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.

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

T. EDWARD PAGE RICHARD L. McOMBER

Thiros and Stracci, PC DAVID I. RUBIN

Merrillville, Indiana Harrison & Moberly, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ERIC GARVER, BRIAN GARVER, and )

DAWN SHEPHERD, )

)

Appellants-Defendants, )

)

vs. ) No. 64A03-1307-PL-292

)

IDS PROPERTY CASUALTY )

INSURANCE COMPANY, )

)

Appellee-Plaintiff. )

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable William E. Alexa, Judge

Cause No. 64D02-1207-PL-7045

June 24, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION
2

ROBB, Judge

Case Summary and Issues

Eric Garver, Brian Garver, and Dawn Shepherd (collectively, “the Garvers”)1 appeal 

the trial court’s grant of summary judgment in favor of IDS Property Casualty Insurance 

Company (“IDS”) and its denial of the Garvers’ summary judgment motion. The Garvers 

raise two issues for our review, which we restate as: whether the Garvers’ claim under the 

IDS automobile insurance policy is subject to the per person limit of $250,000 or per accident

limit of $500,000; and whether their claim is excluded from coverage under the IDS 

homeowner insurance policy. Concluding the trial court correctly determined the policy limit 

at $250,000 and the homeowner policy excluded further payment of damages claimed by the 

Garvers, we affirm.

Facts and Procedural History

On October 22, 2011, Eric was at Colin Colvin’s home with Colvin’s minor son, A.C. 

Colvin was home, but elsewhere in the house, when A.C. and his younger brother allegedly 

consumed beer from their father’s bar. During the early hours of October 23, A.C. took the 

keys to his father’s BMW and drove himself, his brother, Eric, and another friend to a nearby 

town. A.C. crashed the car into a clump of trees, and Eric was severely injured in the 

accident. Colvin had both an automobile insurance policy (“auto policy”) and a homeowner 

insurance policy (“homeowner policy”) with IDS at the time of the accident. It is undisputed 

that Colvin and A.C. each qualified as an “insured person” under the terms of each policy. 

 

1 Eric is Brian and Dawn’s son, who was a minor at the time of the accident. 
3

The auto policy provided that bodily injury liability coverage under the policy was limited to 

$250,000 for each person and $500,000 for each accident. The relevant language of the auto 

policy is as follows:

Definitions Used Throughout this Policy

Bodily injury means bodily harm, sickness or disease, including death that 

results. . . . 

***

Limits of Liability 

The bodily injury liability limit for each person is the maximum we will pay as 

damages for bodily injury, including damages for care and loss of service, to 

one person in one occurrence. . . .We will pay no more than these maximums 

regardless of the number of vehicles described in the declarations, insured 

persons, claims, claimants, policies or vehicles involved in the occurrence. 

***

Additional Definitions Used In This Part Only

Insured person means . . . any other person occupying your insured car while 

being used by you, a relative or another person if that person has a reasonable 

belief of having permission to use the car.

Amended Appellants’ Appendix at 39-42. The homeowner policy personal liability coverage 

was limited to $300,000 per occurrence and medical payments to others was limited to 

$2,000 per person. The relevant language of the homeowner policy is as follows:

Definitions Used Throughout this Policy

Bodily injury means bodily harm, sickness or disease, and includes required 

care, loss of services and resulting death. 

***

Personal Liability Coverage

We will pay all sums arising out of any one occurrence which an insured 

person becomes legally liable to pay as damages because of bodily injury or 

property damage covered by this policy. . . . 

Medical Payments to Others Coverage

We will pay the reasonable expenses incurred for medical, surgical, x-ray and 

dental services, prosthetic devices, eye glasses, hearing aids and 

pharmaceuticals, and ambulance, hospital, licensed nursing services and 

funeral services. . . . 
4

Each person who sustains bodily injury is entitled to this protection when that 

person is: . . . (2) elsewhere, if the bodily injury: a) arises out of a condition on 

the insured premises . . . b) is caused by the activities of an insured person. . . . 

***

Exclusions

Under Personal Liability Coverage and Medical Payments to Others Coverage, 

we do not cover . . . [b]odily injury or property damage arising out of the 

ownership, maintenance, use, operation, loading or unloading of or 

entrustment to anyone by an insured person of or parental liability imposed by 

law for the actions of a minor using . . . a land motor vehicle designated for use 

on public roads . . . owned or operated by or rented or loaned to an insured 

person.

Appendix at 62, 72-73. 

