good morning all our first case this morning is friday versus our owners insurance company mr anderson may please the court this case involves two significant issues relating to indiana insurance law the first of these is whether indiana code twenty seven seven five two requires insurers who agreed to provide commercial umbrella you i am or under insured motors coverage to provide that coverage an amount equal to the all liability limits the second is whether or not the workers compensation in this  case whether the set off the five either by reason of interpretation of the policy or by reason of public policy in this sense we have a little bit of time some i'd like to discuss a little bit with you not other two significant issues both the statute i've already cited i'll just call to you i am statute and i the case of to preview which around nineteen ninety nine the case of the previous significant case in indiana and interpretating insurance in law in indiana is basically the the ruling held that if an excess policy whether it's an automobile policy or not has to comply with india as you i am statute and but what it really did also was create a policy of let's find a property let's find out for keisha let's find a way to make insurance apply and coverage apply rather than not apply and so in that really is your major argument here that indiana statute is a mandatory coverage full recovery remedial statute so how do you reconcile this with the legislature's clear language that certain policies are exempt from the statutes uninsured and under insured motorists insurance requirements and i  and that's our point as well and i will do that it's just going to take a little bit of time so well you know the sooner you can get to my question that would be helpful sure well the short answer to that is that the way that the statute has evolved over time  that's the shortest subsection d came along after the three zero subsection d the statute basically says that commercial umbrella liability policies are not obligated to provide the coverage listed in subsection a and subsection a is what makes all the mandates you have to provide you i am limits the same as liability moments so subsection decent will you commercial  you i am liable if by that you don't have to do that you don't have to provide that coverage the statute itself however is silent when it comes to what happens when the insurance company actually decides to provide coverage and then that coverage is not wit and one couldn't say and i believe the district court did this but the district court was to interpret that silence to mean that it doesn't have to do anything that subsection a requires even though subsection a says coverage does but what happened was and what it essentially cleared the air on this was subsection eight which was then added in two thousand and thirteen subsection h applied to personal commercial i'm sorry personal umbrella u i and policy and legislature said all right if you provide a first will you i am policy if you decide to provide that coverage even though you don't have to if you do that then you can you can decide whatever limits you want to do it says that clearly and explicitly under subsection age and that goes back to the language also in depreciation which appreciate basically said was there has to be an expressed directive of exemption  that's language you'll find in both groups there has to be an expressed directed by the legislature that this statute does not apply to and subsection d as it relates to commercial policies is silent and what the district court did w it took that silence as well we're just in apply it to all things we're going to play that to coverage but we're also going to apply to limits but the statute is silent s what happens once coverage is issued and there's no dispute the coverage was issued here there's no dispute that the u i and policy was provided it was just provided of one million rather than five and it should and the limits obviously were five million in this case so our contention is that it should be five as well so once you have that express directive there are like subsection h does you can go back and read subsection d the way the district court did so if we play it out to its logical end ok so the district court essentially ruled that subsection d states that it will read subsection d t mean that the insurer can adjust limits however it wants to once even if they provide coverage that they don't  have to now subsection h which was later had it says like i said that exact same thing it says said but it only relates to personal umbrella policies it does not give what we call that express directive exemption to commercial u i an umbrella policy so since it does not do that if we played out to its logical end the way the district court read subsection d would be to mean the exact same thing as subsection age even though subsection h says moore did you make this argument to the district court yes it was made to the district court it was dismissed out of hand essentially i would suspect to the district court saying that personal rely on policies umbrella policies were just that personal and therefore was and was distinguishable which we disagree with obviously in fact that's our point it is distinguishable the fact of personal growth policies can do this but commercial policies are not given explicit permission to do this is exactly what makes them distinct so the argument was made but i don't think it was i don't think the ruling was correct obviously now as far as  him one other thing that the district court did one argument that we made was i think it it almost in a sense confuse the terms of the coverage with coverage and limits those are two terms that are really sort of what the district court did was say well you don't have to provide coverage we're going to take that to mean for the court took that to mean that we're not going to provide that relates to coverage limits limitations and cover when those tooth and that would be all well and good i should say but it doesn't make sense when you read it in conjunction with subsection age and this again goes back to how we read statutes in indiana how  and we would also  but i mean the statute itself would provide coverage here so i pulled it but either way the history of the indiana case law and the history of the statutes i think overwhelmingly shows that there's a decision to be made here in favor of coverage i don't think the district court got a right but it said that we're not going to but we're going to interpret it or call it distinctive because of personal umbrella policy and that was really the only hook and the only rationale for the district court's decision and as to the workers comp set off that's a little bit trickier and that's just a matter i think of mostly policy interpretation but also an issue interpretations so the set off basically says that any amount paid by workers comp insurance is then which is in excess of the retained limit is deducted from the overall limit of the policy and retain limit is not defined as an amount that is paid it's defined as a number so pertain women in this case was one million dollars now our position is that this