Blackburn v. State Farm Mutual Automobile Insurance

697 P.2d 425, 108 Idaho 85, 1985 Ida. LEXIS 428

• Court: Idaho Supreme Court
• Decided: February 14, 1985
• Docket: 15142
• Status: Published

Opinions

SHEPARD, Justice.

This is an appeal from a summary judgment rendered against plaintiff-appellant Blackburn in an action brought by Blackburn against his insurance carrier under the uninsured motorist coverage of an insurance policy. We affirm.

The facts are stipulated and we are presented solely with a question of law. Two cars containing members of the Blackburn and Day (not parties to this action) families were stopped in a highway emergency lane when a car driven by Ellsworth struck them. The negligence of Ellsworth was the proximate cause of the accident. Blackburn’s wife and one of his children were killed and two of his other children injured. One member of the Day family was killed and others were injured. Ells-worth carried liability insurance with Farmers Insurance Exchange in the minimum amounts of $10,000 per person, $20,000 per occurrence, as then required by the Motor Vehicle Safety Responsibility Act, I.C. § 49-1505(d)¹.

Blackburn brought suit against Ells-worth and recovered a judgment in the amount of $150,000. Farmers Insurance Exchange tendered the $20,000 policy limits through settlement agreements with the Blackburn and Day families. Blackburn received $10,000 of that settlement.

Blackburn had purchased an insurance policy from respondent State Farm Mutual Automobile Insurance Company, which contained uninsured motorist protection of $15,000 per person, $30,000 per occurrence. That policy was in effect on the day of the accident, and provided coverage for Blackburn’s family when they were passengers in a non-owned vehicle. Blackburn made a claim against State Farm under the uninsured motorist provision of his policy, and when that claim was denied, Blackburn initiated this action on behalf of himself and his children against State Farm on the theory that since Ellsworth had insufficient funds to compensate Blackburn for his damages, Ellsworth was an uninsured motorist. State Farm moved for summary judgment, which was granted by the trial court based on the ground that Ellsworth’s compliance with the financial responsibility law precluded the conclusion that he was “uninsured.” Upon appeal, the Idaho Trial Lawyers ■ Association sought and was granted permission to appear as amicus curiae.

The sole question to be determined is whether, as Blackburn asserts, the district court erred in its determination that the Ellsworth vehicle was not an “uninsured vehicle.” The substance of the claim here is that the word “uninsured,” as used in the applicable statutes and the insurance policy at issue here, must be construed to mean “underinsured” in relation to Blackburn’s damages.² We disagree.

I.C. § 41-2502 requires a motor vehicle liability insurance policy to provide protection from injury by uninsured vehicles in amounts not less than the minimum limits for bodily injury or death required by the Motor Vehicle Safety Responsibility Act, 1.C. § 49-1505(d), which coverage an insured may only expressly reject in writing. At the time of the accident, the Motor Vehicle Safety Responsibility Act, I.C. § 49 — 1505(d), required coverage of at least $10,000 for bodily injury to or death of one person and $20,000 for bodily injury to or death of two or more persons in any one accident. Hence, Blackburn’s damages were caused by a motorist who had in effect at the time of the accident a policy that fully complied with I.C. § 41-2502 and the tortfeasor’s insurer did not deny coverage, but rather tendered the $20,000 per occurrence limit.

