                                                                           FILED
                                                                       Sep 16 2019, 6:28 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicholas C. Deets                                         Christopher D. Cody
Tyler Zipes                                               Georgianna Q. Tutwiler
Hovde Dassow + Deets, LLC                                 Hume Smith Geddes Green &
Indianapolis, Indiana                                     Simmons, LLP
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Steven Glover, as Personal                                September 16, 2019
Representative of the Estate of                           Court of Appeals Case No.
Shelina M. Glover,                                        19A-CT-403
Appellant-Plaintiff,                                      Appeal from the Marion Superior
                                                          Court
        v.                                                The Honorable James B. Osborn,
                                                          Judge
Allstate Property and Casualty                            Trial Court Cause No.
Insurance Company,                                        49D14-1711-CT-41566
Appellee-Defendant.



Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                           Page 1 of 19
[1]   Steven Glover, as Personal Representative of the Estate of Shelina M. Glover

      (the “Estate”), appeals the trial court’s grant of the motion for summary

      judgment filed by Allstate Property and Casualty Insurance Company

      (“Allstate”) and the denial of its motion to correct error. He raises one issue

      which we revise and restate as whether the trial court erred in granting

      summary judgment in favor of Allstate . We affirm. 1


                                            Facts and Procedural History

[2]   This case involves an attempted recovery under an automobile insurance

      policy’s underinsured motorist (“UIM”) provisions for a July 22, 2016 roadside

      collision involving three vehicles driven by Kenneth Bogue, Matthew Hahn,

      and Terry Robinson, which resulted in the death of Shelina M. Glover

      Robinson, 2 who was a passenger in Terry’s vehicle.


[3]   At the time of Shelina’s death, she had an auto insurance policy through

      GEICO insurance (“GEICO”). Her parents, Phillip and Dovie Glover (the

      “Glovers”), were insured under Allstate Policy # 922 379 189 (the “Policy”),

      which provided on the Policy Declarations page for “Uninsured Motorists

      Insurance” coverage limits in the amount of “$100,000 each person” for the




      1
        On cross-appeal, Allstate asserts that the trial court erred in failing to grant its motion for summary
      judgment on the basis it was not properly notified of Shelina’s status as a “resident relative” in the household
      of her parents and that, therefore, she did not qualify as an insured under her parents’ policy with Allstate.
      The Court need not reach this issue because we conclude that the court properly granted summary judgment
      based on Part 3 of the Policy.
      2
          The parties refer to Shelina differently, but do not dispute that she is the decedent.



      Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                                Page 2 of 19
      Glovers’ 2014 Ford Truck Edge and 2006 Ford Truck F150. Appellant’s

      Appendix Volume II at 68-69. It defined “Resident” for use throughout the

      policy as a “person who physically resides in your household with the intention

      to continue residence there.” 3 Id. at 72. It defined “Bodily Injury” for use

      throughout the policy in part as “physical harm to the body, sickness, disease,

      or death.” Id.


[4]   Part 3 of the Policy, titled “Uninsured Motorists Insurance Coverage,” began

      with a general statement of coverage that provided, “we will pay damages

      which an insured person is legally entitled to recover from the owner or

      operator of an uninsured auto because of . . . bodily injury sustained by an

      insured person.” Id. at 80. It defined in part “Insured Person(s)” as “you and

      any resident relative” and an “uninsured auto” as:


               an underinsured motor vehicle which has bodily injury liability
               protection in effect and applicable at the time of the accident in
               an amount equal to or greater than the amounts specified for
               bodily injury liability by the financial responsibility laws of
               Indiana, but:

               a. in an amount less than the applicable limit of liability for this
                  coverage shown on the Policy Declarations; or




      3
       Nontitular words or phrases appearing in bold letters in this decision appear as such in the Policy and
      appear to indicate expressly defined terms.

      Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                              Page 3 of 19
        b. available limits have been reduced to less than the applicable
           limit of liability for this coverage as shown on the Policy
           Declarations.


