Lead Opinion
[¶ 1.] Scott Gloe’s parents were struck and killed by an automobile. Gloe’s
Facts and Procedural History
[¶ 2.] On September 1, 2001, pedestrians Larry and Verna Mae Gloe were struck and killed in an auto accident. Pursuant to SDCL 21-5-1,
[¶ 3.] Two insurers provided liability coverage for this accident. American Family Insurance Company insured the automobile, with liability limits of $25,000 per person. Farmer’s Insurance Group insured the driver, with liability limits of $100,000 per person. Each company paid its limits: $125,000 was paid for the wrongful death claims arising from Larry Gloe’s death, and $125,000 was paid for the wrongful death claims arising from the death of Verna Mae Gloe.
[¶ 4.] After settling with the liability carriers, Scott Gloe brought this declarato
[¶ 5.] Gloe’s policy with Iowa Mutual provided UIM benefits, with limits of $250,000 per person and $500,000 per occurrence. Gloe conceded that if Iowa Mutual’s policy provided UIM coverage, Iowa Mutual was entitled to set-off the amount that he received from the two liability insurers. However, Iowa Mutual denied that its policy provided any UIM coverage. Iowa Mutual’s denial was based upon a policy endorsement that only provided UIM coverage for “bodily injury or death” sustained by an “insured.” Because Gloe sustained no bodily injury or death in this accident, and because Gloe’s parents were not insureds under his policy, Iowa Mutual contended that its UIM coverage was unavailable.
[¶ 6.] Gloe acknowledged the policy language, but argued that the provision requiring “bodily injury or death” by an “insured” was incompatible with South Dakota’s law requiring UIM coverage. The trial court disagreed. Gloe now appeals, raising the following issue:
1. Whether South Dakota statutes preclude an insurer from restricting UIM coverage to bodily injury or death sustained by an insured.
By notice of review, Iowa Mutual raises the following issues:
2. Whether Gloe is a real party in interest with an individual claim for damages after he settled the wrongful death claims on behalf of the wrongful death beneficiaries.
3.Whether the personal representative’s release of the tortfeasor, precludes Gloe’s individual claim.
Analysis and Decision
[¶ 7.] “We review declaratory judgments as we would any other judgment or order.” Nelson v. Farmers Mutual Insurance Co. of Nebraska,
South Dakota’s Statutes Do Not Mandate UIM Coverage for Wrongful Death Damages Arising Out Of the Death of a Third Party Who Has No Relationship With the Insurance Policy.
[¶ 8.] “In South Dakota, automobile insurance providers must provide underin-sured motorist coverage in their policies.” Nelson,
[¶ 9.] The policy language at issue here provides coverage for damages an insured is “legally entitled to recover”
We will pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘underinsured motor vehicle’ because of ‘bodily injury:’
1. Sustained by an ‘insured,’ and
2. Caused by an accident.
The policy defines ‘bodily injury’ as bodily harm, sickness or disease, including death, that results. It defines insureds as:
1. You or any ‘family member.’
2. Any other person ‘occupying’ ‘your covered auto.’
3. Any person for damages that person is entitled to recover because of ‘bodily injury’ to which this coverage applies sustained by a person described in 1. or 2. above.
‘Family member’ means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.
[¶ 10.] Because Gloe’s parents were not residents of Gloe’s household and were not occupants of a covered auto, they were not insureds under this policy language. Furthermore, the insured, Scott Gloe, suffered no bodily injury or death in the accident. Therefore, no UIM coverage was available under the policy. Gloe, however, contends that this policy provision violates the public policy of the UIM and uninsured (UM) statutes of this State.
[¶ 11.] “Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.” Martin-maas v. Engelmann,
No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state ... unless coverage is provided therein or supplemental thereto in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. ...
SDCL 58-11-9 (emphasis added).
[¶ 18.] The complementary UIM statutes fail to as specifically address the question of who is intended to be protected by the mandated coverage and whether bodily injury or death of an insured was contemplated. Instead, they simply refer to coverage for “bodily injury to or death of [a] person” and “damages as its insured may recover on account of bodily injury or death arising out of an automobile accident....”
No motor vehicle liability policy of insurance may be issued or delivered in this state with respect to any motor vehicle registered or principally garaged in this state ... unless underinsured motorist coverage is provided therein at a face amount equal to the bodily injury limits of the policy. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. ...
SDCL 58-11-9.4.
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.
SDCL 58-11-9.5.
