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Beam v. Wausau Insurance Company2/27/2001
should be used to determine the issue of reduction in the present case. A panel of this court held that the provisions of the insurance contract at issue were ambiguous. 642 N.E.2d at 984. Part of the analysis involved in reaching that determination included reading two exclusion provisions in conjunction with one another. We disagree with the conclusion reached in Transcontinental regarding the interpretation of those exclusion provisions and decline to follow it here.
Judge Staton noted in his dissent in Transcontinental, with which we agree, that no ambiguity exists. He further noted that that our supreme court stated as follows in Indiana Insurance Co. v. DeZutti, 408 N.E.2d 1275, 1278 (1980):
[Exclusions] are limitations or restrictions on the insuring clause. . . ach exclusion is meant to be read with the insuring agreement, independently of every other exclusion. If any one exclusion applies there should be no coverage, regardless of the inferences that might be argued on the basis of exceptions or qualifications contained in other exclusions.
Under the terms of coverage of the policy Wausau agreed to pay all sums Beam is legally entitled to recover, $701,371.00. However, under the section of the policy entitled "LIMIT OF INSURANCE," Wausau is entitled to reduce from any amount payable for damages all sums paid or payable under any worker's compensation, disability benefits or similar law. Reading that exclusion in conjunction with the insuring agreement leads us to the conclusion that the trial court correctly allowed Wausau to offset from the underinsured liability those amounts received by Beam as worker's compensation. The terms of the policy are clear and unambiguous. The trial court did not err.
Beam further argues that the amounts of money he received from Safeway, Vongsomchith's carrier, and Farm Bureau, Beam's carrier, should not have been set off from the verdict amount. According to the terms of the insurance contract, he is correct. However, the record reflects that during a hearing on pending motions in limine, Beam's counsel agreed that any verdict entered by the jury should be reduced by the amounts received from Farm Bureau and Safeway. Now, on appeal, Beam claims that he made that stipulation without taking into consideration the comparative fault of the parties.
A party cannot invite error and then request relief on appeal based upon that ground. See Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind. Ct. App. 1997). An error invited by the complaining party is not subject to review by this court. Id. The record reflects that Beam stipulated that any verdict entered by the jury should be reduced by the amounts received by Farm Bureau and Safeway. Beam cannot argue now that his stipulation excluded consideration of comparative fault when Beam knew that the jury was to determine liability and damages. Beam's argument in this regard fails. Therefore, the $304,219.30 judgment amount after the worker's compensation benefits are offset should be further reduced by $100,000.00, the amount Beam received from Safeway and Farm Bureau. The trial court's judgment in favor of Beam in the amount of $204,219.30 was correct.
CONCLUSION
The trial court correctly determined that the lien reduction statute was inapplicable to the present case. Further, the trial court correctly set off from the jury's verdict dollar for dollar amounts Beam received in worker's compensation benefits. The trial court correctly applied the contract provisions to reduce the jury's award to Beam because the terms of the policy were unambiguous. Last, Beam invited any error that might exist with regard to the set offs taken for benefits received fro
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