A basic tenet in statutory construction is to ascertain and give effect to the legisláture’s intent in passing a statute. Webster v. Board of Trustees of School District No. 25, Bannock County, 104 Idaho 342, 659 P.2d 96 (1983). In 1947, the legislature enacted the “Idaho Safety Responsibility Act,” supplementing the motor vehicle laws of the State of Idaho. Proof of financial responsibility was defined under that act in “per occurrence” terms, and required $5,000 insurance coverage for bodily injury to or the death of one person in any one accident and $10,000 for bodily injury to or the death of two or more persons in any one accident. In 1961, the legislature increased the minimum amounts required for proof of financial responsibility to $10,-000/$20,000. 1961 Idaho Sess.Laws, ch. 136, § 2, p. 198. In 1967, the legislature enacted I.C. § 41-2502, making it mandatory that motor vehicle insurance policies provide each policyholder with coverage for bodily injury or death by uninsured motor vehicles in the minimum amounts required by the financial responsibility law. I.C. § 41-2503, § 41-2504 were also added defining “uninsured motor vehicle” to include one covered by an insurer who is or becomes insolvent within one year after an accident. 1967 Idaho Sess.Laws, ch. 61, § 1-3, pp. 124-126. In 1983, the legislature again increased the minimum amounts required for proof of financial responsibility to insurance coverage of $25,000/$50,-000, still couching the amount in “per occurrence” terms. 1983 Idaho Sess.Laws, ch. 199, § 3, p. 539.

We find nothing to indicate any legislative intent that the term “uninsured” should be construed to mean “underinsured” as asserted by the appellant here. To the contrary, the plain meaning of the statutes would appear to militate against the argument of Blackburn since the tortfeasor Ellsworth was covered with statutorily sufficient insurance, was thus “insured” rather than “uninsured.”

The question presented has been the subject of substantial litigation. See Annot., 24 A.L.R. 4th 13 (1983). Blackburn argues that this Court should follow the reasoning of the Arizona and Hawaii Supreme Courts which have held that their uninsured motorist insurance statutes require coverage by a claimant’s own insurer whenever the per person minimum required by their state’s financial responsibility laws is unavailable from the tortfeasor’s insurer due to the number of claimants seeking recovery. See Porter v. Empire Fire and Marine Ins. Co., 106 Ariz. 274, 475 P.2d 258 (1970), modified on other grounds, 106 Ariz. 345, 476 P.2d 155 (1970); Palisbo v. Hawaiian Ins. & Guaranty Co., 57 Hawaii 10, 547 P.2d 1350 (1976).

In Porter, the plaintiff was one of several victims of an accident caused by a negligent motorist who carried only the minimum amount of insurance required by the Arizona statute. Porter’s pro rata recovery from the tortfeasor’s insurer was $2,500. That amount was insufficient to compensate Porter for his damages, and he then sought to recover under his own policy which covered him against damage by an uninsured motorist, arguing that he was entitled to the difference between the statutory minimum of $10,000 and the $2,500 he had recovered from the tortfeasor’s insurer. The Arizona Court agreed and held that the tortfeasor was “uninsured” as to the amount available to the claimant as contrasted with the minimum amount of the financial responsibility act and thus permitted recovery. The Hawaii Court in Palisbo followed the Porter rationale and adopted that judicially defined concept of “uninsured.” The Palisbo Court in dicta also indicated that in cases of a contractual agreement between the insurance carrier and the uninsured motorist policyholder for coverage in excess of the minimum amount specified by the financial responsibility law, recovery of that greater amount would follow.

The reasoning of the Court in Porter as approved in Palisbo, see also, Yamamoto v. Premier Ins. Co., 668 P.2d 42 (Hawaii App.1983), is powerful and persuasive, particularly wherein it is observed that those plaintiffs would have been in a better position if the tortfeasor had carried no liability insurance whatsoever rather than carrying the statutory minimum amount of coverage. It is our view, however, that the reasoning of the Arizona and Hawaii Courts is seriously flawed in ignoring the clear language of the legislation. It is argued that the legislature could not have intended such an anomolous result. On the other hand, it can be argued with equal force that the legislature had the opportunity to consider the result that would flow from its use of specific language, as is reflected by the legislative amendment which considers the circumstance of a tortfeasor’s insurance carrier becoming insolvent. The legislature has provided for a different result in that circumstance. The anomoly which is present in cases such as this is a result of the unfortunate legislative policy of tying the uninsured motorist statute directly to the financial responsibility law, which provides for a “per accident” limit.

