Beam v. Wausau Insurance Co.

ATTORNEY FOR APPELLANT

Edmond W. Foley
South Bend, Indiana

ATTORNEYS FOR APPELLEE

Edward L. Murphy, Jr.
Diana C. Bauer
Fort Wayne, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

STEVEN BEAM, )
)
Appellant (Plaintiff Below), ) Indiana Supreme Court
) Cause No. 20S03-0202-CV-111
v. )
) Indiana Court of Appeals
WAUSAU INSURANCE CO., ) Cause No. 20A03-0003-CV-102
)
Appellee (Defendant Below). )
__________________________________________________________________

APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable L. Benjamin Pfaff, Judge
Cause No. 20D01-9702-CT-81
__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

February 12, 2002

BOEHM, Justice.
This case addresses the proper setoff against a personal injury award
for payments the claimant receives under worker’s compensation. We hold
that under the underinsured motorist policy involved here, the setoff is
against the amount of damages, not against the policy limits, but where the
amount recovered is reduced for the claimant’s comparative fault, the
reduction is by that percentage of duplicated elements of damage, not the
gross sum of worker’s compensation benefits to which the worker is entitled
irrespective of fault.

Facts and Procedural Background

On August 20, 1993, Steven Beam was driving a semi tractor trailer on
Interstate 90 outside Chicago. Beam was severely injured when he swerved
the semi off the road to avoid colliding with Amanda Vongsomchith’s stalled
car in the right driving lane.
As a result of the accident, Beam received payments from various
sources. Vongsomchith’s liability insurer, Safeway Insurance Company, paid
its policy limits of $20,000 to Beam. After deducting this $20,000, Beam’s
personal automobile insurer, United Farm Bureau Insurance Company, paid
Beam $80,000 under his underinsured motorist (“UIM”) coverage, which had a
limit of $100,000. Beam was driving a vehicle owned by his employer,
Fairmont Homes, Inc., in the course of his employment. Fairmont was self-
insured for worker’s compensation benefits up to $350,000. Fairmont paid
Beam the entire amount of his medical expenses of $310,206.56 as a worker’s
compensation benefit. Finally, Fairmont’s excess worker’s compensation
carrier, Wausau Insurance Company, made disability payments for temporary
total disability, temporary partial disability, and permanent partial
disability to Beam in the amount of $86,945.14.
In addition to the sources listed above, Fairmont had an automobile
liability policy from Wausau that covered Fairmont and the occupants of its
vehicles as the “insured,” and provided UIM coverage of $1,000,000. Wausau
denied UIM coverage to Beam, and Beam brought this suit against Wausau.
Wausau’s policy contains the following provisions relevant to its UIM
exposure to Beam:
A. COVERAGE
1. We will pay the sums the “insured” is legally entitled to
recover as compensatory damages from the owner or driver of
an “uninsured motor vehicle” or an “underinsured motor
vehicle.”
. . .

C. EXCLUSIONS
This insurance does not apply to: . . .
2. The direct or indirect benefit of any insurer or self-
insurer under any workers compensation, disability benefits
or similar law.
. . .

D. LIMIT OF INSURANCE . . .
2. The Limit of Insurance under this coverage shall be
reduced by all sums paid or payable by or for anyone who is
legally responsible, including all sums paid under the
Coverage Form’s LIABILITY COVERAGE.
3. Any amount payable for damages under this coverage shall
be reduced by all sums paid or payable under any workers’
compensation, disability benefits or similar law.

