dissenting. This case presents us with an opportunity to extend our decision in Ross v. United Servs. Auto Ass’n., 320 Ark. 604, 899 S.W.2d 53 (1995), where we held that underinsured motorist coverage could be stacked to allow full recovery of injuries sustained by a policy holder in circumstances where the insurance company failed to comply with a legislative mandate requiring that such coverage be offered. The majority declined to extend Ross, supra, and I respectfully dissent.
In 1992, the court decided Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), by a 4-3 majority, holding that public policy does not require that uninsured motorist coverage must be paid by an insurance company even when another policy provides such coverage. After we decided Ross, supra, extending underinsured coverage to an insured when the insurance company failed to comply with applicable statutes, we revisited the issue once again in Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998), and decided that the anti-stacking provisions of the insurance policy were enforceable. Justice Corbin noted in a strong and well-reasoned dissent:
[ W]hen an insured purchases such coverage, he or she pays an added premium for such coverage. According to this court’s decisions enforcing other-insurance clauses, however, he or she may be entitled to recover under such added coverage only in certain circumstances. In other words, the added premium is consistently being paid, but the coverage is less than consistently being provided. Should the insurers continue to benefit from receiving premium payments from their respective clients, only to deny payment of coverage to the clients where another insurer has already paid? It seems to me that, while we have gone out of our way to avoid giving a windfall to the insured, we have inadvertently provided a windfall to the insurers, by allowing them to benefit from the payment of additional premiums for uninsured-motorist coverage. Such windfall was never intended by the Uninsured Motorist Act (citation omitted).
Id. Justice Corbin also wrote that “the overwhelming majority of states now embrace the notion that an injured insured should be entitled to collect on multiple uninsured-motorist policies in order to fully compensate or indemnify the insured. Id. (citing Alan I Widiss, Uninsured and Underinsured Motorist Insurance § 13.6 (1990).
I agree with Justice Corbin’s dissent in Youngman, supra, on the issue of stacking as a matter of public policy and quote further from that dissent:
[ A]nti-stacking (or other-insurance) clauses pertaining to underinsured-motorist coverage deny Arkansas policyholders their reasonable expectations of full compensation, and that such clauses accordingly violate public policy. I further believed that such clauses pertaining to uninsured-motorist coverage are equally violative of public policy, as they, too, deny policyholders their expectations of being fully compensated in the event they are injured by the actions of an uninsured motorist. I do not believe, however, that recovery under more than one policy should actually enrich or benefit an insured beyond his or her injuries.
Id. (emphasis added).
In 12A George J. Couch, Cyclopedia of Insurance Law § 45:628 (2d rev. ed. 1981 & Supp. 1997), the author writes, “the injured party may draw in order to compensate him for his actual loss where a single policy is not sufficient to make him whole.” Id. In this case, appellant requests that she be made whole. Even the majority in Clampit, supra, concedes that the “[underinsuredmotorist] coverage is designed to provide compensation to the extent of the injury, subject to the policy limit.” Id. Stacking would enable appellant in this case to receive compensation for almost the entire extent of her injury.
In Youngman, supra, the majority recognizes that thirty-six states have allowed stacking of insurance coverage policies that have been actually purchased and paid by the insured. I believe it is time we joined the majority view and respectfully dissent. However, by the majority’s decision today to allow prohibitions against stacking to be enforced, those adversely affected by the anti-stacking rule must look to the legislature for guidance on the underlying issue of public policy. Otherwise principles of stare decisis will preclude us from examining this issue again.
I respectfully dissent, and I am authorized to state that Justice CORBIN and Justice HANNAH join in this dissent.
Corbin and Hannah, JJ., join.