Corr v. Schultz

ver- jury's off from correctly set us to leads agreement insuring re- Beam amounts for dollar dict dollar correctly trial that conclusion benefits. compensation in worker's the under- ceived from to offset allowed Wausau the con- correctly applied trial court by The received amounts liability those jury's award to reduce provisions tract compensation. as worker's Beam of the terms because the to Beam unambig- and are clear terms Last, invited Beam unambiguous. not err. did The trial court uous. regard with might exist that any error that argues further Beam received benefits taken for offs the set from Safe received money he amounts re- and for amounts Bureau Farm from carrier, Farm and way, Vongsomchith's Safeway. ceived from carrier, not Bureau, should Beam's affirmed. Judgment Ac amount. the verdict off from been set con of the insurance the terms cording to JJ., SULLIVAN, and FRIEDLANDER the record tract, correct. he is concur. pending on hearing during that reflects agreed limine, counsel Beam's motions jury should by the entered any

that verdict from received by the amounts be reduced Now, ap on Safeway. and Bureau Farm stipu that that he made claims peal, Beam taking into consideration lation without parties. fault comparative CORR, Appellant-Plaintiff, T. James invite error cannot party A upon based appeal request relief then Berryhill, Crowl ground. See Schultz Glenn SCHULTZ Glenn An er (Ind.Ct.App.1997). Inc., Appellees- Agency, party is complaining invited ror Defendants. Id. The court. by this subject to review 71A03-0006-CV-217. No. stipulated that Beam reflects

record jury be by the should of Indiana. Appeals entered any verdict Court by Farm amounts received by the reduced 28, 2001. Feb. argue Safeway. Beam cannot Bureau and excluded consider stipulation now Beam fault when comparative

ation of liabil jury was to determine knew in this argument damages. Beam's ity and Therefore, $304,219.30 fails regard com after the worker's amount judgment fur be are offset should benefits pensation $100,000.00, amount ther reduced Farm Safeway and received Beam in fa trial court's Bureau. The $204,219.80 in the amount vor of Beam was correct.

CONCLUSION correctly determined The trial court inapplicable reduction statute the lien Further, the trial present case. Anderson, Anderson,

Michael J. Agosti- Keller, P.C., Bend, IN, no & South Attor- ney Appellant. Kenyon,

Sean E. Konopa, Robert J. Ko- nopa P.C., Bend, & Murphy IN, South Attorneys for Appellees.

OPINION

KIRSCH, Judge. James T. appeals Corr from the trial grant summary fa- vor of Glenn Schultz and Glenn Schultz "Schultz") Agency, Inc. (collectively on his negligence based change of Corr's underinsured motorist coverage on his poli- automobile insurance cy.

