*1 tion, limiting it could have used a more
phrase such as “death [of insured].” bottom legislature The line is limit coverage. nothing
did not There is
ambiguous about the and no need jurisdictions. legisla-
to look to other up statutory recovery
ture set death; required coverage
wrongful
when a death from the negligence results
of underinsured and uninsured motorists.
It logical conclude the intent of was protect law results, when
harmed death i.e. legislature beneficiaries. entity change
should lan- intent,
guage of law if this was not the
not this Court. I would reverse the lower court proceed.
and allow Gloe’s claim SABERS, Justice, joins
dissent.
Michael Plaintiff and COMPANY, INSURANCE
UNION Appellant.
Defendant and
No. 23144.
Supreme Court of South Dakota.
Argued Oct.
Decided March *2 Turbak,
Nancy Watertown, SD, J. plaintiff and appellee.
Paul H. Linde of Office, Schaffer Law *3 SD, Falls, Sioux for appel- defendant and lant.
GILBERTSON, Chief Justice. Michael parents Gloe’s were by struck and killed an automobile driven by Donald Huber. did reside parents’ household, his physi- nor was he cally present injured as a result of the accident. Gloe and his siblings two $125,000 received a of total for wrong- ful death claims from arising their father’s $125,000 death and their mother’s death from provided two insurers lia- bility coverage for the accident. Gloe sought underinsurance benefits under his parents’ policy. Union The trial court en- declaratory tered a judgment in favor of Gloe, holding Gloe was entitled to wrongful recover death damages from the operator and the owner of motor vehicle because of of death his parents. trial court concluded Union obligated was his subject applicable limit of the under- insured motorist coverage. The trial court held Union’s UIM limit of towas subtracting determined of
Gloe after among wrongful allocation all beneficiaries, death than rather the entire paid by on carriers behalf the tortfeasor. Reversed. AND FACTS PROCEDURE purposes [¶ 2.] For of the declaratory action, stipulated Gloe and Union agreed to following facts: On Septem- 1, 2001, ber pedestrians Larry and Verna Mae Gloe were struck killed van Watertown, person- vidual rather than capacity, Huber in by Donald driven three surviv- representative parents’ Each al of his estates on Dakota. South children, Gloe,1Karen Nel- Scott ing adult behalf of the beneficiaries.6 The wrongful son,2 asserted and Michael with policy provided driver van death claims per and Verna Mae. ex- Larry deaths per occurrence. Gloe conceded of all claims change for the release wrongful he received for the death arising van3 owner Huber his father and the he received deaths, two insurers4 from of his were mother $125,000 to paid a total together proper liability coverage to setoff amounts Larry representative personal person limit. from the *4 of $125,000 representative to personal the main- denied Gloe’s claim [¶4.] death claims wrongful Mae for the Verna no avail- taining that UIM benefits were representative.5 by personal their filed parents’ able to Gloe under his insurance liability exhausted .The settlements contract, $100,000 single person a per as policies. under the two coverage available death, to Larry’s limit and another applied children the statuto- three adult were The $100,000 person applied limit per wrongful entitled to ry beneficiaries argued Mae’s Union further death. Each received proceeds. child death 58-11-9.5 and the contract both SDCL of father and death their to setoff the entire language allowed Union $40,611for death of their mother. The part a of on be- liability proceeds the tortfeasor as of estates released per- the settlement. half of the tortfeasor Verna Mae’s against single representative sonal for un- brought this claim Gloe [¶3.] limit coverage (UIM) benefits motorist derinsured a result of her death. Union available as Union, carri- parents’ his insurance against limit argued per person single in indi- the same brought This action was Gloe’s er. Group driver of van with anee insured the our in Gloe v. Iowa Mut. Ins. 1. In decision 238, (Gloe $100,000. Co., 29, II) liability 2005 694 N.W.2d a limit of SD require do not we held South Dakota statutes Nelson, rendering In in 2004 our decision coverage provide an insurer to 74, 86, of UIM SD 684 N.W.2d bodily injury damages arising from the policy coverage was available under Nelson's person. a death of third $100,000. portion liabil- The of originally same 2. We considered this accident ity proceeds she received was set insurance Mut. Co. Nebras in Nelson v. Farmers ka, Ins. of Unlike the instant off that amount. 