Phen v. Progressive Northern Insurance Co.

2003 SD 133 PHEN, Appellee,

Connie Plaintiff PROGRESSIVE NORTHERN INSUR-

ANCE COMPANY d/b/a Company, Insurance Defendant Appellant.

No. 22648. Supreme Court of Dakota. South

Argued Aug. 2003. Decided Nov.

Janklow, Falls, plaintiff Sioux and ap- pellee. Costello, May Porter, Hill, A.

William Heisterkamp, Carpenter, Bushnell and Rapid City, for defendant and appellant. SABERS, Justice.

[¶ Connie Phen made a claim 1.] against provision an uninsured motorist Progressive her with contract insurance Company Northern (Progres- Insurance sive). Progressive denied the claim and brought payment Phen suit to force that Progressive claim. Phen also alleged acted in bad faith when it her denied claim. hearing summary After cross motions for 1) judgment, granted circuit court motion and Phen’s directed $25,000 limit its pay under uninsured motorist circuit provision. The court de- 2) Progressive’s for summary nied motion judgment on the issue finding bad faith that there was put sufficient evidence to question jury. before a an amend- order, entry ed the court directed final 15-6-54(b). judgment pursuant to SDCL Progressive appeals both issues. We af- firm Issue reverse Issue

FACTS stipulated The parties have to the July

facts. On Phen was Connie injured seriously motorcycle when the she by was on was struck a vehicle. The was driven motorcycle Guy owned and Lynne Koppinger. driving Peterson was negligence the other vehicle and her was proximate injuries. cause of Phen’s Koppinger’s was Peterson uninsured. mo- torcycle Financial Indem- was (Financial) nity Company October paid Financial Phen its uninsured $25,000. limit of injuries led to approxi- Phen’s $100,000 Tobin, T. mately M. in medical bills. She sus- Matthew Steven Johnson Johnson, Miner, internal injuries leg, organs to her Heidepriem, Marlow tained hospital properly

and her back. Phen was in the 2. Whether the circuit court for almost two months and missed over denied motion for recovering summary judgment two months of work. After on Phen’s claim Financial, $25,000from Phen made a claim faith. bad $25,000 policy for the limit under her unin- We affirm the circuit court on Issue 1 and with Progressive. sured motorist benefit reverse on Issue 2.

Progressive denied the claim based on STANDARD OF REVIEW III policy’s exclusion under “Part Motorist Cover- The standard of Uninsured/Underinsured review exclusion, age,” Exclusion l.e. Under the summary judgment is well established. injury coverage provided is not sus- a genuine We determine whether issue of by any person using tained while or occu- fact the circuit material exists and whether pying: correctly court applied the law. Nicker Insurance, v. son American States 2000 vehicle, vehicle, a other than a if covered ¶ 121, 7, 468, (quoting SD 616 N.W.2d 470 uninsured motorist or underin- Wilka, 61, 17, Manuel 610 sured applicable motorist to (additional 458, N.W.2d 462 citations omit such vehicle is available. ted)). A vehicle” “covered is defined as vehicle Because an insurance pol type owned Phen. This of “other insur- contract, icy parties is a are bound to against ance” clause was deemed as void its terms and insurance companies are al Co., in public policy Westphal v. Amco Ins. lowed, constraints, subject statutory to (1973). 87 S.D. 209 555 The impose limit their conditions policy also an “anti-stacking” included upon obligation pay. their Miller v. provided: clause which Queen Co., City Fire Ins. 47 S.D. 383- Liability Part Limits under this (1924) (quoting 199 N.W. 456 Pow III shall not be added or stacked 336, 119 ers v. Travelers’ Ins. 186 N.C. upon any (1923)). However, S.E. the conditions or underinsured coverage ap- imposed by and limitations the insurance plying to other motor vehicles to deter- company public must be consistent with mine the amount of available to policy and company the insurance is liable person bodily an insured who sustains if it acts in faith in denying bad claims. injury one accident. brought [¶ 4.] Phen suit to determine 1. WHETHER [¶7] PROGRES- policy whether the exclusions violate SIVE’S “OTHER INSURANCE” policy are therefore void. Phen also CLAUSE VIOLATES PUBLIC argued Progressive acted bad faith POLICY.