Id. at 80-81. It provided further in Part 3:


        Limits of Liability

        The coverage limit shown on the Policy Declarations for:

        1. “each person” is the maximum that we will pay for damages
            arising out of bodily injury to one person in any one motor
            vehicle accident, including damages sustained by anyone else
            as a result of that bodily injury.

        2. “each accident” is the maximum we will pay for damages
            arising out of all bodily injury in any one motor vehicle
            accident. This limit is subject to the limit for “each person.”

                                              *****

        The liability limits shown on the Policy Declarations for
        Uninsured Motorists Insurance may not be added to the limits
        for similar coverage applying to other motor vehicles to
        determine the limit of insurance coverage available. This applies
        regardless of the number of:
        1. policies involved;
        2. vehicles involved;
        3. persons covered;
        4. claims made;
        5. vehicles or premiums shown on the Policy Declarations; or
        6. premiums paid.

        THIS MEANS THAT NO STACKING OR AGGREGATION
        OF UNINSURED MOTORISTS INSURANCE
        WHATSOEVER WILL BE ALLOWED BY THIS POLICY.
Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019          Page 4 of 19
        If none of the autos shown on the Policy Declarations is involved
        in the accident, the highest limits of liability shown on the Policy
        Declarations for any one auto will apply.

        The limits of this Uninsured Motorists Insurance shall be reduced
        by:

        1. all amounts paid or payable by or on behalf of any person or
           organization that may be legally responsible for the bodily
           injury for which the payment is made, including, but not
           limited to, any amounts paid under the bodily injury liability
           coverage of this or any other insurance policy;

        2. all amounts paid or payable under any workers’ compensation
           law; and

        3. all amounts paid or payable under any disability benefits law.

        The maximum amount payable for bodily injury under
        uninsured coverage is the lesser of:

        (1) the difference between:

                 (a) the amount paid in damages to the insured by or for
                     any person or organization who may be liable for the
                     insured person’s bodily injury; and

                 (b) the “each person” limit of uninsured motorists
                     coverage provided in the insured person’s policy; or

        (2) the difference between:

                 (a) the total amount of damages incurred by the insured
                     person; and

                 (b) the amount paid by or for any person or organization
                     liable for the insured person’s bodily injury.

        We are not obligated to make any payment for bodily injury
        under this coverage which arises out of the use of an

Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019        Page 5 of 19
        underinsured motor vehicle until after the limits of liability for
        all liability protection in effect and applicable at the time of the
        accident have been exhausted by payment of judgments or
        settlements.

        Non-Duplication of Benefits

        No injured person will recover duplicate benefits for the same
        elements of loss under this or any other uninsured motorists’
        insurance, including approved plans of self-insurance.

        If There Is Other Insurance

        If the insured person was in, on, getting into or out of, or on or
        off of a vehicle you do not own which is insured for uninsured
        motorists, underinsured motorists, or similar type coverage under
        another policy, coverage under Uninsured Motorists Insurance,
        Part 3, of this policy will be excess. This means that when the
        insured person is legally entitled to recover damages in excess of
        the other policy limits, we will pay up to your policy limit, but
        only after the other insurance has been exhausted. No insured
        person may recover duplicate benefits for the same element of
        loss under Uninsured Motorists Insurance, Part 3, of this policy
        and the other insurance.

        If more than one policy applies to the accident on a primary
        basis, the total benefits payable to any one person will not exceed
        the maximum benefits payable by the policy with the highest
        limit of uninsured motorists’ coverage.

        We will bear our proportionate share with other uninsured
        motorists insurance benefits. Our share is determined by adding
        the limits of liability of this insurance to the limits of all other
        insurance that apply on the same basis and finding the percentage
        of the total that our limits represent. This applies no matter how
        many automobiles or automobile policies may be involved
        whether written by Allstate or another company.



Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019           Page 6 of 19
      Id. at 82-83.


