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2017 S.D. 83
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
JODY STREFF and KEVIN STREFF, Plaintiffs and Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY and STATE
FARM FIRE AND CASUALTY COMPANY, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE MARK SALTER
Judge
****
RONALD A. PARSONS, JR.
A. RUSSELL JANKLOW of
Johnson Janklow Abdallah,
Reiter & Parsons LLP
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellants.
HILARY L. WILLIAMSON
WILLIAM P. FULLER of
Fuller & Williamson LLP
Sioux Falls, South Dakota Attorneys for defendants
and appellees.
****
CONSIDERED ON BRIEFS
ON APRIL 24, 2017
REASSIGNED ON
SEPTEMBER 8, 2017
OPINION FILED 12/13/17
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SEVERSON, Justice (on reassignment).
[¶1.] SDCL 58-11-9.4 requires underinsured motorist (UIM) coverage in
“motor vehicle liability polic[ies]” of insurance. Jody and Kevin Streff purchased a
motor vehicle liability policy from one insurer. They also purchased a personal
liability umbrella policy from a separate but related insurer. Both policies provided
UIM coverage, but both excluded coverage for accidents caused by government
vehicles. After Jody was injured in an accident involving a government vehicle, a
dispute arose concerning the enforceability of the exclusions. The circuit court ruled
that the exclusion was not enforceable in the motor vehicle liability policy but was
enforceable in the umbrella policy. The Streffs appeal the ruling regarding the
umbrella policy. We reverse, holding that the South Dakota UIM statute is not
limited to primary insurance policies and that the statute contemplates additional
coverage. By extension, umbrella policies that include UIM coverage are subject to
the same public policy prohibition on the exception of government vehicles from
UIM coverage.
Facts and Procedural History
[¶2.] The facts are not in dispute. The Streffs purchased a motor vehicle
liability policy (auto policy) from State Farm Mutual Automobile Insurance
Company. As required by SDCL 58-11-9.4, the auto policy included basic UIM
coverage. The Streffs paid an additional premium for additional UIM coverage in
the amount of $250,000 per person and $500,000 per accident.
[¶3.] The Streffs also purchased a separate $1 million personal liability
umbrella policy (umbrella policy) from a related company—State Farm Fire and
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Casualty Company. The umbrella policy provided excess liability coverage for
exposures relating to homes, watercrafts, and undesignated automobiles. The
Streffs paid an additional premium to add excess UIM coverage to the umbrella
policy. The umbrella policy’s definitions and exclusions governed the nature and
extent of the UIM coverage.
[¶4.] The umbrella policy’s definition of an “underinsured motor vehicle”
excluded coverage for “land motor vehicle[s] . . . owned by, registered to, or rented to
any government or any of its political subdivisions or agencies.” The auto policy
contained the same type of exclusion. Therefore, both policies excluded UIM
coverage for accidents caused by government vehicles. 1
[¶5.] In 2012, Jody was injured in an accident caused by a driver of a
government owned vehicle. An Alamosa, Colorado police officer ran a red light, and
his patrol vehicle collided with a second vehicle passing through the intersection.
The second vehicle struck Jody, causing her injuries.
[¶6.] The Streffs settled their personal injury claims with the Alamosa
Police Department. At the time of the accident, Colorado law limited the amount of
damages recoverable against a public entity or employee to $150,000. The Streffs
notified State Farm that they were willing to accept a $120,000 settlement from the
police department. They also notified State Farm they intended to make a claim for
1. This government vehicle exclusion must be distinguished from the
government owned vehicle exception in SDCL 58-11-9.4. The exclusion is a
contractual provision that limits the nature of UIM coverage actually
provided in a policy. The exception is a statutory provision permitting
insurers to exclude UIM coverage in policies insuring government owned
vehicles. See id. (“Any policy insuring government owned vehicles may not be
required to provide underinsured motorist coverage.”).
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UIM benefits under both policies. State Farm waived its right of subrogation and
gave the Streffs permission to accept the $120,000 settlement. 2 However, State
Farm advised the Streffs that it reserved its right to assert applicable policy
provisions for any UIM claim. The Streffs then filed this declaratory action to
determine the enforceability of the government vehicle exclusion in both policies.