86, 74. Karen Nel 2004 SD 684 N.W.2d case, in Nelson did not contest the insurer claim was made in her son’s underinsured only proceeds use by capacity, and was not contested individual as the set off amount. received Nelson ¶ 2. Mutual. Id. There her Farmers insurer. interpreted we the extent of Farmers recently opinion fore In re released Howe, Mutual’s underinsured limits. personal this Court held the Estate of wrong bring representative of must the estate liability pay- 3. Hereinafter statutory of all ful death tort claims on behalf paid by the carrier ments Huber's 2004 SD under SDCL 21-5-5. beneficiaries liability carrier will be and the van owner's 118, However, In re N.W.2d 22. both 689 payment by the "tortfeasor’s referenced interpret case that it Estate Howe liability carriers.” Ass’n, ed, Geib, Elston, Frost 'l v. Sander Prof (S.D.1993), wrong 107 involved N.W.2d provided coverage for 4. Two insurers actions a tortfeasor. ful death Family the accident. American Insurance declaratory con present is a action in case Company the van with a insured the owner of $25,000, tract, tort. wrongful death action in and Farmer's Insur- limit applied Rowe, 87, and setoff for Lar- v. Inc. 2001 SD field ¶ ry’s approach, 4, death. Under 175, Union’s (citing Maryott N.W.2d pay- Nat’l, exhausted and no Eden, 43, First Bank 2001 SD ment would result. 17, 96, 102). trial court 5.] The entered declara- use 8.] We con tory judgment holding favor struction discover the true intent of the was an insured under lan- law, legislature enacting which guage, and was entitled to recover primarily ascertained from the language operator from the used in the Myrl Roy’s statute. State v. & underinsured motor due vehicle Inc., 6, Paving, 98, 2004 SD 686 parents. the deaths of his The trial court (citing Engel 653-54 Martinmaas v. obligated concluded Union was mann, 85, ¶ 49, damages subject applicable his 611). We confine ourselves to lan $100,000. per person UIM guage legislature used order trial court held Union’s limit liabili- said, determine what legislature rather ty subtracting was to be determined than what the think it courts should amount of *5 so, In said. doing Id. we must attempt than subtracting rather the total give effect, meaning words their plain amount of insurance on behalf whole, read statutes as as well as tortfeasor each death. relating enactments subject. the same appealed [¶ 6.] Union two issues: Service, Inc., State v. 1-90 Truck Haven 1. Whether trial court erred when ¶ 51, 3, 288, 2003 SD 662 290 N.W.2d it determined that under South Da- ¶ Martinmaas, 85, (citing 49, 2000 612 SD kota statutes UIM benefits were 611). N.W.2d at available after the amount on insurance carriers be- addition, “[w]hen inter half of the tortfeasor exceeded the contracts, preting insurance we have uni of Union’s underinsured mo- formly held them as a renewable matter coverage. torist law under de novo Opper standard.”
2. Whether the trial court erred when Co., man v. Heritage Mut. Ins. 1997 SD ¶
it held UIM benefits were available 85, 3, 487, 566 (citing N.W.2d 489 DeS to Michael Gloe under the ¶ Gibson, 5, met 102, Ins. Co. v. 1996 SD policy. Union’s 99) (citations omitted). 98, 552 N.W.2d “This includes in determining whether an STANDARD OF REVIEW (cit surance contract ambiguous.” is Id. 21-24-13, Under SDCL ing Rogers v. Allied Mut. Ins. 520 declaratory judgment is reviewed this 614, (S.D.1994)). N.W.2d Court as would any judgment we other
order. v. Farmers Nelson Mut. Ins. Co. ANALYSIS AND DECISION ¶ Nebraska, 86, 5, 2004 SD 74, 21-24-13; 76 (citing SDCL Parks v. trial [¶ 10.] Whether court 27, ¶ 20, Cooper, 823, 2004 SD erred when it determined that un- 828-29). trial court’s interpretation der South Dakota statutes UIM application of relevant statutes are benefits were after available standard, paid by liability reviewed novo de amount given no deference Court. West- carriers on behalf of the tortfeasor equal un- UIM cover- the limits of Union’s
exceeded
coverage.
limits.
insured
age
motorist
Id.
