*1 LOWING, wife and Paula Scott
husband, Plaintiffs/Appellants, COMPANY, INSURANCE
ALLSTATE
INC., Defendant/Appellee. Horvath, and Coletta
Lewis HORVATH
Plaintiffs-Appellants, CASUALTY, foreign
CONTINENTAL company, individually in its CNA Insurance Com-
name d/b/a
panies, Defendant-Appellee. CV-92-0259-PR, CV-92-0381-PR.
Nos.
Supreme Court of
En Banc.
Sept. 1993. Denied Nov.
Reconsideration *2 Larkin, Tucson,
Michael E. for and Paula Lowing. Scott Kimble, Gothreau & Nelson William Kimble, David P. Toone E. Stephen Kimble, Tucson, for Allstate Ins. Co. Cowser, Danny Flagstaff, L. for Lewis Horvath. Coletta Gallagher Kennedy by & Sky- Don D. peck Thomson, III, and W. Charles Phoe- nix, for Continental Cas.
OPINION MARTONE, Justice. are asked to decide un- whether an accident-causing
identified within “uninsured” Act, Motorist Uninsured 20-259.- whether an and thus provide coverage bodily that does motorists, injury caused unless occurred mo- between the insured, comply torist and the fails to the statute. We answer both of these questions in the affirmative and therefore previous rulings overrule our con- trary in Balestrieri v. Accident Hartford & Indem. Ins. and State Farm Mut. Auto. Co. v. stop, The other did overturned. vehicle
I. BACKGROUND was never identified. driver Gen- Casualty A. Horvath Continental carrier, uninsured motorist insurance tile’s *3 Allstate, Lowing’s his to and of children refused cover dam- Lewis Horvath three ages policy its limits to Horvath swerved because injuries when sustained physical in is to cases which there actual con- attempting to another car his car avoid accident-causing the unknown ve- in a zone on a tact with no-passing a truck pass sued, seeking a hicle.2 Gentile declaration prevented action Though Horvath’s curve. collision, policy limitation is void under off the head-on he was forced a court car, grant- 20-259.01. The trial of other whose A.R.S. The driver road. summary unknown, stop. judg- Allstate’s motion for identity did not ed remains of appeals ment and the court affirmed Horvath’s uninsured motorist Because on the Balestrieri line of cases. We based only those accidents insurance covers Lowing’s petition for and granted review by actually unknown motorists who consolidated it with Horvath case. vehicle, his “hit” the insured’s carrier, Casualty, refused to Continental sued, II. losses.1 Horvath ANALYSIS
cover Horvath’s seeking policy limita- a declaration that require A. Does 20-259.01 cov- A.R.S. § requirements of contrary is tion erage motorists? 20-259.01, Arizona’s Uninsured of unidentified A.R.S. § Act, and void. The trial Motorist thus question first an The must dis- granted Continental’s motion to court statutory interpretation: is swer one of miss, appeals court of affirmed and the require 20-259.01 does holding in on court’s Balestrieri based motorists in addition to of unidentified Accident & Indem. Ins. v. Hartford demonstrably known motorists who are (1975), Ariz. 540 126 112 P.2d principle of stat primary uninsured? “The provisions granted are We valid. utory interpretation is determine and to petition for review. Horvath’s give legislative Wyatt effect intent.” v. 281, 284, Wehmueller, Ariz. P.2d 167 806 Lowing B. Allstate Korzep, 873 See also State Lowing injuries Paula sustained when Gentile, of and of most index a stat the owner driver The best and reliable
Salvatore language. lan passenger, meaning a ute’s is That the vehicle which she was unequivocal, clear and con colliding guage, a vehicle where swerved to avoid with unless it leads stop sign. ran car missed trols statute’s a Gentile’s vehicle, roadway impossible or results. Matter other but left the to absurd of reads, (1) any person; part: You covered or 1. The relevant (2) you any or cov- you any A vehicle pay or other motor which person legally are entitled recover person occupying; covered from or ered operator or owner an uninsured (3) motor vehicle or boat. Your or because underinsured motor vehicle boat or at 49. Id. injury: bodily you any person; or covered 1. Sustained an "uninsured insurance as, defines 2. The alia, and run motor inter hit “[a] auto” or acci- vehicle boat 2. Caused motor bodily injury person to a which causes vehicle dent. or with the insured insured Deluxe, Security Policy at 23 CNA’s Universal occupied by person. The vehicle Twenty-six (Exhibit Complaint). pages la- toA identity operator vehi- and owner ter, policy, section in the definitions be cle must unknown.” as: boat” is defined vehicle or "uninsured motor any vehicle boat or trailer of a land type: or motor or motor vehicle is hit-and-run c. Which operator owner be cannot boat whose and which hits: identified County Appeal
Pima
Juvenile
No.