The parties stipulated to the facts and filed cross-motions for summary judgment.
[¶7.] The circuit court granted both parties partial summary judgment. The
court granted the Streffs’ motion with respect to the auto policy. The court ruled
that the government vehicle exclusion in the auto policy violated South Dakota
public policy and was unenforceable because SDCL 58-11-9.4 required UIM
coverage in “motor vehicle liability polic[ies].” However, the court granted State
Farm’s motion with respect to the umbrella policy. The court ruled that the same
exclusion was enforceable in the umbrella policy because SDCL 58-11-9.4 did not
require UIM coverage in such policies.
[¶8.] State Farm did not appeal the court’s ruling, and it paid the Streffs
$100,000 in UIM benefits under the auto policy (the difference between the
$150,000 the Streffs were deemed to have recovered from the underinsured driver
and the policy’s UIM limits of $250,000). The Streffs now appeal the circuit court’s
decision upholding the government vehicle exclusion in the umbrella policy.
2. Although $120,000 was only 80% of the maximum recovery permitted under
Colorado law, the Streffs agreed that their UIM claim would be treated as
though they had recovered $150,000 from the underinsured driver.
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Decision
[¶9.] The question on appeal is whether the public policy recognized by this
Court regarding UIM coverage obtained in a “motor vehicle liability policy,” see
SDCL 58-11-9.4, extends to the insured’s request for “additional [UIM] coverage” as
indicated in SDCL 58-11-9.4. In other words, if our public policy dictates that an
insurer cannot exclude UIM coverage in a “motor vehicle liability policy” for
accidents involving government vehicles, does not that same public policy apply
when, under SDCL 58-11-9.4, the insured requests additional UIM coverage
through a supplemental umbrella policy?3 Although insurance coverage is
generally a matter of contract, UIM coverage is mandated under this State’s public
policy as set forth in SDCL 58-11-9.4.
No motor vehicle liability policy of insurance may be issued or
delivered in this state with respect to any motor vehicle
registered or principally garaged in this state, except for
snowmobiles, unless underinsured motorist coverage is provided
therein at a face amount equal to the bodily injury limits of the
policy. However, the coverage required by this section may not
exceed the limits of one hundred thousand dollars because of
bodily injury to or death of one person in any one accident and,
subject to the limit for one person, three hundred thousand
dollars because of bodily injury to or death of two or more
persons in any one accident, unless additional coverage is
requested by the insured. Any policy insuring government
owned vehicles may not be required to provide underinsured
motorist coverage.
3. Because the facts are not in dispute, “our review is limited to determining
whether the trial court correctly applied the law.” De Smet Ins. Co. of S.D. v.
Pourier, 2011 S.D. 47, ¶ 4 n.1, 802 N.W.2d 447, 448 n.1 (quoting Kobbeman v.
Oleson, 1998 S.D. 20, ¶ 4, 574 N.W.2d 633, 635). “Statutory construction and
insurance contract interpretation are questions of law reviewable de novo.”
Id. (quoting Demaray v. De Smet Farm Mut. Ins. Co., 2011 S.D. 39, ¶ 8, 801
N.W.2d 284, 287).
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Id. To determine whether the Streffs’ umbrella policy can validly exclude UIM
coverage for government vehicles, we concentrate on the statutory language
expressing the legislative intent underlying South Dakota’s uninsured motorist
statute.
[¶10.] To assist in this analysis, we find instructive the cases decided by the
Kansas Supreme Court: Bartee v. R.T.C. Transportation Inc., 781 P.2d 1084 (Kan.
1989), and the Supreme Court of Vermont: Insurance Co. of Pennsylvania v.
Johnson, 987 A.2d 276 (Vt. 2009). In Bartee, a family had two different policies
with the same insurer: an automobile liability policy and a personal liability
umbrella policy covering additional losses of up to $1 million. 781 P.2d at 1091.
After the defendants’ insurer became insolvent, Bartee filed a UIM claim on the
family’s automobile liability policy and personal liability umbrella policy. Id. at
1085-86. The Kansas Supreme Court considered whether Kansas’s underinsured
motorist statute required an umbrella policy to include UIM coverage. Id. at 1091;
see also Kan. Stat. Ann. § 40-284(a) (West 2017).
