Elsner ex rel. Elsner v. Walker

879 S.W.2d 852, 1994 Tenn. App. LEXIS 41
CourtCourt of Appeals of Tennessee
DecidedFebruary 4, 1994
StatusPublished
Cited by8 cases

This text of 879 S.W.2d 852 (Elsner ex rel. Elsner v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elsner ex rel. Elsner v. Walker, 879 S.W.2d 852, 1994 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1994).

Opinion

OPINION

LEWIS, Judge.

We granted this Tennessee Rule of Appellate Procedure 9 appeal to review the trial court’s denial of Grange Mutual Casualty Company’s Motion for Summary Judgment on the ground that its uninsured/underin-sured motorist policy liability should be reduced by amounts paid by plaintiffs medical insurance carrier.

Plaintiff Stephen D. (Dylan) Eisner was severely injured in an automobile accident [853]*853while riding as a passenger in a car driven by Elizabeth Scherer. The accident occurred when an automobile driven by Wayne H. Walker crossed the center line of the highway, and crashed head on into the automobile driven by Ms. Scherer as it was proceeding in its proper lane of travel.

As a result of the accident the defendant, Wayne Walker, was convicted of aggravated assault and driving under the influence of alcohol and sentenced to incarceration in the Metro Detention Center. Plaintiff Dylan Eisner, as a result of the injuries he received, was hospitalized from 15 May 1992 until 31 July 1992. His injuries included massive head injuries. He was first treated at Vanderbilt University Medical Center in Nashville and then transferred to the Siskin Hospital for Physical Rehabilitation in Chattanooga, Tennessee. He is still receiving ongoing rehabilitation and treatment for his injuries.

Plaintiff Dylan Eisner’s medical bills to date exceed $200,000.00 and he continues and will continue to incur medical expenses so long as he requires treatment and rehabilitation services for the injuries he received.

A portion of the medical bills incurred by Dylan Eisner have been paid by his parents’ medical insurance policy which was in effect as a result of plaintiff Janis Eisner’s employment. Plaintiffs Janis and Stephen Eisner had automobile insurance coverage through a policy issued by Grange Mutual Casualty Company (Grange). The Grange policy included a provision for payment of the cost of treatment for bodily injuries caused by an uninsured or underinsured motorist. The limits of the liability for the uninsured/under-insured motorist was $100,000.00. The plaintiffs have not received any payment pursuant to the Grange policy as a result of the automobile collision.

Grange relies on the following section of the insurance policy for its contention that it is entitled to credit for the $50,000.00 paid by the plaintiffs’ hospitalization insurance policy for medical bills incurred by Dylan.

LIMIT OF LIABILITY

A. The limit of Bodily Injury Liability shown in the Declarations for “each person” for Uninsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one insured in any one auto accident. Subject to this limit for “each person”, the limit of Bodily Injury Liability shown in the Declarations for “each accident” for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident. The limit of Property Damage Liability shown in the Declarations for each accident for Uninsured Motorists Coverage is our maximum limit of liability for all property damage resulting from any one accident. This is the most we will pay regardless of the number of:

1. Insureds;
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident.

B. The limit of liability shall be reduced by all sums:

1. Paid because of bodily injury or property damage by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of the policy; and
2. Paid or payable because of the bodily injury under any of the following or similar law:
a. workers’ compensation law; or
b. disability benefits law.

C. No payment will be made for loss paid or payable to the Insured under Part D of this policy.

D. Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Part A

[854]*854Appellant Grange presents the following issue: “Whether Grange Mutual Casualty Company’s underinsured motorist policy permits a setoff for medical insurance coverage provided to the Plaintiffs by their medical insurance carrier for Stephen D. Eisner’s bodily injury.”

Grange insists on the basis of the “limit of liability” section of the uninsured/underin-sured policy that money paid by the plaintiffs medical insurance carrier for bills incurred in the treatment of Dylan should offset its liability for any payment to the plaintiffs.

As is pointed out by the plaintiff, Grange “focuses mostly on the issue of whether an insurance company may under Tennessee law include a provision limiting its U.M. liability by amounts paid by the insured’s medical insurance carrier.”

We have read and reread the Grange policy, and nowhere is there an explicit, plain statement that Grange’s liability will be reduced by sums paid by an insured’s medical insurance carrier. We are of the opinion that had Grange intended that they be entitled to a reduction for payments of an insured’s medical insurance, it could have included such a provision in the same way it included a provision for an offset for payment under the worker’s compensation insurance. From a review of the eases, the language used by Grange in its policy is not uncommon. However, notwithstanding that it is not uncommon, we have found no case giving the quoted language the meaning that Grange wishes this court to attribute to it. Grange cites Farmers Alliance Mutual Ins. Co. v. Miller, 869 F.2d 509 (9th Cir.1989) in which the court held that under Montana law, the underinsured motorist carrier, on the basis of policy language, could reduce its liability by amounts paid to the insured on behalf of the person responsible for causing the accident. There is nothing in Farmers Alliance that remotely states that the liability could be reduced by amounts the plaintiff received from payments under the plaintiffs own medical insurance policy.

The courts interpreting the language set out above have given it its natural and logical meaning. They have found that the liability may be reduced by all sums paid because of bodily injury or property damage by or on behalf of persons or organizations legally responsible for the injury or damage.

In Brinkman v. Aid Ins. Co., 115 Idaho 846, 352-53, 766 P.2d 1227, 1233-34 (1988) the court rejected the insurance company’s argument that on the basis of the policy language it should be allowed to reduce its liability by the value of a college scholarship received by the insured as a result of the injuries received in an automobile accident caused by an uninsured motorist.

In Aills v. Nationwide Mutual Ins. Co., 88 N.C.App. 595, 363 S.E.2d 880

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Bluebook (online)
879 S.W.2d 852, 1994 Tenn. App. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elsner-ex-rel-elsner-v-walker-tennctapp-1994.