Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Paul B. Overhauser

April M. Jay

Overhauser Law Offices, LLC

Greenfield, Indiana

ATTORNEYS FOR APPELLEE

David L. Taylor

Misti Presnell DeVore

Taylor DeVore P.C.

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Victor Spina,

Appellant-Plaintiff,

v.

Owners Insurance Company,

Appellee-Defendant.

March 26, 2018

Court of Appeals Case No.

55A05-1710-CT-2401

Appeal from the Morgan Circuit

Court

The Honorable Daniel F. Zielinski,

Special Judge

Trial Court Cause No.

55C01-1507-CT-1181

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 55A05-1710-CT-2401 | March 26, 2018 Page 2 of 6

Case Summary

[1] Appellant-Plaintiff Victor Spina appeals following the trial court’s 

determination that his homeowner’s insurance provider, Appellee-Defendant 

Owners Insurance Company (“Owners”), did not owe a duty to defend him in 

an underlying lawsuit relating to his business dealings. Spina contends that 

because he requested a jury trial shortly after initiating his lawsuit against 

Owners, the trial court erroneously violated his constitutional right to a jury 

trial by making a judicial determination as to the question of whether Owners 

owed him a duty to defend. Because applicable authority indicates that the 

question of whether an insurance provider owes an insured a duty to defend is 

to be determined by the court, we affirm.

Facts and Procedural History

A. Facts Relating to the Underlying Lawsuit

[2] On January 26, 2015, DirecTV, LLC (“DirecTV”) filed a lawsuit against Spina 

and his brother, William Spina, individually and in their official capacities as 

principals in a company owning Texas Corral restaurants in Martinsville and 

Shelbyville, Indiana (“the DirecTV lawsuit”). The DirecTV lawsuit alleged that 

Spina and his brother had violated both federal and state law by committing 

acts “that constitute theft, misappropriation and/or unauthorized interception 

and display of DirecTV satellite signals and programming ... at Texas Corral 

restaurants ... operated at Martinsville and Shelbyville, Indiana for commercial 
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benefit without a valid commercial account [and] without paying a commercial 

rate.” Appellant’s App. Vol. II, p. 115. 

B. Facts Relating to Spina’s Claims Against Owners

[3] On April 1, 2015, Spina filed a claim under his homeowner’s insurance policy

relating to the DirecTV lawsuit. After Owners denied coverage under the 

homeowner’s policy, Spina filed a lawsuit against Owners alleging breach of 

contract, breach of fiduciary duty, and bad faith and seeking injunctive relief. 

Spina also filed a request for a jury trial. Owners subsequently filed a 

counterclaim in which it requested a declaratory judgment as to whether it had 

a duty to defend Spina in the DirecTV lawsuit under the terms of Spina’s 

homeowner’s policy. 

[4] On October 13, 2016, Owners filed a motion to bifurcate the question of 

whether it had a duty to defend Spina in the DirecTV lawsuit from the 

remaining claims levied in Spina’s complaint. Spina subsequently filed a brief 

in opposition to Owners’s motion to bifurcate.

[5] On or about November 1, 2016, the trial court issued an order granting 

Owners’s motion to bifurcate trial. This order indicated that the question of 

coverage would first be determined by a bench trial. The order set the bench 

trial on the coverage issue for January 3, 2017. On November 14, 2016, Spina 

filed a motion in which it requested that the trial court reconsider the 

bifurcation order and set the entire matter for a single jury trial. The trial court 

denied Spina’s motion to reconsider in an order dated December 22, 2016.
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[6] The trial court conducted a bench trial solely on the question of coverage on 

June 29, 2017. At the conclusion of this trial, the trial court concluded that 

Owners did “not owe a duty to defend or indemnify Spina against the claims of 

DirecTV[.]” Appellant’s App. Vol. II, p. 126. This appeal follows.

Discussion and Decision

[7] The parties’ numerous claims and arguments on appeal can be succinctly 

restated as whether the trial court violated Spina’s constitutional right to a jury 

trial by making a judicial determination as to whether Owners had a duty to 

defend Spina in the DirecTV lawsuit. Generally,

[a]n insurance company’s duty to defend is broader than its duty 

to indemnify. Seymour Mfg. Co. v. Commercial Union Ins. Co., 665 

N.E.2d 891, 892 (Ind. 1996). An insurer, after making an 

independent determination that it has no duty to defend, must 

protect its interest by filing a declaratory judgment action for a 

judicial determination of its obligations under the policy or defend 

its insured under a reservation of rights. Liberty Mut. Ins. Co. v. 

Metzler, 586 N.E.2d 897, 902 (Ind. Ct. App. 1992), trans. denied.

Emp’rs Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1025 (Ind. Ct. 

App. 1999) (emphasis added).

[8] A judicial determination of whether an insurer owes the insured a duty to 

defend is appropriate because in order to make such a determination, the court 

must interpret the terms of the insurance policy, i.e., the contract, agreed to by 

the parties. Interpretation of an insurance contract is a matter of law. Burkett v. 
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Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind. Ct. App. 2000); Westfield Cos. v. 

Rovan, Inc., 722 N.E.2d 851, 855 (Ind. Ct. App. 2000). Issues of law “are not 

the proper subject of jury analysis.” Winney v. Bd. of Comm’rs of Vigo Cty., 174 

Ind. App. 624, 628, 369 N.E.2d 661, 663 (1977). Therefore, when a party files 

a motion for declaratory relief, issues of law within the claim “will be 

determined by the court, either by a separate decision or by instructions to the 

jury.” Id. at 629, 369 N.E.2d at 664.

[9] By seeking a declaratory judgment as to whether it had a duty to defend Spina 

and requesting the bifurcation of the issue from the other claims levied against it 

by Spina, Owners sought a judicial determination as to whether it had a duty to 

defend Spina before proceeding to trial on the claims asserted by Spina. The 

trial court conducted a bench trial focused solely on this question. The record 

reveals that had the trial court found that Owners owed Spina a duty to defend, 

the matter would have proceeded to a jury trial on Spina’s claims. However, 

following this bench trial, the trial court determined that Owners did not have a 

duty to defend Spina. The trial court did not make any findings or conclusions 

thereon relating to any other issue. Given the applicable authority indicating 

that a determination as to whether an insurance company owes an insured a 

duty to defend is to be made by the trial court, see Emp’rs Ins. of Wausau, 716 

N.E.2d at 1025, we conclude that the trial court did not violate Spina’s 

constitutional right to a jury trial by making such a determination.

[10] The judgment of the trial court is affirmed.
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Robb, J., and Crone, J., concur.