Judgment of trial court affirmed because particular limitation in insurance policy would violate requirements of Indiana’s underinsured motorist insurance statute

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Sullivan, Justice.
Richard Jakupko suffered severe injuries and his wife and children emotional distress in an automobile accident caused by an underinsured motorist. Their insurance company contends that their underinsured motorist insurance policy subjects any amount the wife and children can recover for their emotional distress to the per person liability cap applicable to Richard.
Conclusion (slip op. at 12-13):  State Farm’s policy limits the damages that Appellees are legally entitled to in a way that the statute governing uninsured and underinsured motorist insurance in our state does not authorize. Each is entitled to a separate per person limitation of $100,000, subject, however, to the per accident limitation of $300,000.  The judgment of the trial court is affirmed.

Key Analysis
(slip op. at 11-12):  It is well established that [I.C. § 27-7-5-2(a)(1)] sets the minimum standard of protection that the Legislature deems acceptable for uninsured and underinsured motorist coverage. . . if a policy clause “is in derogation of the Indiana uninsured motorist statute, . . . such clause will be unenforceable regardless of the insurer’s intent” . . . the “includes all injury and damages to others resulting from this bodily injury” clause in the policy effectively reduces the amount of damages Appellees are entitled to by the amount, if any, of damages that Richard is entitled to.  The statute does not authorize conditioning or limiting Appellees’ damages in this way.
Dickson, Boehm, and Rucker, JJ., concur.

Shepard, C.J., concurs in result with separate opinion
:  I agree with my colleagues about how the statute and the policy operate to calculate the per person coverage limits.  As to the claims of the four plaintiffs, Richard Jakupko’s injuries were so severe that they exceeded the limits of his coverage. Even if this were not so, I would say Richard’s insurance coverage would include those elements customary to tort damages, such as pain and suffering that flow from bodily injury. . .

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