IN THE 

# Indiana Supreme Court

Supreme Court Case No. 18S

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- 114 

## Erie Indemnity Company, as Attorney

- in

- Fact for the Subscribers at Erie Insurance Exchange, Appellant (Defendant)



### – v

– 

## Estate of Brian L. Harris, by Its Special Representative, Laura Harris, and Anna Marie Harri s,

Spouse of Brian L. Harris, Deceased
, Appellees (Plaintiffs)

Argued: February 21, 2018 | Decided: June 19, 2018
Appeal from the LaPorte Superior Court 2
No. 46D02

- 1511

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- 2015 The Honorable Richard R. Stalbrink, Jr., Special Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 46A03

- 1606

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- 1261

Opinion by Justice Goff
Chief Justice Rush and Justice s David, Massa, and Slaughter concur

.Indiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 2 of 13 

### Goff, Justice.

This case arises from a tragic accident where a n uninsured driver under the influence of methamphetamine struck and killed Brian Harris who was mowing his home’s lawn near the roadside. Harris’s estate sought
uninsured motorist benefits unde r his employer’s commercial auto policy, claiming he qualified for coverage under the policy term “others we protect .” The insurance company denied the claim, finding Harris was not entitled to coverage under the policy
, and the parties litigated the matte r to our courthouse door.
Ostensibly, the issue before us remains whether the policy term “others

we protect” included Harris

. But unpacking th is broader issue reveals a

narrower , threshold one

— whether “others we protect” is ambiguous and
amenable to judicial interpretation. Harris’s e state urges that because the
term “others we protect” is susceptible to multiple reasonable interpretations it represents an ambiguous term in need of judicial
construction and must be construed in the estate’s favor. Mea nwhile, the insurance company insists that
, because a separate policy section entitled
OTHERS WE PROTECT ex plains who qualifies as “others we protect , ”
the term is unambiguous and impervious to judicial construction. We agree with the insurance company and, therefore, reverse the trial court’s judgment.



## Factual and Procedural History

On December 11, 1993, Erie Insurance Exchange (“Erie”) issued a Pioneer Commercial Auto Policy No

. Q12 1130119 F7 (the “Policy”) to
Form c o, Inc. (“Form c o”), a plastics design and manufacturing company in Elkhart County, Indiana

. The Declarations Page listed Form c o as the only
N amed I nsured and no other A dditional I nsureds. Form c o renewed the Policy every year from 1994 through 2010, ea ch year keeping itself as the
lone N amed I nsured

. From 2005 through 2010, the Policy’s “Autos Covered” section listed a 2004 Toyota p ickup t ruck (VIN # 5TBBT44134S450733) as a scheduled vehicle. Form c o owned the truck and allowed its longtime employee Bria n Harris to drive it as his primaryIndiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 3 of 13 vehicle for personal and business transportation. Like prior iterations, the 2010 Policy included an Uninsured/Underinsured Motorists Coverage
Endorsement

— Indiana (the “UM Endorsement”) that afforded coverage for bodily injury and property damage resulting from an accident with an
uninsured motorist.

In t he UM Endorsement
, Erie promised :

We will pay damages for bodily injury and property damage
that the law entitles you or your legal representative to recover from the owner or operator of an uninsured motor vehicle

. . . . Damages must result from a motor vehicle accident arising out of the ownership or use of the uninsured motor vehicle . . . as a motor vehicle and involve

. . . bodily injury to you or others we protect.

Appellant’s App. Vol. II
, p. 118. Just underneath this promise followed the
section entitled OTHERS WE PROTECT , which listed 4 categories of potential claimants for uninsured motorist benefits

. Id. The Policy wi th this UM Endorsement was in effect on August 6, 2010, when tragedy
befell Form c o employee Brian Harris.
On that summer evening, while operating his personal riding lawnmower at his private residence, Harris was struck and killed by an
uninsured motorist. His estate (the “Estate”) submitted claims for uninsured motorist bodily injury (“UMBI”) and MedPay benefits under the Policy, and Erie subsequently denied those claims. The Estate sued Erie seeking, in part, a declaratory judgment entitling it to UMBI co verage benefits for the accident that killed Harris and damages up to the Policy
limits. 1