“[T]he
derinsured
coverage
contracting
contracts for UIM
58-11-9.4, auto-
Under SDCL
be
for the assurance
he will
able to
providers
required
mobile insurance
recover,
minimum,
equal
at a
an amount
policies.
in their
coverage
furnish UIM
(holding
coverage.”
to do
74,
Nelson,
“otherwise
be to force the
in relevant
provides
58-11-9.4
77. SDCL
contractually
liable to
carrier
indem-
part:
nify its insured
by this section
coverage required
regardless of the amount recovered from
hun-
limits of one
may not exceed the
tortfeasorf.]”).
bodily
because of
dred thousand dollars
any
death of one
injury to or
have referred to SDCL 58-
[¶ 14.] We
and,
limit for
subject to the
one accident
as a
the limits”
11-9.5
“difference of
stat-
dol-
person, three hundred thousand
Ins. Companies
ute. Farmland
Des
injury
bodily
lars
to or
because
Moines, Iowa,
feasor
the accident.7 Id.
631
at
N.W.2d
coverage,
pay
no UIM
benefits are
Id.
South Dakota statutory
able.”
Winters,
Similarly in
a motorist
prohibits
recovery,
scheme
double
passenger
and his
each
incurred
insured to collect
permit
will not
UIM injury
riding
while
in the same car as a
deducting
benefits without
first
negligence
result
of another motor-
liability
paid by
F.Supp.
ist. 838
at 441. Each victim re-
Nickerson,
16,
121,
carrier.
SD
liability
ceived
proceeds from
Co.,
(citing
at 472
Great West Cas.
carriers,
liability
the tortfeasor’s
each
but
201).
¶ 10,
150,
1999 SD
at
uncompensated
victim had
damages above
exception
rule when two or
that amount.
Id. at 442. Both victims
inju
separate bodily
incur
more insureds
separate
policies
had
ries as a result
one motor vehicle acci
they sought
claims,
which
to make UIM
dent. Winters v. Northwestern Nat. Cas.
$300,000.
with UIM
Id.
440,
(D.S.D.1993);
F.Supp.
at 441. The
UIM insurer
the owner of
Co., Inc.,
car in
which the
riding
Westfield
victims were
cases,
631 N.W.2d at
such
attempted
to setoff the
entire
paid by
the tortfeasor’s
victims,
proceeds paid
both
injuries
carrier for insured A’s
are
aggregating
each received on
used
determine the difference of the
behalf of the
tortfeasor
one amount.
A,
limit
insured while the
argued
442-43. The insurer
that
proceeds paid by
the tortfeasor’s
liability proceeds
injuries
B’s
used
carrier
entire
accident were
excess of its
only to determine the difference of the
limit,
per accident
and therefore
Id.; Winters,
B.
limit for insured
See
838 the tortfeasor was not underinsured and
at 442-43.
F.Supp.
recovery
no UIM
was available. Id.
held in
16.] We
18.] The Winters court
held
Westfield
pro-
SDCL 58-11-9.5 does not
victim
separately
was entitled to a
recovery
hibit
two claimants
calculated setoff and a separate
standing side-by-side, when the
single
claimants
rather than a
per accident limit
*7
are both named
and
a
jointly
insureds
the
and
calculated setoff.
Id. at 444.
¶ 9,
language permits it.
Id.
631 N.W.2d The- driver’s setoff
only
included
the
$200,000
language
178. We noted the
of the
in proceeds paid by the tortfea-
implies
liability
inju-
statute
“that the ‘difference of the
sors’
carriers for the driver’s
applies individually
ries,
limits’ standard
to each
and the passenger’s setoff included
However,
party
$200,000
entitled to
Id.
in
only
liability proceeds paid
recover.”
the
parties
that case both
were entitled to
the tortfeasors’
for
carriers
inju-
bodily
incurred
passenger’s injuries.
recover because both
Id. Under this inter-
Co., Inc., Rowe,
per-
a
against
the
tive then made
claim
the decedents’
Westfield
representative
of
sonal
two deceased named
coverage.
underinsured motorist
Id. 3. The
insureds made
the
claims
tortfeasor’s
$500,000
policy provided single
a
per
of
$750,000
liability carrier and received
in to-
differentiating
accident rather than
between a
tal,
$375,000
each estate.
for
“per person”
“per
and
accident” limit.
