MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 141
Docket: Cum-16-408
Argued: April 12, 2017
Decided: June 29, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HJELM, JJ.
Dissent: JABAR, J.
MATTHEW J. WALLACE et al.
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
MEAD, J.
[¶1] Matthew J. Wallace and Freja Folce1 appeal from a summary
judgment entered by the Superior Court (Cumberland County, Mills, J.) in favor
of State Farm Mutual Automobile Insurance Company on their complaint
seeking underinsured motorist (UM) payments from two policies issued by
State Farm. The plaintiffs contend that the court erred in finding that the
tortfeasor who injured them in a motor vehicle accident was not an
underinsured driver pursuant to Maine’s UM statute, and therefore there was
no gap in coverage requiring State Farm to pay UM benefits. We affirm the
judgment.
1
Freja Folce appears individually and as next friend of Zoe Folce.
2
I. FACTS AND PROCEDURE
[¶2] For the purpose of deciding their respective motions for summary
judgment, the parties stipulated to the following facts. On September 29, 2011,
Matthew Wallace was driving south on Route 26 in Woodstock; Freja Folce and
her minor daughter Zoe were passengers in the vehicle. Corey Hill, who was
driving in the opposite direction in a vehicle owned by his employer, Twin Pines
Construction, Inc., lost control while attempting to pass another vehicle,
crossed the centerline, and collided with Wallace’s vehicle. The accident was
caused by Hill’s negligence.
[¶3] Hill was acting in the course and scope of his employment when the
accident occurred. His Twin Pines vehicle was insured under a Safety
Insurance Company policy that provided liability coverage of $50,000 per
person and $100,000 per accident. Twin Pines was also insured under an
excess policy issued by Alterra Excess Surplus Insurance Company providing
$2,000,000 in excess commercial auto liability coverage; however, the Alterra
policy required Twin Pines to maintain $1,000,000 in primary coverage, and
provided that Alterra was liable only “to the extent that it would have been held
liable had the insured complied” with that requirement. The policies issued to
3
Twin Pines by Safety and Alterra were the only policies providing coverage to
Twin Pines and Hill for the accident.
[¶4] The plaintiffs were insured under a State Farm policy covering their
vehicle; that policy provided UM coverage of $100,000 per person and
$300,000 per accident. Wallace was also insured under a separate State Farm
policy covering a different vehicle with the same UM coverage limits.
[¶5] In August 2013, the plaintiffs filed complaints, which were later
consolidated, against Twin Pines, Hill, and State Farm. After the plaintiffs
settled with Twin Pines, Alterra paid its excess policy limits—$1,000,000 to
Wallace and $1,000,000 to Freja Folce. Safety also paid its policy limits—
$50,000 to Freja Folce and $50,000 for the benefit of Zoe. All claims against
defendants other than State Farm were then dismissed with prejudice.
[¶6] The plaintiffs and State Farm agreed for purposes of summary
judgment that the plaintiffs’ aggregate damages exceeded $100,000—the per
accident limit of Safety’s primary policy—which would entitle the plaintiffs to
UM benefits under the State Farm policies if State Farm were liable to pay
UM benefits. The parties agreed to resolve the legal issue of State Farm’s
liability by summary judgment.
4
[¶7] In May 2016, State Farm moved for summary judgment and the
plaintiffs moved for partial summary judgment. By order dated August 8, 2016,
the court denied the plaintiffs’ motion and entered summary judgment for State
Farm upon finding that “Defendant Hill was not an underinsured driver” at the
time of the accident and therefore “State Farm is not required to pay.” The
plaintiffs appealed.
II. DISCUSSION
[¶8] Using the stipulated facts, we review the court’s entry of summary
judgment for State Farm de novo as a question of law. Estate of Barron v.
Shapiro & Morley, LLC, 2017 ME 51, ¶ 12, 157 A.3d 769.
