[¶ 1.] The trial court granted a summary judgment in favor of DeSmet Insurance Company (DeSmet), finding that any under-insured motorist (UIM) coverage DeSmet provided for Elrod would be excess. General Casualty Company (General Casualty) appeals, as it was found to be the primary insurer. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶2.] On July 30, 1992, Sheldon Haas (Haas) was driving an automobile which collided with an automobile driven and owned by Susan Thompson (Thompson) and occupied by Eugene Elrod (Elrod). Both Thompson and Elrod suffered injuries as a result of the accident. They subsequently settled with the liability insurer for Haas.
[¶ 3.] Haas was insured by State Farm, with liability limits of $25,000 and $50,000; Thompson was insured by General Casualty, with underinsured limits of $100,000 and $300,000; Elrod was insured by DeSmet, with underinsured limits of $100,000 and $300,000. Both the General Casualty and DeSmet policies provided underinsured motorist (UIM) coverage, with identical “Other Insurance” policy provisions, stating:
If there is other applicable similar insurance:
1. We will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all aрplicable limits.
2. Any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance....
[¶ 4.] Elrod and Thompson initiated an action against their respective insurers, seeking to recover UIM benefits. DeSmet moved for summary judgment. The trial court, in granting summary judgment, held that any UIM coverage DeSmet provided for Elrod would be excess, as a result of paragraph two of the “Other Insurance” clause above. General Casualty appeals, claiming when two UIM policies explicitly state that their UIM coverage is pro rata with other similar collectible insurаnce, these provisions should be given effect rather than finding one is primary and the other is excess.
STANDARD OF REVIEW
[¶ 5.] As stated in Parkhurst v. Burkel:
Our standard of review on a motion for summary judgment is well settled. We must determine:
whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supportsthe ruling of the trial court, affirmance of summary judgment is proper.
Henry v. Henry,534 N.W.2d 844 , 846 (S.D.1995) (quoting Farmers & Merchants State Bank v. Teveldal,524 N.W.2d 874 , 877 (S.D.1994)) (quoting Mooney’s v. S.D. Dep’t of Transp.,482 N.W.2d 43 , 45 (S.D.1992)).
DECISION
[¶ 6.] We initially note that all of the parties involved in this action agree that DeS-met has no UIM liability to Thompson. If General Casualty is determined to be the primary insurer for Elrod and DeSmet is determined to be Elrod’s secondary UIM insurer, thеn DeSmet would have no UIM liability to Elrod because the maximum coverage to Elrod would be covered by General Casualty’s UIM policy limits. 1 The only dispute involved here is General Casualty’s contention that DeSmet should share General Casualty’s UIM liability to Elrod on a pro rata basis.
[¶ 7.] General Casualty argues that DеS-met convinced the trial court that its excess provision reading “[a]ny insurance we provide for a vehicle you do not own” actually means “[a]ny insurance for bodily injury of an insured while occupying a vehicle you do not own.” Without the omitted language, General Casualty argues that the excess provision does not apply to Elrоd’s bodily injuries, leaving DeSmet with its pro rata coverage. Since both policies provide for pro rata coverage, those provisions are asserted to be effective.
[¶ 8.] DeSmet responds by arguing the explicit language of the policy indicates DeSmet’s UIM coverage is excess if Elrod collects any other similar insurance. Since Elrod is also covered by General Casualty’s UIM insurance, DeSmet’s UIM coverage for Elrod must be excess and General Casualty’s coverage is primary. We agree.
[¶ 9.] Although this court has not addressed the specific issue in this ease, we have upheld “Other Insurance” clauses, stating the clauses are not “mutually repugnant.”
Union Ins. Co. v. Farmland Ins. Co.,
[¶ 10.] Likewise, a federal district court, applying South Dakota law, determined that a passenger’s UIM insurance is excess to the UIM coverage provided by the insurer of the vehicle which the passenger occupied.
Winters v. Northwestern Nat’l Cas. Co.,
[¶ 11.] General Casualty contends that Winters is not applicable to the case at bar because the court’s holding that NWNCC was the primary insurer was based on NWNCC’s policy language which stated it would provide such primary insurance. Although in this case Gеneral Casualty’s “Other Insurance” provision did not specifically state that it would be the primary insurer for vehicles owned by Thompson, the only logical conclusion is that if General Casualty is not the excess insurer, but still is an insurer, then it must be the primary insurer. Applying the clear language of the policies, we note thаt General Casualty’s named insured is Thompson, who owned the vehicle involved in the accident for which coverage is provided, and DeSmet’s named insured is Elrod, who did not own the vehicle involved in the accident for which coverage is provided. Thus, according to its own policy provisions, General Casualty’s UIM coverage is primary and DeSmet’s is excess.