In April 2012, the Garvers filed suit against Colvin for damages arising out of this 

accident, including claims for Eric’s physical injuries and Brian’s and Dawn’s loss of 

services. In July 2012, IDS filed a complaint for declaratory judgment against the Garvers to 

determine the award the Garvers might receive based on policy limits. IDS then filed a 

motion for summary judgment on its complaint, and the Garvers filed a cross-motion for 

summary judgment. On May 3, 2013, the trial court held a hearing on the motions for 

summary judgment and eventually granted summary judgment in favor of IDS, determining 

the coverage under the auto policy was limited to $250,000 and there was no coverage under 

the homeowner policy. The Garvers now appeal. 

Discussion and Decision

I. Standard of Review

We apply the same standard of review as the trial court when we review a motion for 

summary judgment ruling on appeal. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 
5

N.E.2d 1099, 1110 (Ind. 2012), cert. denied, 133 S. Ct. 2022 (U.S. 2013). Summary 

judgment is appropriate when there is no genuine issue of material fact and the moving party 

is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The party that lost before 

the trial court has the burden of persuading us on appeal that the trial court erred in its ruling 

on summary judgment. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009). The 

interpretation of an insurance policy is a question of law. Id. When the policy language is 

clear and unambiguous, we will give the language its plain and ordinary meaning. Illinois 

Farmers Ins. Co. v. Wiegand, 808 N.E.2d 180, 184 (Ind. Ct. App. 2004), trans. denied. We 

interpret policy terms from the perspective of an ordinary policyholder of average 

intelligence. Bradshaw, 916 N.E.2d at 166. When, as here, the claimant is a third party and 

not the insured under the contract, we determine the general intent of the contract from a 

neutral stance. Burkett v. Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind. Ct. App. 2000). 

II. Auto Policy Limits

Brian and Dawn argue their claims for loss of service are separate and distinct injuries 

from those suffered by Eric during the accident, and the $500,000 per accident limitation, 

instead of the $250,000 per person limitation, should apply. They contend the following 

language, particularly the phrase “each person,” from the auto policy is ambiguous: “The 

bodily injury liability limit for each person is the maximum we will pay as damages for 

bodily injury, including damages for care and loss of service, to one person in one 

occurrence.” Appendix at 41. This ambiguity, they argue, may be read to mean that the 

“each person” limitation is the maximum that will be paid to one person based on a bodily 
6

injury, but that there may be many claims (up to the maximum $500,000) based on one 

person’s bodily injury. We disagree.

In Medley v. Frey, 660 N.E.2d 1079 (Ind. Ct. App. 1996), trans. denied, Charles and 

Mary Medley were in an automobile accident. Charles, who was Mary’s caretaker, was 

permanently injured. In addition to their claims for physical injuries, Mary sued for loss of 

consortium since Charles could no longer care for her. The automobile liability policy at 

issue stated: “The limit of liability shown in the Declarations for each person for Bodily 

Injury Liability is our maximum limit of liability for all damages, including damages for care, 

loss of services or death, arising out of ‘bodily injury’ sustained by any one person in any one 

accident.” Id. at 1080-81. Bodily injury was defined as “bodily harm, sickness or disease, 

including death that results,” and loss of consortium and services was not a bodily injury as 

defined in the policy. Id. at 1080.

This court reasoned that by the terms of the insurance policy, Mary’s claim for loss of 

consortium was not an independent bodily injury, but instead arose out of Charles’s bodily 

injury and the per person limit, not the per accident limit, applied. Id. at 1081. Central to the 

decision was the definition of bodily injury, 

noting that [w]here the automobile liability policy includes loss of consortium 

or loss of services in the definition of ‘bodily injury,’ courts have logically 

concluded that the deprived-spouse’s loss of consortium claim is a distinct 

‘bodily injury’ and is not subject to the per person liability limit applicable to 

the injured-spouse, but is a separate ‘bodily injury’ within the meaning of the 

policy. 

State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654, 658 (Ind. 2008) (quoting 

Medley, 660 N.E.2d at 1081 n.1) (quotation marks omitted).
7

The Garvers try to distinguish the Medley policy language from the IDS auto policy 

language based on the structure of the sentence in the policy. However, we find no 

meaningful difference that distinguishes this case from Medley. Here, as with loss of 

consortium in Medley, loss of services was not contained within the definition of bodily 

injury, and in fact, damages for loss of services were specifically included in the maximum 

limit of liability for each person. Brian’s and Dawn’s claims for loss of services arose out of 

the bodily injury Eric sustained and are therefore subject to the $250,000 per person 

limitation. 