A host of courts has considered the problem and an overwhelming majority of those courts have rejected the rationale adopted in Porter and Palisbo. Chafin v. Aetna Ins. Co., 550 F.2d 575 (10th Cir. 1976) (applying New Mexico law); Criterion Ins. Co. v. Anderson, 347 So.2d 384 (Ala.1977); Travelers Ins. Co. v. Bouzer, 39 Cal.App.3d 992, 114 Cal.Rptr. 651 (1974); Simonette v. Great American Ins. Co., 165 Conn. 466, 338 A.2d 453 (1973); State Farm Mutual Auto. Ins. Co. v. Hallowell, 426 A.2d 822 (Del. 1981), affd, 443 A.2d 925 (Del.1982); Golphin v. Home Indemnity Co., 284 So.2d 442 (Fla.App.1973); Cotton States Mutual Ins. Co. v. Austin, 143 Ga. App. 309, 238 S.E.2d 253 (1977); Ripley Resin Eng’r Co. v. Great American Ins. Co., 70 Ill.App.3d 619, 27 Ill.Dec. 209, 388 N.E.2d 1258 (1979); Detrick v. Aetna Casualty & Surety Co., 261 Iowa 1246, 158 N.W.2d 99 (1968); Wren v. Ohio Casualty Ins. Co., 535 S.W.2d 849 (Ky.1976); Richard v. Zurich Ins. Co., 318 So.2d 83 (La.App.1975); Saari v. State Farm Mutual Auto. Ins. Co., 72 Mich.App. 278, 249 N.W.2d 390 (1976); DiLuzio v. Home Mutual Ins. Co., 289 N.W.2d 749 (Minn.1980); McMinn v. New Hampshire Ins. Co., 276 So.2d 682 (Miss.1973); Brake v. MFA Mutual Ins. Co., 525 S.W.2d 109 (Mo.App. 1975), cert. denied, 423 U.S. 894, 96 S.Ct. 192, 46 L.Ed.2d 126 (1975); Emery v. State Farm Mutual Ins. Co., 195 Neb. 619, 239 N.W.2d 798 (1976); Peacock v. Harper, 95 Nev. 596, 600 P.2d 223 (1979); Allstate Ins. Co. v. O’Shaughnessy, 118 N.H. 66, 384 A.2d 486 (1978); Tucker v. Peerless Ins. Co., 41 N.C.App. 302, 254 S.E.2d 656 (1979); Shelby Mutual Ins. Co. v. Smith, 45 Ohio St.2d 66, 341 N.E.2d 597 (1976); Simmons v. Hartford Accident & Indemnity Co., 543 P.2d 1384 (Okla.1975); Lund v. Mission Ins. Co., 270 Or. 461, 528 P.2d 78 (1974); Ziegelmayer v. Allstate Ins. Co., 121 R.I. 818, 403 A.2d 653 (1979); Kemp v. Fidelity & Casualty Co. of New York, 512 S.W.2d 688 (Tex.1974); Tudor v. Allstate Ins. Co., 216 Va. 918, 224 S.E.2d 156 (1976); Strunk v. State Farm Mutual Auto Ins. Co., 90 Wash.2d 210, 580 P.2d 622 (1978); Scherr v. Drobac, 53 Wis.2d 308, 193 N.W.2d 14 (1972).

“Uninsured” clearly is not identical to “underinsured” and a court should not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. Words do not become ambiguous simply because lawyers and laymen contend for different meanings. Simonette v. Great American Ins. Co., 165 Conn. 466, 338 A.2d 453 (1973).

As stated by the Simonette Court in refusing to read additional meaning into the unambiguous language of the uninsured motor vehicle statute,

“A due regard for the differing functions of the legislative and judicial branches of government requires that the courts refrain from rewriting, under the context of interpretation, the clearly expressed language of a legislative enactment which the court deems to be preferable to that which the legislation requires. ‘In the field of legislation, the legislature is supreme. Courts must apply legislative enactments according to their plain terms’.” Id. [citations]; e.g., Lotoszinski v. State Farm Mutual Auto. Ins. Co., 417 Mich. 1, 331 N.W.2d 467 (1982).

