*1 Wickham, regardless the sub- impeach testimony. We conclude of his
stance right to not forfeit his did
that Wickham admissibility perjury of his
appeal testify at electing not
convictions
trial.
Wickham, (footnotes omit- 770 P.2d at
ted). appeals the court of my opinion
It determining
did not abuse its discretion adequate “is in this case
that the record Id. at review.”
permit meaningful result, petition for I dismiss
As a would granted.5 improvidently
hearing as BURTON, Appellant, L.
Michael FIRE AND
STATE FARM CASUALTY
COMPANY, Appellee. Sims, Stephen Stephen M. Law Offices No. S-3224. Sims, appellant. Anchorage, M. Supreme Court Alaska. Waggoner, Paul W. Law Offices Paul Aug. Anchorage, appellee. Waggoner, C.J., MATTHEWS,
Before BURKE, RABINOWITZ, COMPTON and MOORE, JJ.
OPINION MOORE, Justice. Burton, of a
Michael the owner by State policy issued vehicle insurance (“State Casualty Co. Farm Fire Farm”), seriously riding injured was while insured vehicle. passenger as a against Burton settled in excess and the driver of Burton’s limit of Burton’s lia- per occurrence sought pay- then bility coverage. his underin- injuries under ment for his coverage. State Farm sured motor vehicle this case. view of to determine which criterion 5. I find it difficult justifies discretionary re- Appellate Rule 304 *2 $265,000 paid occupants to the ground that State Farm pay refused to on the exchange motor the other vehicle in for a re- policy’s of underinsured definition against Bur- Jones and excludes the insured vehicle. lease of their claims vehicle contrary $35,000 paid Burton challenged this exclusion as Burton. State Farm ton various expectations attorney’s and and fees on his claim plus his reasonable costs superior court statutory provisions. The against Jones. ap- Burton claims and dismissed Burton’s settlements, com- After these Burton Farm
pealed. believe that the State We against menced an action State Farm impermissibly limits exclusion declaratory damages relief аnd under the accordingly reverse. and State Farm offers motor vehicle of his argued that since he was policy. I. (his own) that injured by a motor vehicle purchased 1985, Burton February On (he respect to him was underinsured with for his new from State $100,000 person per received less than the provided policy The both pickup truck. limit of his and underinsured motor uninsured and under- liability coverage and coverages), he should receive an $100,000 coverage of insured motor vehicle $65,000 from Farm. Bur- additional State $300,000 per per person and occurrence. limiting language in argued ton that $25,000 in policy provided medical The also liability and underinsured motor vehicle $10,000 in payments coverage and death coverages policy contrary public of his dismemberment and expressed compulsory policy as Alaska’s 21.89.020; liability coverage of Burton’s The insurance statutes. AS AS 28.- permissive protected upon Burton and users 22. He also based his claim what he legal liability to others. The his truck from says expectations reasonable were his “any liability coverage did not extend to buying policy. superior The when insured_” Bur- bodily injury any to ... court dismissed Burton’s claims. expenses medical were within ton’s appealed. payments coverage. medical
scope of his scope
Damage to the truck was within the II. coverage. The unin- of Burton’s collision provision in Burton maintains that underinsured motor vehicle cov- sured and liability coverage does not recover erage provided that Burton could (a bodily injuries an extend to insured’s damages bodily injury exclusion”) denies him the cov- “household “legally property damage that he was expected required by erage he the owner or driver entitled to collect from paid statute. Farm has uninsured motor vehicle or an under- of an $300,000 per occurrence limit excess of policy specifi- The insured motor vehicle.” liability cоverage. Regardless of Burton’s and underin- cally provided that uninsured the exclusion is valid or consistent whether motor vehicles did not include motor sured expectations, State with his reasonable under the cover- vehicles “insured pay anything beyond Farm is not bound to policy.” age of the per occurrence limit of Burton’s liabili- 28, 1985, passen- July declaratory Burton was a ty coverage. grant On We will not An- being which was driven Greater ger question. his truck judgment of moot Borough City Area Anchor- negligently Dan Jones collided with chorage Jones. collision, (Alaska 1972). another car. As a result of the age, injuries. The Burton sustained severe Burton’s ar- We therefore do not consider paid Bur- record indicates that State Farm guments concerning this exclusion $25,000 payments under the medical policy. ton $5,000 under the dismember- III.
