#23711-a-JKM
2006 SD 49
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
JOSEPH D. HOCKETT and
PEGGY L. HOCKETT, Plaintiffs and Appellees,
v.
GLENN D. LaPOINTE, Defendant,
and
AMCO INSURANCE COMPANY, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
GREGORY COUNTY, SOUTH DAKOTA
* * * *
HONORABLE KATHLEEN F. TRANDAHL
Judge
* * * *
STANLEY E. WHITING Attorney for plaintiffs
Winner, South Dakota and appellees.
ROBERT B. ANDERSON
BRITTANY L. NOVOTNY of
May, Adam, Gerdes & Thompson, LLP Attorneys for defendant
Pierre, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON JANUARY 9, 2006
OPINION FILED 06/07/06
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MEIERHENRY, Justice.
[¶1.] Joseph and Peggy Hockett (Hocketts) each suffered damages in excess
of $100,000 due to an automobile accident with an uninsured motorist. Hocketts
each received $100,000 of uninsured motorist (UM) benefits from the primary policy
that covered the vehicle in which they were traveling. They then sought to recover
uninsured motorist coverage from their insurer, AMCO Insurance Company
(AMCO). The trial court determined Hocketts could stack their UM benefits. The
narrow issue presented on appeal is whether, absent a request for greater coverage,
the language of SDCL 58-11-9 allows Hocketts to stack UM policies where doing so
results in a recovery in excess of $100,000. We hold that the language of SDCL 58-
11-9 does not create a mandatory maximum amount of recovery when UM policies
are stacked.
FACTS
[¶2.] This case arose out of an automobile accident involving two vehicles.
Neither the driver at fault, Glenn LaPointe (LaPointe), nor the vehicle he drove
were insured. The second vehicle was owned by Rebecca Hockett and insured by
State Farm Mutual Automobile Insurance Company (State Farm). At the time of
the accident, Rebecca’s father, Joseph Hockett was driving the vehicle, and both
Peggy Hockett, Joseph’s wife, and Rebecca were passengers. Joseph and Peggy are
the plaintiffs in this action.
[¶3.] Rebecca’s State Farm policy provided uninsured motorist coverage up
to $100,000 per person or $300,000 per accident. As the primary insurer, State
Farm paid both Joseph and Peggy Hockett $100,000 each for the injuries they
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sustained. The parties stipulated that each sustained injuries in excess of
$100,000. Joseph and Peggy Hockett were also insured under a personal
automobile policy provided by AMCO, which provided UM coverage of $50,000 per
person or $100,000 per accident. Hocketts filed a claim with AMCO for that
amount, but AMCO denied coverage.
[¶4.] Hocketts brought this suit against LaPointe and AMCO. Hocketts
alleged that they each incurred damages in excess of $100,000. Therefore, they
sought not only a judgment against LaPointe for damages, but also a declaration
that the AMCO policy must be used to satisfy that judgment in whole or in part.
Asserting that Hocketts had no claim for coverage, AMCO moved for summary
judgment. The parties submitted a statement of undisputed material facts which
stipulated that Hocketts each recovered $100,000 from State Farm and that they
were requesting the additional $50,000 uninsured motorist coverage provided by
the AMCO policy. The circuit court denied AMCO’s motion and ruled that Hocketts
could recover from AMCO. The court determined that Hocketts could stack the
AMCO uninsured motorist coverage up to the amount of their actual injuries.
AMCO appeals that decision and presents one issue for this Court’s determination.
ISSUE
Whether the trial court erred in its determination that the
language of SDCL 58-11-9 does not prohibit Hocketts from
recovering under their own insurance policy’s UM coverage
when their damages exceeded the $100,000 UM recovered from
other insurance.
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STANDARD OF REVIEW
[¶5.] As we have repeatedly recognized, summary judgment is appropriate
when the moving party demonstrates that there is no genuine issue of material fact.
SDCL 15-6-56(c); Thornton v. City of Rapid City, 2005 SD 15, ¶4, 692 NW2d 525,
528-29. In doing so, we must view all evidence in a light most favorable to the
nonmoving party. Id. (citation omitted). We must also determine whether the law
was correctly applied. Phen v. Progressive N. Ins. Co., 2003 SD 133, ¶5, 672 NW2d
52, 54. The interpretation of both statutes and insurance contracts are questions of
law subject to de novo review. MGA Ins. Co. v. Goodsell, 2005 SD 118, ¶9, 707
NW2d 483, 485.
