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Wold v. Progressive Preferred Insurance Company8/2/2002
As amended August 20, 2002.
CYNTHIA WOLD, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HEIDI WOLD, APPELLANT,
v.
PROGRESSIVE PREFERRED INSURANCE COMPANY, APPELLEE.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Brian C. Shortell, Judge. Superior Court No. 3AN-99-10357 CI
Appearances: Laurel J. Peterson, Laurel J. Peterson, P.C., Anchorage, for Appellant.
Daniel T. Quinn, Richmond & Quinn, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Bryner, Justices. [Carpeneti, Justice, not participating.]
The opinion of the court was delivered by: Bryner, Justice
OPINION
No. 5602
I. INTRODUCTION
Heidi Wold was killed while riding in a pick-up that rolled over after its driver, Koby Smith, swerved to avoid an on-coming car; the on-coming car kept driving and was never identified. Heidi's estate and her parents settled with Smith's insurer; Heidi's mother, Cynthia, then claimed benefits - both individually and as personal representative of Heidi's estate - from Progressive Preferred Insurance Company on Cynthia's own uninsured/underinsured motorists (UM/UIM) policy. Progressive refused to pay and sought a declaratory judgment, claiming that the unknown driver's conduct could not trigger UM/UIM coverage without a collision and that Smith's negligence could not trigger UM/UIM coverage because the Wolds had not exhausted his liability coverage. The superior court entered judgment for Progressive. We affirm in part and reverse in part, agreeing that Alaska law treats unidentified vehicles as uninsured only when there is a collision but holding that Heidi Wold's estate used up Smith's liability coverage and so may claim UM/UIM benefits from Progressive.
II. FACTS AND PROCEEDINGS
On December 27, 1995, Koby Smith rolled his pick-up truck when he swerved to avoid a car coming toward him in his lane of traffic. Smith's truck did not hit the oncoming car; the car kept driving, and its driver was never identified. Koby Smith's passenger, sixteen-year-old Heidi Wold, was killed in the accident. Heidi's mother was called to the accident scene and arrived soon after, just before Heidi died.
Smith was insured under a policy issued by Allstate Insurance Company that provided both liability and uninsured/underinsured motorists coverage, each having limits of $100,000 per person and $300,000 per accident. Heidi Wold's mother, Cynthia Wold, had her own UM/UIM policy with Progressive, which had the same limits as the Allstate policy. It is undisputed that Heidi qualified as an insured person under both the Allstate and Progressive policies.
Through their attorney, Laurel Peterson, the Wolds negotiated with Allstate for payment under Smith's liability and UM/UIM coverages. Cynthia Wold asserted a wrongful death claim as the personal representative of Heidi's estate; on her own behalf, Cynthia asserted a "bystander" claim for negligent infliction of emotional distress (NIED); and both Cynthia and Heidi's father, Greg Wold, evidently asserted individual claims for loss of consortium or society. The Wolds asserted these claims against both Smith and the unknown driver, alleging that each had been negligent. They maintained that Smith was covered for his own negligence under Allstate's liability policy and that, under Alaska law, the unknown driver was considered to be an uninsured motorist whose actions were covered under the policy's UM/UIM
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