concurring.
I concur with the decision of the majority in this case only because I feel that the recent Idaho Supreme Court decision in City of Boise v. Planet Insurance Company, 126 Idaho 51, 878 P.2d 750 (1994), mandates affirmation of the district court’s finding of an ambiguity.
Were it not for the decision in Planet Insurance, I might disagree with the majority. In that case, the Supreme Court examined a comprehensive general liability policy purchased by the City of Boise and underwritten by Planet Insurance Company of Wisconsin. Following his demotion, a former deputy chief of operations in the city fire department sued the city, the mayor and the fire chief. He alleged that he had been wrongfully demoted and that his efforts to communicate complaints about the city fire chief, which he claims led to his demotion, were constitutionally protected free speech and expression. A jury awarded the former employee damages for lost earnings and emotional distress, finding that the demotion had been in retaliation for constitutionally protected free speech.
Planet Insurance denied coverage for the emotional distress damages under a policy exception that excluded “personal injury to or sickness, disease or death of any employee of the Insured arising out of and in the course of his employment by the Insured.” “Personal Injury” was defined as “Bodily injury, sickness, disease, disability, shock, fright; mental anguish and mental injury, including death at any time resulting therefrom.”
*546As to the damages for emotional distress, the Supreme Court determined that an ambiguity existed in the above language based on the policy’s use of bold type face. The policy defined various terms and, in so doing, employed a bold type face for each term. The policy then, when referring to the terms elsewhere, used the same type face. The Court found that since the phrase “personal injury” contained in the employee exclusion was not in the bold type face, it might be subject to any number of definitions and need not necessarily be read as defined in the policy. Because of this ambiguity, the policy was allowed to be construed in favor of the city and the summary judgment in favor of Planet Insurance was reversed.
I believe Planet Insurance is instructional in determining how narrow a reading is required by our Supreme Court when searching for ambiguity. In the instant case, the policy defines underinsured highway vehicles as:
a highway vehicle with respect to the ownership, maintenance or use of which the sum of the limits of liability under all other bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under this insurance ...
(emphasis added).
Similarly, the limit of liability for underin-sured vehicles states:
The total limit of the company’s liability for all damages because of bodily injury as the result of any one accident arising out of the ownership, maintenance or use of underinsured highway vehicles shall be the limits of liability stated in the policy declarations, less the sum of the limits of liability under all bodily injury bonds and insurance policies (other than this policy) applicable at the time of the accident,
(emphasis added).
The policy declarations recited the following limits:
Combined Single Limits
300.000 per occurrence
Medical Payment Coverage
5.000 per person
Underinsured Motorist Coverage (BI)
50.000 per occurrence
Reading the language “the applicable limits of liability under this insurance” and “the limits of liability stated in the policy declaration,” to include all the limits listed in the declaration is, to me, no less reasonable than determining that a definition contained in a policy was inapplicable because the phrase did not appear in bold type face. We must remember the test set forth in Planet Insurance is “what a reasonable person in the position of the insured would have understood the language of the contract to mean.” Id. at 55, 878 P.2d at 754, (emphasis added) (quoting Foremost Ins. Co. v. Putzier, 102 Idaho 138, 142, 627 P.2d 317, 321 (1981)).
By applying Planet Insurance to the facts of this case the Court goes one step further in clarifying Idaho’s restrictive interpretation of insurance policies. In future disputes, insureds will offer Planet Insurance as the standard for interpretation of insurance contracts in Idaho. Such a standard, however, may leave the insurer to wonder what language can be used and still have the policy comply with the appellate court’s demands for specificity.
Therefore, I believe that a stringent application of Planet Insurance mandates affirming the district court’s finding of an ambiguity. Being so restrained, I also conclude that to eliminate excessive recovery by the insured in this particular case, the majority has properly limited the coverage provided by the policy.
Accordingly, I concur.