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Beam v. Wausau Insurance Company2/27/2001
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3. Any amount payable for damages under this coverage shall be reduced by all sums paid or payable under any workers' compensation, disability benefits or similar law.
* * * (R. 24-25).
Prior to trial the parties stipulated that the jury was to determine liability and damages only, while any set offs from damages would be determined later by the trial court. On October 19, 1999, a jury found Vongsomchith to be fifty-five percent at fault, while Beam was forty-five percent at fault. The jury determined Beam's damages to be $701,371.00, which amount was reduced to judgment subject to modification by the trial court for set offs.
The trial court requested that the parties submit their arguments to the court on the issue of set offs in the form of a proposed order for the trial court's signature. On February 23, 2000, the trial court executed the proposed order submitted by Wausau and modified the judgment amount owed to Beam to $204,219.30.
This appeal ensued.
DISCUSSION AND DECISION
STANDARD OF REVIEW
The court entered special findings of fact and conclusions of law upon its own order. Ind. Trial Rule 52(A) provides in pertinent part, " pon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court in all actions tried upon the facts without a jury ... shall find the facts specially and state its conclusions thereon." Because the record does not reflect that a party requested special findings and conclusions under T.R. 52(A), the court's order requiring proposed findings and conclusions by a date certain should be construed as the court's "own motion." See Coffin v. Hollar, 626 N.E.2d 586, 588 (Ind. Ct. App. 1993). Had the court ordered proposed findings pursuant to a request by a party, entry of findings or the lack thereof would be reviewed depending upon whether the party made a written motion prior to admission of evidence. Id. Thus, special findings were entered in the present case upon the court's own motion. Id. at 589.
When such findings are entered, this court applies a two-tier standard of review. Id. The court first determines whether the evidence supports the findings and then determines whether the findings support the judgment. Id. Special findings and the judgment flowing therefrom will be set aside only if they are clearly erroneous. Id.
I. LIEN REDUCTION STATUTE
The lien reduction statute at issue provides as follows: If a subrogation claim or other lien or claim that arose out of the payment of medical expenses or other benefits exists in respect to a claim for personal injuries or death and the claimant's recovery is diminished:
(1) by comparative fault; or
(2) by reason of the uncollectibility of the full value of the claim for personal injuries or death resulting from limited liability insurance or from any other cause; the lien or claim shall be diminished in the same proportion as the claimant's recovery is diminished. The party holding the lien or claim shall bear a pro rata share of the claimant's attorney's fees and litigation expenses. Ind. Code ยง34-51-2-19.
As previously mentioned, Fairmont was self-insured for worker's compensation for amounts up to $350,000.00. Fairmont contracted with Wausau for worker's compensation coverage in excess of $350,000.00. Beam received a total of $397,151.70 in worker's compensation benefits from Fairmont and Wausau. The trial court set off the $397,151.70 in benefits already received by Beam from the jury's award of $701,371.00 making the final judgment amount $204,219.30.
Beam claims that the tri
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