Id.
¶ 3,
However,
the two
policy language
only
controlled and
one
bodily injury,
both
named insureds
incurred
recovery
per
under the
accident limit was
death,
that is
a
the
as
result of
¶ 11,
permitted.
Verna Mae the SDCL 58-11-9.5 unclear of the motor vehicle ry or as result death it fails the manda- adequately define dispute There is no between accident. argues that tory setoff. Gloe while person limit only per parties require a language does deduction “the for coverage is in UIM available insurer,” paid by amount Mae, separate and a the death of Verna specify to whom the amounts have fails $100,000in cover person limit per paid to have been order to be relevant Larry. for the death of age is available purposes argues for of the setoff. Gloe no agree because parties Both Winters, that under he is Westfield occurred, the injury or death other only required setoff he re- acci per remaining balance of wrongful Larry for death of ceived dent limit is unavailable. wrongful he received Mae, con- full Larry Mae and of Verna instead paid by to receive a carriers tracted of the limit less the setoff wrongful deaths. advances an “by liability insurer paid required argument that he should be ” consequence as a party recovered only to him as a setoff those amounts However, their no claim deaths. statutory beneficiary, he has suf- because per- has made UIM benefits been as a legal injury result fered individual of Verna Mae representative sonal no motor accident and other vehicle If Larry death action. has a UIM claim. made personal were made such claims argues Court should mandatory representative, to the intent behind the UIM statuto- look payable, as result in no UIM benefits proposition ry support scheme for $125,000 for carriers have that Gloe should to deduct *8 children, to three decedent by him liability proceeds received calcu- in a the beneficiaries who would hinges argument Gloe’s lating setoff. action, suffi- wrongful death an amount Winters, F.Supp. 838 on one statement of UIM cient to setoff entire context, 443, that out of where at taken by the coverage contracted for decedents. legislative intent court noted SDCL court argues trial [¶ 21.] provide to “an insured with 58-11-9.5 is proper erred when held coverage.” maximum portion of amount should include The intent of UIM liability proceeds ultimately [¶24.] received provide an in- pro- statutory is not to rather than all the scheme 260 coverage, with maximum but rather
sured
tortfeasor’s
carriers from
from
protect
insured motorists
underin-
in UIM coverage
available for
by requiring that
sured motorists
insurers
Mae,
death of Verna
and to
pay the
the maximum UIM
recov do the
regard
Larry.
same with
Once
legislature.
ery
intended
Nicker
statutory
permitted
deduction
under
¶
son,
121, 15,
2000 SD
261 Co., person, the limit of Ins. 1999 SD Bureau Farm Dakota ¶ or in Decla- 45, shown the Schedule (citing 48 Eco 18, 63, 596 N.W.2d accident rations for each for Underin- 540 Avemco Ins. Aero Club v. nomic is our (S.D.1995) Coverage sured Motorists Amer 644, (quoting N.W.2d all maximum limit of for Elliot, 523 v. Family Mut. ican “bodily damages injury” result- for (S.D.1994))). 100, Ambiguity N.W.2d any ing This is from one accident. merely by party one will not be created pay regardless most we will interpretation of the offering a different number of: Alverson, 9, SD language. contract ¶ 1. “Insureds” 8, (citing at 235-36 Johnson (S.D. 776, Johnson, 291 778-79 made; N.W.2d 2. Claims 1980)). “determined with Ambiguity is premiums 3. Vehicles or shown a and the to the as whole policy reference Declarations; or meaning effect its words.” plain accident. 4. Vehicles involved Sun, 1999 SD National be re- B. The limit of shall a not out at 48. will seek We paid because of duced all sums meaning bene or unusual “strained “bodily injury”8 on behalf or Alverson, (citing the insured.” fit of persons organizations or 235). 9, 8, at legally responsible. issue contract added). (emphasis cov- in the for UIM included endorsement endorsement reflect- policy part: in relevant erage provided policy language ing amendments AGREEMENT INSURING the fol- to South Dakota included specific mo- an lowing this endorse- definition for ‘Insured’ as used B. tor vehicle: ment means: Coverage Underinsured Motorists VI. ‘family member’. any 1. You or Endorsement Any person ‘occupying’ 2. other of “underinsured A. The definition auto’. ‘your covered motor vehicle”: Any damages per person for vehicle” “Underinsured motor recover because son entitled to trail- land motor vehicle or means a cover ‘bodily injury1 to which this any type er of which person age applies sustained ap- injury liability policy or bond in 1. or 