OK, we’re dating ourselves with this one. But if B.A. Baracus was a coverage attorney he would “pity the fool” who attempted to predict Indiana UM/UIM decisions. In 2006, the Indiana Court of Appeals in Kinslow v. Geico Ins. Co. set off a recovery of equal limits, noting that “the UM/UIM set off statute [Ind. Code 27-7-5-5] seemingly would be meaningless if an insurer could only set off amounts paid to the insured by an uninsured motorist.” There, the applicable policy read:
All sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under the Liability coverage or Motorcycle Medical Payments coverage of this policy; and . . .
Fast forward to 2011. In Masten v. AMCO, the Indiana Court of Appeals softened its stance by finding that a recovery equal to UM/UIM limits is–wait for it–not payment by an underinsured/uninsured motorist, and thus not set off. To arrive at that holding, the Court held that the policy’s set off language was ambiguous when it read that:
The owner’s or operator’s liability . . . must arise out of the ownership, maintenance, or use of the ‘underinsured motor vehicle.’
The Court held that this language emphasizes the limited scope of any set off; i.e. only set-off payments received from an underinsured motor vehicle. So it’s sort of like what Hannibal said in the recent movie: “Give me a minute, I’m good. Give me an hour, I’m great. Give me five years…and I may reach a different result…”