[¶ 14.] Gloe disregards the language in SDCL 58-11-9 that indicates coverage is
[¶ 15.] Iowa Mutual responds by pointing out that SDCL 58-11-9.5 specifically provides that UIM coverage is subject to an insurer’s terms and conditions. Iowa Mutual further points out that this Court has recognized the “right of insurance companies to place conditions on underin-sured motorist coverage.” See Cimarron Ins. Co. v. Croyle,
[¶ 16.] However, the “subject to the terms and conditions” language of SDCL 58-11-9.5 was not intended to permit any restriction an insurer may wish to create. It was only intended to allow limitations on coverage to the extent that they do not violate the public policy expressed in the statutes. We have specifically stated that “the conditions and limitations imposed by the insurance company must be consistent with public policy....” Phen v. Progressive Northern Ins. Co.,
[¶ 17.] The public policy of this state is set forth in its statutes and
The purpose of uninsured [and therefore underinsured] motorist statutes is to provide the same insurance protection to the insured party who is injured by an Uninsured [or Underinsured] or unknown motorist that would have been available to him had he been injured as a result of the negligence of a motorist covered by the minimum amount of liability insurance.
Clark v. Regent Ins. Co.,
[¶ 18.] We do not, however, believe that UM/UIM coverage was mandated for the consequential losses a wrongful death beneficiary incurs simply because that beneficiary has an auto policy and the decedent happens to be a relative for which the beneficiary is legally entitled to maintain a wrongful death action. As the court in Livingston v. Omaha Property & Cas. Ins. Co., stated:
[T]o accept plaintiffs interpretation would permit plaintiff to recover under her uninsured motorist policy for the death of any person from whom she is legally entitled to bring a claim under the wrongful death statute, such as the death of her children, any lineal descendant, her brothers and sisters, her parents, or any other descendant. It would provide coverage by plaintiffs insurance company for hazards associated with the operation of the vehicles of all of these individuals, none of whom are insured under her policy.
[¶ 19.] Thus, most courts have concluded that coverage is not mandated where the cause of action is for wrongful death of a person “who was in no way connected to [the insured’s] automobile insurance policy, who did not reside in [the insured’s] household, nor who, if had survived the accident, would have had any right of recovery under [the insured’s] policy.” Temple v. Travelers Indemnity Co.,
[¶ 20.] Gloe, however, argues that we should not follow this clear weight of authority because it would write the word “death” out of the UM/UIM statutes. To support this argument, Gloe points out that our statutes specifically allow recovery for wrongful death as well as bodily injury, but an insured decedent cannot recover for his own death under South Dakota law. See SDCL 21-5-5 (wrongful death action is for the exclusive benefit of the wife or husband and children, or if there be none of them, then the parents and next of kin of the decedent). Because an insured decedent cannot recover for his or her own wrongful death, Gloe contends Iowa Mutual’s endorsement effectively writes out the right of recovery for “death,” even though that word is repeatedly used in the statutes.
[¶ 21.] However, Gloe fails to recognize that the Legislature included the word “death” to cover other wrongful death claims. Although the majority rule does not contemplate coverage for the wrongful death of third parties, wrongful death claims are covered if the person killed is an insured. Thus, the word “death” has meaning in the statute because, while Gloe may not recover under his policy for the death of non-insured relatives, UIM coverage is provided for the wrongful death of Gloe’s family household members who suffer death at the hands of an underinsured motorist because they are insureds. Likewise, Gloe’s family household members have UM/UIM coverage for his wrongful death at the hands of an uninsured or underinsured motorist. And finally, any other person who has a right to recover because of an insured’s death has coverage. They are afforded UIM coverage because paragraph three of the endorsement at issue specifically makes them insureds. That endorsement provides that insureds include “[a]ny person for damages that person is entitled to recover because of ‘bodily injury [or death]’ to which this coverage applies sustained by [an insured].” See supra ¶ 9. For these reasons, the word “death” is not written out of the statute. Rather, the term has significant effect because the named insured, his family household members, and any other person who has a right to recover for wrongful death are all afforded UIM coverage for the wrongful death of an insured.
