Transamerica Insurance Company v. McKee

HATHAWAY, Judge

(specially concurring).

In rejecting the rule set down by the California Supreme Court in Mission Insurance Company v. Brown, 63 Cal.2d 508, 47 Cal.Rptr. 363, 407 P.2d 275 (1965), requiring uninsured motorist protection in the same territory liability coverage is afforded, my colleagues have opened a serious gap in minimum standards of insurance protection in Arizona.

The uninsured motorist statute command's,

“. . .no automobile liability or motor vehicle liability policy shall be delivered or issued for delivery in this state, with respect to any motor vehicle registered or principally garaged in this state, . . .” (Emphasis added)

unless uninsured motorist coverage is provided or rejected. Implicit in the statute is the mandate that all automobile liability policies provide co-extensive uninsured motorist coverage.

Taking the minimum area requirement for issuing liability policies and imposing it as an uninsured motorist coverage area restriction — regardless of the parties’ agreement to extend liability coverage beyond the statutory minimum — overlooks the remedial purpose of the uninsured motorist statute and the policy that it be liberally construed to effectuate that purpose. Allstate Insurance Company v. Pesqueria, 19 Ariz.App. 528, 508 P.2d 1172 (1973). Efforts by insurers to frustrate this statute by writing limitations into their policies, thereby affording less than the full protec-' tion required by statute, should not be validated.

Uninsured motorist coverage reasonably follows liability coverage. Thus, the statute sets no boundaries because at a minimum, they must coincide with the liability policy boundaries in view of the statutory language that “no” liability policy is to issue without uninsured motorist coverage. The statute does not contemplate partial uninsured motorist coverage, but full protection complementary to the liability coverage. Public policy interests are brought into sharp focus by the plight of the injured children in the case before us. Should public policy, prescribing a minimum acceptable standard of coverage, afford greater protection to foreign residents than Arizona residents? I should hope not. The Legislature’s clear statutory expression should be carried out.

*163In Mission Insurance Company, supra, the California Supreme Court charts a prudent course in a remarkably similar situation, stating:

“. . . [P]ublic policy . . . requires that the insured be protected against damages for bodily injury caused by an uninsured motorist in the same territory in which the policy covers him for liability.
Accordingly, the territorial "limitation contained in the insurance policy involved in the present case is void, because it is contrary to public policy.” 47 Cal.Rptr. at 364,407 P.2d at 276.

Also see, Widiss, A Guide to Uninsured Motorist Coverage, § 3.5 (1969).

I would affirm for the foregoing reasons.