[¶9] Regarding the insurance coverage for the plaintiffs’ damages, the
first $100,000 has been paid by the Safety primary policy, and damages in the
$1-3 million range have been paid by the Alterra excess policy. The question
we must resolve is whether the intermediate range from $100,000 to the limits
of State Farm’s UM liability represents a gap in coverage, meaning that Hill was
an underinsured driver, or whether the $2.1 million in payments by Safety and
Alterra, significantly exceeding State Farm’s maximum UM liability, means that,
as the trial court found, “Hill was not an underinsured driver.”
5
[¶10] The plaintiffs argue that for the first $1 million in damages Hill was
underinsured, because the amount of their State Farm UM coverage exceeded
the amount of his Safety primary liability coverage. See 24-A M.R.S. § 2902(1)
(2016) (“‘[U]nderinsured motor vehicle’ means a motor vehicle for which
coverage is provided, but in amounts . . . less than the limits of the injured
party’s uninsured vehicle coverage.”). They assert that that fact is not altered
by Alterra’s excess coverage, which did not begin until their damages exceeded
$1 million, and so “for any damages of $1,000,000 or less, [Alterra’s] payments
to Plaintiffs cannot be in any sense an offset from State Farm’s uninsured
motorist coverage amount.”
[¶11] State Farm’s position is straightforward: the plaintiffs’ maximum
UM coverage is less than the $2.1 million that they received from Twin Pines’s
liability insurers; therefore, there is no underinsured motorist gap that
State Farm is responsible to cover. That position, adopted by the Superior
Court, is supported by our decisions.
[¶12] In construing 24-A M.R.S. § 2902 (2016), we have said that “[t]he
goal of the UM statute was to provide an injured insured the same recovery
which would have been available had the tortfeasor been insured to the same
extent as the injured party. The statute does not support double recovery or a
6
windfall to the plaintiff.” Tibbetts v. Dairyland Ins. Co., 2010 ME 61, ¶ 12,
999 A.2d 930 (citation and quotation marks omitted); see Dickau v. Vt. Mut.
Ins. Co., 2014 ME 158, ¶ 43, 107 A.3d 621; Farthing v. Allstate Ins. Co.,
2010 ME 131, ¶ 6, 10 A.3d 667. “There is no Maine authority to support the
contention that an insured injured by a single tortfeasor may recover a total
that is greater than the insured’s UM coverage limit.” Farthing, 2010 ME 131,
¶ 6, 10 A.3d 667 (alteration and quotation marks omitted). Accordingly, “we
have . . . characterized UM insurance as gap coverage” that “fills the gap left by
an underinsured tortfeasor.” Tibbetts, 2010 ME 61, ¶¶ 17, 21, 999 A.2d 930
(quotation marks omitted).
[¶13] The UM statute provides that “[i]n the event of payment to any
person under uninsured vehicle coverage . . . to the extent of such payment the
insurer shall be entitled to the proceeds of any settlement or recovery from any
person legally responsible for the bodily injury as to which such payment was
made.” 24-A M.R.S. § 2902(4) (emphasis added). In Tibbetts, we noted that
section 2902(4) “explicitly requires” offsetting a tortfeasor’s payment from a
damages award, and concluded that the offset applied in that case even though
the payor was an excess insurer, saying that “[i]n keeping with [the goal of the
UM statute] any compensatory payments received by the plaintiff reduce the
7
gap in coverage, and are offset against the judgment.” Tibbetts, 2010 ME 61,
¶¶ 11, 12, 999 A.2d 930 (emphasis added). Here, the $2 million paid by Alterra
is a “compensatory payment[] received by the plaintiff[s],” id. ¶ 12, and so that
payment must be offset.
