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Gloe v. Iowa Mutual Insurance Co.3/2/2005
ured's own injury or to a household member's injury or death, it could have easily done so. For example, the legislature could have written the statute to say:
"Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death [of an insured] arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon."
See SDCL 58-11-9.5. The legislature also could have clearly limited the coverage expressed in SDCL 58-11-9 by changing or inserting different language. Instead of using language allowing recovery of damages because of "death," without qualification, it could have used a more limiting phrase such as "death [of an insured]." Id. The bottom line is that the legislature did not limit coverage. There is nothing ambiguous about the language and no need to look to other jurisdictions. The legislature set up the statutory recovery for wrongful death; it also required coverage when a death results from the negligence of underinsured and uninsured motorists. It is logical to conclude that the intent of the law was to protect those who are harmed when death results, i.e. wrongful death beneficiaries. The legislature should be the entity to change the language of the law if this was not the intent, not this Court.
[ .] I would reverse the lower court and allow Gloe's claim to proceed.
[ .] SABERS, Justice, joins this dissent.
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