Kromrei v. AID Ins. Co. (Mut.), 15838

• Citation: 716 P.2d 1321,110 Idaho 549
• Decision Date: 29 January 1986
• Docket Number: No. 15838,15838
• Parties: Stanley G. KROMREI, Plaintiff-Appellant, v. AID INSURANCE COMPANY (MUTUAL), Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 1321

716 P.2d 1321

110 Idaho 549

Stanley G. KROMREI, Plaintiff-Appellant, v. AID INSURANCE COMPANY (MUTUAL), Defendant-Respondent.

No. 15838.

Supreme Court of Idaho.

Jan. 29, 1986.

Rehearing Denied April 23, 1986.

Terry C. Copple of Davison, Copple, Copple & Copple, Boise, for plaintiff-appellant.

Peter J. Boyd, Todd J. Wilcox, and Robert M. Tyler, Jr. of Elam, Burke & Boyd, Boise, for defendant-respondent.

DONALDSON, Chief Justice.

Stanley Kromrei initiated this action seeking to recover damages from AID Insurance Company pursuant to his comprehensive liability insurance policy. The district court granted summary judgment in favor of AID and Kromrei appeals.

On February 1, 1982, Kromrei purchased a business auto insurance policy from AID Insurance Company insuring three specified vehicles. Three months later, on April 30, 1982, Kromrei's sixteen-year-old son was killed in an automobile collision while riding as a passenger in an automobile driven by one Flo Gregory. The accident occurred as a result of Gregory's negligence. Two other passengers in Gregory's vehicle were killed in the accident and the driver of the other vehicle involved was seriously injured.

Shortly thereafter, litigation was instituted against Gregory for negligently causing the death of Kevin Kromrei and the other two passengers in her vehicle and for compensation for the injuries suffered by the driver of the other vehicle. Gregory carried liability insurance through Farmer's Insurance Company with a $50,000.00 per accident limit. Farmer's interplead its policy limit into court. All of the claimants settled their claims against Gregory by equally dividing the insurance proceeds, resulting in a $14,174.81 settlement to Kromrei.

Kromrei then initiated this action in an attempt to recover additional damages pursuant to the uninsured motorist coverage in the AID policy. Both parties moved for summary judgment.

Kromrei's policy defined an uninsured motor vehicle to include a land motor vehicle "b. For which the sum of all liability bonds or policies at the time of an accident provides at least the amounts required by the applicable law where a covered auto is principally garaged but their limits are less than the limit of this insurance...." (Emphasis added.)

Thus, to come within the scope of the uninsured motorist endorsement, the limit of liability on Gregory's insurance would have to be less than the limit of Kromrei's uninsured motorist coverage. Gregory's insurance contained a $50,000 per accident limit. Kromrei's insurance provided for $20,000 of uninsured coverage for each of the three insured vehicles. Therefore, the only way that Kromrei could recover under the uninsured motorist provision of his policy was if the policy contained three $20,000 coverages which could be combined for a total coverage of $60,000.

The district court refused to allow Kromrei to stack his coverage and granted AID's motion for summary judgment. The court based its decision on three factors: (1) The insurance policy expressly limited uninsured motorist coverage to $20,000 per accident regardless of the number of vehicles insured. (2) Kromrei was charged a reduced premium for the second and third vehicles due to the decreased risk that all three vehicles would be on the road at the same time. (3) The Idaho uninsured motorist statutes did not appear to mandate a different result. Kromrei appeals from that decision.

Because we agree with the district court that the language of the insurance policy at issue expressly limited coverage to $20,000 per accident regardless of the number of vehicles insured, we hold that summary judgment was proper in this case. We find it unnecessary to address the so-called stacking question in regard to the premium structure of the insurance policy or the provisions of the Idaho uninsured motorist statute as we agree with the district court that the insurance policy, on its face, contained only one $20,000 coverage.

This case was before the district court on cross-motions for summary judgment based on the same set of facts. Summary judgment is appropriate only when there is no genuine issue as to any material fact. I.R.C.P. 56(c). The mere fact that both parties move for summary judgment does not in and of itself establish that there is no genuine issue of material fact. Casey v. Highlands Ins. Co., 100 Idaho 505, 507, 600 P.2d 1387, 1389 (1979). However, where, as in the present case, both parties have moved for summary judgment based upon the same evidentiary facts and the same issues and theories, they have effectively stipulated that there is no genuine issue of material fact and summary judgment is therefor appropriate. Bob Daniels and Sons v. Weaver, 106 Idaho 535, 540, 681 P.2d 1010, 1015 (Ct.App.1984); Riverside Development Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982).

