This is аn automobile insurance ease concerning underinsured motorist (UIM) coverage. As we held in
Sublimity Ins. Co. v. Shaw,
I.
BACKGROUND AND PRIOR PROCEEDINGS
On November 23, 1991, Sherry Box was driving her vehicle with James Box, Gretehen Box and Julia Forsberg as passengers. Her vehicle was insured by Mutual of Enumclaw Insuranсe Company (Mutual). The Box vehicle was hit head-on by a pickup driven by Stacey Bell, which was insured by Grange Insurance (Grange). At the time of the аccident, Bell was intoxicated and driving the wrong direction on Interstate 90.
One occupant of the Box vehicle, Julia Forsberg, incurred extensive injuries which resulted in medical expenses in excess of $24,000. The members of the Box family sustained various minor injuries resulting in medical expenses аnd other minor damages.
The pickup driven by Bell was insured by Grange Insurance with limits of liability of $50,000 per accident. Grange paid the policy limit to the occupants of the Box vehicle (Box); which exhausted the $50,000 liability limit of the Grange policy.
Mutual filed a complaint for declaratory relief and moved for summary judgment, claiming that the $50,000 policy limits paid by Bell’s insurer, Grange Insurance, should be set off from the $100,000 underinsured motorist policy limit оf the Mutual policy, relying on the language of Mutual’s policy. Box also filed a motion for summary judgment, seeking a determination that Mutual was only entitled to set off the $50,000 Box received from Grange from the “damages” which were incurred, rather than the liability limits.
The district court concluded that thе language in the insurance policy was “clear and unambiguous, and, under that clear and unambiguous contract, Mutual is entitled to offset from thе $100,000 limits of uninsured/underinsured motorist coverage provided under the policy, the $50,000 previously paid by the tort feasor’s insurance carrier to Sherry Box and other insureds under the Mutual policy.” Box appealed.
II.
STANDARD OF REVIEW
Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c). “Whether language contained in an insurance policy is ambiguous is a question of law to be determined by the trial judge.”
Foster v. Johnstone,
III.
THE UIM COVERAGE DOES NOT REQUIRE MUTUAL OF ENUMCLAW TO PAY BOX MORE THAN $50,000.
Mutual asserts that the UIM coverage does not require it to pay more than $50,000 to Box. We agree.
The insurance policy between Sherry Box and Mutual of Enumelaw contained an un-derinsured motorist provision, which limitеd the amount of liability to $100,000 per accident. The underinsured motorist coverage by Mutual provided as follows:
A. WE WILL PAY
1. Damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident. The owner’s or operator’s liability for these damages must arise out of thе ownership, maintenance or use of an uninsured motor vehicle. Any judgment for damages arising out of a suit brought without our written consent is not binding on us.
5. The mеaning of uninsured motor vehicle includes underinsured motor vehicle subject to the following provisions:
a. Underinsured Motor Vehicle means a lаnd motor vehicle or trailer for which the sum of all liability bonds or policies at the time of an accident provides at least the amount required by the applicable law where such vehicle is principally garaged but their limits of liability are less than the limit of this insurance. Howevеr, underinsured motor vehicle does not include an uninsured motor vehicle.
b. We will pay only after all liability bonds or policies have been exhausted by judgments or payments.
C. OUR LIMIT OF LIABILITY:
1. Regardless of the number of covered cars, insureds, claims made or vehicles involved in the accident or рremiums shown on the Coverage Page, the most we will pay for bodily injury resulting from any one accident is the Uninsured Motorist limit shown for the covered сar on the Coverage Page.
2. Any amounts otherwise payable for damages under this coverage will be reduced by:
a. All sums paid because of bodily injury by or on behalf of persons or organizations who may be legally responsible
The issue in this ease is whether the underinsured motorist bеnefits payable by Mutual under the underinsured motorist provision may be offset by the amounts previously tendered by the tort-feasor’s liability carrier, Grange. The policy language relied upon by Box is found under OTHER LIMITS OF LIABILITY and reads, “Any amounts otherwise payable for damages under this coverage will be reduced by ... All sums paid because of bоdily injury by or on behalf of persons or organizations who may be legally responsible.” (emphasis added) Box maintains that this provision means that any payment from Bell’s insurance must be applied to the total damages suffered by Box, not to the coverage limit in Mutual’s underinsured motorist prоvision.
To determine whether a policy is ambiguous, the Court must ask whether the policy “is reasonably subject to conflicting interpretation.”
City of Boise v. Planet Ins. Co.,
The Oregon Court of Appeals interpreted thе same policy provision at issue here in
Mutual of Enumclaw Ins. Co. v. Key,
In this case, the OUR LIMITS OF LIABILITY section of the Mutual policy clearly states that Mutual will only pay the amount necessary tо bring Box’s total recovery to the liability limit, $100,000. In arriving at the payment to be made under the UIM coverage, Mutual is entitled to reduce the $100,000 liability limit by “[a]ll sums рaid because of bodily injury by or on behalf of persons or organizations who may be legally responsible.” The Mutual policy provides fоr this setoff with clear and unambiguous language. The meaning of this policy is not reasonably subject to conflicting interpretations.
IY.
CONCLUSION
We affirm the distriсt court’s grant of summary judgment to Mutual of Enumclaw. We award costs on appeal to Mutual of Enum-claw. Mutual of Enumclaw did not request attorney fees on appeal.