(dissenting) — Tony Yarnell, an emancipated son, was driving his father Sam to Colville when he negligently left the roadway striking a tree causing both their deaths. Farmers, the insurer of the vehicle, paid $50,000 to Sam's surviving wife and estate pursuant to the liability provisions of the insurance policy. They declined to pay a similar amount under the underinsured motorist provisions of their policy, although it is conceded for the purpose of this action that Sam's damages exceeded $100,000.
The denial was based upon Farmers' policy definition of underinsured motor vehicle, which is:
3. . . .
b. Insured by a bodily injury liability bond or policy at the time of the accident which provides coverage in amounts less than the limits of Underinsured Motorists Coverage shown in the Declarations.
This definition conflicts with the statutory provision of RCW 48.22.030, which defines an underinsured motor vehicle as:
(1) ... a motor vehicle . . . with respect to which the sum of the limits of liability under all bodily injury or property damage liability bonds and insurance policies applicable to a covered person after an accident is less that the applicable damages which the covered person is legally entitled to recover.
(Italics mine.)
The inconsistency is apparent; Farmers' definition is void. Elovich v. Nationwide Ins. Co., 104 Wn.2d 543, 550, 707 P.2d 1319 (1985). For the purposes of this case, the *81policy does not define an underinsured motorist. See Brummett v. Grange Ins. Ass'n, 4 Wn. App. 979, 981, 485 P.2d 88 (1971).
The majority attempts to distinguish Millers Cas. Ins. Co. v. Briggs, 100 Wn.2d 1, 665 P.2d 891 (1983), but is only partially successful. In Millers, a permissive driver was involved in a single-car accident in which one passenger was killed and another seriously injured. Neither passenger was related to the driver. The court there noted three differences between underinsured motorist statutes and uninsured motorist statutes and the claims arising thereunder.
First, . . . the injured party has not paid a premium for coverage to this insurer. Thus, there is no danger the insurer will gain a windfall if it is not forced to pay under both provisions of the policy. Second, unlike uninsured motorist coverage, the honoring of this kind of exclusion in underinsured motorist coverage does not leave the injured party completely without compensation. He has already received some compensation pursuant to the liability coverage of the policy. Third, assuming the injured party has automobile insurance of his own, he should be able to collect additional amounts as a result of that policy's underinsured motorist coverage.
Comment, Washington's Underinsured Motorist Statute: Balancing the Interests of Insurers and Insureds, 55 Wash. L. Rev. 819, 827 (1980).
Millers, at 7.
Here, the injured party did pay a premium to this insurer. Second, Farmers' policy did not have the same provision excluding the insured automobile from underin-sured coverage. Third, the "injured party" is seeking collection from its own insurer. Thus, most of the reasons set forth in Millers, which support the exclusion of the insured vehicle from the operation of underinsured motorist provisions, are not applicable here.
Notwithstanding, the reasoning in Millers, at 8, supplies the first basis for my departure from the majority's conclusion:
*82The owner of a vehicle purchases liability insurance to, among other things, protect passengers in the vehicle from his, or another driver's, negligent driving. He purchases underinsured motorist coverage to protect himself and others from damages caused by another vehicle which is underinsured. An insured wishing to avoid personal liability, and protect his passengers, may simply increase the liability insurance. The result of dual recovery in the instant case would transform underinsured motorist coverage into liability insurance. This result would cause insurance companies to charge substantially more for underinsured motorist coverage in order to match the cost of that coverage with the presently more expensive liability coverage. This increase in cost would discourage consumers from purchasing underinsured coverage, an important protection presently available for a minimal cost.
(Italics mine.)
Here, Tony, a permissive driver of the insured's vehicle, was an "insured." He was underinsured only because his father had decided not to increase the limits of his liability coverage. That decision was Sam's; his underinsured motorist insurance should not be converted into liability insurance simply because he chose to purchase too little liability coverage.
Second, I do not believe the intent of the Legislature was to extend underinsured motorist coverage to cover the owner of the vehicle, injured in that vehicle, in a single-car accident. Although Farmers could have inserted such an exclusion, it was not required to do so because the statute itself does not mandate underinsured coverage to an insured, injured in his own vehicle, in a single-car accident. The statute, as recognized in Millers, at 6, 8, contemplates two distinct vehicles, i.e., the underinsured's motor vehicle and the motor vehicle to which underinsured motorist coverage is extended.
Finally, I do not believe that denying dual recovery violates the strong policy of allowing full recovery mandated by Elovich; Elovich and Millers are reconcilable. Elovich, at 552, prohibits the insurer from limiting coverage to the *83amount recovered under one policy where other policies also are applicable, and recovery under only one policy would not totally compensate the insured. On the other hand, Millers stands for the proposition that the public policy of full compensation for injuries does not require dual recovery where only one of two or more policies covers the accident or occurrence. Here, like the situation in Millers, only the liability provision covered this kind of accident. Thus, I would affirm.