[5]   On November 6, 2017, the Estate filed a complaint against Allstate. As

      amended, the complaint alleged: on July 22, 2016, Shelina resided with her

      parents, the Glovers, and “was a ‘Resident Relative’” under the Policy; the

      Policy provided UIM coverage of $100,000 per person; the Policy provided

      UIM coverage for her wrongful death that was excess to Terry’s American

      Family Insurance Company (“American Family”) policy which insured him on

      July 22, 2016; and that the Estate was “contractually entitled to payment under

      the underinsured motorist coverage of [the Policy] that is excess to the

      underinsured motorist coverage” provided by the American Family policy. Id.

      at 12. It further alleged that, on or before August 23, 2016, Allstate entered into

      a resolution determining that Bogue was fifty-two percent at fault and Hahn

      was forty-eight percent at fault for the July 22, 2016 collision and that Bogue’s

      Omni policy and Hahn’s Allstate policy were insufficient to cover the injuries

      and damages resulting from Shelina’s death.


[6]   Bogue’s insurer, Omni Insurance Company (“Omni”), filed an interpleader

      action, and a mediation agreement dated January 15, 2018, under cause

      number 16C01-1610-CT-476 settled claims of several injured parties, was signed

      by numerous parties including the Estate, and indicated Bogue’s Omni policy

      would pay $25,000 to the Estate and Hahn’s Allstate policy would pay $50,000

      to the Estate.




      Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019       Page 7 of 19
[7]   On October 22, 2018, Allstate filed for summary judgment and argued: 1) that

      the Policy’s requirement, that Allstate “be notified of a driver becoming a

      member of a household for purposes of making a claim as a resident relative

      under the policy,” was not met, and 2) that the Estate had received an amount

      equal to or greater than the policy limits of the Policy from others, i.e. “full

      payment” available under the Policy, because it contained “a right of set off for

      payments made by all others as well as an anti-stacking clause.” Id. at 21. In

      the “Statement of Undisputed Facts” section in its memorandum in support of

      summary judgment, Allstate indicated that the mediation in the Omni

      interpleader action resulted in payment to the Estate in the amount of $75,000.

      Id. at 21. It further stated that Shelina’s GEICO auto insurance policy

      contained UIM coverage with limits of $25,000 per person and that “[b]oth [the

      Policy] and [Terry’s] American Family policy contain language that places the

      UIM coverage that listed the vehicle involved in the accident as primary

      coverage.” 4 Id. at 27.


[8]   Allstate designated excerpts of Dovie Glover’s deposition, the Estate’s August

      20, 2018 response to its request for admissions, and copies of the Policy and the

      mediation agreement. In the response to Allstate’s request for admissions, the

      Estate admitted that it had received settlements from various parties and

      insurance companies from the accident that led to Shelina’s death in amounts



      4
       Prior to this statement, Allstate indicated that the “policy of underinsured motorist coverage issued to Terry
      Robinson and listing the 2005 Toyota contains the following terms” and quoted without citation what it
      asserted to be an excerpt of Terry’s American Family policy. Appellant’s Appendix Volume II at 26.

      Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                               Page 8 of 19
       totaling $100,000 or more. On December 21, 2018, the Estate filed a response

       and cross-motion for summary judgment, in which it indicated that American

       Family and GEICO both paid it $25,000 in UIM benefits, making its UIM

       recovery a total of $50,000, and that it “then brought th[e] claim against Allstate

       for additional UIM benefits” – i.e., it was seeking the “remaining $25,000 in

       UIM coverage” under the Policy. Id. at 166, 179. It designated an affidavit of

       Dovie Glover and a copy of Bogue’s Omni auto policy.


[9]    On January 24, 2019, the court granted summary judgment for Allstate “based

       solely on [Allstate’s] position regarding offsets,” and denied it with regard to the

       “question of notification.” Id. at 201.


                                                    Discussion

[10]   The issue is whether the trial court erred in granting summary judgment in

       favor of Allstate. Summary judgment is appropriate only where there is no

       genuine issue of material fact and the moving party is entitled to judgment as a

       matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of

       Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable

       inferences drawn from those facts are construed in favor of the nonmovant.

       Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is

       limited to those materials designated to the trial court. Id. Under Trial Rule

       56(C), the moving party bears the burden of making a prima facie showing that

       there are no genuine issues of material fact and that it is entitled to judgment as

       a matter of law. Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.

