Injured bus driver entitled to $25,000 under his insurance policy

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court Thursday held that a man can recover the remaining $25,000 available to him under his underinsured motorist policy because he did not receive the full statutory minimum of $50,000 from the tortfeasor’s insurer.

Kathleen Wagner, an underinsured motorist, collided with an Indianapolis city bus driven by Howard Justice. He received a net compensation of nearly $72,000 in workers’ compensation from IndyGo’s insurer. He also received $25,000 from Wagner’s insurer.

Since his underinsured motorist policy with American Family Mutual Insurance Co. provided coverage up to $50,000 per person. When his insurer denied the claim, he sued for the $25,000. American Family claimed Justice wasn’t entitled to recover under the policy because the nearly $72,000 he received in workers’ compensation benefits operated as a “setoff” against the $50,000 policy limit, reducing the insurer’s liability to zero. The trial court granted American Family’s motion for summary judgment.

The Supreme Court found that the language unambiguously provides for a setoff against the policy limit, not against his total damages as Justice argued. As such, the policy limit is reduced to zero when factoring in the workers’ compensation and disability benefits, Justice Mark Massa wrote in Howard Justice v. American Family Insurance Company, 49S02-1303-PL-221.

But, the setoff provision contravenes Indiana Code 37-7-5-2, the justices held, so Justice is entitled to the remaining $25,000 available under his policy. The uninsured/underinsured motorist statute requires limits of not less than $50,000, and the statute is a mandatory, full-recovery remedial statute.

If Wagner had carried the required amount of liability insurance, Justice would have received $50,000, and the purpose of the statute is to put him in that position. Any policy provision to the contrary is unlawful and unenforceable, Massa wrote.

The justices remanded for further proceedings.

Chief Justice Brent Dickson concurred in part, but wrote that he believes the workers’ compensation setoff provision cannot apply to reduce benefits payable under the underinsured motorist policy because the policy expressly excludes coverage of injuries eligible for workers’ compensation.



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.