[¶ 22.] Other states recognize this UIM death benefit. Thus, the word “death” has meaning because “coverage is intended to provide indemnity for damages resulting from an insured’s wrongful death payable” to those persons entitled to bring a wrongful death action. Livingston,
[¶ 23.] Gloe’s argument is also fundamentally flawed because, as Florida has noted, he incorrectly focuses solely upon the fact that he was an insured under his UIM policy, when the correct focus should be whether the person who suffered bodily injury or death had UM (or UIM) coverage. Valiant Ins. Co. v. Webster,
[¶ 24.] Gloe also notes that Iowa, Maryland, Nebraska, and Ohio have all concluded that coverage is afforded. The Iowa Supreme Court determined that because their UM statute did not require bodily injury to the insured, a wife could recover for her non-insured husband. Hinners v. Pekin Ins. Co.,
[¶ 25.] However, in reaction to this minority interpretation, all but one of these state’s respective legislatures corrected each court’s interpretation and clarified that such coverage was not intended. In Ohio, the legislature amended their UIM statute to specifically overrule Sexton so that policies may limit coverage to bodily injury suffered by an insured. Atlanta Cas. Co.,
[¶ 26.] Thus, the vast majority of courts that have considered this issue have “uniformly interpreted their respective statutes as providing coverage only for injuries to those insured under the policy.” Atlanta Cas. Co., 598 S.E.2d at 72. Atlanta Cas. Co. notes that the states that have upheld the insurance provision at issue here include: Alaska, Arizona, California, Colorado, Delaware, Florida, Illinois, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, Rhode Island, Washington, and
[¶ 27.] Because we reiterate that the purpose of these statutes is to protect the insured party who is injured in an accident, we agree with the reasoning of the clear majority of courts that have found no mandated UM or UIM coverage for the wrongful death of one not insured under the claimant’s policy. We also do so because “[w]hile uninsured [and underin-sured] motorist coverage is to be given a liberal interpretation, coverage should not be created where there is none.” Livingston,
[¶ 28.] We finally note that mandating coverage for wrongful death in this case would require insurance coverage for Gloe’s parents’ deaths even though neither Gloe nor his parents would have had any coverage had his parents survived with serious uncompensated injuries. There would be no coverage because Larry and Verna Mae were not insureds and Scott Gloe has no right of recovery for his parents’ personal injuries. Consequently, Gloe’s construction of the statutes would create the anomalous result that UIM coverage would be available if the victim of the accident died, but unavailable if the victim survived and sustained substantial uncompensated damages. The legislature could not have intended that result.
[¶ 29.] Because Gloe’s parents were not insureds and did not have UIM coverage under this policy, there could have been no recovery had they been injured, instead of being lolled. Furthermore, although Gloe was an insured, he did not suffer any bodily injury and he had no involvement in the accident. Yet, after settling the wrongful death action for the death of his parents, he sought to recover further pecuniary loss under his automobile policy only because the decedents hap
[¶ 30.] In light of the disposition of this issue, we need not reach the other issues raised in Iowa Mutual’s notice of review.
[¶ 31.] Affirmed.
Notes
.SDCL 21-5-1 provides:
Whenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, or the personal representative of the estate of such person as such personal representative, shall be liable, to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; and when the action is against such personal representative, the damages recovered shall be a valid claim against the estate of such deceased person. However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or the lawfully married parents of the unborn child.
. SDCL 21-5-5 provides:
Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person.
. In rendering our decision in Nelson v. Farmers Mutual Insurance Co. of Nebraska,
. Michael Gloe also asserted a UIM claim under his parent's auto policy. The set-off calculation was in dispute. We resolved that matter in Gloe v. Union Insurance Company,
. Karen Nelson also asserted a UIM claim under her auto policy. In Nelson,
. Iowa Mutual argues that Gloe is not "legally entitled to recover” because, under SDCL 21-5-5, an action for wrongful death must be brought by the personal representative. In the recent case of In re Estate of Edna Jane Howe,
. Even though the UM and UIM statutes were passed nine years apart, we do not believe the slight difference in language of the statutes suggests that the Legislature had different purposes and goals in enacting each provision. Therefore, we do not believe that the use of more general language in the UIM statutes evinces an intent to require UIM cov
. Our other cases discussing public policy violations include: DeSmet Ins. Co. of South Dakota v. Gibson,
. See: Delancey v. State Farm Mut. Auto. Ins. Co.,
. The dissent interprets this language ("legally entitled to recover for a death caused by an underinsured tortfeasor”) to include a public policy mandating UIM coverage for the wrongful death of third parties. Infra ¶¶ 34, 35, and 37 (emphasis added). The dissent asserts that this is "plain language” contemplating "an insured's recovery on a wrongful death claim,” even though the death involves a noninsured third party who has no connection whatsoever with the automobile policy claimed against. Infra ¶ 37. The defect in the dissent’s reasoning is that neither this clause nor any other clause in any of the relevant statutes explicitly says that UIM coverage is mandated for wrongful death benefits arising from the death of noninsured third parties who have no relationship with the automobile policy. Consequently, while the language may be "conceivably” broad enough to fashion an argument in favor of coverage, it is certainly not “plain language” that explicitly mandates UIM coverage for the death of every conceivable heir at law for which an insured is .entitled to assert a wrongful death claim. If it were so "plainly” mandated, there would not have been this multitude of decisions interpreting the same or similar clauses.
