Cundiff v. State Farm Mutual Automobile Insurance

                    SUPREME COURT OF ARIZONA
                             En Banc

JEAN CUNDIFF,                     )   Arizona Supreme Court
                                  )   No. CV-07-0057-PR
      Plaintiff/Appellant/Cross- )
                        Appellee, )   Court of Appeals
                                  )   Division Two
                 v.               )   No. 2 CA-CV 05-0209
                                  )
STATE FARM MUTUAL AUTOMOBILE      )   Pima County
INSURANCE COMPANY,                )   Superior Court
                                  )   No. C-20024600
       Defendant/Appellee/Cross- )
                       Appellant. )
                                  )
                                  )
                                  )   O P I N I O N
_________________________________ )


          Appeal from the Superior Court in Pima County
               The Honorable Deborah Bernini, Judge

                       REVERSED; REMANDED
________________________________________________________________

          Opinion of the Court of Appeals, Division Two
             213 Ariz. 541, 145 P.3d 638 (App. 2006)

                             VACATED
________________________________________________________________


LAW OFFICE OF BRUCE A. BURKE, P.C.                            Tucson
     By   Bruce A. Burke

And

ELLIOT GLICKSMAN                                              Tucson
     By   Elliot A. Glicksman

And

LAW OFFICES OF JOHN L. TULLY, P.C.                            Tucson
     By   John L. Tully
Attorneys for Jean Cundiff
BRYAN CAVE, L.L.P.                                       Phoenix
     By   Lawrence G. Scarborough
          J. Alex Grimsley
Attorneys for State Farm Mutual Automobile Insurance Company

HARALSON MILLER PITT FELDMAN & McANALLY, P.L.C.                               Tucson
     By   Stanley G. Feldman
Attorney for Amicus Curiae United Policyholders

LAW OFFICES OF CHARLES M. BREWER, LTD.                   Phoenix
     By   David L. Abney
Attorney for Amicus Curiae Arizona Trial Lawyers Association
________________________________________________________________

M c G R E G O R, Chief Justice

¶1        We    granted       review     to     decide       whether        Arizona’s

Uninsured/Underinsured         Motorist       Act   (UMA),    Ariz.    Rev.    Stat.

(A.R.S.) § 20-259.01 (2002 & Supp. 2007), permits an insurer to

reduce Underinsured Motorist (UIM) coverage by the amount of

workers’ compensation benefits an insured receives.                     See A.R.S.

§ 20-259.01.G (defining UIM coverage).                    For the reasons that

follow,    we   hold   that    the     UMA’s    definition     of     UIM    coverage

precludes an insurer from reducing such coverage based on the

insured’s receipt of workers’ compensation benefits.

                                         I.

¶2        In 1997, a vehicle struck Pima County Deputy Sheriff Jean

Cundiff’s patrol car during the course of her employment.                        The

State     Compensation     Fund      provided       Deputy    Cundiff        workers’

compensation    benefits      of   $18,695.48       for   medical     expenses   and

$11,109.35 for lost wages due to disability.                        Cundiff later



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received a medical retirement, caused in part by this accident

and in part by two previous work-related accidents, with monthly

benefits of $482.95.

¶3        Cundiff sued the at-fault driver of the other vehicle and

settled     for    $15,000,    the        limit    of   the    driver’s    liability

coverage.     Cundiff then made an UIM claim under her personal

motor vehicle liability insurance policy, issued by State Farm,

which provided $25,000 in UIM coverage.                      The parties submitted

their dispute to an arbitrator, who ultimately determined that

Cundiff’s damages totaled $40,000.                   Neither party appealed the

arbitration award.

¶4        Cundiff’s policy included the following offset provision:

“Any amount payable under [UIM] coverage shall be reduced by any

amount    paid     or   payable      to     or    for   the    insured    under   any

worker[s’] compensation, disability benefits, or similar law.

This does not reduce the limits of liability required by law for

this coverage.”         Applying this provision, State Farm asserted

that Cundiff’s workers’ compensation benefits reduced the UIM

coverage available through the policy.                  State Farm agreed to pay

Cundiff $10,000, relying on its offset provision to reach this

amount.

¶5        Cundiff then filed suit against State Farm seeking a

declaratory       judgment    that        the     workers’    compensation    offset

provision was unenforceable per se or, alternatively, that State


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Farm’s application of offsets for workers’ compensation benefits

not in evidence at the arbitration hearing deprived her of her

right to be made whole.              Addressing the former argument, the

superior court found the offset provision enforceable so long as

it    did   not    interfere     with    Cundiff’s    right       to   receive    full

compensation        for   her   loss.     The    court     then   awarded      Cundiff

damages      on    the      latter   theory,     finding     no    duplication      of

benefits.