when it denied claim. her The court Progressive contends that granted Phen’s summary judg- motion for prohibit Court should Phen from “stack- policy ment on the exclusion and directed her ing” atop uninsured motorist benefits $25,000. Progressive to pay The court already she Fi- those has collected from Progressive’s summary denied judgment 1) proceed- nancial. Phen counters that motion on Phen’s claim of bad faith. Pro- ing policies stacking under both she is not gressive appeals raising two issues: 2) policies the “other insurance” Whether “other insur- clause her with is public policy. public policy.

ance” clause violates void because it violates “stacking,” [¶ 9.] The term restricts the insured from receiving that definitions, varying insurance law has but coverage for which premium case, for the of this purpose stacking, paid. been arises where the same claimant and the Westphal, 410-411, 87 S.D. at 209 N.W.2d same loss multiple are covered under (quoting Blakeslee v. Farm Bureau policies, or under multiple coverages Mich., Mutual Ins. Co. 388 Mich. single contained in a policy, and the (1972) (quoting available under one in Insurance Company America v. Safeco adequate to satisfy damages alleged Jones, 286 Ala. So.2d essence, awarded. de (1971))). phenomenon scribes the of insureds or Progressive argues that against claimants them adding all avail Westphal longer no represents the public policies able together greater to create a policy of this state because the Legislature pool in satisfy order to their actual loss. has never codified the holding and because 12 Lee R. Russ <&Thomas Segalla, F. the Legislature subsequently enacted anti- (3d § on Couch Insurance 169:4 Ed. stacking Progressive laws. failed to show 1999).1 Phen is attempting to collect cov Westphal that no longer represents public erage for the same claimant and the same policy. We affirm the trial court on this loss policies from two different and there issue and that hold the “other insurance” fore, contrary contention, to her this case clause of the policy is void in this circum stacking

involves the of insurance claims stance. policies. or [¶ 12.] This Court consistently not The trial court relied on this ed Westphal that holding remains Court’s decision in Westphal granting Nickerson, sound. 121, 18, See summary judgment to on ground Phen 5; 616 N.W.2d at n. Union Insurance that the other insurance clause is void (S.D. Co. v. Stanage, 454 N.W.2d because it public policy. violates In West- 1990); Cunningham v. Western Cas. Sur. phal, adopted Court the holding of 90 S.D. Company Insurance America v. Safeco (1976). However, Westphal, since Jones, which provided: uninsured motorist has been holdWe that our statute sets a mini- amended. The version SDCL 58-11-9 mum amount for recovery, but it does at issue in Westphal provided: place not a limit on the total No policy insuring against so loss long resulting as amount does liability from loss; imposed by bodily not exceed the for amount of actual law injury or where loss death suffered any person exceeds limits of one policy, arising out of may proceed ownership, un- mainte- der other policies; available nance or use of a and that motor vehicle shall be where the premiums have been delivered or for paid delivery issued in this uninsured motorist coverage, we state with respect cannot motor vehicle permit an insurer to avoid its statutorily registered principally garaged or in this imposed liability by its insertion into the state unless provided therein liability of a limiting clause which or supplemental thereto limits 1. There are stacking other forms of in insur- to restrict the definition so that does not by defining ance law way apply in other contexts. case, purpose for the of this we not do intend First,