It is here argued that the statute mandating the availability of uninsured motorist coverage should be construed to accomplish the remedial purposes of providing coverage for injuries which would otherwise go uncompensated, and to provide protection to a person injured by an “uninsured” motorist equal to the protection that the injured plaintiff would have enjoyed if the tortfeasor carried liability insurance in an amount equal to the uninsured motorist coverage. We do not view the statute as embodying such a policy. The court in Criterion Ins. Co. v. Anderson, 347 So.2d 384 (Ala.1977), dealt with a similar argument and distinguished Porter by pointing out that it failed to take into account the statutory provisions for a per accident minimum amount of $20,000, and stated:

“We think that assumption [that the policy of the uninsured motorist statute is to assure to each injured party the availability of a minimum of $10,000 coverage] to be incorrect. That statute mandates a minimum of $10,000 coverage only in the case of accidents resulting in bodily injury to or the death of one person. Where an accident results in bodily injury to or the death of two or more persons, the statute mandates a minimum coverage of $20,000 for the accident. The statute clearly contemplates situations in which the recovery of each individual might be less than $10,-000. It appears, therefore, that the policy behind the statute is to assure the availability of minimum coverage for each accident, not for each injured person.” Id. at 386.

It is also argued that a narrow construction of the uninsured motorist statute denies the benefit of the uninsured motorist protection for which the carrier and the insured bargained. Here Blackburn demands the benefit of his bargain with State Farm for uninsured motorist protection in excess of the statutory minimum.

A similar argument was made to the Arizona Supreme Court in State Farm Mutual Auto. Ins. Co. v. Eden, 136 Ariz. 460, 666 P.2d 1069 (1983). Eden carried uninsured motorist coverage of $50,000/$100,-000. An amendment to the Arizona uninsured motorist statute required insurers to offer uninsured motorist protection in amounts three times that of the minimum amounts required by the financial responsibility law. Eden had recovered $15,000 from the tortfeasor’s insurance company, which was the minimum “per person” amount under Arizona’s safety responsibility act. Eden made claim under the uninsured motorist coverage of his insurance policy for the difference between the $15,000 recovered from the tortfeasor and his damages alleged to be $50,000. Upon denial, Eden brought action arguing that under the “Porter” concept of “uninsured,” the tortfeasor was uninsured since he was insured for less than $45,000. Eden argued that he was entitled to an additional $30,000 under his uninsured motorist coverage. The court disagreed and denied recovery, stating:

“If our legislature had intended to create a sliding-scale, after-the-fact, severity-of-the-injury-determined concept of when a motor vehicle was or was not insured and to what extent, it would have expressed itself in appropriate language, [citations] ... The obvious way to increase the amount of guaranteed [uninsured motorist] protection would have been to increase the limits set by [the financial responsibility law]. This the legislature did not do; for us to adopt appellant’s definition of ‘uninsured’ would constitute an expansion of the statute. The statutes have never limited the amount of uninsured motorist coverage a company can offer their purchasers. State Farm Mutual Ins. Co. v. Edgington, 13 Ariz.App. 374, 476 P.2d 895 (1970). The purpose of section (B) was simply to require insurance companies to make increased amounts of protection available against the uninsured motorist; we find no indication that the legislature intended by this section to redefine ‘uninsured’ ... The Edens recovered $15,000, the minimum amount set forth in the Financial Responsibility Act, from the negligent motorist’s insuranee company. While our holding puts appellant in the position of being worse off because he was struck by a motorist with the minimum required amounts of liability insurance rather than by one with no insurance at all, that risk was inherent in the statutes and in the insurance contract.” Eden, 666 P.2d at 1071-1072.

In sum, we are asked to reconstruct I.C. § 41-2502 to define “uninsured motor vehicle” as a vehicle whose coverage, no matter how large, is inadequate to compensate for the damages suffered by the injured party. We hold that there is no ambiguity in the applicable statutes nor any indication of legislative intent such that would permit us to so interpret into the statutes that significant addition to the coverage required. See Peacock v. Harper, 95 Nev. 596, 600 P.2d 223 (1979).