ment of his pro argues that legal multiplicity A actions followed him with less underinsured approval, vided the collision. With pro- than it is the statutory minimum unless agree.1 vide We writing. statute. Burton waived it in AS 21.89.- 020(e). mo- Alaska law defines “underinsured
tor vehicle” as: provides statute also the unin- *3 highway use motor vehicle licensed coverage sured and underinsured does not ownership, operation, respect with to protect an occupying an insured while unin- maintenance, use for which there is a or by sured vehicle owned the insured or a property damage insur- bodily injury or (now 28.22.130(1) relative. AS AS 28.22.- policy applicable at the ance or bond 231(1)). A implication provi- clear of this the and amount of time of an accident occupying sion is that if an insured is an insurance or bond him, by protect- insured he vehicle owned ed his underinsured motor vehicle cover- (B) payments has been reduced to case, age. Were this not the an insured insured, persons injured an other than buy could automobile insurance no cover- accident, than to less the limit for ing his own pain suffering and lost and underinsured of injured income the event he is while policy.2 the insured’s occupying own vehicle. his truck was an underinsured motor permitted poli- Insurers are not to issue that term is defined in 28.40.- vehicle as AS containing provisions cies reduce the 100(a)(17)(now 28.40.100(a)(16)) AS because scope legal of the below mini- the of insurance to Bur- amount available mum. Hillman v. Nationwide Mut. Fire payments persons ton “reduced was to 1248, (Alaska 758 P.2d other ... less than the than' [Burton] 1988). (now Although 28.22.500 AS AS limit for uninsured and underinsured cover- 28.22.301) to include allows insurers аge policy.” AS 28.40.- [Burton’s] policies their other exclusions “that do not 100(a)(17). chapter requirements violate the of this or companies offering Insurance automobile laws,” applicable other we must construe liability insurance must offer uninsured section the togéther this rest the motor underinsured Mandatory Insurance Motor Vehicle Act so equal with limits at least of the those that all of statute’s sections have mean- the liability coverage. 21.89.020(c). AS The Furthermorе, ing and none conflict. if a purpose protect is to “the specific general conflicts with a sec- section persons under the policy insured who are In tion, re specific the controls. section legally to recover damages entitled from Hutchinson, 1074, Estate operator the an ... ... (Alaska 1978). do not believe We bodily injury motor vehicle because ... legislature intended AS 28.22.500 to allow arising of the ... use of out ... under- insurers to the definition of rewrite undеr- 28.22.010(a)(3) insured motor vehicle.” AS in AS (same insured motor vehicle contained 28.- 28.22.101(e)). language now AS 40.100(a)(17). Here, Farm scope of State protec- Burton falls within the provide coverage in where by the did not cases injured tion. He was use of an vehicle, own, an underinsured ve- his was permits from The no such operator, was entitled to recover hicle. statute exclu- provide Jones. Farm was sion.3 State 108, 1, many respects 1. § We thus have no occasion addrеss Burton’s was enacted in Ch. SLA 14, argument contrary apply exclusion is We that the to his 1989 effective June 1989. law day 26, 1985, expectations pur- February at the was in reasonable time he effect on policy. purchased policy, but observe that chased the his holding interpret- today may be relevant in our ing (now 28.40.100(a)(17) AS AS 28.22 now exists. as it 28.40.100(a)(16)). statutory pro- All certain other of AS 28.22 and concerning repealed consistent with decisions in visions insurance were 3.This conclusion is jurisdiсtions. Eg. January Rodman Ch. SLA 1984 effective a number of other § differing v. State Auto. Ins. N.W.2d A new AS 28.22 from the old in Farm Mut. $100,000,
IV. ments amount of less provided deductions argues that the ex because $100,000 entitled clusion is invalid he is parties disagree payments whether protection. Since of underinsured motorist payments coverage under Burton’s medical $35,000 from received should be deducted. Burton’s clear- liability coverage, under he ly provides payable that the amount under $65,000. to him for is liable bоdily underinsured motorist responds that Burton is entitled injury any reduced “shall be amount only $50,000 in underinsured motorist cov paid payable the insured to or for under erage without the invalid exclusion ... the liability ... the medi- [or] *4 payments has re which all of the payments coverage....” cal Nothing $60,000, ceived, deduct totalling should be payments coverage poli- the medical of the $50,000 is ed. observes that State Farm cy Although contradicts this. the “condi- coverage. statutory liability the minimum рolicy provides tions” section of the (same 28.22.010(a)(2)(A) AS minimum now payments coverage payments “medical ... 