concurs in part and dissents in part with opinion.
The majority holds that Gambill is not entitled to payment under both the uninsured and underinsured provisions of the policy. I respectfully dissent.
The uninsured and underinsured provisions of the policy state that no one is entitled to receive "duplicate payments" for "the same elements of loss." The majority holds that "the same elements of loss" is not ambiguous and can only mean that Gambill is not entitled to recover under both the uninsured and underinsured provisions, noting that the phrase cannot be read to mean "the same elements of damages" because the policy explicitly uses the term "damages" in other provisions. See op. at 1131.6 I disagree. The policy does not define "the same elements of loss." It is entirely plausible, as Imre posits, that losses attributable to costs for medical services are not the same as losses attributable to lost wages and loss of earning capacity, "past and future pain and suffering, permanent impairment, disability, or disfigurement, and emotional distress, all compenséble losses due to injury. If the policy intended all compensable losses to be considered under the umbrella of a single "loss," the policy could have stated that no one is entitled to duplicate payments for "@ loss." Instead, the policy uses the phrase "elements of loss." The usage of the plural indicates to me that the policy recognizes the different categories of loss and is limiting only duplicate payments for any one element. In any event, Imre has set forth a reasonable reading of the policy, and I would therefore hold that the policy is ambiguous and construe it strictly against Lake States.
Moreover, I note that Section D of both the uninsured and underinsured motorist *1133coverage limit of liability provisions states that "[wle will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible." Appellants' Appendix at 31-32, 83. The plain language of this section can only be understood to mean that a "duplicate payment" is one where both the tortfeasor and the insurer compensate the insured for the same element of loss, thus guarding against the insured profiting beyond the actual damages incurred. There is no reason why "duplicate payment" as it is used in Section C should be read to mean something entirely different.
There is no dispute that the "elements of Gambill's loss" exceed $200,000. Were he to recover policy limits under both the uninsured and underinsured provisions of the policy, he would not be profiting beyond his actual damages. Thus, there would be no duplicate payment for any one element of loss.
The majority also states that Imre could have no reasonable belief that the policy provides simultaneous coverage under both the uninsured and underinsured provisions. Again, I disagree. The declarations page of the policy shows separate coverage for uninsured and underinsured motorists. Appellants' Appendix at 21. Imre paid a separate premium for each type of coverage. Id. "Uninsured" and "underinsured" motor vehicles are defined in the policy. Appellants' Appendix at 31, 38. The definitions are mutually exclusive; one cannot be both an uninsured and un-derinsured motorist. Thus, there are two separate risks contemplated and covered by the policy. The insured can recover under both the bodily injury and property damage liability coverage provisions of the policy for which separate premiums are paid; without specific language stating otherwise, I see no reason why it would not be reasonable for the insured to believe that he could also recover under both the uninsured and underinsured motorist coverage.
Accordingly, I would hold that Gambill can recover up to the policy limits of both the uninsured and underinsured provisions of the policy,7 and I would therefore hold that the trial court erred in granting Lake States' Motion for Partial Summary Judgment and denying Imre's Motion for Summary Judgment. Therefore, I dissent from Sections III and IV of the opinion and concur in the remainder.
. I do not believe that construing "same elements of loss" to encompass more than just costs for medical services necessarily interprets the phrase to mean "same elements of damages" and renders the provision out of harmony with the remainder of the contract. I interpret "loss" to be a bigger umbrella under which the smaller element of "damages" falls, and thus believe that my interpretation also harmonizes the contract.
. The Wisconsin Court of Appeals recently considered the issue of payment under both uninsured and underinsured provisions of a policy identical to this one in all relevant aspects and came to this same conclusion. I find the Wisconsin court's reasoning persuasive and have adopted some of that reasoning herein. Fischer v. Midwest Sec. Ins. Co., 673 N.W.2d 297 (Wis.Ct.App., 2003).