Before trial, the parties agreed that the jury would determine only
liability and damages, and the propriety of any setoffs for amounts Beam
received from other sources would be determined by the court. It was also
stipulated that the jury verdict should be reduced by the $20,000 from
Vongsomchith’s liability insurer and the $80,000 from Beam’s UIM policy.
The jury allocated fault 55% to Vongsomchith and 45% to Beam, and awarded
Beam $701,371 as net damages. The record does not explicitly indicate how
the jury arrived at this figure or what it concluded the total damages to
be. The trial court awarded setoffs against the jury verdict of $701,371
for (1) the amount Beam received from Vongsomchith’s insurer ($20,000), (2)
Beam’s UIM coverage ($80,000), (3) the worker’s compensation medical
benefits from Fairmont ($310,206.56), and (4) the worker’s compensation
disability payment from Wausau ($86,945.14). The recovery was thus reduced
to $204,219.30.
Beam appealed, claiming the trial court erred when it subtracted these
amounts from his jury award of $701,371. The Court of Appeals rejected
Beam’s arguments and affirmed the trial court decision. Beam v. Wausau
Ins. Co., 743 N.E.2d 1188 (Ind. Ct. App. 2001).
In this appeal, Beam contends: (1) the Court of Appeals erred by not
following a 1994 Court of Appeals case which held similar policy language
to be ambiguous and therefore to be construed in favor of the insured; (2)
the amount of worker’s compensation subtracted from the jury award was
incorrect because the jury award was reduced by Beam’s 45% fault
allocation; (3) the Court of Appeals erred in reviewing a point of law
under a clearly erroneous standard rather than de novo; and (4) the Court
of Appeals wrongly applied the invited error doctrine in addressing the
appropriate method of calculating setoffs of the payments received from
other insurance carriers.

I. Standard of Review

Beam argues that the Court of Appeals erred in reviewing the setoffs
under the “clearly erroneous” standard set forth in Trial Rule 52(A). Beam
contends that Rule 52(A) pertains to cases tried without a jury, and
because this case was tried to a jury, Rule 52(A) has no applicability to
this case. We disagree. Although the issues of liability and damages were
tried to a jury, the issue involving reductions of the jury verdict was
tried by the court without a jury. In coming to its decision, the trial
court in this case made special findings of fact and conclusions of law.
As to the findings of fact, the Court of Appeals properly applied a clearly
erroneous standard. Conclusions of law, however, are reviewed de novo.
Finally,
A “clearly erroneous” judgment can result from application of the
wrong legal standard to properly-found facts, and in that situation we
do not defer to the trial court. We are not bound by the trial
court’s characterization of its results as “findings of fact” or
“conclusions of law.” Rather, we look past these labels to the
substance of the judgment and will review a legal conclusion as such
even if the judgment wrongly classifies it as a finding of fact.

State v. Van Cleave, 674 N.E.2d 1293, 1296 (Ind. 1996).

