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Gloe v. Union Insurance Co.3/2/2005
atedly at oral argument, is incorrect and not permissible under current South Dakota law. The language of the policy makes it clear that the $100,000 limit is the maximum the insurer will pay "for all damages for care, loss of services or death, arising out of 'bodily injury' sustained by any one person in any one accident." If we were to follow the dissent's logic on this issue, we would effectively overrule Rogers, 520 NW2d 614, which does not permit the recovery to exceed a contractually imposed single per person limit of liability when bodily injury or death has been suffered by only one insured, regardless of the number of claims or insureds making claims because of the single bodily injury or death suffered by one insured.
[ .] We hold the correct setoff amount in this case is that amount paid by the tortfeasor's liability carriers because of the death incurred by the insureds Verna Mae and Larry. The amount against which to setoff the liability proceeds is the $100,000 in UIM coverage available for Verna Mae and the $100,000 in UIM coverage available for Larry. For each of the decedents, the amount paid by the tortfeasor's liability carriers because of the insureds' deaths exceeds the available UIM coverage. Therefore, no UIM benefits are payable under the contract.
[ .] Reversed.
[ .] KONENKAMP and ZINTER, Justices, concur.
[ .] SABERS and MEIERHENRY, Justices, dissent.
MEIERHENRY, Justice (dissenting).
[ .] I respectfully dissent.
Statutory Provisions
[ .] The language of SDCL 58-11-9.5 does not allow an insurance carrier to aggregate the total amount paid to third parties by or on behalf of the tortfeasor as an offset for amounts owed to its own individual insured. The language of the statute is as follows:
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 arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon. Coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.
Id.
[ .] The first sentence of the statute requires the insurance company to pay its own insured, in this case Michael Gloe, uncompensated damages for the death of his parents. The second sentence then limits the coverage "to the underinsured motorist coverage limits on the vehicle of the party recovering." Here, the limit is $100,000 for the damages sustained by each insured, and $300,000 for the damages resulting from each accident. The statute further allows the recovery to be reduced by "the amount paid by the liability insurer of the party recovered against." It is the application of this last clause of the statute where I disagree with the majority opinion. This clause relates to the general subject of the statute defining the duty of the insurance company to its own insured. The public policy embodied in this legislation is that if a person is injured by an insured motorist but is not fully compensated for his injuries, his own insurance company will pay him up to $100,000. It would be contrary to public policy for us to allow the insurance company to avoid its agreement by reducing the amount it owes to its own insured with money that the tortfeasor's company paid to other individuals.
[ .] The trial court correctly applied the statute by allowing Union to reduce the amount it owed to Michael Gl
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