2. above. described but plies at the time of the accident OF LIABILITY LIMIT injury” “bodily in the A. The limit of shown under that bond person for each for Underin- Schedule enough “insured” is Coverage our maxi- Motorists sured full the “insured” is liability for mum limit all damages, as entitled to recover death, care, of services or loss added). (emphasis “bodily arising injury” sus- out of legal any contends that Gloe’s any one tained pos- is made Subject entitlement UIM accident. cluding poli- death that results.” “Bodily injury” defined under the was disease, harm, “bodily in- cy sickness or *10 as a as a emphasizes sible result Gloe’s status [¶ 35.] Gloe that it is the beneficiary under SDCL 21-5-5.9 definition of an underinsured motor vehicle such, claim As Gloe’s arises from the ambiguity regard that creates to with Mae, Larry deaths of any as do proper setoff amount. That language de- potential proceeds future claims to UIM fines an underinsured motor as vehicle Therefore, and Karen. paid Scott Gloe’s where for ‘bodily injury’ “the subject claim must be equal setoff to that under bond or to an ‘insured’ is paid all sums “because of the enough [deaths]” not full amount the Larry by Verna Mae and or on behalf ‘insured’ is. entitled to recover as legally responsible tortfeasor damages.” for their argues language Gloe that the provided B section, deaths section of the in the togeth- definition when read contract. Union’s contention in a with language results er in the limit of section, full deduction creates ambiguity providing proceeds from lia- two different of calculating the tortfeasor’s methods bility attempts carriers as result of the deaths of amount. Gloe to create Larry. ambiguity by offering interpre- Verna Mae and a different Under scenar- io, language. tation of the contract UIM benefits are Gloe bor- exhausted and Gloe is language rows from any proceeds. unable to recover the definition section that defines when another motorist is driv- argues 34.] Gloe that the language vehicle, an ing motor underinsured B Liability section under Limit of am- is then uses that language calculate the biguous conjunction when read with the setoff amount language rather than the definition of an motor vehicle Limit Liability used section. A. under section VI. Gloe concedes argument [¶ 36.] Gloe’s fails under a B section defines the setoff as “all sums plain reading of the contract language. paid persons ... or on behalf of ... The definition section identifies what con- may legally responsible.” be ditions must person exist so that a who is language maintains that this contract is as legally responsible injuries to the statutory language unclear as the in failing insureds be an considered underin- identify to whom the amounts have to motorist, sured what is conditions paid have been in order be relevant for exist trigger must coverage. ¶22. purposes of setoff. supra See limit of section then determines argues further that the how much in UIM benefits will be forth- definition of underinsured motorist coming to an insured once UIM A, contained in section VI. “but triggered. Each section serves a differ- ‘bodily injury’ under that purpose together ent and when read do or policy bond to an ‘insured’ ambiguity not create respec- their enough pay the full amount the ‘insured’ plain meanings. tive is legally entitled to damages,” recover as supplies missing identifier and alters [¶ 37.] Under the of the con- tract, Union’s limit of so that the setoff Union has reserved the to a right includes amounts one time setoff of all insured. “paid or on behalf tortfeasor.” provides: SDCL parents 21-5-5 then of the and next of kin caused; Every be action for whose shall so death shall be for brought per- exclusive benefit of shall the wife or in the name of husband children, them, if representative there be neither sonal person. of the deceased *11 knowledge that if all three siblings in contract had no the There is claims, only setoff amount whereby limits its made then and then the Union an in- proceeds by received only paid sibling to each be aggregated sums setoff. sured. into one does not find ambi- The dissent previously held [¶ 41.] We language, but within the contract guity the that amount recoverable under UIM proper hold that nonetheless would is not timing. a matter Farm rath- by received is setoff Moines, Iowa, Companies land Ins. Des $125,000 liability pro- the entire er than (holding the insured liability car- paid by the tortfeasor’s ceeds pay cannot force his carrier to does acknowledges, riers. dissent by full claiming Court, an insured that Gloe’s status as not proceeds cannot be used as a under the third definition.10 arises setoff