We reverse. claimed When per accident. AND PROCEDURAL FACTS Janel, American for the loss HISTORY claim, believing that Family denied Corr was 8, 1997, Lacee Janel On June cover- driven Dodge Caravan in a 1995 passenger car because apply age did in- The vehicle Balderas. Andres underinsured. accident; the five of in a one-car volved seriously against complaints were the vehicle separate of filed occupants Corr Corr, died as who including Janel Ameri injured, and negligence for Schultz the declaratory judg At the time of injuries. seeking her a result of can Both courts vehicle, Balder- limits. policy the accident, ment on the owner of the liability poli- father, the defenda judgment had an automobile for summary granted as's Farm the with State attacks appeal, the vehicle Corr in for In this cy effect nts.2 Company. Insurance in favor of Schultz. judgment Auto summary Mutual limits were liability policy bodily injury AND DECISION DISCUSSION $300,000 acci- per and $100,000per person court erred the trial Corr contends had addition, mother In dent. summary for Club motion Automobile Schultz's policy granting in an insurance in which minivan Group that included the judgment because Michigan Insurance of $300,000 mo- an underinsured $100,000 riding and was per person was Janel the same law and his to Indiana pursuant limits. tor vehicle accident per the- note that Corr's insurance tendered companies insurance two negli- liability against Schultz ory of limits to policy of their amount unilat- allegedly on gence based an action to determine and filed trial court policy lowering in action eral proceeds apportionment coverage. underinsured Follow injured parties. many among the summary purposes for mediation, agreed on parties treated motion, trial court judgment re the Corrs would under which scheme is, That even true. allegation as $115,000for the loss of Janel.1 ceive unilaterally acted assuming Schultz Corr had James In November lowering in and without authorization his car in effect on policy limits, trial court determined policy which Family Insurance through American summary judg- was entitled that Schultz cov- motor vehicle provided claim. ment on Corr's $500,000 $250,000 and per person erage of judg summary "The prior time At some per accident. which about litigation ment is to terminate accident, premiums noted dispute and no factual there can be talked with He were excessive. law." a matter of can be determined Schultz, about how to agent, his insurance Indianapolis Feibleman v. Bamberger & response, In Schultz premiums. lower the N.E.2d Light Power & lowered the Rule $100,000 person and Ind. Trial per see (Ind.Ct.App.1996); limits to 56(C). summary reviewing a motion In $300,000 These limits per accident. standard apply the same judgment, we Also of the accident. in at the time effect court, any ques resolve Corr, and we the trial accident, Pamela at the time of drawn to be fact or an inference tion of mother, had underinsured Janel's non-moving par therefrom favor her vehicle with coverage on at 936. We $300,000 ty. Bamberger, 665 person and per limits of summary grant of appealed the Corrs spent an 2. The Janel divorced. 1. The Corrs are Family sepa- of American judgment in favor them. with each of equal of time amount 71A03-0003-CV- rately cause number equally, Accordingly, they divided the sum each received will affirm a trial grant summary party inis a better position if the driver if it any theory is sustainable on responsible for the accident is not insured supported by designated evidence. Id. at all if than he or she has insurance. For Finally, the party appealing instance, the trial here, if Balderas had had in grant summary court's denial or judg surance, Corr's uninsured motorist cover ment bears the persuading burden of us age would clearly have applied and he that the trial court erred. Irvine v. Rare would have been entitled to up Center, Inc., $250,000.3 Because Balderas did have cov Breeding Feline 120, 123 (Ind.Ct.App.1997), trans. denied. erage, Schultz argues now that the correct result $57,500, for Corr to only recover Schultz maintains that Balderas's in spite of the fact that the coverage he vehicle was not underinsured and there purchased bargained both situa fore Corr's underinsured motorist cover tions is the same. We do not believe the age not apply does to this accident. IC legislature could have intended such a re 27-7-5-4 defines the term "underinsured sult. motor vehicle" as follows: Schultz relies on Allstate Ins. Co. v. "For the chapter, Sanders, (Ind.Ct. 885-86 vehicle, term underinsured motor sub- App.1994) to support argument that a ject to the terms and conditions of such policy limits-to-policy comparison limits coverage, includes an insured motor ve- Sanders, mandated. In two hicle brothers rid where the limits of avail- in a vehicle were seriously injured by payment able for to the insured under the negligence driver, of a bodily all injury liability policies Hartgraves. cover- Hartgraves's ing persons $100,000 paid liable to the pol insured are less insurer than the limits, $50,000 the insured's underin- icy to each of the men. Both men then against at the claimed poli time of their cy, which had accident, underinsured motorist cov but does not an include $100,000. erage uninsured in as defined Their insurer denied their they suit, (a)." claims. After filed subsection insurer moved for plead on the Schultz asserts that this statute dictates ings, which trial court denied. that the proper analysis is to compare the total bodily injury limits of coverage avail appeal, On the Sanders court deter- able policies under the covering Balderas mined that the insurer was entitled to with the underinsured lim judgment on pleadings because Hart- Indeed, its on this is the graves was not an underinsured motorist approach recently in a memorandum according to the terms the statute. In decision another of this court in so, doing the Sanders court determined Ins., Corr v. American 71A03- proper analysis compare is to "the 0003-CV-85, 7-8, slip op. at 742 N.E.2d 43 per tortfeasor's liability accident 28, 2000), (Ind.Ct.App. Dec. which held with the insured's underinsured motor ve- that the correct was to analysis compare hicle coverage." Id. at 886. $600,000 per bodily accident injury lia rejected plaintiffs' argument bility limit policies under the two covering reference to "the insured" the statute $600,000 per Balderas to the accident un- insured, means each stating individual deringured motor vehicle limit of poli- accepting argument such "would create for cles under which Janel was an insured. an insurer potential unlimited underinsur- however, approach,

This liability leads to the ance based on the number of in- jured anomalous result that multiple peo- persons when qualify who as insured un- injured accident, ple are in an injured policy." der a Id. stipulation

