*1
mixed transaction
would render the
Therefore,
to
tion
we conclude
title
title.
conflicting with the clear
portion invalid as
to Old
was transferred
the MLS books
Act.) Old West
statutory language of the
dispute
delivery. There is no
upon
West
the burden of establish-
taxpayer
a
had
was “for a considera-
that said transfer
services
services were not
ing that these
Thus,
tion;” clearly it
we conclude
was.
within the defini-
as would be included
such
by
books
a sale of the MLS
that there was
by
It is
now axiomatic
price.”
tion of “sale
was a
West. This sale
Ada MLS to Old
exemption
gen-
to the
claiming an
that one
no
Old West had
“sale at retail” since
authority must establish
taxing
eral
and, in
reselling those
books
intention
exemption. Appeal
such an
entitlement to
fact,
doing
so
prohibited from
Manor, Inc., 106 Idaho
Sunny Ridge
bylaws of Ada MLS.3
Bassett, 47
(1984); Bistline v.
“Where Pro HUNTLEY, JJ., J. prop- tangible personal manner that Tern., concur. rendered
erty transferred and the service hav- consequential distinct elements relationship
ing ascertainable a fixed and property of the
between the value so that of the service rendered
the value stated, ex- separately there may both be and the separate transactions ists two KROMREI, Stanley G. tangible attributable to the sale of Plaintiff-Appellant, tax- personal property subject to sales other is not.” ation while the (MUTU COMPANY AID INSURANCE provision applies While the above AL), Defendant-Respondent. transactions,” it is unclear what “mixed No. 15838. The term is “mixed transaction” is. Supreme it found of Idaho. regulation, in the nor is defined component of a The “service” the Act. 29, 1986. Jan. must consist “mixed transaction” so-called April 1986. Rehearing Denied with- apart from those included of services i.e., Act, servic- those purview in the in the definition of “sale encompassed
es regula- reading of the (Any other
price.” 1, supra, in footnote are listed 4. These “services” prohibition in the to the contained In addition 3. 2-8 in that expressly specifically are items numbers by-laws, cover of the MLS books any subsequent of the books transfer footnote. states subject fine any $500 to a "non-subscriber" is termination and thereafter for the first offense membership right MLS. in Ada *2 Terry Davison, Copple C. Copple, Cop- ple Copple, Boise, & plaintiff-appellant. Boyd, Peter Wilcox, J. Todd J. and Rob- Tyler, Elam, ert M. Jr. of Burke Boyd, & Boise, for defendant-respondent. DONALDSON, Chief Justice. Stanley Kromrei initiated this action seeking damages to recover from AID In- surance Company pursuant compre- to his hensive liability insurance policy. The dis- granted trict court summary judgment in favor of appeals. AID’s and Kromrei 1, 1982, February On purchased Kromrei business auto insurance from AID Insurance Company insuring speci- three fied later, vehicles. Three months on April sixteen-year-old Kromrei’s son was killed in an automobile collision while riding passenger as a in an automobile by driven Gregory. Flo The accident occurred as a Gregory’s negli- result of gence. passengers Two other Gregory’s vehicle were killed in the accident and the driver of the other vehicle involved was seriously injured. thereafter,
Shortly litigation was institut- against Gregory negligently ed causing the death of Kevin Kromrei and the other passengers two in her vehicle and for com- pensation injuries for the suffered Gregory driver of the other vehicle. car- liability ried through Farmer’s $50,000.00 Company per Insurance awith accident interplead poli- limit. Farmer’s its cy limit into court. All of the claimants against Gregory settled their claims equally dividing proceeds, the insurance re- $14,174.81 sulting in a settlement to Krom- rei.
