MAY, J.
Tamatha and Hannah Nealy (collectively, “The Nealys”) appeal the grant of American Family Insurance’s motion for setoff and the denial of their motion to correct error and for additur. We reverse and remand for entry of judgment in the amount of the verdicts the jury originally returned.
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The trial court erred to the extent its grant of American Family’s motion for setoff was premised on the advance payment statute, Ind. Code § 34-44-2-3. In its motion, American Family explicitly asserted it was bringing the motion pursuant to the advance payment statute, and it characterized the amounts it wanted to set off as “advance payment” of medical expenses. (App. at 87.) That was the only basis American Family asserted in its motion. In its order, the trial court did not explain its basis for granting the setoffs, but it granted the setoffs in exactly the same amounts American Family asserted were “advance payments.”
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The payments American Family made cannot be characterized as “advance payments.” An “advance payment,” for purposes of Ind. Code Chapter 34-44-2, means “a payment made: (1) by: (A) the defendant in an action to recover damages for personal injuries, wrongful death, or property damage; or (B) the defendant’s insurance company; and (2) to or for the plaintiff or any other person.” Ind. Code § 34-6-2-3. The payments at issue here are not within the statutory definition of “advance payment,” as American Family is not “the defendant’s insurance company.” It is the Nealys’. Nor can American Family be characterized as a defendant “in an action to recover damages.” As indicated below, American Family asserts the action against it is contractual. 3 We must therefore decline to find American Family made “advance payments” as defined in the statute on which it relied as the only basis for its motion for setoff.
Nor does the advance payment statute apply where there is more than one defendant, Ind. Code § 34-44-2-1(b), and in this action, there are three. The original defendants are Quinn and Hammonds, and American Family is the intervening defendant. . . .
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The trial court erred to the extent its grant of American Family’s motion for setoffs was premised on the advance payment statute, and the language of the Nealys’ policy did not permit the setoffs. We therefore reverse and remand for entry of judgment in the amount of the jury verdicts.
Reversed and remanded.
BARNES, J., concurs.
BAKER, C.J., concurs in part and dissents in part.
BAKER, Chief Judge, concurring in part and dissenting in part.
I respectfully dissent from the majority’s conclusions regarding the payments made by American Family to cover the Nealys’ medical expenses. I believe that the advance payment statute applies to these facts. The majority emphasizes that there were multiple defendants and observes that American Family was the plaintiffs’, rather than the defendants’, insurer. While strictly true, I believe that relying on these facts elevates form over substance to a degree that leads to an inequitable result. Nominally, yes, there were multiple defendants. But only one-American Family-played any role in the litigation whatsoever. Nominally, yes, American Family was the plaintiffs’ insurer. But in litigation concerning uninsured motorist coverage, the plaintiffs’ insurer steps into the shoes of the nonparticipating uninsured motorists. Thus, though American Family was the plaintiffs’ insurer, it was litigating against them. I cannot believe that the legislature intended these facts to stand in the way of the application of the advance payment statute.