ROBB, J.
Following an automobile accident in which his vehicle was struck by an underinsured driver, Russel Howard sued both the underinsured driver and Howard’s insurer, American Family Mutual Insurance Company (“American Family”), in Kentucky court, seeking damages from the underinsured driver and underinsured motorist benefits from American Family. Howard’s complaint against the underinsured driver settled for policy limits of $25,000, and Howard’s claim against American Family, refiled in Indiana court, was set for a jury trial. In this interlocutory appeal, Howard raises two issues, of which we find the following dispositive: whether the trial court erred by granting American Family’s motion to substitute the underinsured driver as the sole named defendant at trial. Concluding that Indiana law does not allow the underinsured driver’s substitution as a nominal defendant in these circumstances, we reverse and remand.
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In support of its argument that the trial court had authority to substitute the underinsured driver as the sole named defendant at trial, American Family relies on Wineinger v. Ellis, 855 N.E.2d 614 (Ind. Ct. App. 2006), trans. denied. Wineinger was injured in an automobile crash caused by an uninsured driver and filed a complaint against the driver and Shelter, the insurer of Wineinger’s vehicle. Shelter admitted liability and represented it would pay any judgment entered against the driver, “even if such judgment exceeded the uninsured policy limits.” Id. at 617. A single jury trial was held on Wineinger’s claims against both the driver and Shelter. The trial court granted Shelter’s motion to substitute the driver as the sole named defendant, permitted Shelter to step into the shoes of the driver to provide a defense, and prohibited any references to Shelter or insurance at trial. This court affirmed, rejecting Wineinger’s argument that the trial court erred by prohibiting any reference to Shelter or insurance coverage. Id. at 618-20. Noting the only issues to be resolved at trial were the nature and extent of Wineinger’s personal injuries and resulting damages, and the uninsured motorist policy did not entitle Wineinger to recover more than the damages assessed against the driver, this court concluded “requiring Shelter to be a nominal participant in the trial would have impermissibly confused the issues.” Id. at 616. While we acknowledge the reasoning and result in Wineinger, for the reasons explained below, we do not find it applicable to the facts of the present case.
In Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548 (Ind. Ct. App. 2009), trans. denied, this court distinguished Wineinger in addressing facts similar to the present case. Brown-Day was injured in an automobile crash and initially sued the driver of the other vehicle. After settling with the driver’s insurer for policy limits of $50,000, Brown-Day amended her complaint to seek underinsured motorist benefits from her insurer, Allstate. She thereafter dismissed the driver as a defendant, with prejudice and without opposition from Allstate, and her claim against Allstate was set for a jury trial. On interlocutory appeal, this court held the trial court erred by granting Allstate’s motion to substitute the previously-dismissed driver as the sole named defendant at trial. We observed that “Evidence Rule 411 simply is not a mechanism providing for an outright substitution of parties so that the identity of a party as an insurer may be shielded.” Id. at 551. Further, Brown-Day’s claim against Allstate was not, and was not tried in conjunction with, a direct complaint against a tortfeasor. Id. at 552. Insofar as Allstate “stood by” and allowed the driver’s dismissal from the case instead of advancing payment and asserting a subrogation interest under Indiana Code section 27-7-5-6, Allstate treated “[t]he cause of action to be tried before the jury [as] a first party claim for contract enforcement against Allstate, seeking underinsured motorist benefits.” Id. We concluded “[n]either Evidence Rule 411 nor Wineinger provides authority for substitution of a non-party in place of a party so as to create a legal fiction before the jury in a contract case.” Id. at 553.
Here, unlike the insurer in Wineinger, American Family did not attempt to step into the shoes of and defend the tortfeasor. American Family also decided not to preserve a subrogation interest under Indiana Code section 27-7-5-6, when Howard advised American Family of the $25,000 settlement offer from the underinsured driver and American Family declined to advance payment to Howard. Rather, American Family requested that Howard’s tort claim against the underinsured driver be settled for the latter’s policy limits, which was a precondition to Howard’s separate underinsurance claim against American Family. See Appellant’s App. at 59 (letter from American Family acknowledging it had notice of Howard’s claim for underinsured motorist benefits, but declining to take any action until it could “be sure that the policy limits of all available coverage [had] been exhausted”). Howard now seeks to proceed against American Family as the sole defendant in this action for underinsured motorist benefits, and he does not have the option of joining the underinsured driver as a defendant. These facts make Howard’s case like Brown-Day and implicate the rule announced therein: Indiana law provides no authority for substitution of a non-party tortfeasor as a nominal defendant in place of an insurer in a contract case, where the plaintiff seeks recovery of underinsured motorist benefits. See Brown-Day, 915 N.E.2d at 552-53.
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Indiana law does not allow the underinsured driver’s substitution for American Family as the sole named defendant in this contract case seeking recovery of underinsured motorist benefits. Therefore, the trial court’s grant of American Family’s motion to substitute is reversed, and this case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
FRIEDLANDER, J., and KIRSCH, J., concur.