Jones v. Lofton
2022 WL 17840259 (Ind. Ct. App. 2022)
Indiana is one of a minority of states that has enacted what is commonly called a “No Pay, No Play” statute. Indiana’s version of the statute (which is, in fact, two statutes) bars “an uninsured motorist with a previous violation” of failing to provide proof of financial responsibility from recovering noneconomic damages from any at-fault motorists or their insurance carriers after an accident. See Ind. Code §§ 27-7-5.1-5; 34-30-29.2. Although the statute has been around since July 2015, it is, in the opinion of these authors, often ignored by many personal injury and insurance practitioners. That may change given the statute’s recent attention in Jones v. Lofton, 2022 WL 17840259 (Ind. Ct. App. 2022).
Quiana Jones and LaShonda Lofton were the drivers of vehicles that collided in 2018. Lofton did not have auto liability insurance as Indiana law required. Lofton, individually and on behalf of her minor wards, who were riding in her vehicle, sued Jones and Jones’s employer for negligence. During discovery, Lofton admitted that she owned her vehicle and that she had been convicted of “an Illinois mandatory-insurance offense” in 2016 and was required by “the Illinois authorities that regulated [her] driving privileges to provide proof of future financial responsibility … for a period of not less than three (3) years.” Jones and her employer moved for partial summary judgment that Lofton was barred from recovering noneconomic damages under the “No Pay, No Play” statute because she was “an uninsured motorist with a previous violation.” The trial court denied their motion and held that the version of the statute in effect when the accident happened did not apply to out-of-state violations. Jones and her employer appealed.
The Court of Appeals affirmed. When the accident happened, the “No Pay, No Play” statute defined “uninsured motorist with a previous violation” as a person who owned a vehicle involved in an accident and who, during the preceding five years, was required to provide proof of future financial responsibility “for any period under IC 9-25-8-6(b) [three years for a first or second offense, and five years for subsequent offense].” The Court of Appeals, in a 2-1 decision, found that the “No Pay, No Play” statute was unambiguous and inapplicable to Lofton. Although Lofton committed a “mandatory-insurance offense” in Illinois in 2016, the Court of Appeals explained, she was not “required to provide proof of future responsibility for any period under IC 9-25-8-6(b).” Thus, the “No Pay, No Play” statute did not bar Lofton from recovering noneconomic damages.
In a dissent, Judge Weissman disagreed with the majority’s finding that the definition of “uninsured motorist with a previous violation” was unambiguous. Judge Weissmann explained that the phrase “[f]or any period under IC 9-25-8-6(b)” could be interpreted to refer “only to the time periods reflected in Indiana Code § 9-25-8-6(b) and not to any requirement that the prior violation arose under Indiana law.” The majority’s acceptance of the latter interpretation “diminishes the statutes’ deterrence” by “creat[ing] an unwarranted distinction between repeat uninsured motorists previously caught driving uninsured in Indiana and those previously caught in another state.” Judge Weissmann found no legislative intent or practical reason for “treating repeat uninsured motorists more favorably just because their prior transgression occurred out of state.” In fact, Judge Weissmann continued, the Indiana legislature amended the “No Pay, No Play” statute in 2021 and removed the phrase “for any period under IC 9-25-8-6(b)” from the definition of “uninsured motorist with a previous violation.” This amendment, Judge Weissmann concluded, “cures the ambiguity” and “tracks the overall intent of those statutes: deterring uninsured motorists, whatever their geographic history.”
Although the holding from this case will have limited use, because the Indiana legislature has amended the “No Pay, No Play” statute, it should serve as a reminder to practitioners that an uninsured plaintiff’s history of driving without insurance may preclude the recovery of noneconomic damages.