DECISION
[¶6.] The backdrop of our stacking jurisprudence is sometimes a confusing
patchwork of cases and statutes defining and redefining both UM benefits and
underinsured motorist (UIM) benefits. Since the Legislature first mandated UM
and UIM coverage in this state, the law has been changed and interpreted several
times. See, e.g., Phen, 2003 SD 133, 672 NW2d at 52; Nickerson v. Am. States Ins.,
2000 SD 121, 616 NW2d 468; Union Ins. Co. v. Stanage, 454 NW2d 736 (SD 1990);
Cunningham v. W. Cas. & Sur. Co., 90 SD 530, 243 NW2d 172 (1976); Westphal v.
Amco Ins. Co., 87 SD 404, 209 NW2d 555 (1973). For the most part, stacking is now
controlled by statute. SDCL 58-11-9.7 prohibits stacking an insured’s UM and UIM
benefits “to determine the limit of insurance coverage available to an injured person
for any one accident,” unless “two or more separate motor vehicle operators, one
uninsured and the other underinsured, are determined to be liable.” Likewise,
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SDCL 58-11-9.8 disallows stacking UM benefits from more than one of an insured’s
vehicles, while SDCL 58-11-9.9 does the same for UIM benefits. 1 In addition, SDCL
58-11-9.5—the “difference of limits” statute—prohibits “stacking of UIM coverage
from two policies.” Nickerson, 2000 SD 121, ¶12, 616 NW2d at 471.
[¶7.] In contrast, however, the current law does not specifically prohibit
stacking UM coverage available under two different policies from two different
insurers. We first addressed such a situation in Westphal, 87 SD at 404, 209 NW2d
at 555. Westphal held that a policy provision precluding the recovery of UM
benefits where such benefits were recoverable from another vehicle was against
public policy and therefore void. Id. at 410-11, 209 NW2d at 559. As a result,
Westphal allowed a person injured by an uninsured motorist while riding in
another’s vehicle to recover both the UM coverage applicable to that vehicle and
1. SDCL 58-11-9.8 provides:
Regardless of the number of policies involved, vehicles involved,
persons covered, claims made, vehicles or premiums shown on
the insured’s policy, or premiums paid, in no event may the limit
of liability for uninsured motorist coverage for two or more of the
insured’s motor vehicles be added together to determine the
limit of insurance coverage available to an injured person for
any one accident.
SDCL 58-11-9.9 provides:
Regardless of the number of policies involved, vehicles involved,
persons covered, claims made, vehicles or premiums shown on
the insured’s policy, or premiums paid, in no event may the limit
of liability for underinsured motorist coverage for two or more of
the insured’s motor vehicles be added together to determine the
limit of insurance coverage available to an injured person for
any one accident.
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also the UM coverage available under the injured person’s own automobile liability
policy. Id.
[¶8.] Although the UM statute, SDCL 58-11-9, has been amended since our
decision in Westphal, none of the amendments changed our Westphal analysis and
we have repeatedly affirmed its holding. See Phen, 2003 SD 133, ¶21, 672 NW2d at
58; Union, 454 NW2d at 739. Our most recent stacking case, Phen, follows
Westphal and determines that a policy provision which precludes recovery of UM
benefits is against public policy. See 2003 SD 133, ¶21, 672 NW2d at 58.
[¶9.] While recognizing that our decisions in Westphal and Phen allow
stacking in situations almost identical to the one presented in this case, AMCO
contends that the language of the UM statute precludes stacking here. Therefore,
we must consider the language of the current version of the statute and the
evolution thereof. The UM coverage statute was first enacted in 1966. The statute
provided:
No policy insuring against loss resulting from liability imposed
by law for bodily injury or death suffered by any person arising
out of the ownership, maintenance or use of a motor vehicle
shall be delivered or issued for delivery in this state with respect
to any motor vehicle registered or principally garaged in this
state unless coverage is provided therein or supplemental
thereto in limits for bodily injury or death set forth in §32-35-70
[$15,000/$30,000] for the protection of persons insured
thereunder 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; provided, that the named
insured shall have the right to reject such coverage . . . .
1966 SD Laws ch 111, § 16(5). The first change occurred in 1972 when the
Legislature removed the provision that allowed an insured to reject UM coverage,
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thus making coverage mandatory. 1972 SD Laws ch 261. The Legislature again
amended the statute in 1975 and 1982. 1975 SL ch 307; 1982 SL ch 356. The 1975
amendment allowed an insured to request UM coverage in excess of the amount
provided by statute. 1975 SL ch 315, § 1. The 1982 amendment set the required
amounts of UM coverage as follows:
. . . the coverage required by this section may not exceed the
limits of one hundred thousand dollars because of bodily injury
to or death of one person in any one accident and, subject to the
limit for one person, three hundred thousand dollars because of
bodily injury to or death of two or more persons in any one
accident, unless additional coverage is requested by the insured.
