Opinion
No. 5-216 / 04-0638
Filed June 15, 2005
Appeal from the Iowa District Court for Clay County, Patrick M. Carr, Judge.
A plaintiff appeals from a district court ruling that denied his motion for partial summary judgment, and granted summary judgment to the defendant. AFFIRMED.
Michael Zenor of Zenor, Houchins Borth, Spencer, for appellant.
John Gray and Joel Vos of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra Prahl, LLP, Sioux City, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Plaintiff Greg Sindt appeals from a district court ruling that denied his motion for partial summary judgment and granted summary judgment to defendant Progressive Northern Insurance Co. (Progressive), dismissing Sindt's claim for underinsured motorist benefits. We affirm the district court.
I. Background Facts and Proceedings.
The undisputed facts before the district court reveal the following. Greg and John Sindt are the adult sons of Sharon Van Vickle, who was killed in a motor vehicle accident in Iowa on March 31, 2001. Van Vickle was a passenger in a vehicle being driven by her husband. Another vehicle, driven by Eileen Rogness, ran a stop sign and struck the Van Vickle vehicle. Van Vickle died as a result of her injuries.
Van Vickle's estate reached a settlement with Rogness and her insurance carrier, State Farm Mutual Automobile Insurance Company (State Farm), for the estate's wrongful death claim and for the loss of consortium claims of Van Vickle's husband and sons. The estate received $100,000 from State Farm, the limit under Rogness's policy, and an additional $10,000 from Rogness. From this settlement Greg and John Sindt each received $6,094.97 in compensation for a loss of consortium claim.
Greg Sindt then filed suit against Progressive, which had issued Sindt an automobile insurance policy in February 2001, while Sindt was a resident of the State of Nebraska. Sindt asserted his consortium damages exceeded the limit of the State Farm policy and Rogness's individual settlement by more than the "un[der]insured" motorist limit of his policy with Progressive, and sought judgment in the amount of his policy limit. The underinsured motorist policy provision obligated Progressive to pay for damages, other than punitive or exemplary damages, which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury:
Sindt currently resides in Iowa.
As part of this same action John Sindt made a claim against his insurer, United Fire Casualty Co., to recover the limit of the uninsured motorist provision in his policy. This claim has been resolved and is not at issue on appeal.
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance, or use of an underinsured motor vehicle.
Progressive filed a motion for summary judgment, asserting it had no obligation to pay underinsured motorist benefits. Progressive noted that the policy definition of "bodily injury" did not encompass loss of consortium, and that the only bodily injury suffered in this case was incurred by Van Vickle, who was not an insured person under Sindt's policy.
"Bodily injury" was defined in the policy as "bodily harm, sickness, or disease, including death that results from bodily harm, sickness, or disease."
Sindt responded by filing a motion for partial summary judgment, asserting that Progressive was required to provide underinsured coverage for his loss of consortium claim. He relied on the following policy language, which appeared under a section entitled "Terms of Policy Conformed to Statutes":
If any provision of this policy fails to conform with the legal requirements of [Nebraska], the provision shall be deemed amended to conform with such legal requirements. . . . Any disputes as to the coverages provided or the provisions of this policy shall be governed by the law of [Nebraska].
Sindt contended that under Nebraska law insurance companies were required to provide underinsured motorist coverage for loss of consortium claims, even where the injured party was not an insured under the policy.
Both motions came before the district court in November 2003. The parties agreed that the express policy provisions did not provide coverage for Sindt's loss of consortium claim, because the damages he sought to recover were the result of bodily injury sustained by his mother, who was not a named insured. The parties also agreed that Nebraska law governed the dispute, and that the policy was required to conform with Nebraska law. They disagreed, however, as to whether Nebraska law in fact required Progressive to provide underinsured motorist coverage for Sindt's claim.
After reviewing both statutory and case law, from Nebraska as well as other jurisdictions, the court granted Progressive summary judgment, and denied Sindt's partial summary judgment request. The court noted Nebraska Revised Statute section 44-6408 (2001) required insurers to provide underinsured motorist coverage for "compensatory damages for bodily injury [or death]," and agreed with Progressive that this contemplated injury to an insured.
Sindt appeals. He contends the district court erred in concluding that Nebraska law does not require coverage for loss of consortium claims arising from the death of one other than an insured person under the policy.
