COURT OF APPEALS OF INDIANA
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:
DAVID L. TAYLOR JAMES O. McDONALD
THOMAS R. HALEY III Everett, Everett & McDonald
JOSEPH A. SAMRETA Terre Haute, Indiana
Jennings Taylor Wheeler & Bouwkamp
AUTO-OWNERS INSURANCE COMPANY, )
JON HARVEY and MISTY JOHNSON, as )
Co-Personal Representatives of the Estate of )
BRANDY NICOLE HARVEY, ) No. 83A01-0309-CV-343
TOBY MICHAEL GEARHEART, )
APPEAL FROM THE VERMILLION CIRCUIT COURT
The Honorable Bruce V. Stengel, Judge
Cause No. 83C01-0210-CT-43
August 20, 2004
OPINION - FOR PUBLICATION
Appellant-defendant Auto-Owners Insurance Company (Auto-Owners) appeals the denial of its motion for summary
judgment in its case against appellees-plaintiffs Jon Harvey and Misty Johnson, the co-personal
representatives for the estate of Brandy Nicole Harvey (Brandy). Though Auto-Owners raises
five issues for appeal, we need only address one: was there an
occurrence upon which to predicate liability coverage under the insurance policy? We
hold that there was not and, thus, reverse the trial court and remand
with instructions to enter summary judgment in favor of Auto-Owners.
The facts most favorable to Harvey and Johnsonthe non-moving partiesreveal that on August
1, 2001, Brandy and Toby Gearheart met through mutual friends in Cayuga, Indiana.
They met once again on August 15, 2001, while visiting with a
group of friends at a laundromat in Cayuga. At about 11:30 p.m.,
Brandy asked Gearheart for a ride. The pair ended up at the
Lodi Boat Ramp on the Wabash River.
At the boat ramp, Brandy and Gearheart started making out, and then they
started having sexual contact intercourse. Appellants App. p. 170. After a
matter of minutes, however, Brandy told Gearheart to stop and nudged his shoulder.
Both Brandy and Gearheart stood up. At this point, the couple
was about seven feet from the water, and Gearhearts back was to the
side of the boat ramp, where rocks were piled. To Gearhearts right
was the launch where boats could be backed into the water. Brandy
pushed [Gearheart] once and she pushed [Gearheart] twice, and then when she [attempted
to push Gearheart] again, [he] turned around and pushed her and she went
into the water. Appellants App. p. 175. Gearheart heard a little
bit of splashing but could not see Brandy in the water. Appellants
App. p. 180. Gearheart did not enter the water because he could
not swim. Gearheart dressed and threw Brandys clothing into the water because
he was scared and because he was attempting to cover [his] tracks.
Appellants App. p. 182. As a result of the incident, Brandy drowned,
and her body was found several days later.
On June 10, 2002, Gearheart pleaded guilty to involuntary manslaughter, a class C
felony. Thereafter, on July 9, 2002, the trial court accepted Gearhearts guilty
plea, entered judgment against him, and ordered him to serve eight years in
the Department of Correction.
On July 25, 2002, Harvey and Johnson filed a wrongful death action against
Gearheart, alleging that Gearhearts negligence and recklessness had caused Brandys death. Appellees
App. p. 1. Thereafter, on October 31, 2002, Harvey and Johnson filed
a declaratory action against Auto-Owners, claiming that an Auto-Owners homeowners insurance policy purchased
by Gearhearts parents obligate[d] Auto Owners Insurance Company to pay any judgment which
may be entered against Gearheart. Appellants App. p. 14.
On May 5, 2003, Auto-Owners filed a motion for summary judgment wherein it
argued that no genuine issue of material fact remained for trial and that
it was entitled to judgment as a matter of law. Specifically, Auto-Owners
contended that because Gearheart intentionally pushedas demonstrated by his convictionBrandy into the water,
there was no coverage under the insurance policy because there was not an
occurrence, defined by the policy as an accident. Appellants App. p. 104.
Auto-Owners noted that public policy was served by such a requirement in
the insurance policy to avoid a situation wherein insurance coverage would be provided
to an intentional tortfeasor.
Harvey and Johnson, in opposing Auto-Owners motion for summary judgment, noted that Indiana
law required that for an event to be intentional, a tortfeasor had to
have committed an act although he was consciously aware that the harm caused
by his actions was practically certain to occur. Appellants App. p. 394.