[¶11.] The Kansas court reasoned that “[r]ather than classifying the decisions
of other jurisdictions as a majority or minority rule . . . differing decisions stem from
the policy considerations and legislative intent underlying each state’s uninsured
motorist statutes.” Bartee, 781 P.2d at 1092. Concentrating on the different policy
rationales of different jurisdictions, the court posited that:
[s]tates which have statutes designed to provide a minimum
level of recovery hold that the umbrella policies do not fall
within the uninsured motorist statute, while states that have
statutes designed to provide full recovery hold that the umbrella
policy does fall within the uninsured motorist statute and must
offer uninsured motorist coverage.
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Id. at 1093.
[¶12.] In Johnson, the Supreme Court of Vermont reviewed the distinction in
UIM statutory language between state statutes requiring “minimum” coverage and
the other states’ statutory language requiring “full recovery.” 987 A.2d at 284-86.
The court determined that based on the language of Vermont’s UIM statute, “the
limits of UM/UIM coverage ‘shall be the same’ as those of the insured’s basic
liability coverage . . . .” Id. at 286 (quoting 23 V.S.A. § 941(c) (West 2017)).
[¶13.] The court also agreed with conclusions made by the Supreme Court of
Indiana, in that a UIM statute requiring
UM/UIM coverage equal to liability coverage . . . “manifest[ed]
an intent by [the] legislature to give insureds the opportunity for
full compensation for injuries inflicted by financially
irresponsible motorists. . . . To hold that an umbrella policy
which by its terms covers risks above those insured in an
underlying automobile policy does not apply to the underlying
uninsured or underinsured motorist coverage would contravene
that intent.”
Id. at 284 (quoting United Nat’l Ins. Co. v. DePrizio, 705 N.E.2d 455, 461 (Ind.
1999)). The court concluded Vermont’s UIM statute “by its terms, does apply to
excess or umbrella policies that provide coverage against liability arising out of the
ownership, maintenance, or use of a motor vehicle.” Id. at 286.
[¶14.] Likewise, here, SDCL 58-11-9.4 manifests South Dakota’s public policy
as expressed by the Legislature to give insureds the opportunity for full
compensation for injuries inflicted by financially irresponsible motorists. Again, the
statute states, in pertinent part:
No motor vehicle liability policy of insurance may be issued . . .
unless underinsured motorist coverage is provided therein at a
face amount equal to the bodily injury limits of the policy.
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However, the coverage required by this section may not exceed
the limits of one hundred thousand dollars because of bodily
injury to or death of one . . . unless additional coverage is
requested by the insured.
SDCL 58-11-9.4 (emphasis added). The statute allows for UIM coverage to exceed
$100,000 if “additional coverage is requested by the insured.” Id. Further, the
statute calls for “coverage . . . at a face amount equal to the bodily injury limits of
the policy.” Id. Therefore, the statute also contemplates the inclusion of additional
coverage requested by the insured.
[¶15.] In this case, the Streffs requested additional UIM coverage within a
supplemental umbrella policy. Thus, the Streffs opted for additional coverage as
allowed by the statute. They requested and paid a separate premium to obtain
primary coverage under their auto insurance policy in the amount of $250,000 per
person and $500,000 per accident. Then, they requested and paid a separate
premium to purchase additional UIM coverage under the umbrella policy in the
amount of $1 million. Under SDCL 58-11-9.4, they were allowed to do this to obtain
additional protection for damages done unto them by uninsured motorists.
[¶16.] The Streffs were cautious enough to purchase additional coverage to
protect themselves if damaged by an uninsured or underinsured motorist beyond
their underlying policy limit of $250,000 per person and $500,000 per accident.
They also paid additional premiums to cover such an event through their umbrella
policy, up to $1 million. Because SDCL 58-11-9.4 does not limit UM/UIM coverage
to primary policies and contemplates additional UM/UIM coverage, the statute
contemplates umbrella policies that include UM/UIM coverage. Therefore,
umbrella policies are subject to the same public policy prohibition invalidating an
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exception from coverage for accidents involving government owned vehicles.
