 119. Since
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