Harvey and Johnson claimed that genuine issues of material fact remained as
to whether Gearheart was consciously aware of the harm that his actions would
cause and whether Gearhearts intellect was so diminished as to prevent him from
understanding that his act of pushing Brandy would cause her injury.
On July 11, 2003, the trial court denied Auto-Owners motion for summary judgment,
finding only that there is a material question of fact such that the
Defendant, Auto-Owners Insurance Company is not entitled to judgment as a matter of
law. Appellants App. p. 699. On August 8, 2003, Auto-Owners petitioned the
trial court to certify its ruling for interlocutory appeal, and the trial court
granted Auto-Ownerss request on August 18, 2003. We accepted jurisdiction over this
cause on September 6, 2003, and Auto-Owners filed its notice of appeal on
October 20, 2003.
DISCUSSION AND DECISION
I. Standard of Review
Initially, we note that the party appealing from a summary judgment decision has
the burden of persuading the court that the grant or denial of summary
judgment was erroneous. Severson v. Bd. of Tr. of Purdue Univ., 777
N.E.2d 1181, 1188 (Ind. Ct. App. 2002). Summary judgment is appropriate only
if the pleadings and designated evidence show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C). On a
motion for summary judgment, all doubts as to the existence of material issues
of fact must be resolved against the moving party. Owens Corning Fiberglass
Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind. 2001).
Additionally, we have held that insurance policies are subject to the same rules
of construction as are other contracts; construction of a written contract is
a question of law for which summary judgment is particularly appropriate. Jackson
v. Jones, 804 N.E.2d 155 (Ind. Ct. App. 2004). Summary judgment based
on an insurance contract is a legal determination that the contract is unambiguous
and that the rules of contract construction need not be employed to ascertain
the contracts meaning. Id. If an insurance policy is unambiguous, it
must be enforced per its terms. Id. An insurance policy will
be considered ambiguous only if a reading of the contract could lead reasonable
people to differ as to the meaning of its terms. Id.
Finally, while insurers are free to limit coverage, exceptions, limitations, and exclusions must
be plainly expressed. Id.
Auto-Owners claims that its policy does not provide coverage for Gearheart in this
case because of the absence of an occurrence, defined in the policy as
an accident. Auto-Owners notes that Gearheart pleaded guilty to involuntary manslaughter, a
crime requiring an intentional act as a predicate offense. Accordingly, Auto-Owners claims,
an accident could not have occurred because Gearheart acted intentionally.
The insurance policy issued by Auto-Owners provides personal liability protection for an insured
if bodily injury or property damage [is] caused by an occurrence to which
this coverage applies. Appellants App. p. 33. The DEFINITIONS section of
the policy specifically defines occurrence as an accident that results in bodily injury
or property damage and includes, as one occurrence, all continuous or repeated exposure
to substantially the same generally harmful conditions. Appellants App. p. 22.
We have defined an accident as an unexpected happening without an intention or
design. Terre Haute First Natl Bank v. Pacific Employers Ins. Co., 634
N.E.2d 1336, 1338 (Ind. Ct. App. 1993). Accordingly, a key question in
this case is whether Gearheart acted in such a manner as to preclude
a finding that Brandys death was brought about without an intention or design.
III. Gearhearts Mental State
Auto-Owners reasons that because Gearheart pleaded guilty to involuntary manslaughterwith battery as the
predicate offenseGearhearts mens rea has been judicially established. Our involuntary manslaughter statute,
Indiana Code section 35-42-1-4(c) reads:
A person who kills another human being while committing or attempting to commit:
(1) a Class C or Class D felony that inherently poses a risk
of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily
injury; or (3) battery;
commits involuntary manslaughter, a Class C felony.
Thus, involuntary manslaughter is not a specific intent crime, as the defendant need
not intend to kill the victim. Minton v. State, 244 Ind. 636,
638, 195 N.E.2d 355, 356 (1964). The intent that must be shown is
the intent required by the predicate offense. McEwen v. State, 695 N.E.2d
79, 86 (Ind. 1998). The evidence presented in this case sounds in
battery, and our battery statute states that a defendant commits battery if he
knowingly or intentionally touches another person in a rude, insolent, or angry manner.
Ind. Code § 35-42-2-1 (emphasis added). Indiana Code section 35-41-2-2 states
that a person acts intentionally if, when he engages in the conduct, it
is his conscious objective to do so.