¶6          Cundiff appealed the trial court’s ruling that the offset

provision was not unenforceable per se, arguing that the offset

provision violates the UMA and the common law collateral source

rule.       State Farm countered that controlling case law allowed

the   offset       provision    to   prevent     double    recovery      and    cross-

appealed from the damages award.                The court of appeals, relying

primarily on Terry v. Auto-Owners Insurance Co., 184 Ariz. 246,

908 P.2d 60 (App. 1995), held in favor of State Farm, concluding

that the offset provision reducing UIM coverage by the amount of

workers’ compensation received was valid.                  The court of appeals

also held that the collateral source rule does not apply to UIM

cases.1

¶7          We    granted    Cundiff’s    petition    for    review      because   it

raises an issue of statewide importance involving the proper


1
     Given our decision in this case, we need not address the
parties’ collateral source rule arguments.


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application of A.R.S. § 20-259.01.G.                     We exercise jurisdiction

pursuant to Article 6, Section 5.3, of the Arizona Constitution

and Rule 23(c) of the Arizona Rules of Civil Appellate Procedure

(ARCAP).

                                           II.

                                           A.

¶8        This case requires us to construe the language of the

UMA.2    When the language of a statute is clear and unambiguous, a

court should not look beyond the language, but rather “simply

‘apply it without using other means of construction,’ assuming

that     the    legislature     has    said       what      it   means.”   Hughes    v.

Jorgenson,       203   Ariz.   71,    73   ¶     11,   50    P.3d   821,   823   (2002)

(quoting UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327, 330

¶ 12, 26 P.3d 510, 513 (2001)).

¶9        In this case, the language of the UMA is clear.                           The

statute        first   requires       insurers         to    offer    coverage      for

underinsured motorists, A.R.S. § 20-259.01.B, and then defines

the scope of UIM coverage:

        “Underinsured motorist coverage” includes coverage for
        a person if the sum of the limits of liability under
        all bodily injury or death liability bonds and
        liability insurance policies applicable at the time of

2
     The Court reviews issues of statutory construction de novo.
City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544,
547 ¶ 8, 105 P.3d 1163, 1166 (2005) (citing Canon School Dist.
No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500,
503 (1994)).



                                            5
        the accident is less than the total damages for bodily
        injury or death resulting from the accident.    To the
        extent that the total damages exceed the total
        applicable liability limits, the underinsured motorist
        coverage provided in subsection B of this section is
        applicable to the difference.

A.R.S. § 20-259.01.G.              Subsection G defines UIM coverage as the

difference      between      one’s    total       damages    for   bodily    injury    or

death and the total limits of applicable liability insurance

policies.          Thus,     the    plain     and    unambiguous     statutory       text

defines     the    “total     applicable      liability      limits”    as     the   only

amount      deducted       from      the    insured’s        total     damages       when

calculating        UIM   coverage,      with       the   insured’s     policy    limits

constituting the maximum possible UIM coverage.                      Over the years,

this    Court     has    considered     and       rejected   numerous    attempts      to

limit    UIM      coverage    in     ways   not     expressly      permitted    by    the

statute.3       Recently we noted that because the statute’s “broad

language does not contain exceptions,” Taylor, 198 Ariz. at 314

¶ 10, 9 P.3d at 1053, “exceptions to coverage not permitted by

the statute are void.”             Id. at 315 ¶ 13, 9 P.3d at 1054.

3
     See, e.g., Taylor v. Travelers Indem. Co. of Am., 198 Ariz.
310, 314 ¶¶ 10-11, 9 P.3d 1049, 1053 (2000) (funds already paid
under policy’s liability coverage); State Farm Mut. Auto. Ins.
Co. v. Lindsey, 182 Ariz. 329, 331, 897 P.2d 631, 633 (1995)
(“other vehicle” exclusion); State Farm Mut. Auto. Ins. Co. v.
Duran, 163 Ariz. 1, 4, 785 P.2d 570, 573 (1989) (“furnished for
regular use” exclusion); Brown v. State Farm Mut. Auto. Ins.
Co., 163 Ariz. 323, 329, 788 P.2d 56, 62 (1989) (“excess/escape”
and “prorata limit reduction” clauses); Higgins v. Fireman’s
Fund Ins. Co., 160 Ariz. 20, 23, 770 P.2d 324, 327 (1989)
(“other vehicle” exclusion).