II. Wausau’s Policy Language is Not Ambiguous

We address Beam’s first argument to resolve the conflicting Court of
Appeals’ decisions reaching opposite conclusions as to whether the policy
language in this case is ambiguous.
Although some “special rules of construction of insurance contracts
have been developed due to the disparity in bargaining power between
insurers and insured’s, if a contract is clear and unambiguous, the
language therein must be given its plain meaning.” Allstate Ins. Co. v.
Boles, 481 N.E.2d 1096, 1101 (Ind. 1985). On the other hand, “‘[w]here
there is ambiguity, insurance policies are to be construed strictly against
the insurer’ and the policy language is viewed from the standpoint of the
insured.” Bosecker v. Westfield Ins. Co., 724 N.E.2d 241, 244 (Ind. 2000)
(quoting Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind. 1996)). A
contract will be found to be ambiguous only if reasonable persons would
differ as to the meaning of its terms. Ind.-Ky. Elec. Corp. v. Green, 476
N.E.2d 141, 145 (Ind. Ct. App. 1985). In insurance policies, “an ambiguity
is not affirmatively established simply because controversy exists and one
party asserts an interpretation contrary to that asserted by the opposing
party.” Auto. Underwriters, Inc. v. Hitch, 169 Ind. App. 453, 457, 349
N.E.2d 271, 275 (1976).
The limitation under paragraph D.2 in Wausau’s UIM coverage expressly
reduces its limits by amounts from other sources. Paragraph 3 reduces “any
amount payable for damages” by “sums paid or payable under any workers’
compensation.” Beam contends that the phrase “[a]ny amount payable for
damages under this coverage” has two interpretations and can either be read
to refer to a reduction from the total damages or from the policy limits.
Based on this claimed ambiguity, Beam argues that this provision reduces
Wausau’s policy limit of $1,000,000, not Beam’s damage award amount of
$701,371, by the amount of his worker’s compensation benefits.
In 1992, this Court found similar policy language to be ambiguous and,
as a result, construed it in favor of the insured. Tate v. Secura Ins.,
587 N.E.2d 665 (Ind. 1992).[1] In Tate, the total award was greater than
the available insurance and the court construed the policy most favorably
to the insured. As a result, the “amount payable” to be reduced was held
to be the amount of the damages, not the policy limits. Id. at 667-68.
That same year, this Court held similar, but distinguishable, policy
language to be unambiguous and interpreted the language to refer to policy
limits rather than total damages the insured incurred. Am. Econ. Ins. Co.
v. Motorists Mut. Ins. Co., 605 N.E.2d 162 (Ind. 1992).[2] Since these
holdings, two lines of Court of Appeals’ cases involving reduction policy
language have evolved, although in many cases the policy language varies
and in some instances the courts have found the peculiar language or other
language of the policy relevant to the case. One line holds similar
language ambiguous and, as a result, construes the policy language in favor
of the insured.[3] The other line of cases holds the language unambiguous,
but the cases differ on whether the language provides for reductions from
the total damages or the policy limit.[4]
Beam argues that the Court of Appeals erred when it declined to follow
Transcon. Technical Serv., Inc. v. Allen, 642 N.E.2d 981 (Ind. Ct. App.
1994), trans. denied. In Transcontinental, the plaintiff, Allen, was
injured by an automobile in the course of his employment and incurred
damages in excess of $500,000. Id. at 982. The party who injured Allen
was insured by State Farm Insurance Company, which paid Allen its coverage
limits of $50,000. Allen also received worker’s compensation benefits of
$206,525 from his employer. Finally, Allen’s employer had liability
coverage from Transportation Insurance Company that contained UIM limits of
$500,000 and language almost identical to Wausau’s.[5] Id. at 983.
Transportation argued that both the $206,525 in worker’s compensation
benefits and the $50,000 from the tortfeasor’s insurer should be subtracted
from the policy limit of $500,000. Allen argued that the reduction for
worker’s compensation paid should come from the total damages, which
exceeded $500,000, rather than from the limit. The Transcontinental court
ruled in favor of Allen and, like Tate, held the policy language was
ambiguous because there were two reasonable conclusions that could be drawn
from it. Id. at 984. The court concluded:
The first conclusion, as argued by the Insurer, is that even though
worded differently, both paragraphs mandate reduction from the
$500,000 limit of liability. The second conclusion is that the “[a]ny
amount payable for damages under this coverage” language refers back
to the initial “Coverage” section, wherein the Insurer promises to pay
“all sums the ‘insured’ is legally entitled to recover as compensatory
damages from the owner or driver of an . . . underinsured motor
vehicle.”