[¶14] In Farthing, the plaintiff contended that $20,000 paid by the
tortfeasor’s insurer “reduced the total damages she could recover, not the
amount she could recover under her UM coverage,” which had a $100,000 per
person limit. 2010 ME 131, ¶¶ 2-3, 10 A.3d 667. We applied the formula set
out in Tibbetts2 and concluded that
[a]pplying the Tibbetts formula to these facts, if [the tortfeasor] had
been insured to the amount of [the plaintiff’s] UM coverage, [the
plaintiff] would have recovered $100,000 from [the tortfeasor’s]
insurer, given [the plaintiff’s] damages. The amount actually paid
by [the tortfeasor], $20,000, is subtracted from that amount,
leaving $80,000 as the coverage gap that Allstate was responsible
to, and did, pay. Accordingly, [the plaintiff] in fact recovered
$100,000, just as she would have had [the tortfeasor’s] insurance
been equal to [the plaintiff’s] UM coverage. That result is
consistent with the goal of the UM statute, in that it provides [the
plaintiff] as the injured insured the same recovery which would
2
In Tibbetts, we explained that a gap in coverage for which the injured insured’s UM carrier is
responsible, and the required offset of payments by the tortfeasor, is determined by “initially ask[ing]
what amount the injured party would recover if the tortfeasor were insured to the amount of the
injured party’s UM coverage. If damages are less than the total policy limits . . . the injured party
would recover his damages in full. If damages exceed the total limits, he would recover that total
limit. After determining this recovery amount, the court then subtracts the amounts already paid by
the tortfeasor or by insurers in settlement, and thereby determines the coverage gap.” Tibbetts v.
Dairyland Ins. Co., 2010 ME 61, ¶ 18, 999 A.2d 930.
8
have been available had the tortfeasor been insured to the same
extent.
Id. ¶ 8 (quotation marks omitted). Here, the plaintiffs have recovered far more
from the tortfeasor’s insurers than the maximum amount of UM coverage
provided by the State Farm policies. Accordingly, they have surpassed “the
same recovery which would have been available had the tortfeasor been
insured to the same extent.” Id. (quotation marks omitted).
[¶15] We recently reaffirmed the Farthing process:
When the total damages are greater than the amount of UM/UIM
coverage . . . [section 2902(4)] mandates that insurers offset the
amount of coverage available in the UM/UIM policy, rather than the
amount of damages incurred, by the amount actually paid by the
tortfeasor. We have explained that the reason for doing so is that
the goal of the UM statute is to provide an injured insured the same
recovery that would have been available had the tortfeasor been
insured to the same extent as the injured party. Thus, it was proper
to offset the amount of available coverage with the other motorist’s
payment . . . .
Graf v. State Farm Mut. Auto. Ins. Co., 2016 ME 153, ¶ 17, 149 A.3d 529
(emphasis added) (alterations, original emphases, citations, and quotation
marks omitted). Here, offsetting the amount of UM coverage available to the
plaintiffs with Twin Pines’ $2.1 million payment yields the trial court’s result—
“There is no gap in coverage and defendant State Farm is not required to pay.”
9
The entry is:
Judgment affirmed.
JABAR, J., dissenting.
[¶16] I respectfully dissent because the plain language of Maine’s
UM statute, and our jurisprudence interpreting it, require that the plaintiffs be
afforded the same recovery that they would have been entitled to had the
Twin Pines vehicle been insured to the same extent as Wallace’s UM coverage.
[¶17] The automobile accident at the heart of this case produced
disastrous consequences. The plaintiffs, Wallace and Folce, allege in their
pleadings that, as a result of the accident, they both suffered brain injuries and
numerous lacerations. In addition, Wallace alleges to have suffered a crushed
right humerus, pulmonary contusions, and fractures to his radius, ulna, ribs,
and both femurs. According to her complaint, Folce lost the use of her left eye.
[¶18] As the Court detailed, at the time of the accident, the Twin Pines
vehicle was covered by a Safety Insurance Company liability policy with limits
of $50,000 per person and $100,000 per accident. The automobile was also
covered by an Alterra excess policy with limits of $2,000,000. Under the terms
of the Alterra excess policy, Twin Pines was required to maintain a minimum of
10
$1,000,000 of primary liability coverage, and if it failed to maintain this
coverage level, Alterra was “liable only to the extent that [Alterra] would have
been held liable had [Twin Pines] complied” with the minimum limits
provision. Since Twin Pines failed to comply with its obligation to maintain
$1,000,000 of underlying liability insurance, Alterra was only responsible for
damages in excess of $1,000,000. In effect, the Alterra excess policy contained
a $1,000,000 deductible provision.3 Wallace and Folce, on the other hand, were
covered under two different State Farm policies, each providing for
UM coverage in the amount of $100,000 per person and $300,000 per accident.