The issue on appeal is the same issue that was before the district court: whether there were three uninsured motorist coverages under Kromrei's policy merely because three vehicles were insured thereunder. This Court has long recognized that insurance policies are contracts of adhesion, not subject to negotiation between the parties, and that any ambiguity must be construed most strongly against the insurer. Moss v. Mid-America Fire and Marine Ins., 103 Idaho 298, 300, 647 P.2d 754, 756 (1982). However, where the policy language is clear and unambiguous, there is no occasion for construction and coverage must be determined according to the plain meaning of the words employed. Ryan v. Mountain States Helicopter, Inc., 107 Idaho 150, 153, 686 P.2d 95, 98 (Ct.App.1984); Casey v. Highlands Ins. Co., 100 Idaho at 509, 600 P.2d at 1391.

"It is the function of the Court to construe a contract of insurance as it is written, and the Court by construction cannot create a liability not assumed by the insurer, nor make a new contract for the parties, or one different from that plainly intended, nor add words to the contract of insurance to either create or avoid liability." Unigard Ins. Group v. Royal Globe, Etc., 100 Idaho 123, 128, 594 P.2d 633, (1979) (quoting Miller v. World Ins. Co., 76 Idaho 355, 357, 283 P.2d 581, 582 (1955) ).

Given its plain and ordinary meaning, the policy here at issue specifically provides that regardless of the number of covered vehicles, the total amount of uninsured motorist coverage for a single accident is limited to $20,000.

The declaration section on the first page of the policy states that $20,000 is the total amount of uninsured motorist coverage for any one accident or loss. In addition, the limit of liability clause in the uninsured motorist endorsement of the policy expressly provides as follows:

"E. OUR LIMIT OF LIABILITY.

"1. Regardless of the number of covered autos, insureds, claims made or vehicles involved in the accident, the most we will pay for all damages resulting from any one accident is the limit of UNINSURED MOTORIST INSURANCE shown in the declarations," (emphasis ours).

We agree with the district court that the plain language of the insurance contract prohibits stacking. The policy specifically provides that Kromrei was entitled to only $20,000 in uninsured motorist coverage regardless of the number of covered vehicles.

Accordingly, the decision of the district court is affirmed.

Costs to respondent.

No attorney fees on appeal.

SHEPARD, BAKES and HUNTLEY, JJ., concur.

BISTLINE, Justice, dissenting.

The majority confines itself to deciding whether Mr. Kromrei's insurance policy precludes the stacking of such policies. In so doing, the majority refuses to review one of the grounds upon which the district court relied in reaching its decision--that Idaho's uninsured motorist statute does not mandate allowing insured individuals the option of stacking their policies if they so choose. The majority also argues that Mr. Kromrei's insurance policy precludes the stacking of policies. Because the majority refuses to decide the most critical issue here--whether Idaho law invalidates purported anti-stacking provisions in insurance policies--and also because the majority incorrectly interprets a most ambiguous statement regarding insurance coverage as prohibiting any stacking, I dissent.

I.

I.C. § 41-2502 requires each automobile insurance policy to include uninsured motorist protection. The intent of the legislation is to protect the injured person. Id. It should not be gainsaid then, that any attempt to negate that requirement and intent is invalid, being in violation of law. Whitney v. Continental Life and Accident Company, 89 Idaho 96, 104-05, 403 P.2d 573, 579 (1965) ("If a contract is void as against public policy, the court will refuse to enforce it and will leave the parties in the identical situation in which it finds them...." ); Worlton v. Davis, 73 Idaho 217, 222-23, 249 P.2d 810, 814 (1952).

Preventing people from stacking their insurance policies violates the intent of I.C. § 41-2502. The facts of this case clearly reveal why this is so: At the time of the accident, Idaho law required uninsured motorist protection in the amount of $20,000.00. See I.C. § 49-1521. The insurance policy of the tort-feasor provided $50,000.00 of coverage. This amount was divided up among the various injured parties, with Mr. Kromrei receiving $14,174.81. The Aid Insurance Company argues, and the majority agrees, that that is all Mr. Kromrei is entitled to, even though that amount is almost $6,000.00 below the statutory amount the legislature thought people were entitled to receive when the tortfeasor is uninsured. The fact that the tortfeasor's overall policy provides an amount larger than Mr. Kromrei's policy is of little consolation or benefit to him. The $14,1174.81 simply has not "protected" him as I.C. §§ 41-2502 and 49-1521 intended that he be protected. Allowing stacking would permit insured individuals to receive this statutory amount at a minimum, and further protect themselves...