Larimer v. Am. Family Mut. Ins. Co.

926 N.W.2d 472
CourtSouth Dakota Supreme Court
DecidedApril 10, 2019
Docket#28623, #28632
StatusPublished
Cited by7 cases

This text of 926 N.W.2d 472 (Larimer v. Am. Family Mut. Ins. Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larimer v. Am. Family Mut. Ins. Co., 926 N.W.2d 472 (S.D. 2019).

Opinion

KERN, Justice

[¶1.] Kayne Larimer, as Special Administrator of the Estate of Nehemiah Larimer, brought an action for declaratory judgment seeking underinsured motorist benefits under two insurance policies with American Family Mutual Insurance Co. (American Family) following Nehemiah's death in an accident. Pursuant to an "owned but not insured" exclusion in the Larimers' underinsured motorist benefits endorsement, American Family denied coverage. The parties filed cross-motions for summary judgment. The circuit court, finding the policy language ambiguous, held in favor of Kayne. American Family appeals. Kayne filed a notice of review *474contending the terms of the owned but not insured exclusion violate public policy. We affirm.

Facts and Procedural History

[¶2.] On March 27, 2015, eighteen-year-old Nehemiah collided with an automobile while driving his 49cc moped in Rapid City. Nehemiah suffered fatal injuries and passed away the following day. The at-fault automobile driver was insured by American Family under his family's policy. The policy paid Nehemiah's estate up to its $100,000 coverage policy limits.

[¶3.] Nehemiah was also insured under his parents' policies with American Family, including a South Dakota Family Car Policy (Car policy) and a Personal Liability Umbrella Policy (Umbrella policy). Under the Car policy, the Larimers insured five automobiles, but Nehemiah's moped was not listed as one of the insured vehicles. Mopeds are exempt from registration and title requirements; however, owners may license or title a moped if they wish. SDCL 32-5-1.2 ; SDCL 32-3-2.3. The Larimers also purchased an Underinsured Motorists Coverage Endorsement (Endorsement) for the Car policy. The Endorsement provided "compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the underinsured motor vehicle." The Umbrella policy also contained a provision for uninsured and underinsured motorist claims. The coverage applied to "damages in excess of the primary limit[,]" and was "no broader than the underlying insurance."

[¶4.] On August 18, 2015, the Larimers made an underinsured motorist claim under their Car and Umbrella policies. On September 17, American Family denied the claim pursuant to an exclusion contained in the Endorsement providing that underinsured motorist coverage did not apply to bodily injury suffered "[w]hile occupying, or when struck by, a motor vehicle that is not insured under this policy, if it is owned by you or any resident of your household." This provision is commonly known as an "owned but not insured" exclusion. American Family, relying on the definition of motor vehicle contained in the Endorsement, determined that "Nehemiah was riding a moped at the time of the accident, so is considered to have been occupying a motor vehicle that was not insured under this policy. Therefore, the Exclusion ... would apply and there would be no Underinsured Motorist Coverage." American Family also denied coverage under the Umbrella policy because that policy was "no broader than the underlying insurance."

[¶5.] Kayne brought an action for declaratory judgment on May 19, 2016, seeking, in part, a declaration "[t]hat the underinsured coverage of Defendant's policies is portable and followed the insured at all times pertinent hereto so as to provide coverage for the acts of underinsured motorists[,]" and "[t]hat the clear underinsured coverage is not negated by any exclusion[.]" Kayne sought relief "based on the contracts of insurance, with coverage up to the umbrella underinsured limits of $1,000,000." Kayne moved for summary judgment and American Family made a cross-motion for summary judgment. After a hearing, the circuit court, finding the language of the policy ambiguous, issued a memorandum decision granting Kayne's motion for summary judgment and denying American Family's motion. American Family appeals, raising one issue for our review:

1. Whether the language of the underinsured motorist endorsement is ambiguous.

*475By notice of review, Kayne raises one issue:

2. Whether the owned but not insured exclusion from the underinsured motorist coverage is void as against public policy.

Standard of Review

[¶6.] "We review a circuit court's entry of summary judgment under the de novo standard of review." Harvieux v. Progressive N. Ins. Co ., 2018 S.D. 52, ¶ 9, 915 N.W.2d 697, 700. When conducting a de novo review, "[w]e give no deference to the circuit court's decision to grant summary judgment...." Oxton v. Rudland , 2017 S.D. 35, ¶ 12, 897 N.W.2d 356, 360. "When reviewing a circuit court's grant of summary judgment, this Court only decides whether genuine issues of material fact exist and whether the law was correctly applied." Ass Kickin Ranch, LLC v. N. Star Mut. Ins. Co., 2012 S.D. 73, ¶ 6, 822 N.W.2d 724, 726 (internal quotation marks omitted). Here there are no disputed facts, so our task is to determine whether the circuit court correctly applied the law. We can affirm the circuit court for any basis which supports the court's ultimate determination. BAC Home Loans Servicing, LP v. Trancynger , 2014 S.D. 22, ¶ 8, 847 N.W.2d 137, 140.

Analysis and Decision

1. Whether the language of the underinsured motorist endorsement is ambiguous.

[¶7.] In reaching its decision, the circuit court determined that the key issue was "whether or not the 'owned but not insured' [exclusion] applies to the 'moped' or 'scooter' on which Nehemiah was riding at the time of his death." The court, examining the definitions used in the entire contract, found that "under this set of facts ... the language set forth in both the [Car policy] and the [U]mbrella policy [is] ambiguous[,]" and therefore determined that American Family had not met its burden of proving the exclusion applied. American Family argues that the circuit court erred by considering the definitions contained in the entire contract. It contends the Endorsement's definition of "motor vehicle" unambiguously included Nehemiah's moped, meaning the owned but not insured exclusion applied.

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Bluebook (online)
926 N.W.2d 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larimer-v-am-family-mut-ins-co-sd-2019.