dissenting in part and concurring in part.
I respectfully dissent and vote to reverse the judgment of the trial court with instructions to grant Thomas Tate's motion for partial summary judgment.
I agree the interpretation of a contract is a question of law for the court. However, in my opinion, both the trial court and the majority opinion misinterpret the subject contract.
The critical provision in Tate's underin-sured motorist coverage contract with Sec-ura Insurance is the provision defining the coverage. In that provision Secura agrees:
COVERAGE C-2%2 UNDERINSURED MOTORISTS COVERAGE
We will pay damages which an insured person is legally entitled to recover from the owner or operator of an underin-sured motor vehicle because of bodily injury sustained by an insured person and caused by an accident.
Record at 10. The coverage provided is payment of damages for bodily injury to an insured, caused by an accident with an underinsured motor vehicle, in any amount up to of course the underinsured's policy limit.
Another essential provision, of course, is the provision which defines an "underin-sured motor vehicle" as
*820a land motor vehicle or trailer, which is insured by a liability policy or bond at the time of the accident which provides bodily injury liability limits less than the amount of total damages an insured person is legally entitled to recover but which are uncompensated because the damages exceed those limits.
Record at 11.
In the present situation it is undisputed the bodily injuries Tate sustained as a proximate result of the fault of the tortfeasor exceed $50,000. It is also undisputed the tortfeasor is an underinsured motorist because the tortfeasor's bodily injury liability coverage is $50,000, an amount less than the damages Tate is legally entitled to recover from tortfeasor. Applying these undisputed facts to the unambiguous language of the underinsurance contract, See-ura agreed to pay Tate the damages he is legally entitled to recover from the under-insured tortfeasor, those damages being in an amount in excess of $50,000, but which Tate is unable to receive from the tort-feasor because Tate's damages exceed the tortfeasor's bodily injury liability limits. Stated in the words of the contract
We [Secural will pay damages [an undetermined amount in excess of $50,000] which [Tate] is legally entitled to recover from the [tortfeasor] because of bodily injury sustained by [Tate] and caused by an accident.
Record at 10.
The remaining pertinent provision provides that "[almounts payable will be reduced by ... [almounts paid because of the bodily injury by, or on behalf of, persons or organizations who may be legally responsible." Record at 11. This unambiguous provision provides that when the amount of bodily injuries Tate is entitled to recover from the tortfeasor are determined, the amount Secura has contractually obligated to pay under its underinsured motorist coverage will be reduced by the amount paid by the tortfeasor, here $50,-000. Of course, in no event, is Secura obligated to pay Tate an amount, after the credit for the tortfeasor's payment, in excess of its coverage of $50,000.
In plain words, in my opinion, the instant contract provides Tate with underinsured motorist coverage for bodily injury damages Tate sustains to the extent those bodily injuries exceed the bodily injury coverage of the underinsured motorist up to the limits of Tate's own coverage.
I concur in the majority's opinion the trial court did not err in striking the affidavit of John Hammond because I, too, conclude the terms of the instant contract are unambiguous and its construction a matter of law for the trial court or, if the trial court errs in that construction, for this court.
I do not reach the other two issues which Secura asserts justify the summary judgment in its favor: that Tate waived his claim because he failed to assert claims and thereby exhaust the limits of liability under all liability policies and that Tate is es-topped from recovering from Secura because he settled his claim against the tort-feasor without Secura's consent and thereby destroyed Secura's subrogation rights. These issues involve genuine issues of disputed material fact which makes summary judgment inappropriate.