is an ambiguous provision you can read that means that it does retain limit meaning one million dollars that's paid or and therefore any amount that's paid above that or doesn't mean there is a just setting an arbitrary figure you have a retention limit or attainment of a million dollars and anything that goes beyond that that's when the set up believe it's an ambiguous provision and again if there is ambiguity reasonable ambiguities where reasonable minds can differ on these things that has to be construed again in favor of the ought to on or suggest it does is that you would have to read retaining limit to be something that was already paid in other words we're not saying that you know retain limit here is just an arbitrary figure it's not something that actually is paid to come into effect in it it's couched in terms of limits not limits paid and i think that's a it's an important distinction because if you're just saying ok well any amount that you pay over a million dollars then deduct it from the top of this that's fine and that's our privilege but if you're saying that any amount that's automatically paid apart from the underlying no and that's completely different so i believe that there is ambiguity there with respect to where we set that benchmark do we set it at zero or do we set it at a million dollars and a reasonable interpretation be made for both but i think it's even more reasonable to interpret it in the manner that we suggest and just from a policy perspective as well workers compensation benefits don't we don't think that should be applied under justice because workers comp benefits and this is kind of a novel argument where there are different from liability benefits and you i am benefits under the in a law work and so you're basically in a sense when you're taking off this excess weight is you're basically swapping out less coverage from all his work comp only covers medical some partial lost wages partial disability whereas damages that emanate from an injury are far more so really what they've done is they've provided less coverage for less injuries and more as far as the you know damages that we get from liability cases or from injury cases those go anywhere from  good morning as counsel indicated there are two basic issues in this case whether the liable or umbrella under insured motors limits are one million as a declaration pages identify described in subsection eight of the statutes the key term is coverage descried when we turn to subsection a subsection a identifies all the curve bridges and requirements under the u i and statute the curve reaches descried include the minimal limits pursuant to the liability statutes of indiana discoveries described includes that the u i am limit must be at least equal to the liability limit the coverage described also includes a minimal limit of fifty thousand for any under insured motorists policy those are all the coverages described in subsection  when the legislature enacted in two thousand and nine section d it exempted commercial umbrella carriers from all of those coverages described according this autumn disposition that once that statute took effect in two thousand and nine it no longer as an umbrella carrier was required to provide any of those coverages described in subsection that would include providing under insured motorists coverage and limits  liability limits so we think the language itself is very important we believe the language here to be clear and unambiguous in this matter no where in the statute does the legislature instruct that portions of such subsection a are exempted there is nowhere in the statute where the legislature instructs that some of the requirements still apply to embroil a carriers no where in the statute does it require specifically that under insured motorist carriers provide equal limits after the publication of the two thousand and nine and rather the two thousand and nine and nimitz merely states that insurer is not required to make available the coverage described in subsection may not force things up but not some of it all or we believe the district court got that right when it determined that auditors no longer had to provide you i am coverage in limits give equal to the liability policy after the two thousand and nine amendment went into effect in effect two to read the statute as the fries would have the court read it would would basically discourage umbrella carriers from providing under insured motorists coverage because they have two choices according to the fry's either don't provide it at all and you're fine and you are in compliance with the statute or ply provided with limits at least equal to the liability well i would imagine that most carriers will opt to not provide it at all and therefore they would not be in violation the statute according to the fries i think that would be counter to the legislative intent the legislative intent would be to  encourage insurers to provide coverage is so when it changed the statute here it basically said if you are an umbrella carrier you don't have to provide coverage for uninsured motorists at all and if you want to provide it you can do it in any limit you want to there's no prohibition against that so again because the district court here got the you got the interpretation of the statute correct we also believe that the legislative history of the evolution of this  whether an umbrella commercial policy has to comply with the statute said well the legislature hasn't said one way or the other so we're going to assume it should be covered unless the court gave us a cavity unless the legislature expressly tells us that we're wrong basically that our interpretation is incorrect and that's exactly what happened in two thousand and five the legislature amended the statute by passing  president had in fact invited the legislature to provide the express directive and it did so the legislature went one step further in two thousand and nine and acted what we're discussing today basically paragraph d and in that particular in turn ation it actually put the exemption within the u i in statute itself and again it was addressing the freezer go and getting now the express determination from the legislature that it did not anticipate or expect umbrella carriers to provide you am i in coverage in any way shape or form so we think that and then in two thousand and thirteen the legislature did one more step and then exempted personal umbrella policies from the statute so we have an evolution here of the legislature giving an express directive basically telling us that umbrella carriers are no longer  exempted commercial policies yes is there anything in the senate or the language of that that indicates an intent to allow the commercial umbrella policies to the extent they choose to provide it to do it in any manner they wish not expressed like what it what it says is de exempts umbrella carriers from the coverage as described in subsection a it's a very broad statement so you have to go to subsection a and you look through all the coverages that are described in subsection a and there's quite a few but the simple language of the exams the coverage described so we believe that this report