under 58-11-9.5 until SDCL be- the contract is dissent states “[s]ince actually carrier makes insureds, and the company tween Helmbolt v. payment) (citing LeMars Mut. that must interpretation is the sums logical Inc., (S.D. 59-60 insured before paid company’s 1987) (holding an delay pay insurer cannot ¶ 52 add- Supra (emphasis can be offset.” a requiring ment of UIM ed). judgment against the tortfeasor However, fails what dissent [¶ 39.] precondition payment pro as a of UIM is an recognize is that Gloe ceeds)). allow We cannot insureds to de of his status as virtue mandatory feat the setoff under SDCL 58- beneficiary the third definition claims, by timing forcing 11-9.5 their and The contract was policy language. the insurer to calculate the setoff Larry, between Union and Verna Mae separately for each insured. If dis- and Gloe. between Union logic followed with the under- sent’s Despite fact issue that the belonged to standing that the contract Court, the was not before the dissent erro- Larry Mae rather than neously pay- that the aggregated theorizes proper is “the then the sums siblings would be ments insured,” company’s that per accident offset liability proceeds paid limit, $100,000 per person not the limit. representative of Verna Mae personal proposition This is a himself has Therefore, Larry of their because deaths. brief, repeatedly in his at oral stated ease to the the setoff is not limited this argument, is incorrect and not permissible individually by the amounts to Gloe lan- under current Dakota law. The South representative parents’ es- personal his makes it that the guage clear tates. $100,000 limit maximum insurer is the care, all loss of “for that will suggests The dissent
[¶40.] death, arising ‘bodily services or out of two Karen siblings, the fact the other Scott, any any injury’ sustained did not make claims under their If we were to follow the outcome one accident.” parents’ policy is irrelevant to the issue, litigation. logic ac- we would ef- of this The dissent does dissent’s on dispute policy. status as does not Gloe's beneficiary under the third definition in Rogers, fectively overrule injury count or death arising *12 permit recovery which the to out of an does not accident automobile because contractually single judgment imposed exceed a the recovered the bodily of injury when owner the other vehicle exceeds the policy limits by only Coverage or death suffered thereon. has been one shall be insured, limited to of the number the underinsured regardless motorist coverage making claims or insureds because limits on the vehicle of claims the party single injury recovering of the suf- less amount paid by by fered insurer the party insured. re- against. covered hold the setoff [¶ 43.] We correct paid by amount in this case is that amount
the tortfeasor’s carriers The first of the because sentence statute by requires the death incurred company pay insureds insurance its insured, Larry. Mae and The amount own this case Michael liability proceeds uncompensated which to the death of $100,000 parents. available for his The second sentence then Verna Mae and cov- limits the coverage “to the underinsured erage for Larry. available For of the motorist on the vehicle of decedents, Here, paid by party tortfea- recovering.” the limit is sor’s carriers the in- because of the damages by sustained insured, sureds’ exceeds deaths the available UIM each for the dam- Therefore, coverage. ages resulting no UIM from benefits each accident. The payable under the contract. statute further recovery allows the to be by by reduced “the amount paid the liabili-
[¶ 44.] Reversed. ty insurer of the party against.” recovered It application is the of this last clause of ZINTER, [¶ 45.] KONENKAMP and the statute where I disagree with the ma- Justices, concur. opinion. jority This clause relates to the MEIERHENRY, [¶ 46.] SABERS subject general defining the statute Justices, dissent. duty company insurance to its own public insured. The policy embodied in MEIERHENRY, (dissenting). Justice legislation injured this is that if person I respectfully dissent. by an insured motorist is not fully but Statutory Provisions compensated injuries, for his his own in- company pay surance will him up to 58—11— SDCL $100,000. It contrary public would be 9.5 does not allow insurance carrier to policy for us to allow insurance compa- aggregate the total amount paid third ny agreement by to avoid its reducing the parties by or on behalf of the tortfeasor as it amount owes to its own insured with an offset for amounts owed to its own money company paid individual insured. The to other individuals. statute is as follows: Subject to the terms and conditions of The trial