sources to determine which of the two in-
74802-
25, 33,
terpretations
P.2d
is more in
legislative
line with
Wagstaff,
intent. Compare Wiley
State
v. The Indus.
(1990). Where, instead,
Comm’n.
language
subject
(finding
statute’s
to different
worker’s com-
pensation
interpretations,
ambiguous
as
court is free to consult
to an issue
explicitly
statute).
addressed
other sources of
intent such as
context,
the statute’s
historical back-
purpose
is,
The
20-259.01
ground, consequences, spirit
purpose.
broadly speaking, to
gap
pro
“close the
Newspapers
Superior
Arizona
Ass’n. v.
*4
tection
Safety
Act,
under the
Responsibility
Court,
1174,
143 Ariz.
694 P.2d
seq.”,
28-1101 et
Calvert v.
20-259.01(A)
Section
states:
Farmers
Ins.
of
liability
No
automobile
motor vehi- 291, 294,
(1985),
liability policy
cle
shall
...
be delivered protect people
injured by
who are
financial
delivery
or issued
this state ...
ly irresponsible motorists,
id. at
coverage
provided
unless
is
the
P.2d at 688.
20-259.01 is remedial
Section
protection
for the
persons
...
of
insured
in nature and
liberally
should be
construed
legally
are.
entitled to recover dam-
purpose.
order to effectuate its
at
Id.
ages from
operators
owners or
of unin- 294,
In
(1970),
we cannot
the
“plain language” of the statute because we
held that an
we
insured who recovers less
cannot
statutory
know which unidentified motorists
than the
minimum amount of cov-
erage
are uninsured and
are not.
negligent
We must
from a
motorist because
presume
negligent
liability
instead
either that unidentified
the
driver’s
insurance is
they
split among
motorists are insured or that
unin-
multiple
may
are
claimants
recover
former,
(i.e.,
presume
up
statutory
sured.
If we
some
the balance
mini-
persons injured
mum)
by uninsured motorists will
from his or her uninsured motorist
go uncompensated.
presume
coverage.
If we
the lat-
The rationale
the case was
ter,
that,
persons injured by
although
negligent
some
insured
pur-
motor-
insurance,
liability
ists will recover from their uninsured
he
mo- chased some
or she is
functionally
torist insurance carrier. Neither situation
uninsured as to the
contemplated by
language
person
is
the literal
because insurance is not available
required by
up
the statute. The statute does not address
to the minimum amount
the unidentified motorist issue. It is there-
statute. Because the Uninsured Motorist
ambiguous,
designed to make
to all
fore
and we must consult other Act was
available
by negligent
Amending
Chapter
motorists a
Title
persons injured
Article
Statutes,
of compensation,
by Adding
certain minimum amount
Arizona Revised
was uninsured within
(emphasis
the motorist
S.B. 42
add-
Section 20-259.01.”
ed).4
act.
The title of the act remained the
legislative process
throughout
same
Likewise,
unidentified motorists
governor signed
and was intact when the
persons
functionally uninsured as
act,
body
into
But
the bill
law.
no
they injure
they
because
have
the title and substance of A.R.S.
20-
in fact
and collectible.
available
259.01,
phrase.
include
did not
Balestrieri,
attempted to
our
reconcile
holding
noting
“in
with Porter
both
In Balestrieri we concluded that the “de-
injured party
maintains the bur-
[cases]
letion” of
“unknown motorist” lan-
establishing
negli-
fact that
den
body
act’s
“a
guage
indicated
gent
motorist was uninsured.”
