IN THE

Indiana Supreme Court

Supreme Court Case No. 18S-CT-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 Harris,

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-CT-2015

The Honorable Richard R. Stalbrink, Jr., Special Judge

On Petition to Transfer from the Indiana Court of Appeals,

No. 46A03-1606-CT-1261

Opinion by Justice Goff

Chief Justice Rush and Justices David, Massa, and Slaughter concur.
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Goff, Justice.

This case arises from a tragic accident where an 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 under 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 matter 

to our courthouse door.

Ostensibly, the issue before us remains whether the policy term “others 

we protect” included Harris. But unpacking this broader issue reveals a 

narrower, threshold one—whether “others we protect” is ambiguous and 

amenable to judicial interpretation. Harris’s estate 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. Meanwhile, the 

insurance company insists that, because a separate policy section entitled 

OTHERS WE PROTECT explains 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 

Formco, Inc. (“Formco”), a plastics design and manufacturing company in 

Elkhart County, Indiana. The Declarations Page listed Formco as the only 

Named Insured and no other Additional Insureds. Formco renewed the 

Policy every year from 1994 through 2010, each year keeping itself as the 

lone Named Insured. From 2005 through 2010, the Policy’s “Autos 

Covered” section listed a 2004 Toyota pickup truck (VIN #

5TBBT44134S450733) as a scheduled vehicle. Formco owned the truck and 

allowed its longtime employee Brian Harris to drive it as his primary 
Indiana Supreme Court | Case No. 18S-CT-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 the 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 with 

this UM Endorsement was in effect on August 6, 2010, when tragedy 

befell Formco 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 coverage 

benefits for the accident that killed Harris and damages up to the Policy 

limits.1

 

 1The Estate also sued the truck’s driver (Noel M. Sparks) along with 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. 
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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 not 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.”

The trial court determined 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 Appeals 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 crossmotions for summary judgment neither alters this standard nor changes

our analysis—“we consider each motion separately to determine whether 

the moving party is entitled to judgment as a matter of law.” SCI Propane, 
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LLC, 39 N.E.3d at 677. Matters involving disputed insurance policy terms

present legal questions 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 Formco’s commercial auto policy 

provides coverage for Harris’s death in a motor vehicle accident involving 

an uninsured motorist, when 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 provides 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 motor 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. 
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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 nonowned auto we insure other than:

a. [O]ne you are using that 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[.]”). We are obliged to give defined terms their 

special meanings. 

The parties acknowledge that to receive UMBI benefits Harris must 

qualify as either “you” or “others we protect.” And both parties agree

Harris did not qualify as “you” since he did not meet that definition—he 

was not Formco. 

So 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

interpretations for “others we protect.” In simplest terms, the Estate’s 

offered meaning includes Harris while Erie’s does not. But before we can
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interpret the policy and thereby endorse either party’s proposed meaning, 

there is a necessary threshold inquiry: 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 

construction as other contracts.” State Farm Mut. Auto. Ins. Co. v. 

Jakubowicz, 56 N.E.3d 617, 619 (Ind. 2016). When confronted with a dispute 

over the meaning of insurance policy terms, 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, courts may construe—or ascribe meaning to—ambiguous policy 

terms only. Id.

Our first task, therefore, is to determine whether the policy term 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 810. As we see it, 

failing to define a policy term merely means it has no exclusive special 

meaning, and the courts can interpret it.

But, in that vein, we caution that parties to an insurance contract may 

not invite judicial construction by creating ambiguity. They 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 asserts an interpretation 

contrary to that asserted by the opposing party.” Wagner, 912 N.E.2d at 

810. Rather, insurance policy provisions are ambiguous only if they are 

“susceptible to more than one reasonable interpretation.” Holiday Hosp.

Franchising, Inc., 938 N.E.2d at 578 (emphasis added). 

When evaluating alleged ambiguities—whether there exist two 

reasonable interpretations for one policy term—courts read insurance 

policies “from the perspective of . . . ordinary policyholder[s] of average 
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intelligence.” Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 246–47 (Ind. 

2005). If reasonably intelligent policyholders would honestly disagree on

the policy language’s meaning, then we will find the term ambiguous and 

subject to judicial construction. Id. at 247. Conversely, if reasonably 

intelligent policyholders could 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 the Policy here, the 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, the 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, this 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 defined 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 to
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UMBI benefits even though they are neither “you” (i.e., Formco) nor 

“others we protect” (i.e., listed drivers like Harris).

Faced with these competing proposed interpretations, we must 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 gives meaning to “others we protect.”

Erie proposes that the separate OTHERS WE PROTECT section gives 

meaning to “others we protect” used in the OUR PROMISE section. We 

find this interpretation reasonable, if not inevitable. The phrase “others we

protect” appears only once in the UM Endorsement and is immediately

followed by a section titled with the same three words—OTHERS WE 

PROTECT. We think it eminently reasonable for two phrases consisting of 

identical 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 other words, the section gives meaning 

to the corresponding 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.
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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” 

includes scheduled drivers like Harris while OTHERS WE PROTECT

identifies additional remote claimants that are neither “you” nor “others 

we protect,” we find that proposed interpretation unreasonable on two

fronts. 

First, the Policy language in no way indicates that “others we protect” 

applies to scheduled drivers who would be eligible for coverage. Contrary 

to the Estate’s claims, neither the Declarations pages, nor the Policy, nor 

the UM Endorsement expressly list Harris as a “Named Insured,” 

“Additional Insured,” or even a protected or covered driver. Exhibit 22, 

Appellant’s App. Vol. III, pp. 39–75. Although Formco’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,

pp. 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, 311 (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 insured 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, including 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 

strained interpretation, a policyholder must read additional outside

information into the Policy and UM Endorsement and then draw 

conclusions based on that very information. That strikes us as 

unreasonable. We do not believe an ordinary policyholder would take that 

approach. 
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Second, the Estate’s proposed interpretation necessarily creates no 

fewer than three categories of claimants who could obtain UMBI benefits 

under the UM Endorsement: “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 protect” 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 Estate 

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 types of 

claimants who might qualify as “others we protect”; they include: 

1. Any relative, if you are an individual. 
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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 nonowned auto we insure other than:

a. [O]ne you are using that 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.

Appellant’s App. Vol. II, p. 118. Since “you” is not an individual but 

Formco, Harris cannot meet 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 Formco owned and Erie insured; 

rather, he was occupying his personal riding lawnmower. Finally, Harris 

does not qualify under number three because he 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 

despite Erie’s unartful policy drafting—we simply cannot say that “others 

we protect” is an ambiguous term amenable to judicial interpretation. The 

UM Endorsement itself explains to policyholders who may qualify as 

“others we protect” by including an illustrative list in a prominently 

displayed, stand-alone section entitled OTHERS WE PROTECT. And so
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we believe ordinary policyholders could 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 find 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 the trial court erred in 

finding otherwise and in granting summary judgment to the Estate. We 

therefore reverse the trial court’s judgment and remand with instructions 

to enter summary judgment for Erie.

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

ATTORNEY FOR APPELLA N T

Mark R. Smith 

Smith Fisher Maas Howard & Lloyd, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLE ES

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