Id. at 984.
The Court of Appeals in this case agreed with Judge Staton’s dissent
in Transcontinental that no ambiguity existed in the policy language and
expressly declined to follow Transcontinental. Beam, 743 N.E.2d at 1193.
Although we believe the Transcontinental court arrived at the proper result
on the facts of that case, we do not agree with Transcontinental’s
conclusion that the policy language is ambiguous. Part D of the policy
refers to “[a]ny amount payable for damages under this coverage.” We think
it is clear that the language provides that the reduction will be taken
from the amount of damages Beam incurred rather than from the policy limit.
The quoted phrase explicitly provides that the reduction will be taken
from Beam’s damages, not the policy limits. The following phrase, “under
this coverage,” is a general phrase contained in insurance agreements that
refers to the scope of the initial insuring agreement, not the dollar
amount of the policy limit. Here, the coverage the policy refers to is
“sums the ‘insured’ is legally entitled to recover as compensatory damages
from the owner . . . of an ‘underinsured motor vehicle.’” Because Beam was
45% at fault, he is legally entitled to $701,371, and any reduction for
worker’s compensation and disability benefits should come from that amount,
irrespective of whether that amount is above or below the policy limits.
If that amount is above the limit, this helps the insured, and if it is
below the limit, it helps the insurer. We think this is not only a neutral
rule, but also consistent with the language of the policy and its purpose
to provide indemnity for covered losses subject to policy limits.
In addition to referring to a reduction of “damages,” it is noteworthy
that when the policy attempts to reduce limits, as opposed to damages, it
chooses language that does precisely that. The language of the limitation
in paragraph 2 provides, “The Limit of Insurance under this coverage shall
be reduced by all sums paid or payable by or for anyone who is legally
responsible, including all sums paid under the Coverage Form’s LIABILITY
COVERAGE.” (emphasis added). This limitation, by reducing the “limit of
insurance,” unmistakably provides that any reduction is to be taken from
the policy limit. Cf. Medley v. Am. Econ. Ins. Co., 654 N.E.2d 313, 316
(Ind. Ct. App. 1995), trans. denied (holding the phrase “limit of liability
will be reduced by all sums paid” was unambiguous and should be interpreted
to provide for a reduction from policy limits).
We think that reducing the award by the amount of recovery from other
sources effects the basic purpose of an insurance policy to cover the
amount of a covered loss, no more and no less, subject only to that
policy’s limits. Reducing limits where the loss is within the limits has
no practical effect and permits a double recovery if the same loss is also
covered by other sources. On the other hand, reducing the limit if an
award is in excess of the limits credits the insurer, not the claimant,
with payments from sources other than the premium. For all these reasons,
we hold that Transcontinental reached the correct result, although based on
incorrect reasoning. The policy language was not ambiguous, but
Transcontinental correctly reduced the worker’s compensation benefits from
the damage award rather than the policy limit.

III. Amount of Setoff for Worker’s Compensation Benefits

Beam contends that the trial court erred in subtracting the full
amount of worker’s compensation from the jury award, which was based on a
55% allocation of fault to the tortfeasor. He bases this contention on two
separate statutes. He first contends that the lien reduction statute,
Indiana Code section 34-51-2-19, is relevant and has the effect of reducing
the jury verdict of $701,371 by $218,433.43 (55% of the worker’s
compensation payment) rather than $397,151.70 (the full amount of those
benefits). Section 34-51-2-19 provides:
If a subrogation claim or other lien or claim that arose out of the
payment of medical expenses or other benefits exists in respect to a
claim for personal injuries or death and the claimant’s recovery is
diminished:
(1) by comparative fault; or
(2) by reason of the uncollectibility of the full value of the claim
for personal injuries or death resulting from limited liability
insurance or from any other cause;
the lien or claim shall be diminished in the same proportion as the
claimant’s recovery is diminished. The party holding the lien or
claim shall bear pro rata share of the claimant’s attorney’s fees and
litigation expenses.

