Nationwide Mutual Automobile Insurance v. Peebles

WALSH, Justice,

with whom HARTNETT, Justice, joins, dissenting:

The majority has construed 18 Del.C. § 3902(b) as imposing on each policy providing underinsured motorist coverage a requirement that it offset the limits of such coverage against the total damages sustained by an uninsured, notwithstanding the amount of liability insurance carried by a tortfeasor. Because I believe this approach is not supported by the language of the statute, read in its entirety, and is contrary to the “mirror image” concept evolved in our earlier cases, I respectfully dissent.

In construing a statute, a court should attempt to read the statute in its entirety and harmonize its constituent parts. E.I. DuPont De Nemours & Co. v. Clark, Del. Supr., 88 A.2d 436, 438 (1952). In Hurst v. Nationwide Mutual Insurance Co., Del. Supr., 652 A.2d 10 (1995), the majority permitted a set off of the insured’s uninsured motorist coverage against the total amount of *1379damages sustained but did so by construing 18 Del.C. § 3902(b)(3) in the light of section 3902(b)(l)’s general language requiring payment “for bodily injury damage that the insured [is] entitled to recover from the driver of an underinsured motor vehicle.” In Hurst the majority made no reference to section 3902(b)(2), the provision which controls the coverage issue in these cases. This is understandable since Hurst involved the application of the proceeds of uninsured coverage not underinsured coverage. In Hurst the majority rejected the “mirror image” with respect to section 3902(b)(1). It now extends that rejection to section 3902(b)(2).

My principal difficulty with the majority holding is that it does not accord significance to the only language in section 3902 which defines underinsured coverage. Apart from section 3902(b)(2) the other references to the term “underinsured” which appear in section 3902(b) shed little light on what the term itself means. The definitional section, (section 3902(b)(2)) however, is clear on its face:

(2) An underinsured motor vehicle is one for which there may be bodily injury liability coverage in effect, but the limits of bodily injury liability coverage under all bonds and insurance policies applicable at the time of the accident total less than the limits provided by the uninsured motorist coverage. These limits shall be stated in the declaration sheet of the policy, (emphasis added)

The majority opinion has, in effect, rewritten this subsection to define underinsured coverage as meaning tortfeasor liability coverage which is “less than the amount of damages sustained by the insured.”

Section 3902(b)(2), by its express language, is illustrative of the type of underinsured motorists coverage which provides “gap” or reduction coverage, ie., coverage for the difference between the limits of uninsured/un-derinsured coverage and the amount of the tortfeasor’s available liability coverage. See Connolly v. Royal Globe Insurance Co., Me. Supr., 455 A.2d 932, 936 (1983) (construing identical language under the Maine statute to require recovery of the amount the insured would have received “had the tortfeasor been insured to the same extent as the injured party”). The effect of the majority ruling is to convert section 3902(b)(2) into an “excess” statute, ie., an underinsured motor vehicle is one for which available liability coverage is less than the dollar value of the injuries suffered by the insured. See Elovich v. Nationwide Ins. Co., 104 Wash.2d 543, 707 P.2d 1319 (1985) (construing statute which defined “underinsured motor vehicle” as one having limits of liability which “is less than the applicable damages which the covered person is legally entitled to recover”).

“Gap” coverage is of course consistent with the mirror image which the majority now apparently discards. As I noted in my dissent in Hurst, I have no quarrel with the policy of full compensation of persons who suffer damages in motor vehicle accidents. If the General Assembly had adopted an excess form of underinsured motorist coverage, as construed in Elovich and adopted by the legislatures of several states, the entitlement to have damages set off by the full amount of underinsured coverage would be indisputable. But the language chosen by our General Assembly conveys the opposite intention in express terms and there is no need to have recourse to other portions of section 3902(b) to determine that intent.

Finally, the majority opinion creates an inconsistency between another decision of the Superior Court, recently affirmed by a panel of this Court, which construed section 3902(b)(2). In Allstate Insurance Co. v. Gillaspie, Del.Super., 668 A.2d 757 (1995), aff'd, Del.Supr., No. 327, 1995, Hartnett, J., 1996 WL 21056 (Jan. 10, 1996) (ORDER), the Superior Court was confronted with a situation in which an insured with $15,000 of underinsured motorist’s coverage recovered $15,000, the policy limits of a tortfeasor’s liability coverage. Because his damages exceeded $15,000, the insured, relying upon Hurst, sought to have his own underinsured coverage applied against the excess of his damages. In rejecting this argument, the Superior Court ruled that since the uninsured/underinsured coverage limits and the amount of available liability insurance coverage was equal there was no entitlement to any underinsured payments because the tort-feasor was not underinsured despite the fact *1380that the insured’s total damages remain unsatisfied. While acknowledging that a liberal interpretation of section 3902(b)(2) might be desirable in order to achieve “full compensation” the Superior Court did not believe it was free to ignore the express language of the statute. Gillaspie, 668 A.2d at 763. Our approval of Gillaspie as “well reasoned” cannot be squared with the result reached by the majority in this case.

The majority’s effort to distinguish Gillas-pie through a literal application of the “less than the limits” language of Section 3902(b)(2) is not convincing. The clear thrust of the majority opinion is to subordinate the application of Section 3902(b)(2) to the supposed command of Section 3902(b)(1), as described by the majority, that “when the underinsured policy is activated, it must respond in an amount up to the policy limits” for bodily injury damage. Logically, if the controlling standard for payment is the extent of underinsured coverage as measured against damages, the definition of underin-surance, and the amount of such coverage, is inconsequential.

This Court has struggled for many years with the language of Section 3902(b) and our shifting consensus has provided little guidance to the bar or the trial courts. Our differences have resulted from disagreements, honestly held, over the meaning of a statute which is arguably ambiguous. It would be a great benefit to the public who purchase underinsured coverage and sustain losses at the hands of underinsured tortfea-sors, if the General Assembly were to restate in clear and unmistakable language the extent to which uninsured/underinsured coverage is payable in situations where the insured receives payment from tortfeasors and collateral sources.