Beckler v. State Farm Mutual Automobile Insurance

THOMPSON, Judge,

dissenting.

¶ 39 Matthew BecMer is a Nebraska resident injured while walMng from a Phoenix night club. His injuries are covered under his parents’ Nebraska automobile insurance only because he lives with his parents in Nebraska. The insurance at issue in this case, uninsured motorist coverage, was selected in Nebraska by Matthew’s mother, Linda BecMer, on a form entitled “Nebraska Uninsured and Underinsured Motor Vehicle Coverages” which described Nebraska law regarding UM and UIM coverages. Nebraska law required State Farm to offer at least $25,000/$50,000 in UM coverage, but disallowed stacking of UM coverages on different vehicles and policies. Today’s opinion autho*291rizes stacking of coverages right in the face of Nebraska law that governs the offer and issuance of the coverages, notwithstanding our supreme court’s clear indication in Bryant v. Silverman, 146 Ariz. 41, 703 P.2d 1190 (1985), that Arizona has little or no interest in compensation of non-resident plaintiffs. “Compensation of an injured plaintiff is primarily a concern of the state in which plaintiff is domiciled.” Id. at 45, 703 P.2d at 1194. The majority here imbues Matthew with the “not inconsiderable agility” of being at once a Nebraska resident and yet entitled to privileges afforded only to Arizonans. See Boardman, 470 So.2d at 1035 n. 6 (plaintiff could not be “at once both a Mississippian” and a Nebraska resident). Indeed the majority itself has demonstrated “not inconsiderable agility” in taking the supreme court’s determination in Bryant to protect Arizona residents and turning it into a general rule that Arizona law will be applied where it best helps whatever plaintiff, non-residents included, happens to be in front of us. Majority Opinion at ¶ 31 (citing Bryant in support of proposition that we should apply Arizona’s stacking cases because to do so “will further Arizona’s interest in providing greater recovery for Matthew”). I dissent.

¶40 Apart from its stated intention to apply whatever law best helps the plaintiff,10 the majority relies almost exclusively on what it determines to have been the site of “principal garaging” of the Jeep Cherokee. In my view, the location of the vehicle is virtually irrelevant to the issue before us. The Jeep Cherokee was not involved in this accident. When he was hit, Matthew was walking with some friends to a girl’s vehicle in the parking lot, at which point the party planned to travel in the girl’s vehicle to eat at Denny’s. The UM coverage purchased by Matthew’s parents did not depend on his use of the Jeep Cherokee, as UM coverage protects a person “driving an automobile, strolling down the sidewalk, or relaxing in the front porch swing,” “no matter where he is ... or what he is doing.” Employers Mut. Cas. Co. v. McKeon, 159 Ariz. 111, 114, 765 P.2d 513, 516 (1988). Matthew was insured against uninsured motorists whether he drove the Jeep to Arizona or whether the Jeep even existed.

¶41 Concluding that there are no cases on point, the majority ignores a large body of law applying the law of the state where the policies were issued and the insureds resided on the purported basis that in the eases cited by State Farm “the principal location of the insured risk was generally the same as where the policy was issued or where the insureds primarily resided.” Majority Opinion at ¶ 17. There are several problems with this conclusion.

¶ 42 First, one of the three cases cited by State Farm as controlling, Rhody v. State Farm Mut. Ins. Co., 771 F.2d 1416 (10th Cir.1985), applied Texas law, which made no provision for stacking of UM coverage, to a Texas policy issued to Texas residents whose son was fatally injured in a car wreck in Oklahoma, where the son resided and kept his car. In Rhody, State Farm knew that the son was an Oklahoma resident, and that his car would be garaged at his Oklahoma residence. Id. at 1417. The Oklahoma legislature had adopted a statute specifically authorizing stacking. See id. at 1421. The Tenth Circuit held that applying Texas law and disallowing stacking of coverages was not “inimical to established public policy in Oklahoma,” notwithstanding Oklahoma’s legislative approval of stacking, because Oklahoma courts do not generally apply laws protecting resident insureds to foreign contracts containing different provisions. Id.11 Quite contrary to the Tenth Circuit’s conclusion in Rhody, and our supreme court’s decision in Bryant that it is not our task to see that non-residents get the full measure of compensation available to Arizona residents, *292the majority here asserts that Arizona has a strong interest in applying its own law regarding stacking to a non-resident whose home state would not afford him the same privilege. If in Rhody Oklahoma’s positive legislative authorization of stacking was not sufficiently “prescriptive” to indicate a public policy in favor of stacking, then even less so does Arizona’s legislative authorization to insurance companies to preclude stacking suggest a policy imperative to allow stacking.