                                              6
¶10       The parties agree that Cundiff’s “total damages” equaled

$40,000    and     that    the    tortfeasor’s           liability    limits      equaled

$15,000.        Cundiff’s UIM policy contained a $25,000 limit, an

amount equal to the $25,000 difference between the tortfeasor’s

liability limits and her damages.                      State Farm, however, wishes

to    subtract     workers’      compensation           benefits    as    well    as    the

tortfeasor’s liability coverage from Cundiff’s total damages to

calculate Cundiff’s UIM coverage.                       Because the limit of the

total    applicable       liability      insurance       is   the    only      factor   the

statute permits to be used in calculating UIM coverage, workers’

compensation benefits can be subtracted only if those benefits

constitute part of the applicable “liability insurance” under

the UMA.

¶11       The statutory definitions and purpose of our workers’

compensation scheme make clear that workers’ compensation does

not constitute “liability insurance.”                     State Farm asserts that

because workers’ compensation and liability insurance both fall

under    the    statutory     definition          of    “casualty    insurance,”         see

A.R.S.     §    20-252.1-.2      (2002),      workers’        compensation       must    be

liability      insurance.         This    argument         fails.        Although       both

workers’       compensation      and   liability         insurance       are    types    of

casualty insurance, they are separate and distinct.                             Liability

insurance is “insurance against legal liability,” while workers’

compensation      is   “insurance        of       the    obligations      accepted      by,


                                              7
imposed upon or assumed by employers under law.”                             Id.     Unlike

liability       insurance,     workers’      compensation         does       not   provide

coverage       based   on    fault.      Indeed,       the    workers’       compensation

system is specifically designed to remove any concept of fault

from the question of compensability of an injury.                        See Stoecker

v. Brush Wellman, Inc., 194 Ariz. 448, 451 ¶ 11, 984 P.2d 534,

537 (1999) (“The underlying principle of the compensation system

is a trade of tort rights for an expeditious, no-fault method by

which     an    employee      can     receive      compensation        for    accidental

injuries       sustained      in    work-related         accidents.”).             Because

workers’ compensation is not liability insurance, the statute

does not permit consideration of workers’ compensation benefits

in    determining      the    amount    of       UIM   coverage    available         to    an

insured.

¶12       Our previous decision in Taylor supports our conclusion

that UIM insurers cannot deduct workers’ compensation benefits

from UIM coverage.           See 198 Ariz. 310, 9 P.3d 1049.                  In Taylor,

a husband negligently caused an auto accident, injuring his wife

(Taylor).        Id.   at    312    ¶   2,   9    P.3d   at    1051.         Because      the

husband’s insurance policy named Taylor as an insured family

member,    the    policy     covered     both      spouses.       Id.        The   insurer

provided coverage to Taylor under the husband’s policy, which

was insufficient to cover even her medical bills.                              Id.        The

insurance company then denied Taylor’s UIM claim, citing to the


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insurance policy, which excluded any UIM coverage for an insured

who recovered any payment under another provision in the same

policy.      Id. at 312-13 ¶ 3, 9 P.3d at 1051-52.

¶13       In determining Taylor’s UIM coverage, this Court noted

that UIM statutes “have a remedial purpose and must be construed

liberally      in    favor       of   coverage,   with     strict    and       narrow

construction given to offsets and exclusions.”                   Id. at 314 ¶ 11,

9 P.3d at 1053 (citing Calvert v. Farmers Ins. Co., 144 Ariz.

291, 294, 697 P.2d 684, 687 (1985)).                   We held that the UMA

entitled Taylor to UIM coverage and refused to allow an offset

not included in the statute.               Id. at 317-18 ¶ 22, 9 P.3d at

1056-57.      “We will not interline the [Uninsured Motorist (UM)]

and   UIM    statutes       to   permit   exclusions      that    have   not    been

mentioned by the legislature.”            Id. at 318 ¶ 22, 9 P.3d at 1057.

¶14       Rather than relying on Taylor, which involved UIM, State

Farm relies primarily on two decisions involving UM coverage,

Schultz v. Farmers Ins. Group of Cos., 167 Ariz. 148, 153, 805

P.2d 381, 386 (1991) (upholding a non-duplication endorsement in

an UM case, reasoning that “a non-duplication endorsement is

enforceable if it does not interfere with the insured’s right to

full recovery for her loss”), and Terry, 184 Ariz. at 249-50,

908   P.2d    at    63-64    (upholding    a   workers’    compensation    offset

provision in an UM policy so long as it does not prevent full

recovery of damages).             Distinct statutory provisions, however,


                                          9
define UM and UIM coverage.             Compare A.R.S. § 20-259.01.E, with

§ 20-259.01.G.       The statutory provision defining UM coverage

expressly provides that such coverage is “subject to the terms

and conditions of that coverage,” A.R.S. § 20-259.01.E, while

the provision defining UIM coverage does not provide a similar

limitation, see A.R.S. § 20-259.01.G.                   See also A.R.S. § 20-

259.01.H   (“Uninsured       and      underinsured   motorist      coverages   are

separate and distinct . . . .”).                 Thus, for purposes of our

analysis of the UIM statute, the reasoning of Taylor, rather

than that of Schultz or Terry, applies.