       2012). If it is successful, the burden shifts to the nonmoving party to designate
       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019      Page 9 of 19
       evidence establishing the existence of a genuine issue of material fact. Id. In

       reviewing a trial court’s ruling on a motion for summary judgment, we may

       affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v.

       Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).


[11]   The Estate argues that it “may seek up to $100,000 in underinsured motorist

       benefits” and that the “additional $25,000 in underinsured motorist benefits

       sought under [the Policy] will only bring the total underinsured motorist

       recovery to $75,000.” Appellant’s Brief at 19. It asserts it made UIM claims

       first under Terry’s American Family policy and Shelina’s GEICO policy and,

       then, it made a claim for additional, excess underinsured benefits under the

       Policy. It claims that, “even where policies contain valid reduction and anti-

       stacking clauses,” a plaintiff is “entitled to make multiple underinsured motorist

       recoveries, i.e. he may ‘stack’ UIM recoveries or payments – so long as the

       aggregate underinsured motorist recovery does not exceed the highest

       applicable limits.” Id. at 17.


[12]   Allstate maintains that the Policy “mirrors . . . Ind. Code § 27-7-5-5,” “is

       identical to the provisions contained in Ind. Code § 27-7-5-5(c),” 5 and contains




       5
        Ind. Code § 27-7-5-5, which deals with “Limitations on Coverage” for uninsured and underinsured
       motorist coverage, provides:
               (a) The policy or endorsement affording coverage specified in this chapter may provide that the total
               limit of all insurers’ liability arising out of any one (1) accident shall not exceed the highest limits
               under any one (1) policy applicable to the loss, but in no event may coverage be less than the
               minimum set forth in IC 9-25-4-5.



       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                              Page 10 of 19
       an anti-stacking provision which limits the total recovery an injured party can

       recover to no more than the highest applicable UIM limit. Appellee’s Brief at

       13. It contends that the Estate recovered all payments available to it because

       both American Family and GEICO paid an additional $25,000 under the UIM

       provisions of their respective policies and that, “[t]herefore, because the highest

       policy limit available to the Estate in this case is $100,000, and the Estate has

       received $125,000 in overall payments, the Estate has received an amount equal

       to or greater than what it was owed under the limits of the various policies.” Id.

       at 8.


[13]   In its reply brief, the Estate argues that Allstate is entitled to use its offset

       provision in the Policy to reduce its $100,000 underinsured motorist limits by

       $75,000, or the amount the Estate received in liability recoveries, “but not by

       the $50,000 the Estate received” in UIM recoveries, leaving “$25,000 in

       underinsured motorist benefits available under the Policy.” Appellant’s Reply




                                                             *****
               (c) The maximum amount payable for bodily injury under uninsured or underinsured motorist
               coverage is the lesser of:
                        (1) the difference between:
                                 (A) the amount paid in damages to the insured by or for any person or
                                 organization who may be liable for the insured’s bodily injury; and
                                 (B) the per person limit of uninsured or underinsured motorist coverage provided
                                 in the insured’s policy; or
                        (2) the difference between:
                                 (A) the total amount of damages incurred by the insured; and
                                 (B) the amount paid by or for any person or organization liable for the insured’s
                                 bodily injury.

       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                            Page 11 of 19
       Brief at 9. It also contends that the anti-stacking provision “does not bring the

       liability recoveries into play whatsoever” and that the application of “an

       independent offset provision followed by an anti-stacking provision” is such

       that “after the offsets [a]re applied, the antistacking provision applie[s] to prevent

       the insureds from obtaining a total underinsured motorist recovery of more than

       the underinsured motorist policy limits.” Id. at 10-11 (citing American Economy

       Ins. Co. v. Motorists Mut. Ins. Co., 605 N.E.2d 162, 164-165 (Ind. 1992)).


[14]   “Insurers are free to limit the coverage of their policies, but such limitations

       must be clearly expressed to be enforceable.” State Farm Mut. Auto. Ins. Co. v.