bodily injury forth in or death set 32- uninsured motorist is now 35-17, mandatory in- whereas protection persons for the before the insured had Second, option of rejecting coverage. legally sured thereunder who are enti- required by the statute can- damages tled to recover owners or from $100,000 not exceed unless the insured operators of uninsured motor vehicles specifically requests coverage. additional bodily injury, ... because of sickness Progressive changes asserts that re- these disease, death, including resulting there- move the underpinnings from; provided, that the named insured However, writings decision. this Courts right reject shall have the such cover- have taken these modifications into ac- age[.] count and do not appear changed to have (Emphasis supplied.) SDCL 58-11-9 now the holding Westphal. We will address provides pertinent part: separately. each amendment No policy insuring against resulting loss the statute that from imposed by bodily law for made manda injury or death any person suffered tory was inserted arising ownership, out of the mainte- argues that in the insured had a nance, or may use of a motor vehicle be choice whether to obtain uninsured motor delivery delivered or issued in this protection ist justified and that choice respect any state with motor vehicle holding Court’s should be registered principally garaged or in this allowed “where premiums have been state, snowmobiles, except for unless paid for uninsured coverage.” provided is supple- therein or 411, Westphal, 87 at S.D. 209 N.W.2d at mental thereto in bodily injury limits for Mich, Blakeslee, (quoting 559 388 equal or death coverage provided to the 201 N.W.2d at (quoting Safeco, bodily such injury and 742)). Ala. at Progres 243 So.2d at death, protection persons for the of in- sive asserts that once the became sured legally thereunder who are enti- mandatory, the significance of the fact that tled to damages recover from or owners paid premiums for the cover operators of uninsured motor vehicles age considerably.” “diminished In support and hit-and-run motor vehicles because argument, of this Progressive cites Nicker disease, bodily injury, sickness, of ¶ son, 2000 SD 616 N.W.2d at 471 death, including resulting therefrom. which stated: However, coverage required by Premiums for uninsured motorist cover- may section not exceed the limits one age are charged merely on each vehicle hundred thousand dollars because of Therefore, to cover the increased risk. bodily injury person to or death of one premiums are paid for the insured’s and, any in subject one accident to the “protection” guaranteed that she will be limit person, for one three hundred a recovery. minimum pre- The fact that thousand dollars bodily inju- because of paid miums are for the coverage is not ry to or death of two in persons or more the conclusive in- determination that the accident, one unless additional cov- sured is entitled to the full amount of erage requested is by the insured. coverage without deduction. In other SDCL 58-11-9 (emphasis supplied). words, As the insured who contracts for the emphasized language suggests, there [underinsured motorist] is con- have been two changes relevant in the tracting for the assurance that he will be recover, since Westphal minimum, was decided. able to at a mo- equal coverage. [underinsured to the In Union Insurance amount Co. coverage. right recovery Stanage, explained: the Court torist] This uncompen- when the insured applies This modification the statute reflects damages up sated to the [underinsured legislative determination that the max- regard policy limits without motorist] imum set forth in amount the statute is policies, number of vehicles or the protect sufficient to those insureds who of premiums paid. may legally be entitled to recover against an uninsured motorist. (Internal omitted.) Pro citations What Co. v. Stanage, Union Insurance neglects Nick- gressive to mention about (S.D.1990). The Court is that erson Court dis went on to that an may hold insurer limit in tinguished Nickerson its total to the maximum amount reiterated, holding is in a subsequent issued to the same Nickerson, sound[.] SD long insured as as the limitation was stat- Furthermore, 616 N.W.2d at n. 5. in policies ed clear and unambiguous Westphal, Court considered interpretation terms. Id. This poli- of the mandatory. motorist coverage uninsured cy 58-11-9 behind SDCL was reaffirmed accepted adopted The the rea Court Nickerson, the Court Michigan Court soning Supreme ¶ 18, 616 N.W.2d at n. 5. Blakeslee, which noted: interpretation This Courts plain, the statute the uninsured motorist statute in Westphal unambiguous and ... mandatory Stated subsequent appears decisions be affirmative, must every policy that an insured allowed to is stack insur coverage. Only have this the man- after $100,000 up to policies statutory ance the datory offer is made can the insured maximum unless the request insured has it in in reject writing. Nowhere the However, greater coverage. ed the in legislature attempt statute does the to may sured collect an greater not amount any recovery fix maximum amount of than actual loss. Westphal, his or her See than the less amount of the loss. The 410, 558-559; 87 S.D. at 209 N.W.2d at of pro language lack ration in the statute Co., 739; Union 454 N.W.2d at Ins. Nick conspicuous in only weigh is and can erson, at 616 N.W.2d allowing of an inference of stack- favor Therefore, according n. 5. to our recovery. ing discussing cases uninsured motorist insur Westphal, 87 S.D. at N.W.2d at ance, is still sound and is Phen Mich, Blakeslee, (quoting 558-559 $25,000 in policy entitled to stack her limit 791). N.W.2d at clear- The Court with Progressive her contract onto the that the ly believed of the statute $25,000 she has received from Financial. Therefore, mandatory. was correctly as- [¶ 16.] As argument mandatory the nature of serts, Legislature the has created several different requires the current anti-stacking statutes since 1973. Howev- is unpersuasive. result er, not these statutes one of addresses our Westphal. This holding example, Court has also addressed in For when $100,000 Legislature the addition of the limit on the enacted the under insured coverage amount of uninsured it provision motorist motorist policies which is into amount the insured could re- automatically written limited the request the insureds additional cover difference of the limits without for to “the recovering injured on the vehicle of the to party person any available one may such limits smaller as he select less accident. 58-11-9.8. SDCL paid by liability the amount insurer Legislature It is clear [¶ 20.] that the the party against.” recovered 1975 Ses- concept stacking is aware of the Laws, sion ch 315-2. The statute has been certain circumstances Legisla- modified but lim- specific language retains specifically prohibited stacking. ture has iting recovery in an amount underin- 58-11-9.8, By enacting SDCL the Legisla- sured motorist claim the “limits on the ture has even far gone codify so as to party vehicle of the recovering less the in Cunningham Court’s decision which paid by insurer of the although held that decision in Court’s party against.” recovered SDCL 58-11- sound, Westphal was would Court not significant 9.5. It paral- is that there is no expand it to allow an insured his to stack lel on limitation under the statu- coverage own uninsured motorist of two tory provisions for uninsured motorist Cunningham vehicles. v. Western Cas. protection. Sur. 90 S.D. Legislature directly Legislature addressed the issue of Had the deter three First, mined that “other may statutes. an insured insurance” clauses not add were their uninsured accord with coverage type motorist their circumstance, underinsured it could motorist to deter- have ad mine the limit of dressed the issue in injured for an one of the numerous person changes one accident. and additions to SDCL 58- the uninsured 11-9.7. underinsured motorist statutes. Legislature has chosen to allow the rule of Next, an may not add stand, and this Court has together the limit of liability for underin- consistently holding noted that sured for two or more of sound. The rely trial court did not err in the insureds vehicles to lim- determine the ing Westphal on to grant summary judg injured available to an per- Furthermore, ment to Phen. to the extent any son for one accident. 58—11— SDCL anti-stacking that the clause attempts 9.9. prohibit collecting the insured from under policy when other uninsured motorist Finally, 19.] pro- [¶ SDCL 58-11-9.8 available, coverage is public also violates together hibits an insured from adding policy.2 limits of for uninsured motorist coverage for two or more of the insureds Legislature clearly limit vehicles determine the public enunciated a policy requiring in- 2. holdings regarding A review of this Court’s This makes this case difficult because essen- underinsured tially accounts it holds that a motorist is better off Progressive’s only belief that being injured by Phen should be an uninsured motorist than up entitled to collect to the amount she bar- an underinsured motorist because he or gained Progressive. However, e.g. for with may coverage. See legis- Union she stack Co., 736; Nickerson, Ins. 454 N.W.2d precedent lative enactments and our since 468; Cunningham, SD 616 N.W.2d Westphal compel this result in an uninsured S.D. 243 N.W.2d 172. This Court has motorist case unless this Court would over- consistently and Westphal disregard held that an insured turn and the absence of a may not stack pro underinsured requirement ration in the uninsured mo- greater amounts than the amount contracted. torist statute. years changes cov- since un- provide Westphal, uninsured motorist surers to A every insured in the state. derinsured motorist statutes and our cases erage to purports regarding to eliminate an the same could lead a reason- policy clause liability under an able insurer to believe that company’s Westphal insurance no this longer violates that provision represented public policy uninsured motorist Indeed, especially This is true policy. state. the trial court even indicat- where, case, com- as insurance ed that he felt the law in this area was “a any liability pany completely escape murky.” question would little Because the applicable whenever there is other whether the exclusion was void was available, debatable, regardless fairly insurance we hold that the trial damages available or the sustained court denied improperly The trial court is affirmed summary judgment the insured. motion on Phen’s on Issue claim of bad faith. THE TRIAL 2. WHETHER GILBERTSON, Justice, [II26.] Chief PROPERLY DENIED

