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Gloe v. Iowa Mutual Insurance Co.3/2/2005
Argued on August 24, 2004
[ .] Scott Gloe's parents were struck and killed by an automobile. Gloe's parents did not reside in his household, they were not insured under his auto policy, and neither Gloe nor his covered automobile was involved in the accident. Nevertheless, Gloe asserted a wrongful death claim under the underinsured motorist (UIM) provision of his auto policy with Iowa Mutual. The trial court entered a declaratory judgment determining that there was no UIM coverage for Gloe's claim, and he appeals. We affirm because (1) Iowa Mutual's policy only provided UIM coverage for insureds who suffer bodily injury or death, (2) Gloe suffered no bodily injury or death, (3) his parents were not insureds under his policy, and (4) South Dakota's statutes do not mandate UIM coverage for pecuniary losses insureds may suffer as a result of the death of third parties who have no connection with the insured's policy.
Facts and Procedural History
[ .] On September 1, 2001, pedestrians Larry and Verna Mae Gloe were struck and killed in an auto accident. Pursuant to SDCL 21-5-1, Scott Gloe, their son, was appointed as the personal representative to pursue wrongful death claims on behalf of the decedents' statutory beneficiaries.
[ .] Two insurers provided liability coverage for this accident. American Family Insurance Company insured the automobile, with liability limits of $25,000 per person. Farmer's Insurance Group insured the driver, with liability limits of $100,000 per person. Each company paid its limits: $125,000 was paid for the wrongful death claims arising from Larry Gloe's death, and $125,000 was paid for the wrongful death claims arising from the death of Verna Mae Gloe. These sums were paid in return for a release of the tortfeasor and the liability carriers. Scott Gloe, his brother Michael Gloe, and their sister Karen Nelson received the wrongful death proceeds.
[ .] After settling with the liability carriers, Scott Gloe brought this declaratory action seeking to establish UIM coverage under his policy with Iowa Mutual. Gloe's claim was asserted in his individual capacity, and he sought to recover additional uncompensated wrongful death damages. Under South Dakota law, those damages are limited to Gloe's pecuniary loss caused by the death of his parents.
[ .] Gloe's policy with Iowa Mutual provided UIM benefits, with limits of $250,000 per person and $500,000 per occurrence. Gloe conceded that if Iowa Mutual's policy provided UIM coverage, Iowa Mutual was entitled to set-off the amount that he received from the two liability insurers. However, Iowa Mutual denied that its policy provided any UIM coverage. Iowa Mutual's denial was based upon a policy endorsement that only provided UIM coverage for "bodily injury or death" sustained by an "insured." Because Gloe sustained no bodily injury or death in this accident, and because Gloe's parents were not insureds under his policy, Iowa Mutual contended that its UIM coverage was unavailable.
[ .] Gloe acknowledged the policy language, but argued that the provision requiring "bodily injury or death" by an "insured" was incompatible with South Dakota's law requiring UIM coverage. The trial court disagreed. Gloe now appeals, raising the following issue:
1. Whether South Dakota statutes preclude an insurer from restricting UIM coverage to bodily injury or death sustained by an insured.
By notice of review, Iowa Mutual raises the following issues:
2. Whether Gloe is a real party in interest with an individual claim for damages after he settled the wrongful death claims on behalf of the wrongful death beneficiaries.
3.
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