Estate of Ramunno v. State Ins. Co.

ESTATE_OF RAMUNNO_V_ALLSTATE_INS_CO.93-528; 163 Vt 590; 653 A.2d 771

[Filed 01-Nov-1994]

                              ENTRY ORDER

                    SUPREME COURT DOCKET NO. 93-528

                          OCTOBER TERM, 1994


Estate of Martin Ramunno     }         APPEALED FROM:
                             }
                             }
     v.                      }         Chittenden Superior Court
                             }
Allstate Insurance Co.       }
                             }         DOCKET NO. S1905-92CnC


           In the above entitled cause the Clerk will enter: 

  Estate of decedent and his family members appeal from the grant of
defendant's summary judgment motion ruling that plaintiffs were not entitled
to a total of $600,000 in uninsured motorist (UM) coverage, based on "loss of
services" provisions in the two policies covering decedent's death in an
automobile accident.  We affirm. 

  Decedent Martin Ramunno was a passenger in a vehicle owned and driven by
his daughter, a resident of his household.  The daughter's vehicle was struck
by a vehicle driven by an uninsured motorist, killing decedent and injuring
the daughter. 

  At the time of the accident, decedent and his daughter were the holders of
separate automobile insurance policies issued by Allstate.  Both policies
contained UM coverage with identical limits of $100,000 per person and
$300,000 per occurrence.  Plaintiff family members asserted that because of
the loss of services they suffered as a result of decedent's death, they were
entitled to recover the $300,000 per-occurrence limit under both decedent's
and the daughter's policies' UM coverage provisions, for a total of $600,000
in benefits. 

  Allstate responded that under the applicable terms of each policy, family
members' losses were compensable only up to the per-person policy limit
applicable to the family members actually involved in the accident, for a
total of $200,000.  The company also responded that "loss of services" was
not included in the definition of "injury," on which term the derivative
claims were based.  On cross-motions for summary judgment, the court ruled in
Allstate's favor, and this appeal followed. 

  Both decedent's and the daughter's Allstate policies contained the same
liability limit provision for UM coverage, which stated: 


The coverage limit shown on the declarations page for: 

     1. "each person" is the maximum that we will pay for damages
     arising out of bodily injury to one person in any one motor vehicle
     accident including all damages sustained by anyone else as a result
     of that bodily injury.

 

  Plaintiffs argue that because the term "bodily injury" was defined in the
bodily injury liability coverage section of the policies to include "loss of
services," the per-person limitation in the UM coverage provision should be
overridden.  This argument is untenable for two reasons. 

  First, it is uncontroverted that the bodily injury liability coverage
definition cited by plaintiffs had been superseded by a policy endorsement
applicable at the time of the accident with language omitting the reference
to "loss of services."  Even if the superseded language were to apply,
however, it would make no difference to the outcome of the case.  The "loss
of services" language on which plaintiffs rely is limited to the section of
the policies dealing with bodily injury liability coverage (relating to
claims against the insured arising out of covered events), not UM coverage. 
The bodily injury liability definition is wholly inapplicable. 

  Second, the UM limit-of-liability provision clearly states that the single
per-person limit applies "for damages arising out of bodily injury to one
person in any one motor vehicle accident including all damages sustained by
anyone else as a result of that bodily injury."  Plaintiffs have not
explained how the words "all damages sustained by anyone else" are ambiguous,
or how damages of any kind in an amount above the policy limit for UM
coverage can be justified.  By a plain reading of this provision, the one
per-person limit of $100,000 applies to the total of (1) a person's
accident-related injuries, and (2) all damages to anyone else arising out of
those accident-related injuries.  In sum, plaintiffs' textual argument is
wholly without merit. 

  Though not a UM case, our decision in Whitney v. Nationwide Mutual Ins. Co.
supports the result in this case.  151 Vt. 510, 562 A.2d 467 (1989).  The
plaintiff in Whitney was injured in a motorcycle accident caused by the
negligence of the other driver, and was awarded a judgment of $110,000,
$20,000 of which, the stated policy limit, was paid by the other driver's
insurer.  The other driver's liability policy contained the following
limits-of-liability clause: 


     The limit of bodily injury liability stated in the Declarations as
     applicable to "each person" is the limit of the Company's liability
     for all damages sustained because of the injury to one person in
     any one occurrence.  The limit of such liability stated in the
     Declarations as applicable to each occurrence is, subject to the
     above provision respecting each person, the total limit of the
     Company's liability for all damages sustained by two or more
     persons in any one occurrence. (Emphasis added.)


Id. at 511 n.1, 562 A.2d  at 468 n.l.  We concluded that "injury" in the
quoted language meant "bodily injury" and that the injured man's wife could
not recover against the other driver's insurer because she did not suffer
"bodily injury."  Id. at 512, 562 A.2d  at 468.  Her loss, if any, arose out
of her husband's injury.  Id. 

  Similarly in this case, the "loss of services" due to decedent's death is a
different injury from the bodily injury to decedent, and the policy language
is, if anything, even clearer on this point than the language in Whitney. 

  In sum, any claimant whose losses, including loss of services, were
incurred only "as a result" of decedent's bodily injuries, are not entitled
to a separate per-person recovery under the policy, but may only recover
under and within the per-person limit applicable to decedent. Accord, Green
v. Mid-America Preferred Ins. Co., 751 P.2d 581, 588-89 (Ariz. Ct. App.

 

1987); Florida Ins. Guaranty Ass'n v. Cope, 405 So. 2d 292, 293-94 (Fla.
Dist. Ct. App. 1981); Miller v. Public Employees Mutual Ins. Co., 795 P.2d 703, 705-06 (Wash. Ct. App. 1990), review denied, 797 P.2d 513 (1990). 

  Affirmed. 



                           BY THE COURT:



                           _______________________________________
                           Frederic W. Allen, Chief Justice

                           _______________________________________
                           Ernest W. Gibson III, Associate Justice

                           _______________________________________
                           John A. Dooley, Associate Justice
   Publish
                           _______________________________________
                           James L. Morse, Associate Justice
   Do Not Publish
                           _______________________________________
                           Denise R. Johnson, Associate Justice