Bither v. Country Mutual

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JENNIFER BITHER, parent, on her ) own behalf, and on behalf of all) who may have a statutory right ) of recovery, ) ) Plaintiff/Appellee,) ) v. ) ) COUNTRY MUTUAL INSURANCE ) COMPANY, ) ) Defendant/Appellant. ) ) ________________________________) DIVISION ONE FILED: 11-30-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CV 10-0115 DEPARTMENT C O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. CV2008-021091 The Honorable Bethany G. Hicks, Judge REVERSED AND REMANDED Dillingham & Reynolds, L.L.P. By John L. Dillingham Attorneys for Plaintiff/Appellee Phoenix Doherty & Venezia, P.C. By Stephen M. Venezia Attorneys for Defendant/Appellant Phoenix D O W N I E, Judge ¶1 In this opinion, we hold that a wrongful death statutory beneficiary may not recover uninsured motorist ( UM ) benefits under an insurance policy where the beneficiary is not herself an insured. Because the superior court concluded otherwise, we reverse and remand. FACTS AND PROCEDURAL HISTORY ¶2 Jennifer Bither s fifteen-year-old daughter, Felicia Edwards, was a passenger in a vehicle driven by seventeen-yearold Laura Varker. between Edwards was killed as a result of a collison vehicles driven uninsured motorist. issued by $250,000 UM Varker and Bryant Wilkerson, an Varker s parents had an insurance policy Country in by Mutual Insurance coverage. As a Company resident that included her parents of household, Laura Varker was also an insured under that policy. ¶3 Bither filed against Country Mutual. herself and other a complaint for declaratory relief She brought the action on behalf of parties entitled to a statutory right of recovery pursuant to A.R.S. § 12-612(C) and alleged that she and other uninsured statutory motorist beneficiaries benefits up to were the entitled maximum to recover limits of the which Country uninsured motorist coverage. ¶4 Bither Mutual opposed. moved for summary judgment, The superior court granted Bither s motion. Country Mutual moved for reconsideration or clarification, which the court denied. pursuant to Arizona This appeal followed. We have jurisdiction Revised Statutes 2101(B) (2003). 2 ( A.R.S. ) section 12- DISCUSSION ¶5 We review the grant of summary judgment de novo. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c). Statutory interpretation is a question of law that we review de novo. Baker v. Dolphin Beach Rental & Mgmt., LLC, 224 Ariz. 523, 524, ¶ 6, 233 P.3d 636, 637 (App. 2010). ¶6 Several critical facts are uncontested. The parties agree that, as an occupant of the Varker vehicle, Edwards was an insured under the Country Mutual policy. 1 to be an insured under that policy. Bither does not claim Bither brought this action solely in her capacity as a statutory beneficiary under A.R.S. § 12-612 and not as personal representative of her daughter s estate. 2 1 The policy definition of Persons Insured includes anyone occupying an insured vehicle. 2 Bither filed a separate wrongful death action against Varker and Wilkerson. The record includes a release of claims that states Bither settled with the Varkers and Country Mutual for $750,000, without releasing the separate uninsured motorist claim advanced against Country Mutual. After a bench trial in the wrongful death case, Wilkerson was found thirty-five percent at fault for the accident. 3 ¶7 Resolution of this case turns on interpretation of A.R.S. § 20-259.03 (2002), 3 a statute that has not previously been addressed by our appellate courts. It states: Notwithstanding any other law, in the case of the death of an insured who is covered under the uninsured and underinsured motorist coverages of a motor vehicle liability policy, recovery for wrongful death is limited to any party who is qualified to bring a wrongful death action pursuant to § 12-612 and who is also a surviving insured under the same coverages of the policy. If there are no surviving insureds who qualify to bring a wrongful death action pursuant to § 12-612, the estate of the deceased insured maintains the right of recovery against the uninsured and underinsured motorist coverages of the motor vehicle policy. ¶8 When interpreting statutes, give effect to legislative intent. our primary goal is to Buencamino v. Noftsinger, 223 Ariz. 162, 164, ¶ 7, 221 P.3d 41, 43 (App. 2009). The best indication of legislative intent is the plain language of the statute. Id. ¶9 Before A.R.S. § 20-259.03 was enacted, Arizona had one statute with multiple subsections addressing UM coverage: A.R.S. § 20-259.01. 