1 The Estate also sued the truck’s driver (Noel M. Sparks) along wi th the truck’s owners (Brent and Jamie Stouder) , claiming Sparks negligently drove the truck and the Stouders negligently entrusted their truck to Sparks. When Sparks and the Stouders failed to appear or otherwise respond to the complaint, the trial court entered default judgment against them and awarded the Estate damages in the amount of $4,643,295.00 along with costs.Indiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 4 of 13 Erie eventually moved for summary judgment, arguing, as a matter of law, the Policy did not provide UMBI coverage to the Estate for Harris’s
death because he did no t qualify as “ you , ” “others we protect , ” “ anyone we protect , ” or “persons we protect” under the Policy, including the UM
Endorsement. The Estate countered with a cross

- motion for summary judgment, arguing, as a matter of law, “Harris qualified as ‘others we protect’ under the ‘ OUR PROMISE ’ section of the UM[] Endorsement when he was struck and killed by an uninsured motorist.”

T he trial cour t determin ed the case turned upon whether the phrase
“others we protect” as used in the OUR PROMISE section included
Harris. The court found the phrase ambiguous and construed it in the
Estate’s favor to include Harris. Since the court concluded there were no genuine issues of material fact, it granted summary judgment to the
Estate.
Erie appealed, and the Court of Appea ls affirmed the trial court’s judgment. Erie Indem

. Co. v. Estate of Harris , 80 N.E.3d 923 (Ind. Ct. App. 2017). Like the trial court below, the Court of Appeals found “others we protect” ambiguous and construed it in the Estate’s favor to include
Harris. Id. at 930

– 31. Erie then petitioned for transfer, which we granted
, thereby vacating the Court of Appeals opinion. See Ind. Appellate Rule 58(A). We now reverse and remand with instructions to enter summary judgment for Erie.



## Standard of Review

This Court reviews summary judgments de novo, applying the same
standard as the trial court. SCI Propane, LLC v. Frederick , 39 N.E.3d 675, 677 (Ind. 2015). Summary judgment is appropriate only when the designated evidence shows 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)

. See Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). Parties filing cross

motions for summary judgment neither alters th is standard nor change s our analysis

— “ we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” SCI Propane,Indiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 5 of 13 LLC , 39 N.E.3d at 677. Matters involving disputed insurance policy terms present legal question s and are particularly apt for summary judgment. Wagner v. Yates , 912 N.E.2d 805, 808 (Ind. 2009).



## Discussion and Decision

This matter involves whether Form c o’s commercial auto policy provides coverage for Harris’s death in a motor vehicle accident involving
an uninsured motorist
, whe n Harris was not occupying a scheduled
vehicle . The parties agree this case presents no genuine issue of material fact, and presents only one legal question, that is, the meaning of one term in the Policy’s UM Endorsement

— “ others we protect

. ”

The UM Endorsement provide s in relevant part:

OUR PROMISE

We will pay damages for bodily injury and property damage
that the law entitles you or your legal representative to recover from the owner or operator of an uninsured motor vehicle or underinsured mot or vehicle

.

Damages must result from a motor vehicle accident arising out of the ownership or use of the uninsured motor vehicle or underinsured motor vehicle and involve:

1. [ B ] odily injury to you or others we protect. Bodily injury means physical harm, sickness, disease or resultant death to
a person;

* * *

OTHERS WE PROTECT

1. Any relative , if you are an individual.Indiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 6 of 13 2. Anyone else, while occupying any owned auto we insure other than one being used without the p ermission of the owner.

3. Anyone else who is entitled to recover damages because of bodily injury to any person protected by this coverage.

4. If you are an individual, anyone else while occupying a non owned auto we insure other than:

a. [ O ] ne you are using th at is owned by another resident of
your household.
b. [ O ] ne furnished or available for the regular use of you and any resident of your household.

c. [ O ] ne being operated by anyone other than you or a relative

. Exhibit A, Appellant’s App. Vol. II
, p. 63.
We must first note that words and phrases appearing in bold type throughout the Policy and UM Endorsement are defined terms, informing
the reader those words and phrases have special meaning. Besides appearing in bold type, defined terms are also included in DEFINTIONS
sections throughout the Policy and endorsements. See
, e.g. , Exhibit 1, Appellant’s App. Vol. II
, p. 93 (“Throughout your policy and its endorsement forms, the following words have a special meaning when they appear in bold type [

. ] ”). W e are obliged to give defined terms their special meanings.
The parties a cknowledge that to receive UMBI benefits Harris must qualify as either “ you ” or “others we protect

. ” And both parties a gree Harris did not qualify as “ you ” since he did not meet that definition

— he
was not Form c o.