Kromrei then initiated this action an attempt damages pur- to recover additional suant to the uninsured motorist policy. in the AID parties Both moved for summary judgment. defined an uninsured
motor vehicle to a land motor ve- include hicle before the district case was This of all sum which the “b. For summary judg on cross-motions acci- court time of an policies at
bonds or Sum of facts. same set on the re- ment based least amounts at provides dent only when appropriate mary judgment law where applicable by the quired any material as to genuine issue garaged but is no principally there auto is covered 56(c). mere fact than fact. I.R.C.P. less limits are their *3 insurance_" added.) summary judgment (Emphasis parties move both there that itself in of establish and does scope the unin- Thus, the of within to come Casey fact. of material genuine issue is no endorsement, of the motorist sured 507, 505, Idaho Ins. 100 Highlands v. have insurance would Gregory’s liability on However, (1979). 1387, 1389 600 P.2d unin- Kromrei’s the limit of than to be less case, parties both where, present the as in Gregory’s insur- coverage. sured motorist based summary judgment moved for have $50,000 limit. per accident a ance contained the evidentiary facts and upon the same $20,000 provided for insurance Kromrei’s theories, effec they have and same issues three each the coverage for of uninsured genuine no stipulated that there tively Therefore, only way the vehicles. insured summary judg fact and of material issue the unin- recover under could that Kromrei Bob Daniels appropriate. is therefor ment was provision policy of his sured motorist 540, 535, Weaver, Idaho 106 v. and Sons $20,000 cover- three if the contained 1010, (Ct.App.1984); River 1015 P.2d 681 total a combined for ages which could be Ritchie, 103 Idaho v.Co. Development side $60,000. coverage of (1982). 515, P.2d 657 650 Krom- to allow The district court refused AID’S coverage granted and rei to stack same is the appeal on The issue court summary judgment. motion for court: the district before issue that was (1) The on three factors: based decision its motor uninsured were three there whether unin- policy expressly limited insurance mere Kromrei’s coverages under ist $20,000 per ac- coverage to sured motorist were insured three véhicles ly because vehicles the number of regardless cident recog long has This Court thereunder. re- (2) charged a Kromrei was insured. policies contracts nized that insurance and third premium for the second duced negotiation be subject to adhesion, not that due to the risk vehicles decreased ambiguity parties, that tween the at the on the would be road three vehicles strongly against be construed most must (3) motor- uninsured Idaho same time. Fire v. Mid-America insurer. Moss the a appear to mandate ist did not statutes 300, 298, 647 Ins., 103 Idaho and Marine appeals from result. Kromrei different However, the where 754, P.2d that decision. unambiguous, clear and language is for construction occasion is no there district agree we with the Because according to be determined coverage must insurance language of the court that employed. words meaning of the plain expressly issue limited policy at Inc., Helicopter, States Ryan v. Mountain $20,000 regardless of per accident (Ct.App. 150, 153, 686 P.2d 107 Idaho insured, we hold number of vehicles Co., 100 Ins. 1984); Highlands v. Casey this case. proper summary judgment 1391. 600 P.2d at Idaho at the so- unnecessary to address find it We of the Court function “It is the regard to the stacking question called it is insurance as a contract construe the insurance premium structure of written, by construction the Court uninsured the Idaho provisions or the liability not assumed create cannot dis agree with statute we motorist insurer, new contract make a nor its policy, on that the insurance trict court from or one parties, different $20,000 coverage. face, only one contained plainly intended, nor add words to doing, so the majority refuses to review contract of either create or one of grounds upon which the district avoid liability.” Unigard Group Ins. court relied in reaching its decision—that Globe, Etc., Royal Idaho’s uninsured motorist statute does not 633, (1979) (quoting mandate allowing Miller v. insured individuals the World Ins. option stacking their policies if they so (1955)). choose. The majority also argues that Mr. policy precludes plain Given its and ordinary meaning, the stacking policies. Because the majority policy here at issue specifically provides refuses to decide the most critical issue regardless of the number of covered here—whether Idaho law pur- invalidates vehicles, the total amount of uninsured mo- ported anti-stacking provisions in insurance single accident is lim- also because the in- —and $20,000. ited to *4 correctly interprets a ambiguous most The declaration page section on the first statement regarding coverage insurance as of policy $20,000 the states that is the total prohibiting any stacking, I dissent. amount of uninsured coverage motorist any one addition, accident or In loss. the I.
limit of liability in clause the uninsured motorist endorsement of the policy express- I.C. requires 41-2502 each § automobile ly provides as follows: insurance policy to include uninsured mo protection.