Ind. Code § 34-51-2-19 (1998). Although Beam concedes that there is no
lien involved in this case, he argues that the lien statute needs to be
considered in determining the appropriate reduction in coverage.
Specifically, Beam points out that if he had received the full amount
of the jury’s award from Ms. Vongsomchith or her insurer, he would have
been required to reimburse Fairmont and Wausau a portion of the payments
they made as worker’s compensation benefits. In that case, the worker’s
compensation payors would not be entitled to a dollar for dollar
reimbursement of their payments because the lien reduction statute would
have reduced any lien by both Beam’s 45% share of the comparative fault,
and also by their pro rata share of Beam’s attorney’s fees and expenses in
collecting the award. To reach that result, Beam argues, his net award of
$701,371 should be reduced by only $218,433.43 (55% of the $397,151.70 paid
as worker’s compensation benefits).
The Court of Appeals held that the lien reduction statute does not
apply to this case. We agree. A lien is a “claim which one person holds
on another’s property as a security for an indebtedness or charge.” Hubble
v. Berry, 180 Ind. 513, 519, 103 N.E. 328, 330 (1913). Subrogation
“applies whenever a party, not acting as a volunteer, pays the debt of
another that, in good conscience, should have been paid by the one
primarily liable.” Erie Ins. Co. v. George, 681 N.E.2d 183, 186 (Ind.
1997). By its terms, the lien reduction statute applies only to those
situations where an insurer has already paid monies to an injured party and
is subsequently attempting to recover the amount paid. Sell v. United Farm
Bureau Family Life Ins. Co., 647 N.E.2d 1129, 1133 (Ind. Ct. App. 1995),
trans. denied. Here, there is no claim by an insurer against an insured.
Rather, this claim is a claim being made by the insured, Beam, against the
insurer, Wausau.
Similarly, there is no third party attempting to recover monies
previously paid to Beam prior to the judgment and there is no worker’s
compensation lien in favor of Fairmont. Indeed, the trial court noted in
its findings of fact and conclusions of law, “Fairmont is not a party to
this cause of action and has failed to appear or otherwise file any
documentation with the court concerning any liens against the judgment on
behalf of Fairmont.” The trial court also noted that counsel for Fairmont
was provided notice of a hearing to be held on the credit issue, and
counsel failed to appear.
Beam’s second contention is one that Beam asserts the Court of Appeals
never addressed. He argues that offsetting the net damage award by the
gross amount of worker’s compensation payments is against public policy and
improperly reduces Wausau’s coverage below the liability limits required by
Indiana’s UM/UIM statute. Beam relies on Leist v. Auto Owners Ins. Co.,
160 Ind. App. 322, 329, 311 N.E.2d 828, 833 (Ind. Ct. App. 1974) which held
an automobile insurance policy requiring uninsured motorist coverage to be
reduced by worker’s compensation payments was in derogation of the
uninsured motorist statue and was therefore void as against public policy.
Beam acknowledges that Hardiman v. Governmental Interinsurance Exch., 588
N.E.2d 1331, 1335 (Ind. Ct. App. 1992), trans. denied, held that a setoff
provision for worker’s compensation benefits was not void as against public
policy, but notes that the Hardiman court stated that the prohibition
against reducing the statutory minimum remains. Indiana’s statutory
requirement provides in pertinent part, “The . . . underinsured motorist
coverages must be provided by insurers . . . in limits equal to the limits
of liability specified in the bodily injury liability provisions of an
insured’s policy, unless such coverages have been rejected in writing by
the insured.” Ind. Code § 27-7-5-2 (1993).[6] Beam argues that if Wausau
is permitted to reduce its UIM coverage by offsetting the net damage award
by gross worker’s compensation payments, the effect is to reduce coverage
below the liability limits of $1,000,000, which is impermissible.
First, although Beam asserts Wausau’s policy provided for “liability
limits of $1,000,000,” the record does not include Wausau’s bodily injury
liability limit. Assuming Wausau’s bodily injury liability is
$1,000,000, as Beam asserts, Beam’s contention is not raised by the facts
of this case. Beam states, “Wausau’s policy here has liability limits of
$1,000,000. If Wausau is permitted to reduce its UIM coverage by
offsetting the net damage award by gross worker’s compensation payments,
the effect is to reduce coverage below the liability limits, and this is
impermissible.” It appears Beam is arguing that the reduction for worker’s
compensation diminishes Wausau’s liability limit so that Wausau would never
technically be liable for the full policy limit of $1,000,000, in violation
of section 27-7-5-2. Insurance companies are permitted to offset coverage
by monies the insured receives for worker’s compensation. Hardiman, 588
N.E.2d at 1335. However, as explained below, this allows credit only for
the amounts that duplicate the coverage of the policy. Thus, if the limits
were impaired by this reduction below $602,848.30 ($1,000,000 minus the
$397,151.70 worker’s compensation benefits), Beam might have a point.
Beam’s total damages were $701,371, which is $298,629 below the
$1,000,000 policy limit. Even if the worker’s compensation Beam received
was prorated before the offset or not subtracted from the award at all, his
injuries would never exceed the $1,000,000 policy limit, and Wausau would
not be required to pay the full $1,000,000 limit. In sum, the statute
requires Wausau to provide a limit “at least equal to the limits of
liability specified in the bodily injury liability provisions,” but does
not require Wausau to pay this amount in full when permissible setoffs
exist.
Although neither the lien reduction statute nor Leist is directly
applicable, we think the policy itself leads to the same result Beam seeks.
The relevant exclusion calls for a reduction of the amount paid for “all
sums paid or payable under any worker’s compensation, disability benefits
or similar law.” Read literally and in isolation, this provision would
reduce the damages by the amount of any worker’s compensation benefit paid
to any claimant at any time for any claim. That is of course preposterous
and would render coverage wholly illusory. The provision can only mean
that damages are reduced by the amount of any worker’s compensation benefit
for the same element of damage that the policy insures. Here, because of
the comparative fault finding, only 55% of the worker’s compensation
benefits was for damages that were awarded by the jury. As a result, the
amount subtracted for worker’s compensation benefits should be 55% of the
worker’s compensation medical benefits (55% of $310,206.56 is $170,613.60)
plus 55% of the worker’s compensation disability benefits (55% of
$86,945.15 is $47,819.83). The total damages then become:
$701,371.00 Awarded by the jury
20,000 .00[7] Vongsomchith’s liability policy
80,000 .00 Beam’s underinsured policy
170,613.60 Worker’s compensation medical
- 47,819.83 Worker’s compensation disability
382,937.57 Net amount owed under UIM coverage