S o this case narrows to one dispositive legal question: whether Harris qualified as “others we protect” in the Policy’s UM Endorsement. On this question the parties disagree and present us with two opposing interpretation s for “others we protect.” In simplest terms, t he Estate’s offered meaning includes Harris while Erie’s does not. But before we canIndiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 7 of 13 interpret the policy and thereby endorse either party’s proposed meaning, there is a necessary threshold inqui ry : whether “others we protect” is an ambiguous term amenable to judicial construction.



## I. Indiana law instructs that courts may construe only ambiguous policy terms and provisions.

Insurance policies are contracts “ subject to the same rules of judicial

c onstruction as other contracts. ” State Farm Mut. Auto

. Ins. Co. v. Jakubowicz , 56 N.E.3d 617, 619 (Ind. 2016). When confron ted with a dispute

over the meaning of insurance policy term s , Indiana courts afford clear and unambiguous policy language its plain, ordinary meaning

. Holiday Hosp

. Franchising, Inc. v. AMCO Ins. Co. , 983 N.E.2d 574, 577 (Ind. 2013). By

contrast , c ourts may construe

— or ascribe meaning to

— ambiguous policy

terms only

. Id.

Our first task , therefore, is to de termine whether the policy ter m at
issue is ambiguous. We have said “that failure to define a term in an insurance policy does not necessarily make it ambiguous” and thus subject to judicial construction. Wagner , 912 N.E.2d at 8 10. As we see it,
f ailing to define a policy term merely m eans it has no exclusive special meaning
, and the courts can interpret it

.
But , in that vein, we caution that p arties to an insurance contract may
not invite judicial construction by creating ambiguity. T hey may not make a term ambiguous by simply offering different policy interpretations. Cf. Puryear v. Progressive N

. Ins. Co. , 790 N.E.2d 138, 141 (Ind. Ct. App. 2003). In other words, ambiguity does not arise from mere disagreement over a policy term’s meaning

— that is, where “one party a sserts an interpretation contrary to that asserted by the opposing party.” Wagner , 912 N.E.2d at
810. Rather, i nsurance policy provisions are ambiguous only if they are “susceptible to more than one reasonable interpretation.” Holiday Hosp

. Franchising, In c. , 9 38 N.E.2d at 578 (emphasis added)

. When evaluating alleg ed ambiguities

— whether there exist two reasonable interpretations for one policy term

— courts read insurance policies “from the perspective of

. . . ordinary policyholder [s] of averageIndiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 8 of 13 intelligence

. ” Allgood v. Meridian Sec. Ins. Co. , 836 N.E.2d 243, 246

– 47 (Ind. 2005)

. I f reasonably intelligent policyholder s would honestly disagree on the policy language’s meaning
, then we will find the term ambiguous and subject to judicial constructio n. I d. at 247

. Conversely, if reasonabl y intelligent policyholders c ould not legitimately disagree as to what the policy language means, we deem the term unambiguous and apply its plain ordinary meaning.
With these considerations in mind, we turn now to the instant Policy
and UM Endorsement.



## II. The policy term “others we protect” is susceptible to only one reasonable interpretation, so it is not ambiguous and not subject to judicial construction.

As for th e Policy here, t he parties present two differing interpretations for “others we protect.” On one hand, Erie insists “others we protect” carries the meaning outlined in the OTHERS WE PROTECT section directly beneath the OUR PROMISE section, therefore making the phrase unambiguous and impervious to judicial construction. At first blush, this interpretation seems reasonable.

On the other hand, t he Estate reasons that “others we protect” includes “individuals such as Mr. Harris who were specifically listed in the Erie Policy for purposes of protection and coverage.” While this proposed interpretation appears initially to be a reasonable one, it simply is not reasonable because it requires OTHERS WE PROTECT to mean something different from “others we protect.” To be sure, t h is proposed interpretation depends upon the premise that the separate OTHERS WE
PROTECT section cannot and does not define the phrase “others we protect” in the OUR PROMISE section because “others we protect” does

not meet the criteria for d efined terms

— it is not bolded and does not appear in a DEFINITIONS section

. The Estate ’s interpretation, therefore
, imputes a separate meaning to OTHERS WE PROTECT , specifically that
the separate section identifies remote claimants who might be entitled toIndiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 9 of 13 UMBI benefits even though they are neither “ you ” (i.e., Form c o) nor
“others we protect” (i.e., listed drivers like Harris).