COURT MEIERHENRY, Justice, and concur. PROGRESSIVE’S MOTION FOR ZINTER, [¶ 27.] KONENKAMP SUMMARY JUDGMENT ON Justices, concur result. BAD FAITH. PHEN’S CLAIM OF result). ZINTER, (concurring Justice In order to establish company that an insurance acted in bad agree I controls claim, in denying faith a the insured must appeal, Westphal Pro- invalidates show an absence of a reasonable basis for gressive’s policy prohibit clauses that denial of benefits failure to com [or coverage. I concur in result duty with a under the insurance con ply only part company because I with the knowledge tract] or reckless disre that our Court’s conclusion decisions since of a gard [of lack] reasonable basis to reflect a public policy continue denial. Stene State Farm Mut. Auto. against “anti-stacking” exclusions in unin- Co., Ins. 583 N.W.2d SD policies. my sured motorist insurance (citing Walz v. Fireman’s Fund Ins. view, Progressive correctly points out that (S.D.1996)). An this Court’s more recent decisions reflect a company challenge insurance is entitled to public policy permitting such exclusions as fairly claims which are debatable and will long statutorily required as the minimum only be found liable where it has intention provided. (or ally process pay) denied failed to Nevertheless, I concur result because claim without a reasonable basis. Id. State, Westphal remains the law of this and that invalidates decision The that simple [¶ 25.] fact Pro anti-stacking exclusions. gressive policy a asserted defense is insuf grounds upon genu ficient which to a dispute [¶ find There is no that 29.] “[t]he Legislature clearly public ine issue of material fact as to whether it enunciated a stipulated acted in bad faith. do policy requiring provide The facts insurers to present genuine coverage every not a issue of material motorist in- uninsured ¶ legal question Supra fact but raise a as to wheth in the 22. There- sured state.” that, fore, agree er the facts constitute bad faith. In this I to the extent that Pro- instance, legal question gressive’s exclusionary “purport[] this is a clauses thirty company’s be determined de novo. liabili- the eliminate insurance 60 by the minimum provision,” motorist motorist covered an uninsured

