Shelter Insurance Co. v. Woolems

MATTINGLY-MAY, J.,

concurring with separate opinion.

Our decision correctly found that Shelter's policy language is not ambiguous, and that Shelter is entitled to set-off its payments under the medical payments portion of the policy from any amounts due and owing Woolems under the underinsurance portion of the policy. Shelter's policy provided for $50,000.00 of underinsurance coverage. When Woolems received the $25,000.00 from Atlanta Casualty, the amount available to her under the Shelter policy was reduced to $25,000.00. As Shelter had already paid Woolems $25,000.00 under the medical payments portion of its policy, the amount then available to Woo-lems under the underinsurance coverage was reduced to zero. Woolems received a total of $50,000.00 from Atlanta Casualty and Shelter.

We have in a number of decisions upheld set-off provisions similar to that in the Shelter policy. In Beam v. Wausau, 743 N.E.2d 1188, 1192 (Ind.Ct.App.2001), Wau-sau was allowed to set off the amounts it paid in disability coverage to its insured. It was also entitled to set off the monies the insured had received under a worker's compensation policy. Further, in Standard Mutual Ins. Co. v. Pleasants, 627 N.E.2d 1327, 1830 (Ind.Ct.App.1994), we allowed Standard Mutual to set off the amounts it paid under the medical payments section of the policy from the uninsured motorist portion of that policy.

Woolems argues that allowing Shelter to set-off the amounts it paid under the medical payments section of the policy from the underinsurance benefits available to her renders the coverage illusory, as she would never be able to recover the full amount of the medical payments coverage and the underinsurance coverage. Our courts have declined on numerous occasions to find underinsurance provisions illusory, and I would decline to so hold in this case. See, e.g., Meridian Mutual Insurance Company v. Richie, 544 N.E.2d 488, 489 (Ind.1989); Johnson v. AAA Chicago Motor Club Ins. Co., 699 N.E.2d 1182, 1185 (Ind.Ct.App.1998).

I would also decline to hold that pursuant to Wittig v. United Servs. Auto. Assoc., 300 F.Supp. 679, 681 (N.D.Ind.1969), Woolems is entitled to "stack" the medical payments benefits and the underinsurance benefits. Wittig essentially held that a set-off provision does not prohibit an insured from recovering the limits of both her uninsured motorist coverage and her medical payments coverage when the amount of damages the insured is entitled to recover equals or exceeds the combined limits of the medical payments and uninsured motorists coverages.

The record before us contains as evidence of total damages only an affidavit from Woolems asserting that she had sustained "other damages" in excess of the medical payments coverage limits and that the "net under-insured motorist protection is available and reasonably due her" for that purpose. (App. at 85.) She does not allege that her damages exceed the combined limits of the medical payments and *1157uninsured motorists coverages. Under these circumstances, I would decline to find that a mere averment of damage is sufficient to invoke the language of Wittig.1

For the above reasons, I concur in our determination that the trial court erred in granting partial summary judgment to Woolems.

. I believe the Wittig holding must be limited to the facts before that court. There, the language of the policy was ambiguous, and was accordingly interpreted in favor of the insured. The language of the policy provisions before us, by contrast, is not ambiguous. Further, as explained above, a number of our courts have, since Wiffig, determined various set-off provisions similar to those in the Shelter policy neither to be ambiguous nor to render the coverage illusory.