INSURERS TAKE NOTE: THE EFFECT
OF RECENT DECISIONS APPLYING
INDIANA’S UM/UIM STATUTE
TO COMMERCIAL EXCESS AND
UMBRELLA POLICIES
By: Jeffrey B. Fecht, RBE Attorney
H
istorically, providers of commercial excess and umbrella liability policies have had very limited success
challenging the scope of application of Indiana’s Uninsured/Underinsured (“UM/UIM”) statute. 1 Like all
statutes relating to insurance or insurance policies, UM/UIM statutes are to be read in a light most favorable to the
insured. In 1999, the Indiana Supreme Court rejected an insurer’s assertion that the UM/UIM statute did not apply
to commercial excess UM policies, holding that excess/umbrella policies were required to provide UM coverage
unless the legislature created an explicit statutory exemption. 2 In response to DePrizio, in 2005 the Indiana
legislature amended the UM/UIM statute to provide that an insurer is not required to make UM/UIM coverage
available in connection with the issuance of a commercial excess or umbrella liability policy. 3
The scope of the legislature’s intent to exempt commercial excess and umbrella policies from the requirements
of the UM/UIM statute has recently been analyzed by both the Indiana Court of Appeals and the U.S. Court of
Appeals for the Seventh Circuit, which applied similar rationale while both narrowing and expanding an insurer’s
duties under Indiana’s UM/UIM statute. In the state court case, 4 an insured sought UIM coverage under an
excess policy issued to his employer for injuries he suffered in a motor vehicle accident in 2009. The insurer
issued its first policy to the employer prior to the 2005 amendment to the UM/UIM statute and the policy was
subsequently renewed each successive year. The insured employee asserted that the 2005 legislative amendment
was inapplicable to the policy in effect at the time of the accident because the legislative amendment should not
apply to the renewal of a policy that was first issued prior to the 2005 legislative amendment (i.e., at the time of
the policy’s first issuance, the insurer would have been required to provide UM/UIM coverage under DePrizio,
unless the insured rejected such coverage in writing).
Essentially, the dispute in Ackerman was whether the phrase “issuance of a policy” in the 2005 legislative
amendment should be interpreted as only the first issuance of a policy or as the issuance of any policy, whether it
be a first policy or a renewal. The Court of Appeals determined that the legislature had shown that it was capable
of differentiating between first issued and renewal policies, because it had done so in the UM/UIM Statute. 5 In
determining that the insurer was not required to provide UM/UIM coverage under its policy, the Court noted that
because the legislature did not distinguish whether the 2005 amendment applied to first and/or renewal policies,
the legislature intended the amendment to apply to both first issued policies and renewal policies. 6 Therefore,
the policy in Ackerman was enforced on its terms, which did not include UM/UIM excess coverage because the
2005 legislative amendment did not require such coverage. As a result of Ackerman, insurers with long-standing,
continuous relationships with commercial clients can be assured that UM/UIM coverage will not be imputed into
any of their commercial excess and umbrella policies renewed after 2005.
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Riley Bennett Egloff LLP - June2017