ty under insurance. policy expressed public as they violate Id. Abraham, 90, v. Canal Ins. Co. ¶ 512, (emphasis N.W.2d 519 add 598 However, I with the disagree ed) Family Mut. Ins. (quoting American anti-stacking provi- that conclusion Court’s (S.D. Merrill, Co. v. 454 N.W.2d 559 policy ex- public violate as also sions 1990) v. (quoting Regent Ins. Clark Westphal. since precedent in “our pressed (S.D.1978))). There 29 ¶ the con- 2 and 15. On n. Supra ...” fore, pronounce this Court’s more recent presents a colorable Progressive trary, indicated, in differ specifically ments have expressed in our policy, as public case that contexts, ent that deductions for other anti- Westphal, permits after decisions permitted are uninsured/un- long as as the insured stacking provisions For policies. derinsured motorist exam limits of the minimum cover- provided ple, this stated that these insur Court has age. guaranteed premiums paid ance are for a recovery. “minimum The fact that public policy premi “is not A state’s ums are for the is not the paid static, may change as relevant but conclusive determination that the insured thinking and the factual situation is entitled to the full amount of American Home Assur- change.” times Nickerson, 2000 SD without deduction.” Cohen, F.Supp. 370 ance Co. v. (emphasis at 471 N.W.2d (W.D.Wash.1993) (quoting Brown v. added). point, Cunningham to the More Physicians Corp., 120 County Snohomish to extend declined (1993)). P.2d Wash.2d facts, beyond particular holding its that recognized policy “[t]hat have also We which nothing “we see SDCL 58-11-9 ... by the established trend reflected [is] ” requires stacking of the cover policy of the courts.... the decisions Bartron separate for two vehicles. The in ages 309, 323, 2 County, 68 Codington S.D. exactly got sureds what said (1942). Consequently, 343-44 N.W.2d Id., they would.” S.D. at correctly argues that we must recent reflect- examine our more decisions -Westphal post pro- Under these unin- ing public policy underlying nouncements, Progressive correctly points statutes. sured unin- out that we have not held that the This decisions after Court’s (SDCL 58-11-9) sured that the motor- Westphal reflect uninsured Indeed, requires stacking. there is noth- provide are not intended to ist statutes ing of SDCL 58-11-9 with a full for the amount even the existence of a suggests when that loss exceeds the of actual loss Therefore, requiring stacking. if our statutorily required coverage. Instead public policy require stacking, does not that: more recent decisions indicate argue public policy pro- is difficult to purpose anti-stacking hibits contracts of insurance. insur- provide statutes is to the same we noted Bartron: As party the insured who protection ance to that firmly solemnly Until convinced injured by an uninsured or unknown clearly is re- public policy an existent vealed, motorist that would have been available in ap- a court is not warranted had been under consideration. plying principle [the insured] [the insured] to said, right It “that the of injured negligence as a result of the of a has been well