legislative design
conscious
to exclude un-
163-64,
an
at
The which was has ratified this court’s act A.R.S. 20-259.01 Relating by “reenacting” “An the statute introduced was entitled Act in Balestrieri Insurance; to Prescribing changing to an it indicate “unin- Uninsured without Clause, sured motor includes unidentified Motorist and Unknown Motorist vehicles” that, coverage. might argue apply It re- One we the rationale motorist makes sense we if case, however, case, do the have to fused to so. In instant Porter to instant would person injured by apply. rationale does From view- hold that the unidentified same party, point injured acci- his insurer the unidentified driver can recover from or her required by dent-causing wholly up is uninsured and to minimum amount motorist up party should be able to recover to responsibility even if or she had financial act he protec- cov- purchased greater his or her uninsured motorist uninsured motorist the limits of case, erage. In Porter tion. This is not the however. negligent insur- the ance; motorist did in fact have by legis- passed only problem split bill was that was 4. We note that this was it virtually was Had court al- instead of H.B. several claimants. lature between up except did not to plaintiff that the title refer in that case to recover identical lowed the coverage of his motorist "unknown motorists.” limits uninsured all, (which might, after been over the statu- have contrast, headings minimum) See tory section not. it have turned uninsured 5. In would a form of underinsured 1-212. into Butcher, Cagle vehicles. See provide 118 Ariz. Arizona to coverage for bodily inju- 124 n. 575 P.2d ry 323 n. by caused such motorists. Jackson v. Northland Constr. B. physical Is the requirement contact against public void as
(“where
policy?
a statute which has been con
strued
a court of last resort is re-enact
policies
The
at issue in this case do
ed in substantially
terms,
the same
provide coverage for some unidentified ac
legislature
presumed
placed
to have
cident-causing drivers:
those that actually
approval
judicial interpretation
on the
giv
“hit”
“physical
or have
contact” with the
adopted
en and
such construction for the
insured
occupied
or the vehicle
in
statute.”).
re-enacted
It was for this rea
Having
sured.
concluded that
20-259.01
son that we refused to overrule Balestrieri
requires coverage
when earlier invited to do so. State Farm
motorists,
unidentified
question
be
Mut. Auto. Ins. Co. v.
comes whether the contact limitation vio
have,
howev
lates the statute. We conclude that it does.
er, expressed doubt as to whether amend Exceptions
generally
are not
ment of the Uninsured Motorist Act in permitted
expressly
unless
allowed
stat
ways
judicial
unrelated to the
construction
ute.
Rashid
State Farm Mut. Auto.
at issue
should be understood as
acquiescence
construction,
in that
in the
The
require
absence of some affirmative indication that ment, by arbitrarily excluding a class of
approved
considered and
people
coverage, directly
conflicts
*6
our construction.
Calvert
Farmers Ins. with what we have determined to be the
Arizona,
of
public policy
protecting people
of
who are
injured by financially irresponsible motor
ists.
It makes sense to infer that
the
The physical
requirement
contact
flows
legislature approves judicial interpretation
language
from the
of the
the—not
of a statute when we have some reason to
statute,
language of our
wholly
and is
un-
legislature
believe that the
has considered
question
related
being
“uninsured
reject
and declined to
interpretation.
in fact.”
knowledge
Our
of the “insured”
itself,
Silence in and of
in the absence of
status of a hit and run driver is no better
any
indication that the
has con
knowledge
than our
of the “insured” status
interpretation,
sidered the
is not instruc
case,
of a miss and run driver.
In either
statutory
tive. A rule of
construction that
the unknown motorist is uninsured as to
requires
presume
us to
that such silence is
injured party
the
coverage
is no
—there
expression
an
intent is some
purpose
available. The whole
of uninsured
arbitrary.
what artificial and
and underinsured
is to
Section 20-259.01 has been amended
prudent person
protect
allow
to
himself
three times since Balestrieri was decided.
against
or herself
the universe of risks.
None of these
anything
amendments had
to To exclude miss and run drivers from the
drivers,
do with unidentified
or with the
definition frustrates
purpose
of the
definition of uninsured motor vehicles.
statute.
is, therefore,
There
no reason to assume
agree
physical
Commentators
legislature approves
that the
holding
of our
requirement
contact
was created
insur-
in Balestrieri.
companies
prevent
ance
to
fraudulent
We thus hold that an unidentified acci-
negligently damage
claims
insureds who
dent-causing
oper-
“phantom”
motorist is an
or
“owner
their vehicles and invent a
vehi-
attempt
ator of an uninsured motor vehicle” within cle in an
to
recover
their
20-259.01,
requirement,
and that the
insurer. The contact
howev-
er,
requires every
liability
automobile
is both too broad and too narrow to
delivery
accomplish
goal.
or
in
delivered
issued for
this
DeMello v.