[¶ 12.] Numerous other courts have reached the same conclusion. For example, in
Aetna Casualty & Surety Co. v. CNA Insurance Co.,
if a careful reading of the language of the policies in their entirety reconciles any conflict or ambiguity that may arise when identical or similar “other insurance” clauses exist, and if the enforcement of the clauses would not produce adverse consequences for the insured, then the clauses should be enforced as written.
Id.
[¶ 13.] Likewise, in
Tarango v. Farmers Insurance Co. of Arizona,
the New Mexico Supreme Court held that the insurer of the automobile had primary coverage, while the insurer of the passenger had sеcondary coverage.
“[I]t is the better and more reasonable rule to require the insurer of the vehicle in which the injured party was riding as a passenger, rather than as an owner or driver, to first pay uninsured benefits before the injured party’s insurer mаy be required to pay under its uninsured motorist coverage.”
Id.
at 226-27,
[¶ 14.] The Appeals Court of Massachusetts held that a valid underinsured clause existed under a similar set of circumstances.
4
Lumbermens Mut. Cas. Co. v. Mercurio,
[¶ 15.] All of the aforementioned cases demonstrate that the insurer of a vehicle involved in a collision has primary UIM coverage for the passengers of that vehicle, while the insurer of a passenger in that vehiclе has excess coverage for that passenger.
See
3 Widiss,
Uninsured and Underinsured Motorist Insurance
§ 40.5, at 266 (2dEd 1995) (stating that most courts conclude that the insurer of the vehicle is the primary insurer when compared to the insurer of the passenger); 12A
Couch on Insurance
§ 45.628, at 74-75 (1981) (stating, “In the case of guest passengers, the policy of the owner of the vehicle in which they were riding at thе time of the accident is primary over other UM coverages available with the passenger as a named insured on other vehicles.”) Following the majority, we then carefully read the language of the policies. While doing so, we recall our statement in
Alverson v. Northwestern National Casualty Co.:
‘“An insurance contract’s language must be construed according to its plain and ordinary meaning and a court cannot make a forced construction or a new contract for the parties.’ ”
[¶ 16.] To reach this conclusion, we were not forced, as General Casualty contends, to rewrite the policy to include the phrase “bodily injury of an insured while occupying” in the “Other Insurance” provision. Rather, we are interpreting language provided in the insurance contract.
See Azcon Constr. Co., Inc. v. Golden Hills Resort, Inc.,
[A] land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but the amount paid for “bodily injury” under that bond or policy to an “insured” is not enough to pay the full amount the “insured” is legally entitled to recover as damages. (Emphasis added.)
[¶ 17.] Furthermore, General Casualty’s argument urges this Court to give such a strained interpretation to DeSmet’s UIM provision as to render it meaningless.
See, e.g., Spratley v. Aetna Cas. & Sur. Co.,
The nature of the uninsured motorist coverage is that it must be the result оf an accident, or other similar interaction, involving an insured and an uninsured vehicle that the insured does not own. After all, the insured ... and his automobile are insured by the Aetna policy at issue. Therefore, under Aetna’s interpretation of the Excess Provision there could be no situation in which the Proportion Provisiоn would have meaning and effect.
Id. The court’s additional statements demonstrate DeSmet’s logical conclusion that its coverage for Elrod is excess:
Travelers’ interpretation of the clause is logical in that it allows both the Excess Provision and the Proportion Provision to have meaning. Travelers argues that the Excess Provision applies only to those situations in which the covered person is making a claim for uninsured motorist benefits for an accident where the covered person was injured while a passenger in a car that [the insured] (the “you” in the provision) does not own. When [the insured] or one [of] his family members is in an accident while in a car not owned by [the insured], the Excess Provision becomes operative.
Id.
at 598-99;
see also State Farm Mut. Auto. Ins. Co. v. Vostad,
[¶ 18.] We conclude as a matter of law thе language of the policy is clear and provides DeSmet’s UIM coverage for Elrod is excess.
[¶ 19.] Affirmed.
Notes
. UIM coverage is limited by SDCL 58-11-9.5 lo "the difference between the UIM policy limits less the amount paid by the liability insurer of the tortfeasor.”
Farmland Ins. Co. v. Heitmann,
. The "Other Insurance" provision stated:
For any covered "auto” you own, this Coverage Form prоvides primary insurance. For any covered "auto” you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance.
. The clauses provided:
If there is other applicable similar insurance, we will not pay for any damages which would duplicate any payment made for damages under such similar insurance. However, any insurance we provide with respect to a vehicle you do not own, to which other similar insurance is applicable, shall be excess over such other applicable insurance.
. The underinsured coverage clause states:
If someone covered under this Part is using an auto he or she does nоt own at the time of the accident, the owner's underinsured auto insurance must pay its limits before we pay. Then, we will pay, up to the limits shown on your Coverage Selections page, for any damages not covered by that insurance.
Although General Casualty maintains this provision is "specifically worded” to include "bodily injury to an insured while occupying,” simply reading the provision demonstrates otherwise.
. The "Other Insurance” provision stated:
If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limits of liabili-
ty bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectable insurance.