FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

RYAN O. FARNER                                RICK D. MEILS
Glaser & Ebbs                                 JOHN W. MERVILDE
Indianapolis, Indiana                         Meils Thompson Dietz & Berish
                                              Indianapolis, Indiana



                              IN THE                                       FILED
                                                                        Jul 18 2012, 9:17 am
                    COURT OF APPEALS OF INDIANA
                                                                                CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court

HOWARD JUSTICE,                               )
                                              )
       Appellant-Plaintiff,                   )
                                              )
              vs.                             )      No. 49A02-1112-PL-1078
                                              )
AMERICAN FAMILY MUTUAL                        )
INSURANCE COMPANY,                            )
                                              )
       Appellee-Defendant.                    )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Robyn L. Moberly, Judge
                             Cause No. 49D05-1001-PL-1701



                                     July 18, 2012


                              OPINION - FOR PUBLICATION

KIRSCH, Judge
       Howard Justice (“Justice”) appeals from the trial court’s order granting summary

judgment in favor of American Family Mutual Insurance Company (“AFI”). Justice presents

the following restated issue for our review: whether the trial court erred by granting

summary judgment in favor of AFI.

       We reverse and remand.

                       FACTS AND PROCEDURAL HISTORY

       On March 27, 2008, at the intersection of 16th Street and Pershing Avenue in

Indianapolis, Indiana, a car driven by Kathleen Wagner (“Wagner”) collided with an IndyGo

bus driven by Justice in the scope and course of his employment. Justice suffered bodily

injuries as a result of the collision. Wagner was insured by Geico, with a per-person liability

policy limit of $25,000.00. Geico paid its policy limits to Justice, and with AFI’s consent,

Justice settled his claim with Wagner. GAB Robbins provided Justice with worker’s

compensation coverage under a policy carried by his employer, IndyGo. GAB Robbins paid

Justice, pursuant to that policy an aggregate amount of $77,469.56 in benefits, which

represented the following: $51,829.81 paid to medical providers; $18,939.75 for lost

wages/temporary disability; and, $6,700.00 for permanent partial impairment. GAB Robbins

accepted $5,511.06 in satisfaction of its worker’s compensation lien relating to the collision.

       Justice’s damages exceeded Wagner’s policy limits. At the time of the collision,

Justice was covered by a policy issued by AFI that provided underinsured motorist coverage

limits of $50,000.00 per person and $100,000.00 per accident. Justice made a claim against



                                              2
that policy, which was denied by AFI. Justice then filed a complaint alleging that AFI was in

breach of its contract with Justice.

       On August 4, 2011, AFI filed a motion for summary judgment making the argument

that the worker’s compensation setoff provision reduced the limits of the liability policy such

that AFI’s liability under the policy was zero. Justice made the following arguments in

response:    1) that the policy excluded coverage for injuries eligible for worker’s

compensation, thus the worker’s compensation setoff provision would not apply; 2) that if

the setoff provision did apply, the provision applied to total damages and not the limits of

liability; and 3) that the policy was ambiguous and when construed in favor of Justice, the

worker’s compensation setoff provision reduced the total damages as opposed to the limits of

liability of the policy. The trial court held a hearing on the motion on October 21, 2011, and

later granted AFI’s motion for summary judgment without opinion. Justice now appeals.

                             DISCUSSION AND DECISION

       Justice appeals from the trial court’s order granting summary judgment in favor of

AFI. Our standard of review of a summary judgment order is well-settled: summary

judgment is appropriate if the “designated evidentiary matter shows that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Ind. Trial Rule 56(C). Relying on specifically designated evidence, the moving party

bears the burden of making a prima face showing that there are no genuine issues of material

fact and that the moving party is entitled to judgment as a matter of law. I/N Tek v. Hitachi

Ltd., 734 N.E.2d 584, 586 (Ind. Ct. App. 2000). If the moving party meets these two

                                              3
requirements, the burden shifts to the nonmovant to set forth specifically designated facts

showing that there is a genuine issue for trial. Id. A genuine issue of material fact exists

where facts concerning an issue that would dispose of the litigation are in dispute or where

the undisputed material facts are capable of supporting conflicting inferences on such an

issue. Gilman v. Hohman, 725 N.E.2d 425, 428 (Ind. Ct. App. 2000). Even if the facts are

undisputed, summary judgment is inappropriate where the record reveals an incorrect

application of the law to the facts. Id.

       A trial court’s grant of summary judgment is clothed with a presumption of validity,

and the party that lost in the trial court has the burden of demonstrating that the grant of

summary judgment was erroneous. City of Indianapolis v. Byrns, 745 N.E.2d 312, 316 (Ind.

Ct. App. 2001). On appeal, we are bound by the same standard as the trial court, and we

consider only those matters that were designated at the summary judgment stage. Interstate

Cold Storage v Gen. Motors Corp., 720 N.E.2d 727, 730 (Ind. Ct. App. 1999). We do not

reweigh the evidence, but we liberally construe all designated evidentiary material in the light

most favorable to the nonmoving party to determine whether there is a genuine issue of

material fact for trial. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1216 (Ind. Ct.