3. Pursuant pur- express amount. We as to the poses of summary judgment, the motion for proper dispute parties' resolution of the as to $250,000 we assume that is the coverage. the amount of other the statutes survey of decision, Our Sanders its reaching In formula- different several states reveals Leets case of relied on cover- vehicle motor of underinsured tions P.2d Ins. Mut. Amica a limits-to-limits which dictate age, Leetz some of In that (Colo.Ct.App.1992). See, L. ch. Mass. Gen. analysis. eg., riding people three other killed and statutory language negli § Because injured when a 118L2. car were the same however, per- The liable driver are not differs, them. cases struck these gent driver hand, the other $25,000 per authority. On per suasive coverage of liability had vehicle statute motor According $50,000 accident. Ohio's per son It states: injured to ours. to the is similar paid the insurer ly, $16,000 of "Underinsured received Leetz's heirs parties; made heirs then for insureds protection Leetz's provide that amount. shall ... injury suf- bodily the underinsured claim thereunder driver of the of the under person insured by any fered had a riding, Leetz was the limits car in which where policy, limit of single payment available for lability bonds injury court determined bodily all be covering persons not make policies could Leetz's heirs In do apply. coverage did not are less than the insured cause liable to limit of so, compared the motor- uninsured for the insured's limits to applicable motorist of the liable driver coverage coverage. Underinsured ist $50,000, to here excess question, not be coverage the accident is not and shall liability applicable motor vehicle the underinsured to other only to provided and shall be these coverages, limit, Because also protec- same, insured an amount held afford the the court amounts were underin- would the liable driver than that which greater tion unin- Id. at 518. under the insured's sured. be available person if the or sured The which statute were uninsured liable persons was different interpreted Leetz accident." time of the here. statute at issue the Indiana Rev.Coprm (emphasis § critical, Ann. 3987.18 Orto is This difference added). Hence, of the Ohio stat the focus the court statute of the Colorado Indiana's, available ute, the amount is like result read dictated this determined poli under to the insured payment for is "An underinsured follows: on the split courts have appellate cy. Ohio ... is insured [which] a land motor vehicle provision. interpretation of injury lability bodily for the limits but Thus, this statute question of whether (a) than the limits ... Less or death are: limits com limits-to-policy dictates coverage under the for uninsured su currently before the Ohio is parison (quoting at 512 policy[.]" Id. insured's Adams, v. 89 Ohio court. Maric preme (1987 4A)). 10-4-609(4), Repl.Vol. § C.R.S. (2000). N.E.2d 376 734 St.3d a lim Thus, dictated expressly the statute in Octo was amended statute not the The Ohio comparison. Such its-to-limits that, fo the statute to ber 1994. Prior Indiana, turns on the statute case in where in damages the amount of cused on the to the payment available for discussion actually recovered. See sured available insured-not Cos., 2000 legislature intended Farm Ins. Had the v. State policy. in Smith (Ohio While Ct.App.2000). it could WL 1593284 strictly comparison, limits-to-limits change interpreted the have some courts it instead that. expressed have to payment" "amounts available to to the payment "available phrase used the limits, other require looking something This must mean insured." legislature could courts, noting different. easily intent, that if said such was the by tion modifying the definition of an have offered the more explana reasonable "uninsured Together, motorist." these language tion of the as requiring exhaus coverages serve promote to recovery tion of benefits: of damages for innocent victims of auto "By accidents with eliminating 'actually uninsured or recovered underin- language, the motorists. Given requires amended version the remedial na- objectives, ture of these payment the insured receive all avail- uninsured/un- derinsured legislation able amounts from the tortfeasor's liabil- is to be liberally ity Moreover, carrier construed. seeking before like all uninsured relating benefits from statutes its own It insurance or does insur- not, however, policies, ance require a 'limits to limits' uninsured/underinsured comparison." statutes are to be read in a light most Cunningham, favorable to the insured." Id. at *5. See also Butler-Peak v. (citations omitted). Id. at 459-60 App.3d Ohio 13 court explained that the statute requiring (2000); N.E.2d 219 Pearson Motorists Cos., (Ohio Ins. insurers to offer 2000 WL 1239917 Ct.App. uninsured/underinsured 2000). mandatory is a cov- But see Carroll Nationwide Co., (Ohio erage, Mut. full-recovery, Ins. 2000 WL 1781332 remedial statute. Id. at 460. Thecourt concludedthat the his- (law Ct.App.2000) requires limits to comparison); tory expansive v. Allstate Ins. amendments to the stat- Coffield ute manifested an legislature (Ohio intent (same). 2001 WL 20783 Ct.App.2000) give insureds the opportunity for full agree with the Smith court compensation injuries inflicted fi- language "amounts available for nancially irresponsible motorists. Id. at payment" equate do not "policy limits." Rather, they only indicate negli The other recently examined gent party's liability coverage must be ex this issue decided that Corr reads this hausted an before insured to looks his or language broadly. too respectfully her underinsured motor vehicle coverage disagree. Moreover, disagree we with the compensation. Accordingly, in this Sanders that interpretation case, $57,500 of the coverage amount of open leaves insurers liability. to limitless policies on Balderas was available for The liability of an capped insurer is in all payment to Corr. The limits of his under- by cases policy its limit. insured motorist per person. Therefore, Balderas was an We turn now to the terms of the underinsured motorist according to the policy at issue here. The underinsured statute. applies states that it injured when an insured is