¶43 Second, the majority dismisses another12 of State Farm’s key cases, Board-man, 470 So.2d 1024, as one involving a vehicle principally garaged in Nebraska, where the policy was issued and the insured resided. What the majority fails to note is that the UM coverage of the injured insured (a son of a named insured) in Boardman was determined by the law of Nebraska, notwithstanding that the son was in Mississippi during the entire policy term, attending college and then working a job. Id. at 1028, 1033. The son had driven an insured vehicle into Mississippi, and the vehicle was then taken to Ohio by the father. See id. at 1028. Mississippi’s contacts with the insurance contract, occasioned by the son’s college attendance and employment in Mississippi, were deemed merely “fortuitous.” See id. at 1032. Thus, Boardman stands for the proposition that the mere location of an insured vehicle or of an insured does not determine what law applies.

¶44 Third, the Restatement (Second) of Conflict of Laws section upon which the majority relies, § 193, has an important exception that undermines exclusive reliance on the principal location of the insured risk. The law of the state where the risk was located will not apply where, “with respect to the particular issue, some other state has a more significant relationship ... to the transaction and the parties, in which event the local law of the other state will be applied.” Restatement § 193. A comment to § 193 posits application of the exception “when the contract would be invalid under the local law of another state with a close relation to the transaction and the parties.” Id. at cmt. d (1971). This is the case here, where stacking is precluded by the law of the State of Nebraska, a state with clearly close relations to the insurance contract, its resident insureds, and the accident itself. Compensation for Matthew is primarily Nebraska’s concern, particularly since Matthew resides with his parents in Nebraska. See Bryant, 146 Ariz. 41, 703 P.2d 1190. Nebraska’s anti-stacking provision is part of the insurance contract from which Matthew seeks to benefit and cannot be read out of the contract because of the fortuity of Matthew’s temporary presence in Arizona. Each state has the right to regulate and control contracts that its residents enter into, and state laws are a part of its residents’ contractual agreements. See American Fed. of Labor v. American Sash & Door Co., 67 Ariz. 20, 29, 39, 189 P.2d 912, 918, 925 (1948). Arizona has no warrant to alter the settled understanding of the law of Nebraska, pursuant to which this UM coverage was offered by a Nebraska company, purchased by a Nebraska resident, and afforded to a member of the same Nebraska household temporarily located in Arizona, when the Nebraska law and the Nebraska contract prohibit stacking.

¶ 45 I would reverse.

. Matthew has already been paid policy limits by State Farm under the UM coverage on one of his parents' policies, and he has sued the bar that apparently served liquor to the drunk driver that hit him.

. Bryant similarly restricts our choice of law determination here by abjuring any interest in the compensation of non-domiciliary plaintiffs. Bryant, 146 Ariz. at 45, 703 P.2d at 1194. Thus, contrary to the majority’s assertion (see Majority Opinion at ¶¶ 14 — 15), Arizona’s choice of law precepts do not materially differ from those deemed operative in Rhody.

. As to the third of the three cases State Farm principally relies upon. Walker, 973 F.2d 634, which applied Kansas law where the insureds resided in Kansas but were involved in an accident in Iowa, appellees declined to even address the Walker holding other than to assert that State Farm should be estopped from citing it.