       Jakubowicz, 56 N.E.3d 617, 619 (Ind. 2016). This Court has explained:


               Insurance contracts “are governed by the same rules of
               construction as other contracts.” Colonial Penn Ins. Co. v. Guzorek,
               690 N.E.2d 664, 667 (Ind. 1997). The interpretation of an
               insurance contract is a question of law, and we address it de novo.
               Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005).
               Clear and unambiguous policy language is given its ordinary
               meaning in order to accomplish the primary goal of contract
               interpretation of determining the intent of the parties at the time
               the contract was made as disclosed by the language used to
               express their rights and duties. Holiday Hospitality Franchising, Inc.
               v. AMCO Ins. Co., 983 N.E.2d 574, 577-578 (Ind. 2013). Where
               contractual language is ambiguous, we generally resolve those
               ambiguities in favor of the insured, but will not do so if such an
               interpretation fails to harmonize the provisions of the contract as
               a whole. Id. at 578. The failure to define a contractual term does
               not necessarily make that term ambiguous, nor does a simple
               disagreement about the term’s meaning. Id. Rather, an
               ambiguity exists where the provision is susceptible to more than
               one reasonable interpretation. Id.


       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019          Page 12 of 19
       Anderson v. Ind. Ins. Co., 8 N.E.3d 258, 262 (Ind. Ct. App. 2014).


[15]   As stated above, Part 3 of the Policy states that the liability limits shown on the

       Policy’s Declarations page may not be added to the limits for similar coverage

       applying to other motor vehicles to determine the limit of insurance coverage

       available, “regardless of the number of . . . policies involved[,] vehicles

       involved[,] persons covered[, or] claims made.” Appellant’s Appendix Volume

       II at 82. The Policy then indicates this is to mean no stacking or aggregation of

       uninsured motorists insurance policies is allowed. Thus, the Policy’s UIM

       coverage limit in the amount of “$100,000 each person” is not to be increased,

       or stacked, regardless of the number of policies, vehicles, persons, or claims

       involved. 6


[16]   The Policy states on the same page that the “limits of this Uninsured Motorists

       Insurance shall be reduced by [] all amounts paid or payable by or on behalf of

       any person or organization that may be legally responsible for the bodily injury

       for which the payment is made, including, but not limited to, any amounts paid

       under the bodily injury liability coverage of this or any other insurance policy.”

       Id. In Kinslow v. GEICO Ins. Co., 858 N.E.2d 109 (Ind. Ct. App. 2006), this

       Court interpreted similar setoff provisions and stated:




       6
         To the extent that the Estate cites Progressive Ins. Co., Inc. v. Bullock, we note that the policy in that case
       lacked an anti-stacking provision. See 841 N.E.2d 238, 241 (Ind. Ct. App. 2006) (“In absence of an anti-
       stacking clause in its contract with [the deceased plaintiff], Progressive’s claim against stacking [the plantiffs’]
       recovery fails.”).

       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                                  Page 13 of 19
               The language of Indiana Code Section 27-7-5-5(c) does not
               provide a set formula for calculating setoffs in all cases, but it
               does establish maximum and minimum parameters for the
               amount of recovery a plaintiff is entitled to as a result of a UM or
               UIM claim. Gardner v. State Farm Mut. Ins. Co., 589 N.E.2d 278,
               281 (Ind. Ct. App. 1992), trans. denied. We also conclude that the
               language of the statute is clear and unambiguous and is not open
               to interpretation. It says that the maximum UM or UIM bodily
               injury benefits to which an insured is entitled as the result of an
               accident is the lesser of the difference between the amount already
               recovered by the insured less the per person limit of UM/UIM
               coverage in the insured’s policy, or the difference between the
               total amount of damages incurred by the insured and the amount
               already recovered by the insured.


       Id. at 114. Here, the Policy provides that the “limits . . . shall be reduced by []

       all amounts paid . . . .” Appellant’s Appendix Volume II at 82 (emphasis added).

       The Estate has received amounts paid from other insurance policies which in

       sum totaled more than $100,000; namely, $25,000 from Bogue’s Omni policy,

       $50,000 from Hahn’s Allstate policy, $25,000 from Shelina’s GEICO policy,

       and $25,000 from Terry’s American Family policy. Accordingly, the Policy’s

       UIM limit was reduced to zero. The Estate is not entitled to further recovery

       under the Policy.