correctly applied court such coverage, motorist the statute allowing reduce company agrees its it owed to Michael Gloe own insured for dam- uncompensated the insured motorist’s com- ages as paid its insured on ac- pany recover had Gloe. Aggregat- Michael portion conclude insured motorist’s on contract to paid ing all sums Therefore, only to third those parties was allowed. sums company in- paid by the tortfeasor’s can be as a responsible aggregated amounts company to Michael Gloe individu- owes its Yet surance setoff what it insured. own death and say i.e. for father’s ally, language of the contract does not death, were allowed for mother’s statutory language, this. Much like the $100,000 coverage against the as a setoff specify does not to whom the sums must claim.11 corresponding death for each the offset can be taken. before *13 company is Since the contract between Policy Provisions Insurance insureds, logical interpretation and the The defines the relation- statute paid is that sums must be company ship between insurance company’s before it can be offset. insured The its insured. policy in- case, also. The insurance policy does injured In this insured specific an endorsement to cludes children parties were Gloes’ the.deceased policy language Dakota law. The However, South individually. only Michael made $100,000 “for limits its to each parent’s policy. a claim his The under Motorists person for Underinsured Cover- injured only legally parties persons care, loss ... for for of ser- age entitled to recover for the deaths this death, ‘bodily injury’ arising or out of vices case were the children. Neither the dece- by any any one person sustained one anything dents nor their estates received $300,000 for one accident. accident” death wrongful from the claim. Michael further is policy “[t]his The clarifies only portion received a of the proceeds. regardless will of the [it] the most what Logically, only he has received ‘Insureds’; made; 2. of: 1. Claims number claim, his entire should offset not premiums or shown the Dec- Vehicles in the settle- paid wrongful larations; or 4. involved in the Vehicles may Although siblings ment. the other case, only In this insured accident.” they policy, have been insureds under the policy. under the No amount has claims have claims to Conse- not made Union. anyone under Union’s policy. been quently, they the amounts Michael individual bearing no on Gloe’s provides policy Union’s for policy. claim this the other Had against pro- limits. It policy, it siblings made claims under this shall re- vides: “The be appropriate aggregate would “bodily be all sums because duced paid to all of them as a setoff sums injury” per- or on behalf of [i.e. death] limit.12 Such per accident organizations sons heavily not the us. majority relies case before responsible.” dispute, given this is therefore court has rise to 11. The trial determined Michael per person easily distinguishable was to receive two at hand. from the case limits, parent. one for each deceased interpretation Additionally, the statutes this appeal the does not raise on issue of Mutual timing majority's concern that eliminates the Michael to make a claim whether is entitled Since there the claim can defeat setoff. death or he whether is limited to one injured are death beneficia- three claim for both. ries, to each still available there is aggregated and setoff after their claims interpretation necessarily 12. This For limit. accident Rogers majority overrule claims. See reason, timing danger is no that the this there Supra Rogers wrong- did not involve recovery. of the will in increased claims result claim, unique nature ful death of which
Conclusion underlying policy of the un- provide injured
derinsurance law is up uncompensated
damages. paid premiums The Gloes coverage. To allow Union offset its money paid parties claim third with
by or on behalf tortfeasor con-
trary public policy and the effectively
Union’s leaves the purchased. without I affirm court.
[¶ 55.] would the trial SABERS, Justice, joins
dissent.
Linda S. SORENSEN Revocable Sorensen,
Linda S. and Nels J. Soren
sen, Trustees, Sorensen, and Nels J.
Individually, Appel Petitioners
lants, SOMMERVOLD, Ralph
Gerald Wester
gaard, Kephart, Mary Jensen, Les Willroth, Sr.,
Bill as Commissioners County Clay, State of South Clay
Dakota; County, Da South
kota, political Dakota subdi South
vision, Respondents Appellees.
No. 23305.
Supreme of South Court Dakota.
Considered on Briefs Feb.
Decided March $100,000 available, individually subject Whether claims made to a setoff of time, independently, beneficiary or all at the same the amount each insured has al- injured wrongful beneficiary ready received.