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Bowersox v. Progressive Casualty Insurance Co.

Denial of relief to plaintiff affirmed; arbitrators' determination that defendant was not obligated to pay underinsured motorist benefits was correct where insurance policy covering two of the vehicles involved in the accident contained an unambiguous set-off provision that limited plaintiff's recovery to third party liability benefits and reduced underinsured motorist benefits to zero.

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� 1 The administrators of the estate of Paul S. Bowersox (the “Administrators”) appeal the trial court’s denial of relief following a determination by a board of arbitrators that Progressive Casualty Insurance Company (“Progressive”) *fn3 is not obligated to pay underinsured motorists benefits under the circumstances of this case. We affirm.

� 2 The facts of this case are undisputed. The Administrators brought this suit against Progressive for underinsured motorist coverage. Tragically, Bowersox was killed in a car accident involving three cars. At the time of the accident, he was the passenger in a car driven non-negligently by Heather Lyons. The accident was caused by the joint negligence of Joel Lyons, Heather Lyons’ brother, and Matthew Lytle, who were each driving separate vehicles. Heather Lyons also was killed in the accident.

� 3 The vehicles driven by Heather Lyons and Joel Lyons each were covered under a policy of insurance issued by Progressive to their father, Douglas A. Lyons. *fn4 State Farm insured the vehicle driven by Matthew Lytle. Progressive paid Bowersox’s estate the liability limits of $50,000 on behalf of Joel Lyons and State Farm paid the liability limits on the Lytle vehicle. However, as these liability payments did not provide full compensation, the Administrators sought payments from the underinsured motorist coverage in the Lyons’ policy based on Bowersox’s status as a passenger in the car Heather Lyons was driving. The limit on this coverage was also $50,000. In denying this claim, Progressive cited a “set-off” provision of the policy which reduces any underinsured motorist coverage otherwise payable by the amount of any liability payments made under the policy to the same claimant. Given that Progressive paid $50,000 for liability coverage on behalf of Joel Lyons, the set-off provision, Progressive argued, reduced the amount payable under the underinsured motorist coverage to zero.

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