28.22.101(d)(1)). Although AS us,” provision are not recoverable to offer mo underinsured only right refers Farm’s to State subro- coverage in the liabil tor vehicle amount of gation, not at issue here. which is This 21.89.020(c), ity coverage in coverage, AS provision provi- conflict with the does not statutory mínimums is not sub excess reducing sion an insured’s underinsured ject statutory requirements. 28.22.- AS coverage by paid the amount motorist un- 030(a) 28.22.121(a)). (now AS coverage. Thus, payments der medical invalidating the reasons that our decision $100,000 ap State Farm exclusion therefore should should receive reduced $50,000 $35,000 ply only the first liability the he received under his $25,000 coverage. the he received for $40,000. payments, medical or correctly majority states the invalidated, rule an exclusion is that when superior The decision of the court is RE- liability the is limited the insurer’s statu- VERSED case REMANDED and the See, e.g., v. Arceneaux tory minimum. proceedings further consistent with this Co., Auto. Ins. State Farm Mut. 113 Ariz. opinion. 216, (1976); v. 87, DeWitt P.2d 89 550 474, 478, Young, 229 Kan. 483 RABINOWITZ, Justice, dissenting. (1981). developed primarily This rule was involving liability exclusions cases requires companies Alaska insurance law statutory liability The minimum offering liability insurance to automobile prescribed by amount is a dollar offer uninsured and underinsured motorist 28.22.010(a)(2)(A). statute. AS This case equal with limits to those of the is somewhat different. State Farm is re- 21.89.020(c). liability coverage. AS quired to offer uninsured underinsured statute defines “underinsured motor ve- liability motorist amount of hicle” as: voluntarily. coverage purchased AS 21.89.- highway a motor licensed for use 020(c). Therefore, statutory minimum ownership, operation, respect of underinsured motor vehicle insurance maintenance, for which or use there is a the actual amount damage bodily injury property insur- or purchased. Because applicable insurance, ance оr a bond at the bought $100,000 he is time of and the amount of an accident entitled to underinsured vehicle cov- erage satisfying require- the statutory insurance or bond 606,
903, statute, (Iowa 1973); (1966) (overruled by Carmichael v. Govern P.2d 608 1967 140, (codified Employees ment 54 A.D.2d 388 Or.Laws 3 as § ch. amended.at (App.Div.1976); 742.504(2)(e)(A) (1989))). N.Y.S.2d Bowsher Or. Rev.Stat. § Cas. State Farm Fire and Or. another, and, (A) one reason or collision limit for unin- is less than fully insured are not of a named coverage of losses and underinsured sured compensаted. or policy; insured’s (B) by payments reduced has been theory al- Burton advances insured, injured-in than an persons other insured at the time though his vehicle was accident, limit for to less than the has recovered in and he of the accident coverage of and underinsured pro- limit per-occurrence of the total excess insured’s entitled to recover policy, he is vided of an himself as the owner may damages for 28.40.100(a)(17). An insured waive AS 21.89.020(e). My fundamental dis- vеhicle. coverage writing. urged with the construction agreement provides that uninsured AS 28.22.130 legisla- unsupported by protect an that it is not Burton is coverage does stat- Analysis of the relevant owned tive intent. occupying a vehicle insured while never legislature suggests and not insured utes or a relative the insured pursuant to under- contemplated recovery owned by a vehicle when struck may contain when relative.1 Policies motor vehicle insured or a only alleged “that do and exclusions is the *5 limitations insured vehicle other chapter of this requirements not violate to be underinsured. 28.22.500. applicable laws.” AS other or carriers authorizes insurance Alaska law for pay to Farm’s refusal any exclusion not contractually create that contention on its injuries
his
based
by law. AS 28.22.-
specifically prohibited
underinsured mo-
policy’s definition
Thus,
correctly argues
Farm
500.
In
vehicle.
the insured
vehicle excludes
tor
for the exclu-
right
a
to contract
that it has
as
question
in
reads
regard
policy
this
a
point
Burton can
issue unless
sion at
follows:
prohibiting
state law
provision of
particular
not
vehicle does
motor
An underinsured
taken
argues
the exclusion.
vehicle:
a land motor
include
of underinsured
together,
the definition
liability
mandatory
under the
and the
1.
insured
vehicle
prohibi-
policy;
offering requirement
of this
constitute
in the State
against
the exclusion
tion
regular use of
for the
furnished
in
рrohibition
relative,
I find no such
any
or
...
your spouse
you,
by
upon
statutory provisions relied
ve-
‘uninsured motor
as an
6. defined
Burton.
