Corn v. Farmers Insurance Co.

2013 Ark. 444, 430 S.W.3d 655, 2013 WL 5946942, 2013 Ark. LEXIS 526
CourtSupreme Court of Arkansas
DecidedNovember 7, 2013
DocketCV-13-42
StatusPublished
Cited by24 cases

This text of 2013 Ark. 444 (Corn v. Farmers Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corn v. Farmers Insurance Co., 2013 Ark. 444, 430 S.W.3d 655, 2013 WL 5946942, 2013 Ark. LEXIS 526 (Ark. 2013).

Opinions

JIM HANNAH, Chief Justice.

| Appellants, Opal and L.B. Corn, pursued a claim for underinsured motorist (“UIM”) coverage against their insurer, appellee Farmers Insurance Co., Inc. The circuit court granted summary judgment in favor of Farmers, finding that, based on both the exhaustion requirement of UIM coverage and the policy language, the Corns were not entitled to UIM benefits. We affirm.

On March 3, 2008, Opal was driving on Interstate 540 in Rogers, with L.B. as her passenger, when she encountered debris in the roadway. She slowed down suddenly to avoid hitting the debris and was rear-ended by a vehicle driven by Martha Gaf-ford. The debris was later determined to have fallen off an Eden’s Home Repair and Remodeling truck, which was driven by Kenneth Eden.

The Corns filed claims against Gafford. Gafford’s insurer, Allstate Insurance Company, offered her policy limits of $25,000 each to Opal and L.B., and Farmers consented to the ^settlements. The Corns then filed a UIM claim with Farmers for the remaining damages from the accident. When the expiration of the statute of limitations was imminent without resolution of the UIM claim, the Corns filed suit against Farmers and Kenneth Eden and Eden’s Home Repair and Remodeling (collectively referred to as “Eden”). The Corns settled their claims with Eden through mediation by accepting proceeds from an auto-liability policy issued by Eden’s insurance carrier. That policy provided for $1 million of liability coverage per accident; however, the Corns’ settlements with Eden were for less than the policy limits. Farmers refused to offer any UIM benefits and moved for summary judgment, contending that because the Corns had failed to exhaust Eden’s liability policy, they had not triggered UIM coverage under their policy with Farmers. In support, Farmers pointed to the following language in its policy:

We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.

Farmers argued that the policy language, together with this court’s holding in Birchfield v. Nationwide Insurance, 317 Ark. 38, 875 S.W.2d 502 (1994), required the Corns to exhaust all policies against all tortfeasors before receiving UIM benefits.

In response, the Corns contended that the modification of joint and several liability by Act 649 of 2003 invalidated the holding in Birchfield and, as such, in multiple-tortfeasor cases, insured persons are no longer required to exhaust all policies of all tortfeasors before receiving UIM benefits. They also argued that the policy terms allow for payment of UIM benefits after only one tortfeasor’s policy has been exhausted or, alternatively, that the policy | ¡¡terms are ambiguous. In addition, the Corns argued that Farmers failed to object to the settlement with Gafford and was therefore precluded from refusing to remit UIM benefits to them. The circuit court rejected the Corns’ arguments and entered summary judgment in favor of Farmers. The Corns appeal.

An appeal from an order of summary judgment typically concerns the issue of whether a material question of fact is left unanswered; however, the issues presented in this appeal involve questions of law. This court reviews questions of law de novo. E.g., Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21.

The Corns first contend that the circuit court erred in granting summary judgment in favor of Farmers because, given the modification of joint and several liability in Arkansas, insured persons are no longer required to exhaust all liability insurance policies of all tortfeasors before they are entitled to receive UIM benefits. They also contend that this court’s decision in Birchfield is invalid. Farmers responds that the modification of joint and several liability has no effect on UIM coverage and that the Birchfield decision is controlling.

To address the Corns’ first argument, we must consider the UIM statute, our decision in Birchfield, and the modification of joint and several liability. We begin with the statute.

UIM coverage is governed by Arkansas Code Annotated section 23-89-209. The coverage

shall enable the insured ... to recover from the insurer the amount of damages for bodily injuries to ... an insured which the insured is legally entitled to recover from the owner or operator of another motor vehicle whenever the liability insurance limits of the other owner or operator are less than the amount of the damages incurred by the insured.

|4Ark.Code Ann. § 23-89-209(a)(3) (Repl. 2004). UIM coverage applies when the tortfeasor has at least the amount of insurance required by law, but not enough to fully compensate the victim. Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 109-10, 828 S.W.2d 593, 595 (1992). This coverage is designed to provide compensation to the extent of the injury, subject to the policy limit. Id. at 110, 828 S.W.2d at 595.

In Birchfield, a case involving multiple tortfeasors, this court held that the insurance policy at issue required the insured to exhaust all liability policies of all tortfea-sors before receiving UIM benefits. 317 Ark. at 40-42, 875 S.W.2d at 503-04. Stephen Birchfield, a minor, was injured while riding as a passenger in a vehicle involved in an accident. Id,, at 39, 875 S.W.2d at 503. He subsequently filed a joint lawsuit against two tortfeasors-the driver of the car in which he was riding and the driver of the other vehicle involved in the accident. Id., 875 S.W.2d at 503. The combined limits of the two tortfeasors’ policies was $125,000, and Birchfield claimed damages of $250,000. Id, 875 S.W.2d at 503. At the time of the accident, Birchfield had UIM coverage under a policy that Nationwide Insurance had issued to his mother. Id, 875 S.W.2d at 503. The policy limited underinsurance coverage as follows:

No payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments.

Id, 875 S.W.2d at 503.

Birchfield settled with the tortfeasors’ insurance companies for $75,000, which was less than their combined policy limits of $125,000. Id, 875 S.W.2d at 503. He claimed that because his injuries resulted in damages of $250,000 — an amount greater than the combined | .^policy limits of the tortfeasors — Nationwide should honor his claim for UIM benefits. Id, 875 S.W.2d at 503. Nationwide denied Birchfield’s claim and moved for summary judgment, contending that because Birchfield had settled with the tortfeasors for less than their policy limits, he was not entitled to UIM benefits. Id, 875 S.W.2d at 503. Birchfield claimed that the language in the policy, which purported to deny coverage unless the limits of all other liability insurance that applied had been “exhausted by payments,” was ambiguous. Id, 875 S.W.2d at 503. We disagreed, holding that the plain meaning of the language “exhausted by payments” regarding limits of other liability insurance was that all other available liability insurance had to be paid in full before Birchfield was entitled to receive UIM benefits from Nationwide.

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Bluebook (online)
2013 Ark. 444, 430 S.W.3d 655, 2013 WL 5946942, 2013 Ark. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corn-v-farmers-insurance-co-ark-2013.