1982 SL ch 356. The 1982 provisions remain in effect today.
[¶10.] These legislative changes have resulted in the current version of SDCL
58-11-9 which, in its entirety, provides:
No policy insuring against loss resulting from liability imposed
by law for bodily injury or death suffered by any person arising
out of the ownership, maintenance or use of a motor vehicle may
be delivered or issued for delivery in this state with respect to
any motor vehicle registered or principally garaged in this state,
except for snowmobiles, unless coverage is provided therein or
supplemental thereto in limits for bodily injury or death equal to
the coverage provided by such policy for bodily injury and death,
for the protection of persons insured thereunder 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. However, the coverage required by this
section may not exceed the limits of one hundred thousand
dollars because of bodily injury to or death of one person in any
one accident and, subject to the limit for one person, three
hundred thousand dollars because of bodily injury to or death of
two or more persons in any one accident, unless additional
coverage is requested by the insured. Any policy insuring
government owned vehicles may not be required to provide
uninsured motorist coverage.
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SDCL 58-11-9. In essence, the UM statute requires all automobile liability
insurance policies “delivered or issued for delivery” in South Dakota covering “any
motor vehicle registered or principally garaged” in South Dakota to provide
coverage for damages inflicted by uninsured and hit-and-run motorists. SDCL 58-
11-9. The required UM policy coverage must be “in limits for bodily injury or death
equal to the coverage provided by such policy for bodily injury and death.” SDCL
58-11-9. Additionally, the UM policy coverage “may not exceed the limits of one
hundred thousand dollars because of bodily injury to or death of one person in any
one accident and, subject to the limit for one person, three hundred thousand dollars
because of bodily injury to or death of two or more persons in any one accident,
unless additional coverage is requested by the insured.” SDCL 58-11-9 (emphasis
added).
[¶11.] AMCO claims that the $100,000/$300,000 amounts referenced in the
statute serve as the mandatory maximum recovery when two or more UM policies
are stacked. The plain meaning of the statutory language, however, does not
suggest such an interpretation. The statute defines coverage, not recovery. Clearly,
the statute requires all vehicle liability policies issued in this state to include
coverage for damages incurred because of the negligence of uninsured drivers and
vehicle owners. Additionally, the required UM coverage must be provided in the
same amount as the liability coverage in the policy up to the maximum of $100,000
per person or $300,000 per accident, unless the insured requests more. Other
statutes require minimum liability coverage of $25,000 for one person per accident
and $50,000 for two or more people per accident. SDCL 32-35-70; see also SDCL 32-
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35-113 (stating that failure to maintain the minimum automobile liability insurance
is a Class 2 misdemeanor). Therefore, in the absence of a request for additional
insurance, SDCL 58-11-9 requires that an insurer provide UM coverage between
$25,000 and $100,000 for one person per accident and $50,000 and $300,000 for two
or more people, depending on the amount of liability coverage in the policy. The
plain meaning of the language should not be interpreted to mean that the
Legislature intended to set a maximum amount of recovery regardless of the loss or
the number of policies.
[¶12.] AMCO points to language used by this Court in Union in support of its
argument that SDCL 58-11-9 sets a statutory maximum amount of permissible UM
recovery. See Union, 454 NW2d at 739. The language to which AMCO refers is
part of a paragraph in which this Court discussed the public policy applicable to
stacking the UM benefits of two policies issued to the same insured by the same
insurer. Id. The one sentence taken out of context reads: “This modification of
[SDCL 58-11-9 setting a maximum amount of required UM coverage] reflects a
legislative determination that the maximum amount set forth in the statute is
sufficient to protect those insureds who may be legally entitled to recover against an
uninsured motorist.” Id. In the context of the entire opinion, however, that
sentence should not be read to mean that the Legislature set a mandatory
maximum recovery amount merely by requiring all liability policies to include UM
coverage. In fact, a close reading of Union reveals that this language was not
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central to the holding. 2 What was central to the holding was the language of the
insurance policy provision, which we determined controlled the outcome. 454 NW2d
2. Union Insurance Co. v. Stanage came before this Court subsequent to the
1982 amendment setting coverage amounts. 454 NW2d at 736. The facts at
issue in Union arose one month before the relevant anti-stacking statute,
SDCL 58-11-9.8, discussed infra at ¶20, took effect. Union, 454 NW2d at
738. The issue in Union was whether the insured could stack UM coverage in
two policies of insurance issued to the insured by the same insurer. Id. at
737. Both of Union’s policies contained clauses limiting its maximum
liability to $100,000 per person per accident in clear, unambiguous terms. Id.
at 738. We said:
In resolving the issue of whether [an insured] should be allowed
to stack [UM] coverages . . . the determinative factor must be
the apparent policy of our state legislature. By enacting SDCL
58-11-9, our legislature clearly sought to provide protection to
certain insureds who may be legally entitled to recover against
uninsured motorists. Subsequent to our decision in Westphal,
the legislature amended this statute by providing a maximum
amount of uninsured motorist coverage that an insurer could
provide to an insured absent a request for additional coverage by
the insured. This modification of the statute reflects a
legislative determination that the maximum amount set forth in
the statute is sufficient to protect those insureds who may be
legally entitled to recover against an uninsured motorist.