4 See generally Farmers Ins. Co. of Ariz. v. U.S. Fid. & Guar. Co., 185 Ariz. 125, 127, 912 P.2d 1354, 1356 (App. 3 We cite the current version of statutes when no revisions material to this decision have occurred. 4 Section 20-259.01 generally defines and describes the availability and limits of UM and underinsured motorist ( UIM ) coverage. 4 1995) (A.R.S. § 20-259.01 is the Uninsured Motorist Act); Geyer v. Reserve Ins. Co., 8 Ariz. 557 (1968); Joel DeCiancio, App. 464, Legislative 465, 447 Review P.2d S.B. 556, 1445-The Legislature s Attempt to Reverse Judicial Treatment of Uninsured and Underinsured Motorist Coverage in Arizona, 30 Ariz. St. L.J. 469, 472-73 (Summer 1998) (describing the history of UM coverage in Arizona). statute that Section 20-259.01 has been described as a remedial is to be liberally construed. Williams Williams, 23 Ariz. App. 191, 194, 531 P.2d 924, 927 (1975). v. The policy behind § 20-259.01 is to protect victims of financially irresponsible motorists. State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 254, 782 P.2d 727, 730 (1989); Calvert v. Farmers Ins. Co. of Ariz., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985). ¶10 Section 20-259.03 was enacted in 1998. Sess. Laws, ch. 255, § 1 (2d Reg. Sess.). See 1998 Ariz. Its plain language reflects that recovery of UM benefits for the wrongful death of an insured is limited to any party who is qualified to bring a wrongful death action pursuant to § 12-612 and who is also a surviving insured (Emphasis added.) under the same coverages of the policy. The word and is a conjunction connecting words or phrases expressing the idea that the latter is to be added or taken along with the first. Ring v. Taylor, 141 Ariz. 56, 70, 685 P.2d 121, 135 (App. 1984); see also de la Cruz v. 5 State, 192 Ariz. 122, 125, 961 P.2d 1070, 1073 (App. 1998) (holding that the conjunction and requires interpretation of the two words or phrases in combination). ¶11 The clear legislative mandate of A.R.S. § 20-259.03 is to preclude recovery of UM benefits by a statutory beneficiary who is not also an insured under the policy. Although Bither qualifies to bring a wrongful death action under A.R.S. § 12612, she is not a surviving insured. 5 ¶12 Bither s reliance § 20-259.03 is unavailing. a decedent s estate to on the second sentence of A.R.S. The language at issue merely permits recover UM benefits insured qualifies under A.R.S. § 12-612. 5 if no surviving As previously noted, Williams, on which Bither relies, was decided over 20 years before A.R.S. § 20-259.03 was enacted. We presume the legislature knew of Williams when it chose to preclude statutory beneficiaries who are not also insureds from recovering UM benefits. See Daou v. Harris, 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) ( [W]e presume that the legislature . . . knows the existing laws when it enacts or modifies a statute.); State Farm Mut. Auto. Ins. Co. v. Cobb, 172 Ariz. 458, 461, 837 P.2d 1193, 1196 (App. 1992) (the legislature was cognizant of an existing case when it amended A.R.S. § 20-259.01). Because the subsequently-enacted statute expressly forbids a non-insured from recovering UM benefits under the facts presented here, Williams is not controlling. See Giannini v. State Farm Mut. Auto. Ins. Co., 172 Ariz. 468, 471, 837 P.2d 1203, 1206 (App. 1992) (addressing A.R.S. § 20-259.01 and stating we do not conclude . . . that a victim is allowed to recover in situations not intended by the statute or expressly forbidden by it. ); Reserve Ins. Co. v. Staats, 9 Ariz. App. 410, 413, 453 P.2d 239, 242 (App. 1969) (we cannot find uninsured motorist coverage where it is neither provided in the policy under consideration nor demanded by statute ). 6 Bither is not bringing this action on behalf of her daughter s estate. 