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Tate v. Secura Ins.

Supreme Court of Indiana

February 28, 1992

Supreme Court No. 49S02-9202-CV-135

Opinion

 [*666]  Plaintiff-appellant Thomas Tate seeks transfer to this Court following the decision of the Court of Appeals affirming summary judgment for Secura Insurance, A Mutual Company, the defendant-appellee, as to the interpretation to be given an automobile insurance policy providing underinsured motorists coverage. Tate v. Secura Insurance (1990), Ind. App., 561 N.E.2d 814.

 [*667]  Tate was seriously injured as he was providing assistance to a car stalled in the parking lane of an Indianapolis street when it was struck by a vehicle operated by an intoxicated driver. Tate settled with the driver's insurance company for $ 50,000, the maximum payable under the driver's bodily injury liability coverage. With [**2]  alleged preliminary medical expenses already in excess of $ 60,000, past and future income losses, permanent impairment, and the possibility of future amputation, Tate claimed that the reasonable value of his total damages was in excess of $ 100,000 and asserted a claim under the underinsured motorists provision of his own automobile insurance policy with Secura, which denied the claim. Tate's law suit for breach of contract ensued, resulting in summary judgment in favor of Secura, and the Court of Appeals affirmed. We now grant Tate's petition for transfer.

Secura contends, and we agree, that the summary judgment should be affirmed if the trial court was correct upon any one of the of the following potentially dispositive issues:

1. whether Tate is entitled to receive up to $ 50,000 under his Secura underinsured motorists coverage with $ 50,000 limits where his total damages exceed the tortfeasor's $ 50,000 bodily injury liability insurance limits;

2. whether Tate's claim is precluded for failure to comply with the provisions requiring exhaustion of applicable bodily injury liability insurance; and

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587 N.E.2d 665 *; 1992 Ind. LEXIS 73 **

THOMAS TATE, Appellant (Plaintiff Below), v. SECURA INSURANCE, A MUTUAL COMPANY Appellee (Defendant Below).

Prior History:  [**1]  APPEAL FROM THE MARION COUNTY SUPERIOR COURT. The Honorable Gerald S. Zore, Judge. Cause No. S787-0918. Court of Appeals No. 49A02-8906-CV-288

CORE TERMS

coverage, tortfeasor, insured, underinsured motorist, limits, settlement, bodily injury liability, estoppel, damages, underinsured motor vehicle, amount payable, subrogation rights, summary judgment, bodily injury, underinsured, limitation of liability, coverage limits, implied waiver, total damage, provisions, contends, legally entitled to recover, liability coverage, insurance policy, insured person, negotiations, exhaustion, motorist, rights

Contracts Law, Defenses, Ambiguities & Mistakes, General Overview, Insurance Law, Policy Interpretation, Parol Evidence, Extrinsic Evidence, Claim, Contract & Practice Issues, Ambiguous Terms, Construction Against Insurers, Ordinary & Usual Meanings, Plain Language, Question of Law, Third Parties, Subrogation, Subrogation, Contractual Subrogation, Torts, Settlements, Multiple Party Settlements, Partial Settlements, Estoppel & Waiver, Late Premiums & Nonpayment, Procedural Matters, Consideration, Enforcement of Promises, Criminal Law & Procedure, Reviewability, Waiver, Admission of Evidence, Waiver, Commercial General Liability Insurance, Obligations of Parties, Settlements, Liability & Performance Standards, Notice to Insurers