Faced with these competing proposed interpretations, we mus t assess whether both are reasonable from the standpoint of an ordinary policyholder before diving into judicial construction

. We consider each interpretation in turn

.



### A. It is reasonable to conclude that OTHERS WE PROTECT gi ves meaning to “others we protect.”

Erie propose s that the separate OTHERS WE PROTECT section gives meaning to “others we protect” used in the OUR PROMISE section . W e find this interpretation reasonable , if not inevitable

. The phrase “others we protect” appears only once in the UM Endorsement and is imm ediately followed by a section titled with the same three words

— OTHERS WE
PROTECT

. We think it e minently reasonable for two phrases co nsisting of
iden ti cal words and located near one another to share the same meaning.
While it is not a “definition” per se , the proximity and similarity between the phrases make it is reasonable to understand that the OTHERS WE
PROTECT section serves as an explanatory list outlining who can be
included in “others we protect.” In o ther words, t he section gives meaning
to the co rresponding phrase. Erie could have (and probably should have)
removed any doubt as to the phrase’s meaning by making “others we protect” a defined term rather than a standalone section. But for whatever reason, it did not and invited this litigation. Erie ’s drafting miscues notwithstanding, we still think it obvious that OTHERS WE PROTECT gives meaning to “others we protect

. ” And more importantly, we believe ordinary policyholders , looking at the four corners of the Policy, would agree that “others we protect” means OTHERS WE PROTECT

. We therefore find Erie’ s proffered interpretation a reasonable one

.Indiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 10 of 13 

### B. The Estate’s proposed interpretation for “others we protect” is unreasonable.

As for the Estate’s twofold view that the phrase “others we protect”
incl udes scheduled drivers like Harri s while OTHERS WE PROTECT
identifies additional remote claimants that are n either “ you ” n or “others

we protect , ” we find that proposed interpretation unreasonable on t wo fronts.

First, the Pol icy language in no way indicates that “others we protect” applies to scheduled drivers who would be eligible for coverage

. C ontrary to the Estate’s claims, neither the Declarations pages, nor the Policy
, nor the UM Endorsement expressly list Harris as a “Named Insured,”
“Additio nal Insured
, ” or even a protected or covered dri ver. Exhibit 22, Appellant’s App. Vol. III
, p p. 39

– 75

. Although Form c o’s initial application for a commercial auto policy included Harris’s name as a “driver
, ” Exhibit C, Appellant’s App. Vol. II, p. 70 , and Erie’s subsequent underwriting
documents listed Harris as a scheduled driver
, Appellant’s App. Vol. III
, p p. 77

- 80, ¶¶ 9

– 29, those documents do not transform a listed driver into an insured or a person covered or protected under the UM Endorsement. Cf. Little v. Progressive Ins. , 783 N.E.2d 307, 31 1 (Ind. Ct. App. 2003) (citation omitted) ( quoting Couch on Insurance for the maxim that the “regular use of the vehicle, despite additional premiums charged for such use, is not given the status of a named ins ured where such a person is not so named in the policy”) ; Puryear , 790 N.E.2d at 140

– 41 (quoting Millspaugh v. Ross , 645 N.E.2d 14, 16

– 17 (Ind. Ct. App. 1994) ) (“That [the plaintiff] is listed as the principal driver, while relevant for other purposes, inc luding the amount of premiums to be paid, does not transform him into a person qualified for compensation under the uninsured motorist provision of the policy.” )

. To arrive at the Estate’s
strain ed interpretation, a policyholder must read additional outsid e information into the Policy and UM Endorsement and then draw
conclusions based on that very information. That strikes us as

un reasonable. We do not believe an ordinary policyholder would take that approach.Indiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 11 of 13 Second, t he Estate’s proposed interpretation necessarily creates no fewer than three categories of claimants who could obtain UMBI benefits
under the UM Endorsemen t : “ you , ” “others we protect , ” and “ OTHERS
WE PROTECT

