(specially concurring).
A motion for rehearing having been denied, I specially concur to note that, because the stacking issue that is at the foundation of this case is nowhere developed in the Court’s opinion, it may appear to the reader that nothing more is involved than policy language that effects the rule in Schmick: any amount payable for underinsured coverage shall be reduced by all sums paid under liability insurance. The clause at the end of the penultimate paragraph, that “she will recover underinsured motorist benefits on policies on which she is a Class I insured,” may be lost on the reader.
The briefs of the parties demonstrate that, as a member of the family of the named insured under policies covering vehicles owned by her parents, Martinez is a Class I insured to the extent of $75,000. The Class I and Class II coverages total $135,000. The author of the Court’s opinion correctly observes that this case directly involves only the Class II coverage of $60,000. Damages suffered by Martinez exceed all policy limits, and she seeks to prorate the off-set for liability coverage and collect approximately $33,900 under the Mountain States policy after giving that coverage a 60/135th credit for the liability payment.
I am compelled to express the view that pro rata credit in cases of primary Class II and excess Class I coverage has been rejected in the very recent case of Tarango v. Farmers Insurance Co. of Arizona, — N.M. -, 849 P.2d 368 (1993). The “pro rata credit” affirmed in Morro v. Farmers Insurance Group, 106 N.M. 669, 673, 748 P.2d 512, 516 (1988), should be limited to concurrent insurance of the same class. In Morro, the Court simply found nothing unfair to the primary Class II carrier in the pro rata allocation of credit toward the liability of both the primary and excess carriers. Pursuant to Tarango, applying the Schmick formula, the aggregate amount of underinsured motorist coverage in Morro should have been reduced by the liability payment, and the primary Class II carrier should have paid the full amount of its $25,000 coverage before the excess Class I carrier paid the balance of the net aggregate. However, the excess Class I carrier did not question the fairness of what the trial court did in that case. Here, as in Morro, we must decide the question raised, briefed and argued on this appeal. We have not considered whether Martinez’s Class I coverage would or would not be reduced by the liability payment that effected any reduction of Class II coverage payable under the Mountain States policy.