This result is consistent with the principle that worker’s compensation
provides benefits without regard to fault and avoids reduction of those
benefits based on the jury’s assessment of Beam’s share of the fault.
IV. Post-Judgment Interest
Because we modify the amount of damages, but do not reverse the
judgment for the plaintiff, post-judgment interest runs from the date of
the original verdict on the modified amount. Indiana Code section 24-4.6-1-
101 calls for post-judgment interest from the date of the “verdict” in a
jury trial or the findings in a bench trial. Kellogg v. City of Gary, 562
N.E.2d 685, 717 (Ind. 1990), Grubnich v. Renner, 746 N.E.2d 111, 115 (Ind.
Ct. App. 2001), trans. denied, and Wedge v. Lipps Indus., Inc., 575 N.E.2d
332, 337 (Ind. Ct. App. 1991) announced the same rule, but each dealt with
somewhat different circumstances.[8] If a judgment is reversed on appeal
and remanded to the trial court for the entry of a new judgment, post-
judgment interest accrues from the date the trial court enters the new
judgment.[9]
This Court has not explicitly addressed the question of whether post-
judgment interest on a modified award runs on the amount after modification
by the reviewing court or on the original amount. Cf. Irvine v. Irvine,
685 N.E.2d 67, 71 (Ind. Ct. App. 1997). Other states have considered this
issue and have come to differing conclusions. Occasionally, courts have
taken the view that post-judgment interest runs on the modified amount from
the date of a modified judgment so that the defendant is not penalized for
taking a lawful appeal. Gonzalez v. City of New York, 539 N.Y.S.2d 418,
422 (N.Y. App. Div. 1989), overruled by Love v. New York, 583 N.E.2d 1296,
1297 (N.Y. 1991). However, this view is unusual and is inconsistent with
the Indiana statute and case law providing that post-judgment interest runs
from the date of the verdict or finding of the court.
Others have determined that interest should be paid on the original
amount from the time of the jury verdict until the date of modification on
appeal and then on the modified award from the time of the modified
judgment. Owens v. Stokoe, 524 N.E.2d 755, 757 (Ill. App. Ct. 1988)
(reasoning that the defendant did not have a reasonable opportunity to
forestall the accrual of interest on the new amount and that it is
unreasonable to expect the defendant to foresee the court’s new judgment).
Despite these variations, the prevalent view in other jurisdictions is
that “where a money judgment has been modified on appeal and the only
action necessary in the trial court is compliance with the mandate of the
appellate court, interest on the judgment as modified runs from the date of
the original judgment.” Gilmore v. Morrison, 341 So. 2d 779, 780 (Fla.
Dist. Ct. App. 1976).[10] We think this is the more sensible view. If a
judgment is increased, this rule compensates plaintiffs for the loss of
money that has been determined to have rightfully belonged to them
throughout the time of the pending appeal. It also reduces the defendant’s
incentive to continue to resist a plainly meritorious appeal merely to
obtain the lower interest cost produced by the initial award. Similarly,
if a judgment is reduced on appeal, interest should run only on the amount
to which the plaintiff is entitled, not on a greater sum. And despite some
courts’ concern that a party may be surprised by a modification, the fact
of a pending appeal gives the parties adequate notice that they may be
liable for interest on a modified amount if the appellant prevails. The
modified amount is the amount that the trial court should have entered on
the original date, and post-judgment interest should run on the modified
amount from the date of the original verdict.