II. Scope and Standards of Review.
We review the district court's summary judgment rulings for the correction of errors at law. Iowa R. App. P. 6.4; Grinnell Mut. Reins. Co. v. Jungling, 654 N.W.2d 530, 535 (Iowa 2002). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Grinnell Mut. Reins. Co., 654 N.W.2d at 535. Where, as here, the parties agree that all material facts are undisputed, and the case presents solely legal issues, summary judgment is the appropriate remedy. Burton v. University of Iowa Hosps. Clinics, 566 N.W.2d 182, 185 (Iowa 1997).
III. Discussion.
This appeal turns upon the requirements of Nebraska Revised Statute section 44-6408. It is clear under the undisputed facts that Sindt's policy does not provide coverage for his loss of consortium claim, and that unless such coverage is required by section 44-6408, Sindt's action against Progressive cannot stand. Section 44-6408 provides, in relevant part:
No policy insuring against liability imposed by law for bodily injury, sickness, disease, or death suffered by a natural person arising out of the ownership, operation, maintenance, or use of a motor vehicle within the United States . . . shall be delivered . . . with respect to any motor vehicle principally garaged in this state unless coverage is provided for the protection of persons insured who are legally entitled to recover compensatory damages for bodily injury, sickness, disease, or death from . . . the owner or operator of an [uninsured or] underinsured motor vehicle in limits of twenty-five thousand dollars because of bodily injury, sickness, disease, or death of one person in any one accident and, subject to such limit for one person, fifty thousand dollars because of bodily injury, sickness, disease, or death of two or more persons in one accident.
Neb. Rev. Stat. § 44-6408(1) (emphasis added).
In support of his claim that section 44-6408 requires Progressive to provide coverage for his loss of consortium claim, Sindt relies on what appears to be the only Nebraska case to speak to the issue, State Farm Mutual Automobile Insurance Co. v. Selders, 190 N.W.2d 789 (Neb. 1971). In that case, the Nebraska supreme court was required to determine whether damages sustained by a father due to the death of his children were covered by the uninsured motorist provision of the father's insurance policy. Selders, 190 N.W.2d at 791. After noting that the plain language of the policy tended "to limit recovery for bodily injury to injuries sustained by one insured," the court turned to the version of Nebraska's uninsured motorist statute then in effect, Nebraska Revised Statute section 60-509.01 (1943). Id. at 792.
Section 60-509.01, which was repealed in 1994, see L.B. 1074, 93rd Leg., 2nd Sess. (Neb. 1994), required uninsured motorist coverage "for the protection of persons insured . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom." (Emphasis added). The court concluded this provision "provides not only for recovery for Injuries sustained by an insured but also for the recovery of other consequential damages which an insured is legally entitled to recover from an uninsured motorist." Selders, 190 N.W.2d at 792.
Sindt asserts that Nebraska's current underinsured motorist statute is entitled to the same interpretation. However, as Progressive notes, the language of section 44-6408 is distinctly different from that of former section 60.509.01. Former section 60.509.01 required coverage of damages an insured person was entitled to recover "because of bodily injury [or] . . . death." In contrast, section 44-6408 requires coverage of compensatory damages an insured person is entitled to recover "for bodily injury . . . or death . . . in limits of twenty-five thousand dollars because of bodily injury, sickness, disease, or death of one person in any one accident. . . ."
Although Sindt urges us to focus solely upon the "because of" language that remains in section 44-6408, we must interpret the section as a whole, and give effect to every part. See Omaha Pub. Power Dist. v. Nebraska Dep't of Revenue, 537 N.W.2d 312, 317 (Neb. 1995). When we do so, we conclude, as did the district court, that the inclusion of the "for" language indicates section 44-6408 does require underinsured motorist coverage only for the bodily injury, sickness, disease, or death of an insured.
This interpretation is consistent with the purpose of Nebraska's Uninsured and Underinsured Motorist Insurance Coverage Act, which is to give the same protection to a person injured by an uninsured or underinsured motorist as the person would have if he or she had been injured in an accident caused by an automobile covered by a standard liability policy.
In 1994 the Nebraska Unicameral enacted the Uninsured and Underinsured Motorist Insurance Coverage Act, which substantially amended the uninsured and underinsured motorists provisions in effect at the time of the decision in Selders. See L.B. 1074.
