Bartning v. State Farm Fire & Casualty

793 P.2d 127, 164 Ariz. 370

• Court: Court of Appeals of Arizona
• Decided: July 3, 1990
• Docket: 2 CA-CV 88-0138
• Status: Published

Opinions

OPINION

HOWARD, Judge.

In Bartning v. State Farm, 162 Ariz. 344, 783 P.2d 790 (1989), the Supreme Court vacated our opinion and remanded to us the disposition of this cross-appeal.

While walking in Mexico, Enrique Bartn-ing was killed when he was struck by a car owned by an uninsured motorist. Both Enrique and his son Luis had purchased separate automobile policies from State Farm. Enrique was the named insured under his own policy and Luis was the named insured under his policy. Enrique did not reside with Luis, and neither Enrique nor Luis was listed as a named insured on the other’s policy.

Luis sought payment from State Farm under the uninsured motorist coverage of his own policy for Enrique’s wrongful death. State Farm refused coverage. This action followed and the trial court granted partial summary judgment to State Farm, holding that Enrique was not an insured under the provisions of Luis' policy and that Luis was not entitled to recover damages for his father’s wrongful death.

In this appeal, Luis contends that the clear, and unambiguous language of his insurance policy shows that he is entitled to collect damages for his father’s wrongful death under the uninsured motorist provisions of his policy. We do not agree.

The provision which Luis points to in his policy states:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.

(Emphasis added.)

A.R.S. § 20-259.01 states in part:

A. No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state, with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in the policy or supplemental to the policy, ... for the protection of persons insured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting there-from____

(Emphasis added.) The State Farm policy provisions substantially track the above statutory requirements. The determinative issue is this. Did the legislature, by the above provisions, intend to give an insured the right to recover damages for injuries to third persons? We think not.

The Uninsured Motorist Act was intended to close the gap in protection offered by the Uniform Motor Vehicle Safety Responsibility Act, §§ 28-1101 et seq., by requiring insurance companies issuing automobile liability policies to include coverage for injuries suffered by their insureds for damages caused by uninsured motorists. Chase v. State Farm Mutual Auto Insurance Co., 131 Ariz. 461, 641 P.2d 1305 (App.1982). Prior to the adoption of the Uninsured Motorist Act, if an insured was injured or was killed and the responsible party had no insurance and was impecunious, there was no way for the insured to recover. The gap that was closed related to injuries to the insured, and not injuries to third persons.

We agree with the Division One’s decision in Bakken v. State Farm Mutual Auto Insurance Co., 139 Ariz. 296, 678 P.2d 481 (App.1983). There, the court rejected the same position that the cross-appellant is taking in this case. The cross-appellant argues that the clear and unambiguous language mandates a decision in his favor. It would be a “Catch 22” if we were to hold that by tracking the language of the statute the insurer had agreed to give more coverage than the legislature intended when it enacted the Uninsured Motorist Act.

State Farm has requested and is entitled to attorney’s fees for defending this cross-appeal, which will be granted upon compliance with 17B A.R.S. Civil Appellate Proc. Rules, Rule 21(c).

Affirmed.

ROLL, P.J., concurs.