your policy.2
in
hicle’
(AS
offering requirement
in the
Nothing
contention
response to Burton’s
In
21.89.020(c))
requirement
suggests that
less underin-
him with
provided
insur-
a carrier offers
when
is not satisfied
than
sured motor
uninsured or underin-
against other
ance
court must decide
I think this
by statute
equal to
and motor vehicles
sured motorists
mandatory underinsured
Alaska’s
whether
liability cov-
policyholder’s
exceeding the
or
to cases
coverage should extend
motorist
by
contemplated
scenario
erage,
the normal
involved
vehicle is
the insured
where
Ve-
Motor
defined "Underinsured
2. The
reads in full as fol-
Statute 28.22.130
1. Alaska
as follows:
hicle”
lows:
use of
ownership, maintenance or
underinsured motorists
The uninsured
bodily injury
for
chapter
which is insured or bonded
does not
coverage provided for in this
liability
damage
at the time of
damage
property
bodily injury
or
or death
apply to
accident; and
property
an insured
destruction
or
inju-
bodily
2. whose limits of
(1)
occupying
vehicle owned
a motor
while
liability:
damage
ry
property
by,
insured or
the named
by,
not insured
but
liability of
residing
a. are less than the limits
spouse
relative
or
the insured’s
household;
coverage;
same
per-
by payments to
by
b. have been reduced
(2) through being
a vehicle
struck
insured, injured in the
sons other than the
accident,
or the insured’s
named insured
ownеd
bodily
than the
amount less
residing
to an
in the same house-
spouse or relative
injury
limits of
hold.
under the underinsured
offered and
he should recover
the statute. State Farm
provisions
of his
because he
coverage. There
motorist
fact sold Burton such
vehicle,
injured by an underinsured
not have was
that Burton would
no indication
namely,
an under-
his own truck.
It seems axiomatic
hit
covered had he been
been
op-
under an underinsured
a motorist
that one can recovеr
motorist other than
only
one is
policy provision
vehicle.3
motorist
when
own insured
erating Burton’s
injured by an underinsured vehicle. How-
any
not
the statutes do
The text of
ever,
that he
not
Burton also claims
was
intended
legislature
way suggest that the
by”
“struck
the underinsured vehicle which
ap-
underinsured motor vehicle
him,
28.22.130(2),
injured
cannot
so that AS
is that
“underinsured”
ply when the
short,
preclude
recovery.
In
relied
The statutes
of the named insured.
accept
would have this court
that he was
оffering requirement
upon by Burton—the
injured
an underinsured vehicle but was
motor-
and the definition of
by It
to me
not struck
vehicle.
seems
speak to the situation
simply do not
ists—
ways.
that Burton cannot have it both
There is no indica-
presented in this case.
28.22.130(2)
signifi-
manda-
legislature
tion that the
envisioned
The text of AS
is a
In
circumstances.
tory coverage
legislature
such
did not
cant indicator that
short,
definition of
I cannot read the
that the owner of a vehicle would be
intend
or thе offer-
recover,
motor vehicle”
pursuant
“underinsured
able
the exclu-
ing requirement
prohibiting
as
coverage,
damages
caused to
motorist
I
question.
Thus would conclude
sion
my
In
him his own vehicle.
view State
28.-
is authorized AS
that the exclusion
if
persuasively argues that
“[e]ven
22.500.
28.22.130(2)
literally applica-
were not
*6
ble,
the same kind of exclu-
[it] authorize^]
28.22.130(2)
question,
At the time in
AS
seeking to en-
sion that State Farm is
supported this
the motor vehicle code
of
force.”
(2)
no distinction
makes
view.4 Subsection
vehicles;
uninsured and insured
between
to as-
courts have been reticent
Other
instead,
clear that “underin-
its mandate is
legislatures an intent to man-
cribe to state
ap-
coverage ... does not
sured motorists
recovery pursuant to an underinsured
date
damage
bodily injury or death or
ply to
coverage portion
a
motor vehicle
of
property
of
of an insured ...
or destruction
only
insured vehicle is the
when the
by a vehicle
through being struck
owned
instance,
For
alleged to be underinsured.
Id.
by the named insured....”
Group,
Ins.
Meyer
v. Illinois Farmers
(Minn.1985),
said:
535
the court
371 N.W.2d
implicitly adopts
ar-
The court
Liability
purchased by an
by” language of
insurance is
gument that the “struck
protect passengers
28.22.130(2)
strictly
inci-
owner of a vehicle to
is
limited to
negligent driving
in that vehicle from
pedestrian
the insured is a
dents where
ve-
driving
another
by him. The
of the owner or
by
hit
a vehicle owned
is
however,
coverage,
part
that “if an insured is
hiсle. Underinsured
court states
protect against a different
by
is intended to
an insured vehicle owned
occupying
risk,
negligent
that a
him,
type of
the risk
protected by his uninsured motor
he is
added.)
have failed
of another vehicle will
coverage.”