Hood v. AAA Motor Club Ins. Ass'n, 607 N.W.2d 814, 818 (Neb. 2000) (emphasis added). When we look to the remainder of the act we are further convinced that our interpretation of section 44-6408 is correct. See Mogensen v. Board of Supervisors, 679 N.W.2d 413, 418 (Neb. 2004) ("[A] court will construe statutes relating to the same subject matter together so as to maintain a consistent and sensible scheme.").
An uninsured motor vehicle is defined, in part, as a vehicle for which "[t]he owner or operator is unknown and bodily injury, sickness, disease, or death of an insured results from actual physical contact between such motor vehicle and the insured or a motor vehicle occupied by the insured. . . ." Neb. Rev. Stat. § 44-6405(3) (emphasis added). An underinsured motor vehicle is similarly defined as a motor vehicle upon which there is a qualifying liability policy, but for which the available amount of that insurance is "less than the damages for bodily injury, sickness, disease, or death sustained by the insured. . . ." Id. § 44-6406 (emphasis added). Finally, an insurer's maximum liability for uninsured or underinsured motorist coverage is the amount of damages for bodily injury, sickness, disease, or death sustained by the insured less the amount paid to the insured by or for any person or organization which may be held legally liable for the bodily injury, sickness, disease, or death. . . .
Id. § 44-6409 (emphasis added).
Given all the foregoing, we are convinced the Nebraska legislature did not intend the current and controlling underinsured motorist provision to mandate coverage for losses incurred by an insured merely because the injured party happens to be a relative for whose injury the insured is entitled to recover damages. In fact, it appears that there is only one state which interprets its uninsured and/or underinsured motorist statutes to allow recovery by an insured for an injury to one who was not an insured under the policy; that state is Iowa. See Gloe v. Iowa Mut. Ins. Co., 694 N.W.2d 238, 247 (S.D. 2005) (noting that the legislatures of the other three states which had similarly ruled — Ohio, Maryland, and Nebraska — had "corrected each court's interpretation and clarified that such coverage was not intended").
Progressive points out that section 44-6408 requires coverage only for compensatory damages, and asserts that the damages in this case are consequential. Given the definitions of the two terms, see Black's Law Dictionary 416 (8th ed. 2004), we tend to agree. However, in light of the remainder of our decision, we need not determine whether Nebraska would define loss of consortium damages as consequential rather than compensatory. Nor need we address Progressive's claim that Sindt is not legally entitled to damages for loss of parental consortium resulting from the death of the parent, even though Nebraska's wrongful death statute arguably authorizes such a claim. See Neb. Rev. Stat. §§ 30-809, 30-810 (2001).
In Hinners v. Pekin Insurance Co., 431 N.W.2d 345 (Iowa 1988), our supreme court interpreted Iowa's underinsured motorist statute, Iowa Code section 516A.1 (1985), which requires coverage for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or a hit-and-run motor vehicle or an underinsured motor vehicle because of bodily injury, sickness, or disease, including death resulting therefrom. . . .
The court concluded that "bodily injury" was not limited to injury to the insured person, but also included bodily injury to another person if that injury caused damage to the insured person. Hinners, 431 N.W.2d at 347. This would include a loss-of-consortium claim, which seeks to recover damages arising out of bodily injury or death. See id.
However, there is a distinct difference between Iowa's statute, and that which is currently in effect in Nebraska. Our statute, like the Nebraska statute in effect at the time of the Selders decision, requires coverage for "damages . . . because of bodily injury . . . or death resulting therefrom." Compare Iowa Code § 516A.1 (2003) with Neb. Rev. Stat. § 60-509.01 (1943). As we have previously noted, the current Nebraska statute requires coverage of "damages for bodily injury . . . or death." Neb. Rev. Stat. § 44-6408 (2001). We agree with the district court that this indicates a legislative intent to require coverage only for damages arising from injury to the insured.
IV. Conclusion.
Sindt's policy did not provide coverage for his loss of consortium claim, nor is such coverage required under Nebraska law. Accordingly, the district court properly granted Progressive summary judgment, and correctly denied Sindt's request for partial summary judgment. The court's decision is affirmed.