We do note, however, the anomoly presented by the circumstances, particularly that a holder of a policy containing uninsured motorist coverage may well be in a better position if a tortfeasor carries no insurance whatsoever rather than carrying the minimum coverage mandated by the statute. We note that the matter deserves legislative attention. While this Court could follow the example of the Porter and Palisbo decisions, such clearly would be to indulge in judicial legislation under the guise of statutory interpretation. In actuality, we are called upon to make a decision of policy. Such a policy decision should rest on factors militating for or against that decision. It may well be that the adoption of such a policy would result in an increase of insurance costs to the motoring public. That increase may be a large amount or a small amount. It may be that such a possible increase in premium is well warranted to protect against the results that presently flow from multiple victim accidents, the victims of which must go largely or partially uncompensated for their damages because of a quirk in the insurance laws. However, all of such questions should be dealt with on the basis of adequate information (little of which is before this Court) by a legislative body equipped and authorized to make such policy decisions. Again, we urge legislative attention to the inequitable results which flow from the language of our statutes.

The amicus curiae argues that the Motor Vehicle Safety Responsibility Act is unconstitutional on equal protection grounds, i.e., that it does not provide protection or extend benefits equally to the motoring public that travels in groups. Amicus contends this Court should void the “per occurrence” limit of liability contained in the act, and thus make each victim of an accident entitled to reimbursement from the negligent motorist’s liability policy to a minimum amount of $10,000, regardless of the number of victims involved in any one accident. We decline the invitation. Questions concerning the constitutionality of the Motor Vehicle Safety Responsibility Act were not raised by the pleadings nor argued or decided by the lower court and will not be considered for the first time on appeal. Oregon Shortline Railroad Co. v. City of Chubbuck, 93 Idaho 815, 474 P.2d 244 (1970). An amicus must take a case as he finds it without attempting to inject new issues or to tailor the case to suit his needs. Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (1970). Hence, we do not consider the argument raised by amicus. See Cobum v. Seda, 101 Wash.2d 270, 677 P.2d 173 (1984).

The judgment of the trial court is affirmed. Costs to respondent. No attorney’s fees allowed upon appeal.

DONALDSON, C.J., and BAKES, J., concur.

1 . 49-1505. Security required following accident unless evidence of insurance — Suspension for failure to deposit security — Exceptions.

(d) No such policy or bond shall be effective under this section unless issued by an insurance company or surety company authorized to do business in this state, except that if such motor vehicle was not registered in this state, or was a motor vehicle which was registered elsewhere than in this state at the effective date of the policy or bond, or the most recent renewal thereof, such policy or bond shall not be effective under this section unless the insurance company or surety company if not authorized to do business in this state shall execute a power of attorney authorizing the director to accept service on its behalf of notice or process in any action upon such policy or bond arising out of such accident; provided, however, every such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than ten thousand dollars ($10,000) because of bodily injury to or death of one (1) person in any one (1) accident and, subject to said limit for one (1) person, to a limit of not less than twenty thousand dollars ($20,000) because of bodily injury to or death of two (2) or more persons in any one (1) accident, and, if the accident has resulted in injury to or destruction of property, to a limit of not less than five thousand dollars is,000) because of injury to or destruction or [of] property of others in any one (1) accident."

This section was amended in 1983 to require insurance in amounts of $25,000/$50,000/$15,-000.

2 . We note that a growing number of states now have statutory reference to underinsured motorist coverage. These states include: Arizona, Connecticut, Florida, Georgia, Iowa, Louisiana, Maine, Minnesota, New Hampshire, New Mexico, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington.

There are basically two types of statutory definitions of underinsured motorists. One focuses on whether the tortfeasor’s policy limits are less than the victim’s uninsured coverage, e.g., Tex. Ins.Code Ann. art. 5.06-l(.5)(1981). The other type focuses on whether the damages suffered, by the insured victim are greater than the tortfeasor's policy limits, e.g., Washington Revised Code § 48.22.030(1) (1984).