When pleading guilty to involuntary manslaughter, Gearheart specifically admitted to the proposition that
he knowingly or intentionally, id., touched Brandy inasmuch as the plea agreement expressly
stated that he acknowledges that entry of a guilty plea pursuant to this
Agreement constitutes an admission of the truth of all facts alleged in the
charge or charges. Appellants App. p. 159.
Here, despite Gearhearts guilty plea, Harvey and Johnson claim that the matter of
Gearhearts mental state at the time of the crime is a question of
fact for trial. Specifically, Harvey and Johnson claim that because Gearheart may
not have pushed Brandy with an intent to injure her, a question of
fact exists as to whether Gearhearts actions constituted an accident. Harvey and
Johnson note that Toby was not angry with Brandy. Appellees Br. p.
3. Furthermore, they assert, Gearheart did not intend for Brandy to be
injured. Appellees Br. p. 3. Harvey and Johnsons arguments notwithstanding, we
note that the trial courtwhen accepting Gearhearts guilty pleafound a factual basis for
Gearhearts admission of guilt, necessarily including a factual basis that Gearheart knowingly or
intentionally touched Brandy. The underlying crime of battery did not necessitate an
intent to injure but only an intent to touch in a rude, insolent,
or angry manner. I.C. § 35-42-2-1.
Our system of justice has establishedby Gearhearts own admissionthat he knowingly or intentionally
committed the crime with which he was charged. Thus, when he pushed
Brandy, it [was] his conscious objective to do so. I.C. § 35-41-2-2.
Were we to permit Harvey and Johnson to re-open the issue of
Gearhearts mens rea, we would be allowing Harvey and Johnson to attempt to
make a perjurer out of Gearheart because a finding of negligence would necessarily
negate the mens rea Gearheart admitted to in his plea agreement. Moreover,
Gearheart himselfduring his depositionadmitted that he acted intentionally:
[Attorney Taylor]: Okay. And you made a decision at that point
that you were going to push her before she pushed you?
. . .
[Attorney Taylor]: You just wanted to push her to get her physically
away from you?
. . .
[Attorney Taylor]: Did you intend to push Brandy Nicole Harvey to make
her stop pushing you?
Appellants App. p. 180, 184.
IV. Public Policy
Given the trial courts acceptance of Gearhearts guilty plea and Gearhearts own deposition
testimony, there is no question of material fact but that Gearheart acted intentionally
or knowingly in pushing Brandy. Accordingly, it is not reasonable to conclude
that Brandys battery and subsequent death was an accident inasmuch as we have
defined that term as an unexpected happening without an intention or design,
Pacific Employers Ins. Co., 634 N.E.2d at 1338. Because the uncontroverted evidence
demonstrated that Gearheart intentionally or knowingly pushed Brandy, the trial court erred in
declining to enter summary judgment in favor of Auto-Owners.
We would be remiss if we failed to mention the ramifications of Harvey
and Johnsons arguments. A consequence of Harvey and Johnsons claims is the
abandonment of the rationale that a person should not be permitted to insure
against harms he may intentionally and unlawfully cause others, and thereby acquire a
license to engage in such activity. Home Ins. Co. v. Neilsen, 165
Ind. App. 455, 451, 332 N.E.2d 240, 244 (1975). Gearhearts case is
particularly applicable inasmuch as he admitted that he intentionally battered Brandy.
Finally, we note that the factual basis of this case is unlike others
wherein an intentional, unlawful act leads to liability on the part of a
third party. In Foshee v. Shoneys, Inc., our supreme court allowed an
injured employee to sue her employer after she had been physically attacked by
a criminal because Foshee claimed that Shoneys was negligent in placing Foshee in
a situation where harm was foreseeable. 637 N.E.2d 1277, 1279 (Ind. 1994).
Here, there has been no allegation that Gearhearts parentsthe policyholdersengaged in any
sort of behavior that posed a harm to Brandy.
In light of the issues discussed, we conclude that there is no genuine
issue of material fact as to Gearhearts mental state inasmuch as Gearheart pleaded
guilty to involuntary manslaughter, a predicate offense of which was battery. Because,
then, there was no question that Gearheart committed the act that led to
Brandys death knowingly or intentionally, summary judgment should have been entered in favor
The judgment of the trial court is reversed, and this cause is remanded
with instructions that summary judgment be entered in favor of Auto-Owners.
FRIEDLANDER, J., and BAILEY, J., concur.