FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:	ATTORNEYS FOR APPELLEE:

THOMAS A. CLEMENTS	GREGORY A. CRISMAN

DAVID M. HAMACHER	Eichhorn & Eichhorn			

Ruman, Clements, Tobin & Holub, P.C.	Hammond, Indiana

Hammond, Indiana

	IN THE

	COURT OF APPEALS OF INDIANA

SANDY THOMAS and JAMES LEE THOMAS	)

b/n/f SANDY THOMAS,	)

			)

	Appellants-Plaintiffs,	)

			)

		vs.	)	

			)

VICTORIA FIRE & CASUALTY INSURANCE	)	No.  46A05-9704-CV-145

COMPANY,		)

			)

	Appellee-Defendant,	)

--------------------------------------------------------------	)

TRACY A. KOONTZ and SANDRA 	)

J. SIMMONS,	)

			)

	Non-Appellees-Defendants.	)

	APPEAL FROM THE LAPORTE CIRCUIT COURT

	The Honorable Robert S. Gettinger, Presiding Judge

	Cause No.  46C01-9506-CT-211

	(Handdown Date)FebruaryFebruary 22, 1999

	OPINION - FOR PUBLICATION

RUCKER, Judge

	When Victoria Fire & Casualty Insurance Company (“Victoria Insurance”) refused a claim for uninsured motorist coverage submitted by Sandy and James Thomas (“the

Thomases”), the Thomases sued Victoria Insurance, along with Sandra Simmons - owner of

the Victoria Insurance automobile policy, and Tracy Koontz - the uninsured motorist.  The

Thomases’ complaint against Victoria Insurance was based upon a bad faith denial of

coverage and benefits.  Victoria Insurance responded with an answer and counterclaim for

declaratory judgment that was based on an exclusionary clause prohibiting benefits to any

relative of the named insured.  Thereafter Victoria Insurance filed a motion for summary

judgment which the trial court granted.  The Thomases now appeal raising four issues for our

review which we consolidate into three and rephrase as follows:  (1) does an insurance policy

that excludes coverage to any relative of the named insured violate public policy, (2) were

the Thomases entitled to uninsured motorist coverage, (3) may the Thomases pursue a claim

against Victoria Insurance based upon a bad faith denial of coverage and benefits. 

	We affirm.

	The undisputed facts show that Sandra Simmons and Sandy Thomas are relatives.1  On July 24, 1995, Simmons was driving her car and Thomas, who was pregnant with her

unborn child James Lee Thomas, was a passenger.  Simmons’ car was involved in a collision

with a car driven by Tracy Koontz.  Koontz had no insurance but Simmons carried a policy

of automobile insurance with Victoria Insurance.  The policy included uninsured motorist coverage.  As a result of the collision James was born prematurely, and both Thomas and

James suffered severe injuries.  Sometime thereafter the Thomases presented a claim for

damages to Victoria Insurance which the company denied.  The Thomases then sued

Simmons and Koontz for damages claiming negligence in the operation of their respective

automobiles.  The Thomases also sued Victoria Insurance alleging bad faith in the denial of

coverage and benefits.  Victoria Insurance responded by, among other things, filing a

counterclaim seeking a declaratory judgment that the exclusions in its policy of insurance

with Simmons precluded recovery by the Thomases.  The provision provided in relevant part:

	EXCLUSIONS

	Please read these exclusions carefully.  If any exclusion applies, an INSURED will

not have coverage for an ACCIDENT or LOSS.

	Liability coverage and our duty to defend does not apply to:

	1.  BODILY INJURY to YOU, a RELATIVE, or any INSURED.

R. at 55.  The term RELATIVE is defined to include:

	a) any person living in YOUR household, or

	b) any person related to you by blood, marriage or adoption . . . .

R. at 53 (emphasis added).  Thereafter Victoria Insurance filed a motion for summary

judgment.  After conducting a hearing and taking the matter under advisement the trial court

granted the motion.  The Thomases now appeal. 

	When reviewing a grant or denial of summary judgment our well-settled standard of

review is the same as it was for the trial court:  whether there is a genuine issue of material

fact and whether the moving party is entitled to judgment as a matter of law.  Landmark Health Care Assocs., L.P. v. Bradbury, 671 N.E.2d 113, 116 (Ind. 1996).  Summary judgment is appropriate only when no genuine issue of material fact exists and the moving

party is entitled to judgment as a matter of law.  Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 169 (Ind. 1996).  Here the essential facts are not in dispute.  Therefore, our task is to

determine the law applicable to the undisputed facts and whether the trial court correctly

applied the law.  Deadwiler v. Chicago Motor Club Ins. Co., 603 N.E.2d 1365, 1366 (Ind. Ct. App. 1992), trans. denied.