“E. torist OUR LIMIT The legisla OF LIABILITY. intent of the protect tion is to injured person. the Id. “1. Regardless the number cover- of of It then, should not be gainsaid any that autos, insureds, ed claims made or ve- attempt negate to requirement that accident, hicles involved in the the most invalid, being intent is in violation of law. pay we will damages resulting Whitney v. Continental and Acci Life any from one is accident the limit of Company, 104-05, dent UNINSURED MOTORISTINSURANCE (1965) (“If a contract is void shown in the (emphasis declarations.” against public policy, the court will ours). refuse par to enforce it and will leave the agree We with the district court that the ties in the identical situation in which it plain language of the insurance contract them....”); Davis, finds Worlton v. prohibits stacking. policy specifically The 217, 222-23, provides that Kromrei entitled Preventing people stacking from their $20,000 in uninsured coverage motorist re- violates the intent of I.C. gardless of the number of covered vehicles. 41-2502. The of this clearly facts case § Accordingly, the of decision the district why reveal this is At the time of so: the court is affirmed. accident, required Idaho law uninsured mo- protection $20,- in the amount of respondent. Costs 000.00. See I.C. 49-1521. The insurance § attorney No appeal. fees on $50,- provided of the tort-feasor coverage. 000.00 of This amount was di- SHEPARD, HUNTLEY, JJ., BAKES and up among injured parties, vided the various concur. receiving $14,174.81. Mr. with Kromrei Company argues, The Aid Insurance BISTLINE, Justice, dissenting. majority agrees, that is all Mr. majority deciding The to, confines itself to Kromrei is entitled though even $6,000.00 whether Mr. Kromrei’s amount is almost below the stat- precludes stacking policies. such In utory. legislature thought amount motorist. any gence of uninsured when entitled to receive people were coverage shall provides that such statute The fact that is uninsured. tortfeasor liability automobile be included provides an overall tortfeasor’s in not vehicle’ policy covering ‘any motor policy is larger than Mr. amount in Section limits him. The less than the described or of little consolation benefit 324.021(7) persons protection him ‘for $14,1174.81 “protected” simply has legally enti- insured thereunder who 49-1521 intended 41-2502 and as I.C. §§ from owners damages tled to recover Allowing stacking protected. he be vehicles be- uninsured motor operators of to receive insured individuals permit would resulting minimum, bodily ... injury cause at a statutory amount this However, fi- therefrom.’ from serious protect themselves further to the limits obviously not restricted hardship. nancial (7), F.S.A., F.S. Section 324.021 judi- majority’s opinion constitutes one automobile when more vehicle than statutes, and of these reinterpretation cial admits The statute is covered.... Applying impotent. renders those statutes provi- in the insurer authority no how reasoning reveals coverage on policy to limit sion in the this is so. uninsured basis that the presumed in this case that the tort-feasor Assume him- only have covered motorist would people with privately owned bus hit auto with the minimum self Presumably, the tort-feasor’s it. required Section F.S. under it $50,000.00 interplead, as was would be *5 The determinant 324.021(7), F.S.A. of here, up. Each proceeds divided and the is the total coverage the amount of therefore, receive, of a total victim would purchases pursuant which the insured $1,000.00, medical ex- even their though and not authority the statute to the many times that penses may amount to otherwise at- which the insurer majority really mean to amount. Does the in the by provision tempts to limit peo- say legislature intended such policy. when it ple to restricted to that amount be motor under uninsured An insured language of enacted 41-2502? The I.C. § by the statute ist is entitled intent speaks the statute The otherwise. he protection that bodily injury thefull protect “persons 41-2502 of I.C. was to § pays pre he purchases and which legally entitled to re- insured ... who are meaningless It is useless and miums. bodily injury damages cover ... because additional pay and uneconomic least, very At the these statutes ...” and simulta bodily injury applied they intended to should be as were coverage cancelled neously have this applied, Mr. should be able be Kromrei premium The exclusion. an insurer’s policies, which rely upon his insurance per on a and uniform rates are standard $20,000.00 for, paid up to the he to recover protection insured’s car basis. The full minimum law is the states away by exclusions whittled cannot be person which a can be covered. presuppose he which limitations argu- my mind is the More reasonable to on the to cover only intended himself prohibit anti- ment these statutes lia single car auto basis presumed reasoning stacking clauses. The mo the uninsured coverage had bility point, and in Supreme on this Florida Compare purchased the same. torist Idaho’s, is similar to interpreting a statute Ins. Mutual Fire v. Nationwide Dyer compelling: 6, (Fla.1973), particu 276 Co. So.2d Liability Assur Employers larly see each such requires that
The statute
(1973), 289
Corp., Ltd. v. Jackson
ance
injury loss of the
any bodily
policy cover
673,
negli-
Ala.
negligence
any uninsured motorist."
ing in
public
violation of
spelled
Tucker v. Government Employees
legislature.
out
Co.,
Ins.
238,
(Fla.1973)
288 So.2d
241
(emphasis added).
II.
Other courts have reached similar conclu
holds
anti-stacking
See, e.g., Kemp
Co.,
v. Allstate Ins.
sions:
provision here is clear and unambiguous.
I
526,
20,
183 Mont.
(1979);
601 P.2d
24
disagree. The
question
limitation in
states
Milton,
American States Ins. Co. v.
