 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brown v. State Farm Mutual Automobile Insurance Co.3/16/1989
This appeal arises from a dispute concerning the rights, duties, and status of the parties with respect to underinsured motorist coverage under two separate insurance policies.
Jennifer Goode died of the injuries she received when the vehicle in which she was a passenger was struck by another vehicle. She was insured under a policy issued by State Farm Mutual Automobile Insurance Company (State Farm) to her stepfather on a vehicle owned by him. The car in which she was riding was insured by Universal Underwriters Insurance Company (Universal). The car which struck them was insured by a Farmers Insurance Company policy with a $50,000 per person liability limit. Both the State Farm and Universal policies provided underinsured motorist coverage of $100,000 per person. The wrongful death claim as to Jennifer Goode has a value of at least $250,000.
Appellee, personal representative of Jennifer Goode's estate, filed a complaint for declaratory judgment. The matter was submitted on stipulated facts and exhibits and cross-motions for summary judgment were filed by State Farm, Universal, and appellee. Before the matter was decided, Universal settled with appellee and paid its policy limit of $100,000. Granting appellee's motion for summary judgment, the trial court held that Jennifer Goode was an insured under both policies, that both policies provided excess coverage of $100,000, and that because the policy limits were the same, the total limit of coverage would be $100,000. The court further held that because both policies were excess they must share on a pro rata basis. Judgment was entered in favor of appellee and against State Farm in the amount of $50,000 plus interest and attorneys' fees.
State Farm appeals, arguing that Universal's coverage was primary and because the limitation for both policies was $100,000 and Universal paid that amount, State Farm owes nothing. Appellee cross-appeals, arguing that both the State Farm and Universal policies are excess and both are liable for the full $100,000.
The parties do not dispute that State Farm's coverage is excess. What is at issue is whether Universal's coverage is primary. If Universal's policy is primary, State Farm is not liable under its policy. If Universal's policy is excess, State Farm owes a pro rata share, and what that share is and to whom it is owed then becomes the issue.
A.R.S. ยง 28-1170.01 of the Transportation Safety Responsibility Act provides:
A. If two or more policies affording valid and collectible automobile liability insurance apply to the same motor vehicle in an occurrence out of which a liability loss shall arise, and one of such policies affords coverage to a named insured engaged in the business of selling, repairing, servicing, delivering, testing, road testing, parking or storing motor vehicles, both of the following shall be conclusively presumed:
1. If, at the time of loss, the motor vehicle is being operated by any person engaged in any of such businesses, or by his employee or agent, the insurance afforded by the policy issued to the person engaged in such business shall be primary, and the insurance afforded by any other policy shall be excess.
2. If, at the time of loss, the motor vehicle is being operated by any person other than as described in paragraph 1, the insurance afforded by the policy issued to any person engaged in any of such businesses shall be excess over all other insurance available to such operator as a named insured or otherwise.
B. Except as provided in subsection A of this section, if two or more policies affording valid and collectible liability insurance apply to the same
Page 1 2 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|