In so holding, we note our supreme by a motor expression of under- vehicle which policy has a that "provides coverage: provide to bodily injury limits less than the limits of protection broad injured to insureds in liability of [the underinsured motorist cov with financially irresponsible accidents mo- erage." Record at provision 54. This DePrizio, would torists. United Nat'l Ins. Co. v. seem to dictate a limits-to- 455, (Ind.1999). 705 N.E.2d The court policy limits comparison Doing as well. so explained: here, however, provide would less

"[UJnderinsured than by is that defined statutory defini designed provide to individuals indemni- tion of such coverage, explained as above. fication in negligent the event Although parties motorists are free to contract to adequately are not insured for damages liability, limit because the underinsured motor vehicle coverage law is remedial and accidents, that result from motor vehicle generally and has integrated been protective, into a may insurers not offer less cov given state's uninsured motorist legisla- erage than requires. the law See Scalf since, misplaced was 8, by the Sanders Cas. Am. Globe defining note, statute we (1983) denied trans. (Ind.Ct.App.1982), vehicle is substan has that an language (any limiting After than our statute. tially than different less providing effect of we reflection, that here I believe by uninsured further obligatory made disagree to policy and the correct decision public to made contrary have is statute language and hold effect). with Sanders extent Accordingly, cov used payment" Corr less affords available "amounts "policy equate he is entitled to does not legislature that to erage than our 742 N.E.2d 43. op. an Slip limits." car was law, void. it is the law according to vehicle assigned this court are Cases before therefore and Schultz policy, and insurance random, given and I have been judges at summary judgment. entitled to consider opportunity unique important Reversed.4 twice. It issue same mind and consider open judges keep J., VAIDIK, concurs. they even when arguments, well-reasoned position. another previously NAJAM, J., separate concurs with issue, fully I con- Having reconsidered opinion. interpretation and our opinion in this cur NAJAM, concurring. Judge, motorist statute of the underinsured and the conclu in this I concur facts. to these applied was an underin- car that Balderas's sion and, Indiana law not entitled to therefore, that Schultz separately, I write

summary judgment. for reach however, my reasons explain that which different ing a conclusion NOLAND, Appellant- Roberta of another as a member I reached Petitioner, de the memorandum recently issued v. Ameri companion in a cision AND SOCIAL SER FAMILY INDIANA 71A03-0003-CV-85, Ins., No. Family, can ADMINISTRATION, DIVI VICES December (Ind.Ct.App. 742 N.E.2d 43 AGING, DISABILITY, AND OF SION 2000). SERVICES, Ven REHABILITATIVE cases, a credible many as in In this Capacity Moore, her official ita posi support made to argument can be Secretary Social In Corr party. either tion Administration, and Kathleen Services ap with the Family, agreed we American Capacity Wilson, in her official M. previous on a and relied pellant Secretary the Division Assistant Sanders, 644 court, Allstate Ins. Co. v. Disability, Aging, and Rehabilitative support (Ind.Ct.App.1994), Services, Appellee-Respondent. limits-to-policy conclusion that our No. 49A02-0004-CV-245. determin required in comparison is "underinsured is an a vehicle ing whether of Indiana. Appeals Court Indiana Code pursuant vehicle" Feb. 2001. Here, a closer look 27-7-5-4. Section that we relied decision reveals the Sanders interpreta support our law to

on Colorado That reliance statute. the Indiana tion of quately the issue. address request for oral hereby deny Appellant's parties' ade finding briefs argument,

Case Details

Case Name: Corr v. Schultz

Court Name: Indiana Court of Appeals

Date Published: Feb 28, 2001

Citation: 743 N.E.2d 1194

Docket Number: 71A03-0006-CV-217

Court Abbreviation: Ind. Ct. App.