See
First
Hawaii,
merit,
separate
55 Haw.
with no
discussion of the
Ins. Co. of
decisis).
not-
As one commentator
doctrine of stare
ed,
an
twenty
if
witnesses will swear that
Recently,
Wiley
v. The Indus.
as
occurred
claimed
accident
Comm’n. of
insured,
simply arbitrary
deny
to
cov-
it is
(1993),
P.2d 595
we said:
physical
contact
erage
the absence of
light
respect
“healthy
of our
for
prevention.
of fraud
under
the rubric
decisis,”
lightly
we do not
stare
overrule
Co., 249
Progressive
Mut. Ins.
Brown
precedent
compelling
and do so
(Fla.1971). Conversely, if
So.2d
disagreement
reasons. Mere
with those
are no witnesses to an insured’s own
there
us,
more,
preceded
without
not
negligence,
easily
phys-
he or she can
claim
precedent.
adequate reason to overrule
none, and cre-
ical contact when there was
pay appropriate
While we should
do
to
ate
evidence
corroborate
homage
precedent,
to
we also realize that
Anderson
Farm Mut.
claim. See
v. State
prisoners
past.
of the
In this
we
Auto.
case,
compelling
there are
reasons to
(Feldman, J., concurring).
(1982)
(1)
precedent:
language
overrule
physical
therefore conclude that the
We
compel
interpreta
Act
does
policies
is not
requirement
contact
cases;
previous
(2)
tion reached in
exception
an authorized
interpretation that we overrule did not
required
It is
statute.
therefore
Act;
policies
(3) the
advance the
of the
against public policy.
as
void
precedent
not the
we overrule is
result
persuasive reasoning;
analysis
clear
C. Stare Decisis
return,
(4)by overruling precedent,
we
have dealt with the
merits
general,
the view
of Wells
Indus
[v.
though
issue as
this
a case of first
were
Comm’n,
trial
impression. Of course it is not.
In Bales-
[(1945)]
supported
which is better
113]
trieri v.
Accident & Indem. Ins.
Hartford
reasoned;
facts
upheld
require-
interpretation
case demonstrate that the
*7
ment,
have since refused
invita-
and
two
today
imprudent and
we overrule
was
case.
v.
tions
overrule that
Anderson
unjust.
Ariz.
Mut.
133
State Farm
Auto. Ins.
103,
(citations
at
at
847 P.2d
604
omit-
Id.
State Farm Mut.
ted).
that
in-
We conclude
this
another
Auto. Ins.
departure
precedent
in which a
from
stance
P.2d 321
727
is warranted.
“is
The doctrine of stare decisis
First,
discussed,
public
people
already
as
grounded
on
that
rights
compel
in
case
not
what their
are as set
this
does
should know
De
by judicial precedent
having
interpretation
and
relied
reached in Balestrieri.
out
conducting
plain language
in
on
rights
spite
their affairs
our reliance
on
statute,
away
not
by the
20-259.01 does
address
should not have them done
with
directly.
Bateman,
Ariz.
motorist situation
the unidentified
judicial fiat.” White v.
Second,
interpretation did
(1961). It is
713-14
Balestrieri
however,
policies
not
advance the
of 20-259.01 be
persuasion,
and
not
a doctrine of
loop-hole
protection
in
Ultimately,
de
it left a
rule.
Id.
cause
an ironclad
provided
prior
irresponsible motorists otherwise
demanded
gree
adherence
Third,
merits,
statutory scheme.
we do
depends upon
by the
decision
judicial
reasoning.
or
analysis
abandoned if the reasons
share Balestrieri’s
may
and it
be
upon
it
heavily
what
clearly
if it
The court relied
to exist or
was
it have ceased
legislative design
wrong.
as the conscious
manifestly
Id. See viewed
or
erroneous
State,
motorists from
Transp., 160 to exclude unidentified
Dept.