was correct in saying that that exams all of the language of big of subsection a as applied to commercial umbrella policies solely all of subsection a would still apply to regular commercial policies you would also continue apply to personal policies and it still shall be reduced by any amounts paid under workers compensation which are in excess of the retained limit here the policy the fines retain limit as the underlying policy which has a million dollars and limit the amounts we don't believe that language is an big us or unclear at all that the phrase which are in excess of retain limit basically means those amounts that are paid that are above and beyond the coverage limit that's already been paid here to retain them out is one million we know that one hundred thousand of that amount that was paid by the underlying tort carrier the nine hundred thousand was paid by the owners under its commercial policy and there we have the one million in retained limits that's already been taken care of the workers compensation benefits that are issued here total cost only six hundred  seventeen thousand dollars that amount was not part of the one million previously paid it's not part of the retained limits it was not subject to any other set off so the work comp amount that's paid is an excess that retainer on that it's above and beyond the amounts that have already been paid our language allows a set off or any amounts paid that are in excess of the retained limit or in excess of the one million that's already been satisfied because the work comp amount is above that amount is greater than what was already paid below a set off is that allow and in a full recovery statute will not necessarily assure a full indemnification for all potential damage to all potential defendants so if you think of you i am for it as basically a safety  net were insured is entitled to receive a recovery up to the amount of the under insured motorists limit but that amount can come from any source of income from other policies or other liability carriers as long as the total amount reaches that number if the other carriers or other sources are minimal then the u i and policy pays more if the other coverages are higher the union pella policy case less because the goal is to make sure that the claim of the insured as long as evidence allows satisfies that threshold amount at two million dollars and here the that's what what what's worked out because we have really two million dollars auditors we had one million and under the commercial auto policy which is below underlying policy here we are one million in the umbrella policy we have one one hundred thousand those paid by the tor carrier we have nine hundred thousand that was paid by orders under us commercial auto policy which is now a million workers compensation a mouth which we believe we can set off has already been paid by the work comp carrier that six hundred seventeen thousand and all the owner says pay the difference under its umbrella you i am policy of three hundred eighty three thousand dollars when you add those numbers up together the insured here has received two million and that's the the amount total under insured motors coverage available through auto owners when you add the two policies together so the purpose of the u i m concept is satisfied here by these probably hundreds of cases cited in even indiana courts allowing settles for work comp and for other methods throughout council side of the justice case justice versus american family which is another indiana supreme court case  which i think both parties decided to in their briefs the justice case didn't say the workers compensation set off for against public policy globally it just said in that particular case it was because in that the issue was whether reducing or allowing a set off would reduce the insurance recovery below the minimal standard minimal statutory limits of fifty thousand dollars what would happen in that case was there was  said we want to set off a full seventy one thousand from argue i am policy which will reduce their yuan policy limits to zero the court said can't do that because when you do that the insured only has available twenty five thousand not the full fifty and because fifty thousand is what statutorily required you have to give that to him so the court in that case required the u i and care to pay twenty five that way the the for the security twenty five t to fifty thousand and you i am statutory benefits was then satisfied here we don't have that here though that when the accident occurred in january of two thousand and eleven the statutory minimum was fifty thousand well here the underlying tortfeasor of policy was one hundred that was already paid to the fries so we're well above that fifty thousand threshold therefore they using the set off in this case in the auto response see it's certainly not against public a couple of points briefly as to the first point on the first issue nothing and the way the statute is written now what authorize auto owners to do what it's trying to do the statute speaks in terms of exemption only in coverage as far subsection d goes subsection h says ok well when you do provide coverage you are allowed to do this you are allowed to change the limits so the way that it's being interpreted now it is simply not a way that that it could be applied if it were silent movie up for debate and every indiana case out there speaks in terms of coverage that every mia case has debated this ok there's no coverage here fine or you don't provide coverage nothing addresses what happens when you do decide to provide coverage when you waive your right not to provide that understand  statutory silence is not construed in favor of the insured here either again there has to be an express directed if there is silence it cannot it would be fixed construed in favor of the insured in favor of coverage in favor of recovery as far as the set off goes that nothing in that policy mentions liability amounts paid and i want to pay particular attention to the definition of free tain't limited retain limit under the policy means  the greater oh i support the bill limits of liability of any and all underlying policies or five hundred thousand dollars so that language is very clear it's not the greater amount of amount anything within the policy defining any different and so when you have that ambiguity when you can interpret it reasonably in our day that has to be construed in favor of coverage in payer national forest policy goes under justice or in the street or made clear that there's an intent by our legislature to give insurers the opportunity for full compensation for injuries inflicted by financially irresponsible mothers that is not what's happening in this case in this case mr fry purchased a great deal of insurance coverage his business tri city he purchased an umbrella policy he purchased underlying coverage and he purchased work comp insurance and since he paid for more insurance he's getting less coverage now and that simply flies in the face of the policies of india and for those reasons we would ask the district court's decision to grant summary judgment be reversed in the case remanded according