James B. Dunn v. Meridian Mutual Insurance Company, an Indiana Corporation n/k/a State Automobile Mutual Insurance Company, an Ohio Corporation (6/21/04 IndCtApp) [Contracts; Insurance]
May, Judge
James B. Dunn appeals the dismissal with prejudice of his breach of contract complaint against Meridian Mutual Insurance Co. Dunn raises four issues on appeal, which we consolidate and restate as whether the uninsured motorist provision of Dunn’s policy obliged Meridian Mutual to pay for the “diminished value” of Dunn’s car after an accident, as well as the cost to repair it. We reverse and remand. * * *The Allgood decision cited above, dated 4/28/04, is available here. The Indiana Law Blog writeup is here (near the end of the entry).This court recently addressed whether policy language identical to that in Dunn’s policy might obligate an insurer to not only restore to the insured a vehicle of similar physical condition, but also to restore to the insured “a similar value as prior to the damage.” Allgood v. Meridian Security Ins. Co., __ N.E.2d __, 2004 WL 901889 at *6 (Ind. Ct. App. 2004). We determined it might, and accordingly reversed the dismissal of Allgood’s class action lawsuit.
Allgood, like Dunn, alleged Meridian breached a duty under an automobile insurance policy to pay for a loss to her automobile by paying only for repairs and not also for diminution in value. We noted this was a question of first impression in Indiana and that other jurisdictions are divided on this issue. After reviewing the decisions cited by the parties, we agreed with those jurisdictions that have held the insurer responsible under similar policies for restoring value as well as condition to the insured:
The limit of liability provision allowing the insurer to “repair or replace with like kind and quality” could reasonably mean, as Meridian posits, to restore to the insured a vehicle in a similar condition in appearance and function. However, it could also reasonably mean, as Allgood urges, to restore to the insured a vehicle similar in appearance, function and value. * * *
We accordingly concluded that policy language providing an insurer may, at its option, repair or replace a damaged vehicle with “like kind and quality” could be construed to include not only restoring to the insured a vehicle of similar physical condition, but also restoring to the insured a vehicle of similar value as prior to the damage.
The trial court therefore erred in granting Meridian’s motion to dismiss Dunn’s complaint. We remand to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
FRIEDLANDER, J., and NAJAM, J., concur.
Samuel Hoggatt v. State of Indiana (6/21/04 IndCtApp) [Criminal Law & Procedure]
OPINION ON REHEARING
Vaidik, Judge
The State seeks rehearing in Hoggatt v. State, 805 N.E.2d 1281 (Ind. Ct. App. 2004). Although we affirm our original opinion in all respects, we write on rehearing to address the State’s argument that it could have filed an Indiana Trial Rule 60(A) motion to correct the clerical mistakes in Hoggatt’s sentencing judgments. * * * [W]e affirm our original opinion in all respects.Posted by Marcia Oddi at June 21, 2004 01:52 PM
SHARPNACK, J. and MATHIAS, J., concur.