dissenting.
I respectfully disagree with the majority's treatment of the second and final issue on appeal which is:
Whether the amount of underinsured motorist coverage extended to the occupants of the Scarlett car may be reduced by the $50,000 paid to the occupant of the other vehicle involved in the collision.
In endorsement 1603 of the Nationwide policy, Nationwide includes “underinsured motor vehicles” in its definition of uninsured vehicles. Endorsement 1603 reads:
1. An uninsured motor vehicle includes an underinsured motor vehicle. This is one for which there are bodily injury liability coverages or bonds in effect. Their total amount, however, is less than *823the limits of this coverage. These limits are shown in your policy’s declarations.
Thus, by contract, Nationwide has made its underinsured coverage subject to the same “extra policy” (i.e. statutory) constraints and requirements as flow with its uninsured coverage.
The basic theory of uninsured motorist coverage “is that uninsured motorist coverage is meant to compensate the plaintiff for a deficiency in the tortfeasor’s personal liability insurance coverage.” Dewberry v. Auto-Owner’s Insurance Co., 363 So.2d 1077, 1081 (Fla.1978). The decision in State Farm Mutual Auto. Insurance Co. v. Diem, 358 So.2d 39, 40 (Fla.App.1978) is consistent with this rationale. The court stated:
We hold that the maximum uninsured motorist coverage available to the insured under such circumstances [where a driver is hit by an uninsured motorist] is the uninsured motorist policy limits less the maximum benefits available to the insured under the automobile liability insurance policy of the underinsured motorist.
In Diem, the plaintiff had underinsured motorist coverage with State Farm of $15,-000/$30,000. The tortfeasor had $20,000 of coverage of which $4,000 was paid to Diem and $16,000 to other parties. The court ruled that State Farm would be required to pay all of Diem’s damages up to the $15,000/$30,000 limit, less only the $4,000 the tortfeasors insurance paid to Diem.
Thus, State Farm’s argument that the tortfeasor was not underinsured because it had more than $15,000 of coverage, i.e., $20,000, was rejected, the court holding that the number to utilize in determining whether the tortfeasor is underinsured is the amount awarded to the policyholder.
Diem was decided under a Florida statute which specifically defined uninsured motorist coverage in terms of benefits available to the insured and the court stated:
Contrary to State Farm’s position herein, available benefits under the statute does not constitute the policy limits of the underinsured’s liability policy where, as here, the benefits under such policy have been partially exhausted by payment of claims to persons other than the insured. Lee v. State Farm Mutual Automobile Insurance Co., 339 So.2d 670 (Fla.2d DCA 1976). Available benefits must mean that which is actually available to the insured herein from the underinsured's liability carrier.
Idaho’s statutory scheme is similar in that I.C. § 41-2502 together with I.C. § 49-1505 require that there be not less than $25,000 per person and $50,000 per accident for the protection of persons insured thereunder, those persons being the Scarletts and not parties who are not insured under the Scarlett policy.
The district court erred in offsetting Nationwide’s underinsured coverage by the $50,000 of liability insurance paid by the tortfeasor’s insurer to a separate victim of the accident.
Nationwide charged and received of Scarlett a premium to provide underinsured coverage to Scarlett. Scarlett did not provide a premium to provide coverage for the Milton Olander family (passenger in the car driven by the other driver).
The next and logical result which must flow from Justice Bakes’ line of reasoning, is that if the whole $300,000 had been paid over to the Milton Olander heirs, the Scarlett family would have gotten zero for their premium.
Would that my colleagues would depart from the realm of word games and return to a few of the rules we follow when convenient, i.e.:
Rule 1: Ambiguous policy is construed against maker.
Rule 2: Give meaning to all words in contract if possible.
Rule 3: Where a contract or insurance policy is impressed with a statute by operation of law, the statute must be considered a part of the document and given effect.
Justice Bakes treats this issue in one long paragraph — the reader will please go back and reread it and see if he ever refer*824enees the statute (I.C. § 41-2505) or explains away its words: “for the protection of persons insured thereunder ...”
Today this Court protects only Nationwide in its ability to collect premiums without liability to pay benefits. No one can accuse this Court of being anti FREE enterprise.
BISTLINE, J., concurs.