[¶19] Alterra settled with Wallace and Folce for its $2,000,000 policy
limits, with each receiving $1,000,000. Presumably, Alterra believed that
Wallace and Folce’s damages totaled at least $3,000,000 because, by the terms
of its policy, Alterra was liable only for damages exceeding the deductible
amount of $1,000,000. Twin Pines’ primary insurer, Safety Insurance
Company, also settled with Wallace and Folce for its policy limits of $50,000 per
person. Therefore, because Twin Pines did not maintain $1,000,000 of
underlying insurance as was required pursuant to the Alterra excess policy,
3
The Alterra policy provides that Alterra “shall only be liable under this Policy in the event of
reduction or exhaustion of all the limits of the Underlying Insurance and any other valid and
collectable insurance by payment in connection with claim(s).”
11
Wallace and Folce’s recovery was limited to $2,100,000: $50,000 each from
Safety and $1,000,000 each from Alterra.
[¶20] The plaintiffs now seek to recover under the UM provisions of the
State Farm policies. Pursuant to 24-A M.R.S. § 2902(1) (2016), an underinsured
vehicle is defined as “a motor vehicle for which coverage is provided, but in
amounts . . . less than the limits of the injured party’s uninsured vehicle
coverage.” As the Court correctly indicates, we have consistently noted that the
purpose of the statute is to provide the injured party the same recovery that
would have been available had the tortfeasor been insured to the same extent as
the injured party. See Farthing v. Allstate Ins. Co., 2010 ME 131, ¶ 6, 10 A.3d 667;
Jipson v. Liberty Mut. Fire Ins. Co., 2008 ME 57, ¶ 8, 942 A.2d 1213; Tibbetts v.
Me. Bonding & Cas. Co., 618 A.2d 731, 734 (Me. 1992). Although the Court
correctly sets out the operative principles outlined in the aforementioned
cases, it misapplies those principles to the facts this case.
[¶21] The facts of this case are unique because of the $1,000,000
deductible contained in the Alterra excess policy, and this Court has never
applied the UM statute under like circumstances. The leading cases applying
and enunciating the purpose of the UM statute have not dealt squarely with a
situation where an excess policy is subject to a $1,000,000 deductible. All of
12
the cases cited by the Court deal with relatively straightforward setoffs of
UM policy limits by amounts the injured party received from the tortfeasor or
his insurance carrier under policies without deductibles. See Graf v. State Farm
Mut. Aut. Ins. Co., 2016 ME 153, ¶¶ 17-18, 149 A.3d 529 (reducing plaintiff’s
available UM coverage by amounts she received from the tortfeasor’s insurer);
Tibbetts v. Dairyland Ins. Co., 2010 ME 61, ¶¶ 11-12, 999 A.2d 930 (applying
funds received by the plaintiff in a pre-trial settlement to reduce the verdict he
obtained on his UM claims); Jipson, 2008 ME 57, ¶¶ 2, 11, 942 A.2d 1213
(reducing plaintiff’s maximum recovery from his UM insurer by amounts the
plaintiff received from the tortfeasor’s insurer).
