concurring with separate opinion.
I agree that the judgment for Malott, while quite low for an injury of this nature, was supported by the evidence and therefore may properly be affirmed. However, I write separately to express my reservations about instructing juries on contract *928law principles in cases such as the one before us. Such instructions are, at best, confusing and not helpful to jurors. At worst, they can contribute to improper verdicts and damage awards.
It is well established that damages in an action brought under a UM provision are to be determined under tort, and not contract, principles. An instruction like the one in the case before us-ie., that the jury must, in order for the plaintiff to recover, find the plaintiff was damaged by the "Defendant's breach of contract" (App. at 15) is thus inherently confusing and misleading. An insured may sue an uninsured tortfeasor or proceed directly against his insurance carrier, "but in either case must establish that the tortfeasor was answerable in negligence to him." Sullivan v. American Cas. Co. of Reading, Pa., 605 N.E.2d 134, 139 (Ind.1992) (emphasis supplied).
The underlying purpose of UM coverage is to give the insured the recovery he or she would have received if the uninsured motorist had maintained an adequate policy of liability insurance. Corr v. American Family Ins., 767 N.E.2d 535, 540 (Ind.2002). In essence, uninsured motorist insurance acts to pay the damages owed by the uninsured driver. Therefore, damages are determined by the tort liability of the uninsured driver; the contract between the UM policyholder and the insurer is relevant only to the extent it Emits the damages.
In a suit against an insurer by an insured claiming a right to coverage under an uninsured motorist provision, the insured must prove that he is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle. Michael v. Wolfe, 737 N.E.2d 820, 822 (Ind.Ct.App.2000). Generally, this means that the insured must establish 1) the fault of the tortfeasor, 2) the fact that there is no insurance policy covering the motorist or motor vehicle, and 3) resulting damages. Id.
An instruction is properly rejected if it would tend to mislead or confuse the jury. Wallace v. Rosen, 765 N.E.2d 192, 196 (Ind.Ct.App.2002). A contract instruction in a case where damages are to be determined solely by tort principles can have no effect but to confuse or mislead the jury, and is therefore inappropriate.
However, I concur in the result the majority reaches in the case before us because the record reflects that in addition to its instruction on contract damages, the trial court instructed the jury that in determining Malott's damages, it was to consider the nature and extent of her injuries, her medical expenses, pain and suffering, and other factors properly taken into account in a negligence action. I further note that the jury had evidence before it that many of Malott's medical problems were not the result of the accident but instead arose out of a pre-existing injury. It therefore could reasonably have found, applying a proper tort standard, that her damages were only $14,000.
Had these additional tort damage instructions not been given, and had the jury not had evidence before it indicating Mal-ott's medical problems were not related to the accident, I believe the instruction on contract liability principles might have been reversible error.