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Mancillas v. Arizona Property and Casualty Insurance Guaranty Fund12/15/1994
, 697 P.2d at 339.
Finally, although Lowing involved an accident that occurred after the underinsurance enactment, it did not involve underinsurance coverage. Rather, the case turned on whether a "phantom" tortfeasor could qualify as an uninsured motorist where the policy required that the uninsured vehicle actually "hit" or have "physical contact" with the victim. Lowing's reference to Porter was to the accepted rationale of Porter that an injured motorist must receive the minimum amount of compensation under the Financial Responsibility Act. Thus, the court would consider the unidentified tortfeasor to be "functionally uninsured" in order to further that public policy, "because they have no insurance that is in fact available and collectible." 176 Ariz. at 105, 859 P.2d at 728. The case simply had nothing to do with whether the Porter rationale continues to be applicable after the statutory enactment allows an insured to elect to receive underinsured coverage.
All three of these cases make it clear that the result in Porter was based upon ascertaining legislative intent; that is, allowing recovery to an insured in an amount equal to the minimum coverage offered by the Financial Responsibility Act. However, the legislature has now expressed a new legislative intent to cover the factual scenario of Porter by providing for the availability of underinsurance coverage. To not give effect to this amendment is to make it a nullity and ignores the rationale of Porter that coverage is a matter of legislative intent.
The majority opinion expresses the general principle that A.R.S. ยง 20-259.01 "is remedial in nature and should be liberally construed." To give Mancillas coverage for insurance that he specifically rejected and for which he did not pay a premium is more than "liberal construction"; it is judicial largess.
I would affirm.
EINO M. JACOBSON, Presiding Judge
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