[17]   To the extent that the Estate draws upon Am. Econ. Ins. Co. v. Motorists Mut. Ins.

       Co., 605 N.E.2d 162 (Ind. 1992), to argue that the Policy’s “legally responsible”

       language “only creates an offset for liability settlements,” Appellant’s Brief at

       10, and that anti-stacking provisions apply after offset provisions “to prevent the

       insureds from obtaining a total underinsured motorist recovery of more than the


       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019      Page 14 of 19
underinsured motorist policy limits,” we do not agree. In Am. Econ. Ins. Co.,

the Indiana Supreme Court examined only the policies’ express limitation of

liability, clarified that the policies’ “more clearly delineated provisions”

expressed “amounts payable” as “a sum limited to uninsured motorists

coverage limits,” and summarily affirmed “that portion of [this Court’s]

opinion analyzing the anti-stacking provisions that found they were clear and

unambiguous.” 7 605 N.E.2d at 164-165. In a footnote, the Indiana Supreme

Court stated:


         In discussing the potential recovery available under the excess
         coverage provided by Motorists, we note the policy provision
         that amounts payable under its underinsured motorists coverage
         are to be reduced by sums paid “because of the bodily injury or
         property damage sustained by or on behalf of persons or
         organizations who may be legally responsible.” It may seem
         unclear whether this would require a reduction to be made for
         payments from American’s underinsured motorists coverage.
         The policy provision is analogous to Ind. Code § 27-7-5-
         5(c)(1)(A) which permits a reduction for “the amount paid in
         damages to the insured by or for any person or organization who
         may be liable for the insured’s bodily injury” (emphasis added).
         This reduction would not include underinsured motorists
         coverage payments made by American. We view the policy
         limitation to be no more restrictive upon the insured than the



7
  In Am. Econ. Ins. Co. v. Motorists Mut. Ins. Co., 593 N.E.2d 1242 (Ind. Ct. App. 1992), aff’d in part and vacated
in part by 605 N.E.2d 162, this Court found that the policies contained clauses which precluded the stacking
of underinsured motorist coverages; i.e., the American Economy Insurance Company policy contained a
clause providing that the “maximum limit of liability under all the policies shall be the highest applicable
limit of liability under any one policy” and the Motorists Mutual Insurance Company policy contained a
clause providing that “[a]ny recovery for damages for bodily injury or property damage sustained by an
insured may equal but not exceed the higher of the applicable limit for any one vehicle under this insurance
or any other insurance.” 593 N.E.2d at 1244 (emphases omitted).

Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019                                  Page 15 of 19
               statutory language. We therefore construe the Motorists’s policy
               phrase to refer only to sums from those directly liable for causing
               the injuries, and to not permit reduction from amounts payable
               for sums from American’s underinsured motorists coverage. As
               a matter of public policy, however, in no event will Motorists be
               required to pay an amount which would result in compensation
               to the insured for more than the total actual damages sustained.


       Id. at 165 n.5. We find that the limitations expressed in the Part 3 of the Policy

       are sufficiently different from those in the policy in Am. Econ. Ins. Co., and thus

       we do not construe the Policy to refer “only to sums from those directly liable

       for causing the injuries.” Id.


[18]   We further do not find availing the Estate’s reliance on Wagner v. Yates, 912

       N.E.2d 805 (Ind. 2009). In that case, the plaintiff received injuries in an

       automobile collision while driving a vehicle owned by her employer, and the

       Indiana Supreme Court addressed a clause in her own automobile insurance

       policy which provided: “The limits of liability of this coverage will be reduced

       by: 1. A payment made or amount payable by or on behalf of any person or

       organization which may be legally liable, or under any collectible auto liability

       insurance, for loss caused by an underinsured motor vehicle.” 912 N.E.2d at

       808. The plaintiff recovered $50,000 from the purported tortfeasor “who ‘may

       be legally liable’ for ‘loss caused by an underinsured motor vehicle,” and the

       Court found that the defendant insurer’s liability was reduced by the amount

       that the insurer of the purported tortfeasor paid to the plaintiff. Id. at 809. The