6 ¶13 We also disagree with Bither s suggestion that precluding her recovery is contrary to Arizona public policy. Our courts have recognized that [t]he protection afforded by [the Uninsured Motorist Act] is not applicable in all situations and may not necessarily protect all third parties in accidents caused by uninsured drivers. Midland Risk Mgmt. Co. v. Watford, 179 Ariz. 168, 172, 876 P.2d 1203, 1207 (App. 1994); see also Alcala v. Mid-Century Ins. Co., 171 Ariz. 121, 123, 828 P.2d 1262, strangers vehicle. ). to 1264 (App. the 1992) policy (UM only coverage when they is occupy afforded an to insured Indeed, cases addressing the public policy behind A.R.S. § 20-259.01 focus on protection of insureds. See, e.g., Taylor v. Travelers Indem. Co. of Am., 198 Ariz. 310, 314, ¶ 11, 6 The superior court s conclusion that Bither, as Edwards s legal representative, is pursuing damages that Edwards would have been entitled to under the policy indicates that it viewed this case as a survival action. A wrongful death action compensates statutory beneficiaries for damages such beneficiaries have suffered due to the decedent s death, but does not compensate for injuries suffered by the decedent. Gartin v. St. Joseph's Hosp. & Med. Ctr., 156 Ariz. 32, 34, 749 P.2d 941, 943 (App. 1988). A survival action, on the other hand, carries on the claim that the decedent would have had for [her] injuries. Id. at 34, 749 P.2d at 943; see also A.R.S. § 14-3110 (2005) (actions that survive the death of a person may be asserted by or against the personal representative of such person ). Bither sued in her own name on behalf of herself and other statutory beneficiaries. Bither acknowledges she is seeking wrongful death damages. 7 9 P.3d 1049, 1053 (2000) (the public policy is to guarantee all insureds protection against uninsured motorists ); Spain v. Valley Forge Ins. Co., 152 Ariz. 189, 191-92, 731 P.2d 84, 8687 (1986) (UM coverage is designed to protect insured victims of an uninsured motorist s negligence); State Farm Mut. Auto. Ins. v. Tarantino, 114 Ariz. 420, 422, 561 P.2d 744, 746 (1977) (the public policy of the UM statute is to protect insureds when they uninsured are the innocent motorists ). this policy. victims Section of 20-259.03 the is negligence consistent of with As Country Mutual acknowledges, Edwards s estate could assert a timely claim for UM benefits. ¶14 The legislature makes policy decisions about the scope of recoverable damages in a statutory cause of action. In re Estate of Winn v. Plaza Healthcare, Inc., 225 Ariz. 275, 277, ¶ 12, 237 P.3d 628, 630 (App. 2010); see also Bowslaugh v. Bowslaugh, 126 Ariz. 517, 519, 617 P.2d 25, 27 (1979) (holding that a wrongful death action is purely statutory in origin and we must adhere to the plain language of the statute, leaving any deficiencies legislature. ). soundness of or inequities to be corrected by the We will not question the wisdom, necessity, or policy of legislative enactments. Phoenix Newspapers, Inc. v. Purcell, 187 Ariz. 74, 79, 927 P.2d 340, 345 8 (App. 1996). 7 ¶15 Bither s focus on the remedial nature of the Uninsured Motorist Act does not compel a contrary conclusion. The duty to liberally judges construe a statutory scheme requires to interpret the law to insure that what the law gives is not withheld ; it does not permit alter, judges amend or to act expand with the free- handedness-largess to provision being construed. Martin-Costa v. Kiger, 225 Ariz. 157, 161, ¶ 11, 235 P.3d 1040, 1044 (App. 2010) (quoting Nicholson v. Indus. Comm n, 76 Ariz. 105, 109, 259 P.2d 547, 549 (1953)); see also City of Tempe v. Fleming, 168 Ariz. 454, 457, 815 P.2d 1, 4 (App. 1991) (courts will not read into a statute something which is not within the manifest intent of the legislature as indicated by the statute itself. ). ¶16 Finally, we disagree itself permits her recovery. are payable if the with Bither that the policy The policy states that UM benefits insured is deceased, to the insured s surviving spouse or to a person authorized by law to receive such payment, or to a person who is legally entitled to recover damages which the payment represents. 7 Bither is not authorized Bither s reliance on out-of-state decisions is unpersuasive. We recognize that some jurisdictions allow wrongful death statutory beneficiaries to recover UM benefits if the decedent was an insured under the policy. But none of the cited cases involves a statute similar to A.R.S. § 20-259.03. 9 by law to receive the payment, nor is she legally entitled to recover damages which the payment represents in light of A.R.S. § 20-259.03. CONCLUSION ¶17 We reverse summary judgment in favor of Bither and direct entry of judgment for Country Mutual on remand. See Anderson v. Country Life Ins. Co., 180 Ariz. 625, 628, 886 P.2d 1381, 1384 (App. 1994) ( [W]here the issues can be decided as a matter of law, we have the authority both to vacate the trial court's grant of summary judgment in favor of one party and to enter summary judgment for the other party if appropriate. ). /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 10

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