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Standard Mutual Insurance Company v. Weccele

September 26, 2002; Corrected Opinion.

STANDARD MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
HARRY E. WECCELE, MISTY HOPPER, AND RICHARD COOK, JR., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Marion County. No. 00-MR-16 Honorable David L. Sauer, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

Harry E. Weccele, Misty Hopper, and Richard Cook, Jr. (collectively defendants), appeal an order of the circuit court of Marion County granting a summary judgment to Weccele's insurer, Standard Mutual Insurance Company (plaintiff), in a declaratory judgment action to determine insurance coverage. The appeal raises the issue of whether documents forwarded to the insured continued coverage until a date after the incident underlying the insurance claim. We reverse and remand.

FACTS

On May 9, 1994, defendants were involved in an automobile accident. Hopper and Cook filed suit against Weccele for personal injuries from the accident. A default judgment was entered in favor of Hopper and Cook.

Hopper and Cook then filed a garnishment action against plaintiff as the insurer of Weccele. Hopper and Cook again served Weccele, who then obtained counsel and moved to vacate the default judgment. On January 25, 2000, plaintiff filed a complaint for a declaratory judgment, claiming that Weccele was not covered at the time of the accident. Plaintiff first issued automobile insurance to Weccele for the period of April 22, 1993, through July 22, 1993. Weccele made payments every three months, and coverage continued. The policy contained an amendatory endorsement that stated:

"This policy may be renewed for successive policy periods by payment of the required renewal premium to the Company on or before the effective date of each successive policy period. If such premium is not paid when due, the policy shall terminate as of that date."

On March 28, 1994, plaintiff sent a document to Weccele. The document was in a declarations form. At the top of the document was a section that allowed the document to be checked by plaintiff as either a "new policy declarations," a "renewal certificate," or an "amended declarations." The box for "renewal certificate" was marked with an "X." Immediately below this area, the form indicated that the policy period was from April 22, 1994, to July 22, 1994. The covered automobile was described as a 1993 Ford Ranger. At the bottom of the form, the total premium was shown as $154. Next to the statement of the premium due, typed on the document, the following words appeared: "IF TOTAL PREMIUM IS NOT PAID BY 4/22/94 ALL COVERAGES WILL LAPSE."

In April 1994 Weccele informed plaintiff that he desired to switch the vehicles covered by the policy. A Standard Mutual Insurance Company request-for-policy-change form dated April 12, 1994, indicated that coverage was changed from a 1993 Ford Ranger to a 1988 Chevrolet van, effective April 11, 1994.

On May 2, 1994, plaintiff sent to Weccele two documents in the declarations form, the same form used for the document of March 28, 1994. One document was labeled "AMENDED DECLARATIONS," effective April 11, 1994. The policy period was from January 22, 1994, to April 22, 1994. The described vehicle was a 1988 Chevrolet van. In the box for the amount due, the total premium was $3.

The other document, sent on May 2, 1994, was also marked "AMENDED DECLARATIONS" but was effective April 22, 1994. The policy period was from April 22, 1994, to July 22, 1994. The described vehicle was a 1988 Chevrolet van. At the bottom of the form, typed next to where the total premium was listed as $131, was "PAY THIS AMOUNT ON OR BEFORE 5/17/94." Weccele never paid this $131.

On May 9, 1994, Weccele, while driving the Chevrolet van, was involved in an accident with Hopper and Cook. Weccele completed a document entitled "AUTOMOBILE LOSS NOTICE" through Friedrich Insurance Agency, Inc., on May 10, 1994.

Plaintiff issued a letter to Weccele dated May 17, 1994, stating:

"Due to changes you requested in your policy, a revised billing indicating $131.00 premium due was sent to you on 5/02/94.

We have not received that payment in the time indicated and[,] as such, your policy has lapsed for nonpayment of premium. You have been ...


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