Federoff v. Aetna Casualty & Surety Co.

788 P.2d 104, 163 Ariz. 371, 48 Ariz. Adv. Rep. 41, 1989 Ariz. App. LEXIS 312
CourtCourt of Appeals of Arizona
DecidedNovember 14, 1989
DocketNo. 2 CA-CV 89-0084
StatusPublished
Cited by1 cases

This text of 788 P.2d 104 (Federoff v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federoff v. Aetna Casualty & Surety Co., 788 P.2d 104, 163 Ariz. 371, 48 Ariz. Adv. Rep. 41, 1989 Ariz. App. LEXIS 312 (Ark. Ct. App. 1989).

Opinion

OPINION

HATHAWAY, Judge.

This appeal is taken from summary judgment entered in favor of defendant Aetna Casualty and Surety Company (Aetna) in a declaratory judgment action.

Summary judgment is proper only where there is no genuine dispute as to any material fact and only one inference can be drawn from those undisputed material facts. Giovanelli v. First Federal Savings and Loan Ass’n of Phoenix, 120 Ariz. 577, 587 P.2d 763 (App.1978). The moving party must be entitled to judgment as a matter of law. Auto-Owners Ins. Co. v. Moore, 156 Ariz. 184, 750 P.2d 1387 (App.1988).

[372]*372Appellant Lawrence Federoff was injured when the vehicle in which he was a passenger was struck by a dump truck owned by Arthur and Gail Barrios, doing business as Barrio’s Landscape and Maintenance (Barrios). The truck was insured by Aetna for a liability limit of $500,000, the amount of coverage required by A.R.S. § 28-1233 at the time the policy was issued. While the policy was in effect, the statute was amended to require $750,000 coverage. The collision occurred two days after the effective date of the amended statute. Aetna paid appellants the policy limit of $500,000 but refuséd to pay an additional $250,000 demanded by appellants.

Aetna maintains that the policy limit is $500,000. Appellants argue that the amendment to A.R.S. § 28-1233 required that the liability limit be automatically increased to $750,000 on the effective date of the amendment. The parties submitted the issue to the superior court requesting declaratory relief. Upon cross-motions, the trial court granted summary judgment for Aetna and appellants appealed.

The sole issue on appeal is whether Aet-na was obligated to automatically and unilaterally increase the coverage of the policy to comply with the statutory amendment. Based upon the undisputed facts, we do not believe Aetna was responsible for increasing the policy limit to comply with the change in this particular statute. We agree with the trial court and affirm.

The statute places the burden of complying with the financial responsibility requirements on the owner of a commercial vehicle, not on the liability insurance carrier. A.R.S. § 28-1233(A)(l)(a) provides that “[ejvery person ... shall maintain ... liability insurance” in the amount of $750,000. A.R.S. § 28-1231 defines a person as “an owner or operator of any motor vehicle ... subject to the financial responsibility requirements of this article.”

Wé note that there is no mention of § 28-1233 and the liability limits imposed on motor carrier policies by that provision in Title 20, A.R.S., governing the issuance of insurance policies. In contrast, A.R.S. § 20-259.01 expressly precludes the issuance of automobile liability policies that do not provide the limits set forth in § 28-1102.1 Moreover, the legislature has specified that the liability limits for automobile insurance shall be contained in one policy. In the area of commercial motor carrier liability insurance, the legislature has not restricted the insured as to the manner in which the liability limit is to be satisfied. The insured can self-insure, procure an excess or umbrella policy, or procure a bond to prove financial responsibility. A.R.S. § 28-1235.

When § 28-1233 was amended to increase the minimum allowable liability limits, Barrios was responsible for obtaining the additional insurance. It could have accomplished this by requesting Aetna to increase the limit of its present policy, by obtaining an umbrella policy for $250,000 from another company, or by choosing to fully or partially self-insure for the additional amount. It is the insured’s decision to make, not the insurer’s.

We note parenthetically that a question exists as to whether the vehicle in this case is even subject to the requirement of § 28-1233. The only vehicle described in the policy is a 1974 Chevrolet dump truck. The weight of the truck is not stated in the policy. Significantly, however, counsel for the parties advised the trial court that according to the policy’s classification code, the truck was identified as a vehicle weighing under 20,000 pounds. Nowhere in the policy is there any indication that it was issued for the purpose of complying with § 28-1233. The actual weight of the truck was 18,000 pounds. If the truck was driven without a trailer it would not fall within the ambit of § 28-1233, which applies to vehicles or vehicle combinations, i.e., tractor and trailer, in excess of 20,000 pounds. Clearly it is the insured, not the insurer, who would know whether § 28-1233 ap[373]*373plied to the vehicle or vehicle combination actually being used on the roads.2

Appellants argue that the insurance broker who wrote the policy for Barrios knew that the policy was being procured to meet the statutory requirement for liability coverage. While this may well be so, A.R.S. § 20-300 states that a broker, acting as such, is not an agent of the insurer. Knowledge of the broker cannot therefore be imputed to Aetna.

Even assuming, arguendo, Aetna knew § 28-1233 applied, appellants fail to establish why, as a matter of law, the onus was on Aetna to increase coverage. Appellants make much of the fact that the policy provides for an adjustment of the premium due based on Barrios’ actual exposures as compared to the exposures contemplated when the policy was issued. Appellants argue that this provision contemplated the upward adjustment of the policy in compliance with the statutory change and that Aetna could have adjusted the premium to reflect the automatic change in coverage. We do not agree. When the policy was issued, Aetna computed what is referred to in the policy as an “advance premium.” This premium was based on the exposures Barrios told Aetna about at that time. The policy provides that Aetna could adjust the premium if the actual exposure of the insured changed from that anticipated at the time the policy was issued. For example, if the insured told Aetna when the policy was issued that the truck would be driven 10,-000 miles, and the advance premium was computed on that exposure, Aetna could adjust the premium if the actual mileage for the year of the policy turned out to be 20,000 miles. We do not believe this provision was meant to include increased exposure resulting from statutory changes. “Statutes subsequently enacted ordinarily do not affect contractual rights” under an insurance policy. 12 J. Appleman & J. Appleman, Insurance Law and Practice § 7041 at 172 (rev.ed. 1981).

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Bluebook (online)
788 P.2d 104, 163 Ariz. 371, 48 Ariz. Adv. Rep. 41, 1989 Ariz. App. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federoff-v-aetna-casualty-surety-co-arizctapp-1989.