App. 1999). A grant of summary judgment may be affirmed upon any theory supported by

the designated materials. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind. Ct. App. 2000).

       Resolution of this appeal hinges on the interpretation and application of the insurance

policy provisions relating to worker’s compensation setoffs. We review an insurance policy

using the same rules of interpretation applied to other contracts, namely if the language is

                                               4
clear and unambiguous we will apply the plain and ordinary meaning. Cincinnati Ins. Co. v.

Am. Alt. Ins. Corp., 866 N.E.2d 326, 332 (Ind. Ct. App. 2007). The interpretation of an

insurance policy is generally a question of law appropriate for summary judgment.

Progressive Ins. Co. v. Bullock, 841 N.E.2d 238, 240 (Ind. Ct. App. 2006).

       Borrowing from our Supreme Court’s opinion in Beam v. Wausau, we set forth the

rules of construction of insurance contracts:

       Although some special rules of construction of insurance contracts have been
       developed due to the disparity in bargaining power between insurers and
       insured’s [sic], if a contract is ambiguous, the language therein must be given
       its plain meaning. On the other hand, where 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. A contract will be found to be
       ambiguous only if reasonable persons would differ as to the meaning of its
       terms. 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.

765 N.E.2d 524, 528 (Ind. 2002) (internal citations and quotations omitted).

       The relevant provisions of Justice’s insurance policy with AFI are as follows:

       We will pay compensatory damages for bodily injury which an insured
       person is legally entitled to recover from the owner or operator of an
       underinsured motor vehicle. The bodily injury must be sustained by an
       insured person and must be caused by accident and arise out of the use of the
       underinsured motor vehicle.

       ....

       EXCLUSIONS

       ....




                                                5
       Underinsured Motorists Coverage shall not apply to the benefit of any insurer
       or self-insurer under any worker’s compensation or disability benefits law or
       any similar law.

       ....

       LIMITS OF LIABILITY

       The limits of liability of this coverage as shown in the declarations apply,
       subject to the following:

       1.     The limit for each person is the maximum for all damages sustained by
              all persons as the result of bodily injury to one person in any one
              accident.
       2.     Subject to the limit for each person, the limit for each accident is the
              maximum for bodily injury sustained by two or more persons in any one
              accident.

       We will pay no more than these maximums no matter how many vehicles are
       described in the declarations, insured persons, claims, claimants or policies or
       vehicles are involved in the accident.

       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 accident with an underinsured
              motor vehicle.
       2.     A payment under the Liability coverage of this policy.
       3.     A payment made or amount payable because of bodily injury under any
              workers’ compensation or disability benefits law or any similar law.

Appellant’s App. at 48 (emphasis in original).

       In Beam, our Supreme Court was presented with the very issue presented in this

appeal, i.e., is the proper setoff against a personal injury award for payments received under

worker’s compensation the liability limit or the damages recovered by insured? The Supreme




                                              6
Court held that the proper setoff in that case was against the amount of damages and not the

liability limits. 765 N.E.2d at 526.

       The policy language in Beam, which our Supreme Court found to be unambiguous, id.

at 531, is strikingly similar to the policy language in the present case. We set forth the

relevant underinsured motorist coverage language from that case as follows:

       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.

Id. at 527.


                                                 7
       In Beam, the parties agreed that the jury would determine liability and damages, and

the issue of setoffs would be determined by the trial court. The jury found Beam’s damages

to be $701,371.00 and determined Beam to be 45% at fault. The trial court awarded setoffs

against the jury verdict for 100% of all amounts received by Beam. We affirmed the trial

court. Beam v. Wausau Ins. Co., 743 N.E.2d 1188 (Ind. Ct. App. 2001), trans. granted. On

petition to transfer, the Supreme Court held that the trial court correctly awarded the setoff

against the damages awarded, but erred by reducing the damages award by the gross amount

of worker’s compensation benefits paid. 765 N.E.2d at 533. The Supreme Court held that

the exclusion called for a reduction of damages by any amount of worker’s compensation

benefits received for the same element of damages insured by the policy. Id. Thus, the

Supreme Court remanded the matter to the trial court to enter an order awarding damages

reduced by 55% of the worker’s compensation benefits received.

       In this case, the trial court’s order granting summary judgment reflects, without

opinion, its agreement with AFI that the setoffs should result in a reduction from the UIM

policy limits. Under the rationale of Beam, however, this is incorrect as a matter of law.

After a determination of liability and damages, Justice’s damages award should be reduced

by the $25,000.00 recovery from Wagner and the percentage of worker’s compensation

benefits paid to Justice based upon Wagner’s percentage of comparative fault, up to a

maximum of $25,000.00.

       Reversed and remanded with instructions.

BAKER, J., and BROWN, J., concur.

                                              8