       Court then addressed the question of whether any sums “that may be payable to

       [the plaintiff] by [her employer’s insurer] are similarly treated” and stated:

       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019      Page 16 of 19
        American Family argues that a UIM provider “effectively
        stand[s] in the shoes of a tortfeasor during evaluation of
        coverage.” But the Court of Appeals rejected a similar argument
        in Progressive Ins. Co., Inc. v. Bullock, 841 N.E.2d 238 (Ind. Ct.
        App. 2006), trans. denied. The summarized facts in Progressive are
        these. Misty Bullock and her children were passengers in a car
        driven by Teresa Jones. They were injured when struck by a car
        that Rosie Kemp was driving. The following insurance was in
        play: Kemp was insured by Indiana Insurance Company in the
        amount of $25,000 per person and $50,000 per accident; Jones
        had UIM coverage with Farm Bureau Insurance Company in the
        amount of $50,000 per person and $100,000 per accident; and
        Bullock had UIM coverage with Progressive Insurance Company
        in the amount of $50,000 per person and $50,000 per accident.

        Under terms of an agreement with Kemp, Indiana Insurance,
        Jones, and Farm Bureau, Bullock released the children’s claims
        against those parties in exchange for $24,500 from Indiana
        Insurance and $80,500 from Farm Bureau. This left only the
        issue of Progressive’s liability to Bullock. Progressive argued that
        after set-offs of payments made by Farm Bureau and Indiana
        Insurance Progressive owed no obligation under its policy. In
        relevant part the policy declared:

                 The Limits of Liability under [the UIM provision] shall be
                 reduced by all sums . . . paid because of bodily injury or
                 property damage by or on behalf of any person or
                 organizations who may be legally responsible . . . .

        Id. at 241 (emphasis and alterations in original). The Court of
        Appeals agreed that Progressive was entitled to a set-off for the
        $[2]4,500 paid by Indiana Insurance. However, the court
        rejected Progressive’s argument that “Farm Bureau effectively
        stands in the shoes of the tortfeasor” and thus Progressive was
        entitled to set off the payment made by Farm Bureau. Id. at 242.
        The court elaborated:



Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019      Page 17 of 19
                        To the extent . . . Progressive is arguing that Farm Bureau
                        is legally responsible for Kemp’s negligence simply
                        because Farm Bureau provided UIM coverage to Jones,
                        this argument . . . fails. The underlying purpose of UIM
                        coverage is to give the insured the recovery he or she
                        would have received if the underinsured motorist had
                        maintained an adequate policy. Progressive provides us
                        with no authority that UIM coverage is intended to make
                        a UIM insurance provider directly liable for the negligent
                        acts of the tortfeasor.

               Id. (internal citations and quotations omitted). We agree with the
               Court of Appeals’ assessment. And as applied in this case we
               construe the phrase in American Family’s policy, “payment
               made or amount payable by or on behalf of any person or
               organization which may be legally liable” as referring to
               payments by or on behalf of those directly liable for causing the
               injuries. This phrase does not require reduction from amounts
               payable for sums from State Farm’s UIM coverage. Accord Am.
               Econ. Ins. Co. v. Motorists Mut. Ins. Co., 605 N.E.2d 162, 165 n.5
               (Ind. 1992) (construing similar provision and declaring the
               “reduction would not include underinsured motorists coverage
               payments made by [a third party’s insurance carrier]”).


       Id. at 809-810 (some internal citation omitted).


[19]   Here, consistent with Wagner, GEICO and American Family were not directly

       liable for the negligent acts of then-potential tortfeasors Bogue and Hahn by

       virtue of providing Shelina with UIM coverage under their policies. However,

       even though the UIM providers are not directly liable, we cannot say they are

       not legally responsible under the Policy.




       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019       Page 18 of 19
[20]   For the foregoing reasons, we affirm the trial court’s entry of summary

       judgment.


[21]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-403| September 16, 2019   Page 19 of 19