(Emphasis
driver
insurance;
liability
purchase adequate
no
from the fact that Burton cites
Aside
is,
protect
“to
of
it is intended
legislative history
support
cases or
in-
other additional
construction,
analysis
named insured аnd
contradicts
suffering
inadequately
an
from
sureds
position.
Burton’s own
For Burton
coverage
him for
negligently injured by
would cover
an
sured motorist
If Burton had been
by
injuries
Bur-
not covered
insured driver of a vehicle not owned
ton,
in the crash and
sustained
coverage had
and that driver's insurance
by
party’s insurance.
the other
by payments
parties
in-
been reduced
other
in the crash to less than the limit
volved
(setting
text of AS
forth the full
4. See
n.
infra
coverage under Burton's underin-
underinsured
28.22.130(1)
(2)).
рolicy,
Burton’s underin-
sured motorist
then
purchases
to,
liability
among
an
compensated injury caused
acci-
insurance
inadequately
things,
passengers
auto-
protect
dent
an
insured
other
with
Myers
v. State Farm Mutual
his,
driver’s, neg-
mobile.”
vehicle from
or another
Auto.
driving.
ligent
purchases
336 N.W.2d
He
underin-
(Minn.1983).
protect
sured motorists
him-
damages
self and others from
caused
Id.
at
537.5
another vehicle which
underinsured.
is
sustaining
for
independent
An
reason
wishing
personal
An
lia-
avoid
suggested by
Profеssor Widiss
exclusion
protect
passengers, may
bility, and
treatise,
writes,
he
where
simply
liability
insurance.
increase
sustaining
persuasive
One
reason for
recovery
result of
dual
instant
preclude
this limitation on
case would transform underinsured mo-
transforming
in-
underinsured motorists
liability
torists
into
insurance.
surance into
compa-
This result would cause insurance
operators
vehicle covered
charge
more
substantially
nies to
policy which in-
applicable motor vehicle
coverage in
underinsured motorists
order
coverages.
cludes both
to match the cost of that
Uninsured
Underinsured
Widiss,
A.
presently
expensive
more
(2d
1990).
Motorists Insurance
ed.
This
This increase
cost would
sustaining
policy rationale for
the exclusion
discourage
purchasing
consumers
Casualty
In Millers
In-
support.
has case
coverage,
important pro-
Briggs,
Texas v.
Company
surance
presently
tection
available for minimal
(1983), for
in-
Wash.2d
exclusion of the and underin-
the definitions of uninsured permissible.8
sured vehicles expressed I
For the reasons heretofore not liable to Farm is
conclude motor ve- the underinsured
Burton under question. provisions
hicle of the BRAKES, III, Appellant,
Edward M. Alaska, Appellee.
STATE
No. A-2934. Appeals Alaska.
Court
Aug.
*8
Co.,
Ins.
states,
486 S.W.2d
Farm Mutual Automobile
make no distinction between
statutes
(Tenn.1972).
holding
In some
courts
coverage applicable
734
and underinsured motorists
by subsequent
context,
overruled
reasoning
otherwise have been
statutory
mo-
of uninsured
See,
e.g.,
v.
Bowsher
amendments.
applicable
exclusion cases is
torist
606,
Co.,
Casualty
State Farm Fire and
analysis.
the instant
(Or.1966)
(overruled
by Or.Rev.Stat.
607
states,
Schermer,
743.792(2)(2)(A)(1987)).
Cali-
Liability
In other
Insur-
§
2 I.
Automobile
8. See
them,
expressly
ance,
(2d ed.1989).
among
following
statutes
fornia notable
§ 29.10[1]
permissi-
the insured from the
exclude vehicles owned
have held that the exclusion is
cases
See,
1043;
e.g.,
Aitken,
vehicle."
definition of "underinsured
404 So.2d at
Farmers
ble:
216,
Casualty
Surety
Lofberg
264
Exchange Warney,
P.2d
v. Aetna
103 Nev.
501
(1968).
McClure,
Cal.Rptr.
(1987);
Cal.App.2d
Alas-
Farm Mut. Auto. Ins. v.
legislature
fit to amend AS
(Fla.App.1987);
ka’s
28.40.100(17)
has not seen
Lammers v.
501 So.2d
California statute.
to follow the
Automobile Ins.
48 Ala.
State Farm Mutual
28.40.100(a)(16).
(1972);
App.
Holt v. State
See