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Beam v. Wausau Insurance Company2/27/2001
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Plaintiff-Appellant Steven T. Beam ("Beam") appeals from the trial court's judgment reducing by the amount of set offs the jury's verdict of $701,371.00 in damages owed by Defendant-Appellee Wausau Insurance Company ("Wausau") in an action to receive underinsured motorist benefits.
We affirm.
ISSUES
I. Whether Ind. Code ยง34-51-2-19, the lien reduction statute, applies to the judgment entered in Beam's favor.
II. Whether the trial court correctly reduced the judgment by setting off amounts recovered by Beam including those from the tortfeasor's insurance company and his own insurance company.
FACTS AND PROCEDURAL HISTORY
On August 20, 1993, Beam was traveling in his semi tractor within the course and scope of his employment with Fairmont Homes, Inc. ("Fairmont") on the Northwest Toll Road outside Chicago, Illinois, when he was injured in a motor vehicle accident. Beam swerved his semi tractor off the roadway in order to avoid colliding with a vehicle that was stalled in the right hand driving lane. The operator of the stalled vehicle was Amanda Vongsomchith ("Vongsomchith"). Beam incurred medical expenses in the amount of $310,206.56 .
INSURANCE COVERAGE
Fairmont was self-insured for worker's compensation benefits for all amounts up to $350,000.00. Fairmont contracted with Wausau to provide Fairmont with worker's compensation insurance for all amounts above the $350,000.00 self-insured retention limit.
Vongsomchith maintained personal automobile liability insurance through Safeway Insurance Company ("Safeway"). The limits of that policy were $20,000.00. Beam also maintained personal automobile liability insurance, but through United Farm Bureau Insurance Company ("Farm Bureau"). Fairmont maintained automobile liability insurance at the time of the collision through Wausau with policy limits of $1,000,000.00.
Beam's personal automobile liability insurance coverage included a provision for underinsured motorist ("UIM") benefits in the amount of $100,000.00. Fairmont's automobile liability insurance policy with Wausau also provided for UIM coverage in the amount of $1,000,000.00.
PAYMENTS RECEIVED BY BEAM
Safeway paid its policy limits of $20,000.00 to Beam. Farm Bureau paid to Beam $80,000.00 under the UIM provision of its policy.
Fairmont paid for Beam's medical expenses of $310,206.56 as worker's compensation benefits. Wausau made disability payments to Beam in the amount of $86,945.14. Beam received a total of $397,151.70 in worker's compensation benefits.
Wausau refused to pay Beam UIM benefits under the policy issued to Fairmont. Beam filed suit against Wausau seeking to obtain benefits under the UIM provisions of the policy.
Wausau's policy contained the following relevant provisions:
A. COVERAGE
1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle" or an "underinsured motor vehicle.". . .
C. EXCLUSIONS
This insurance does not apply to:
2. The direct or indirect benefit of any insurer or self-insurer under any workers compensation, disability benefits or similar law.
D. LIMIT OF INSURANCE
2. The Limit of Insurance under this coverage shall be reduced by all sums paid or payable by or for anyone who is legally responsible, including all sums paid under this Coverage Form's LIABILITY COVERAGE.
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