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Anderson v. Indiana Ins. Co.

Court of Appeals of Indiana

May 2, 2014

CHRISTINE ANDERSON, Appellant-Plaintiff,
v.
INDIANA INSURANCE COMPANY, a member of LIBERTY MUTUAL GROUP, Appellee-Defendant

Page 259

APPEAL FROM THE PORTER SUPERIOR COURT. The Honorable Roger V. Bradford, Judge. Cause No. 64D01-1204-CT-3314.

ATTORNEY FOR APPELLANT: THOM W. KRAMER, Buoscio, Pera & Kramer, Merrillville, Indiana.

ATTORNEYS FOR APPELLEE: JOSEPH STALMACK, KRISTY M. KOPACZEWSKI, Joseph Stalmack & Associates, P.C., Munster, Indiana.

BROWN, Judge. ROBB, J., and BARNES, J., concur.

OPINION

Page 260

BROWN, Judge

Christine Anderson appeals the trial court's grant of the motion for summary judgment filed by Indiana Insurance Company (" Indiana Insurance" ), a member of Liberty Mutual Group. Anderson raises one issue which we revise and restate as whether the trial court erred in granting summary judgment in favor of Indiana Insurance. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On October 29, 2010, while Anderson was stopped in traffic, she was struck by a vehicle driven by Denise Cox and sustained injuries to her neck and left shoulder including a left rotator cuff tear. The accident occurred during the course of Anderson's employment.

Anderson received $25,000 from Cox's insurer and $81,166.15 in worker's compensation benefits.[1] At the time of the accident, Anderson was insured under a policy (the " Policy" ) with Indiana Insurance which included underinsured motorists coverage with an applicable policy limit of $100,000. The underinsured motorist coverage of the Policy provided:

A. We will pay compensatory damages which an " insured" is legally entitled to recover from the owner or operator of an " underinsured motor vehicle" because of " bodily injury" :

1. Sustained by an " insured" ; and

2. Caused by an accident.

* * * *

C. " Underinsured motor vehicle" means a land motor vehicle or trailer of any type for which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is either:
1. Less than the limit of liability for this coverage; or
2. Reduced by payments to persons, other than " insureds", injured in the accident to less than the limit of liability for this coverage.

Appellant's Appendix at 163.

With respect to the limit of liability, the Policy states:

LIMIT OF LIABILITY

A. The limit of liability shown in the Schedule or in the Declarations for each person for Underinsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of " bodily injury" sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Underinsured Motorists Coverage is our maximum

Page 261

limit of liability for all damages for " bodily injury" resulting from any one accident.

This is the most we will pay regardless of the number of:

1. " Insureds" ;

2. Claims made;

3. Vehicles or premiums shown in the Schedule or in the Declarations; or

4. Vehicles involved in the accident.

B. The limit of liability shall be reduced by all sums paid because of the " bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of this policy.
C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and Part A, Part B or Part C of this policy.
D. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.
E. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar law:
1. Worker's compensation law; or
2. Disability ...

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