. ” We see immediately that this view produces two categories that have the same name but different meanings. For example, the phrase “others we protect” would seemingly include any person identified in an application or underwriting documents while OTHERS
WE PROTECT would include even more remote, additional people who
could be covered depending on the situation or their relationship to

“ you

. ” We do not believe an ordinary policyholder would understand the same phrase to have these different meanings, especially when there exists
a self

- contained explanation on the same page of the endorsement. As we see it, and as an ordinary policyholder would likely see it, the Estate’s proposed interpretation injects needless conflict and confusion into the policy concerning two closely related if not identical terms

— i.e., “others

we prote ct” versus OTHERS WE PROTECT

. Consequently, we conclude that the Estate’s interpretation of “others we protect” is unreasonable.
Since we have not been presented with two reasonable interpretations
of “others we protect, ” as a matter of law, we cannot say the phrase is ambiguous
, and we cannot judicially construe it. Instead, we move forward in our analysis by giving “others we protect” its plain meaning as
found in the OTHERS WE PROTECT explanatory section.



## III. Under these facts and circumstances, the E state cannot receive UMBI benefits based on Harris’s death.

As we said before , the parties agreed that Harris could receive UMBI
benefits under the UM Endorsement only if he qualified as “others we protect

. ” The OTHERS WE PROTECT section outlines four ty pes of
claimants who might qualify as “others we protect” ; they include:

1. Any relative , if you are an individual.Indiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 12 of 13 2. Anyone else, while occupying any owned auto we insure other than one being used without the permission of the owner.

3. Anyone else who is entitled to recover damages because of bodily injury to any person protected by this coverage.

4. If you are an individual, anyone else while occupying a non owned auto we insure other than:

a. [ O ] ne you are using that is owned by another resident of
your hous ehold.
b. [ O ] ne furnished or available for the regular use of you and any resident of your household.

c. [ O ] ne being operated by anyone other than you or a relative

. Appellant’s App. Vol. II
, p . 118. S ince “ you ” is not an individual but
Form c o, Harris can not me et either number one or number four. Next, Harris does not qualify under number two because , at the time of the accident, he was not occupying an auto Form c o owned an d Erie insured ; rather, he was occupying his personal riding lawnmower. Finally, Harris does not qualify under number three because h e is not entitled to recover benefits based on bodily injury to someone else

. Applying these categories, we cannot say Harris qualified as “others we protect” under
the UM Endorsement.



## Conclusion

Brian Harris died in a tragic , senseless accident
, and his Estate understandably sought UMBI compensation from Erie to fill the resulting
financial void. But despite the sympathy we have for the Estate and
d espite Erie’s u nartful policy drafting

— we simply canno t say that “others

we protect” is an ambiguous term amenable to judicial interpretation. The
UM Endor s ement itself explains to policyholders who may qualify as
“others we protect” by including a n illustrative list in a prominently displayed, stand

- alone section entitled OTHERS WE PROTECT

. And soIndiana Suprem e Court | Ca se No. 18S

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- 114 | June 19, 2018 Page 13 of 13 w e believe ordinar y policyholder s c ould not honestly disagree as to the term’s meaning. They would agree that the OTHERS WE PROTECT section gives meaning to “others we protect , ” rather than creating a third group of remote claimants.

Because we fin d the disputed policy term “others we protect” unambiguous
, we cannot construe it and must give it the plain meaning
found within the UM Endorsement. Accordingly, as a matter of law, Brian
Harris did not qualify as “others we protect” under the UM Endorsement in his employer’s commercial auto policy when he was tragically struck and killed by an uninsured motorist. We hold t he trial court erred in finding otherwise and in granting summary judgmen t to the Estate. We therefore reverse the trial court’s judgment and remand with instructions

to enter summary judgment f o r Erie.



### Rush, C.J., and David, Massa, and Slaughter, JJ., concur

.

ATTORNEY FOR APPELLA N T Mark R. Smith
Smith Fisher Maas Howard & Llo yd, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELL E E S
Scott M. Keller Michael J. Anderson Tracey S. Schafer Anderson, Agostino & Keller, P.C. South Bend, Indiana

ATTORNEY FOR AMICUS CURIAE INSURANCE INS TITUTE OF
INDIANA, INC. Bryan H. Babb Bose McKinney & Evans LLP Indianapolis, Indiana