61 occurred); Nickerson, private part contract is no small of the when the accident citizen, and liberty that the usual 616 N.W.2d 468 (passenger important and most function of courts of not could recover excess UIM benefits justice is rather maintain and to enforce from her insurer already because she had parties than to enable thereto contracts $100,000 recovered a total of from the escape obligation from their on the carrier, and the tortfeasor UIM primary pretext public policy, clearly unless it an amount equaled that the policy limit on appear they public contravene right coverage). her excess UIM or the public welfare.” light In precedent, [¶ 36.] our recent Id., 323, 2 68 S.D. at N.W.2d at (quot- join majority’s I cannot conclusion Baltimore & ing Ry. Ohio Southwestern precedent Westphal “our since compelfs]” Voigt, Co. v. 176 U.S. 20 S.Ct. the conclusion that anti-stacking provisions (1900)). 387, 44 L.Ed. violate policy, supra n. or that any lingering Were there [¶ 34.] doubt “[t]his ... subsequent Court’s decisions” pronouncements about this Court’s current allow the insured to stack coverage. Su- subject, on this Union Ins. Co. held pra contrary, 15. On the were we to that stacking prohibited could be when it review anti-stacking provi- would result in a in excess of the only sions based our upon decisions since statutory amount set forth SDCL 58- Westphal, likely we would most reach a Id., 11-9. N.W.2d at 739-40. This different result. Court noted that a non-aggre- Nevertheless, I concur in result gation (anti-stacking) could be clause con- strength because of the and breadth of the determining sidered in that Union’s limits Westphal language, legisla- the substantial liability statutory did not exceed the activity tive restricting stacking closely amount. Id. at n. 3. This Court reasoned related not restricting while it in areas that a clause limiting liability to the statu- scenarios, Westphal and the fact that the tory required by amount uninsured motor- Legislature abrogate has failed to West- permitted ist statutes was because it satis- phal despite its active involvement in this legislative policy expressed fied the in the area for thirty years. at statute. Id. 739-40. view, Thus, my analysis Pro- a number of our decisions gressive’s anti-stacking begins clauses upheld

after have anti-stacking Westphal. Initially, ends with must provisions, and be none have concluded that Westphal’s analysis noted that anti-stacking provisions violate was not re- public poli- Id.; to a cy. Cunningham, see also at stricted review of “other insurance” 90 S.D. at clauses. (plaintiffs The clause construed included could not stack “other “anti-stacking” the uninsured motorist limits of insurance” and con- one vehicle onto the limits of the vehicle in That cepts.3 conclusion is evident from actually which their were riding decedents holding: insurance, Westphal provision 3. The primary stated: such automobile as only apply this insurance shall then respect bodily Other Insurance: With in the injury occupying liability to an insured while which the limit of principal automobile not owned applicable exceeds the limit of insured, named the insurance under this such other insurance. only apply endorsement shall as excess in- Id., (em- 87 S.D. at surance over other similar insurance added). phasis applicable available to such insured and Id., provisions, ‘other insurance’ at [T]hat S.D. 209 N.W.2d at 557-58. Westphal also observed that: rata,’ ‘pro whether in the form insurance,’ ‘excess ‘excess-escape,’ or Nowhere in legis- the statute does the clause, other similar are invalid as a attempt any lature to fix maximum part of protection, on amount of less than the amount ground requiring pro of the loss. The lack ration every liability policy provide type language conspicuous in the statute is only weigh and can an protection permit will not the insurer favor of infer- allowing stacking ence recovery. provide any way that the apply will not where other insurance is Id., at S.D. at 559 ‘available,’ also despite fact that the added). (emphasis may insured be in a put thus better Although pronouncements [¶ 40.] these position than he would be in if the other are in direct conflict with this Court’s motorist were properly insured. precedent, more "recent Westphal’s funda- precepts mental have abrogated not been Westphal, 87 S.D. 209 N.W.2d at despite thirty years legislative activity added). (emphasis restricting stacking in this area. Conse- Thus, language this broad of quently, changed by Legislature, until Westphal applies Progres- to both of the State, remains the law of the Moreover, sive clauses. were there its broad Progres- invalidates question strength about the of that hold- sive’s “other insurance” and “anti-stack- ing” provisions. ing, must be remembered that it has repeatedly been Supra reaffirmed. I therefore concur in result on It finally must be remembered that West- Issue and concur on Issue 2. phal rejects the rule advocated here; by Progressive i.e. the notion: KONENKAMP, Justice, joins design purpose [T]hat of unin- special writing.

sured motorist statutes are to provide protection only up to the minimum stat-

utory bodily injuries, limits for and not

to provide the insured with greater in- protection

surance than would have been injured available had he been motorist, and have held that such ‘other provisions insurance’ val- are they id where do not reduce below the minimum statutory limits.

Case Details

Case Name: Phen v. Progressive Northern Insurance Co.

Court Name: South Dakota Supreme Court

Date Published: Nov 12, 2003

Citation: 672 N.W.2d 52

Docket Number: None

Court Abbreviation: S.D.