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

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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.

 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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