concurring in part and dissenting in part.
I respectfully dissent from the majority's conclusions regarding the payments made by American Family to cover the Nealys' medical expenses. I believe that the advance payment statute applies to these facts. The majority emphasizes that there were multiple defendants and observes that American Family was the plaintiffs', rather than the defendants', insurer. While strictly true, I believe that relying on these facts elevates form over substance to a degree that leads to an inequitable result. Nominally, yes, there were multiple defendants. But only one-American Family-played any role in the litigation whatsoever. Nominally, yes, American Family was the plaintiffs insurer. But in litigation concerning uninsured motorist coverage, the plaintiffs' insurer steps into the shoes of the nonparticipating uninsured motorists. Thus, though American Family was the plaintiffs' insurer, it was litigating against them. I cannot believe that the legislature intended these facts to stand in the way of the application of the advance payment statute.
Furthermore, the majority's hypercritical footnote notwithstanding, op. at 847 n. 5, Monroe v. Strecker does, in fact, offer an explanation that makes complete sense: that the purpose of the advance payment statute is to "prevent[ ] the injured party from being reimbursed twice for the same item of damage." 171 Ind.App. 100, 103, 355 N.E.2d 418, 420 (Ind.Ct.App.1976). Here, American Family has already paid over $10,000 for the Nealys' medical expenses; it is inequitable and unjust-and antithetical to the purpose of the advance payment statute-to ask the insurer to pay that amount a second time.
The majority states that it cannot conclude for a certainty that American Family would, in fact, have to pay the same amount twice. Essentially, the majority faults American Family because the insurer did not say the magic word "uninsured motorist coverage" when it paid the Nea-lys' medical expenses. Had American Family explicitly stated that "the source of the payments was the uninsured motorist coverage," op. p. 848 n. 8 (emphasis in original), then, presumably, a different conclusion would be reached. Yet again, I believe that the majority is elevating form over substance. It is asking too much of an insurer to require it to use "magic words" to avoid having to pay the same expenses twice. The only reasonable conclusion to draw here is that American Family and the Nealys understood that the medical expenses were being paid from the uninsured motorist coverage-a logical inference to draw given that their accident was caused by an uninsured motorist. Therefore, I would affirm the trial court and dissent from the majority to the extent it reaches a different conclusion. I concur with the majority's resolution of the Nealys' additur argument.