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Beam v. Wausau Insurance Company2/27/2001
al entitlement to offset those payments against the uninsured liability. The fact that the arbitrators had to attribute fault between Pleasants and Radford was dictated by the insurance contract and does not bring the arbitration under the purview of the Comparative Fault Act. 627 N.E.2d at 1330.
As was the case in Standard Mutual, Wausau is not trying to recover from Beam the payments he received from Fairmont for worker's compensation coverage. Wausau sought to enforce the portion of the insurance contract allowing it to take credit for payments already made to Beam for worker's compensation, against the judgment entered against it.
Wausau's policy clearly states that any amount of damages payable under its coverage shall be reduced by all sums paid under any worker's compensation law. The trial court correctly determined that Fairmont possessed no lien interest in the award recovered by Beam. Fairmont had notice of the hearings and failed to appear or present any evidence of a lien. Beam was not liable to a third party for payment of any benefits; therefore, the lien reduction statute did not apply. Wausau was not asserting a subrogation claim and did not argue that it possessed a lien in its favor. Wausau was entitled to set off dollar for dollar the amount already received by Beam from Fairmont and Wausau for worker's compensation benefits in order to prevent double recovery by Beam.
The trial court correctly determined that this was a matter between the insured and the insurer concerning entitlement to offset payments already made. This is not a case where the insurer is seeking to recover from the insured amounts recovered by the insured from other sources. Since no subrogation claims or liens were being asserted and Beam had no duty to repay the amounts he already had recovered, the trial court correctly determined that the lien reduction statute did not apply.
II. REDUCTION OF THE VERDICT
We note that the jury verdict form in the present case is incorrect. However, neither party submitted a correct verdict form.
Ind. Code §34-51-2-7 and Ind. Code §34-51-2-8, sections regarding jury instructions where damages and comparative fault are being determined, provide that the jury is to determine the percentage of fault of the parties involved. After making that determination, if the claimant is not fifty percent or more at fault, then the jury is to determine the total amount of damages the claimant would be entitled to regardless of fault. The jury is then required to multiply the percentage of fault by the total amount of damages in order to determine the amount of damages for which each defendant is liable.
The record in the present case does not contain a copy of the instructions given to the jury. However, the verdict form makes provisions only for the percentage of fault attributable to the plaintiff and the defendant, and for an assessment of the plaintiff's damages. (R. 55). A correct jury verdict form would have aided the parties and the trial court in the resolution of the issue of the amount of Beam's damages.
Neither party seems to be arguing that the $701,371.00 amount equals one hundred percent of Beam's actual damages. Our review of the record leads us to the conclusion that the parties and the trial court considered the $701,371.00 amount awarded by the jury to be Beam's damages after consideration of the percentage of fault attributable to him. However, both parties agree that $701,371.00 represents the amount of damages Beam legally is entitled to recover.
Beam claims that the rationale in Transcontinental Technical Services, Inc. v. Allen, 642 N.E.2d 981 (Ind. Ct. App. 1994),
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