Botting v. Allstate Ins. Co.
| Decision Date | 25 March 1998 |
| Parties | Kenneth BOTTING et al. v. ALLSTATE INSURANCE CO. |
| Court | Maine Supreme Court |
Robert H. Furbish (orally), Terence D. Garmey, Smith Elliott Smith & Garmey, P.A., Portland, for plaintiffs.
James D. Poliquin (orally), Norman, Hanson & DeTroy, Portland, for defendant.
Before ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
¶1 Allstate Insurance Co. appeals from the judgment entered in the Superior Court (Cumberland County, Saufley, J.) awarding the plaintiffs (the Bottings) $205,000 on Allstate's underinsured motorist coverage. In this case of first impression, Allstate contends that the court erred when it determined that the tortfeasor was underinsured. The Bottings cross-appeal, arguing that the court erred by denying them prejudgment interest. We affirm the judgment in part and vacate in part.
¶2 In August 1994 the Bottings' car was struck by a car owned and insured by Ronald and Barbara Hill. The Hills' minor son (the tortfeasor) was driving their car. All three occupants of the Bottings' car--Kenneth; his wife, Valinda; and their daughter, Katlin--were injured. At the time of the accident, the Bottings were insured by an Allstate automobile insurance policy that provided "split limit" uninsured bodily insurance coverage in the amount of $100,000 per person and $300,000 per accident. The per accident limit is the "total limit for all damages arising out of bodily injury to two or more persons in any one motor vehicle accident." The coverage is also subject to a limit of $100,000 per person. The tortfeasor was insured for liability by Peerless Insurance Company with a single $100,000 limit for bodily injury and property damage.
¶3 The Bottings settled with Peerless for the full amount of the $100,000 coverage: $35,000 to Kenneth Botting, $20,000 to Valinda Botting, $40,000 to Katlin Botting, and $5,000 for damage to the car presumably paid to Kenneth Botting. The Bottings then sought recovery in the Superior Court of underinsured motorist benefits pursuant to the automobile policy with Allstate. Allstate filed a motion for a summary judgment, arguing that the tortfeasor was not underinsured. Finding that the tortfeasor was underinsured, the court denied Allstate's motion and ordered it to pay $65,000 to Kenneth Botting, $80,000 to Valinda Botting, and $60,000 to Katlin Botting. The court denied prejudgment interest. This appeal and cross-appeal followed.
¶4 Maine's underinsured motorist statute requires coverage in every motor vehicle liability policy to protect persons insured pursuant to the policy from personal injury caused by an uninsured, underinsured, or hit-and-run motor vehicle operator. 24-A M.R.S.A. § 2902(1) (1990). The statute defines underinsured motor vehicle as follows:
For the purposes of this section, "underinsured motor vehicle" means a vehicle for which coverage is provided, but in amounts less than the minimum limits for bodily injury liability insurance provided for under the motorist's financial responsibility laws of this State or less than the limits of the injured party's uninsured vehicle coverage.
Id. Because the Bottings purchased a split limit policy, and all three of them were injured, they contend that the Allstate per accident limit of $300,000 should be compared to the tortfeasor's single limit of $100,000. Based on that comparison, they argue, the tortfeasor was underinsured. Allstate in turn contends that the correct analysis is to compare the Bottings' single person limit of $100,000 with the tortfeasor's limit of $100,000. By that comparison, Allstate argues, the tortfeasor was not underinsured regardless of the number of persons injured, citing Mullen v. Liberty Mut. Ins. Co., 589 A.2d 1275 (Me.1991), and McGillivray v. Royal Ins. Co., 675 A.2d 524 (Me.1996).
¶5 Contrary to Allstate's contention, this case is not controlled by our decisions in Mullen or McGillivray. In Mullen we were asked to determine a tortfeasor's status as "underinsured" by comparing the underinsured motorist coverage available to her with her actual recovery from the tortfeasor rather than the liability coverage provided under the tortfeasor's policy. We declined to do so, concluding that the statute required comparison of coverage with coverage to determine the underinsured status of...
To continue reading
Request your trial
-
Spring v. Board of Trustees of Maine Public Employees Retirement System
... ... v. St. Paul Fire and Marine Ins. Co et al, 436 F.3d 277, ... 279 n.1 (1 st Cir. 2006) (citing Prosser & ... Keeton ... ...
- Spring v. Bd. of Trustees of Me. Pub. Employees Ret. Sys.
-
Dusharm v. Nationwide Ins. Co.
...accident, the per accident limitation is the key provision for determining whether a vehicle is underinsured. See Botting v. Allstate Ins. Co., 707 A.2d 1319, 1321 (Me. 1998); Erie Ins. Co. v. Thompson, 330 Md. 530, 625 A.2d 322, 325 (1993) (quoting Waters v. United States Fidelity & Guar. ......
-
Saucier v. Allstate Ins. Co.
...against the tortfeasor and the tortfeasor's insurance company paid the per person policy limit to that party. In Botting v. Allstate Ins. Co., 1998 ME 58, 707 A.2d 1319, in which the tortfeasor had a per accident limit of $100,000 and the injured insureds had a per accident limit of $300,00......