The dissent finds it unnecessary to even consider this myriad of decisions from all other states interpreting the same or similar clauses. The dissent does so by again reading the clause "legally entitled to recover damages for ... death” to "unambiguously” mandate wrongful death coverage for third parties who have no connection with the policy. See infra ¶ 38. However,' the dissent fails to acknowledge that many of these other courts considered analogous, if not identical, language. The dissent has certainly not demonstrated that the South Dakota statutes are sufficiently unique that all other cases on the subject are irrelevant. See supra ¶¶ 18, 19, 26 and n. 9.
Dissenting Opinion
(dissenting).
[¶ 34.] I respectfully dissent. Based upon the plain meaning of the statutory language, Gloe should be allowed to recover from his own underinsured coverage for the wrongful death of his parents. The majority concludes that the law was intended to protect only the insured person’s injury or death. This, the majority concludes is public policy. I cannot agree. Public policy is what the legislature says it is. What the legislature said is that an insured may claim under his own policy if he is legally entitled to recover for a death caused by an underinsured tortfeasor.
[¶ 35.] The majority reaches a contrary conclusion, in part, by emphasizing one portion of the statutory language in SDCL 58-11-9 and deemphasizing the statutory language as a whole. The majority concludes that only an “insured’s” bodily injury or death is protected by the underin-surance coverage because the statutory language which expressly requires uninsured coverage for bodily injury and death is “for the protection of persons insured thereunder.” Yet a closer analysis of the precise language of the statute further defines “persons insured thereunder.” It includes in the definition “persons insured thereunder who are legally entitled to recover ... because of bodily injury, sickness or disease, including death, resulting therefrom.” Id. (emphasis added). The plain meaning of the language cannot be overlooked.
[¶ 36.] We have consistently restrained our interpretation of a law to the plain meaning of the words and have declined to expand its meaning to what we think it should have said or what we think the legislature may have meant. We should also restrain ourselves in this case. If the legislature does not want underinsured coverage for wrongful death beneficiaries, it can amend the language of the statutes clearly to say so, as has been done in some other states. We recently reiterated how we determine legislative intent:
The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.
Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Moreover, [i]n arriving at the intention of the Legislature, it is presumed that the words of the statute have been used to convey their ordinary, popular meaning. SDCL 2-14-1 requires that words in a statute are to be understood in their ordinary sense. We finally note that a [j]udieial interpretation of a statute that*251 fail[][s] to acknowledge its plain language would amount to judicial supervision of the legislature.
In re West River Electric Ass’n. Inc.,
[¶37.] The plain language of SDCL 58-11-9 requires coverage to insureds “who are legally entitled to recover damages.” SDCL 58-11-9. The plain language in the underinsured motorist coverage statutes likewise contemplates an insured’s coverage on a wrongful death claim. SDCL 58-11-9.5 provides:
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.
(Emphasis added). As Gloe points out, in South Dakota decedents or estates of decedents cannot legally recover for their own deaths. SDCL 21-5-5. With this in mind, it is conceivable that the legislature intended to provide coverage protection for an insured who is “legally entitled to recover damages ... because of ... death,” and underinsurance coverage for “death of’ a person, and for “recover[yj on account of ... death.” SDCL 58-11-9, -9.4, -9.5. This is particularly true since this is the plain meaning of the language the legislature used.
[¶ 38.] Another principle of statutory construction is to give effect to each word, phrase or sentence of a statute.
A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, ... No clause sentence or word shall be construed as superfluous, void or insignificant if the construction can be found which will give force to and preserve all the words of the statute. While every word of a statute must be presumed to have been used for a purpose, it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose.
2A NoRman J. SingeR, SUTHERLAND StatutoRY Construction § 46.06, 181-92 (6th Ed 2000) (emphasis added). We have to presume that the legislature used the words it did for a purpose and left out words for a purpose. The legislature wanted protection for those who suffered uncompensated damages due to underinsured and uninsured motorists’ negligence. Those suffering damages as outlined by the statute are those who are legally entitled to recover damages for bodily injury and death. The only one who can legally recover damages for death is one entitled to recover under South Dakota’s wrongful death statutes. Had the legislature intended to limit recovery to an insured’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 qualifiea
[¶ 39.] I would reverse the lower court and allow Gloe’s claim to proceed.
[¶ 40.] SABERS, Justice, joins this dissent.