	The Thomases first argue the relative exclusion clause contained in the Victoria

Insurance contract violates public policy implicit in the Financial Responsibility Act, Ind.

Code § 9-25-1-1 et seq., and the Uninsured Motorist Statute, Ind. Code § 27-7-5-2 et seq.  Thus, according to the Thomases, the trial court erred in granting summary judgment to

Victoria Insurance because the clause is void and unenforceable.  A trial court’s ruling on

a motion for summary judgment reaches this court clothed with a presumption of correctness.

Indiana Republican State Comm. v. Slaymaker, 614 N.E.2d 981, 983 (Ind. Ct. App. 1993), trans. denied.  When reviewing the trial court’s ruling we will affirm on any theory supported by the Ind. Tri Rule 56 material properly presented to the trial court.  Crist v. K-Mart Corp., 653 N.E.2d 140, 142 (Ind. Ct. App. 1995).  In the case before us Victoria Insurance sought

summary judgment on its claim for declaratory judgment because, according to Victoria

Insurance, (a) the Thomases had no standing with respect to their claim for bad faith, and (b)

the insurance contract between Victoria Insurance and Simmons provided neither liability

coverage nor uninsured motorist coverage for the Thomases.  The trial court examined the

insurance policy and determined there was no genuine issue as to any material fact and that Victoria Insurance was entitled to judgment as a matter of law.  Thus, without regard to

whether the “relative” exclusion violates public policy, we must affirm the judgment of the

trial court if it can be affirmed on any theory supported by the insurance policy and other

evidence properly presented to the court.2

	Simmons’ automobile policy with Victoria Insurance includes uninsured motorist

protection.  That section of the policy provides in relevant part: 

WE will pay for other than PUNITIVE or EXEMPLARY DAMAGES for

BODILY INJURY, which an INSURED is legally entitled to recover from the

owner or operator of an UNINSURED CAR.  The BODILY INJURY must be

caused by an ACCIDENT and arise out of the ownership, maintenance, or

USE of the UNINSURED CAR.

R. at 48.  Among other things “insured” is defined as “any person OCCUPYING YOUR

INSURED CAR.”  R. at 47.  The Thomases argue that because they were occupying

Simmons’ car they are insureds as the term is used in the uninsured motorist provision of the

policy.  As a result, the Thomases contend, they are entitled to benefits thereunder. 

	The facts before us are similar to those in Indiana Farmers Mut. Ins. Co. v. Speer, 407 N.E.2d 255 (Ind. Ct. App. 1980).3  In that case a mother was driving a car and her daughter was a passenger.  The car was involved in a collision with an uninsured motorist.  Mother

was killed and daughter was severely injured.  The liability section of the insurance policy

at issue listed only the husband/father as the name insured.  “Persons insured” under that

section included the named insured and others that did not include the mother or daughter. 

However, the uninsured motorist section of the policy contained a definition of “persons

insured” that included not only the husband/father as the named insured, but also the spouse

and relatives of the named insured.  Evaluating the differences in coverage under the two

provisions this court stated:

Under the Indiana Farmers policy, persons insured for liability coverage and

those insured for uninsured motorist coverage are dissimilar. . . .  As we read

the provisions, the class of persons covered under the uninsured motorist

provision is somewhat larger than those covered under the liability section. 

The question of which definition should prevail is a close one.  We believe the

most reasonable interpretation of our uninsured motorist statute is one which

results in coverage when the person is listed as a person insured under the

liability portion of the policy.

Id. at 258-59.  Because neither mother nor daughter were listed as persons insured under the liability section of the policy we concluded they were not entitled to uninsured motorist

coverage.  Id.  

	In the case before us the policy declaration page lists Sandra J. Simmons as the named

insured and herself and David Thomas as drivers of the car.  “Insured” under the liability

section is defined as follows:

	a) YOU,

	b) YOUR spouse if living in YOUR household,

	c)  a driver listed on the DECLARATION PAGE,

	d) anyone driving the INSURED CAR with permission from an 

	INSURED.

R. at 53.  As with Speer in this case the class of persons covered under the uninsured motorist provision is larger than the class of persons covered under the liability section of the policy. 