                                          B.

¶15     State Farm argues that, despite the express language of

the statute, the legislature could not have intended that some

injured parties would receive a “double recovery” while others

would not.      Specifically, State Farm urges this Court to allow

the workers’ compensation offset because Cundiff will otherwise

receive “double recovery.”              This argument focuses on the fact

that   when    the   State    Compensation       Fund    distributes    workers’

compensation benefits, the Fund acquires a lien on “the amount

actually      collectible”       by     the    injured    employee     from    the

tortfeasor.       A.R.S.     §     23-1023.D    (Supp.    2007).       The    lien,

however, does not extend to amounts collectible from an UIM

insurer.      In effect, State Farm contends, this scheme creates

potentially disparate treatment between an insured injured by a


                                          10
tortfeasor with full liability coverage and an insured injured

by a tortfeasor with insufficient liability coverage.

¶16     State Farm’s policy argument does not persuade us.   As we

stated in Rashid v. State Farm Mutual Automobile Insurance Co.,

         [o]ur  inquiry   in   this   case  should   not be
      circumscribed by the attempt to eliminate disparate
      treatment resulting from the fortuitous circumstances
      that vary from case to case. Our inquiry, rather, is
      directed to the question of what the statutes require
      to be included in all policies and whether those
      statutes provide insurance carriers with latitude to
      insert exclusions, offsets, or escape provisions.

163 Ariz. 270, 273 n.3, 787 P.2d 1066, 1069 n.3 (1990).        The

language of § 20-259.01.G does not permit insurance carriers to

insert the offset language at issue here.    We cannot disregard

the unambiguous language of the statute.      State Farm should

direct its policy arguments to the legislature rather than to

the courts.

                               III.

¶17     State Farm also argues that if we conclude that workers’

compensation is not relevant to a determination of UIM coverage

under the UMA, we should apply our decision prospectively only.

We hold that this decision will apply both prospectively and

retroactively.   See Taylor, 198 Ariz. at 320-21 ¶¶ 30-31, 9 P.3d

at 1059-60.

¶18     “‘Unless otherwise specified, Arizona appellate opinions

in civil cases operate both retroactively and prospectively.’”




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Id. at 321 ¶ 30, 9 P.3d at 1060 (quoting Law v. Superior Court,

157 Ariz. 147, 160, 755 P.2d 1135, 1148 (1988)).                      To determine

whether an opinion should apply only prospectively, we balance

three factors:          (1) whether we establish “a new legal principle

by overruling clear and reliable precedent or by deciding an

issue     whose    resolution      was    not    foreshadowed,”       (2)     whether

“[r]etroactive application would adversely affect the purpose

behind the new rule,” and (3) whether “[r]etroactive application

would produce substantially inequitable results.”                         Id. (citing

Lowing v. Allstate Ins. Co., 176 Ariz. 101, 108, 859 P.2d 724,

731 (1993)).        The first two factors do not favor prospective-

only application here, because we are not overturning “clear and

reliable precedent” or creating a new rule.                     See id.       Rather,

our decision follows this Court’s previous decisions involving

UIM coverage.       See, e.g., id. at 315 ¶ 13, 9 P.3d at 1054.                     The

third factor also does not favor prospective-only application:

State   Farm      has   provided   no    reason     for   us    to   conclude      that

retroactive       application      will        produce    inequitable        results.

Indeed, limiting this decision to prospective application would

produce    inequitable      results,      because    such   a   limitation      could

deprive insureds of UIM coverage to which they are entitled.

Accordingly,       none   of   these     factors    require     us   to    limit   our

opinion to prospective application.

                                         IV.


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¶19      Cundiff and State Farm requested attorneys’ fees under

A.R.S.   §   12-341.01   (2003).   Pursuant   to   ARCAP   21,   we   grant

Cundiff’s request for attorneys’ fees.

                                   V.

¶20      For the foregoing reasons, we vacate the decision of the

court of appeals.    We reverse the judgment of the superior court

and remand to the superior court for proceedings consistent with

this opinion.




                            _______________________________________
                            Ruth V. McGregor, Chief Justice

CONCURRING:


_______________________________________
Rebecca White Berch, Vice Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
Andrew D. Hurwitz, Justice


_______________________________________
W. Scott Bales, Justice




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