Indeed, had the Streffs been struck by a privately owned vehicle instead of a
government owned vehicle, they would have unquestionably been further
compensated by the additional uninsured motorist coverage obtained in their
umbrella policy.
[¶17.] For these reasons, we reverse.
[¶18.] GILBERTSON, Chief Justice, and WILBUR, Retired Justice, concur.
[¶19.] ZINTER, Justice, and KERN, Justice, dissent.
[¶20.] JENSEN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
ZINTER, Justice (dissenting).
[¶21.] Motor vehicle liability policies and umbrella policies of insurance are
fundamentally different; and the text of SDCL 58-11-9.4 mandating underinsured
motorist (UIM) coverage only references “motor vehicle liability polic[ies]” that are
“issued with respect to” motor vehicles that are “registered or principally garaged in
this state.” The Legislature would not have included this limiting language if it
meant nothing. Streffs’ umbrella policy was not a “motor vehicle liability policy.”
Streffs’ umbrella policy was also not “issued with respect to” their 2006 Mazda,
their motor vehicle that was “registered and principally garaged in this state.” See
id. The circuit court should be affirmed for both reasons. Streffs’ umbrella policy
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was neither a “motor vehicle liability policy” nor any kind of policy that was issued
“with respect to” their Mazda. 4
[¶22.] The majority disregards both limitations on the statute’s application.
Moreover, the Court extends the UIM mandate to any type of insurance policy when
UIM coverage is requested by an insured. Supra ¶ 16. The Legislature and the
Division of Insurance will certainly be surprised to learn that ever since 1975—
when the Legislature first began requiring UIM coverage in “motor vehicle liability
policies”—it was also mandating UIM insurance in other types of policies if
requested by the insured. The statute does not say any of this. And in my view, it
is a legislative rather than judicial function to extend the public policy in the statute
to other types of insurance. I respectfully dissent.
I
[¶23.] Statutory interpretation must begin with the statute’s text. Hofer v.
Redstone Feeders, LLC, 2015 S.D. 75, ¶ 15, 870 N.W.2d 659, 662. There is no
dispute that SDCL 58-11-9.4 only references motor vehicle liability policies. There
is also no dispute that the policy at issue here was not a motor vehicle liability
policy: it was an excess umbrella policy that was issued for home, boat, and
4. These statutory requirements cannot be ignored. They clearly circumscribe
the UIM coverage mandate. “On numerous grounds, a majority of
jurisdictions treat ‘automobile or vehicle insurance,’ or some derivation
thereof, as a term of art with a meaning distinguishable from the references
to motor vehicles found in an umbrella policy.” Dickau v. Vt. Mut. Ins. Co.,
107 A.3d 621, 630-31 (Me. 2014). Indeed, the insurance policies referenced in
this type of UIM statute encompass “a particular class of insurance policies”
that provide coverage at the first level of loss and are “inherently tethered to
the ownership of a particular motor vehicle and the activity of driving.” See
Apodaca v. Allstate Ins. Co., 255 P.3d 1099, 1105 (Colo. 2011); accord Dickau,
107 A.3d at 631. Umbrella policies are fundamentally different.
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undesignated automobile coverage. Although Streffs’ umbrella policy also provided
some limited UIM coverage, their umbrella policy was not “transformed into a[] . . .
‘motor vehicle liability policy’” simply because Streffs requested optional UIM
coverage. See Apodaca v. Allstate Ins. Co., 255 P.3d 1099, 1105 (Colo. 2011). “[I]t
would be equally inaccurate to label [Streffs’] umbrella policy as a[] . . . ‘boat policy’
or ‘homeowner’s policy.’” Id.