As Speer dictates whether the Thomases are entitled to uninsured motorist coverage depends upon whether they are “insureds” under the liability provision of the policy.  Because they

are not insureds under the liability section of the policy they are not entitled to uninsured

motorist coverage.  We disagree with the Thomases that the holding in Speer is limited to the statutory mandate concerning an insurance carrier’s responsibility to make available

uninsured and underinsured motorist coverage.  See Ind. Code § 27-7-5-2.  Cases decided after Speer have noted the interrelationship between uninsured motorist coverage and liability coverage.  “The policy behind linking uninsured motorist coverage to liability coverage is

to reward those who obtain insurance coverage for the benefit of those they might injure. 

Persons who are uninsured for purposes of liability coverage should not be protected by the

public policy of this state from those of their own kind.”  Anderson v. State Farm Mut. Auto. Ins. Co., 471 N.E.2d 1170, 1175 (Ind. Ct. App. 1984); See also Harden v. Monroe Guar. Ins. Co., 626 N.E.2d 814, 818 n.4 (Ind. Ct. App. 1993), trans. denied.  We conclude the trial court did not err in granting summary judgment to Victoria Insurance on the question of whether

Simmons’ policy of insurance provided uninsured motorist coverage to the Thomases. 

	In its motion for summary judgment Victoria Insurance also alleged that the Thomases

lacked standing to assert a claim of bad faith.  Although not addressing this precise allegation

the trial court granted the motion.  On appeal the Thomases do not specifically argue the trial

court erred in awarding summary judgment to Victoria Insurance on the bad faith claim.  Rather the Thomases advance various grounds supporting their view that they do indeed have

standing to pursue the claim.  Regardless of whether the Thomases have standing, they still

cannot prevail.  At the heart of the Thomases’ claim of bad faith in the denial of coverage

and benefits is the proposition that they are insureds under the uninsured motorist provision

of the policy.  Thus, the argument continues, Victoria Insurance owes them a duty of good

faith and fair dealing.  As we have already held, the Thomases are not entitled to uninsured

motorist coverage.  Accordingly Victoria Insurance was under no obligation to offer the

Thomases coverage or benefits under the uninsured motorist section of Simmons’ insurance

policy. 

	Judgment affirmed.

DARDEN, J., concurs.

GARRARD, J., concurs in part and dissents in part with opinion.	

IN THE

COURT OF APPEALS OF INDIANA

SANDY THOMAS and JAMES LEE THOMAS	)

b/n/f SANDY THOMAS,	)

			)

	Appellants-Plaintiffs,	)

			)

		vs.	)	No. 46A05-9704-CV-145

			)

VICTORIA FIRE & CASUALTY	)

INSURANCE COMPANY,	)

			)

	Appellee-Defendant.	)

----------------------------------------------------------	)

TRACY A. KOONTZ and SANDRA J. SIMMONS,)

			)

	Non-Appellees-Defendants.	)

GARRARD, Judge, concurring in part and dissenting in part

	As set forth by the majority, the suit before us was initiated by a passenger (Thomas) against the driver of the car in which she was riding (Simmons), the driver of the other car

involved in the collision (Koontz), and the insurance company insuring the driver of the car

in which she was riding.

	Under the policy provisions as outlined by the majority I quite agree that the passenger

(Thomas) has no claim for uninsured motorist coverage against the driver of her car.  That is because as a relative she is excluded under the liability coverage provisions of the policy,

just as her driver was.  Moreover, while the exclusion for relatives may be unusual, it was

what the parties contracted for.  I see no public policy reason to set aside the contract.

	On the other hand, if the driver of the other car (Koontz) was negligently responsible

for the collision and the passengers’ injuries, then Thomas would be entitled to recover under

the uninsured motorist protection afforded by Simmons’ policy because that policy afforded

uninsured motorist protection to the “insured” which included “any person occupying your

insured car.”

	I do not believe that Indiana Farmers Mut. Ins. Co. v. Speer, 407 N.E.2d 255 (Ind. Ct. App. 1980) alters that result.  The facts before the court in Speer were critically different because in that case the decedent wife’s estate and injured daughter were attempting to

recover under the uninsured motorist provisions of an insurance policy issued to the husband on another vehicle, a vehicle that was not insured by Indiana Farmers either principally or as an additional covered vehicle.  In other words, had the policy in Speer covered the vehicle operated by the wife that was involved in the collision, I believe the result would have been

different.  

	Finally, I would determine that any resolution of the good faith claim would have been

prematurely determined by the materials before the court on summary judgment, although

the facts ultimately developed may well establish non-liability on that theory.  That is

because, in my view, any liability of Victoria depends upon resolution of the comparative

fault issue that as between Simmons and Koontz, Koontz is liable for the injuries resulting from the collision.  In other words, Victoria is liable, but only liable to the Thomases if and

to the extent that Koontz may be found liable under comparative fault.

	I concur in part and dissent in part.