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Wold v. Progressive Preferred Insurance Company8/2/2002
's March 4, 1998, global settlement agreement with the Wolds resolved not only the estate's wrongful death claim against Smith's liability policy, but also the individual claims for loss of society that Cynthia and Gary Wold set out in their complaint. If those claims triggered separate "per person" limits under Smith's liability policy, then any payments allocated to the loss-of-society claims would not have reduced the coverage available to pay the estate's wrongful death claim; hence, the estate would not have used up its available "per person" limits of Smith's liability policy.
Because we have not previously decided whether a Gillispie loss-of-society claim can trigger a separate "per person" policy limit, we requested the parties to file supplemental briefing on this issue. In its supplemental briefing, Progressive argues that the Wolds' claims for the loss of their daughter's society were subject to the same "per person" limit in the Allstate liability policy as Heidi's estate's wrongful death claim. Progressive bolsters its argument by discussing case law from other jurisdictions, which generally seems to hold that all consequential damages flowing from bodily injury to a single person fall within a one per-person limit.
We find it unnecessary to resolve the issue definitively here. In the present case, it appears that Rodney Layton, the Allstate claims adjuster who settled the Wolds' claims, took the same position as Progressive, viewing a claim for loss of consortium or society - as opposed to a claim for NIED - as a derivative claim that would not trigger a separate "per person" Allstate policy limit. Given that Layton and Progressive both agree on the proper treatment of the loss-of-society claims under Smith's Allstate policy, we find no reasonable basis in this case for allocating any portion of the March 4 global settlement attributable to Cynthia and Greg Wold's individual loss-of-society claims to a separate "per person" policy limit than the limit covering the estate's wrongful death claim. And because the claims for wrongful death and loss of society are the only specific liability claims that the Wolds were still asserting when they negotiated the global settlement, it follows that Allstate's March 3 settlement payment exhausted the limits of the liability coverage available to Heidi Wold's estate under Smith's Allstate policy.
For this reason, we hold that it was error to declare that the estate had failed to use up Smith's Allstate liability coverage and was barred from asserting a UM/UIM claim against Progressive.
IV. CONCLUSION
We AFFIRM the superior court's ruling on the physical contact issue, REVERSE its ruling on the estate's exhaustion of the Allstate liability coverage, and REMAND for entry of judgment in conformity with this opinion.
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