Herring v. Lumbermen's Mut. Cas. Co., 17958-PR

• Decision Date: 27 March 1985
• Docket Number: No. 17958-PR,17958-PR
• Citation: 697 P.2d 337,144 Ariz. 254
• Parties: Paulette HERRING, Conservator of the Estates of Jerry Craig Herring and Troy Lynn Herring, Minors; and Carol Kirkendall, Conservator of the Estate of Tamara Herring, a Minor, Plaintiffs-Appellants, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, an Illinois corporation, Defendant-Appellee.
• Court: Arizona Supreme Court

Page 337

697 P.2d 337

144 Ariz. 254

Paulette HERRING, Conservator of the Estates of Jerry Craig Herring and Troy Lynn Herring, Minors; and Carol Kirkendall, Conservator of the Estate of Tamara Herring, a Minor, Plaintiffs-Appellants, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, an Illinois corporation, Defendant-Appellee.

No. 17958-PR.

Supreme Court of Arizona, In Banc.

March 27, 1985.

Fred J. Pain, Jr., Phoenix, for plaintiffs-appellants.

Jones, Skelton & Hochuli by Edward G. Hochuli, Phoenix, for defendant-appellee.

FELDMAN, Justice.

We accepted this petition for review to consider a memorandum decision of the court of appeals on an issue of first impression regarding uninsured motorist coverage. See Rule 23(c), Ariz.R.Civ.App.P., 17A A.R.S.

Petitioners are the conservators for three minor children of Jerry Herring, who was killed in an automobile accident which occurred July 31, 1979. The inebriated tortfeasor who was responsible for the accident was insured by Dairyland Mutual Insurance Company under a policy containing the minimum limits required by Arizona's financial responsibility law. That law provides that every "automobile liability policy" contain coverage in an amount

"... not less than fifteen thousand dollars because of bodily injury to or death of one person in any one accident and ... to a limit of not less than thirty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and, ... to a limit of not less than ten thousand dollars because of injury to or destruction of property of others in any one accident."

A.R.S. § 28-1142(C).

Dairyland paid its limit of $15,000, and those proceeds were divided equally among the three surviving children, each of whom was an appropriate beneficiary of the action for wrongful death. A.R.S. § 12-612. Thus, each child received $5,000 in damages.

At the time of his death the father was the owner of an automobile and was covered by his own policy of insurance. That policy was issued by the respondent, Lumbermen's Mutual Casualty Company (Lumbermen's). As required by A.R.S. § 20-259.01, the policy contained uninsured motorist coverage. The version of the statute in effect at the time of the accident stated that such coverage should be in the limits provided by § 28-1142, and was intended

... for the protection of persons insured ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.

A.R.S. § 20-259.01(A).

Each of the minor children is a family member who meets the definition of an "insured" under the Lumbermen's policy. Pointing out that each of the minors received only $5,000 while the minimum coverage limit required by the financial responsibility laws ¹ is $15,000, the conservators argue that each child has a claim for $10,000 against the uninsured motorist coverage provided by Lumbermen's. The court of appeals held that the statutes could not be so construed. We agree.

The issue presented is whether the financial responsibility laws should be construed to provide only minimum coverage for each actual "victim" ² of an accident, or to provide such coverage for each person who may have a claim for damages because of the injury sustained by the victim.

Petitioners contend that the case is governed by Porter v. Empire Fire and Marine Insurance Company, 106 Ariz. 274, 475 P.2d 258 (1970). In Porter several persons had been injured in an automobile accident. Because the tortfeasor had minimum coverage, each of the injured victims received only a pro rata share ($2,500) of the insurance available from the tortfeasor's insurance carrier. The question was whether Porter, a victim actually injured in the accident, could recover from his uninsured motorist coverage the difference between his pro rata share of the available liability insurance and the minimum limit of the mandatory insurance coverage. Empire argued that Porter could not do so because the tortfeasor was actually insured and would not, therefore, qualify as an "uninsured motorist." We disagreed, and held that Porter could recover the difference between his actual recovery from the tortfeasor's liability coverage and the minimum coverage amount required by the financial responsibility law. To the extent the tortfeasor's policy did not make available to each claimant the minimum amounts required by A.R.S. § 28-1142, we held that the insured tortfeasor was "uninsured" and each claimant therefore was entitled to proceed against his or her uninsured motorist coverage. Id. at 279, 475 P.2d at 263.

We do not retreat from Porter, but we do not believe that it governs the present situation. In Porter, the claimant was a victim, actually injured in the accident. In the case at bench, the minimum amount guaranteed by the financial responsibility law was available to the victim, Jerry Herring. That amount has been paid. Thus, the question here is not whether minimum coverage was available for each victim injured or killed in the accident, but whether each of several beneficiaries of the claim for injury or death of a single victim is entitled to look to uninsured motorist coverage for a guarantee of recovery up to the minimum amount....