Conclusion

This case is remanded to the trial court with instructions to enter
judgment for the plaintiff in the amount of $382,937.57 with interest
consistent with this opinion.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] The language in Tate provided in pertinent part that “[a]mounts payable
will be reduced by . . . [a]mounts paid” to the insured or on behalf of the
tortfeasor. Tate, 587 N.E.2d at 668. This Court held that because
“amounts payable” was a phrase not clearly defined in the policy, Secura
was “bound by the plain and ordinary meaning of its words as viewed from
the standpoint of the insured,” and did not serve to reduce the limits.
Id.

[2] The language in American involved two insurance policies. Am. Econ.
Ins. Co., 605 N.E.2d at 164. American’s policy limit was found under a
section entitled “Our Limit of Liability” and provided for reduction of
“[a]ny amount payable under this insurance.” Motorists’ insurance policy
limit was similarly found under a section entitled “Limit of Liability” and
provided for reduction of “[a]ny amounts otherwise payable for damages
under this coverage.” In holding the term “amounts payable” refers to the
uninsured motorists coverage limits, this Court distinguished Tate because
(1) the reduction language in the American policies was found under the
“Limit of Liability” which indicated the “amounts payable” referred to the
policy limits, and (2) the “Limit” section was found immediately following
a policy section defining the uninsured limits. Id.
[3] See Sutton v. Littlepage, 669 N.E.2d 1019, 1022 (Ind. Ct. App. 1996)
(“[S]ubject to the above limits of liability, damages payable will be
reduced [by payments]” is ambiguous.); Ansert v. Ind. Farmers Mut. Ins.
Co., 659 N.E.2d 614, 620-21 (Ind. Ct. App. 1995) (“Any amounts payable will
be reduced by [other payments]” is ambiguous.); Transcon. Technical Serv.,
Inc. v. Allen, 642 N.E.2d 981, 983-84 (Ind. Ct. App. 1994), trans. denied
(“Any amount payable for damages under this coverage shall be reduced [by
payments]” is ambiguous.); Delaplane v. Francis, 636 N.E.2d 169, 171-72
(Ind. Ct. App. 1994), trans. denied (“Any amounts payable will be reduced
[by payments]” is ambiguous.).
[4] Compare Medley v. Am. Econ. Ins. Co., 654 N.E.2d 313, 316 (Ind. Ct.
App. 1995), trans. denied (“The limit of liability will be reduced by all
sums paid” was unambiguous and provided for a reduction from policy
limits.) and Hardiman v. Governmental Interinsurance Exch., 588 N.E.2d
1331, 1333-34 (Ind. Ct. App. 1992), trans. denied (“Any amount payable
under this insurance shall be reduced by [other payments]” was unambiguous
and provided a reduction from the policy limits.) with Standard Mut. Ins.
Co. v. Pleasants, 627 N.E.2d 1327, 1329-30 (Ind. Ct. App. 1994), trans.
denied (“The company shall not be obligated to pay under this Coverage that
part of the damages which the insured may be entitled to recover [from the
owner of an uninsured vehicle]” was not ambiguous and provided for a
reduction from the damages the insured is entitled to recover from the
uninsured motorist.); see also Wildman v. Nat’l Fire and Marine Ins. Co.,
703 N.E.2d 683, 686-87 (Ind. Ct. App. 1998), trans. denied (“Any amount
payable under this coverage shall be reduced [by payments]” was
unambiguous, but policy was ambiguous on other grounds thus never reaching
a conclusion as to whether the language was interpreted to mean a reduction
from the policy limits or from the damage amount.).