Villareal
motor
(1989) (court
coverage. But the “unknown
over
act’s
P.2d 213
appeared in the title of the
phrase
on
of its lack
ist”
prior case
the basis
ruled
statute;
given
act was never deleted from the
it
ion
prospective application
will be
Fourth, by overruling
never there.
policy question
was
is a
within this court’s
discretion.”).
return
Balestrieri we
ex-
In making this determina-
pressed
evaluating
tion,
Porter of
status
we consider whether:
financially irresponsible
of the
opinion
1. The
legal
establishes a new
viewpoint
from the
insured.
principle by overruling clear and reliable
Fifth, the facts of these cases demonstrate
precedent
by deciding
an issue whose
interpretation
the Balestrieri
is un-
foreshadowed;
resolution
was
just. As one commentator noted:
application
2. Retroactive
would ad-
alert,
pedestrian
An
barely
athletic
versely
purpose
affect
behind the
manages to avoid contact with such a car
rule;
new
through
leaping
plate glass
window
application
pro-
Retroactive
would
receives the unkindest cuts of all for his
substantially inequitable
duce
results.
efforts,
Snubbed,
qualify.
but cannot
Court,
Superior
Law v.
too,
miraculously
is the driver who
man-
limit a
We will
ages
highway
to steer his car off the
if,
prospective application
new rule to
on
oncoming
thus avoid a collision with an
balance, these factors indicate that retroac
lane,
traveling
wrong
vehicle
in the
but
application
unjust.
tive
would be
doing
abrupt stop
in so
effects a rather
case,
In
clearly
the first factor
against
unyielding bridge
abutment.
weighs against
application.
retroactive
McGlynn
America,
Ins. Co.
Safeco
breaking
precedent,
clear
216 Mont.
changed
there have
no
circumstances
been
(quoting
(1966)).
55 Ill.Bar J.
In
companies
that would alert insurance
contrast,
pedestrian
a less alert
or driver
likely.
this was
overruling
Finally, by
would recover.
Bal-
join
leading
estrieri we
the view of a
com-
weighs
The second
factor
favor of
Widiss,
mentator
the field.
Alan I.
application
See
retroactive
it
because
would
Uninsured and Underinsured Motorist
further
adversely
rather than
affect
(2d
1990).
9.7 at 484-85
ed.
Insurance
purpose
ruling
remedial
behind our
short, although
healthy
we have a
re- physical
requirements
are void.
decisis,
spect for stare
we will not be bound
ways.
The third
cuts
factor
both
Retro-
nothing
precedent
a rule with
more than
application may
active
cause some insurers
it.
recommend
See Streitweiser v. Mid-
disadvantaged by
to be
claims not within
dlesex Mut. Assurance
Conn.
analyses.
their
Yet
insureds
risk
some
*8
(1991) (court
prior
actually hit the are in conflict with holding, By and are so
the statute void. prior decisions to the con-
we overrule our
trary, Balestrieri v. Accident & Hartford Indem. Ins. Auto. Ins. (1975)and State Farm Mut. The memorandum decision ORMSBEE, Plaintiff/Appellant, Doris Lowing appeals in
the court of vacated. part memorandum decision in That of the Horvath that relates to the physical con- COMPANY, ALLSTATE INSURANCE requirement is tact vacated. both cases Defendant/Appellee. judgments superior court No. CV-91-0324-PR. and the cases are remanded to the reversed superior proceedings court for consistent Supreme Court of opinion. with this En Banc. Sept. 1993. V.C.J.,
FELDMAN, C.J., MOELLER, ZLAKET, J., concur. Reconsideration Denied Nov.
CORCORAN, Justice, Specially
concurring:
I concur not the result in these
cases, analysis, but also with the with one
exception. Bill 42 Senate had the Act’s mo- surplus
title the words “and unknown not referred
torists,” subject was a opinion
to in the text of the Act. The that “the intended
concludes 20-259.01 to cover unidentified motor- title of the Bill referred
ists” because the
to “unknown motorists.” opinion correctly
The notes that under constitution, provision in the
our state
text of an act is void if it addresses a
subject expressed in the act’s title. this, however, opinion leaps
From *9 “a conclusion that the title of an act is legislative I cannot
good guide to intent.” implication opinion in the
agree with the surplus if title of a contains bill
language, it is “read into” the text of in-
statute as an indication of most, At the excess words the title
tent. neutral. “guide
My is that the best conclusion is to consider the text
legislative intent” adopted, rather that has been
a statute