Simon v. Continental Insurance Co.

724 S.W.2d 210, 1986 Ky. LEXIS 320
CourtKentucky Supreme Court
DecidedDecember 18, 1986
StatusPublished
Cited by89 cases

This text of 724 S.W.2d 210 (Simon v. Continental Insurance Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simon v. Continental Insurance Co., 724 S.W.2d 210, 1986 Ky. LEXIS 320 (Ky. 1986).

Opinions

LEIBSON, Justice.

This is a dispute over what underinsured motorists benefits were provided by an automobile insurance policy issued by the Continental Insurance Co. to Michael and Janet Simon, his wife.

Michael Simon was killed, and their daughter, Stephanie, was seriously injured in a motor vehicle accident occurring October 9,1981 in Edmonson County. The driver of the offending vehicle was Earl Page. His liability insurance coverage provided only the minimum limits for bodily injury then required by law, $10,000 per person and $20,000 per accident. KRS 304.39-110 (1976).

Janet Simon was awarded judgment against the tortfeasor, Page, in the sum of $104,023 as administratrix of her deceased husband’s estate and $40,000 as guardian for Stephanie. Page’s insurance carrier promptly paid Page’s liability limits, $10,-000 on each claim, leaving an unpaid judgment balance of $94,023 owed to the estate and $30,000 owed to Stephanie. Janet Simon had also filed an underinsured motorist claim against the Simons’ own automobile insurer, Continental Insurance Co. This claim had been held in abeyance until Page’s liability insurance carrier paid its limits.

The Simons’ automobile insurance policy with Continental provided coverage for “LIABILITY TO OTHERS” listed on the face sheet (Declarations Page 1) as “Each occurrence, $100,000.” The face sheet also listed “PROTECTION AGAINST UNINSURED MOTORISTS,” “Each person, $10,-000/Each accident, $20,000.” Page 2 of the Declarations specified that the insured had purchased “UNDERINSURED MOTORISTS INS” as well as “UNINSURED” coverage, but the Declarations failed to specify any separate amount of coverage for underinsured (as opposed to uninsured) coverage. Further, the face sheet failed to [211]*211itemize the premiums paid for the various coverages, instead specifying only a lump sum for premiums for the various coverages provided, which was $652 per year.

KRS 304.39-320, which is part of the Motor Vehicle Reparations Act, requires that “Every insurer shall make available upon request to its insureds underinsured motorist coverage.... ” It is conceded that the insured requested for and paid for such coverage, but the evidence does not show the amount of underinsured motorist coverage that was asked for and paid for, and we cannot determine this by looking at the Declaration pages in the policy.

The insurer, Continental Insurance Company, claims that the amount of the coverage can be divined by looking to the language of “Section IV” of its policy, that its liability for underinsured motorist coverage is coextensive with its liability for uninsured motorist coverage, and that the limit for both is $10,000/$20,000, the amount listed on the face sheet of the policy as the limit of liability for “UNINSURED MOTORISTS” coverage.

On the other hand, the insured, Simon, contends that the amount of coverage should be determined by looking at the language of the Underinsured Motorist section of the Motor Vehicle Reparations Act, KRS 304.39-320, and that the Act requires that underinsured motorist coverage must be coextensive with the insured’s liability policy limits, in this case $100,000. The insured concedes that under our decision in LaFrange v. United Services Auto. Ass’n., Ky., 700 S.W.2d 411 (1985), the liability limits in the tortfeasor’s policy, in this case a total of $20,000, must be offset against the underinsured motorist coverage provided by the insured’s policy. The insured contends that this leaves a balance of $80,-000 due and owing from Continental Insurance Co.

The trial court resolved this dilemma in favor of the insured, and awarded summary judgment against the insurer in the sum of $80,000, pro rated 75% (or $60,000) to the Estate of Michael Simon and 25% (or $20,000) to the plaintiff as Guardian of her injured daughter.

However, the Court of Appeals reversed, holding that the Underinsured Motorists statute does not require that underinsured motorist coverage be provided in the same amount as the coverage provided to the insured for liability to others, and that the policy itself, when considered in its entirety, was written to provide coverage only in the same amount as the uninsured motorist coverage, $20,000. Thus, under the Court of Appeals’ decision, although the tort-feasor, Page, had only the minimum liability insurance coverage required by law, the insured’s underinsured motorist coverage was limited to the same amount. The insured was left a “balance of zero.” We have accepted discretionary review of the Court of Appeals’ decision, and reverse it.

There are two questions raised by this appeal. One is a matter of statutory construction and the other is a matter of policy construction. The insured is entitled by law to a favorable construction of both the statute and the policy if there is any' doubt about whether coverage is provided: the statute because it is “remedial legislation which should be generally construed to accomplish its stated purposes,” and the insurance contract because it is “a contract of adhesion (wherein) any ambiguity in the contract language will be construed against the insurer who prepares it.” LaFrange v. United Services Auto. Ass’n, supra at 413.

As to the statute, the question presented is whether the statutory obligation placed upon the insurer to provide underinsured motorist coverage, if requested, “to the extent of the policy limits on the vehicle of the party recovering,” refers to the limits provided for liability to others in the policy, or whether when underinsured motorist coverage is requested the insurer may sell coverage in an amount less than the liability coverage in the policy.

Minnesota had an underinsured motorist statute similar in every respect to our Kentucky statute except that it solved the question presented by qualifying the phrase “to the extent of the policy limits on the vehicle of the party recovering” with “or such smaller limits as he may select.” [212]*212Minn.St. 1971, § 65B.26(d). Because we resolve this case on the second question, the question of policy construction, the difference in result, if any, which should flow from this statutory variation, is a question which is reserved for another day.

The second question is whether the policy language should be construed as expressly limiting underinsured motorist coverage to $20,000, the amount stated for “uninsured motorist” coverage in the policy's Declarations, or whether the policy should be construed in the broader context of the limits provided for liability coverage, $100,000. We believe, for reasons that will be stated, that when both the manner in which the policy is structured and the reasonable expectations of the insured are considered, the policy is ambiguous and the insured is entitled to have the ambiguity resolved against his insurance company. This means that the trial court’s summary judgment in favor of the insured should be upheld for reasons of policy construction, and we do not reach the larger question of whether the language of KRS 304.39-320

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Cite This Page — Counsel Stack

Bluebook (online)
724 S.W.2d 210, 1986 Ky. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-continental-insurance-co-ky-1986.