[5] The relevant policy language in Transcontinental was as follows:
A. COVERAGE
1. We will pay all sums the “insured” is legally entitled to
recover as compensatory damages from the owner or driver of
an “uninsured motor vehicle” or an “underinsured motor
vehicle.”
. . .
D. LIMIT OF INSURANCE . . .
2. The Limit of Insurance under this coverage shall be
reduced by all sums paid or payable by or for anyone who is
legally responsible, including all sums paid under this
Coverage Form’s LIABILITY COVERAGE.
3. Any amount payable for damages under this coverage shall
be reduced by all sums paid or payable under any worker’s
compensation, disability benefits or similar law.
Id. at 983 (citations to record omitted).
[6] Currently found with amendments not relevant to this case at I.C. § 27-
7-5-2 (Supp. 2001).
[7] During the hearing on Motions in Limine held by the trial court on
October 12, 1999, Beam’s counsel agreed that any verdict entered by the
jury should be reduced by the amounts Beam received from Vongsomchith and
from Beam’s personal insurer. The Court of Appeals held, and we agree,
that under the Doctrine of Invited Error, this stipulation precluded
raising on appeal the issue whether these amounts should be deducted from
the policy limits rather than set off against the jury’s award.
[8] In Kellogg and Grubnich the amount of judgment was not modified on
appeal. In Wedge, the appellate court awarded post-judgment interest after
reducing the damage amount, but the opinion does not indicate whether the
interest was to be calculated on the modified amount or the original
amount.
[9] See Stockton Theatres, Inc. v. Palermo, 360 P.2d 76, 78 (Cal. 1961) (A
judgment bears interest from the original date of the award, unless the
judgment is reversed on appeal, then “the new award subsequently entered by
the trial court can bear interest only from the date of entry of such new
judgment.”); Maynard v. Maynard, 251 S.W.2d 454, 456-57 (Ky. Ct. App. 1952)
(“[A] judgment which has been reversed is as though it had never been” and
therefore, interest accrues from the date of the new judgment.); Resner v.
N. Pac. Ry., 520 P.2d 655, 655 (Mont. 1974) (“[W]hen a judgment is reversed
on appeal[,] the new award subsequently entered by the trial court can bear
interest only from the date of entry of such new judgment.”); Mason v. W.
Mortgage Loan Corp., 754 P.2d 984, 986 (Utah Ct. App. 1988) (Where original
judgment was for defendant, but reversed on appeal, interest runs from date
of new judgment.). But see, O’Brien v. State Farm Mut. Auto. Ins. Co., 117
N.W.2d 654, 660 (Wis. 1962) (Where the judgment of the trial court is
reversed, the satisfaction of the judgment vacated, and the verdict of the
jury as to damages for pain and suffering reinstated, interest runs from
the date of the original judgment.).
[10] See also Snapp v. State Farm Fire & Cas. Co., 388 P.2d 884, 886 (Cal.
1964) (“When a judgment is modified upon appeal, whether upward or
downward, the new sum draws interest from the date of the entry of the
original order, not from the date of the new judgment.”); Long v.
Hendricks, 793 P.2d 1223, 1227 (Idaho 1990) (appellate court awarded
interest on the increased amount of medical expenses from the date of the
original judgment); Ulibarri v. Gee, 764 P.2d 1326, 1329 (N.M. 1988)
(“[W]hen an award is remanded for a new decision by reason of
excessiveness, the new award shall accrue interest from the date of the
original judgment.”).