(concurring specially).
I agree with the majority that the legislature intended UIM benefits to be calculated on a “difference of limits” basis. A review of the legislative history of the 1985 amendments to the No-Fault Act makes this intent unmistakeably clear. While this intent is clear, however, the chosen statutory language sends out conflicting messages. These conflicting messages compel me to write separately in order to point out the misleading nature of this statute.
When the legislature amended the No-Fault Act in 1985 by creating Minn.Stat. § 65B.49, subd. 4a (1986) (maximum liability for UIM benefits), it intended a change in the method of calculating UIM benefits from an “add-on” basis to a "difference of limits” basis. In those same 1985 amendments, however, the legislature provided, for the first time, a definition of an “under-insured motor vehicle.” Minn.Stat. § 65B.43, subd. 17 (1986). The definition is stated in terms consistent with an “add-on” basis for calculating UIM benefits. Specifically, an “underinsured motor vehicle” is one “to which a bodily injury liability policy applies” with a limit “less than the amount needed to compensate the insured for actual damages.” Id.
Under this definition, a purchaser of UIM coverage might reasonably believe he or she is gaining protection against any case where the tortfeasor’s liability coverage is insufficient to compensate fully for all damages. Yet, the existence of damages in excess of the tortfeasor’s liability limits does not, as we hold today, guarantee availability of the added protection of UIM benefits. Ordinarily, if the tortfeasor has liability coverage with limits equal to or greater than the limits of the UIM coverage, then no UIM benefits will be available even if damages far exceed the tort-feasor’s liability limits. Only where the limits of the UIM coverage (as well as damages) exceed the tortfeasor’s liability limits will UIM benefits be available.
The majority explains the statutory definition as the first step in determining whether UIM benefits are available. I see this definition as potentially misleading to the purchaser of UIM coverage. Although a particular vehicle may fall within this definition and a person injured by such a vehicle may have purchased UIM coverage, there is no guarantee UIM benefits will be available.
In short, while I agree with the majority that the legislature intended a “difference of limits” basis for calculating UIM benefits, the existence of the statutory definition of “underinsured motor vehicle” leads me to write separately to put purchasers of UIM coverage on notice that they may not be getting the type of protection they think they are purchasing.