Id. at 739 (citations omitted). Despite our explanation of the meaning of
SDCL 58-11-9, we relied solely on the language of the insurance policy in
determining that stacking was not allowed. Id. at 739. We stated:
[The insurer limited] its liability in clear and unambiguous
terms. In both policies, [the insurer] specifically stated:
The limit of liability shown in the Declarations for “each
person” for Uninsured Motorist Coverage is our maximum
limit of liability for all damages for bodily injury
sustained by any one person in any one accident.
(Emphasis added). The limit of liability for uninsured motorist
coverage is the same on each declaration sheet, that is, $100,000
per person. Thus, the clear import of the “limit of liability”
clause in each policy is that [the insurer] will not provide
(continued . . .)
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at 739-40. Therefore, to the extent that language in our prior opinions may be read
to suggest that SDCL 58-11-9 establishes a public policy which precludes recovery
in excess of the mandated amount of coverage, the prior language should not be
interpreted as such and is not controlling.
[¶13.] Westphal remains the controlling case regarding the type of stacking at
issue here. Phen, 2003 SD 133, ¶¶28, 37-38, 672 NW2d at 59, 61 (Zinter, J.,
concurring). There we held that stacking of UM benefits for two different vehicles
insured by two different policies was not precluded by statute. Id. ¶¶20-22, 672
NW2d at 58-59. Unless the parties have clearly and unambiguously limited such
stacking by contract, it is not precluded.
[¶14.] In the evolution of our stacking jurisprudence, the language of the
individual policies was an important factor. In this case, however, AMCO does not
rely upon its policy provisions. AMCO clearly points out in its brief that it is not
_____________________
(. . . continued)
uninsured motorist benefits in an amount exceeding $100,000
per person for damages sustained in any one accident involving
an uninsured motorist, irrespective of the vehicles covered or
policies issued to [the insured] by [the insurer]. The clear
meaning of this limiting language should be given effect
considering the fact that [the insured] satisfied the apparent
policy of the legislature by providing Stanage with the
maximum amount of uninsured motorist coverage as set forth by
the statute.
Id. at 739-40 (footnote omitted). Thus, we reasoned that because the insurer
provided the amount of UM coverage dictated by SDCL 58-11-9, it satisfied
the purpose of that statute and was “free to limit its total liability to that
maximum amount in a subsequent policy issued to the same insured.” Id. at
739.
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attempting to avoid liability based on policy language in either the “other
insurance” or UM coverage portions of the policy. In fact, the summary judgment
motion makes no mention of the contract between the insured and insurer. AMCO
relies strictly on the language of SDCL 58-11-9 and urges this Court to hold that the
statutory language, in and of itself, limits stacking of UM coverage to the statutory
amount of $100,000/$300,000. We decline to do so. We have clearly stated that the
statutory amounts are only limiting if the insurer has stated the limits “in clear and
unambiguous terms.” Union, 454 NW2d at 738 (emphasis added). Whether or not
AMCO’s policy with Hocketts contains clear and unambiguous terms of limitation is
not before this Court, nor was it argued to the trial court as part of the summary
judgment motion. We agree with the trial court that Westphal and Phen allow the
stacking here, and we hold that the limits for UM coverage established in SDCL 58-
11-9 do not per se prohibit stacking UM coverage in excess of the statutory amount.
[¶15.] Affirmed.
[¶16.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP,
Justices, concur.
[¶17.] ZINTER, Justice, concurs specially.
ZINTER, Justice (concurring specially).
[¶18.] I fully concur in the Court’s opinion. I write only to emphasize that
this Court’s opinions in Westphal, 87 SD 404, 209 NW2d 555; Union, 454 NW2d
736; and Phen, 2003 SD 133, ¶¶28-41, 672 NW2d 52, 59-62 (Zinter, J., concurring
in result), only considered whether certain UM policy limitations were prohibited
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by SDCL 58-11-9, the statute mandating UM coverage. However, policy limitations
are concededly not at issue in this case. Therefore, the language of my concurring
opinion in Phen should not be used to suggest that SDCL 58-11-9 precludes
stacking when an insurer does not rely upon a policy limitation.
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