[¶24.] The majority avoids dealing with the difference in the types of
insurance policies by reframing the issue. In the Court’s view, the question today is
whether the public policy regarding UIM coverage required in “motor vehicle
liability policies” should be extended to an insured’s request for that coverage in an
“umbrella policy.” Supra ¶ 9. The Court rhetorically asks: “[I]f our public policy
dictates that an insurer cannot exclude UIM coverage in a ‘motor vehicle liability
policy’ for accidents involving government vehicles, does not that same public policy
apply when . . . the insured requests additional UIM coverage through a
supplemental umbrella policy?” Supra ¶ 9. The answer to that question is
straightforward. Even if the public policy should be extended to other types of
insurance, that is a legislative prerogative. After all, the Legislature has considered
the UIM statute six times in the last forty years and never once even suggested that
it was regulating any policy other than “motor vehicle liability polic[ies].” 5 It
5. Since it was enacted in 1975, all six versions of SDCL 58-11-9.4 have only
regulated “motor vehicle liability polic[ies].” 1975 S.D. Sess. Laws ch. 315,
§ 1. See also 1997 S.D. Sess. Laws ch. 286, § 2; 1989 S.D. Sess. Laws ch. 424;
1988 S.D. Sess. Laws ch. 394, § 1; 1986 S.D. Sess. Laws ch. 418, § 1;
1981 S.D. Sess. Laws ch. 359, § 1.
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follows that until the Legislature acts, the public policy set forth by SDCL 58-11-9.4
does not apply to other insurance.
[¶25.] Even if we are to ignore the Legislature’s description of the type of
policy the statute is regulating, the statute’s text contains a second limitation: the
policy must be issued in this state with respect to a motor vehicle registered or
principally garaged in this state. SDCL 58-11-9.4. This Court has specifically
recognized that this statutory language is a restriction on the application of the
companion uninsured motorist statute. We held that even if the “purpose” of the
statute is to provide more “coverage” for the insured, the statutory mandate does
not apply unless the “policy” itself has been issued with respect to a motor vehicle
that is “registered or principally garaged in this state.” Milinkovich v. Progressive
Cas. Ins. Co., 2013 S.D. 16, ¶¶ 9-10, 827 N.W.2d 366, 368. As this Court
unanimously did just four years ago in Milinkovich, we should apply rather than
“overlook” this specific legislative limitation in the text. See id.
II
[¶26.] The majority holds that unconditional UIM coverage is mandated here
because: (1) the statute requires optional coverage if requested by the insured; and
(2) the Legislature enacted SDCL 58-11-9.4 to provide insureds with a “full
compensation.” See supra ¶ 14. The majority views the statute as an “opportunity
for full compensation.” Supra ¶ 14. The majority’s “full compensation” purpose is
taken from court decisions in Kansas and Vermont. See Bartee v. R.T.C. Transp.,
Inc., 781 P.2d 1084 (Kan. 1989); Ins. Co. of the State of Pa. v. Johnson, 987 A.2d 276
(Vt. 2009).
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[¶27.] Even if statutory interpretation permitted consideration of a statute’s
purpose and opportunities before its text—which it does not—the rationale of Bartee
and Johnson is not applicable under our statute. The Kansas and Vermont courts
held that their statutes required UIM coverage in umbrella policies only because
their statutes did not limit coverage to a specific amount: those statutes mandated
unlimited coverage “equal” to the policy’s liability limits. See Bartee, 781 P.2d
at 1094 (quoting Kan. Stat. Ann. § 40-284 (Supp. 1988)); Johnson, 987 A.2d at 286. 6
Because their statutes mandated “equal coverage” without limitation, those courts
concluded that the purpose of their statutes was to provide a “full recovery”; and
requiring coverage in umbrella policies achieved that purpose. Bartee, 781 P.2d
at 1094-95; Johnson, 987 A.2d at 286. However, SDCL 58-11-9.4 is much different:
it is not a “full recovery” statute. See id.
6. The majority does not mention the fact that the Kansas and Vermont
analysis is far from being uniformly accepted. Many states reject the
distinction between “minimum coverage” and “full recovery.” See Mass v.
U.S. Fid. & Guar. Co., 610 A.2d 1185, 1194 & n.16 (Conn. 1992) (rejecting
distinction between “minimum coverage” and “full recovery” statutes and
concluding umbrella policies are not subject to UIM statute despite requiring
equal coverage); Dickau, 107 A.3d at 628-29 (same); United Servs. Auto. Ass’n
v. Wilkinson, 569 A.2d 749, 754-55 (N.H. 1989) (“While we recognize the
legislature’s intention to require uninsured motorist coverage to equal motor
vehicle liability coverage, in whatever amounts it is purchased, we do not
assume the legislature intended this requirement to apply to whatever form
the coverage takes.”); see also Stoumen v. Pub. Serv. Mut. Ins. Co., 834 F.