III. Homeowner Policy Limits

The Garvers argument to recover under the homeowner policy is not that the motor 

vehicle was negligently entrusted by Colvin to A.C. Rather, they argue Colvin negligently 

failed to supervise A.C. by not preventing him from drinking alcohol at the home and by not 

preventing A.C. from operating Colvin’s vehicle as required by law.2 The Garvers further 

argue the homeowner policy does not exclude liability for the claim that A.C. gained 

unsupervised access to the vehicle at the home as a result of Colvin’s negligence. The 

Garvers recognize the weight of controlling authority under similarly-worded homeowner 

policies is that a negligent entrustment claim is excluded from coverage where the alleged 

injury would not have resulted but for the use of the motor vehicle. See, e.g., Wiegand, 808 

N.E.2d at 191; Wright v. American States Ins. Co., 765 N.E.2d 690, 697 (Ind. Ct. App. 

2002). They argue that a negligent supervision claim is distinguishable when the driver does 

 

2 A.C. only had his learner’s permit and was prohibited by law from operating a motor vehicle unless 

accompanied by a licensed driver at least twenty-one years old. See Ind. Code § 9-24-7-4.
8

not have permission or authority to drive, but cite no authority on this point. 

We find Wiegand and Sharp v. Indiana Union Mut. Ins. Co., 526 N.E.2d 237 (Ind. Ct. 

App. 1988), trans. denied, instructive. In Wiegand, Kayla Wiegand was driving a friend’s 

all-terrain vehicle (“ATV”) and her friend, Emily Slaughterbeck, drove the Wiegands’ ATV. 

Emily crashed the ATV into a tree and suffered traumatic brain and facial injuries. Emily’s 

parents filed a complaint for damages, alleging in part that Kayla’s parents negligently 

supervised the ATV’s operation. The Wiegands had a homeowner policy which specified: 

We do not cover: . . . Motor vehicles, including their parts or accessories while 

in or on any motor vehicle. . . .We do not cover bodily injury, property damage

or personal injury which . . .

7. results from the ownership, maintenance, use, loading or unloading 

of...motor vehicles

8. results from the entrustment of . . . motor vehicles. . . .Entrustment means 

the permission you give to any person other than you to use any . . . motor 

vehicles . . . owned or controlled by you.

808 N.E.2d at 182-83 (emphasis omitted). This court held that “a negligent supervision 

claim, like the one here, is excluded from coverage where the injury would not have resulted 

but for the use of the motor vehicle.” Id. at 191. The negligent supervision claim was 

excluded by the policy because without the use of the ATV, there would have been no claim 

for negligent supervision. Id.

In Sharp, Richard Leinenbach drank alcohol over a two-day period within the confines 

of his home. Leinenbach then drove his vehicle on a state highway and crashed head-on into 

the Sharps’ vehicle. Leinenbach had a homeowners insurance policy, which contained an 

automobile exclusion: “Coverage E-Personal Liability and Coverage F-Medical Payments to 

Others do not apply to bodily injury or property damage: (c) arising out of the ownership, 
9

maintenance, use, loading or unloading of: . . . (2) a motor vehicle, owned or operated by, or 

rented or loaned to any insured . . .” 526 N.E.2d at 239 (emphasis omitted). The Sharps 

argued Leinenbach’s intoxication was a separate and independent cause of Sharp’s injuries 

and coverage should not be excluded under the policy. Id. at 240. The court assumed for 

argument’s sake drinking to the point of intoxication in one’s own home constituted 

negligence and held that still was not enough to overcome the automobile exclusion as a 

separate cause of action because his drinking did not cause any injury which was independent 

of the use of the motor vehicle. Id.

Eric was injured in the car accident due to A.C. driving into a clump of trees. Eric had 

no injury that was independent of A.C.’s use of the vehicle. Because the efficient and 

predominant cause of Eric’s injuries was A.C.’s use of the automobile, the harm from the 

negligent supervision was “inextricably intertwined” with the use of the vehicle, and any 

claims based on negligent supervision of A.C. are subject to the automobile use exclusion 

under the homeowners policy. Wiegand, 808 N.E.2d at 191.

Conclusion

Concluding the trial court correctly determined the auto policy limit at $250,000 and 

the homeowner policy excluded further payment of damages, we affirm.

Affirmed. 

RILEY, J., and BRADFORD, concur.