[¶22] The facts of this case demonstrate that the plaintiffs did not receive
the “same recovery” that they would have been entitled to had the Twin Pines
vehicle been insured to the “same extent” as Wallace’s UM coverage. See
Farthing, 2010 ME 131, ¶ 6, 10 A.3d 667 (quotation marks omitted). The math
is simple. If the Twin Pines vehicle were insured to the “same extent” as the
plaintiffs’ UM coverage—i.e., $100,000 per person, $300,000 per accident—
rather than the $50,000 per person limits of the Safety policy, then Wallace and
Folce would have each recovered $1,100,000 ($100,000 from the Safety policy
and $1,000,000 from the Alterra excess policy). However, since the Safety
13
policy limits were only $50,000 per person, Wallace and Folce recovered
$1,050,000 ($50,000 from the Safety policy and $1,000,000 from the Alterra
excess policy). Therefore, a $50,000 per plaintiff gap exists between Wallace
and Folce’s actual recovery and the recovery to which they would have been
entitled had Twin Pines maintained primary coverage in the same amount as
the State Farm UM policy limits. Together, the Safety policy and the Alterra
excess policy created a donut hole, affording an injured individual coverage for
the first $50,000 in damages followed by no coverage for the next $950,000 in
damages, followed by coverage for damages in excess of $1,000,000.
[¶23] The Court concludes that because “the plaintiffs have recovered
far more from the tortfeasor’s insurers than the maximum amount of
UM coverage provided by the State Farm policies,” Wallace and Folce cannot
prevail on their UM claims. Court’s Opinion ¶ 14. Simply looking at the total
Wallace and Folce received is not the proper analysis to apply here. Such a
simplistic approach falls short of promoting the aims of the statute and is
ill-suited given the unique facts of this case. Although Wallace and Folce have
recovered sums in excess of the State Farm UM policy limits, they received less
than what they would have been entitled to had the Twin Pines vehicle carried
the same liability insurance as the plaintiffs’ $100,000 UM policy limits.
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[¶24] By overlooking the $1,000,000 deductible contained in the Alterra
policy, the Court closes this donut hole and improperly credits Twin Pines for
having insurance it never purchased. See Jeffrey E. Thomas, 4-24 New
Appleman on Insurance Law Library Edition § 24.02(2)(a) (2011) (“A true
excess policy does not broaden the underlying coverage. While an excess policy
increases the amount of coverage available to compensate for a loss, it does not
increase the scope of coverage.” (footnote omitted)). If, for example, under the
same circumstances Wallace and Folce’s damages totaled $1,000,000—the
equivalent of the deductible—and the Alterra excess policy was not triggered,
it is undoubted that the Twin Pines vehicle would be deemed underinsured, and
Wallace and Folce would be entitled to recover the difference between the
$100,000 of UM coverage in the State Farm policy and the $50,000 Safety policy
limits. See Cobb v. Allstate Ins. Co., 663 A.2d 38, 40 (Me. 1995) (“Because
Allstate’s policy is excess, it has no applicability at all until the primary coverage
is exhausted.”). However, because Wallace and Folce’s damages were so
extensive that Alterra settled for the excess policy limits (notwithstanding the
$1,000,000 deductible), Twin Pines is absolved of its obligation to provide the
underlying coverage, and State Farm is relieved of its obligation to provide the
UM coverage the plaintiffs paid for. Wallace and Folce are therefore left to bear
15
the brunt of this shortfall occasioned by the $1,000,000 deductible contained in
the Alterra excess policy.
[¶25] In conclusion, the plaintiffs Wallace and Folce are entitled to
receive the difference between Twin Pines’ primary coverage ($50,000 per
person) and the limits of the State Farm UM policy ($100,000 per person).
Therefore, I would vacate and enter a judgment in favor of Wallace and Folce
for $50,000 each.
Steven D. Silin, Esq., and Robert H. Furbish, Esq. (orally), Berman & Simmons,
P.A., Lewiston, for appellant Matthew J. Wallace
Michael F. Vaillancourt, Esq., Ainsworth, Thelin & Raftice, P.A., South Portland,
for appellant Freja Folce
J. William Druary, Jr., Esq., and Gregory M. Patient, Esq. (orally), Marden,
Dubord, Bernier & Stevens, PA LLC, Waterville, for appellee State Farm Mutual
Automobile Insurance Company
Cumberland County Superior Court docket numbers CV-2013-367 and CV-2013-532
FOR CLERK REFERENCE ONLY