Supp. 140, 142 (E.D. Penn. 1993) (“[T]his court does not believe that the type
of uninsured motorist statute that a legislature chooses to adopt is dispositive
of the issue of whether the legislature also intends to include umbrella
policies within the statute’s reach.”); Apodaca, 255 P.3d at 1106 (rejecting the
distinction because it oversimplifies UIM statutes); Rowe v. Travelers Indem.
Co., 800 P.2d 157, 159 (Mont. 1990) (“In this case, however, both parties
agree that the distinction between ‘minimum liability’ and ‘full recovery’
statutes is meaningless.”)
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[¶28.] Concededly, like the Kansas and Vermont statutes, SDCL 58-11-9.4
provides that UIM coverage must be provided “at a face amount equal to the bodily
injury limits of the policy.” But unlike Kansas and Vermont, SDCL 58-11-9.4
expressly limits the “equal” coverage mandate. Insurers must provide equal UIM
coverage only up to a specifically stated limit: $100,000 for one person in one
accident and $300,000 for two or more people in one accident. Id. After that, all
“additional coverage” is optional. Id. 7 Thus, this Court has already rejected the
majority’s premise that SDCL 58-11-9.4 is an unlimited matching statute designed
to provide the full recovery that the Kansas and Vermont courts found in their
statutes. South Dakota has a statutory $100,000/$300,000 default maximum. We
have previously concluded that the statute “reflects a legislative determination [i.e.,
a legislative policy] that the [$100,000/$300,000 maximum] set forth in the statute
is sufficient to protect insured motorists from underinsured motorist[s].” Gloe v.
Union Ins. Co., 2005 S.D. 30, ¶ 12, 694 N.W.2d 252, 257 (emphasis added). 8
7. Compare, e.g., Vermont’s UIM statute, which requires at least $50,000 in
UIM coverage and then expressly mandates equal coverage whenever the
insured’s liability limits exceed $50,000. See Vt. Stat. Ann. tit. 23, § 941(c)
(West 2017).
8. The majority reverses course today. It concludes that SDCL 58-11-9.4
provides for “full compensation.” Supra ¶ 14. But this change of opinion
occurs only by conflating what coverage is allowed and what coverage is
mandated. The majority reasons:
The statute allows for UIM coverage to exceed $100,000 if
“additional coverage is requested by the insured.” Further, the
statute calls for [presumably mandates] “coverage . . . at a face
amount equal to the bodily injury limits of the policy.”
Therefore, the statute also contemplates the inclusion of
additional coverage requested by the insured.
(continued . . . )
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[¶29.] The majority opinion is also incorrectly based on the belief that Streffs
“paid” a premium for UIM coverage involving government-owned vehicles. See
supra ¶¶ 15-16. They did not. The payment of a premium does not entitle an
insured to unconditional coverage. Nickerson v. American States Ins., 2000 S.D.
121, ¶ 15, 616 N.W.2d 468, 471. In the absence of a statutory mandate, coverage is
governed by the policy terms, which includes exclusions. See Ass Kickin Ranch,
LLC v. N. Star Mut. Ins. Co., 2012 S.D. 73, ¶ 9, 822 N.W.2d 724, 727. Here, Streffs’
umbrella policy was marketed and sold with an express term excluding coverage for
government-owned vehicles. Although Streffs paid a premium and received some
UIM coverage in their umbrella policy, that policy did not purport to provide
unconditional coverage. Consequently, Streffs did not pay a premium for
unconditional UIM coverage involving government-owned vehicles.
[¶30.] Today the Court has mandated unconditional UIM coverage in all
policies of insurance if that coverage is requested by the insured. Not one of the six
legislative enactments relating to SDCL 58-11-9.4 since 1975 has said anything
even close to that. On the contrary, the statutory text has always limited the
mandate to motor vehicle liability policies; and those policies are included only if
they are issued with respect to a motor vehicle that is registered or principally
garaged in this state. I would apply these express legislative limitations and leave
it to the Legislature to “extend” the statutory mandate.
[¶31.] KERN, Justice, joins this dissent.
_______________
(. . . continued)
Supra ¶ 14 (emphasis added) (citations omitted).
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