89
the following:
501,
367,
All
Wash.2d
(1978);
573 P.2d
368
Maglish,
state Ins. Co. v.
“E.
LIMIT
OUR
OF LIABILITY.
699,
94 Nev.
313,
(1978);
Federated Ameri
P.2d
314-15
Regardless
“1.
of the number of cover-
can Ins.
Raynes,
Co. v.
439,
88 Wash.2d
autos,
insureds,
ed
claims made or ve-
815,
Welch v. Hart
(1977);
563 P.2d
accident,
hicles involved in the
the most
Co.,
Cas. Ins.
344,
221 Kan.
559 P.2d
ford
we
pay
will
damages resulting
362,
Keel v. MFA Ins.
(1977);
from
one accident
is the
153,
(Okla.1976);
Cameron
155-56
UNINSURED MOTORIST INSURANCE
Madden,
Mut.
Ins. Co. v.
538,
533 S.W.2d
shown in the declarations.”
(Mo.1976);
Great Central Ins. Co.
542-45
proper
standard in interpreting in-
v. Edge,
613,
292 Ala.
298 So.2d
608-09
surance
recently
contracts was
restated
(1974); Werley v. United Services Auto.
Chancier v. American Hardware Mutual
Ass’n.,
(Alaska 1972);
498 P.2d
118-19
Company,
Insurance
Empire
Porter
Fire & Marine Ins.
(1985),
712 P.2d
as follows:
106 Ariz.
*6
governing
interpretation
Idaho law
the
Puckett,
Sloviaczek v. Estate
In
98
policies
of insurance
was set forth well
371, 375,
564,
(1977),
565
Idaho
P.2d
568
in Mossv. Mid-Amer
Shepard
Justice
Court, per
Donaldson,
this
Justice
said the
Co.,
ican Fire and Marine Ins.
103 Ida
following:
754,
(1982):
ho
647 P.2d
756
question
The
... becomes whether we
long recognized
This
has
that
should allow the Sloviaczeks to stack the
insurance
are contracts of
respective policies to
recovery
effect
adhesion,
subject
negotiation
to
equal to their loss.
parties,
between the
and hence must
question
The same
in
raised
strongly against
be construed most
Co.,
Smith v.
Auto Ins.
240 Or.
Pacific
Uriguen
the
Abbie
Olds.
insurer.
Werley v.
167,
(1965)
555
the
there a limit on
is
where
the
be
must
an exclusion
age. Such
motorist cover-
amount
underinsured
the in
construed
strictly
favor
stacking ap-
limitation on
age. The
Title Guaran
Hahn v. Alaska
sured.
motorist
regard to uninsured
pears with
1976);
(Alaska,
Co.,
P.2d 43
557
ty
inapplicable
is
case
which
protection,
Nethers,
Ariz.
119
Ins. Co. v.
Mission
that
tort-
uncontradicted
because it is
(Ariz.App.1978);
405,
P.2d 250
581
coverage,
insuf-
albeit
feasor had insurance
v.
Mutual Auto. Ins. Co.
Farm
State
pay
the sub-
protection
ficient insurance
94,
Cal.Rptr.
109
Partridge, 10 Cal.3d
against her. The
asserted
stantial claims
(1973);
811,
Northwest
P.2d 123
514
argument
stack-
company’s
Phalen, 182 Mont.
v.
ern Nat. Cas. Co.
is
therefore
prohibited
is
ing
(1979);
v.
448,
Conner
States Guaranty
So.2d (La.Ct.App.1972) 297-98 cert. de
nied,
(La.1973).
Aid provide. Insurance did not so In-
stead, it took Mr. premi- Kromrei’s three
ums, now, arguing however, that Mr.
Kromrei is not entitled to paid.
which he The fairness of this result par
onis with that which a majority did in Juker v. American Livestock
Insurance
102 Idaho
(1981), wherein denied an in-
sured individual the paid he had by holding in effect that the indemnity
policy which he on his had horse was a life a horse on and not a against
which insured Juker loss I
horse. do not believe a per- “reasonable
son in position would [Mr. Kromrei]
have understood the language to mean Aid argues
what now Insurance here. Corgatelli v. Globe & Accident Insur- Life
ance (1975) (Donaldson, J., dissenting). Ac-
cordingly, I would reverse the district court
with directions that Mr. Kromrei be enti- payments
tled to receive the due him on all
of the pur- which he paid
chased and for.
STATE
Kathy Rusho, Roger RUSHO
Defendants-Appellants.
Nos. 15829. *8 Appeals
Court of of Idaho. 12, 1986.
March